| Page Range | 54407-54700 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 54697 - Establishing Paid Sick Leave for Federal Contractors | |
| 80 FR 54693 - Labor Day, 2015 | |
| 80 FR 54598 - Sunshine Act Meeting | |
| 80 FR 54564 - Sunshine Act Meeting | |
| 80 FR 54594 - Sunshine Act Meeting | |
| 80 FR 54629 - Sunshine Act Meeting | |
| 80 FR 54484 - Great Lakes Pilotage Rates-2016 Annual Review and Changes to Methodology | |
| 80 FR 54649 - Kentucky Disaster Number KY-00058 | |
| 80 FR 54650 - ALASKA Disaster #AK-00031 | |
| 80 FR 54651 - Industry Advisory Group: Notice of Charter Renewal | |
| 80 FR 54648 - New York Disaster #NY-00162 | |
| 80 FR 54590 - Stream Protection Rule | |
| 80 FR 54654 - Environmental Impact Statement: Cowlitz County, Washington | |
| 80 FR 54653 - MAP-21 Comprehensive Truck Size and Weight Limits Study Deadline for Submitting Comments for Consideration in the Report to Congress | |
| 80 FR 54655 - Notice To Rescind a Notice of Intent for an Environmental Impact Statement for the State Route 95 Realignment Study: Interstate 40 to State Route 68, Mohave County, Arizona | |
| 80 FR 54649 - Ohio Disaster #OH-00044 Declaration of Economic Injury | |
| 80 FR 54524 - Certain Frozen Warmwater Shrimp From India: Final Results of Antidumping Duty Administrative Review; 2013-2014 | |
| 80 FR 54650 - National Small Business Development Center Advisory Board | |
| 80 FR 54468 - Wisconsin; Disapproval of Infrastructure SIP With Respect to Oxides of Nitrogen as a Precursor to Ozone Provisions for the 2006 PM2.5 | |
| 80 FR 54517 - Notice of Public Availability of the Broadcasting Board of Governors FY-2013 Service Contract Analysis and FY-2014 Service Contract Inventory | |
| 80 FR 54520 - Foreign-Trade Zone (FTZ) 265-Conroe, Texas; Notification of Proposed Production Activity; Bauer Manufacturing Inc. (Stationary Oil/Gas Drilling Rigs), Conroe, Texas | |
| 80 FR 54520 - Foreign-Trade Zone 77-Memphis, Tennessee Application for Expansion of Subzone 77E; Cummins, Inc., Memphis, Tennessee | |
| 80 FR 54600 - Notice of Public Meeting | |
| 80 FR 54565 - Medicare Program; Approval of Request for an Exception to the Prohibition on Expansion of Facility Capacity Under the Hospital Ownership and Rural Provider Exceptions to the Physician Self-Referral Prohibition | |
| 80 FR 54521 - Certain Hot-Rolled Carbon Steel Flat Products From India: Notice of Preliminary Results of 2013-2014 Antidumping Duty Administrative Review | |
| 80 FR 54519 - Foreign-Trade Zone (FTZ) 133-Quad-Cities, Iowa/Illinois; Notification of Proposed Production Activity; CNH Industrial America, LLC; Subzone 133E, (Agricultural and Construction Equipment, Subassemblies and Kits), Burlington and West Burlington, Iowa | |
| 80 FR 54523 - Certain Welded Carbon Steel Standard Pipes and Tubes From India: Rescission of Antidumping Duty Administrative Review; 2014-2015 | |
| 80 FR 54523 - Silicomanganese From Kazakhstan: Rescission of Antidumping Duty Administrative Review; 2014-2015 | |
| 80 FR 54580 - 30-Day Notice of Proposed Information Collection: Personal Financial and Credit Statement | |
| 80 FR 54650 - In the Matter of the Designation of Abu 'Ubaydah Yusuf al 'Anabi, aka Yusuf Abu-‘Ubaydah al-Anabi, aka Abou Obeida Youssef al-Annabi, aka Abu-Ubaydah Yusuf al-Inabi, aka Mebrak Yazid, aka Youcef Abu Obeida, aka Mibrak Yazid, aka Yousif Abu Obayda Yazid, aka Yazid Mebrak, aka Yazid Mabrak, aka Yusuf Abu Ubaydah, aka Abou Youcef, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 54586 - Submission of Information Collections Under the Paperwork Reduction Act | |
| 80 FR 54555 - Submission for OMB Review; Comment Request | |
| 80 FR 54646 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Section 3 of NYSE Arca Equities Rule 8 To Extend the Effectiveness of the ETP Incentive Program for Additional One-Year Pilot Period, Ending September 4, 2016 | |
| 80 FR 54443 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Walk-In Cooler and Freezer Refrigeration Systems Working Group To Negotiate Energy Conservation Standards | |
| 80 FR 54444 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Central Air Conditioners and Heat Pumps Working Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy Conservation Standards | |
| 80 FR 54574 - Homeland Security Science and Technology Advisory Committee Meeting | |
| 80 FR 54533 - Schedules for Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops | |
| 80 FR 54566 - International Conference on Harmonisation; Guidance on Q3D Elemental Impurities; Availability | |
| 80 FR 54531 - Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits | |
| 80 FR 54556 - Proposed Collection; Comment Request | |
| 80 FR 54531 - Proposed Information Collection; Comment Request; Cost-Earnings Surveys of American Samoa Longline Fishery | |
| 80 FR 54564 - Notice to All Interested Parties of the Termination of the Receivership of 10321, Community National Bank, Lino Lakes, MN | |
| 80 FR 54569 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; New Animal Drugs for Investigational Use | |
| 80 FR 54417 - Toys; Determination Regarding Heavy Elements Limits for Unfinished and Untreated Wood | |
| 80 FR 54417 - Advisory Circular 91-57 Model Aircraft Operating Standards (June 9, 1981) | |
| 80 FR 54444 - Proposed Amendment and Establishment of Restricted Areas; Chincoteague Inlet, VA | |
| 80 FR 54564 - Notice to All Interested Parties of the Termination of the Receivership of 10264, Community Security Bank, New Prague, MN | |
| 80 FR 54652 - Noise Exposure Map Notice, Memphis International Airport, Memphis, TN | |
| 80 FR 54517 - Notice of Public Meeting of the Mississippi Advisory Committee; Correction | |
| 80 FR 54600 - New Postal Product | |
| 80 FR 54599 - New Postal Product | |
| 80 FR 54583 - Request for Nominees for the Advisory Council on Wildlife Trafficking; Extension of Nominations Period | |
| 80 FR 54558 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Impact Evaluation of Data Driven Instruction Professional Development for Teachers | |
| 80 FR 54517 - Submission for OMB Review; Comment Request | |
| 80 FR 54655 - Commercial Driver's License Standards: Application for Exemption; Daimler Trucks North America (Daimler) | |
| 80 FR 54598 - Hispanic Council on Federal Employment | |
| 80 FR 54558 - Secretary of Energy Advisory Board Meeting | |
| 80 FR 54561 - Combined Notice Of Filings #2 | |
| 80 FR 54560 - Combined Notice of Filings #1 | |
| 80 FR 54560 - Combined Notice of Filings | |
| 80 FR 54562 - Combined Notice of Filings | |
| 80 FR 54598 - Information Collection Request; Submission for OMB Review | |
| 80 FR 54572 - National Institute on Aging; Notice of Closed Meetings | |
| 80 FR 54570 - National Institute on Aging; Notice of Closed Meeting | |
| 80 FR 54573 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed Meeting | |
| 80 FR 54544 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Pier Maintenance Project | |
| 80 FR 54559 - Hydrogen and Fuel Cell Technical Advisory Committee Meeting | |
| 80 FR 54583 - Notice of Realty Action: Modified Competitive Sealed Bid Sale of Public Land (NMNM 90300), Eddy County, New Mexico | |
| 80 FR 54512 - Senior Executive Service: Membership of Performance Review Board | |
| 80 FR 54569 - Animal Food; Export Certificates; Food and Drug Administration Food Safety Modernization Act of 2011; Certification Fees | |
| 80 FR 54596 - Information Collection: “Specific Domestic Licenses To Manufacture or Transfer Certain Items Containing Byproduct Material” | |
| 80 FR 54511 - Notice of Special Session, “Building Human Capital: Nutrition Is Fundamental” | |
| 80 FR 54511 - Senior Executive Services Performance Review Board: Update | |
| 80 FR 54656 - Notice of Application for Approval of Discontinuance or Modification of a Railroad Signal System | |
| 80 FR 54657 - Petition for Waiver of Compliance | |
| 80 FR 54518 - Proposed Information Collection; Comment Request; Generic Clearance for the 2020 Census Field Tests | |
| 80 FR 54530 - Proposed Information Collection; Comment Request; Hollings Manufacturing Extension Partnership (HMEP) Program Application Requirements | |
| 80 FR 54589 - Notice of Availability for the Final Environmental Impact Statement for the Central Valley Project Municipal and Industrial Water Shortage Policy, Central Valley, California | |
| 80 FR 54567 - Osteoporosis Drug Development; Public Workshop; Request for Comments | |
| 80 FR 54440 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Catcher/Processors Using Trawl Gear in the Western Regulatory Area of the Gulf of Alaska | |
| 80 FR 54512 - Agency Information Collection Activities: Proposed Collection; Comments Request-Evaluation of the Food Insecurity Nutrition Incentive (FINI) Grant Program | |
| 80 FR 54507 - Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications | |
| 80 FR 54418 - Marine Vapor Control Systems | |
| 80 FR 54442 - Descriptive Designation for Needle- or Blade-Tenderized (Mechanically Tenderized) Beef Products; Correction | |
| 80 FR 54564 - Notice to All Interested Parties of the Termination of the Receivership of 10203, State Bank of Aurora, Aurora, Minnesota | |
| 80 FR 54535 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Mukilteo Multimodal Project Tank Farm Pier Removal Project | |
| 80 FR 54554 - Takes of Marine Mammals Incidental to Specified Activities; Confined Blasting Activities by the U.S. Army Corps of Engineers During the Port of Miami Construction Project in Miami, Florida | |
| 80 FR 54556 - Notice of Intent To Prepare an Environmental Impact Statement to Transition Six FA-18C Strike Fighter Squadrons to FA-18E Strike Fighter Squadrons at Naval Air Station Oceana, Virginia and To Announce Public Scoping Meetings | |
| 80 FR 54568 - Distributor Labeling for New Animal Drugs; Draft Guidance for Industry; Availability | |
| 80 FR 54571 - Prospective Grant of a Start-up Exclusive Option License: Therapeutic Uses for Cardio-Metabolic Indications, Including Hypertriglyceridemia, Hypercholesterolemia and Diabetes | |
| 80 FR 54657 - Railroad Revenue Adequacy-2014 Determination | |
| 80 FR 54570 - National Institute of Dental and Craniofacial Research; Notice of Closed Meetings | |
| 80 FR 54573 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
| 80 FR 54571 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 54572 - National Institute of Mental Health; Notice of Closed Meeting | |
| 80 FR 54594 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection Federal Coal Lease Request | |
| 80 FR 54573 - Missouri; Amendment No. 1 to Notice of a Major Disaster Declaration | |
| 80 FR 54410 - Clarification of Eligibility of Fleeing Felons | |
| 80 FR 54579 - Retrospective Review-Improving the Previous Participation Reviews of Prospective Multifamily Housing and Healthcare Program Participants Informational Conference Call | |
| 80 FR 54651 - 2015 Special 301 Out-of-Cycle Review of Notorious Markets: Request for Public Comments | |
| 80 FR 54582 - 30-Day Notice of Proposed Information Collection: Neighborhood Stabilization Program 2 (NSP2) Reporting | |
| 80 FR 54581 - 60-Day Notice of Proposed Information Collection; Legal Instructions Concerning Applications for Full Insurance Benefits-Assignment of Multifamily Mortgages to the Secretary | |
| 80 FR 54577 - 60-Day Notice of Proposed Information Collection: Core Performance Reporting Requirements for Competitively-Funded Grants | |
| 80 FR 54446 - Food Labeling: Revision of the Nutrition and Supplement Facts Labels; Administrative Docket Update; Availability | |
| 80 FR 54593 - Meeting of the Judicial Conference Committee on Rules of Practice and Procedure | |
| 80 FR 54631 - Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of Filing of Proposed Rule Change To Amend Rules 1.5(r) and 11.1 and Adopt New Rule 11.1(a)(1) | |
| 80 FR 54634 - Submission for OMB Review; Comment Request | |
| 80 FR 54630 - Submission for OMB Review; Comment Request | |
| 80 FR 54630 - Proposed Collection; Comment Request | |
| 80 FR 54617 - Proposed Collection; Comment Request | |
| 80 FR 54634 - Proposed Collection; Comment Request | |
| 80 FR 54627 - Self-Regulatory Organizations; ICE Clear Credit LLC; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Provide for the Clearance of Additional Western European Sovereign Single Names | |
| 80 FR 54635 - Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Amend Rules 1.5(s), 11.1(a)(1), 11.6 and 11.8 | |
| 80 FR 54617 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Amend Rules 1.5(s), 11.1(a)(1), 11.6 and 11.8 | |
| 80 FR 54614 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing of Proposed Rule Change To Amend Rules 1.5(r), 11.1(a), 11.23, 14.6, 14.11, and 14.12 and Adopt Rule 11.1(a)(1) | |
| 80 FR 54640 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding NASDAQ Last Sale Plus | |
| 80 FR 54625 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule on the BOX Market LLC Options Facility | |
| 80 FR 54601 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto To Establish a New Auction, BX PRISM | |
| 80 FR 54621 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule on the BOX Market LLC Options Facility | |
| 80 FR 54628 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of a Proposed Rule Change To Amend The Options Clearing Corporation's Schedule of Fees To Allow a Clearing Fee Waiver for Exchange New Products | |
| 80 FR 54638 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.21(d), Relating to the Routing of Retail Orders | |
| 80 FR 54562 - Combined Notice of Filings #2 | |
| 80 FR 54559 - Combined Notice of Filings #1 | |
| 80 FR 54594 - Petitions for Modification of Application of Existing Mandatory Safety Standards | |
| 80 FR 54592 - Certain Marine Sonar Imaging Devices, Including Downscan and Sidescan Devices, Products Containing the Same, and Components Thereof; Notice of Commission Determination To Review the Final Initial Determination in Part; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, Public Interest, and Bonding | |
| 80 FR 54580 - 60 Day Notice of Proposed Information Collection; Accountability in the Provision of HUD Assistance “Applicant/Recipient Disclosure/Update Report-HUD 2880” | |
| 80 FR 54529 - Request for Comments On World Health Organization Pandemic Influenza Preparedness Framework | |
| 80 FR 54555 - Performance Review Board (PRB) | |
| 80 FR 54600 - Product Change-Priority Mail Express Negotiated Service Agreement | |
| 80 FR 54553 - Proposed Information Collection; Comment Request; Southeast Region Permit Family of Forms | |
| 80 FR 54600 - Product Change-Priority Mail Negotiated Service Agreement | |
| 80 FR 54532 - Proposed Information Collection; Comment Request; Reporting Requirements for Commercial Fisheries Authorization Under Section 118 of the Marine Mammal Protection Act | |
| 80 FR 54554 - Submission for OMB Review; Comment Request | |
| 80 FR 54534 - Proposed Information Collection; Comment Request; Access-Point Angler Intercept Survey (APAIS) | |
| 80 FR 54570 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed Meeting | |
| 80 FR 54574 - Agency Information Collection Activities: Petition for CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW; Extension, Without Change, of a Currently Approved Collection | |
| 80 FR 54575 - Agency Information Collection Activities: Monthly Report on Naturalization Papers, Form N-4; Extension, Without Change, of a Currently Approved Collection | |
| 80 FR 54576 - Agency Information Collection Activities: Application for Action on an Approved Application or Petition, Form I-824; Revision of a Currently Approved Collection | |
| 80 FR 54591 - Overview of Cuban Imports of Goods and Services and Effects of U.S. Restrictions | |
| 80 FR 54573 - Kentucky; Amendment No. 1 to Notice of a Major Disaster Declaration | |
| 80 FR 54596 - Freedom of Information Act (FOIA) Advisory Committee; Meeting | |
| 80 FR 54418 - Hazardous Materials: Special Permit and Approvals Standard Operating Procedures and Evaluation Process | |
| 80 FR 54447 - Guidance Under Section 2801 Regarding the Imposition of Tax on Certain Gifts and Bequests From Covered Expatriates | |
| 80 FR 54407 - Universal Identifier and System of Award Management; Corrections | |
| 80 FR 54471 - Approval and Promulgation of Air Quality Implementation Plans; Connecticut; Infrastructure State Implementation Plan Requirements | |
| 80 FR 54659 - Scrapie in Sheep and Goats |
Animal and Plant Health Inspection Service
Food and Nutrition Service
Food Safety and Inspection Service
Census Bureau
Foreign-Trade Zones Board
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Army Department
Navy Department
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Land Management Bureau
National Indian Gaming Commission
Reclamation Bureau
Surface Mining Reclamation and Enforcement Office
Foreign Claims Settlement Commission
Mine Safety and Health Administration
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Pipeline and Hazardous Materials Safety Administration
Surface Transportation Board
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.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Executive Office of the President, Office of Management and Budget.
Correcting amendments.
The Office of Management and Budget (OMB) is correcting the final guidance that appeared in the
With respect to the technical corrections to the final guidance, these corrections are included only where it has come to the attention of the Council on Financial Assistance Reform (COFAR) that particular language in the final guidance did not match with the COFAR's intent and would result in an erroneous implementation of the guidance. These technical corrections will go into effect at the time of issuance.
Guidance on effective/applicability date is revised to allow a grace period of two fiscal years for non-Federal entities to implement changes to their procurement policies and procedures in accordance with guidance on procurement standards.
Other requirements in the section remain as originally published. Technical corrections are made to eliminate conflicting or unclear language and grammatical inconsistencies or citation errors throughout.
Rhea Hubbard or Gil Tran, Office of Federal Financial Management,
This is a summary of OMB's Erratum, 2 CFR 200 released on December 26, 2013. This is the second set of corrections. The first set of corrections was published in the
Since the issuance of the Uniform Guidance on December 26, 2013, the COFAR has developed and provided numerous additional resources to assist stakeholders in learning about the guidance. For a complete list and access to these resources, please visit the COFAR Web site at
Administrative practice and procedures, Grants administration, Grant programs, Loan programs.
Accounting, Auditing, Colleges and universities, State and local governments, Grant programs, Grants administration, Hospitals, Indians, Nonprofit organizations, Reporting and recordkeeping requirements.
Under the authority of the Chief Financial Officer Act of 1990 (31 U.S.C. 503), the Office of Management and Budget amends 2 CFR parts 25 and 200 by making the following correcting amendments:
Pub. L. 109-282; 31 U.S.C. 6102.
31 U.S.C. 503.
(a)
(b) For § 200.202 Requirement to provide public notice of Federal financial assistance programs and Subpart F—Audit Requirements of this part,
(b) * * *
(1) * * *
(d) * * *
(1) The block grant awards authorized by the Omnibus Budget Reconciliation Act of 1981 (including Community Services), except to the extent that Subpart E—Cost Principles of this Part apply to subrecipients of Community Services Block Grant funds pursuant to 42 U.S.C. 9916(a)(1)(B);
(a) The standards set forth in this part which affect administration of Federal awards issued by Federal awarding agencies become effective once implemented by Federal awarding agencies or when any future amendment to this part becomes final. Federal awarding agencies must implement the policies and procedures applicable to Federal awards by promulgating a regulation to be effective by December 26, 2014 unless different provisions are required by statute or approved by OMB. For the procurement standards in §§ 200.317-200.326, non-Federal entities may continue to comply with the procurement standards in previous OMB guidance (superseded by this part as described in § 200.104) for two additional fiscal years after this part goes into effect. If a non-Federal entity chooses to use the previous procurement standards for an additional two fiscal years before adopting the procurement standards in this part, the non-Federal entity must document this decision in their internal procurement policies.
(b) * * *
(9) Interest earned amounts up to $500 per year may be retained by the non-Federal entity for administrative expense. Any additional interest earned on Federal advance payments deposited in interest-bearing accounts must be remitted annually to the Department of Health and Human Services Payment Management System (PMS) through an electronic medium using either Automated Clearing House (ACH) network or a Fedwire Funds Service
(c)(1) For non-construction Federal awards, recipients must request prior approvals from Federal awarding agencies for one or more of the following program or budget-related reasons:
(i) Change in the scope or the objective of the project or program (even if there is no associated budget revision requiring prior written approval).
(ii) Change in a key person specified in the application or the Federal award.
(iii) The disengagement from the project for more than three months, or a 25 percent reduction in time devoted to the project, by the approved project director or principal investigator.
(iv) The inclusion, unless waived by the Federal awarding agency, of costs that require prior approval in accordance with Subpart E—Cost Principles of this part or 45 CFR part 75 Appendix IX, “Principles for Determining Costs Applicable to Research and Development under Awards and Contracts with Hospitals,” or 48 CFR part 31, “Contract Cost Principles and Procedures,” as applicable.
(v) The transfer of funds budgeted for participant support costs as defined in § 200.75 Participant support costs to other categories of expense.
(vi) Unless described in the application and funded in the approved Federal awards, the subawarding, transferring or contracting out of any work under a Federal award, including fixed amount subawards as described in § 200.332 Fixed amount subawards. This provision does not apply to the acquisition of supplies, material, equipment or general support services.
(vii) Changes in the approved cost-sharing or matching provided by the non-Federal entity.
(viii) The need arises for additional Federal funds to complete the project.
(2) No other prior approval requirements for specific items may be imposed unless an exception has been approved by OMB. See also §§ 200.102 Exceptions and 200.407 Prior written approval (prior approval).
(b) * * * Characteristics indicative of a procurement relationship between the non-Federal entity and a contractor are when the contractor:
(a) * * *
(1) * * *
(iv) Federal Award Date (see § 200.39 Federal award date) of award to the recipient by the Federal agency;
(vi) Amount of Federal Funds Obligated by this action by the pass-through entity to the subrecipient;
(vii) Total Amount of Federal Funds Obligated to the subrecipient by the pass-through entity including the current obligation;
(viii) Total Amount of the Federal Award committed to the subrecipient by the pass-through entity;
(x) Name of Federal awarding agency, pass-through entity, and contact information for awarding official of the Pass-through entity;
(2) All requirements imposed by the pass-through entity on the subrecipient so that the Federal award is used in accordance with Federal statutes, regulations and the terms and conditions of the Federal award;
(4) An approved federally recognized indirect cost rate negotiated between the subrecipient and the Federal Government or, if no such rate exists, either a rate negotiated between the pass-through entity and the subrecipient (in compliance with this part), or a de minimis indirect cost rate as defined in § 200.414 Indirect (F&A) costs, paragraph (f);
(j)(1)
(2) Fringe benefits in the form of tuition or remission of tuition for individual employees not employed by IHEs are limited to the tax-free amount allowed per section 127 of the Internal Revenue Code as amended.
(3) IHEs may offer employees tuition waivers or tuition reductions, provided that the benefit does not discriminate in favor of highly compensated employees. Employees can exercise these benefits at other institutions according to institutional policy. See § 200.466 Scholarships and student aid costs, for treatment of tuition remission provided to students.
The revision reads as follows:
C. * * *
7. Except as provided in paragraph (c)(1) of § 200.414 Indirect (F&A) costs, Federal agencies must use the negotiated rates in effect at the time of the initial award
The revision reads as follows:
2. “Major nonprofit organizations” are defined in paragraph (a) of § 200.414 Indirect (F&A) costs. See indirect cost rate reporting requirements in sections B.2.e and B.3.g of this Appendix.
For each allocated central service*, the plan must also include the following: a brief description of the service, an identification of the unit rendering the service and the operating agencies receiving the service, the items of expense included in the cost of the service, the method used to distribute the cost of the service to benefitted agencies, and a summary schedule showing the allocation of each service to the specific benefitted agencies. If any self-insurance funds or fringe benefits costs are treated as allocated (rather than billed) central services, documentation discussed in subsections 3.b. and c. must also be included.
Food and Nutrition Service (FNS), USDA.
Final rule.
This rule implements Section 4112 of the Food, Conservation, and Energy Act of 2008. Section 4112 amended Section 6(k) of the Food and Nutrition Act of 2008 to require the Secretary of Agriculture to define the terms “fleeing” and “actively seeking” to ensure that State agencies use consistent procedures regarding the disqualification of a fleeing felon from eligibility for SNAP benefits when the individual is fleeing to avoid prosecution, custody or confinement after conviction for committing a crime or attempting to commit a crime that is a felony under the law of the place from which the individual is fleeing (or a high misdemeanor in New Jersey) or is violating a condition of probation or parole under Federal or State law.
This rule is effective November 9, 2015.
Sasha Gersten-Paal, Certification Policy Branch, Program Development Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302, (703) 305-2507.
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193 (PRWORA) amended Section 6 of the Food Stamp Act of 1977 (now entitled The Food and Nutrition Act of 2008) (the Act) to disqualify fleeing felons from the Supplemental Nutrition Assistance Program (SNAP). To be disqualified under the fleeing felon provisions of PRWORA, an individual must be either: Fleeing to avoid prosecution, custody or confinement after conviction for committing a crime or attempting to commit a crime that is a felony under the law of the place from which the individual is fleeing (or a high misdemeanor in New Jersey); or violating a condition of probation or parole imposed under Federal or State law. The intent of the law was to prohibit individuals who were intentionally fleeing to avoid prosecution or imprisonment from receiving SNAP benefits and to aid law enforcement officials actively seeking to apprehend those fleeing to avoid prosecution or custody by providing them with needed information as allowable under the Act. The disqualification provisions were codified in the SNAP regulations on January 17, 2001, at 66 FR 4438. For simplicity, throughout the balance of this preamble we will use the term felony to encompass felonies, and, in the State of New Jersey, felonies and high misdemeanors.
Section 4112 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246) amended Section 6(k) of the Act to require the Secretary of Agriculture to define the terms “fleeing” and “actively seeking” to ensure State agencies use consistent procedures to disqualify individuals fleeing to avoid prosecution, custody or confinement after conviction for committing a crime or attempting to commit a crime that is a felony under the law of the place from which the individual is fleeing or is violating a condition of probation or parole under Federal or State law. On August 19, 2011, the U.S. Department of Agriculture's (USDA) Food and Nutrition Service (FNS) published a proposed rule at 76 FR 51907, providing proposed definitions for “fleeing” and “actively seeking”, and procedures for disqualifying individuals determined to be fleeing or violating a condition of probation or parole. Readers are directed to the proposed rule for a more thorough description of the policies in effect prior to the publication of the proposed rule and for the reasons the Department was directed to define these terms. The Department received thirty-seven comments on the proposed rule. Comments were received from State agencies, legal service organizations, advocacy groups, state investigative agencies, and private citizens.
The regulations governing the fleeing felon and parole and probation violators are found at 7 CFR 272.1(c)(1)(vii) Disclosure, 7 CFR 273.1(b)(7)(ix) Special household requirements, 7 CFR 273.2(b)(4)(ii) Privacy Act Statement, and 7 CFR 273.11(n) Fleeing Felons and probation or parole violators. The Department proposed revising § 273.11(n) in its entirety. The Department also proposed a conforming amendment for 7 CFR 272.1(c)(1)(vii) Disclosure.
Section 202 of PRWORA established similar provisions for Supplemental Security Income (SSI). The Social Security Administration (SSA) developed more rigorous standards than FNS in implementing the legislative
In developing the proposed rule, the Department did not adopt the
In § 273.11(n), the Department proposed that, before a State agency determines an individual to be a “fleeing” felon, the following four criteria must be met: (1) There has to be a felony warrant for an individual; (2) the individual has to be aware of, or should reasonably have been able to expect that, a warrant has or would have been issued; (3) the individual has to have taken some action to avoid being arrested or jailed; and (4) a law enforcement agency must be actively seeking the individual. The Department proposed that all four items have to be present and verified by the State agency to determine that an individual is a fleeing felon (
The proposed rule allowed one exception to the four-part test. This exception provided that FNS would consider an individual to be a fleeing felon if a law enforcement officer presents an outstanding felony arrest warrant for any of three categories of NCIC Uniform Offense Classification Codes: Escape (4901), Flight to Avoid (prosecution, confinement, etc.) (4902), and Flight-Escape (4999) to a State agency to obtain information on the location of and other information about the individual named in the warrant, in accordance with the provisions of Section 11(e)(8)(E) of the Act. Although the Department indicated in the proposed rule the intention not to adopt
Thirteen commenters supported the four-part test, although, as noted above, most of those supporting it would prefer the Department adopt the
Ten commenters opposed the four-part test, although the reasons for opposition were not consistent. Two commenters opposed the requirement that State agencies have the responsibility to verify fleeing felon status instead of the household. Eight commenters supported the proposed requirement. The Department is adopting the requirement that the State agency has responsibility for obtaining verification of fleeing felon status. Since publication of the proposed rule, we have determined that the requirement that the State agency, not the household, has responsibility for verification of fleeing felon and probation or parole violation status should also be addressed in 7 CFR 273.2(f) (Verification). Consequently, the Department has added a provision to 7 CFR 273.2(f)(5)(i) that places responsibility for verification of fleeing felon on the State agency.
One commenter pointed out that the regulations needed to clarify that the underlying cause for the warrant was for a felony offense. The Department agrees and has revised § 273.11(n) to clarify that the underlying crime for which the warrant was issued was for committing a crime or attempting to commit a crime that is a felony under the law of the place from which the individual is fleeing.
Five commenters were concerned about the requirement that the State agency verify that the individual was aware or should have been aware of a warrant and/or that the individual had taken some action to avoid being arrested or jailed (parts 2 and 3 of the 4-part test of fleeing felon). The Department is aware that these are difficult determinations. However, it is impossible for the Department to supply an exhaustive list of actions that would constitute knowledge in either circumstance. Evidence provided by a law enforcement officer that the individual left the jurisdiction following a court appearance would be indicative of the individual taking action to avoid being arrested or jailed, for instance, but moving from one home to another would not be evidence of either part of the test. The State agency will have to evaluate each case separately, using a reasonable standard established by the State to ensure consistency for all cases, and document the case file accordingly.
Five commenters opposed the four-part test because they believed that the current tests are sufficient or that the proposal was too complex, and that a warrant in and of itself should be sufficient to identify a person as a fleeing felon. Two of these five commenters were investigative agencies and one was an organization representing investigative agencies. One commenter was a State agency who reported that its fraud investigators felt the Department had no authority to dictate a time frame for a law enforcement agency to act on a warrant. The fifth was a private citizen. The investigative agencies, in particular, wanted the policies to remain the same.
To more closely mirror the language in the Act, and to improve consistency of terms, the Department is revising certain terms referred to in the regulatory text of the final rule. In particular, the Department specifies that warrants are felony warrants that law enforcement agencies must be Federal, State or local law enforcement agencies, and that law enforcement officials must be acting in their official capacity, in the text of the final regulations. For consistency, the Department also adds to the text of the final regulation that not only if a law enforcement agency does not indicate that it intends to enforce a felony warrant, but also if a law enforcement agency does not intend to arrest an individual for probation or parole violations, within 30 days, the State agency shall not determine the person is a fleeing felon or probation or parole violator. In addition, the Department makes other minor changes in the final rule text to improve readability and legal clarity.
One commenter raised concerns about the difficulty of serving warrants on Indian reservations. While the Department recognizes that an Indian reservation may not cooperate with a local law enforcement agency concerning enforcement of a warrant, the Department does not believe that it is appropriate to disqualify an individual indefinitely from food assistance because of jurisdictional issues that cannot be resolved. It should be noted, however, that as long as the law enforcement agency continues to attempt to enforce the warrant, the law enforcement agency would be considered to be actively seeking the individual. The State agency would need verification from the law enforcement agency that it is continuing its attempts to enforce the warrant and would need to document the case file accordingly.
The Department finds the commenters' arguments supporting the use of the
The objective standard used by
On further review, based on the comments received, the Department has decided to require State agencies to adopt the definitions of fleeing felon and actively seeking as proposed by using either the four-part test or the
Each State agency will have to submit an amendment to its State Plan identifying the option it selects. We have added a requirement to 7 CFR 272.2(d)(1) to mandate that each State agency identify the option chosen in its State plan and have modified § 273.11(n) to reflect the two alternative tests to establish whether a person is a fleeing felon.
Three commenters raised concerns about inconsistency with SSA and State Combined Application Projects (CAP). The Department does not believe that inconsistency between the two agencies will present a problem. An individual disqualified by SSA as a fleeing felon would not be eligible for the State's CAP. If the question of whether an individual may be a fleeing felon arises in the SNAP office, it will be the State agency's responsibility to determine if the individual meets its definition of fleeing felon status. Each State agency using the four-part test would also remain responsible for determining “actively seeking” in the event that an individual is identified as a fleeing felon or probation or parole violator, regardless of whether the individual is participating through a CAP. Also, if a law enforcement officer approaches the State agency with a felony warrant, the State agency would still have to make a determination of fleeing felon status for a CAP SNAP participant. So, the State agency would not be relying on the SSA determination of fleeing felon status.
Section 6(k) of the Act prohibits any individual from participating in SNAP during any period in which the individual is violating a condition of probation or parole imposed under a Federal or State law. Neither the term “fleeing” nor “felony” is referenced in the prohibition from participating based on probation or parole violation. Additionally, the Act and the legislative history of the Act provide no guidance about what constitutes a probation or parole violation. Likewise, the Act does not limit such violations to felony charges only. Therefore, the Department proposed that the disqualification apply to all identified probation or parole violations. The Department received no
In the proposed rule, we proposed that in order for an individual to be a probation or parole violator, (1) the individual must have violated a condition of his or her probation or parole, and (2) law enforcement must be actively seeking the individual to enforce the conditions of the probation or parole.
The Department received eighteen comments on the proposed standards and procedures for determining whether an individual should be considered a probation or parole violator. Fourteen of those commenters requested that the regulation specify that an impartial party must make a determination that there has been a probation or parole violation. The Department agrees with these commenters that only an impartial party should determine whether an individual violated probation or parole imposed under Federal or State law. The State agency has the discretion to determine what constitutes an impartial party. The provision at § 273.11(n)(2) has been modified accordingly. Two commenters wanted the Department to make no changes to the current standards and procedures. One was an investigative agency, the other a private citizen. Congress directed the Department to address the lack of clarity in the current procedures; therefore, the Department cannot accommodate these two commenters.
As discussed in the preamble to the proposed rule, Section 6(k)(2) of the Act requires the Department to ensure that “actively seeking” is defined, and that consistent procedures are established that disqualify individuals whom law enforcement authorities are actively seeking for the purpose of holding criminal proceedings against the individual. In the proposed rule, we interpreted Section 6(k)(2) to also require the application of the term “actively seeking” to probation and parole violators. We proposed in § 273.11(n) that State agencies follow the same procedures for verifying through law enforcement whether an applicant or participant is a probation or parole violator as those used to determine if an individual is a fleeing felon. This would ensure that there are consistent procedures in place for establishing if a law enforcement office is actively seeking an individual, whether that individual is a fleeing felon or a probation or parole violator. One commenter, an investigator, wanted the current procedure that does not define actively seeking to remain in place. Because we are required by law to define “actively seeking,” we have adopted the definition of “actively seeking” for probation and parole violators as proposed. We have also determined that State agencies have the responsibility of verifying the parole or probation violator status of an individual.
As discussed in the proposed rule, the time necessary for determining fleeing felon or probation or parole violator status may extend beyond the time frames allowed under 7 CFR 273.2(g) and 7 CFR 273.2(i)(3) for State agencies to process applications. Therefore, the Department proposed in § 273.11(n)(5) that if a State agency needs to act on an application without determining fleeing felon or probation or parole violator status in order to comply with the time frames allowed under 7 CFR 273.2(g) and 7 CFR 273.2(i)(3), the State agency shall process the application without consideration of the individual's fleeing felon or probation or parole violator status.
Three commenters raised concerns about expedited service. As proposed in § 273.11(n)(5), the State agency would be required to meet the time frames for providing expedited service in 7 CFR 273.2(i)(3) if fleeing felon or probation or parole violator status could not be resolved within the expedited service time frames. The Department is adopting § 273.11(n)(5) as proposed.
One commenter raised a concern about determining when a person ceases to be a fleeing felon or a probation or parole violator (
It should be noted that the Privacy Act provisions and confidentiality provisions found at Section 11(e)(8) of the Act remain intact for individuals subject to the fleeing felon and parole or probation violator provisions of the Act. Therefore, the Department is reminding the reviewers of this rule that the provisions regarding the process of providing information to law enforcement officials only applies to legitimate law enforcement officers. Information about potential fleeing felons or parole or probation violators must not be released to individuals reporting possible violations by recipients or applicants, such as bounty hunters.
Under 7 CFR 273.12(a)(5), State agencies are permitted to place households under a simplified reporting system. Under such a system, the State agency may choose to act on all changes in household circumstances (7 CFR 273.12(a)(5)(vi)(A)), or to act on any change if it would increase the household's benefits and not act on any change that would decrease the household's benefits, unless the household has voluntarily requested that its case be closed, the State agency has information about the household's circumstances considered verified upon receipt, or there has been a change in the household's public assistance grant (7 CFR 273.12(a)(5)(vi)(B)). If an individual has been determined to be a fleeing felon or a probation or parole violator in accordance with 7 CFR 273.11(n), the Act prohibits this individual from participating in SNAP. In order to ensure that the individual is removed from the program in accordance with the requirements of the Act, the Department proposed to add a requirement to 7 CFR 273.12(a)(5)(vi)(B) that the State agency act to remove the individual even though it might result in a decrease in benefits. Two comments were received on this proposal. One commenter supported removing the individual; the other commenter opposed removing the individual as it complicates simplified reporting and requires additional computer programming. No commenter raised a
Subpart H of Part 273, beginning at § 273.26, which was promulgated in accordance with Section 4115 of the Farm Security and Rural Investment Act of 2002 (FSRIA), Pub. L. 107-17, permits households leaving the Temporary Assistance for Needy Families (TANF) program to receive transitional benefits for households. Section 4115 refers to ineligible households rather than ineligible household members. The regulations at 7 CFR 273.26 provide that State agencies may choose to limit transitional benefits to households in which all members had been receiving TANF, or may provide benefits to any household in which at least one member had been receiving TANF. Households in which all members are disqualified for being fleeing felons or probation or parole violators are clearly excluded from receiving transitional benefits. Once approved for transitional benefits, the benefit amount cannot be changed unless the State agency has opted to adjust the benefit in accordance with 7 CFR 273.27. Consequently, the Department proposed that, in order to conform to the intent of section 4115 of the FSRIA concerning ineligible households rather than ineligible household members, the State agency shall not take action to adjust a household's transitional benefit amount because an individual in that household has been determined to be a fleeing felon or a probation or parole violator, unless the provisions of 7 CFR 273.27 are applicable. The Department did, however, express interest in seeking comments about this decision to continue transitional benefits for the entire household when an individual household member has been determined to be a fleeing felon or probation or parole violator.
The Department received five comments about transitional benefits. Three commenters supported continuing transitional benefits for the entire household when a household member has been determined to be a fleeing felon or probation or parole violator. One commenter misunderstood and thought the Department was proposing to remove the individual, not keep the benefits unchanged. One commenter opposed the preamble explanation, and recommended that the fleeing felon be removed from the household and the benefits reduced. The Department is finalizing the prohibition that a State shall not adjust a household's transitional benefit amount because an individual in that household has been determined to be a fleeing felon or a probation or parole violator, unless the provisions of 7 CFR 273.27 are applicable. The Department continues to believe this decision conforms to the intent of section 4115 of the Farm Security and Rural Investment Act concerning ineligible households rather than ineligible household members.
Since publication of the proposed rule, two issues related to the provision disqualifying fleeing felons from participation, but not addressed in the proposed rule, have come to the Department's attention. When the final rule, Personal Responsibility Provisions of the Personal Responsibility Act of 1996 (66 FR 4438), January 17, 2001, was published, the preamble explained that the proposed paragraph 7 CFR 272.1(c)(1)(vii) essentially tracked the statutory language, including the requirement for the name of the household member being sought to be provided when requesting disclosure of household information. However, the actual language of paragraph 7 CFR 272.1(c)(1)(vii), in both the proposed rule and the final rule, omitted the requirement that the law enforcement officer provide the name of the individual being sought. Section 11(e)(8)(E) of the Act requires that the law enforcement officer furnish the State agency with the name of the household member being sought. This was a technical oversight that needs to be corrected. Therefore, the Department is adding this requirement at 7 CFR 272.1(c)(1)(vii) through this final rulemaking.
Following publication of the proposed rule, State agencies requested policy clarifications from FNS regional offices about how to determine the time period for establishing claims for individuals identified as fleeing felons or as probation or parole violators. Although we did not receive any formal comments about this issue, the Department would like to clarify that, for purposes of SNAP, an individual is not considered a fleeing felon or a probation or parole violator until a determination has been made in accordance with 7 CFR 273.11(n). Therefore, the date of the determination of fleeing felon or probation or parole violator status would be the date from which any claims calculation would be made.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated not significant and was not reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.
This rule has been designated as not significant by the Office of Management and Budget, therefore, no Regulatory Impact Analysis is required.
This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601-612). Pursuant to that review, it has been certified that this rule would not have a significant impact on a substantial number of small entities. Individuals identified as fleeing felons or probation or parole violators will be affected by having their participation in the program terminated. The requirement to terminate such individuals' participation already exists. This rule only clarifies what participants will be determined to be fleeing felons or probation or parole violators. It is anticipated that potentially fewer participants will be terminated than under the previous requirements. State and local welfare agencies will be the most affected to the extent that they administer the program.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under Section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may
This final rule does not contain any Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and Tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.
The Supplemental Nutrition Assistance Program is listed in the Catalog of Federal Domestic Assistance Programs under 10.551.
For the reasons set forth in the final rule in 7 CFR part 3015, subpart V, and related Notice (48 FR 29115, June 24, 1983), this program is excluded in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have Federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13132. FNS has considered this rule's impact on State and local agencies and has determined that it does not have Federalism implications under Executive Order 13132.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with this rule's provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect unless so specified in the Effective Dates section of the final rule. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.
FNS has reviewed this final rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities.
Section 821 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193 (PRWORA) amended Section 6 of the Act to prohibit fleeing felons and parole violators from participating in the program. This prohibition was codified in SNAP regulations by the final rule “Food Stamp Program; Personal Responsibility Provisions of the Personal Responsibility and Work opportunity Reconciliation Act of 1996” (66 FR 4438). SNAP regulations at 7 CFR 273.11(n) addresses the prohibition for participation by an individual identified as a fleeing felon or a probation or parole violator. The existing regulations do not define “fleeing” and do not provide procedures for the State agency to use in disqualifying an individual identified as a fleeing felon or a probation or parole violator. Section 6(k) of the Act requires the Secretary of Agriculture to define the terms “fleeing” and “actively seeking” to ensure SNAP State agencies use consistent procedures to disqualify individuals. After a careful review of the rule's intent and provisions, FNS has determined that there is no way to determine whether the rule would have any impact on minorities, women, and persons with disabilities. FNS does not collect information on persons disqualified under the fleeing felon and parole violation provisions. Such a new collection would be difficult information to capture and cause an unnecessary burden on State agencies. Therefore, we are unable to determine whether a disproportionate number of minorities, women, and persons with disabilities are disqualified. This rule provides greater direction on what constitutes a fleeing felon or parole violator, what constitutes actively seeking, and more uniform procedures among the States. The impact of the rule may be to lower the number of individuals disqualified, but without information on the number currently being disqualified or information on the number of warrants that will be applicable under the procedures, there is no way to determine if there actually will be a reduction. Nor, without such data being available is there a way to determine if the new provisions affect minorities, women, and persons with disabilities more than the general SNAP caseload.
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 1320) requires the Office of Management and Budget (OMB) to approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. Under this final rule State agencies will have to submit an amendment to its State Plan identifying which definition of “fleeing felon” it selects. Reporting burden for annual State Plan of Operations Updates, such as the requirement at 272.2(d)(1) to indicate the definition of fleeing felon, is included in a currently approved information collection (OMB Control Number 0584-0083, expiration date 4/30/2017). The impact of this rule on the existing burden is negligible and therefore no modification to the current requirements is necessary.
The Food and Nutrition Service is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We are unaware of any current Tribal laws that could be in conflict with the final rule. We did not receive any comments from Tribal organizations. One commenter raised concerns about the difficulties local law enforcement officers may have trying to enforce a warrant on tribal land. That is not a SNAP concern; it is a law enforcement concern. This regulation does not require any change in operations for the Tribal organizations.
Alaska, Civil rights, Supplemental Nutrition Assistance Program, Grant programs—social programs, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedures, Aliens, Claims, Supplemental Nutrition Assistance Program, Fraud, Grant programs—social programs, Penalties, Reporting and recordkeeping requirements, Social Security, Students.
For the reasons set forth in the preamble, 7 CFR parts 272 and 273 are amended as follows:
7 U.S.C. 2011-2036.
(c) * * *
(1) * * *
(vii) Local, State, or Federal law enforcement officers acting in their official capacity, upon written request by such law enforcement officers that includes the name of the household member being sought, for the purpose of obtaining the address, social security number, and, if available, photograph of the household member, if the member is fleeing to avoid prosecution or custody for a crime, or an attempt to commit a crime, that would be classified as a felony (or a high misdemeanor in New Jersey), or is violating a condition of probation or parole imposed under a Federal or State law. The State agency shall provide information regarding a household member, upon written request of a law enforcement officer acting in his or her official capacity that includes the name of the person being sought, if the other household member has information necessary for the apprehension or investigation of the other household member who is fleeing to avoid prosecution or custody for a felony, or has violated a condition of probation or parole imposed under Federal or State law. The State agency must accept any document that reasonably establishes the identity of the household member being sought by law enforcement authorities. If a law enforcement officer provides documentation indicating that a household member is fleeing to avoid prosecution or custody for a felony, or has violated a condition of probation or parole, the State agency shall follow the procedures in § 273.11(n) to determine whether the member's eligibility in SNAP should be terminated. A determination and request for information that does not comply with the terms and procedures in § 273.11(n) would not be sufficient to terminate the member's participation. The State agency shall disclose only such information as is necessary to comply with a specific written request of a law enforcement agency authorized by this paragraph.
(d) * * *
(1) * * *
(xvii) A plan indicating the definition of fleeing felon the State agency has adopted, as provided for in § 273.11(n).
(f) * * *
(5) * * *
(i) * * * However, the State agency has primary responsibility for verifying fleeing felon and parole or probation violator status in accordance with § 273.11(n).
(n) * * *
(1)
(i)
(A) There is an outstanding felony warrant for the individual by a Federal, State, or local law enforcement agency, and the underlying cause for the warrant is for committing or attempting to commit a crime that is a felony under the law of the place from which the individual is fleeing or a high misdemeanor under the law of New Jersey;
(B) The individual is aware of, or should reasonably have been able to expect that, the felony warrant has already or would have been issued;
(C) The individual has taken some action to avoid being arrested or jailed; and
(D) The Federal, State, or local law enforcement agency is actively seeking the individual as provided in paragraph (n)(3) of this section.
(ii)
(A) Escape (4901);
(B) Flight to Avoid (prosecution, confinement, etc.) (4902); or
(C) Flight-Escape (4999).
(2)
(3)
(i) A Federal, State, or local law enforcement agency informs a State agency that it intends to enforce an outstanding felony warrant or to arrest
(ii) A Federal, State, or local law enforcement agency presents a felony arrest warrant as provided in paragraph (n)(1)(ii) of this section; or
(iii) A Federal, State, or local law enforcement agency states that it intends to enforce an outstanding felony warrant or to arrest an individual for a probation or parole violation within 30 days of the date of a request from a State agency about a specific outstanding felony warrant or probation or parole violation.
(4)
(5)
(a) * * *
(5) * * *
(vi) * * *
(B) * * *
(
Federal Aviation Administration (FAA), DOT.
Revision of Advisory Circular 91-57.
On February 14, 2012, the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95), was issued which contains provisions in section 336 related to model aircraft operations. AC 91-57 contains provisions that are inconsistent with section 336 and therefore the Advisory Circular is being revised. The FAA refers model aircraft users to section 336 of Public Law 112-95 for information regarding model aircraft operations.
Randy Willis, Manager, Emerging Technologies Team, 493 L'Enfant Plaza SW., Suite 3200, Washington, DC 20051; telephone (202) 267-8152; email:
U.S. Consumer Product Safety Commission.
Withdrawal of direct final rule.
Due to the receipt of significant adverse comments, the Consumer Product Safety Commission (“Commission” or “CPSC”) is withdrawing the July 17, 2015 direct final rule determining that unfinished and untreated trunk wood does not contain heavy elements that would exceed the limits specified in the Commission's toy standard, ASTM F963-11. The CPSC will address these comments in a separate final action based on the July 17, 2015 notice of proposed rulemaking (80 FR 42378) published in the same issue of the
The direct final rule published on July 17, 2015 (80 FR 42376) is withdrawn, effective September 10, 2015.
Randy Butturini, Project Manager, Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 4330 East-West Hwy, Room 814, Bethesda, MD 20814; 301-504-7562: email;
On July 17, 2015, the CPSC published a direct final rule (80 FR 42376) determining that unfinished and untreated trunk wood does not contain heavy elements that would exceed the limits specified
In the July 17, 2015 direct final rule, the CPSC stated that if CPSC received significant adverse comments by August 17, 2015, the rule would be withdrawn and not take effect. The CPSC received significant adverse comments. Therefore, the CPSC is withdrawing the direct final rule. The CPSC will address these comments in a separate final action based on the July 17, 2015 notice of proposed rulemaking (80 FR 42378) published in the same issue of the
Coast Guard, DHS.
Final rule; information collection approval.
The Coast Guard announces that the Office of Management and Budget (OMB) has approved the amendment of an existing collection of information, as requested by the Coast Guard and described in the final rule published on July 16, 2013. The final rule revised safety regulations for facility and vessel vapor control systems (VCSs) to promote safe VCS operation in an expanded range of activities now subject to current Federal and State environmental requirements, reflect industry advances in VCS technology, and codify the standards for the design and operation of a VCS at tank barge cleaning facilities. The revised regulations increase operational safety by regulating the design, installation, and use of VCSs, but they do not require anyone to install or use VCSs. The OMB must approve any regulatory provisions that constitute a collection of information under the Paperwork Reduction Act, before an agency can enforce those provisions. Having received OMB's approval, the Coast Guard will now enforce collection of information requirements in the final rule. This rulemaking promotes the Coast Guard's maritime safety and stewardship missions.
The collection of information requirements contained in the July 16, 2013 final rule (78 FR 42596) and approved by the OMB as an amendment to existing collection of information, control number 1625-0060, will be enforced beginning September 10, 2015. The requirements include provisions for VCS certifications, recertifications, periodic operational reviews, approval requests, reviews of operating manuals, failure analyses, operational review letters, and relabeling. These requirements aid the Coast Guard and industry in ensuring industry's regulatory compliance and safe practices in connection with VCSs.
For information about this document, call or email Dr. Cynthia Znati, Office of Design and Engineering Standards, U.S. Coast Guard; telephone 202-372-1412, email
The Coast Guard's final rule, 78 FR 42596 (July 16, 2013), contained information collection provisions that cannot be enforced against any member of the public until OMB approves those provisions and assigns one or more OMB control numbers. The OMB has now approved those provisions and assigned OMB Control Number 1625-0060, and the Coast Guard will enforce them beginning September 10, 2015.
Documents mentioned in this document are in our online docket for USCG-1999-5150 at
This document is issued under authority of 5 U.S.C. 552(a).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Final rule.
PHMSA is adopting regulations to include the standard operating procedures (SOPs) and criteria used to evaluate applications for special permits and approvals. This rulemaking addresses issues identified in the Hazardous Materials Transportation Safety Improvement Act of 2012 related to the Office of Hazardous Materials Safety's Approvals and Permits Division. In addition, this rulemaking also provides clarity regarding what conditions need to be satisfied to promote special permit application completeness. An application that contains the required information reduces processing delays by reducing the number of applications rejected due to incompleteness. Through public notice and comment, this final rule is required to establish SOPs to support the administration of the special permit and approval programs, and objective criteria to support the evaluation of special permit and approval applications. These amendments do not change previously established policies, to include but not limited to any inspection activities subsequent to issuance, modification or renewal of a special permit and approval.
The final rule is effective on November 9, 2015.
Ryan Paquet or Donald Burger, Office of Hazardous Materials Safety, Approvals and Permits Division, (202) 366-4511, Pipeline and Hazardous Materials Safety Administration (PHMSA), 1200 New Jersey Avenue SE., Washington, DC 20590.
On July 6, 2012, the President signed the Moving Ahead for Progress in the 21st Century Act (MAP-21), which includes the Hazardous Materials Transportation Safety Improvement Act of 2012 (HMTSIA) as Title III of the statute. See Public Law 112-141, 126 Stat. 405, July 6, 2012. Under section 33012 of HMTSIA, Congress directed the U.S. Department of Transportation (Department or DOT) to issue a rulemaking to provide:
Standard operating procedures (SOPs) to support the administration of the special permit and approval programs; and
Objective criteria to support the evaluation of special permit and approval applications.
In this rulemaking, PHMSA is amending the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) to incorporate procedures to support the administration of its special permits and approvals programs in a new Appendix A to Part 107, Subpart B of the 49 CFR. Incorporation of SOPs and objective criteria to support the evaluation of special permits and approvals accomplishes the mandate under section 33012 of MAP-21. By incorporating these internal agency procedures into regulation, PHMSA believes the benefits of this final rule will increase the public's understanding of the special permit and approval application and renewal process, improve the quality of information and completeness of applications submitted, improve application processing times, improve the quality of information and completeness of applications submitted, improve application processing times, promote continued safe transportation of hazardous materials, and support U.S. trade competitiveness by permitting safe and innovative transportation methods for hazardous materials. Because this final rule will affect only agency procedures, PHMSA assumes no change in current industry costs or benefits and that this final rule does not impose additional costs on industry.
The HMR prescribe regulations for the transportation of hazardous materials in commerce. PHMSA issues one type of variance from the HMR in the form of a “special permit.” It also provides written consent to perform a function that requires prior consent under the HMR in the form of an “approval.” These variances are designed to accommodate innovation, provide consent, and allow alternatives that meet existing transportation safety standards and/or ensure hazardous materials transportation safety. Federal hazardous materials (hazmat) law directs the Department to determine if the actions specified in each application for a special permit establish a level of safety that meets or exceeds that already present in the HMR, or if not present in the HMR, establish a level of safety that is consistent with the public's interest. PHMSA, through the HMR, applies these same conditions to the issuance of an approval. Due to the unique features that may exist in each application, PHMSA issues special permits and approvals on a case-by-case basis.
The HMR currently define a special permit as “a document issued by the Associate Administrator, or other designated Department official, under the authority of 49 U.S.C. 5117 permitting a person to perform a function that is not otherwise permitted under subchapter A or C of this chapter,” “or other regulations issued under 49 U.S.C. 5101
PHMSA amended the HMR in 1996 (61 FR 21084) to include as part of the approval application review process a requirement to review each applicant's fitness to perform the tasks requested in their applications. PHMSA also issued and updated internal SOPs several times over the past decade to support the process and issuance of special permits and approvals that comply with the HMR. On February 29, 2012 (see Docket No. PHMSA-2011-0283), PHMSA held a public meeting to invite public comment on these considerations. In July 2012, PHMSA established a working group to examine ways to streamline the fitness review process while maintaining an acceptable level of safety, to expand the fitness review process to include special permit applicants, and to define and determine the adequacy of criteria that should be used to initiate fitness reviews. As a result of this working group's efforts, PHMSA published a Notice of Proposed Rulemaking (NPRM) on August 12, 2014 (79 FR 47047) to invite public comment on its proposal to add updated SOP and evaluation criteria to process special permit and approval applications. Specifically, the NPRM proposed to revise §§ 105.5, 107.1, 107.113, 107.117, 107.709; add a new Appendix A to 49 CFR part 107, entitled “Standard Operating Procedures for Special Permits and Approvals;” and revise § 171.8 to incorporate administrative procedures for processing special permits and approval applications. On September 12, 2014 (79 FR 54676), PHMSA published a correction to the August 2014 NPRM to propose that special permit and approval applications that undergo review by an Operating Administration (OA) will complete this review before they undergo an automated review. This proposed correction also clarified that an OA review, depending on its completeness, may negate the need for the automated review. We have summarized these proposed actions below.
In § 105.5, we proposed to revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR.
In § 107.1, we proposed to revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR. In addition, we proposed to add for clarity new definitions for “applicant fitness,” “fit or fitness,” “fitness coordinator,” and “insufficient corrective action.”
In § 107.113(a), we proposed that the Associate Administrator will review all special permit applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.
In § 107.117(e), we proposed that the Associate Administrator will review all emergency special permit applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.
In § 107.709(b), we proposed that the Associate Administrator will review all approval applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.
In 49 CFR part 107, we proposed to add new Appendix A to incorporate PHMSA's existing standard operating procedures for processing special permits and approval applications. These procedures can be defined in four phases consisting of: Completeness,
In § 171.8, we proposed to revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR.
As stated earlier, PHMSA published a correction notice on September 12, 2014. In this notice, PHMSA added language to the proposed “Automated review” and “Safety profile review” sections of the proposed SOPs to clarify that special permit and approval applications that undergo a safety profile review by an OA will complete this safety profile review before they undergo an automated review, and that an OA review, depending on its completeness, may negate the need for the automated review, respectively.
In response to the NPRM, PHMSA received comments from six entities. These comments and PHMSA's responses are provided in the “Comment Discussion” section of this final rule.
In response to the August 12, 2014 NPRM, and September 12, 2014 proposed rule correction notice, PHMSA received comments from the following organizations:
In this section, we summarize and discuss the comments received. You may access the NPRM, correction notice, comments, and other documents associated with this rulemaking by visiting the Federal eRulemaking Portal at
The American Trucking Associations (ATA) expressed concern that the criteria PHMSA is using to reject applications during its automated tier and fitness application review processes will adversely penalize large fleets that transport materials more often. The ATA stated the chances for errors to occur in transportation increase proportionally as a carrier's frequency in transportation increases. Further, the ATA stated that many of the criteria PHMSA says it will use to conduct its initial evaluations will cause carriers' applications to be rejected for violations proven to be poor indicators of safe transportation performance. The ATA believes PHMSA's focus on these types of violations is not justified and offers the following in support of its position:
In 2012, hazardous materials carriers had four percent fewer crashes per truck tractor than traditional fleets. Fleets transporting hazardous materials also had thirty-five percent fewer inspections resulting in a driver being taken out of service, and fourteen percent fewer inspections resulting in a vehicle being taken out of service. Yet even accounting for the hazardous materials fleets' superior safety performance, once a fleet reaches a certain size it is almost impossible that it will not have suffered an accident involving a death, injury, or property-damaging tow away due simply to exposure and the laws of probability. These carriers are almost guaranteed to fail the automated review process.
These carriers likely will not pass during the proposed Section 3(b)(ii) safety profile review either. At this point, PHMSA proposes that the fitness coordinator review “the applicant's history of prior violations, insufficient corrective actions, or evidence that the applicant is at risk of being unable to comply with the terms of an application for an existing special permit, approval, or the HMR[s].” PHMSA proposes that carriers' accidents caused merely by “driver error” can be dismissed at this point. However, a fitness coordinator is unlikely to be able to review enough of a carrier's accident data to make such a determination off-site. The fitness coordinator will therefore likely recommend that the motor carrier applying for a special permit move on to the final level of review: An on-site inspection. During an on-site inspection, the inspector will have access to the carrier[']s accident reports and any other pertinent safety information and would be able to clear the carrier for a special permit.
In 2012, 3,702 fatal crashes involving large trucks were reported to the Department of Transportation (DOT). DOT further estimates
ATA has only presented the data concerning crashes. However, PHMSA also proposes to remove those with two or more violations of its placarding regulations from automatic review and approval eligibility. In calendar year 2013, placarding violations were the seventh most common hazardous materials violation cited. Inspectors issued just under 2,300 violations in 2013. PHMSA proposes to check roughly 10,000 placarding violations over a four year period. A carrier—particularly a large one—might easily have two or more of those 10,000 violations. ATA also questions why two placarding violations should automatically send a carrier to secondary review when the six more frequently cited violations—especially failing to secure the package in the vehicle, damaged/deteriorated/obscured placards, and failure to carry shipping papers at all—have no similar effects on special permit or approval eligibility.
Ultimately, a carrier in the scenario described above is likely to receive approval for the special permit. Unfortunately, the carrier must comply with multiple levels of increasingly intrusive reviews in order to do so. Rather than require motor carriers to submit themselves to such levels of observation, ATA suggests that PHMSA implement a system that controls for both fleet size and for fleet utilization. Such a system should also include realistic violation levels for carriers of all sizes that are derived from examining FMCSA [Federal Motor Carrier Safety Administration]-provided data about violations during any given year.
PHMSA agrees with the ATA that those who transport hazardous materials frequently, including carriers with larger fleets, may be at greater risk
Further, while other databases exist within the DOT and the federal government that contain additional hazmat transportation safety information that may be useful in a safety profile review, PHMSA does not have access to these databases at this time. In addition, the databases PHMSA currently uses are either not configured to retrieve or do not contain some of the information and normalizing controls the ATA has requested be included in the safety profile review. Nonetheless, PHMSA agrees with the ATA that these types of data collection changes will improve § 3(b)(ii) of 49 CFR part 107, Appendix A's safety profile review results, and reduce the opportunity for frequent shippers and carriers of hazardous materials from being adversely affected during the safety profile review process. Therefore, in the future PHMSA will continue to study what factors are proven indicators of safe hazmat transportation performance for the purposes of a safety profile review, and review its data systems, software programs, and data collection to include those safety indicators that can reasonably be obtained.
PHMSA disagrees with the ATA's statement that a fitness coordinator may not be able to review enough of a carrier's accident data information to make an offsite fitness determination of that carrier. In most instances before an on-site safety profile review is considered, PHMSA's fitness coordinators will contact the applicant for clarifying information. If the information the applicant provides is sufficient to address the coordinators' concerns and/or questions, this may eliminate the need for an on-site inspection.
PHMSA disagrees with the ATA's statement that PHMSA proposes to remove all carriers with two or more placarding violations from automatic review and approval eligibility. Specifically, the NPRM proposed to remove carriers from automated review and approval eligibility if they have two or more placarding violations involving materials with hazard classes listed in Table 1 of § 172.504(e). Historically, materials that meet the hazard classes listed in Table 1 of § 172.504(e) pose significantly higher risks in transportation. Thus, PHMSA believes additional scrutiny regarding transportation violations involving these materials is justified. The ATA also believes placarding violations involving Table 2 materials should not automatically send a carrier to secondary review. As stated in the revised SOPs, PHMSA will address placarding violations under FMCSA fitness criteria by not considering placarding violations involving § 172.504 Table 2 materials.
PHMSA also agrees with the ATA that a safety profile review should put greater weight on serious and not minor violations. Citing the violations listed on FMCSA's “Roadside Inspections/Hazmat Violations” Web page,
1. Package not secured in vehicle;
2. No copy of USDOT hazmat vehicle registration number;
3. Placard damaged, deteriorated, or obscured;
4. Shipping paper accessibility;
5. No shipping papers (carrier); and
6. Vehicle not placarded as required.
Of these six, the ATA believes three—failing to secure the package in the vehicle, damaged/deteriorated/obscured placards, and failure to carry shipping papers—should take precedence over placarding violations involving § 172.504(e), Table 2 materials.
PHMSA further agrees with the ATA that inspection violations should be categorized in one of two triggers that also distinguish between greater and lesser transportation risks. Therefore, as proposed in the NPRM, PHMSA is reducing the number of levels that initiate, also called “trigger,” a safety profile review to remove enforcement case referrals and incidents involving foreign cylinder manufacturers or
The ATA also commented that the NPRM “proposes that highway carriers `will be screened in an automated manner based upon criteria established by FMCSA . . . which consists of interstate carrier data, several states' intrastate data, interstate vehicle registration data, and may include operational data such as inspections and crashes.' PHMSA proposes that FMCSA's Safety and Fitness Electronic Records (SAFER) system or another system like SAFER, but chosen by FMCSA, will be used.” The ATA believes safety data is better reflected in a company's inspection information and crash history. It also recommends that PHMSA consult only the underlying data to the index scores if the validity of the index scores cannot be verified. The ATA recommends that PHMSA base its SOP fitness evaluation criteria on categories FMCSA has determined are better indicators of a motor carrier's safe performance. The ATA further states:
FMCSA has developed a new safety measurement tool, known as Compliance, Safety, Accountability (CSA). CSA utilizes the inspection and crash data that PHMSA proposes should be considered in making special permit determinations. The CSA system then amalgamates that data and runs it through an algorithm in order to generate seven index scores ranking motor carriers in relation to other carriers of similar size or with a similar number of inspections. But, PHMSA's special permit and approvals requirements are based upon applicants showing that safety performance will be at the same or a higher level than would prevail outside of the special transportation provisions requested. Thus, CSA scores should only be used if they can be shown to reliably represent individual carrier safety performance.
Many of the individual, discrete pieces of data utilized by the CSA algorithm could be useful to PHMSA in making a determination about a carrier. These pieces of information could be useful with only an automated review or at the safety profile review by a DOT official. However, multiple studies have shown that FMCSA's overall aggregate indexing and scoring system does not accurately or reliably represent an individual carrier's safety performance or reliably predict future crash involvement. Essentially, the scores are not good indicators as to whether or not a carrier “is fit to conduct the activity [that would be] authorized by the special permit or approval application.”
FMCSA even avoids using CSA scores in awarding Hazardous Materials Safety Permits (Safety Permit). Safety Permits are required for the transport of highway route-controlled quantities of Class 7 hazardous materials, certain high explosives, poison inhalation hazards in Zones A-D, and shipments of compressed or liquefied natural gas. Rather than utilize CSA scores, FMCSA awards safety permits based on a carrier's performance in avoiding crashes and out of service orders during vehicle, driver, and hazardous materials inspections.
Wisely, FMCSA is unwilling to award Safety Permits based upon CSA scores. In fact, several carriers that hold Safety Permits have CSA Hazmat BASIC index scores well above the threshold for agency intervention. Therefore, it is inappropriate for PHMSA to rely on these same index scores eschewed by FMCSA in approving or denying special permit or approval applications. PHMSA can and should rely on inspection information and crash history. However, absent verification that the index scores contain useful safety information, only the underlying data should be consulted.
As stated earlier in this preamble, PHMSA agrees with the ATA that data considered when evaluating an applicant's safety profile should be an indicator of the applicant's safe performance in transportation. PHMSA further agrees that while an increased number of miles in transportation must be considered when evaluating transportation safety, companies should not be adversely penalized for placing an increased number of properly prepared hazardous materials in transit. PHMSA proposed in the NPRM to evaluate an applicant's fitness based on accident and other operational data that are historical indicators of compromises in hazardous materials transportation safety. While PHMSA proposed to use FMCSA's CSA data as a part of this evaluation, PHMSA is aware of the FMCSA's concerns about its data collection programs and that it is considering revising the type of information it collects. PHMSA will investigate its data collection systems and confer with FMCSA to determine what safety compromise indicators can be retrieved from these databases, and if the normalizing controls of the type the ATA discussed may also be obtained. In addition, the initial review of the data will only be performed as part of the initial automated fitness review. Further review, including the safety profile review, will be conducted by a fitness coordinator and the data will be evaluated and normalized based upon available data during the review. Companies will not be determined to fail the safety profile review based solely upon the number of incidents or accidents that were discovered during the safety profile review process. Additional factors, such as the number of miles traveled and the number of vehicles in service, would also be considered.
As stated earlier in this preamble, PHMSA also proposed in the NPRM to modify its evaluation of the information needed to warrant a safety profile review into two types of initiating/trigger/tier events. The first event is for a safety profile review and emphasizes high-level indicators of these types of risks, and the second event is for on-site inspections and includes violations that PHMSA finds are low-level risk model indicators. In the NPRM, these proposed events were described in the following table:
PHMSA will consider additional high-level indicators of transportation safety compromises, such as wrong package selection, failure to close packages properly, and failure to test packages.
Due to their low risk, PHMSA will
The Chlorine Institute (CI) expressed its overall support of PHMSA's initiative to incorporate the special permits and approvals SOPs and information about the evaluation process into the HMR. It stated that by putting this information in the public record and into the HMR, it allows stakeholders to be more informed about the special permit and approvals application process. In addition, CI stated that explaining the evaluation process and what criteria will prompt interviews and on-site inspections will assist applicants in being more prepared for the evaluation process. Further, CI stated that providing stakeholders with such details should make for a smoother and more efficient application review process, thereby benefitting both PHMSA and industry. Finally, the CI expressed its appreciation that PHMSA has listened to industry's concerns pertaining to the special permits and approvals review process and undertaken this rulemaking.
The Dangerous Goods Advisory Council (DGAC) expressed its support of PHMSA's efforts to comply with MAP-21 requirements to issue regulations that establish SOPs and criteria to evaluate applications for special permits and approvals, in addition to the publishing of the SOPs. However, the DGAC also expressed concerns about several proposals in the NPRM, and requested that PHMSA revise its SOPs to reduce possible subjectivity and processing times.
The DGAC commented that the procedures PHMSA proposed for managing special permit and approval applications do not provide for responding to routine requests for administrative revisions, such as name changes, address updates, or minor editorial revisions to correct non-substantive errors. The DGAC believes requiring applicants to submit an entire application to make such minor changes does not promote safety and burdens PHMSA's and the applicant's administrative processes.
PHMSA disagrees. When an applicant asks to modify an existing special permit to make routine administrative changes, such as a change of address and/or minor editorial revision to correct a non-substantive error, paragraphs (c) and (d) of § 107.105 require that the applicant requesting this change submit an application to PHMSA that describes and justifies their request and includes information relevant to the proposal, which is a “full” application for this type of request provided it complies with all applicable requirements of the HMR. Since the special permit is already approved, depending on the type of request, all the safety justification information required in the initial application will not be needed. Relevant information to the request is also what is needed to make routine administrative changes to an existing approval, but the language in § 107.705(b) is not as clear. Therefore, PHMSA is revising the introductory paragraph of § 107.705(c) to include language similar to that in § 107.105(c) that requires relevant information be submitted with the request. As a result, PHMSA believes making requests for modifications through the submission of a full application, as prescribed in the HMR, is not a significant burden. In addition, providing a full application does serve a safety benefit since it will require the application to be screened through an automated fitness review that will identify any possible changes to the company's fitness profile. Regarding requests for name changes, additional information is needed since PHMSA technically does not issue “name changes” to permits and approvals. The applicant requesting a company name change must be able to demonstrate that the new company is performing the activities authorized under the special permit or approval in a manner that is identical to that of the previous company. For example, the applicant must provide a filing from the state of incorporation indicating that the only change to the corporation is a change in the name, or other documentation to indicate that although the company is changing, its personnel, procedures and activities performed under the special permit or approval will not change under the auspices of the new company. If these conditions are met, then PHMSA grants an approval or permit to the new company that it may maintain the same approval or permit number as the one previously issued.
Further, though PHMSA continuously strives to improve the efficiency of its special permit and approval processing operations, it is the applicant's responsibility to ensure his or her application is correct and complete. PHMSA receives approximately 30,000 special permit and approval applications annually. One of the most effective ways to ensure efficient processing of an application is that it is complete. Past attempts by PHMSA to delay processing incomplete applications until it received the missing or corrected information from
DGAC stated that it is not clear about the intent of PHMSA's request on how to assess hazardous materials manufacturers that do not ship. Specifically, the DGAC states that it is not clear what PHMSA's jurisdiction is to assess fitness for entities that do not offer hazardous materials or packaging marked as acceptable for transportation.
PHMSA disagrees. While the DGAC correctly points out that the HMR do not apply to a hazardous material that is not being transported in commerce, the HMR apply to all actions that affect the safe transport of hazardous materials in commerce, including those performed by manufacturers that do not ship, such as hazard classification and consignment through a freight forwarder or broker. Therefore, each applicant for a special permit or approval must be assessed for its fitness to perform actions relevant to compliance with the HMR. For those manufacturers that do not perform a hazmat function, PHMSA does not have regulatory jurisdiction over these entities. PHMSA believes that clarifying the responsibilities under the HMR of manufacturers that do not ship is beneficial to this process.
The DGAC questioned the necessity for making fitness determinations of applicants that perform certain functions requiring registration. As an example, DGAC stated that persons desiring to use a symbol as their company identifier must register with PHMSA and be issued a number. DGAC stated that performing a fitness determination on these persons seems to serve no useful purpose. For persons who perform only visual inspections of cylinders that are required to register to receive a Visual Identification Number (VIN), the DGAC expressed doubt that PHMSA has an inspection history on the vast majority of these individuals, and that PHMSA can perform an on-site inspection of all applicants for VINs in a timely manner. The DGAC concluded by stating that withholding the issuance of a VIN until an inspection can be performed may cause severe hardship for such applicants, and affect their ability to stay in business.
PHMSA disagrees. While it is not our intent to inspect all VIN applicants, and historically we have found low levels of risk with visual cylinder requalifiers, visually inspecting cylinders is a safety function under the HMR. Therefore, PHMSA will analyze VIN applicants for fitness if PHMSA is aware of any intelligence that the applicant is not capable of performing this activity. Further, the average processing time for a VIN is 3 to 5 days or less. PHMSA has never had delays in processing these applications. However, PHMSA is reviewing how we process these applications to determine if we can implement more automation.
The DGAC expressed concern regarding the authority the proposed SOPs would give the PHMSA Field Operations (FOPS) officer or authorized Operating Administration (OA) representative to make a subjective determination that corrective action taken by an applicant in response to a prior enforcement case is insufficient and that the basic safety management controls proposed for the type of hazardous material, packaging, procedures and/or mode of transport remain inadequate. DGAC stated that such a determination by a single individual is purely subjective without a determination that a violation continues to exist. Further, DGAC believes that this type of determination lacks both the administrative and legal review to verify existence of a violation, and the administrative processes for a company to challenge such findings.
PHMSA disagrees. Fitness is not determined by one FOPS Division staff, or a representative of the Department, such as an OA representative. An applicant that undergoes an initial safety profile review and is flagged has his or her case first reviewed by a FOPS officer, and then the case goes through a second level review. Further, a company has 30 days to submit corrective actions after a FOPS officer or OA investigator finds possible violations. If the first-line field supervisor considers the corrective actions sufficient to address the observed violation, the supervisor presumes that corrective actions have been put into place and will prevent future recurrence. In some instances, a follow up re-inspection is also executed to ensure the corrective actions have adequately addressed the problem. All field case reports, including corrective actions, are reviewed by PHMSA's legal counsel and a final penalty is assessed. The penalty amount can be challenged by the company under existing administrative processes. Further, for additional clarity and in response to a request from commenters, PHMSA has added a definition for “sufficient corrective action” under § 107.1.
DGAC states that it remains unclear as to what criteria will be used to determine if an applicant is either “fit” or “unfit.” It also states that even though minor violations of the HMR may be uncovered during an on-site investigation, such violations may not have a serious impact on the compliance posture of the applicant. The DGAC recommends that PHMSA clearly articulate the conditions under which an applicant would be determined to be “unfit.”
PHMSA has articulated these conditions to the extent possible in this final rule. However, too many variables exist among those who affect the safe transport of hazardous materials to state with certainty what HMR violations or previous incident history will be found and to what extent they will affect the status of an applicant's fitness. For example, if a violation or series of previous incidents is found and PHMSA determines the applicant has not implemented sufficient corrective actions for prior violations, or that the applicant is at risk of being unable to comply with the terms of an application for a special permit or approval, an existing special permit or approval, or the HMR, then PHMSA will determine that the applicant is unfit to conduct the activities requested. Although FOPS officers and OA representatives do not disclose their inspection process and their inspections are unannounced, their inspections are conducted in a logical sequence and involve all aspects of the applicants' operations that are applicable to the HMR.
The Institute of Makers of Explosives (IME) expressed concern that the SOPs proposed in the NPRM introduce practices and procedures that increase the costs and timelines of producing and managing special permits and approvals applications without addressing the fundamental problems the DOT Office of Inspector General (OIG) identified with these PHMSA programs—deficiencies in how PHMSA manages its paperwork and provides clarity when processing these applications. The IME stated the DOT OIG directed PHMSA to clarify and publish its SOPs for special permits and approvals in its 2009 report. The IME also stated the DOT OIG cited as the reason for this directive PHMSA's deficiencies in managing its paperwork, but not for the performance of tasks PHMSA authorized in the special permits and approvals it has approved. The IME further stated PHMSA responded to the OIG's request by issuing “without public notice and comment, two documents describing new complex procedural schemes that substantively altered the special permit and approvals application and evaluation process, and fundamentally changed the procedures the agency would follow in conducting a fitness determination.”
The IME further noted that although PHMSA identified its SOPs as “a process for evaluating an applicant's fitness,” it identified its SOPs for approvals “as a draft with a `to be determined'” placeholder for its fitness determination standard. The IME stated that the agency began using these SOPs to make regulatory determinations of fitness although the regulated community had no idea what threshold level of performance would be used to determine an applicant's “fitness.” The IME stated the regulated community responded to this action “with letters and a petition for rulemaking requesting that PHMSA establish its SOPs and fitness criteria by rulemaking.” When PHMSA rejected these requests, the IME stated, “Congress intervened with a directive that PHMSA issue regulations to establish SOPs for the SPAP [Special Permit Application Process], and objective criteria to support the evaluation of special permit and approval applications.”
As stated earlier in this preamble, PHMSA continuously strives to improve the efficiency of its special permit and approval processing operations while processing approximately 30,000 special permit and approval applications annually. In the past, delays in processing incomplete applications until PHMSA received missing or corrected information from applicants resulted in significant delays in processing applications. As a result, PHMSA has ceased that practice. PHMSA must also ensure that all special permit and approval requests are not authorized until they are determined to be as safe as those activities permitted under the HMR or are determined to be safe enough to serve the public interest. In addition, by undertaking this rulemaking process, PHMSA is responding to requests from the regulated public to open the development of its special permit and approval SOPs to full public disclosure and comment.
The IME indicated in its comments that it supports several proposed amendments in the NPRM. These include a four-year review period, Table 1 applications, hazmat registration, party-to-applicant fitness, data normalization and relevance, and presumption of fitness. However, the IME provided several comments pertaining to a number of concerns and observations. They are as discussed below.
In its comments, the IME stated that PHMSA's claim that costs and benefits are unaffected due to this rulemaking is premature. Specifically, it stated that “every determination PHMSA makes of an applicant's fitness or whether to issue or deny a special permit or approval has an effect outside of the agency. Furthermore, opportunities to affect those costs and benefits change when the procedures and standards change. For several years, the regulated community has relied on SOPs posted on PHMSA's Web page. Yet PHMSA acknowledged, at some time after its 2012 public meeting on fitness determination standards, that it has revised its SOPs. It may be that the agency's claim that the SOPs and fitness criteria described in the rulemaking are unlikely to change costs and benefits is because PHMSA is describing its current practices, not the SOPs posted to its Web site. Whatever the case, a declaration that costs and benefits are unaffected is premature because it presupposes the outcome of this rulemaking.”
PHMSA notes that for several years, Congress and the DOT's Inspector General (IG) have directed PHMSA to assess the ability (
The IME also expressed its concern of how “backlogged” applications have plagued the SPAP since the events of 2009. It noted that:
PHMSA exercises new authority to incorporate proven special permits into the HMR. Backlogs from this part of the SPAP may be self-correcting. While IME appreciates the dedication of PHMSA staff to move existing backlogged applications, the frequency with which intervention is required to request action on these applications suggests that the process needs to be better streamlined. PHMSA has established a 120-day processing schedule before an application can be deemed “backlogged.” We do not believe that every application should be held to a 120-day processing schedule, and we associate ourselves with those that believe the length of time PHMSA takes to process and issue special permits or approvals, especially when applications lag beyond the current 120-day processing threshold, adversely impacts U.S. competitiveness. While nothing in this notice indicates that the regulated community can expect a shorter processing schedule, the agency does describe revised procedures that suggest a shorter timeframe is possible. For example, PHMSA has begun to concurrently process both the technical and the fitness evaluations. Based on concurrent processing, PHMSA should establish a shorter timeframe for applicants to gauge when they will be provided a decision from the agency.
In another streamlining initiative, PHMSA issued notice that it was ceasing to perform fitness reviews for classification approvals. These approvals are simply affirmations of compliance with classification regulations. Those affected must have PHMSA-required tests performed by PHMSA-approved laboratories. Denying a request for such an approval on the basis of fitness is, in effect, denying the applicant the opportunity to
PHMSA states that there are four steps in the processing of an application, whether for special permits or approvals. They include a “completeness” phase, publication, “evaluation” phase (which includes both a technical and a fitness evaluation), and “disposition” phase. The completeness phase is to determine if the application contains all the information required by the HMR. However, the preamble states that evaluation phase is used to “determine if the application is complete.” This duplication is needless and will slow the processing of the application. Additionally, it is not clear from the preamble discussion when applicants will be notified that an application is rejected. Reasons to reject applications, such as incompleteness, omissions, errors, could be manifest at any stage of the processing phases. Whenever PHMSA makes a determination to reject an application, the applicant should be immediately notified. An application tagged to be rejected should not continue to move along the processing queue only to be rejected at some later date.
PHMSA has stated that it queues applications on a “first come, first served” basis. While we support this prioritization principle, it does not recognize the fact that applications are different and, once in the system, applications should be assigned to separate tracks and staff who specialize in the processing of application types. For example, it seems intuitive that classification approvals with a 3-part review process without the need for
Likewise, IME has long advocated for a separate track to process applications seeking minor corrections, such as name changes, or those with minor errors, such as misspellings, or omissions. However, PHMSA states that it has a “new” practice of rejecting “incomplete” applications. The agency states that “problems with recordkeeping” require the resubmission of the entire application, with corrections, in order for a rejected application to be reconsidered. This is a costly, ineffective way for PHMSA to get around problems it has with recordkeeping. The policy may make it easy for PHMSA to clear its books, as all the costs of resubmittal, including lost commercial opportunity costs, are borne by the applicant. While we agree that incomplete applications and applications containing non-substantive errors should be tabled pending correction, we do not believe that these types of administrative deficiencies warrant returning resubmitted applications to the end of the queue and restarting the processing time-frame anew. Rather, we suggest that PHMSA establish a dual-track system, allowing applicants of incomplete applications or those otherwise tagged to be rejected for non-substantive reasons a grace period, such as 30 days, to correct the deficiency(ies) identified in the application. If the applicant resubmits a corrected application, the application should be returned to the point in the queue where it was pulled. If the applicant fails to resubmit requested information in the time allowed, the application should be rejected and any resubmittal treated as a new application.
In what could be seen as process streamlining, PHMSA states that it “will review companies with multiple locations as one organization, placing an emphasis on its examination of the company's locations where the requested actions and/or processes are being performed.” However, the announced policy seems contradictory. A company with multiple locations is not being reviewed as one organization if, at the same time, PHMSA is examining locations where the safety permit or approval is to be carried out. If PHMSA means some type of middle ground, it should clarify how many “locations” within a company will be visited and how the locations will be selected.
It is important that PHMSA look for opportunities to streamline its 120-day special permit and approval processes. In each of the last four fiscal years, PHMSA has requested Congress to authorize millions in user fees to pay for the costs to administer the SPAP. SPAP users have resisted efforts to impose these fees for many reasons. One key reason is that PHMSA has done nothing to restrain its own costs within the program. Meanwhile, we are grateful that Congress has rejected these budget requests.
While PHMSA requests that applicants submit their special permit and approval applications 120 days before they would like them to be issued, PHMSA is not restricted by this timeline. Typically, it takes PHMSA less than 180 days to process a special permit application, approximately 45 days to process an approval classification, and approximately 5-6 days to process a VIN application provided all are correct and complete. While PHMSA agrees that the application process should be streamlined to the extent possible, PHMSA must take what time is needed to efficiently and effectively determine that the actions requested in each application are safe and what modifications, if any, may be needed to make the requested actions safe. PHMSA believes that it must consider applications as they are received to be fair to those applicants who have prepared their applications correctly. PHMSA disagrees with the IME and other commenters that establishing grace periods for applications with missing information will improve its ability to streamline its application process. Past efforts to create internal systems that did this significantly delayed PHMSA's ability to process applications efficiently. Further, budgetary constraints prevent PHMSA from modifying its current application processing software to create a separate application process for managing routine administrative application changes.
Over the past 10 years, approximately 10 percent of PHMSA's special permit applications have been in processing for greater than 180 days. PHMSA must report applications that are not processed within 180 days in the
PHMSA disagrees with the request to reduce processing times by no longer publishing notifications of applications received in the
Regarding screening applicants with multiple locations as one entity, PHMSA agrees. PHMSA already performs its initial screening of these applicants as one entity; however, follow-up reviews are more site-specific, based on the number of locations and resource availability.
PHMSA also agrees with the IME that the language explaining the difference between the completeness phase to determine if the application contains all the information required by the HMR, and the evaluation phase to determine if the application is technically complete, is confusing. Further, the NPRM's preamble stated the evaluation phase will be used to “determine if the
The IME also expressed concern with the procedures and policies PHMSA is using to determine “fitness.”
PHMSA states that “incorporating an elaborate review system into the HMR . . . would be extremely difficult [given] the wide range of applicants.” PHMSA is not alone in the realization that establishing standards to fairly and accurately determine fitness of a myriad of private entities is a daunting task. The Federal Motor Carrier Safety Administration (FMCSA) has been attempting to update its fitness standards for years. However, PHMSA proposes to overcome the difficulty of this task by “incorporat[ing] a more straightforward, user-friendly review system.” While we can hope for a process that is straightforward and user-friendly, first and foremost PHMSA needs to accurately disclose the process and standards it is using.
As stated earlier in this preamble, PHMSA will conduct most of its safety profile evaluations through administrative research. PHMSA will conduct its site-specific and situational-dependent safety profile evaluations based on highest priority with regard to safety risk, and the number of locations and availability of agency resources to perform these tasks.
The IME commented on the frequency of fitness determinations when it stated that:
IME recommended that fitness determination reviews not be triggered by the filing of an application but be periodically performed at least once every four-years unless revoked or suspended due to subsequent findings of imminent hazard or a pattern of knowing or willful non-compliance. PHMSA addresses this concern, in large part, by announcing that it considers only fitness data since the last review. While this is a step in the right direction, applicants may submit several applications at the same or proximate time. It seems a waste of resources to ramp up separate fitness reviews for the same day or even month. We would recommend some de minimis exception between applications. Otherwise, the review becomes just a paper exercise and the cost may not be justified. Keep in mind that a de minimis exception does not preclude PHMSA from suspending or revoking a permit or approval whenever additional proof of non-compliance comes to light.
PHMSA disagrees. As stated earlier in this preamble, when PHMSA receives multiple applications from one entity within a short period of time, PHMSA consolidates these applications when performing its safety review. PHMSA has a five-year plan for reviewing cylinders but a one-year plan for reviewing explosives because we have developed our program to be responsive to the level of risks associated with these materials. However, PHMSA does not have the resources to commit to reviewing special permit and approval applicants every four years. PHMSA increases the frequency of its inspections involving materials with greater incident risks regardless of the type of applicant.
In its comments, the IME recommended that:
The onsite reviews of fitness be reserved to a small set of applicants that have a history of serious hazmat incidents. However, PHMSA believes that these reviews should be a standard part of the process since onsite reviews are necessary to support the “accuracy” of the determination. This statement appears to conflict the fitness triggers that suggest only applicants exceeding certain performance thresholds would be subject to an onsite inspection. Additional agency justifications for onsite reviews—specifically whether packagings and/or operations requested are safe or what additional operational controls or limitations may be needed—may be relevant to the technical evaluation, but not to the determination of fitness. Finally, we agree that an onsite visit may be used to clear up misunderstandings or inaccuracies. However, the option to conduct an onsite review in these instances should be in response to a request from the applicant. Onsite reviews are no doubt the most costly aspect of the fitness determination process. As noted, some applicants may file multiple applications in a short timeframe. We continue to believe that onsite reviews should only be triggered when fitness cannot be demonstrated by some other means.
PHMSA disagrees that on-site reviews would be required for all applicants. PHMSA plans to conduct on-site reviews for only a small percentage of companies that are determined to have failed a safety profile review. However, an on-site review is not required to make a determination of “unfit.” Since 2010, PHMSA performed on-site reviews of five or fewer companies and none were determined to be unfit. PHMSA agrees that on-site reviews and accompanying close-out consultations are opportunities to clear up misunderstandings and inaccuracies.
In response to a solicitation by PHMSA to comment on data accuracy, the IME comments that:
PHMSA asked for comment about how to improve the quality of the Hazmat Intelligence Portal (HIP) data it uses to determine applicant fitness. When PHMSA launched HIP, the regulated community was promised future access to their own information. This has never happened. The best way to ensure data accuracy is to give the regulated community access to their data and an opportunity to challenge and correct misinformation. FMCSA allows motor carriers access to their records and provides a process to correct errors under its CSA program. While FMCSA is still grappling to perfect its process to correct errors, the CSA program sets a precedent that PHMSA should follow.
The vast majority of information PHMSA uses to conduct its carrier-specific fitness reviews, but not general hazardous material reviews, is contained in FMCSA's databases. PHMSA contacted other modal agencies to obtain similar incident data but these agencies either did not have the information needed or were not willing to make this information available to PHMSA. FMCSA's databases are well organized and the agency is willing to share them with PHMSA. PHMSA understands that FMCSA is revising its databases and considering ways to make this information more available to the public. When PHMSA first developed its Hazardous Materials Information System (HMIS) and Hazmat Intelligence Portal (HIP) databases, its intent was to make this information available to the general public. However, PHMSA was unable to complete this step due to budget and software design considerations. PHMSA intends to revise the HMIS, HIP, or other prospective application processing technology, to make the information it contains available to the public in the future.
The IME addressed fitness standards in its comments as follows:
The standards by which PHMSA determines “fitness” have profound implications for applicants. PHMSA still proposes a three-tiered review process. PHMSA explains that the applicant is first screened to see if a SPR [safety profile review] is triggered. Second, if a SPR finds any of a second set of risk indicators, an onsite review is triggered. Third, PHMSA's field operations staff (FOS) will submit a fitness memorandum with a recommendation of fit or unfit. However, this process continues to be seriously flawed:
Incident Triggers: PHMSA states that it is removing low-level incident data from its tier 1 automated fitness determination process, and focusing on three incident categories to trigger a SPR—incidents resulting in death, incidents resulting in injury, and “high-consequence” incidents. However, there are no definitions of “injury” or “high-
Conflicting Tier 1 Triggers: Despite the statement above that only three types of high consequence incidents would trigger a fitness review, PHMSA states that a “pattern of minor violations may reveal larger problems that could adversely affect transportation safety.” Again, this statement appears to negate PHMSA's statements about what standards may result in a determination of “unfit.”
Conflicting Tier 2 Triggers: In the preamble, PHMSA states that it has revised its SOP to base fitness evaluations (and SPRs) on incidents and/or violations revealing “flagrant patterns and serious violations.” (Emphasis PHMSA's.) Later in the preamble, PHMSA states that “the suggestion to ignore minor leaks in packaging may not be inconsequential depending on the risks contained in the material, and, therefore, [PHMSA] may not eliminate this as a consideration in a fitness evaluation.” The preamble also states that a trigger for a tier 2 SPR is “two or more prior enforcement case referrals.” However, PHMSA's proposed “Appendix A” states that the trigger is met if the applicant has “a [
Tier 3 standard/What is “Fit”?: Most concerning about PHMSA's notice is that applicants unlucky enough to find themselves with a tier 3 onsite review still do not know what will be examined in an onsite inspection or what standard of performance will yield a finding of “fitness.” PHMSA states that, during the inspection, “investigators” will search “for evidence that an applicant is at risk of being unable to comply with the terms of [any applicable] special permit, approval, or . . . HMR.” In fact, PHMSA states that the FOS may initiate audits of the applicant's operations when determining fitness. PHMSA should provide examples of “evidence” that would put an applicant at risk, and clarify what records will have to be produced, who onsite can expect to be interviewed, and how long an onsite review can be expected to take. The onsite inspection should conclude with a closing conference outlining options applicants will have to learn of and address any identified concerns. We assume an inspection report will be prepared. Please clarify whether the applicant will receive a copy. Without some limitations, these inspections could degenerate into fishing expeditions. The uncertainty of what level of performance would produce a finding of “fit” is a burden that will only be borne by U.S. businesses.
Judge and Jury: FOS have been delegated responsibility for the fitness review process for all decision-making after the initial automated review. Although PHMSA proposes that the associate administrator will “review” all special permit and approval applications, the permit or approval can be issued by individuals other than the associate administrator. We are concerned that too much authority for the fitness review, inspection, and determination is left in the hands of one individual. If the associate administrator has delegated the final decision on a fitness determination to FOS, at minimum, FOS should have to get the SPAP to sign-off on the decision.
The information PHMSA uses for safety profile reviews acquired from the incident report forms is standardized. High-consequence/injury events are similar to requirements which trigger National Response Center reporting under § 171.15. Incident reports may also be caused by incorrect package assembly or improper maintenance. Fitness coordinators will consult this information in addition to that provided in an application and, if clarifying information is needed, will contact the applicant to obtain it. If the information the applicant provides is sufficient, an on-site inspection may not be necessary. Also, participation from PHMSA's Engineering and Research Division may be required. PHMSA will conduct an on-site review if it has evidence that: (1) An applicant is at risk of being unable to comply with the terms of an application; (2) any incident listed under paragraph 3(b)(i)(1) of the Appendix A to Part 107 is attributable to the applicant or package, other than driver error; (3) during an inspection in the four years prior to submitting the application an applicant has not implemented sufficient corrective actions for prior violations, or is at risk of being unable to comply with the terms of an application for or an existing special permit, approval, or the HMR; or (4) incorrect or missing markings, labels, placards or shipping papers. The safety profile evaluation will normally follow the same procedures as an inspection. As stated earlier, the FOPS officer or OA representative will provide an exit briefing to document any observed violations, including those which may affect fitness determinations. After PHMSA's Field Operations Division staff, or a representative of the Department, completes the safety profile evaluation the FOPS staff person or OA representative will make a recommendation to PHMSA's Approvals and Permits Division if a company is fit or unfit. PHMSA's Approvals and Permits Division will make the final fitness determination. Denied applicants have a right to reconsideration and appeal of that decision as prescribed in §§ 107.123, 107.125, 107.715, and 107.717. Further, PHMSA must include the scope of its inspection responsibilities under the HMR in the safety profile reviews it conducts.
In its comments, IME stated that:
PHMSA states that the process it has implemented “does not presume innocence or guilt” of an applicant. However, “new companies with no performance history” will still be subject to a fitness determination. PHMSA's treatment of new companies is one that presumes non-compliance. These reviews will be based on a new company's “training records.” Training records are only available for review onsite. Consequently, new companies will automatically find themselves pushed to a tier 3 inspection. We disagree that new companies automatically warrant this costly level of review. Additionally, PHMSA states that “select holders” who have never been inspected will be automatically referred for a tier 2 SPR. Again, this criterion is based on a presumption of non-compliance. This fact alone should not be a justification for a fitness review.
PHMSA agrees that an applicant's history should not imply a presumption of guilt and there is no need to require on-site review of hazmat matters with lower risk, such as training records. PHMSA does not believe that an applicant's lack of data is correlated to non-compliance. New companies are automatically presumed to pass their safety review since they have no “triggers” in the system. However, the fact that a company is new does not prevent PHMSA from doing inspections under other sections of the HMR.
Regarding the evaluation performed by various modes during a fitness determination, IME commented that:
PHMSA states that it coordinates application evaluation with DOT modal agencies when the application is “mode specific, precedent setting, or meet[s] federal criteria for a “ `significant economic impact'.” We question the rationale for involving a modal agency in any application that does not involve the mode irrespective of whether it is precedent setting, or of significant economic impact. Furthermore, all modes have their own standards for determining “fitness.” PHMSA should not allow modal agencies to use PHMSA's fitness procedures to impose more stringent fitness requirements than already exist in their modal regulations. Likewise, PHMSA should not use the fitness assessment process to impose its interpretation of who is a fit carrier on the modal agencies. We believe that the data reviewed should be relevant to the application. If an application involves “shipper” activities, “carrier” incidents attributable to the applicant, for example, should not be considered in the fitness determination. Likewise, modal agencies should not be involved in classification approvals. For example, applications for explosives classifications are based on UN tests performed by PHMSA-approved laboratories. There is no modal nexus to classification approvals.
The DOT's modal agencies currently evaluate only those issues that are germane to their mode of transportation according to their own established criteria, and this will continue. In most cases, modal agencies will not be involved in the evaluation of classification approvals. However, the modal agencies may make fitness recommendations with on-site reviews of an applicant according to their own established criteria.
In its comments, IME expressed concern whether the Appendix proposed in the NPRM was considered by PHMSA as a regulation when it stated that:
PHMSA states that rulemaking is not required because it considers these criteria to be “internal” guidance for its staff. Acting on this declaration, PHMSA proposes to incorporate its SOPs and fitness criteria into the HMR only as an “appendix.” This nomenclature and justification are troubling. Congress certainly felt that the SPAP SOPs and fitness criteria warrant the status of a rule, directing that “regulations” be issued by a date certain. Moreover, to be crystal clear in its intent, Congress directed that these rules be issued under the Administrative Procedure Act. PHMSA's declaration that this appendix is simply guidance begs the question of how the agency views the legal status of the document. As “guidance”, does PHMSA believe that the appendix can be changed, after this initial “rulemaking”, at will, as the agency has done to the current SOPs? We ask PHMSA to resist any temptation to treat the appendix as anything less than a regulation and to clarify the legal standing of the “appendix” in the final rule. Agency guidance issued without the benefit of careful consideration under the procedures for regulatory development and review risks being arbitrary and capricious.
PHMSA disagrees. The Appendix prescribed in this final rule is regulatory text that also performs as guidance because it discloses PHMSA's administrative processes to the regulated public. To change the language in this appendix, PHMSA must issue a rulemaking. Another example of an appendix in the HMR that sets forth guidance is the “List of Frequently Cited Violations” in Appendix A of 49 CFR part 107, subpart D. Both inform the regulated public of general guidelines PHMSA uses to make determinations.
The IME noted that in the NPRM PHMSA proposed to process requests for reconsideration and appeals of special permit and approval decisions “in the same manner . . . [as] new applications.” It asked “what is the point of making such a filing if the application will simply be treated as a new application?” In addition, IME stated that “requests for reconsideration and appeals should be handled on a separate track from new applications.”
PHMSA agrees that applications for reconsideration and appeals will be treated differently from regular special permit and approval applications. Reconsideration requests are managed within the Special Permit and Approvals Division in conformance with § 107.123 for special permits and § 107.715 for approvals, and appeals are managed outside of the Special Permits and Approvals Division by PHMSA's Office of Chief Counsel. When an applicant requests reconsideration of a denied application, the request is provided a higher priority in the review process. Thus, a decision will tend to be rendered more quickly since the initial review and evaluation has been completed. Appeals are handled by the Office of the Administrator and are not part of the routine special permit and approval evaluation process.
In its comments, IME noted that PHMSA describes its statutory obligation to publish notice of the receipt of special permit applications in the
PHMSA is required by law to publish receipt and processing of its special permit applications in the
IME noted that:
PHMSA enumerates six screening criteria used during the tier 1 automated fitness review. Screens 5 and 6 should be listed as standalone provisions. In contrast to screens 1 through 4, the criteria in screens 5 and 6 are not derived from the occurrence of a high-consequence event or an enforcement action. Rather, they are descriptions of when and how the automatic review will be conducted for particular applicants.
Additionally, we question the inclusion of screen 6 in this section of the rule in light of a correction notice recently issued by PHMSA which clarifies that only those applicants who do not require coordination with an Operating Administration (OA) would be subject to the tier 1 review. Yet, screen 6 describes the review that applicants who are interstate carriers would undergo which is based on criteria of FMCSA, an OA. It seems intuitive that PHMSA would “coordinate” with FMCSA for the data used in this review.
PHMSA agrees with the IME and will revise the language in the Appendix of this final rule to make this correction. Further, the trigger selection process is an automated review and done without FMCSA interaction.
IME comments that Congress directed PHMSA to issue the regulations contemplated by this rulemaking no later than September 30, 2014. However, the comment period for the NPRM did not close until October 14, 2014, and the statutory deadline will obviously be missed. In light of these developments, IME expresses concern about the SOPs and fitness criteria that PHMSA will continue to use before the rule is promulgated. The IME expresses the hope that PHMSA will make changes to current practices and standards, but in the interim, exercise restraint in how it carries out any punitive actions using unauthorized procedures and criteria.
PHMSA has undergone its best effort to meet the deadline mandated for this rulemaking by the Congress in MAP-21. The provisions the commenter is requesting will become effective through the issuance of this final rule.
In its closing comments, the IME makes several recommendations:
(1) PHMSA may wish to clarify the following statements:
A. Further, the HMR permit, in various sections, some federal agencies limited authority to directly issue certain types of approvals because of the proven safety of the type of action and/or process requested in the approval, and the subject matter expertise each agency can provide regarding hazardous materials transportation.
B. During the evaluation phase, if the tasks or procedures requested in each special permit or approval application are determined to provide an equivalent level of safety to that required in the HMR or, if a required safety level does not exist, that they provide a level of safety that demonstrates an alternative consistent with the public interest that will adequately protect against the risks to life and property inherent in the transportation of hazardous materials.
(2) PHMSA's proposed definition of “applicant fitness” at § 107.1 is incorrect based on the preamble statement. Rather than “. . . a determination by PHMSA . . .”, the text should read “. . . a determination by the Associate Administrator . . .”.
PHMSA agrees with the IME and has made these clarifications and corrections.
The Reusable Industrial Packaging Association (RIPA) supports PHMSA's stated intention in the NPRM to remove “low-level” incident data from fitness determinations, focusing rather on high-level incidents involving death, injury, or other “high-consequence” cases. RIPA does not believe an isolated incident or a reported packaging leak, with no other attendant consequences, warrants a rejection of fitness. RIPA also supports PHMSA's proposal to limit the historical period to 4 years over which the agency will review an applicant's performance history, citing it as “practical and more than sufficient to ensure safety.” RIPA requested that PHMSA “. . . avoid linking a rejection or denial of an application to a single metric or a single occurrence in an applicant's history.” PHMSA has revised the guidance document to emphasize high-level incidents, but disagrees that it must not consider an isolated incident or package leak depending on how seriously the incident affects safety. If a single incident leads to death, serious injury, or a high-consequence event, rejection of that application would be appropriate and satisfy PHMSA's mission.
RIPA stated “PHMSA should address how its proposed modifications to the approval procedures will affect the increasing delays in processing approval applications. According to data recently supplied by the agency, as of October 6, 2014, there were 783 approval applications that had been in process for more than 120 days without a decision. As of July 7, 2014, there were only 570 approval applications older than 120 days. In just three months, the number of applications beyond the 120-day threshold has grown over 37 percent.” One of the purposes of PHMSA's SOPs is to aid the agency in decreasing its delays in processing special permit and approval applications by ensuring that PHMSA begins its review with as complete an application as possible.
PHMSA disagrees. As stated earlier in this preamble, PHMSA is not restricted to a 120-day deadline. PHMSA has a responsibility to authorize only those activities deemed safe in transportation and must not institute practices that would ignore this responsibility. Each application can be unique and require different types of complex information to complete its review, and PHMSA continues to work to improve processing times.
RIPA is concerned the additional levels of scrutiny for approval applicants in the proposed SOPs will add to PHMSA's delays in processing applications. RIPA also stated it asked in prior comments to the agency (February 29, 2012; Paul W. Rankin to Docket No. PHMSA-2011-0283—see
PHMSA agrees with RIPA that some types of approvals require less scrutiny than others and, thus, take less time to review. PHMSA also agrees that creating templates to help applicants meet SOPs targets would aid the applicants with successfully completing their applications. However, all forms and other types of government requests from the public must first be developed and cleared through the Office of Management and Budget. PHMSA has not developed a template under this rulemaking, and, as a result, this activity is outside the scope of this rulemaking. Therefore, PHMSA must decline this request.
RIPA found that PHMSA's proposed criteria for “insufficient corrective actions”:
PHMSA agrees with RIPA that it should add more clarity regarding the term “insufficient corrective action.” This will aid applicants as well as those conducting reviews to determine whether an applicant meets these criteria. Additionally, this will greatly aid the review and processing of applications, and clarify to applicants when a corrective action is satisfactory under the HMR. Therefore, PHMSA has added this definition to § 107.1.
RIPA believes on-site reviews should be limited to the most serious instances of safety concerns. However, it states that the criteria for “fit or unfit” remain somewhat malleable, and could support the rejection of an application based on a FOPS Division agent recommendations that may be far removed from the narrow special permit or approval being sought. RIPA requests that an on-site review of an applicant for an approval need not be a “curb-to-curb” inspection, but a limited review of the operation or packaging in question, and that inspectors should
As stated earlier in this final rule, an applicant that has not implemented sufficient corrective actions for prior violations, or is at risk of being unable to comply with the terms of an application for a special permit or approval, an existing special permit or approval, or the HMR, must be evaluated by PHMSA to determine that the applicant is unfit to conduct the activities requested. A full inspection is necessary for a complete assessment of the company's capabilities.
The Sporting Arms and Ammunition Manufacturers' Institute, Inc., (SAAMI) expresses appreciation of PHMSA's efforts to engage in a rulemaking process regarding the procedures for special permits and approvals applications to allow review and comment by stakeholders. It stated that such a rulemaking addresses concerns with non-transparency when internal policies are enforced but not published. In addition, SAAMI supported the proposed fitness review period of four years, classification approvals not requiring a fitness review, and subjecting applicants for party-to status on a special permit to the same fitness standards as the original applicant. However, SAAMI also expressed concerns “that inflexible and non-accountable internal policies do result in routine unjustified delays for industry operating in good faith,” and provided the following recommendations.
In its comments, SAAMI states the SOPs as guidance will not provide “the accountability sought by industry and regulated by Congress” under Congress' MAP-21 instruction to PHMSA to issue this guidance. PHMSA disagrees. Congress directed PHMSA to issue regulations and objective criteria that support the administration and evaluation of special permit and approval applications. This final rule accomplishes that directive.
SAAMI references PHMSA remarks in the NPRM that the Appendix A is a guidance document to be used by PHMSA for the internal management of its special permits and approvals program. In addition, SAAMI questions the scope of the rule, stating its view that the proposed criteria cover fitness checks, but not other aspects of the evaluation of applications, and also believes that the Appendix A to 49 CFR part 107 is not guidance, but rather is regulation. 49 CFR part 107, Appendix A, is regulatory text because it is being published in the HMR. It also serves as agency guidance in that it discloses PHMSA's administrative processes to the regulated public. Similarly, Appendix A of 49 CFR part 107, subpart D, sets forth guidance in the HMR for frequently cited violations. Both appendices inform the regulated public of general guidelines PHMSA uses to make determinations.
SAAMI states its awareness that classification approvals are taking “far too long to be issued.” Specifically, SAAMI states the 120-day timeline PHMSA currently uses “is twice or more the typical time used by other governments to issue similar approvals. This now has been increased to 180 days in notices sent to applicants. Industry can't function efficiently when their new product introductions are delayed.” However, SAAMI supports PHMSA delegating these responsibilities to certified third parties, because it states “the number of PHMSA staff working on these approvals” and “the small technical team responsible for 20,000 approvals per year” is inadequate to quickly perform these tasks, especially when diverted by other work responsibilities like evaluating issues concerning crude oil by rail or other technical questions. As stated earlier in this preamble, PHMSA is not required to issue special permits and approvals in 120 days, but instead must issue them when the agency has determined that the actions requested in the application are safe. Further, PHMSA is streamlining its internal and online practices for processing special permit and approval applications, and will strive to improve these processing times in the future, especially with regard to explosives and fireworks.
SAAMI states that for non-significant “routine revisions to special permits and approvals, such as a company changing its name or acquiring another company . . . [PHMSA] has been inflexible in the application of its internal, non-regulatory requirements for complete documentation of test result, packaging and so forth when there has been no change to the operations at the facility.” Noting that “some companies have hundreds or over a thousand classification approvals,” SAAMI states that these approvals should not be required to meet the new completeness criteria and “undergo a technical review with a complete data package as is currently the case.” SAAMI recommends instead that these approvals be “processed in batches as an administrative function.” SAAMI further recommends that requests for tweaks to recently modified approvals “. . . not go to the bottom of the stack with an additional 180-day waiting period,” as is also currently required, and that PHMSA resolve its recordkeeping problems “rather than making companies resubmit complete data packages” as described in the NPRM preamble. As stated earlier in this preamble, PHMSA currently does not have the resources to institute a separate processing method for routine and editorial revisions but will consider changes of this type as resources become available.
SAAMI notes that special permits have determination timelines in § 107.113(a) but that approvals do not have similar provisions in § 107.709, and recommends that these sections be aligned. Similarly, SAAMI recommends that the deadline that exists in § 107.709 that requires applicants to respond to PHMSA's requests within 30 days also be applied to special permit applicants in § 107.113. SAAMI also recommends that PHMSA consider adding timelines to its responses to requests for reconsideration and appeals, which currently apply only to stakeholders. PHMSA disagrees. As stated earlier in this preamble, PHMSA is not subject to the timelines in the HMR prescribed for applicants to submit special permit and approval applications for processing and renewal. PHMSA must ensure the activities requested in these applications are safe before approving these requests.
SAAMI's comments regarding fitness procedures indicated that PHMSA should focus on the most serious safety concerns and believe that some of the criteria PHMSA proposes to use to evaluate an applicant's fitness are not adequate to make this assessment. PHMSA agrees and has made these changes.
SAAMI noted that of the six criteria listed in proposed Appendix A paragraph (3)(i), two refer to “incidents.” SAAMI recommends PHMSA define “incidents” “to ensure that only serious incidents will be factored in.” PHMSA declines this request. “Incident” is already defined in § 107.1 as “. . . an event resulting in the unintended and unanticipated release of a hazardous material or an event
SAAMI noted that although the criterion for insufficient corrective action relevant to a prior enforcement case is defined, the definition merely states that the fitness officer has made a determination. SAAMI recommends that this determination be quantified and the subsequent criteria be published in a rulemaking for transparency, due to the serious impact of application rejection. PHMSA disagrees. Special permit and approval applications are reviewed on a case-by-case basis because they are often unique and sometimes include information subject to applicant confidentiality requests. PHMSA believes providing specific determinations and corrective actions directly to an applicant is the most effective way to convey the compliance information where it is needed. Also, as stated earlier, PHMSA has revised this final rule to establish two, instead of four, triggers of violations for each applicant for a safety profile review or five or more triggers for an on-site inspection enforcement case referral event. Either will result in a failed automatic safety profile evaluation recommendation. Fitness Coordinators will follow-up with the applicant to provide and obtain clarifying information.
SAAMI recommends that to reduce subjectivity in safety profile and on-site fitness reviews, PHMSA document the criteria used to make these determinations. SAAMI also suggests that minor violations of the HMR that do not seriously impact safety not be factored in a fitness review. To address this issue, SAAMI further recommends that PHMSA “create a threshold below which violations are not factored in the review, or if a pattern of minor violations are taken into [e]ffect,” PHMSA should create a metric to determine what is a pattern and provide an opportunity for public comment. PHMSA disagrees. For the two trigger violation thresholds, only enforcement cases are factored in. Enforcement cases only pertain to serious safety violations.
Finally, SAAMI states “there is too much subjectivity inherent in the proposed authority to be given to the PHMSA Field Operations Officer or authorizing Operating Administration representative.” SAAMI requests that violations be given an administrative second check to verify that they exist and that PHMSA should provide recourse to a company to challenge such findings without their having to resubmit a data package. SAAMI recommends that for applicants with multiple or frequent applications, “fitness reviews[,] including on-site reviews[,] should not be conducted until after a certain time has elapsed since the last review.” Without such limits, SAAMI states, “the review becomes just a paper exercise using scarce resources of the agency.” PHMSA disagrees. As stated earlier, the fitness coordinator will contact the applicant for clarifying information that may eliminate the need for an on-site inspection. Violations in case reports are given second reviews by a first-line supervisor in the field and then by PHMSA legal counsel. Subsequent reviews are only completed up to the time of the last review to determine if something serious happened since the last review.
SAAMI closes out its comments by providing a list of recommendations. They are as follows:
SAAMI recommends that PHMSA align the description of the type of approvals with those listed for special permits by adding classification, non-classification and registration approvals, noting that the NPRM “lists all types of special permits but only agency designation approvals. Classification, non-classification and registration approvals are not listed.” PHMSA disagrees. The Appendix in this final rule provides this exact information in the table “Special Permit and Approval Evaluation Review Process.”
SAAMI requests that PHMSA clarify in Appendix paragraph (3)(b)(ii) who will perform the fitness check when more than one OA is involved to streamline the process and clarify that PHMSA's performance of a fitness review is not an additional [seventh] fitness review criterion. SAAMI recommends that PHMSA perform the fitness review if more than one OA is involved using this language: “The applicable OA performs a profile review if one mode of transportation is requested in the application[;] however, PHMSA [will perform] the review if two or more modes of transportation are included.” PHMSA agrees that we do, and would oversee and not perform a safety profile evaluation if more than one mode is needed.
SAAMI requests that PHMSA clarify that OA's will not be permitted “to use fitness procedures to impose more stringent fitness requirements than already exist in the OA's regulations.” While PHMSA agrees that this clarification would be useful, this action is beyond the scope of this rulemaking because it is dictated by each OA's internal process documents. All special permit and approvals subject to OA coordination will be subject to OA criteria for fitness and not all of the OA criteria are regulatory. For example, air carrier fitness will be based upon whether or not the air carrier has “will-carry” status and is fit to fly. Therefore, FAA cannot in good conscience say an air carrier is fit to perform the activities prescribed in a special permit when the carrier has been assessed as not fit to fly. Therefore, PHMSA denies this request.
SAAMI points out that in Appendix A (3)(b)(iii), the reference to (3)(b) refers to itself, and suggested revising the reference to (3)(b)(i) and (3)(b)(ii). PHMSA agrees and has made this correction.
SAAMI requests that the language in Appendix paragraph (4)(a) and (4)(b) be revised to clarify that special permit and approval applications are not issued. PHMSA agrees and has made this correction.
This final rule is published under the authority of 49 U.S.C. 5103(b), which authorizes the Secretary to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a) authorizes the Secretary of Transportation to issue a special permit from a regulation prescribed in sections 5103(b), 5104, 5110, or 5112 of the Federal Hazardous Materials Transportation Law to a person transporting, or causing to be transported, hazardous material in a way that achieves a safety level at least equal to the safety level required under the law, or is consistent with the public interest, if a required safety level does not exist. This final rule is also established under the authority of section 33012(a) of MAP-21 (Public Law 112-141, July 6, 2012). Section 33012(a) requires that no later than July 6, 2014, the Secretary of Transportation issue a rulemaking to provide notice and an opportunity for public comment on proposed regulations that establish standard operating procedures (SOPs) to support administration of the special permit and approval programs, and objective criteria to support the evaluation of special permit and approval applications. In this final rule, PHMSA is addressing the provisions in the Act.
This final rule is not considered a significant regulatory action under § 3(f) of Executive Order 12866 and was not
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” Executive Order 13563 supplements and reaffirms the principles governing regulatory review that were established in Executive Order 12866, Regulatory Planning and Review of September 30, 1993. Additionally, Executive Orders 12866, and 13563 require agencies to provide a meaningful opportunity for public participation. Accordingly, PHMSA invited public comment on these considerations at a public meeting held on February 29, 2012 (see Docket No. PHMSA-2011-0283), and in the NPRMs issued on August 12, 2014, and September 12, 2014, under Docket No. PHMSA-2012-0260. PHMSA requested that the public include in its comments any cost or benefit figures or factors, alternative approaches, and relevant scientific, technical and economic data. These comments aided PHMSA in the evaluation of the proposed requirements. PHMSA has since revised our evaluation and analysis to address the public comments received.
In this final rule, PHMSA amends the HMR to incorporate SOPs for processing and issuing special permit and approval applications. Incorporating these provisions into regulations of general applicability will provide shippers and carriers with clarity and flexibility to comply with PHMSA's initial review and, as needed, subsequent renewal or modification process. In addition, the final rule would reduce the paperwork burden on industry and this agency from delays in processing incomplete applications. Taken together, the provisions of this final rule would improve the efficacy of the special permit and approval application and issuance process, which will promote the continued safe transportation of hazardous materials, while reducing transportation costs for the industry and administrative costs for the agency.
While the majority of commenters did not suggest this rulemaking would impose any cost to the regulated community, IME did note costs and benefits change when the procedures and standards change. PHMSA agrees that changes to procedures could impact both cost and benefits, but we reiterate this rulemaking does not change current practices; rather, it simply codifies current operating procedures of the Approval and Permits Division. Therefore, PHMSA does not anticipate increased cost and the impact of this final rule is presumed to be minor. It intends to provide clarity by reducing applicant confusion regarding the special permit and approval application and renewal process, and improve the quality of information and completeness of the application submitted. Although it is difficult to quantify the savings, many special permits and approvals have economically impacted companies by improving the efficiency and safety of their operations in a manner that meets or exceeds the requirements prescribed in the HMR. Some examples of positive economic impacts include allowing the use of less expensive non-specification packages, reducing the number of tasks, or other methods that reduce costs incurred before the approval or special permit is issued. As a result, PHMSA calculates that this final rule does not impose any costs on industry. Although a slight reduction in the costs associated with processing delays may provide nominal benefits, generally, this final rule affects only agency procedures; therefore, we assume no change in current industry costs or benefits.
This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule would preempt state, local and Indian tribe requirements but does not propose any regulation that has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision (49 U.S.C. 5125(b)) preempting state, local and Indian tribe requirements on certain covered subjects. The covered subjects are:
(1) The designation, description, and classification of hazardous materials;
(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;
(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials; and
(5) The designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.
This final rule addresses covered subject items (1), (2), (3), and (5) and would preempt any State, local, or Indian tribe requirements not meeting the “substantively the same” standard. 49 U.S.C. 5125(b)(2) states that if PHMSA issues a regulation concerning any of the covered subjects, it must determine and publish, in the
This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications and does not impose substantial direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply.
The Regulatory Flexibility Act (5 U.S.C. 601
The Institute of Makers of Explosives (IME) stated the majority of its members are small businesses and the following: (1) Classification approvals are also the basis for obtaining authorization from foreign competent authorities to transport explosive products abroad, (2) criteria PHMSA uses for determining a company's fitness to carry out the terms of a special permit or approval can have profound implications for the ability of the commercial explosives industry to continue to do business in the United States, (3) differences between past SOPs PHMSA posted on line and the ones approved under this rulemaking may result in costs and benefits not currently assigned to this rulemaking, and (4) backlogs in processing special permit and approval applications adversely affect U.S. competitiveness. However, the IME did not provide any cost information to quantify the possible effects the SOP guidance proposed in the NPRM would have on its industry.
PHMSA's SOPs for special permits and approvals serve as internal administrative guidance to help its staff properly process these applications, reduce delays, and accommodate changes to automated systems, database availability, and DOT and PHMSA directives. PHMSA recognizes the financial impact special permits and approvals have on industry processes. As mentioned earlier in this preamble, risks associated with hazardous materials and the potential for severe consequences to the public and environment, if they are improperly transported, require that PHMSA must not authorize permission to transport these materials in a manner not permitted under the HMR until PHMSA ensures that the actions requested and the persons performing these actions are safe. In response to requests from commenters, including the IME, PHMSA revised the SOPs in this final rule for clarity, and to include activities for applicant review that are statistically revealed to be greater indicators of their safe performance in transportation. In addition, PHMSA committed to investigate opportunities to improve its special permit and approval application review processes in the future, as these opportunities become available to the agency. Therefore, we certify that this final rule will not have a significant economic impact on a substantial number of small entities.
This final rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered.
PHMSA has analyzed this final rule in accordance with the Paperwork Reduction Act of 1995 (PRA). The PRA requires federal agencies to minimize the paperwork burden imposed on the American public by ensuring maximum utility and quality of federal information, ensuring the use of information technology to improve government performance, and improving the federal government's accountability for managing information collection activities. This final rule's benefits include reducing applicant confusion about the special permit and approval application and renewal processes; improving the quality of information and completeness of applications submitted; and improving applicant processing times. This final rule does not impose any additional costs on industry. Although a slight reduction in the costs associated with processing delays may provide nominal benefits, generally, this final rule affects only agency procedures; therefore, this final rule contains no new information collection requirements subject to the PRA. Further, this final rule does not include new reporting or recordkeeping requirements.
As stated earlier in this preamble, PHMSA is not aware of any information collection and recordkeeping burdens for the hazardous materials industry associated with the requirements proposed in this rulemaking. Thus, PHMSA has not prepared an information collection document for this rulemaking and did not assess its potential information collection costs. However, if any regulated entities determine they will incur information and recordkeeping costs as a result of this final rule, if information on this matter should become available, or if commenters have questions concerning information collection on this final rule, PHMSA requests that they provide comments on the possible burden developing, implementing, and maintaining records and information these requirements may impose on businesses applying for a special permit or approval. Please direct your comments or questions to Steven Andrews or T. Glenn Foster, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, Telephone (202) 366-8553.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document may be used to cross-reference this action with the Unified Agenda.
This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more to either state, local or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the proposed rule.
The National Environmental Policy Act, 42 U.S.C. 4321-4375, requires that federal agencies analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations require federal agencies to conduct an environmental review considering the need for the proposed action, alternatives to the proposed action, probable environmental impacts of the proposed action and alternatives, and the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).
This final rule revises the HMR to include the standard operating procedures and criteria used to evaluate applications for special permits and approvals. This rulemaking also provides clarity for the applicant as to what conditions need to be satisfied to promote completeness of the applications submitted.
Hazardous materials are capable of affecting human health and the environment if a release were to occur.
The purpose and need of this final rule is to establish criteria for evaluating applications for approvals and special permits based on the HMR, including assessing an applicant's ability to operate under the approval or special permit. More information about benefits of this final rule can be found in the preamble to this final rule. The alternatives considered in the analysis include: (1) The proposed action, that is, incorporation of SOPs to evaluate applications for approvals and special permits based on the HMR, including assessing an applicant's ability to operate under the approval or special permit into the HMR; and (2) incorporation of some subset of these proposed requirements (
We proposed clarifications to certain HMR requirements to include those methods for assessing the ability of new special permit and approval applicants, and those applying for renewals of special permits and approvals, to perform the tasks they have requested for transporting hazardous materials. The process through which special permits and approvals are evaluated requires the applicant to demonstrate that the requested approval, the alternative transportation method, or proposed packaging provides an equivalent level of safety as that for activities and packagings authorized under the HMR. Implicit in this process is that the special permit or approval must provide an equivalent level of environmental protection as that provided in the HMR or demonstrate an alternative consistent with the public interest that will adequately protect against the risks to life and property inherent in the transportation of hazardous materials. Thus, incorporating SOPs to assess the performance capability of special permit and approval applicants should maintain or exceed the existing environmental protections built into the HMR.
The changes proposed in the NPRM were designed to promote clarity and ease of the administration of special permits and approvals during the application review process. Since these changes may make it easier for special permit and approval applicants to successfully apply to PHMSA for authorized variances from the HMR, incorporation of the special permit and approval SOPs into the HMR may result in an increased number of applicants transporting hazardous materials under these types of variances. Because PHMSA will have determined the shipping methods authorized under these new variances to be at least equal to the safety level required under the HMR or, if a required safety level does not exist, consistent with the public interest, PHMSA expects that these additional shipments will not result in associated environmental impacts. Incorporating only some of these changes will help to obscure the informational requirements of the special permit and approval application process, confuse the regulated public by providing a partial understanding of the information needed to submit a complete special permit or approval application, and possibly further delay application review times. PHMSA does not recommend this alternative.
If no action is taken, then special permit and approval applicants will continue to be assessed in the same manner as they are today. This will result in no change to the current potential effects to the environment, but will also not provide the applicant with information needed to improve its application processing time within PHMSA. Further, it may negatively impact transportation in commerce by not making innovative and safe transportation alternatives more easily available to the hazmat industry. PHMSA does not recommend this alternative.
PHMSA solicited comments about potential environmental impacts associated with the NPRM from other agencies, stakeholders, and citizens. None of the respondents commented on the potential environmental impacts of this rule.
The provisions of this rule build on current regulatory requirements to enhance the transportation safety of hazardous materials transported by all modes. PHMSA has calculated that this rulemaking will not impact the current risk of release of hazardous materials into the environment. Therefore, PHMSA finds that there are no significant environmental impacts associated with this final rule.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenters provide, to
Under Executive Order 13609, agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary, or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of the final rule to ensure that it does not cause unnecessary obstacles to foreign trade. Accordingly, this final rule is consistent with E.O. 13609 and PHMSA's obligations.
In § 105.5, we revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR.
In § 107.1, we revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR. In addition, we amend the HMR for clarity to add new definitions for “applicant fitness,” “fit or fitness,” “fitness coordinator,” “insufficient corrective action,” and “sufficient corrective action.”
In § 107.113, we revise paragraph (a) to state that the Associate Administrator will review all special permit applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.
In § 107.117, we revise paragraph (e) to state that the Associate Administrator will review all emergency special permit applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.
In § 107.705, we revise paragraph (b) for clarity to state that the information the applicant provides in an approval application must be relevant to the approval request.
In § 107.709, we revise paragraph (b) to state that the Associate Administrator will review all approval applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.
In 49 CFR part 107, we amend the HMR to add new Appendix A to incorporate PHMSA's existing standard operating procedures for processing special permits and approval applications. The words “fitness evaluation” and “fitness review” in 3(b)(i) are replaced for clarity with the words “safety profile evaluation” and “safety profile review,” respectively. The title and words “safety profile review” in 3(b)(ii) are replaced for clarity with “safety profile evaluation.” Further, in response to comments we clarify these procedures by revising them from four to five phases and define them as consisting of: Completeness,
In § 171.8, we revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR. In addition, we add language to the “Automated review” and “Safety profile review” sections of the SOPs to clarify that special permit and approval applications that undergo review by an Operating Administration (OA) will complete this review before they undergo an automated review, and that an OA review, depending on its completeness, may negate the need for the automated review, respectively.
Administrative practice and procedure, Hazardous materials transportation, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Hazardous materials transportation, Penalties, Reporting and recordkeeping requirements.
Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements.
In consideration of the foregoing, we are amending 49 CFR chapter I as follows:
49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.
49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-121 sections 212-213; Pub. L. 104-134 section 31001; Pub. L. 112-141 section 33006, 33010; 49 CFR 1.81 and 1.97.
The additions and revisions read as follows:
(a) The Associate Administrator reviews an application for a special permit, modification of a special permit, party to a special permit, or renewal of a special permit in conformance with the standard operating procedures specified in appendix A of this part (“Standard Operating Procedures for Special Permits and Approvals”) to determine if it is complete and conforms with the requirements of this subpart. This determination will typically be made within 30 days of receipt of the application for a special permit, modification of a special permit, or party to a special permit, and typically within 15 days of receipt of an application for renewal of a special permit. If an application is determined to be incomplete, the Associate Administrator may reject the application. If that occurs, PHMSA will inform the applicant of the deficiency in writing.
(e) Upon receipt of all information necessary to process the application, the receiving Department official transmits to the Associate Administrator, by the most rapidly available means of communication, an evaluation as to whether an emergency exists under § 107.117(a) and, if appropriate, recommendations as to the conditions to be included in the special permit. The Associate Administrator will review an application for emergency processing of a special permit in conformance with the standard operating procedures specified in appendix A of this part (“Standard Operating Procedures for Special Permits and Approvals”) to determine if it is complete and conforms with the requirements of this subpart. If the Associate Administrator determines that an emergency exists under § 107.117(a) and that, with reference to the criteria of § 107.113(f), granting of the application is in the public interest, the Associate Administrator will grant the application subject to such terms as necessary and immediately notify the applicant. If the Associate Administrator determines that an emergency does not exist or that granting of the application is not in the public interest, the applicant will be notified immediately.
(b)
(b) The Associate Administrator will review an application for an approval,
This appendix sets forth the standard operating procedures (SOPs) for processing an application for a special permit or an approval in conformance with 49 CFR parts 107 and 171 through 180. It is to be used by PHMSA for the internal management of its special permit and approval programs.
The words “special permit” and “approval” are defined in § 107.1. PHMSA receives applications for: (1) Designation as an approval or certification agency, (2) a new special permit or approval, renewal or modification of an existing special permit or an existing approval, (3) granting of party status to an existing special permit, and (4) in conformance with § 107.117, emergency processing for a special permit. Depending on the type of application, the SOP review process includes several phases, such as Completeness, Publication, Evaluation, and Disposition.
An approval for assessing an applicant's ability to perform a function that does not involve classifying a hazardous material is described as a non-classification approval and certifies that: An approval holder is qualified to requalify, repair, rebuild, and/or manufacture cylinders stipulated in the HMR; an agency is qualified to perform inspections and other functions outlined in an approval and the HMR; an approval holder is providing an equivalent level of safety or safety that is consistent with the public interest in the transportation of hazardous materials outlined in the approval; and a radioactive package design or material classification fully complies with applicable domestic or international regulations. An approval for assessing the hazard class of a material is described as a classification approval and certifies that explosives, fireworks, chemical oxygen generators, self-reactive materials, and organic peroxides have been classed for manufacturing and/or transportation based on requirements stipulated in the HMR. Registration approvals include the issuance of a unique identification number used solely as an identifier or in conjunction with approval holder's name and address, or the issuance of a registration number that is evidence the approval holder is qualified to perform an HMR-authorized function, such as visually requalifying cylinders. This appendix does not include registrations issued under 49 CFR part 107, subpart G.
1.
Emergency special permit applications must comply with all the requirements prescribed in § 107.105 for a special permit application, and contain sufficient information to determine that the applicant's request for emergency processing is justified under the conditions prescribed in § 107.117.
2.
3.
(a)
(b)
(i)
(1) The trigger events are listed in the following table:
(2) If an applicant is acting as an interstate carrier of hazardous materials under the terms of the special permit, they will be screened in an automated manner based upon criteria established by FMCSA, such as that contained in its Safety and Fitness Electronic Records (SAFER) system, which consists of interstate carrier data, several states' intrastate data, interstate vehicle registration data, and may include operational data such as inspections and crashes.
(ii)
(iii)
(
(
(
(B) If, during an inspection, the PHMSA investigator or a representative of the Department finds evidence in the four years prior to submitting its application that an applicant has not implemented sufficient corrective actions for prior violations, or is at risk of being unable to comply with the terms of an application for a special permit or approval, an existing special permit or approval, or the HMR, then PHMSA will determine that the applicant is unfit to conduct the activities requested in an application or authorized special permit or approval.
4.
(b)
(1) An “EX” approval number for classifying an explosive (including fireworks;
(2) A “RIN” (requalification identification number) to uniquely identify a cylinder requalification, repair, or rebuilding facility (see § 180.203);
(3) A “VIN” (visual identification number) to uniquely identify a facility that performs an internal or external visual inspection, or both, of a cylinder in conformance with 49 CFR part 180, subpart C, or applicable CGA Pamphlet or HMR provision;
(4) An “M” number for identifying packaging manufacturers (see § 178.3); or
(5) A “CA” (competent authority) for general approvals (see §§ 107.705, 173.185, and 173.230).
(c)
(d)
(2)
49 U.S.C. 5101-5128, 44701; Pub. L. 101-410, section 4 (28 U.S.C. 2461 note); Pub. L. 104-121, sections 212-213; Pub. L. 104-134, section 31001; 49 CFR 1.81 and 1.97.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of a closure.
NMFS is opening directed fishing for Pacific cod by catcher/processors using trawl gear in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to fully use the 2015 total allowable catch apportioned to catcher/processors using trawl gear in the Western Regulatory Area of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), September 6, 2015, through 1200 hours, A.l.t., December 31, 2015. Comments must be received at the following address no later than 4:30 p.m., A.l.t., September 21, 2015.
You may submit comments on this document, identified by NOAA-NMFS-2014-0118, by any of the following methods:
•
•
Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.
NMFS closed directed fishing for Pacific cod by catcher/processors using trawl gear in the Western Regulatory Area of the GOA under § 679.20(d)(1)(iii) on January 1 pursuant to the final 2015 and 2016 harvest specifications for groundfish of the Gulf of Alaska (80 FR 10250, February 25, 2015).
NMFS has determined that as of September 2, 2015, approximately 463 metric tons of Pacific cod remain in the 2015 Pacific cod apportionment for catcher/processors using trawl gear in the Western Regulatory Area of the GOA. Therefore, in accordance with
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for Pacific cod by catcher/processors using trawl gear in the Western Regulatory Area of the GOA. NMFS was unable to publish notification providing time for public comment because the most recent, relevant data only became available as of September 2, 2015.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by catcher/processors using trawl gear in the Western Regulatory Area of the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until September 21, 2015.
This action is required by § 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Food Safety and Inspection Service, USDA.
Proposed rule; correction.
This document corrects the preamble to a proposed rule published in the
Daniel L. Engeljohn, Ph.D., 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; Fax (202) 720-2025.
On June 10, 2013, FSIS issued a proposed rule entitled “Descriptive Designation for Needle- or Blade-Tenderized (Mechanically Tenderized) Beef Products.” FR Doc. No. 2013-13669; 78 FR 34589-34604. Within the abstract of the Paperwork Reduction Act section of the preamble to the proposed rule (FR 34603), FSIS inadvertently included the phrase “that do not fall under a regulatory standard of identity” when characterizing which products would be subject to the rule.
When read as a whole, it is clear that this phrase within the Paperwork Reduction Act section of the preamble was made in error. In no other section of the preamble or in the proposed text of the rule did FSIS make such a statement. Additionally, the remainder of that section of the preamble, as well as the Information Collection Request that FSIS submitted to the Office of Management and Budget accounted for raw or partially cooked needle- or blade-tenderized beef products regardless of whether they fall under a regulatory standard of identity. Moreover, the final rule that FSIS published on May 18, 2015 (80 FR 28153), did not exempt any raw or partially cooked mechanically tenderized products that fall under a regulatory standard of identity from its provisions. FSIS is therefore correcting the clerical error in the proposed rule's Paperwork Reduction Act section.
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).
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce it on-line through the FSIS Web page located at:
FSIS also will make copies of this
In the proposed rule, entitled Descriptive Designation for Needle- or Blade-Tenderized (Mechanically Tenderized) Beef Products (FR Doc. No. 2013-13669), beginning on page 34589 in the issue of Monday, June 10, 2013, make the following correction in the Paperwork Reduction Act section.
On page 34603, in the second column, remove “, that do not fall under a regulatory standard of identity.” and add a period after “solution”.
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notice of public meetings.
The U.S. Department of Energy (DOE) announces public meetings and webinars for the Walk-in Cooler and Freezer Refrigeration Systems Working Group. The Federal Advisory Committee Act requires that agencies publish notice of an advisory committee meeting in the
See
The meetings will be held at U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW., Washington, DC 20585 unless otherwise stated.
Ms. Ashley Armstrong U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-4563. Email:
Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9496. Email:
DOE will host public meetings and webinars on the below dates. Meetings will be hosted in room 8E-089 at DOE's Forrestal Building, unless otherwise stated.
The content of the public meetings will be limited to the items specified below:
• Proposed energy conservation standards for the two walk-in cooler and freezer equipment classes applicable to multiplex condensing refrigeration systems operating at medium and low temperatures and the four walk-in cooler and freezer equipment classes applicable to dedicated condensing refrigeration systems operating at low temperatures. See 10 CFR 431.306(e); and
• As part of the analysis considered underlying the proposed energy conservation standards mentioned, DOE will consider any comments (including any accompanying data) regarding the potential impacts of these six proposed standards on installers.
U.S. Department of Energy, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, Room 8E-089. Individuals will also have the opportunity to participate by webinar. To register for the webinar and receive call-in information, please register
Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email
Due to the REAL ID Act implemented by the Department of Homeland Security (DHS) recent changes have been made regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required.
DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, Louisiana, New York, American Samoa, Maine, Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.
Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); A military ID or other Federal government issued Photo-ID card.
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notice of public meetings.
The U.S. Department of Energy (DOE) announces public meetings and webinars for the Central Air Conditioners and Heat Pumps Working Group. The Federal Advisory Committee Act requires that agencies publish notice of an advisory committee meeting in the
See
The meetings will be held at U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW., Washington, DC 20585 unless otherwise stated.
Mr. Tony Bouza, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-4653. Email:
Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9496. Email:
DOE will host public meetings and webinars on the below dates from 9:00 a.m. to 5:00 p.m. Meetings will be hosted at DOE's Forrestal Building, Room 8E-089, unless otherwise stated.
The purpose of the September 10, 2015 meeting will be to discuss the content included in the proposed 10 CFR part 430, subpart B, App M1 and can be viewed here:
U.S. Department of Energy, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, Room 8E-089. Individuals will also have the opportunity to participate by webinar. To register for the webinar and receive call-in information, please register
Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email
Due to the REAL ID Act implemented by the Department of Homeland Security (DHS) recent changes have been made regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required.
DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, Louisiana, New York, American Samoa, Maine, Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.
Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); A military ID or other Federal government issued Photo-ID card.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to expand the restricted airspace at Chincoteague Inlet, VA, to support the National Aeronautics and Space Administration's (NASA) Wallops Island Flight Facility requirements. The proposed expansion would add 3 new restricted areas, designated R-6604C, R-6604D, and R-6604E. Additionally, a minor change would be made to 2 points in the boundary of existing area R-6604A to match the updated 3 nautical mile (NM) line from the shoreline of the United States (U.S.) as provided by the National Oceanic and Atmospheric Administration (NOAA).
Comments must be received on or before October 26, 2015.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; telephone: (202) 366-9826. You must identify FAA Docket No. FAA-2015-2776 and Airspace Docket No. 15-AEA-5, at the beginning of your comments. You may also submit comments through the Internet at
Paul Gallant, Airspace Policy and Regulations Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitile VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish restricted airspace at Wallops Island, VA, to contain activities deemed hazardous to nonparticipating aircraft.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2015-2776 and Airspace Docket No. 15-AEA-5) and be submitted in triplicate to the Docket Management System (see
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2015-2776 and Airspace Docket No. 15-AEA-5.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person at the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to 14 CFR part 73 to establish three new restricted areas, designated R-6604C, R-6604D and R-6604E, at the NASA Wallops Island Flight Facility in Virginia. The new areas would abut the existing restricted areas (R-6604A and R-6604B) and be used to contain a wide variety of test activities deemed to pose a hazard to nonparticipating aircraft. These activities include, but are not limited to, high-risk test profiles by heavily modified test aircraft, testing of emitters that could induce harmful electromagnetic interference effects on nonparticipating aircraft, non-eye-safe laser firings, and external stores separation testing. The following is a general description of the proposed areas.
R-6604C would overlie the Wallops Flight Facility airfield and would be contained entirely within the Wallops Flight Facility property boundary. It would extend from the surface up to 3,500 feet mean sea level (MSL).
R-6604D would extend from 100 feet above ground level (AGL) up to 3,500 feet MSL. It would be located between the western boundary of R-6604B and VOR Federal airway V-139 and would also extend approximately 15 NM to the northeast of the R-6604A/R-6604B northern boundary.
R-6604E would extend from 700 feet AGL up to 3,500 feet MSL. It would be located between the western boundaries of R-6604A and R-6604B and VOR Federal airway V-139.
All 3 of the proposed new areas would be activated by the issuance of a Notice to Airmen (NOTAM). Specific times of designation were not proposed for R-6604C, D and E due to the variable nature of test programs.
In addition to the above, 2 points in the boundary of R-6604A that intersect a line 3 NM from the shoreline of the U.S. shoreline would be adjusted to reflect NOAA's updated calculation of the U.S. shoreline.
The configuration of the proposed restricted areas was designed to allow for activation of only that portion of the complex required for the specific test profile being conducted. As is the current practice with R-6604A and R-6604B, when the proposed restricted areas are not required by the using agency, the airspace would be returned to the controlling agency for access by other aviation users.
Note that the existing areas (R-6604A and R-6604B) will continue to be used, as in the past, for missile and rocket launches, aircraft systems development, expendable launch vehicles, lasers, RPV, and other test programs.
Color charts showing the location of the proposed restricted areas will be posted on the internet at
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current.
Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subjected to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.
Airspace, Prohibited areas, Restricted areas.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 73 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
By removing the current boundaries and inserting the following in its place:
Food and Drug Administration, HHS.
Proposed rule; notification.
The Food and Drug Administration (FDA or we) is announcing the availability of certain documents to update the administrative docket of the proposed rule to amend FDA's labeling regulations for conventional foods and dietary supplements to provide updated nutrition information on the Nutrition Facts and Supplement Facts labels to assist consumers in maintaining healthy dietary practices.
We are extending the comment period that was scheduled to close on September 25, 2015, until October 13, 2015.
You may submit comments by any of the following methods:
Submit electronic comments in the following way:
•
Submit written submissions in the following ways:
•
Serena Lo, Center for Food Safety and Applied Nutrition (HFS-830), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-2488, email:
In the
We have received some comments suggesting we are not eliciting comment on the consumer studies in the supplemental proposal published in July 2015. We clarify in this notice that: (1) The consumer studies on the added sugars declaration and the alternative footnote statements in the supplemental proposal relate to topics on which we sought comment and (2) the consumer studies on the format published in a separate notice in July 2015 were included for comment, and were placed in the docket at that time. We are now responding to additional requests for the raw data for each of these consumer studies that are relevant to the summary memoranda for the studies, also now available for comment.
We are updating the docket for the rulemaking with two additional documents: A request from the Grocery Manufacturers Association for the raw data associated with the four consumer studies described in this document, and our response to that request indicating that we will provide the raw data underlying the four consumer studies to anyone who submits a request to
These documents may be seen by interested persons at the Division of Dockets Management, Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday, and are available electronically at
In addition, we are extending to October 13, 2015, the comment period on the two consumer studies pertaining to proposed changes to the Nutrition Facts label formats, which had been scheduled to close on September 25, 2015, to align the comment periods for all consumer studies.
We will continue to take comment on the supplemental proposed rule, including taking comment on the consumer studies on added sugars and the footnote, until October 13, 2015.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations relating to a tax on United States citizens and residents who receive gifts or bequests from certain individuals who relinquished United States citizenship or ceased to be lawful permanent residents of the United States on or after June 17, 2008. These proposed regulations affect taxpayers who receive covered gifts or covered bequests on or after the date these regulations are published as final regulations in the
Written or electronic comments must be received by December 9, 2015. Requests to speak and outlines of topics to be discussed at the public hearing scheduled for January 6, 2016, at 10 a.m., must be received by December 9, 2015.
Send submissions to CC:PA:LPD:PR (REG-112997-10), Room 5205, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-112997-10), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC; or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Karlene Lesho or Leslie Finlow at (202) 317-6859; concerning the submission of comments, the public hearing, or to be placed on the building access list to attend the hearing, Oluwafunmilayo Taylor at (202) 317-6901 (not toll-free numbers) or email at
The collections of information contained in this notice of proposed rulemaking have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, and to Clearance Officer, SE:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by November 9, 2015. Comments are specifically requested concerning:
Whether the proposed collections of information are necessary for the proper performance of IRS functions, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collections of information;
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collections of information may be minimized, including through the application of automated collection
Estimates of capital or start-up costs of operation, maintenance, and purchase of services to provide information.
The collections of information in these proposed regulations are in §§ 28.2801-4(e), 28.2801-5(d), 28.6001-1, and 28.6011-1. The collection of information requirement in proposed regulation § 28.2801-4(e) is required in order for the IRS to verify that the U.S. person who received a covered gift or covered bequest is entitled to a reduction in the section 2801 tax for certain foreign taxes paid on the transfer and, if so, the amount of such reduction. The collection of information is mandatory to obtain a benefit. The likely respondents are individuals, domestic trusts, and foreign trusts electing to be treated as domestic trusts.
The collection of information in § 28.2801-5(d) is required to notify the IRS and the U.S. persons who are beneficiaries of a foreign trust that the trust is electing to be treated as a domestic trust for purposes of section 2801. It is also required for the IRS to verify the proper amount of section 2801 tax due and to notify the beneficiaries who are U.S. citizens or residents in the event the election terminates. This alerts the IRS and the U.S. citizens and residents who are beneficiaries that the trust will be liable for payment of the section 2801 tax while the election is in effect, but that the U.S. beneficiaries will be liable for the tax if and when the election terminates. This collection of information is necessary for the proper performance of IRS functions in the collection of the section 2801 tax. This collection of information is mandatory to obtain a benefit. The likely respondents are the trustees of foreign trusts.
The collection of information in § 28.6001-1 is required for the IRS to verify the books and records pertaining to covered gifts and covered bequests and for the proper performance of IRS functions in the collection of the section 2801 tax. It is also required to verify the receipt of covered gifts and covered bequests by U.S. persons and the value of such gifts and bequests. This collection of information is mandatory. The likely respondents are individuals and trustees of trusts.
The collection of information in § 28.6011-1 is required for the IRS to verify the receipt of a covered gift or covered bequest and other information relevant to the tax imposed under section 2801. This collection of information is necessary for the proper performance of IRS functions in the collection of the section 2801 tax. This collection of information is mandatory. The likely respondents are individuals and trustees of trusts.
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 the Office of Management and Budget.
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.
Section 301 of the Heroes Earnings Assistance and Relief Tax Act of 2008, Public Law 110-245 (122 Stat. 1624) (the HEART Act), added new section 877A to subtitle A of the Internal Revenue Code (Code), and new chapter 15 and new section 2801 to subtitle B, effective June 17, 2008. Prior to the addition of chapter 15, subtitle B contained chapters 11 through 14 relating to the estate tax, the gift tax, the generation-skipping transfer tax, and special valuation rules for purposes of subtitle B. New chapter 15 consists solely of section 2801.
Prior to the enactment of the HEART Act, citizens and long-term residents of the United States who expatriated to avoid U.S. taxes were subject to an alternative regime of U.S. income, estate, and gift taxes under sections 877, 2107, and 2501, respectively, for a period of 10 years following expatriation. Recognizing that citizens and residents of the United States generally are subject to estate tax on their world-wide assets at the time of death, Congress determined that it was appropriate, in the interests of tax equity, to impose a tax on U.S. citizens or residents who receive, from an expatriate, a transfer that would otherwise have escaped U.S. estate and/or gift taxes as a consequence of expatriation.
In an explanation of an earlier bill also proposing enactment of new chapter 15 and section 2801, the Report of the House Ways and Means Committee states that citizens and long-term residents of the United States have a right to physically leave the United States and relinquish their citizenship or terminate their residency. See H.R. Rep. No. 110-431 (2007). The Report states that the Committee believed that the Code should not be used to discourage individuals from relinquishing citizenship or terminating residency. At the same time, however, the Report states that the Code should not reward individuals who leave the United States. The Report concludes that an individual's decision to relinquish citizenship or terminate long-term residency should not affect the total amount of taxes imposed (that is, it should be “tax neutral”). The Report further states that, where U.S. estate or gift taxes are avoided with respect to a transfer of property to a U.S. person by reason of the expatriation of the donor, it is appropriate for the recipient to be subject to a tax similar to the donor's avoided transfer taxes.
With the enactment of sections 877A and 2801, sections 877 and 2107 apply only to individuals who relinquished United States citizenship or ceased to be lawful permanent residents prior to June 17, 2008. Section 2501 generally continues to apply to any individual, resident or nonresident, including individuals who expatriate, whether or not on or after June 17, 2008. Section 2501(a)(3) and (a)(5), however, provides special rules for expatriates subject to section 877(b), which are not applicable to individuals who expatriate on or after June 17, 2008.
Section 2801 imposes a tax (section 2801 tax) on covered gifts and covered bequests received by a citizen or resident of the United States (U.S. citizen or resident) from a covered expatriate. The section 2801 tax applies with regard to any property transferred to a U.S. citizen or resident which qualifies as a covered gift or covered bequest under section 2801, regardless of whether the property transferred was acquired by the donor or decedent covered expatriate before or after expatriation.
The value of a covered gift or covered bequest is its fair market value at the time the gift or bequest is received by the U.S. citizen or resident. A U.S. citizen or resident receiving a covered gift or covered bequest (U.S. recipient) is liable for payment of the section 2801 tax imposed under this chapter. A domestic trust that receives a covered gift or covered bequest is treated as a U.S. citizen and therefore is liable for payment of the section 2801 tax. A foreign trust may elect to be treated as a domestic trust (an electing foreign trust) for this purpose; absent this election, the trust's U.S. citizen or resident beneficiaries will be taxed as distributions are made from the trust (a non-electing foreign trust).
On July 20, 2009, the Treasury Department and the IRS issued Announcement 2009-57, 2009-29 I.R.B. 158. Announcement 2009-57 put taxpayers on notice that any covered gift or covered bequest received on or after June 17, 2008, is subject to the imposition of the section 2801 tax. Announcement 2009-57 states that the IRS intends to issue guidance under section 2801 and that the due date for reporting, filing, and payment of the tax imposed under section 2801 will be included in the guidance. The announcement further provides that the guidance the IRS intends to issue will provide a reasonable period of time between the date of issuance of the guidance and the date prescribed for the filing of the return and the payment of the tax.
On October 15, 2009, the Treasury Department and the IRS released Notice 2009-85, 2009-45 I.R.B. 598. Notice 2009-85 generally provides guidance for individuals who are subject to section 877A (added to the Code together with section 2801). With respect to gifts and bequests, section 9 of Notice 2009-85 provides that gifts or bequests from a covered expatriate on or after June 17, 2008, are subject to a transfer tax under new section 2801. Section 9 of Notice 2009-85 further provides that satisfaction of the reporting and tax obligations under section 2801 for covered gifts or covered bequests received on or after June 17, 2008, is deferred pending the issuance of separate guidance by the IRS.
The proposed regulations amend title 26 of the Code of Federal Regulations by adding part 28 (Imposition of Tax on Gifts and Bequests from Covered Expatriates) under new section 2801 of the Code. The proposed regulations are divided into seven sections.
Section 28.2801-1 of the proposed regulations sets forth the general rules of liability for the tax imposed by section 2801(a). Section 2801 imposes a tax on United States citizens or residents who receive, directly or indirectly, covered gifts or covered bequests (including distributions from foreign trusts attributable to covered gifts and covered bequests) from a covered expatriate. For purposes of section 2801, domestic trusts and foreign trusts electing to be treated as domestic trusts are treated in the same manner as U.S. citizens.
Section 28.2801-2 of the proposed regulations defines terms for purposes of new chapter 15. The proposed regulations define the term “citizen or resident of the United States” as an individual who is a citizen or resident of the United States under the estate and gift tax rules of chapter 11 and chapter 12, respectively, in subtitle B of the Code. Accordingly, whether an individual is a “resident” is based on domicile in the United States, notwithstanding that section 877A adopts the income tax definition of that term. The Treasury Department and the IRS believe that, because section 2801 imposes a tax subject to subtitle B, the tax definition of resident under subtitle B generally should apply for purposes of section 2801. See §§ 20.0-1(b)(1) and 25.2501-1(b).
The proposed regulations generally define the term “covered gift” by reference to the definition of gift for purposes of chapter 12 of subtitle B. The proposed regulations define the term “covered bequest” as any property acquired directly or indirectly because of the death of a covered expatriate. Such property generally is property that would have been includible in the gross estate of the covered expatriate under chapter 11 of subtitle B, had the covered expatriate been a U.S. citizen or resident at the time of death.
Section 2801 defines “covered expatriate” by reference to the section 877A(g)(1) definition of that term. Section 877A(g)(1) generally provides that an individual who expatriates on or after June 17, 2008, is a covered expatriate if, on the expatriation date, (1) the individual's average annual net income tax liability is greater than $124,000 (indexed for inflation) for the previous five taxable years, (2) the individual's net worth is at least $2,000,000 (not indexed), or (3) the individual fails to certify under penalty of perjury that he or she has complied with all U.S. tax obligations for the five preceding taxable years. See section 877A(g)(1); Notice 2009-85, 2009-45 I.R.B. 598. The proposed regulations provide that, if an expatriate meets the definition of a covered expatriate, the expatriate is considered a covered expatriate for purposes of section 2801 at all times after the expatriation date, except during any period beginning after the expatriation date during which such individual is subject to United States estate or gift tax as a U.S. citizen or resident.
Additionally, the proposed regulations define for purposes of section 2801 the terms “domestic trust,” “foreign trust,” “electing foreign trust,” “U.S. recipient,” “power of appointment,” and “indirect acquisition of property.”
Section 28.2801-3 addresses the rules in section 2801(e) and includes rules and several exceptions applicable to the definitions of covered gift and covered bequest. Exceptions include taxable gifts reported on a covered expatriate's timely filed gift tax return, and property included in the covered expatriate's gross estate and reported on such expatriate's timely filed estate tax return, provided that the gift or estate tax due is timely paid. Qualified disclaimers of property made by a covered expatriate are excepted from the definitions of a covered gift and covered bequest. In addition, charitable donations that would qualify for the estate or gift tax charitable deduction are excepted from the terms “covered gift” and “covered bequest.”
Section 28.2801-3(c)(4) provides that a gift or bequest to a covered expatriate's U.S. citizen spouse is excepted from the terms “covered gift” and “covered bequest” if the gift or bequest, if given by a U.S. citizen or resident, would qualify for the gift or estate tax marital deduction. In the case of a gift or bequest in trust, this means that, to the extent the gift or bequest to the trust (or to a separate share of the trust) would qualify for the estate or gift tax marital deduction, the gift or bequest is not a covered gift or covered bequest. A gift or bequest of a partial or terminable interest in property that a covered expatriate makes to his or her spouse is excepted from the definitions of a covered gift and covered bequest only to the extent that such gift or bequest is qualified terminable interest property (QTIP), as defined in section 2523(f) or section 2056(b)(7), and a valid QTIP election is made. To the extent a covered gift or covered bequest is made to a non-electing foreign trust (or to a separate share of such a trust), a distribution from the trust (or from the
Section 28.2801-3(d) provides rules to implement section 2801(e)(4) regarding covered gifts and covered bequests made in trust, including transfers of property in trust that are subject to a general power of appointment granted by the covered expatriate. In identifying the recipient of such covered gifts and covered bequests made in trust, the proposed regulations do not adopt the gift tax rule of treating the trust beneficiary or holder of an immediate right to withdraw the property as the recipient of that property. Instead, for purposes of section 2801, the proposed regulations treat transfers in trust that constitute covered gifts and covered bequests as transfers to the trust, to be taxed under the rules in section 2801(e)(4). Specifically, the proposed regulations provide that, if a covered expatriate makes a transfer in trust and such transfer is a covered gift or covered bequest, the transfer is treated as a covered gift or covered bequest to the trust, without regard to the beneficial interests in the trust or whether any person has a general power of appointment or a power of withdrawal over trust property. Under section 2801(e)(4), the transfer to the trust will be taxed either to the trust receiving the covered gift or covered bequest, in the case of a domestic trust or electing foreign trust, or to the U.S. beneficiaries or distributees of a non-electing foreign trust as trust distributions are made.
Section 28.2801-3(e) provides two rules addressing covered gifts and covered bequests arising from powers of appointment. First, consistent with the rules in chapters 11 and 12, the proposed regulations confirm that the exercise, release, or lapse of a covered expatriate's general power of appointment for the benefit of a U.S. citizen or resident is a covered gift or covered bequest. Second, the proposed regulations provide that a covered expatriate's grant of a general power of appointment over property not held in trust is a covered gift or covered bequest to the powerholder as soon as both the power is exercisable and the transfer of the property subject to the power is irrevocable. See also § 28.2801-4(d)(5)(ii). The preceding sentence applies only for purposes of section 2801, and should not be interpreted as having any impact on the determination of whether the grant of a general power of appointment over property not in trust is a completed gift for Federal gift tax purposes, which is a question to be resolved under chapter 12 without regard to this provision.
Section 28.2801-4 provides specific rules regarding who is liable for the payment of the section 2801 tax. Generally, the U.S. citizen or resident who receives the covered gift or covered bequest is liable. Similarly, the proposed regulations provide rules explaining that a domestic trust that receives a covered gift or covered bequest is treated as a U.S. citizen and thus is liable for payment of the section 2801 tax imposed under this section. An electing foreign trust also is treated as a U.S. citizen. See §§ 28.2801-2(b) and 28.2801-5(d). However, a non-electing foreign trust is not liable for the section 2801 tax. Instead, a U.S. citizen or resident who receives a distribution from a non-electing foreign trust is liable for the section 2801 tax on the receipt of that distribution to the extent the distribution is attributable to covered gifts or covered bequests to that trust. Under section 2801(e)(4)(B)(ii), that U.S. citizen or resident may be entitled to a limited deduction under section 164 against income tax for the section 2801 tax paid on the distribution. The deduction is limited to the extent that the section 2801 tax is imposed on that portion of the distribution that is reported in the gross income of the U.S. citizen or resident. Section 28.2801-4(a)(3)(ii) of the proposed regulations describes how to compute that deduction.
Section 28.2801-4(a)(2)(ii) of the proposed regulations provides that, in the case of a domestic trust or an electing foreign trust, the trust's payment of the section 2801 tax for which the trust is liable does not result in a taxable distribution under section 2621 of the Code to any beneficiary of the trust for generation-skipping transfer (GST) tax purposes. This provision is consistent with the GST tax consequences of a trust's payment of tax, which differ depending upon whether the trust or the trust beneficiary is liable for the tax being paid.
Section 28.2801-4(a)(2)(iv) provides a special rule for certain non-electing foreign trusts that become domestic trusts (migrated foreign trusts). A migrated foreign trust will be treated solely for purposes of section 2801 as a domestic trust for the entire year during which the change from foreign trust to domestic trust occurred. The trust must file a timely Form 708 for the year in which the trust becomes a domestic trust and must report and pay the section 2801 tax on all covered gifts and covered bequests received by the trust during the year it becomes a domestic trust as well as on the portion of the trust's value attributable to any covered gifts and covered bequests received by the trust prior to the year in which it becomes a domestic trust determined as of December 31 of the year prior to the year it becomes a domestic trust.
Section 28.2801-4(a)(2)(iii) of the proposed regulations provides rules for charitable remainder trusts (CRTs), as defined in section 664, contributions to which are made by covered expatriates for the benefit of one or more charitable organizations described in section 170(c) and a U.S. citizen or resident other than such a charitable organization (non-charitable U.S. citizen or resident). Section 2801(e)(3) indicates that the value of the charitable organization's remainder interest in a CRT is excluded from the definition of a covered gift or covered bequest. The value of the interest of the non-charitable U.S. citizen or resident in such contributions to the CRT is a covered gift or covered bequest, unless otherwise excluded.
Under section 664, a CRT must be a domestic trust. Accordingly, when a covered expatriate contributes a covered gift or covered bequest to a CRT, the CRT is liable for the payment of the section 2801 tax attributable to the value of the non-charitable U.S. person's interest in the trust. Section 664(d)(1)(B) and (d)(2)(B) and § 1.664-3(a)(4) of the Income Tax Regulations provide that no amount other than the annuity or unitrust amount may be paid “to or for the use of any person other than an organization described under section 170(c).” This rule has been applied in Revenue Ruling 82-128 (1982-2 CB 71) to disqualify a trust as a CRT if the trust could be required to pay estate taxes by reason of the applicable state apportionment statute. Thus, if the CRT's liability for payment of section 2801 tax attributable to the non-charitable recipient's interest in the CRT were to be deemed comparable to the CRT's liability for payment of estate tax,
A CRT's liability for payment of the section 2801 tax is distinguishable from a CRT's liability for payment of estate tax because the section 2801 tax is imposed expressly on the CRT under a federal tax statute, section 2801(e)(4)(A). In addition, the section 2801 tax is imposed on the CRT as a primary obligation of the CRT, rather than an obligation imposed on the CRT for the payment of a liability belonging to or attributable to another taxpayer. Accordingly, a CRT's payment of the section 2801 tax on the portion of each transfer to the CRT that is a covered gift or covered bequest is not a distribution to or for the use of any person within the meaning of section 664(d)(1)(B) and (d)(2)(B), and the CRT's liability for such a payment will not cause the trust to be disqualified as a CRT defined in section 664. The proposed regulations confirm that the charitable remainder interest's share of each transfer to the CRT is not a covered gift or covered bequest and provide the method for computing the net covered gifts and covered bequests that are taxable to the CRT under section 2801.
Section 28.2801-4 of the proposed regulations also provides guidance on how to compute the section 2801 tax. Generally, the section 2801 tax is determined by reducing the total amount of covered gifts and covered bequests received during the calendar year by the section 2801(c) amount, which is the dollar amount of the per-donee exclusion in effect under section 2503(b) for that calendar year ($14,000 in 2015), and then multiplying the net amount by the highest estate or gift tax rate in effect during that calendar year. The reference to section 2503(b) in section 2801 is included solely to provide a dollar amount by which to decrease the U.S. recipient's aggregate covered gifts and covered bequests received during that calendar year to determine the amount subject to the section 2801 tax; section 2801 does not incorporate the substantive rule of section 2503(b) that applies to donors of gifts under chapter 12. The resulting tax then is reduced by any estate or gift tax paid to a foreign country with regard to those transfers. See § 28.2801-4(e).
The value of a covered gift or covered bequest is the fair market value of the property on the date of its receipt by the U.S. citizen or resident. Section 28.2801-4(c) provides that the value of a covered gift is determined by applying the federal gift tax valuation principles under section 2512 and chapter 14 and the corresponding regulations. Similarly, the value of a covered bequest is determined by applying the federal estate tax valuation principles under section 2031 and chapter 14 and the corresponding regulations, but without regard to sections 2032 and 2032A.
The proposed regulations identify the date of the receipt of a covered gift or covered bequest by a U.S. citizen or resident. See § 28.2801-4(d). In general, a covered gift is received on the same date it is given for purposes of chapter 12. In general, a covered bequest is received on the date the property is distributed from the estate or the covered expatriate's revocable trust. However, in the case of property that passes by operation of law or beneficiary designation upon the covered expatriate's death, the date of receipt is the date of death. The proposed regulations provide more detail with regard to the determination of the date of receipt of covered gifts and covered bequests received from a non-electing foreign trust, those received pursuant to powers of appointment, and those received indirectly.
Section 28.2801-5 of the proposed regulations provides guidance on the treatment of foreign trusts under section 2801. If a covered gift or covered bequest is made to a foreign trust, the section 2801 tax applies to any distribution from that trust, whether of income or corpus, to a recipient that is a U.S. citizen or resident, unless the foreign trust elects to be treated as a domestic trust for purposes of section 2801. The proposed regulations define the term “distribution” broadly to include any direct, indirect, or constructive transfer from a foreign trust, including each disbursement from such a trust pursuant to the exercise, release, or lapse of a power of appointment.
The section 2801 tax applies only to the portion of a distribution from a non-electing foreign trust that is attributable to covered gifts and covered bequests contributed to the foreign trust. Section 28.2801-5(c) of the proposed regulations provides that the amount of the distribution attributable to covered gifts and covered bequests is determined by multiplying the total distribution by a ratio, as in effect at the time of the distribution, that is redetermined after each contribution to the trust. The proposed regulations explain how to compute that ratio and provide that each distribution from the foreign trust is considered to be made proportionally from the covered and non-covered portions of the trust, without any tracing with regard to particular assets. One effect of this rule is that the portion of a distribution from a foreign trust that is attributable to covered gifts and covered bequests contributed to the foreign trust includes the ratable portion of any appreciation and income that has accrued on the foreign trust's assets since the contribution of the covered gifts and covered bequests to the foreign trust.
Section 2801(e)(4)(B)(iii) provides that, solely for purposes of section 2801, a foreign trust may elect to be treated as a domestic trust. Consequently, the section 2801 tax is imposed on the electing foreign trust when it receives covered gifts and covered bequests, rather than on the U.S. trust beneficiaries when distributions are made from the trust. The election may be made for a calendar year whether or not the foreign trust received a covered gift or covered bequest during that calendar year. Section 28.2801-5(d)(3) of the proposed regulations provides guidance on the time and manner of making the election. In order for an election to be valid, the trustee of the foreign trust must satisfy several requirements. The trustee must make the election on a timely filed Form 708 and, if tax is due, timely pay the section 2801 tax (as computed under § 28.2801-5(d)(3)(iii)) by the due date of the Form 708 for that year and include a computation of how the applicable ratio and tax liability were calculated. Further, the trustee must designate and authorize a U.S. agent for purposes of section 2801, and must agree to file annually a Form 708 either to certify that no covered gifts or covered bequests were received by the foreign trust during the calendar year, or to report and, if tax is due, pay the section 2801 tax on covered gifts and covered bequests received by the foreign trust during the calendar year. The trustee also must report the portion of the trust attributable to covered gifts and covered bequests and all distributions attributable to covered gifts and covered bequests made to U.S. recipients in years prior to the year of the election. Finally, the trustee must notify the permissible U.S. distributees of the trust that the trustee is making the election to
Under § 28.2801-5(d)(3)(iii), an electing foreign trust that received covered gifts or covered bequests in prior calendar years when the election to be treated as a domestic trust was not in effect also must pay the section 2801 tax liability for all prior calendar years at the time the election is made on Form 708. Such liability is based on the fair market value of the trust attributable to covered gifts and covered bequests as of the last day of the calendar year immediately preceding the year for which the election is made, using the ratio calculated and then in effect under § 28.2801-5(c). If the trustee is unable to determine the portion of the trust attributable to covered gifts and covered bequests, then the fair market value of the entire trust as of the last day of the calendar year immediately preceding the year for which the election is made is subject to the section 2801 tax.
A valid election to be treated as a domestic trust is effective as of the beginning of the calendar year for which the Form 708 is filed. The effect of a valid election is that, as of such effective date of the election and until the election is terminated, U.S. citizens and residents receiving a distribution from that foreign trust will not be subject to section 2801 tax on that distribution. Instead, the electing foreign trust, like a domestic trust, must report and pay the section 2801 tax on each covered gift and covered bequest as it is received. The election, however, will not change the section 2801 tax liability of the U.S. recipients with regard to distributions made from the trust prior to the effective date of the election. The election has no impact outside of section 2801 on the taxation or reporting of trust distributions to U.S. persons.
If the IRS asserts that additional section 2801 tax is due from the electing foreign trust because, for example, the trust undervalued the covered gift or covered bequest or failed to report all covered gifts and covered bequests, then the IRS will notify the trustee of the foreign trust and the U.S. agent of the additional tax due on the asserted additional value or additional covered gifts or covered bequests, including any penalties and interest, and request payment by the due date identified in the IRS letter. If the trustee of the electing foreign trust and the IRS are unable to come to an agreement and the trustee fails to timely pay the additional tax and other asserted amounts, then the election is deemed to be an “imperfect election.” This means that the election terminates as of the first day of the calendar year for which the IRS asserts that the additional section 2801 tax is due. In this event, the covered gifts and covered bequests for which the return was timely filed, but only to the extent of the value on which the section 2801 tax was timely paid, are no longer considered to be covered gifts or covered bequests for purposes of determining the ratio under § 28.2801-5(c)(1), and distributions relating to such amounts will not be taxable to a U.S. citizen or resident who receives a trust distribution. However, with regard to the asserted additional value or additional covered gifts or covered bequests on which the trust did not timely pay the section 2801 tax asserted by the IRS, the foreign trust is not an electing foreign trust and thus is not the taxpayer responsible for the payment of that additional section 2801 tax. Instead, as of the effective date of the termination of the trust's election, the usual rule of section 2801(e)(4)(B) applies with regard to the taxation of distributions from foreign trusts. Specifically, the U.S. citizens or residents who receive any trust distributions on or after the effective date of the terminated election should take into consideration the additional value or additional covered gifts or covered bequests asserted by the IRS in determining the ratio under § 28.2801-5(c)(1) to be applied to such distributions. If the U.S. recipient does not take the additional value or additional covered gifts or covered bequests asserted by the IRS into consideration in computing that ratio, and the IRS challenges the computation of that ratio during its review of the U.S. recipient's Form 708 reporting the distribution, the IRS's assertion of the additional value or additional covered gifts or covered bequests then will become an issue to be resolved as part of the usual examination process for the U.S. recipient's Form 708. See § 28.2801-5(e),
An electing foreign trust's failure to file the Form 708 on an annual basis or to timely pay its section 2801 tax terminates that foreign trust's election to be treated as a domestic trust as of the first day of the calendar year for which the certification is not timely made or for which its section 2801 tax is not timely paid. But see § 28.2801-5(d)(6) in the case of a dispute as to the amount of section 2801 tax owed by an electing foreign trust. In the event of the termination of the election, the trustee should notify the permissible U.S. distributees of the effective date of the termination and that each U.S. recipient of a distribution made from the foreign trust on or after that date is subject to the section 2801 tax to the extent the distribution is attributable to covered gifts or covered bequests. After an election is terminated, a foreign trust is not prohibited from making a new election to be treated as a domestic trust by complying with all applicable requirements.
Section 28.2801-6(a) addresses how the basis rules under sections 1014, 1015(a), and 1022 impact the determination of the U.S. recipient's basis in the covered gift or covered bequest. Unlike section 1015(d), which generally allows gift tax paid on the gift to be added to the donee's basis, section 2801 does not provide a similar basis adjustment for the payment of the section 2801 tax.
Section 28.2801-6(b) clarifies the applicability of the GST tax to certain section 2801 transfers and cross-references the GST rules.
Section 28.2801-6(c) discusses the interaction of section 2801 and the information reporting provisions of sections 6039F and 6048(c). Generally, pursuant to section 6039F and Notice 97-34, 1997-1 CB 422, a U.S. person (other than an organization described in section 501(c) and exempt from tax under section 501(a)) who receives a gift or bequest (including a covered gift or covered bequest) from a foreign person (other than through a foreign trust) must report such gift or bequest on Part IV of Form 3520, “Annual Return to Report Transactions with Foreign Trusts and Receipt of Certain Foreign Gifts,” if the total value of such gifts and bequests exceeds a certain threshold. A U.S. citizen or resident, as defined under § 28.2801-2(b) and thus including a domestic trust as defined in § 28.2801-2(c), but not including a foreign trust that elects to be treated as a domestic trust, is included within the definition of a U.S. person for purposes of section 6039F.
Under section 6039F(c)(1)(A), if a U.S. person fails to furnish all of the information regarding the gift or bequest in accordance with the requirements of Form 3520, and any related guidance, within the time prescribed (in the case of a U.S. citizen or resident, the time for filing the Form 1040, including extensions), then, absent reasonable cause, a monthly penalty of 5 percent of the amount of the gift or bequest (not to exceed 25 percent) may be imposed until such information is furnished. In
Pursuant to section 6048(c) and Notice 97-34, a U.S. person must report any distributions received from a foreign trust on Part III of Form 3520. Under section 6677(a), a penalty of the greater of $10,000 or 35 percent of the gross value of the distribution may be imposed on a U.S. person who fails to timely report the distribution. A U.S. citizen or resident, as defined in § 28.2801-2(b), but not including a foreign trust that elects to be treated as a domestic trust, generally would be required to report such a distribution under section 6048(c).
Further, if adequate records are not provided to determine the treatment of such a distribution, to the extent provided in Notice 97-34, as modified by the instructions to Form 3520 and any subsequent guidance, such distribution may be treated as an accumulation distribution includible in the gross income of the distributee. Taxpayers similarly should be aware that information reported on Part III of Form 3520 may be used to determine if a U.S. citizen or resident received a trust distribution attributable to a covered gift or covered bequest.
Finally, § 28.2801-6(d) addresses the section 6662 accuracy-related penalties on underpayments of tax, the section 6651 failure to file and pay penalties, and the section 6695A penalty on substantial and gross valuation misstatements attributable to incorrect appraisals. The Treasury Department and the IRS recognize that taxpayers have had to defer their tax reporting and payment obligations with respect to covered gifts and covered bequests received after the effective date of section 2801 (as described in Notice 2009-85). Thus, there may be circumstances under which a taxpayer who received a covered gift or covered bequest in a year prior to the issuance of final regulations may have difficulty in complying with the deferred filing and payment requirements with respect to those receipts. A taxpayer who establishes that such failure in this regard is due to reasonable cause and not to willful neglect will not be subject to the section 6651 penalties for failure to file or pay. The determination of whether an exception to the other penalties applies will be made on a case-by-case basis.
Section 28.2801-7 provides guidance on the responsibility of a U.S. recipient, as defined in § 28.2801-2(e), to determine if tax under section 2801 is due. The Treasury Department and the IRS realize that, because the tax imposed by this section is imposed on the U.S. citizen or resident receiving a covered gift or covered bequest, rather than on the donor or decedent covered expatriate making the gift or bequest, U.S. taxpayers may have difficulty determining whether they are liable for any tax under section 2801. Nevertheless, the same standard of due diligence that applies to any other taxpayer to determine whether the taxpayer has a tax liability or a filing requirement also applies to U.S. citizens and residents under this section. Accordingly, it is the responsibility of each U.S. citizen or resident receiving a gift or bequest, whether directly or indirectly, from an expatriate (as defined in section 877A(g)(2)) to determine its tax obligations under section 2801. Thus, the burden is on that U.S. citizen or resident to determine whether the expatriate was a covered expatriate (as defined in section 877A(g)(1)) and, if so, whether the gift or bequest was a covered gift or covered bequest.
The Treasury Department and the IRS understand that a U.S. citizen or resident receiving a gift or bequest from an expatriate may be unable to obtain directly from the expatriate, the expatriate's attorney, the expatriate's executor, or other reliable sources the information necessary to make the above determinations. If the IRS receives a request from a U.S. citizen or resident who received a gift from an expatriate who has consented to the disclosure of certain return information to that donee, a gift from an expatriate who is deceased at the time of the request, or a bequest from an expatriate, the IRS may in certain circumstances disclose to such U.S. citizen or resident the return or return information of the donor or decedent expatriate that may assist the U.S. citizen or resident in determining whether the donor or decedent was a covered expatriate and whether the transfer was a covered gift or covered bequest. See section 6103. The types of information and requirements and procedures for requesting such information will be set forth in guidance published in the Internal Revenue Bulletin.
Although the IRS, if authorized, may disclose returns and return information upon request, the IRS will not make the determinations as to whether an expatriate from whom a gift or bequest was received was a covered expatriate or whether the gift or bequest was a covered gift or covered bequest. Furthermore, the U.S. citizen or resident receiving a gift or bequest from an expatriate may not rely on any information provided by the IRS that the U.S. citizen or resident knows or has reason to know is incorrect. These determinations are the responsibility of the U.S. citizen or resident.
The proposed regulations provide that, if a living expatriate donor does not authorize the IRS to release to a U.S. citizen or resident the donor's relevant return or return information, there is a rebuttable presumption that the expatriate donor is a covered expatriate and that each gift from that expatriate to a U.S. citizen or resident is a covered gift. A taxpayer who reasonably concludes that a gift or bequest is not subject to section 2801 and intends to rebut the presumption may choose to file a protective return to start the period for assessment of any section 2801 tax. See §§ 28.2801-7(b)(2), 28.6011-1(b).
The proposed regulations also include administrative regulations that address filing and payment due dates, returns, extension requests, and recordkeeping requirements with respect to the section 2801 tax. See §§ 28.6001-1, 28.6011-1, 28.6060-1, 28.6071-1, 28.6081-1, 28.6091-1, 28.6101-1, 28.6107-1, 28.6109-1, 28.6151-1, 28.6694-1, 28.6694-2, 28.6694-3, 28.6694-4, 28.6695-1, 28.6696-1, 28.7701-1. Section 28.6011-1(a) provides the return requirements to report the receipt of covered gifts and covered bequests from covered expatriates using Form 708.
The Treasury Department and IRS will permit the filing of a protective Form 708, unaccompanied by any payment of tax under section 2801, in limited circumstances when a U.S. citizen or resident receives a gift or bequest from an expatriate and reasonably concludes, after exercising due diligence, that the gift or bequest is not a covered gift or covered bequest from a covered expatriate. The mere absence of information confirming that the expatriate is a covered expatriate or that the gift or bequest is a covered gift or covered bequest is not a sufficient basis for a protective return. Section 28.6011-1(b)(i) provides that filing a protective Form 708, together with the required attachments, will start the period for the assessment of any section 2801 tax.
The IRS intends to issue Form 708 once these regulations are published as final regulations in the
The following publication will be obsolete when regulations finalizing these proposed regulations are published in the
Announcement 2009-57, 2009-29 I.R.B. 158.
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that this regulation does not affect small entities because it applies to individuals and certain trusts. Accordingly, a regulatory flexibility analysis is not required. Pursuant to section 7805(f) of the Code, these proposed regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses.
For copies of recently issued revenue procedures, revenue rulings, notices, and other guidance published in the Internal Revenue Bulletin or Cumulative Bulletin, please visit the IRS Web site at
The principal authors of these regulations are Karlene Lesho and Leslie Finlow, Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the Treasury Department and the IRS participated in their development.
Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the
1. How to calculate the amount of a distribution from a foreign trust that is attributable to a covered gift or covered bequest if the U.S. recipient does not have adequate books and records or information available to make such a determination.
2. How to minimize the burden associated with a foreign trust making an election to be treated as a domestic trust while adequately securing the government's interest in collecting the tax from the foreign trust.
3. How contributions to or distributions from a non-electing foreign trust to a U.S. citizen spouse could qualify for the marital exception in section 2801(e)(3), taking into account the rules applicable to domestic trusts and foreign trusts in section 2801(e)(4).
All comments will be available at
A public hearing has been scheduled for January 6, 2016, at 10 a.m. in the IRS Auditorium Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For more information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments and an outline of the topics to be discussed and the time to be devoted to each topic (a signed original and eight (8) copies) by December 9, 2015. A period of 10 minutes will be allotted to each person for making comments. Copies of the agenda will be available free of charge at the meeting.
Expatriation taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR chapter 1 is proposed to be amended by adding part 28 to subchapter B to read as follows:
26 U.S.C. 7805.
Section 28.6001-1 also issued under 26 U.S.C. 6001(a).
Section 28.6011(a)-1 also issued under 26 U.S.C. 6011(a).
Section 28.6060-1 also issued under 26 U.S.C. 6060(a).
Section 28.6071(a)-1 also issued under 26 U.S.C. 6071(a).
Section 28.6081-1 also issued under 26 U.S.C. 6081(a).
Section 28.6091-1 also issued under 26 U.S.C. 6091.
Section 28.6101-1 also issued under 26 U.S.C. 6101.
Section 28.6107-1 also issued under 26 U.S.C. 6107(c).
Section 28.6109-1 also issued under 26 U.S.C. 6109(a).
Section 28.6151-1 also issued under 26 U.S.C. 6151.
Section 28.6695-1 also issued under 26 U.S.C. 6695(b).
Section 28.6696-1 also issued under 26 U.S.C. 6696(c).
This section lists the captions in §§ 28.2801-1 through 28.2801-7.
(a) In general.
(b) Effective/applicability date.
(a) Overview.
(b) Citizen or resident of the United States.
(c) Domestic trust.
(d) Foreign trust.
(1) In general.
(2) Electing foreign trust
(e) U.S. recipient.
(f) Covered bequest.
(g) Covered gift.
(h) Expatriate and covered expatriate.
(i) Indirect acquisition of property.
(j) Power of appointment.
(k) Effective/applicability date.
(a) Covered gift.
(b) Covered bequest.
(c) Exceptions to covered gift and covered bequest.
(1) Reported taxable gifts.
(2) Property reported as subject to estate tax.
(3) Transfers to charity.
(4) Transfers to spouse.
(5) Qualified disclaimers.
(d) Covered gifts and covered bequests made in trust.
(e) Powers of appointment.
(1) Covered expatriate as holder of power.
(2) Covered expatriate as grantor of power.
(f) Examples.
(g) Effective/applicability date.
(a) Liability for tax.
(1) U.S. citizen or resident.
(2) Domestic trust.
(i) In general.
(ii) Generation-skipping transfer tax.
(iii) Charitable remainder trust.
(iv) Migrated foreign trust.
(3) Foreign trust.
(i) In general.
(ii) Income tax deduction.
(b) Computation of tax.
(1) In general.
(2) Net covered gifts and covered bequests.
(c) Value of covered gift or covered bequest.
(d) Date of receipt.
(1) In general.
(2) Covered gift.
(3) Covered bequest.
(4) Foreign trusts.
(5) Powers of appointment.
(i) Covered expatriate as holder of power.
(ii) Covered expatriate as grantor of power.
(6) Indirect receipts.
(e) Reduction of tax for foreign estate or gift tax paid.
(f) Examples.
(g) Effective/applicability date.
(a) In general.
(b) Distribution defined.
(c) Amount of distribution attributable to covered gift or covered bequest.
(1) Section 2801 ratio.
(i) In general.
(ii) Computation.
(2) Effect of reported transfer and tax payment.
(3) Inadequate information to calculate section 2801 ratio.
(d) Foreign trust treated as domestic trust.
(1) Election required.
(2) Effect of election.
(3) Time and manner of making the election.
(i) When to make the election.
(ii) Requirements for a valid election.
(iii) Section 2801 tax payable with the election.
(iv) Designation of U.S. agent.
(A) In general.
(B) Role of designated agent.
(C) Effect of appointment of agent.
(4) Annual certification or filing requirement.
(5) Duration of status as electing foreign trust.
(i) In general.
(ii) Termination.
(iii) Subsequent elections.
(6) Dispute as to amount of section 2801 tax owed by electing foreign trust.
(i) Procedure.
(ii) Effect of timely paying the additional section 2801 tax amount.
(iii) Effect of failing to timely pay the additional section 2801 tax amount (imperfect election).
(A) In general.
(B) Notice to permissible beneficiaries.
(C) Reasonable cause.
(D) Interim period.
(7) No overpayment caused solely by virtue of defect in election.
(e) Examples.
(f) Effective/applicability date.
(a) Determination of basis.
(b) Generation-skipping transfer tax.
(c) Information returns.
(1) Gifts and bequests.
(2) Foreign trust distributions.
(3) Penalties and use of information.
(d) Application of penalties.
(1) Accuracy-related penalties on underpayments.
(2) Penalty for substantial and gross valuation misstatements attributable to incorrect appraisals.
(3) Penalty for failure to file a return and to pay tax.
(e) Effective/applicability date.
(a) Responsibility of recipients of gifts and bequests from expatriates.
(b) Disclosure of return and return information.
(1) In general.
(2) Rebuttable presumption.
(c) Effective/applicability date.
(a)
(b)
(a)
(b)
(c)
(d)
(2)
(e)
(f)
(g)
(h)
(i)
(1) Property acquired as a result of a transfer that is a covered gift or covered bequest to a corporation or other entity other than a trust or estate, to the extent of the respective ownership interest of the recipient U.S. citizen or resident in the corporation or other entity;
(2) Property acquired by or on behalf of a U.S. citizen or resident, either from a covered expatriate or from a foreign trust that received a covered gift or covered bequest, through one or more other foreign trusts, other entities, or a person not subject to the section 2801 tax;
(3) Property paid by a covered expatriate, or distributed from a foreign trust that received a covered gift or covered bequest, in satisfaction of a debt or liability of a U.S. citizen or resident, regardless of the payee of that payment or distribution;
(4) Property acquired by or on behalf of a U.S. citizen or resident pursuant to a non-covered expatriate's power of appointment granted by a covered expatriate over property not in trust, unless the property previously was subjected to section 2801 tax upon the grant of the power or the covered expatriate had no more than a non-general power of appointment over that property; and
(5) Property acquired by or on behalf of a U.S. citizen or resident in other transfers not made directly by the covered expatriate to the U.S. citizen or resident.
(j)
(k)
(a)
(b)
(1) By bequest, devise, trust provision, beneficiary designation or other contractual arrangement, or by operation of law;
(2) That was transferred by the covered expatriate during life, either before or after expatriation, and which would have been includible in the covered expatriate's gross estate under section 2036, section 2037, or section 2038 had the covered expatriate been a U.S. citizen at the time of death;
(3) That was received for the benefit of a covered expatriate from such covered expatriate's spouse, or predeceased spouse, for which a valid qualified terminable interest property (QTIP) election was made on such spouse's, or predeceased spouse's, Form 709, “U.S. Gift (and Generation-Skipping Transfer) Tax Return,” Form 706, “United States Estate (and Generation-Skipping Transfer) Tax Return,” or Form 706-NA, “United States Estate (and Generation-Skipping Transfer) Tax Return, Estate of Nonresident Not a Citizen of the United States,” which would have been included in the covered expatriate's gross estate under section 2044 if the covered expatriate was a U.S. citizen at the time of death; or
(4) That otherwise passed from the covered expatriate by reason of death, such as—
(i) Property held by the covered expatriate and another person as joint tenants with right of survivorship or as tenants by the entirety, but only to the extent such property would have been included in the covered expatriate's gross estate under section 2040 if the covered expatriate had been a U.S. citizen at the time of death;
(ii) Any annuity or other payment that would have been includible in the covered expatriate's gross estate if the covered expatriate had been a U.S. citizen at the time of death;
(iii) Property subject to a general power of appointment held by the covered expatriate at death; or
(iv) Life insurance proceeds payable upon the covered expatriate's death that would have been includible in the covered expatriate's gross estate under section 2042 if the covered expatriate had been a U.S. citizen at the time of death.
(c)
(1)
(2)
(3)
(4)
(5)
(d)
(e)
(2)
(f)
(ii) On September 14 of the following calendar year, Year 2, the executor of CE's estate timely files a Form 4768, “Application for Extension of Time to File a Return and/or Pay U.S. Estate (and Generation-Skipping Transfer) Taxes,” requesting a 6-month extension of time to file Form 706-NA, and a 1-year extension of time to pay the estate tax. The IRS grants both extensions but CE's executor fails to file the Form 706-NA until after March 14 of the calendar year immediately following Year 2.
(iii) S learns that the executor of CE's estate did not timely file Form 706-NA. Because CE is a covered expatriate, S received a covered bequest as defined under § 28.2801-2(f) and paragraph (b) of this section. S must timely file Form 708 and pay the section 2801 tax. See §§ 28.6011-1(a), 28.6071-1(a), and 28.6151-1(a). S also must file Form 3520 to report a large gift or bequest from a foreign person, and any other required form. See § 28.2801-6(c)(1).
(i) On October 20, Year 1, CE, a covered expatriate domiciled in Country F, a foreign country with which the United States does not have a gift tax treaty, transfers $500,000 in cash from an account in Country F to an irrevocable foreign trust created on that same date. Under section 2511(a), no gift tax is imposed on the transfer and thus, CE is not required to file a U.S. gift tax return. Under the terms of the foreign trust, A, CE's child and a U.S. resident, and Q, A's child and a U.S. citizen, may receive discretionary distributions of income and principal during life. At A's death, the assets remaining in the foreign trust will be distributed to B, CE's other U.S. resident child, or if B is not living at the time of A's death, then to CE's then-living issue,
(ii) On October 20, Year 1, the irrevocable foreign trust receives a covered gift for purposes of section 2801, but no section 2801 tax is imposed at that time. On March 5, Year 2, when Q receives $100,000 from the irrevocable foreign trust pursuant to the exercise of A's power of appointment, Q has received a distribution attributable to a covered gift and section 2801 tax is imposed on Q as of the date of the distribution.
(g)
(a)
(2)
(ii)
(iii)
(iv)
(3)
(ii)
(A) First, the U.S. recipient must determine the total amount of distribution(s) from the foreign trust treated as covered gifts and covered bequests received by that U.S. recipient during the calendar year to which the section 2801 tax payment relates.
(B) Second, of the amount determined in paragraph (a)(3)(ii)(A) of this section, the U.S. recipient must determine the amount that also is includable in the U.S. recipient's gross income for that calendar year. For purposes of this paragraph (a)(3)(ii)(B), distributions from foreign trusts includable in the U.S. recipient's gross income are deemed first to consist of the portion of those distributions, if any, that are attributable to covered gifts and covered bequests.
(C) Finally, the U.S. recipient must determine the portion of the section 2801 tax paid for that calendar year that is attributable to the amount determined in paragraph (a)(3)(ii)(B) of this section, the covered gifts and covered bequests received from the foreign trust that are also included in the U.S. recipient's gross income. This amount is the allowable deduction. Thus, for a calendar year taxpayer, the deduction is determined by multiplying the section 2801 tax paid during the calendar year by the ratio of the amount determined in paragraph (a)(3)(ii)(B) of this section to the total covered gifts and covered bequests received by the U.S. recipient during the calendar year to which that tax payment relates (that is, 2801 tax liability × [foreign trust distributions attributable to covered gifts and covered bequests that are also included in gross income/total covered gifts or covered bequests received]).
(b)
(i) The highest rate of estate tax under section 2001(c) in effect for that calendar year; or
(ii) The highest rate of gift tax under section 2502(a) in effect for that calendar year. See paragraph (f) of this section,
(2)
(c)
(d)
(2)
(3)
(4)
(5)
(ii)
(6)
(e)
(1) The amount of foreign estate or gift tax paid with respect to each covered gift or covered bequest and the amount and date of each payment thereof;
(2) A description and the value of the property with respect to which such taxes were imposed;
(3) Whether any refund of part or all of the foreign estate or gift tax has been or will be claimed or allowed, and the amount; and
(4) All other information necessary for the verification and computation of the amount of the reduction of section 2801 tax.
(f)
(i) $100,000 of B's total covered gifts and covered bequests of $125,000 received in Year 1 consisted of the portion of the distributions from the foreign trust attributable to covered gifts and covered bequests received by the trust. See paragraph (a)(3)(ii)(A) of this section.
(ii) $50,000 of the $500,000 of trust distributions were includable in B's gross income for Year 1. This amount is deemed to consist first of distributions subject to the section 2801 tax ($100,000). Thus, the entire amount included in B's gross income ($50,000) also is subject to the section 2801 tax, and is used in the numerator to determine the income tax deduction available to B. See paragraph (a)(3)(ii)(B) of this section.
(iii) The portion of B's section 2801 tax liability attributable to distributions from a foreign trust is $17,760 ($44,400 × ($50,000/$125,000)). Therefore, B's deduction under section 164 is $17,760. See paragraph (a)(3)(ii)(C) of this section.
(g)
(a)
(b)
(c)
(ii)
(2)
(3)
(d)
(2)
(ii) This election has no effect on any distribution from the foreign trust that was made to a U.S. recipient in a calendar year prior to the calendar year for which the election is made. Thus, even after a valid election is made, a distribution to a U.S. recipient in a calendar year prior to the calendar year for which the election is made that was attributable to one or more covered gifts or covered bequests continues to be a distribution attributable to one or more covered gifts or covered bequests and the section 2801 ratio in place at the time of the distribution continues to apply to that distribution. Furthermore, an election under this section does not relieve the U.S. recipient from the information reporting requirements of section 6048(c).
(3)
(ii)
(A) Make the election, timely pay the section 2801 tax, if any, as determined under paragraph (d)(3)(iii) of this section, and include a computation illustrating how the trustee of the electing foreign trust calculated both the section 2801 ratio described in paragraph (c)(1)(ii) of this section and the section 2801 tax;
(B) Designate and authorize a U.S. agent as provided in paragraph (d)(3)(iv) of this section;
(C) Agree to file Form 708 annually;
(D) List the amount and year of all prior distributions attributable to covered gifts and covered bequests made to a U.S. recipient and provide the name, address, and taxpayer identification number of each U.S. recipient; and
(E) Notify each permissible distributee that the trustee is making the election under this paragraph (d) and provide to the IRS a list of the name, address, and taxpayer identification number of each permissible distributee. For this purpose, a permissible distributee is any U.S. citizen or resident who:
(
(
(
(iii)
(iv)
(B)
(
(
(C)
(4)
(5)
(ii)
(iii)
(6)
(ii)
(iii)
(B)
(1) The foreign trust's election was terminated as of January 1 of the applicable year (with the actual year of the termination being set forth in the notice); and
(2) Each U.S. recipient of a distribution made from the foreign trust on and after that termination date is subject to the section 2801 tax on the portion of each such distribution attributable to covered gifts and covered bequests.
(C)
(D)
(7)
(e)
(ii) The fair market value of the trust was $610,000 immediately prior to A's contribution to the trust on January 1, Year X. Therefore, upon the Year X contribution of A's first and only covered gift, the portion of the trust attributable to covered gifts and covered bequests (covered portion) changed from zero to 0.14 ([(section 2801 ratio of 0 × $610,000 fair market value pre-contribution) plus the $100,000 covered gift]/$710,000 fair market value post-contribution). See paragraph (c) of this section.
(iii) In February of Year X, B received a distribution of $225,000 from the foreign trust. Although A contributed a total of $600,000 to the foreign trust, A contributed only $100,000 while A was a covered expatriate. Under paragraph (c) of this section, the portion of the $225,000 distribution from the foreign trust attributable to a covered gift is $31,500 ($225,000 × 0.14 (section 2801 ratio)) because the distribution is made proportionally from the covered and non-covered portions of the trust. See paragraph (c)(1) of this section. Accordingly, B received a covered gift of $31,500.
(iv) Pursuant to the terms of the foreign trust, the trust made a terminating distribution on August 5, Year X, when B turned 35, and B received the balance of the appreciated trust, $505,000. The portion of this distribution attributable to covered gifts and covered bequests is $70,700 ($505,000 × 0.14). Therefore, B has received covered gifts from the foreign trust during Year X in the total amount of $102,200 ($31,500 + $70,700).
(ii) In Year 2, CE contributes $200,000 in cash to the foreign trust. The cash is a covered gift. The trustee of the foreign trust timely files a Form 708 reporting the transfer and pays the section 2801 tax. The trust does not make a distribution to any beneficiary during Year 2. Late in Year 3, the IRS disputes the reported value of the partnership interest transferred in Year 1 and determines that the proper valuation on the date of the gift was $800,000. In Year 3, the IRS issues a letter to the trustee of the foreign trust detailing its finding of the increased valuation and of the resulting additional section 2801 tax including accrued interest, if any, due on or before a later date in Year 3 specified in the letter. The foreign trust fails to pay the additional section 2801 tax liability on or before that due date.
(iii) Under paragraph (d)(6)(iii) of this section, the foreign trust's election for Year 1 is an imperfect election; although it timely filed its return reporting the transfer and paid the tax, it failed to timely pay the additional section 2801 tax when the IRS notified the trust of an additional amount of section 2801 tax claimed to be due. Accordingly, the foreign trust's election is deemed to have terminated as of January 1 of Year 1. In computing the foreign trust's section 2801 ratio upon the receipt of the covered gift in Year 1, the $500,000 of value on which the section 2801 tax was timely paid is no longer deemed to be a covered gift. See paragraph (d)(6)(iii) of this section. When the trustee advises A of the letter from the IRS, A must file a late Form 708 reporting the portion of the Year 1 distribution attributable to covered gifts and covered bequests. Although A may owe section 2801 tax and interest, A will not owe any penalties under section 6651 as long as A files the Form 708 and pays the tax within a reasonable period of time after A receives notice of the termination of the election from the trustee of the foreign trust or otherwise becomes aware of the termination of the election. See paragraph (d)(6)(iii)(C) of this section.
(iv) When A files the Form 708, the IRS will verify whether A treated the $300,000 undervaluation claimed by the IRS as a
(v) The foreign trust's timely filing of the Form 708 for Year 2 and the timely payment of the section 2801 tax shown on that return is not a valid election under paragraph (d)(5)(iii) of this section because the trust did not timely pay the section 2801 tax on all covered gifts and covered bequests in prior years as required in paragraph (d)(3) of this section; that is, the tax on the additional $300,000 of value of the Year 1 transfer. However, under paragraph (d)(6)(iii)(D) of this section, because the foreign trust timely filed and paid the section 2801 tax on the Year 2 covered gift of $200,000, and the additional unpaid tax was not due until Year 3, the $200,000 amount is no longer considered a covered gift for purposes of computing the section 2801 ratio.
(f)
(a)
(b)
(c)
(2)
(3)
(d)
(i) A substantial valuation understatement under section 6662(g) of a covered gift or covered bequest; or
(ii) A gross valuation misstatement under section 6662(h) of a covered gift or covered bequest.
(2)
(3)
(e)
(a)
(b)
(2)
(c)
(a)
(b)
(a)
(b)
(ii) A U.S. citizen or resident who receives a gift or bequest from an expatriate and who files a protective Form 708 meeting the requirements of paragraph (b)(i) of this section showing no tax due, absent fraud or other special factors, will not be subject to any additions to tax for late filing under section 6651(a)(1) or for late payment under section 6651(a)(2), even if the gift or bequest is determined to be a covered gift or covered bequest from a covered expatriate within the limitations period for assessment stated in section 6501. Notwithstanding the foregoing, however, if a U.S. citizen or resident knows, or has reason to know, that the information provided by the IRS or any other source is incorrect or incomplete, that U.S. citizen or resident may not rely on that information, and except as provided in the preceding paragraph (b)(i) of this section, may be subject to all of the generally applicable provisions governing assessment of tax,
(c)
(a)
(b)
(a)
(i) The fifteenth day of the eighteenth calendar month following the close of the calendar year in which the covered expatriate died; or
(ii) The fifteenth day of the sixth month of the calendar year following the close of the calendar year in which the covered bequest was received.
(2) If a U.S. recipient receives multiple covered gifts and covered bequests during the same calendar year, the rule in paragraph (a)(1) of this section may result in different due dates and the filing of multiple returns reporting the different transfers received during the same calendar year.
(b)
(c)
(2)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
A U.S. recipient as defined in § 28.2801-2(e) must file Form 708, “U.S. Return of Gifts and Bequests from Covered Expatriates,” with the Internal Revenue Service office designated in the instructions applicable to the Form.
See § 28.6011-1 for the rules relating to the period covered by the return.
(a)
(b)
(a)
(b)
The tax due under this part 28 must be paid at the time prescribed in § 28.6071-1 for filing the return, and at the place prescribed in § 28.6091-1 for filing the return.
(a)
(b)
(a)
(b)
(a)
(b)
(a)
(b)
(a)
(b)
(a)
(b)
For the definition of the term
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to disapprove an element of State Implementation Plan (SIP) submissions from Wisconsin regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2006 fine particulate matter (PM
Comments must be received on or before October 13, 2015.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2009-0805 by one of the following methods:
1.
2.
3.
4.
5.
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 supplementary information section is arranged as follows:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
This rulemaking addresses a January 24, 2011, submission supplemented on June 29, 2012, from the Wisconsin Department of Natural Resources (WDNR) intended to address all applicable infrastructure requirements for the 2006 PM
The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.
This specific rulemaking is only taking action on a specific requirement of PSD, NO
On September 13, 2013, EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (2013 Memo). As noted in the 2013 Memo, pursuant to CAA section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. WDNR provided public comment opportunities on both its January 24, 2011 and October 29, 2012 submittals. EPA is also soliciting comments on the specific requirement we are evaluating in this proposed rulemaking. WDNR provided a detailed synopsis of how various components of its SIP meet each of the applicable requirements in section 110(a)(2) for the 2006 PM
EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005
The Phase 2 Rule required that states submit SIP revisions incorporating the requirements of the rule, including those identifying NO
During the comment period following the proposed approval for the infrastructure requirements of the 1997 ozone and PM
This final disapproval triggered the requirement under section 110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later than two years from the effective date of the disapproval unless the State corrects the deficiency, and the Administrator approves the plan revision before the Administrator promulgates such FIP. Wisconsin has taken multiple steps to address NO
In our initial rulemaking on Wisconsin's 2006 PM
EPA is proposing to narrowly disapprove portions of a submission from Wisconsin certifying that its current SIP is sufficient to meet required infrastructure elements. Specifically, EPA is proposing to disapprove the NO
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget.
This rulemaking does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This action merely proposes to disapprove state law as not meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Because this rulemaking proposes to disapprove pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).
This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to disapprove a state rule, and does not alter the relationship or the distribution of power and responsibilities established in the CAA.
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 proposed rule does not have tribal implications and would not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it proposes to disapprove a state rule.
Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).
In reviewing state submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve elements of State Implementation Plan (SIP) submissions from Connecticut regarding the infrastructure requirements of Clean Air Act (CAA or Act) for the 2008 lead (Pb), 2008 8-hr ozone, 2010 nitrogen dioxide (NO
The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.
Comments must be received on or before October 13, 2015.
Submit your comments, identified by the appropriate Docket ID number as indicated in the instructions section below, by one of the following methods:
1.
2.
3.
4.
5.
Alison Simcox, Environmental Scientist, Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts 02109-3912; (617) 918-1684;
Throughout this document whenever “we”, “us”, or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
When submitting comments, remember to:
This rulemaking addresses submissions from the Connecticut Department of Energy and Environmental Protection (CT DEEP). The state submitted its infrastructure SIP for each NAAQS on the following dates: 2008 Pb—October 13, 2011; 2008 ozone—December 28, 2012; 2010 NO
Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 1997 and 2006 PM
EPA highlighted this statutory requirement in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM
EPA is acting upon the SIP submissions from Connecticut that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 Pb, 2008 ozone, 2010 NO
The requirement for states to make a SIP submission of this type arises out of CAA sections 110(a)(1) and 110(a)(2).
EPA commonly refers to such SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the planning requirements of part D of title I of the CAA.
This rulemaking will not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources (“SSM” emissions) that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP-approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final New Source Review (NSR) Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas separately. A detailed history, interpretation, and rationale for EPA's approach to infrastructure SIP requirements can be found in EPA's May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” See 79 FR 27241 at 27242-27245 (May 13, 2014).
EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. Historically, EPA has elected to use non-binding guidance documents to make recommendations for states' development and EPA review of infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. EPA guidance applicable to these infrastructure SIP submissions is embodied in several documents. Specifically, attachment A of the 2007 Memo (Required Section 110 SIP Elements) identifies the statutory elements that states need to submit in order to satisfy the requirements for an infrastructure SIP submission. The 2009 Memo provides additional guidance for certain elements regarding the 2006 PM
Pursuant to section 110(a), and as noted in the 2011 Memo and the 2013 Memo, states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. CT DEEP held public hearings for each infrastructure SIP on the following dates: 2008 Pb—September 20, 2011; 2008 ozone—December 20, 2012; 2010 NO
This section requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. However, EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due.
Connecticut Public Act No. 11-80 established the Connecticut Department of Energy and Environmental Protection (CT DEEP), and Connecticut General Statutes (CGS) Section 22a-6(a)(1) provides the Commissioner of CT DEEP authority to adopt, amend or repeal environmental standards, criteria and regulations. It is under this general grant of authority that the Commissioner has adopted emissions standards and control measures for a variety of sources and pollutants. Connecticut also has SIP-approved provisions for specific pollutants. For example, CT DEEP has adopted primary and secondary ambient air quality standards for each of these pollutants in Regulations of Connecticut State Agencies (RCSA) Section 22a-174-24 as follows: For SO
In addition, we previously issued a conditional approval for Connecticut's infrastructure SIP submittal made for the 1997 and 2006 PM
This section requires SIPs to include provisions to provide for establishing and operating ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request. Each year, states submit annual air monitoring network plans to EPA for review and approval. EPA's review of these annual monitoring plans includes our evaluation of whether the state: (i) Monitors air quality at appropriate locations throughout the state using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and, (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.
CT DEEP continues to operate a monitoring network, and EPA approved the state's 2015 Annual Air Monitoring Network Plan for PM
States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NSR requirements under PSD and nonattainment new source review (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements.
The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers the following: (i) Enforcement of SIP measures; (ii) PSD program for major sources and major modifications; and, (iii) permitting program for minor sources and minor modifications. A discussion of GHG permitting and the “Tailoring Rule”
CT DEEP staffs and implements an enforcement program pursuant to CGS section 22a. Specifically, CGS section 22a-6 authorizes the Commissioner of CT DEEP to inspect and investigate to ascertain whether violations of any statute, regulation, or permit may have occurred and to impose civil penalties. CGS section 22a-171 requires the Commissioner to “adopt, amend, repeal, and enforce regulations . . . and do any other act necessary to enforce the provisions of” CGS sections 22a-170 through 22a-206, which provide CT DEEP with the authority to, among other things, enforce its regulations, issue orders to correct violations of regulations or permits, impose state administrative penalties, and seek judicial relief. EPA proposes that Connecticut has met the enforcement of SIP measures requirements of section 110(a)(2)(C) with respect to the 2008 Pb, 2008 ozone, 2010 NO
Prevention of significant deterioration (PSD) permitting requirements apply to new major sources or major modifications made to major sources, for pollutants where the area in which the source is located is in attainment with, or unclassifiable with regard to, the relevant NAAQS. CT DEEP's EPA-approved PSD rules in RCSA sections 22a-174-1, 22a-174-2a, and 22a-174-3a contain provisions that address the majority of the applicable infrastructure SIP requirements related to the 2008 Pb, 2008 ozone, 2010 NO
EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NO
Connecticut's PSD rules do not currently contain the provisions needed to ensure that NO
On October 20, 2010 (75 FR 64864), EPA issued a final rule entitled “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM
The 2010 NSR Rule described in the preceding paragraph revised the existing system for determining increment consumption by establishing a new “major source baseline date” for PM
On October 9, 2012, Connecticut submitted revisions to its PSD program incorporating two of the four changes addressed by the 2010 NSR Rule. The two changes were 1) a revised definition of “Major source baseline date” that included a date for PM
CT DEEP's October 9, 2012 SIP revision did not specifically address the two other changes EPA made to the PSD rules in 2010, and for the following reasons EPA did not intend for those two issues to be part of the conditional approval described in our October 16, 2012 notice. One of those changes is the requirement that a State's definition of “minor source baseline date” be amended to include a trigger date for PM
Although Connecticut could not establish an actual date for PM
The fourth change to the PSD regulations that EPA made in 2010 was to add “equal or greater than 0.3 µg/m
Connecticut's current SIP and State PSD rules do not contain a definition of “baseline area.” EPA has confirmed in communications with CT DEEP that it treats the entire state as a single baseline area, which obviates the need to have a definition for this term. EPA agrees that the language EPA added to the federal definition of “baseline area” in the federal PSD requirements is not necessary in Connecticut because there is no other baseline area within the State.
Moreover, EPA has concluded that the lack of such a specific definition of “baseline area” does not in theory, and has not in fact over many years, preclude CT DEEP from ensuring that emissions from a major new source or major modification will not consume more increment than would be available or allowable even had CT DEEP adopted a definition that was exactly the same as EPA's definition of baseline area. In other words, CT DEEP has a regulatory structure that it has used over many years to ensure that increment consumption arising from new construction comports as a practical matter with federal PSD requirements and is functionally equivalent. EPA last approved CT DEEP's increment calculation methodology on February 27, 2003 (68 FR 9009).
Based on actual emissions data from the most recent National Emission Inventory emissions data base (2011), there are only 15 existing major stationary sources in Connecticut, all of which are major due to NO
In addition to the above, once CT DEEP addresses the conditional approval discussed earlier regarding the State's definition of “minor source baseline date,” the impact of Connecticut's approved mechanism for determining available increment most likely will result in a
On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM
The explicit references to SO
The Court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 implementation rule also does not affect EPA's action on the present infrastructure action. EPA interprets the CAA to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.
The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as “condensables”, in PM
On October 9, 2012, Connecticut submitted revisions to its PSD program incorporating the necessary changes required by the 2008 NSR Rule with respect to provisions that explicitly identify precursors to PM
Connecticut's SIP-approved PSD program does not contain a specific provision that explicitly contains the language in 40 CFR 51.166(b)(49)(i) addressing the inclusion of the gaseous, condensable fraction of PM
However, by letter submitted to EPA Region 1 and dated August 5, 2015 Connecticut explained that its major stationary source preconstruction permitting program does, in fact, require inclusion of the condensable portion of PM
Therefore, we are proposing that Connecticut has met this set of requirements of section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010 NO
On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions.
In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from Step 1 or “anyway” sources. With respect to Step 2 sources, the D.C. Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.”
The EPA is planning to take additional steps to revise federal PSD rules in light of the Supreme Court opinion and subsequent D.C. Circuit judgment. Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the planned revisions to EPA's PSD regulations. The EPA is not expecting states to have revised their PSD programs in anticipation of the EPA's planned actions to revise its PSD program rules in response to the court decisions. For purposes of infrastructure SIP submissions, the EPA is only evaluating such submissions to assure that the state's program addresses GHGs consistent with both court decisions.
At present, the EPA has determined that Connecticut's SIP is sufficient to satisfy this sub-element of section 110(a)(2)(C) (as well as sub-elements (D)(i)(II) and (J)(iii)) with respect to GHGs. This is because the PSD permitting program previously approved by the EPA into the SIP continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT.
The approved Connecticut PSD permitting program still contains some provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court decision and D.C. Circuit amended judgment. Nevertheless, the presence of these provisions in the previously-approved plan does not render the infrastructure SIP submission inadequate to satisfy Elements C, D (sub-element (i)(II)), and J. The SIP contains the PSD requirements for applying the BACT requirement to greenhouse gas emissions from “anyway sources” that are necessary at this time. The application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of Step 2 sources. Accordingly, the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent the EPA's approval of Connecticut's infrastructure SIP as to the requirements of Element C (as well as sub-elements (D)(i)(II) and (J)(iii)).
For the purposes of the 2008 Pb, 2008 ozone, 2010 NO
In summary, we are proposing to approve the majority of Connecticut's submittals for this sub-element pertaining to section 110(a)(2)(C) with respect to the 2008 Pb, 2008 ozone, 2010 NO
To address the pre-construction regulation of the modification and construction of minor stationary sources and minor modifications of major stationary sources, an infrastructure SIP submission should identify the existing EPA-approved SIP provisions and/or include new provisions that govern the minor source pre-construction program that regulates emissions of the relevant NAAQS pollutants. EPA approved Connecticut's minor NSR program, as well as updates to that program, with the most recent approval occurring on February 28, 2003 (68 FR 9009). Since this date, Connecticut and EPA have relied on the existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 2008 Pb, 2008 ozone, 2010 NO
We are proposing to find that Connecticut has met the requirement to have a SIP approved minor new source review permit program as required under Section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010 NO
This section contains a comprehensive set of air quality management elements pertaining to the transport of air pollution that states must comply with. It covers the following 5 topics, categorized as sub-elements: Sub-element 1, Contribute to nonattainment, and interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility protection; Sub-element 4, Interstate pollution abatement; and Sub-element 5, International pollution abatement. Sub-elements 1 through 3 above are found under section 110(a)(2)(D)(i) of the Act, and these items are further categorized into the 4 prongs discussed below, 2 of which are found within sub-element 1. Sub-elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act and include provisions insuring compliance with sections 115 and 126 of the Act relating to interstate and international pollution abatement.
With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the physical properties of Pb prevent it from experiencing the same travel or formation phenomena as PM
Connecticut's infrastructure SIP submission for the 2008 Pb NAAQS notes that there are no sources of Pb emissions located in close proximity to any of the state's borders with neighboring states. Additionally, Connecticut's submittal and the emissions data the state collects from its sources indicate that there is no single source of Pb, or group of sources, anywhere within the state that emits enough Pb to cause ambient concentrations to approach the Pb NAAQS. Our review of data within our National Emissions Inventory (NEI) database confirms this, and, therefore, we propose that Connecticut has met this set of requirements related to section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS.
With respect to the 2010 NO
NO
In summary, we are proposing that Connecticut has met section 110(a)(2)(D)(i)(I) for the 2008 Pb and 2010 NO
One aspect of section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state. One way for a state to meet this requirement is through a comprehensive PSD permitting program that applies to all regulated NSR pollutants and that satisfies the requirements of EPA's PSD implementation rules. As has already been discussed in the paragraphs addressing the PSD sub-element of Element C, Connecticut has satisfied the majority, though not all, of the applicable PSD implementation rule requirements.
States also have an obligation to ensure that sources located in nonattainment areas do not interfere with a neighboring state's PSD program. One way that this requirement can be satisfied is through an NNSR program consistent with the CAA that addresses any pollutants for which there is a designated nonattainment area within the state. EPA approved Connecticut's NNSR regulations on February 27, 2003 (68 FR 9009). These regulations contain provisions for how the state must treat and control sources in nonattainment areas, consistent with 40 CFR 51.165, or appendix S to 40 CFR part 51.
As noted above and in Element C, Connecticut's PSD program does not fully satisfy the requirements of EPA's PSD implementation rules, although Connecticut has committed to submit the required provisions for EPA approval by a date no later than one year from conditional approval of Connecticut's infrastructure submissions. Consequently, we are proposing to conditionally approve this sub-element for the 2008 Pb, 2008 ozone, 2010 NO
With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2009 Memo, the 2011 Memo, and 2013 Memo state that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze.
Connecticut's Regional Haze SIP was approved by EPA on July, 10, 2014 (79 FR 39322). Accordingly, EPA proposes that Connecticut has met the visibility protection requirements of 110(a)(2)(D)(i)(II) for the 2008 Pb NAAQS, 2008 ozone, 2010 NO
One aspect of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 126 relating to interstate pollution abatement.
Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources. A lack of such a requirement in state rules would be grounds for disapproval of this element.
EPA approved revisions to Connecticut's PSD program on July 24, 2015 (80 FR 43960), including the element pertaining to notification to neighboring states of the issuance of PSD permits. Therefore, we propose to approve Connecticut's compliance with the infrastructure SIP requirements of section 126(a) with respect to the 2008 Pb, 2008 ozone, 2010 NO
One portion of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 115 relating to international pollution abatement. Connecticut does not have any pending obligations under section 115 for the 2008 Pb, 2008 ozone, 2010 NO
This section requires each state to provide for adequate personnel, funding, and legal authority under state law to carry out its SIP and related issues. Additionally, Section 110(a)(2)(E)(ii) requires each state to comply with the requirements with respect to state boards under section 128. Finally, section 110(a)(2)(E)(iii) requires that, where a state relies upon local or regional governments or agencies for the implementation of its SIP provisions, the state retain responsibility for ensuring adequate implementation of SIP obligations with respect to relevant NAAQS. This sub-element, however, is inapplicable to this action, because Connecticut does not rely upon local or regional governments or agencies for the implementation of its SIP provisions.
Connecticut, through its infrastructure SIP submittals, has documented that its air agency has the requisite authority and resources to carry out its SIP obligations. CGS section 22a-171 authorizes the Commissioner of the CT DEEP to enforce the state's air laws, accept and administer grants, and exercise incidental powers necessary to carry out the law. The Connecticut SIP, as originally submitted on March 3, 1972, and subsequently amended, provides additional descriptions of the organizations, staffing, funding and physical resources necessary to carry out the plan. EPA proposes that Connecticut has met the infrastructure SIP requirements of this portion of section 110(a)(2)(E) with respect to the 2008 Pb, 2008 ozone, 2010 NO
Section 110(a)(2)(E) also requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA. That provision contains two explicit requirements: (i) That any board or body which approves permits or enforcement orders under 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.
In Connecticut, no board or body approves permits or enforcement orders; these are approved by the Commissioner of CT DEEP. Thus, Connecticut is subject only to the requirements of paragraph (a)(2) of section 128 of the CAA. Infrastructure SIPs submitted by Connecticut include descriptions of conflict-of-interest provisions in CGS section 1-85, which applies to all state employees and public officials. Section 1-85 prevents the Commissioner from acting on a matter in which the Commissioner has an interest that is “in substantial conflict with the proper discharge of his duties or employment in the public interest and of his responsibilities as prescribed in the laws of” Connecticut. Connecticut submitted CGS section 1-85 for incorporation into the SIP on December 28, 2012 with its infrastructure SIP for the 2008 ozone NAAQS,
Upon approval of CGS section 1-85 into the SIP, EPA proposes that Connecticut has met the applicable infrastructure SIP requirements for this section of 110(a)(2)(E) for the 2008 Pb, 2008 ozone, 2010 NO
States must establish a system to monitor emissions from stationary sources and submit periodic emissions reports. Each plan shall also require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources. The state plan shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlation of such reports by each state agency with any emission limitations or standards established pursuant to this chapter. Lastly, the reports shall be available at reasonable times for public inspection.
CGS section 22a-6(a)(5) authorizes the Commissioner to enter at all reasonable times, any public or private property (except a private residence) to investigate possible violations of any
This section requires that a plan provide for authority that is analogous to what is provided in section 303 of the CAA, and adequate contingency plans to implement such authority. Section 303 of the CAA provides authority to the EPA Administrator to seek a court order to restrain any source from causing or contributing to emissions that present an “imminent and substantial endangerment to public health or welfare, or the environment.” Section 303 further authorizes the Administrator to issue “such orders as may be necessary to protect public health or welfare or the environment” in the event that “it is not practicable to assure prompt protection . . . by commencement of such civil action.”
We propose to find that Connecticut's submittals and certain state statutes provide for authority comparable to that in section 303. Connecticut's submittals specify that CGS section 22a-181,
Section 110(a)(2)(G) also requires that, for any NAAQS, except Pb, Connecticut have an approved contingency plan for any Air Quality Control Region (AQCR) within the state that is classified as Priority I, IA, or II. A contingency plan is not required if the entire state is classified as Priority III for a particular pollutant. See 40 CFR part 51 subpart H. Classifications for the four AQCRs in Connecticut can be found at 40 CFR 52.371. Connecticut's portion of the New Jersey-New York-Connecticut Interstate AQCR is classified as a Priority I area for SO
As stated in Connecticut's infrastructure SIP submittals under the discussion of public notification (Element J), Connecticut also, as a matter of practice, posts on the internet daily forecasted ozone and fine particle levels through the EPA AirNow and EPA EnviroFlash systems. Information regarding these two systems is available on EPA's Web site at
Connecticut's participation in the AirNow and EnviroFlash programs addresses several of the public announcement and communications procedures and coordination with the National Weather Service included in the discussion of contingency plans in subpart H. See 40 CFR 51.152(a)(2), (b)(1), and (b)(3).
In addition, Connecticut's infrastructure SIP submittals reference CGS section 22a-174(c) under Element F, regarding the inspection of sources. This statute, which provides the Commissioner of CT DEEP with the authority to require periodic inspection of sources of air pollution, is also relevant under Element G, since 40 CFR 51.152(b)(2) requires each contingency plan to provide for the inspection of sources to be sure they are complying with any required emergency control actions.
Finally, with respect to Pb, we note that Pb is not explicitly included in the contingency plan requirements of subpart H. In addition, we note that there are no large sources of Pb in Connecticut. Specifically, a review of the National Emission Inventory shows that there are no sources of Pb in Connecticut that exceed EPA's reporting threshold of 0.5 tons per year. Although not expected, if that situation were to change, as noted previously, Connecticut does have general authority (
Therefore, EPA proposes that Connecticut through the combination of statutes, regulations, and participation in EPA's AirNow program discussed above, has met the applicable infrastructure SIP requirements of section 110(a)(2)(G) with respect to the 2008 Pb NAAQS, 2008 ozone, 2010 NO
This section requires states to have the authority to revise their SIPs in response to: changes in the NAAQS; availability of improved methods for attaining the NAAQS; or an EPA finding that the SIP is substantially inadequate.
Connecticut certifies that its SIP may be revised should EPA find that it is substantially inadequate to attain a standard or to comply with any additional requirements under the CAA and notes that CGS section 22a-174(d) grants the Commissioner all incidental powers necessary to control and prohibit air pollution. EPA proposes that Connecticut has met the infrastructure SIP requirements of section 110(a)(2)(H) with respect to the 2008 Pb, 2008 ozone, 2010 NO
The CAA requires that each plan or plan revision for an area designated as a nonattainment area meet the applicable requirements of part D of the CAA. Part D relates to nonattainment areas. EPA has determined that section 110(a)(2)(I) is not applicable to the infrastructure SIP process. Instead, EPA takes action on part D attainment plans through separate processes.
The evaluation of the submissions from Connecticut with respect to the requirements of CAA section 110(a)(2)(J) are described below.
States must provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements.
CGS section 22a-171,
Section 110(a)(2)(J) also requires states to notify the public if NAAQS are exceeded in an area and must enhance public awareness of measures that can be taken to prevent exceedances.
As part of the fulfillment of CGS section 22a-171,
States must meet applicable requirements of section 110(a)(2)(C) related to PSD. Connecticut's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs above addressing section 110(a)(2)(C), and EPA notes that the proposed actions for those sections are consistent with the proposed actions for this portion of section 110(a)(2)(J). Our proposed actions are reiterated below.
As noted above in Element C, Connecticut's PSD program does not fully satisfy the requirements of EPA's PSD implementation rules, although Connecticut has committed to submit the required provisions for EPA approval by a date no later than one year from conditional approval of Connecticut's infrastructure submissions. Consequently, we are proposing to conditionally approve this sub-element for the 2008 Pb, 2008 ozone, 2010 NO
With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 2008 Pb, 2008 ozone, 2010 NO
To satisfy element K, the state air agency must demonstrate that it has the authority to perform air quality modeling to predict effects on air quality of emissions of any NAAQS pollutant and submission of such data to EPA upon request.
Connecticut reviews the potential impact of major sources consistent with 40 CFR part 51, appendix W, “Guidelines on Air Quality Models.” The modeling data are sent to EPA along with the draft major permit. Pursuant to CGS section 22a-5, the Commissioner is directed to “promote and coordinate management of . . . air resources to assure their protection, enhancement and proper allocation and utilization” and to “provide for the prevention and abatement of all . . . air pollution including, but not limited to, that related to particulates, gases, dust, vapors, [and] odors.” Under RCSA section 22a-174-3a(i),
This section requires SIPs to mandate that each major stationary source pay permitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit.
EPA's full approval of Connecticut's Title V program became effective on May 31, 2002. See 67 FR 31966 (May 13, 2002). Before EPA can grant full approval, a state must demonstrate the ability to collect adequate fees. CGS section 22a-174(g) directs the Commissioner of CT DEEP to require the payment of a fee sufficient to cover the reasonable cost of reviewing and acting upon an application for, and monitoring compliance with, any state or federal permit, license, registration, order, or certificate. CT DEEP implements this directive through state regulations at RCSA sections 22a-174-26 and 22a-174-33, which contain specific requirements related to permit fees, including fees for Title V sources. EPA proposes that Connecticut has met the infrastructure SIP requirements of section 110(a)(2)(L) for the 2008 Pb, 2008 ozone, 2010 NO
Pursuant to element M, states must consult with, and allow participation from, local political subdivisions affected by the SIP.
CGS section 4-168,
As noted above in the discussion of elements E and J, Connecticut submitted, and EPA is proposing to approve, CGS sections 1-85 and 22a-171 for approval into the SIP. In addition, in its May 30, 2013 infrastructure SIP for the 2010 SO
EPA is proposing to approve SIP submissions from Connecticut certifying that its current SIP is sufficient to meet the required infrastructure elements under sections 110(a)(1) and (2) for the 2008 Pb, 2008 ozone, 2010 NO
With respect to the 1997 and 2006 PM
With respect to the 1997 8-hour ozone NAAQS, EPA is proposing to convert the conditional approval for the infrastructure SIP requirements of 110(a)(2)(D)(ii) pertaining to interstate pollution abatement to a full approval.
In addition, EPA is proposing to approve, and incorporate into the Connecticut SIP, the following Connecticut statutes which were included for approval in Connecticut's infrastructure SIP submittals:
As noted in Table 1, we are proposing to conditionally approve portions of Connecticut's infrastructure SIP submittals pertaining to the state's PSD program. The outstanding issues with the PSD program concern properly treating NO
Under section 110(k)(4) of the Act, EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than 1 year from the date of approval. If EPA conditionally approves the commitment in a final rulemaking action, the State must meet its commitment to submit an update to its PSD program that fully remedies the requirements mentioned above. If the State fails to do so, this action will become a disapproval one year from the date of final approval. EPA will notify the State by letter that this action has occurred. At that time, this commitment will no longer be a part of the approved Connecticut SIP. EPA subsequently will publish a document in the
EPA is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the
In this rulemaking, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference into the Connecticut SIP the three Connecticut statutes referenced in Section V above. The EPA has made, and will continue to make, these documents generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 proposed action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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 (see 65 FR 67249 (November 9, 2000)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides, Reporting and recordkeeping requirements.
Coast Guard, DHS.
Notice of proposed rulemaking; public meeting.
The Coast Guard proposes revisions to the annual ratemaking methodology (“procedural changes”) and several Great Lakes pilotage regulations, and proposes new base pilotage rates and surcharges (“rate changes”), using that proposed revised methodology. The changes would take effect 30 days after publication of a final rule. Rates for pilotage services on the Great Lakes were last revised in February 2015 and by law must be reviewed annually. The Coast Guard intends for the proposed revised methodology to be understandable and transparent, and to encourage investment in pilots, infrastructure, and training while helping ensure safe, efficient, and reliable service on the Great Lakes. In addition, the Coast Guard announces a public meeting on September 17, 2015, at which the public may ask questions about the proposals and comment on them. This rulemaking promotes the Coast Guard's maritime safety and stewardship (environmental protection) missions by promoting safe shipping on the Great Lakes.
Comments and related material must either be submitted to the online docket via
The September 17, 2015 public meeting will be held at the Detroit Metro Airport Marriott, 30559 Flynn Dr., Romulus, MI 48174 (telephone 734-729-7555 or
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If you have questions on this proposed rule, call or email Mr. Todd Haviland, Director, Great Lakes Pilotage, Commandant (CG-WWM-2), Coast Guard; telephone 202-372-2037, email
The purpose of this rulemaking is to amend the Coast Guard's Great Lakes pilotage regulations by revising the current methodology by which the Coast Guard sets base rates for U.S. pilotage service. The legal basis for the rulemaking is provided by Great Lakes pilotage statutes in 46 U.S.C. chapter 93. The proposed changes would take effect 30 days after publication of a final rule; this would coincide closely with the start of the 2016 shipping season and be several months earlier than in past rulemakings, which set changes that took effect on August 1 of each year.
The Coast Guard is proposing a complete revision of the current methodology for two reasons. First, over many years both pilots and industry have identified certain methodology issues that they believe significantly distort ratemaking calculations. Pilot associations believe those distortions result in low rates that contribute to their difficulty in retaining pilots and attracting applicant pilots. Second, only one union's contract data has ever been made available to the Coast Guard for the purpose of determining the benchmark for pilot compensation. The union now regards that data as proprietary and will no longer disclose it to the Coast Guard. The union is not subject to our Great Lakes pilotage regulatory oversight and therefore we respect and accept their decision. However, as a result of this decision, the Coast Guard no longer has access to the detailed breakdown of compensation calculations that our current methodology relies on, and the public cannot review the union's calculations or the manner in which we apply those calculations in setting pilotage rates. Therefore, we have decided we must select another benchmark for our ratemaking purposes. In 2014, the Coast Guard's Great Lakes Pilotage Advisory Committee (GLPAC) recommended significant changes to address stakeholder issues with the current methodology and to adapt to the unavailability of benchmark contract data.
As is done in the current ratemaking methodology, the proposed new methodology would follow a series of steps, which we describe in Part V. Step 1 reviews and recognizes previous operating expenses based on audits of records provided by the pilot associations. Step 2 projects each association's future operating expenses, adjusting for inflation or deflation. Step 3 projects the number of pilots needed based on each area's peak pilotage demand data and the pilot work cycle. Step 4 sets target pilot compensation using a compensation benchmark. Step 5 projects each association's return on investment by adding the projected adjusted operating expenses from Step 2 and the total target pilot compensation from Step 4 and multiplying by the preceding year's average annual rate of return for new issues of high grade corporate securities. Step 6 calculates each association's needed revenue by adding the projected adjusted operating expenses from Step 2, the total target pilot compensation from Step 4 and the projected return on investment from Step 5. Step 7 calculates initial base rates based on the preceding steps. Step 8 adjusts the Step 7 initial rates if necessary and reasonable to do so for supportable circumstances, and sets final rates.
In Part VI, the Coast Guard uses the proposed methodology described in Part V to calculate proposed base rates for the 2016 shipping season.
In Step 1 we propose accepting the independent accountant's final findings
In Step 2 we project next year's operating expenses and adjust them for inflation, using actual inflation data for 2014 and 2015 and the Federal Reserve target inflation rate as a proxy for actual 2016 inflation.
In Step 3, we determine that 50 pilots are needed next year, up from the 36 pilots we currently authorize. This number is based on data for four shipping seasons, 2010 through 2013, instead of the normal five seasons, because we do not have reliable source data for 2009 or 2014. The number is also based average pilot assignment cycle time based on our 2013 Bridge Hour Definition and Methodology Final Report though we intend to use Great Lakes Pilotage Management System (GLPMS) source data in the future.
In Step 4 we propose individual target pilot compensation of $312,500 and total target pilot compensation for 42 pilots of $13,125,000. Though we find that 50 pilots are needed over the period for which 2016 base rates would be in effect, based on our best current information we project there to be only 42 fully working and fully compensated pilots (“working pilots”) in 2016. The figures were set after considering various possible compensation benchmarks, including the compensation figures proposed by the pilot associations, and selecting 2013 Canadian Great Lakes Pilotage Authority (GLPA) registered pilot compensation as the most appropriate benchmark.
In Steps 5 and 6 we calculate the return on investment and project each pilot association's needed revenue.
In Step 7, we calculate initial base rates using the multi-year base period used above, covering the 2010 through 2013 shipping seasons.
Finally, in Step 8, we finalize the Step 7 rates, but propose imposing a temporary surcharge of $300,000 per district in 2016. The surcharge would reimburse pilot associations for the anticipated expenses of providing necessary training for current pilots and applicant pilots.
In addition to the proposed methodology revisions and proposed 2016 rates, we also propose an additional location for beginning and ending pilot assignments (a “change point”) at Iroquois Lock. This would enhance safety by mitigating fatigue associated with long pilotage runs of 10 hours or more in the St. Lawrence River.
The proposed rule would not be economically significant under E.O. 12866. It would affect 36 U.S. Great Lakes pilots, 3 pilot associations, and the owners and operators of an average of 126 vessels that journey the Great Lakes on an average 396 visits to various ports annually. The Coast Guard estimates that the proposed rate changes would result in shippers paying pilot associations a net 2016 shipping season increase from 2015 of $6,521,205. The proposed $6,521,205 represents a roughly 50% increase over the revenue the 2015 Appendix A Final Rule should generate. The Coast Guard also proposes authorizing temporary surcharges to reimburse pilot associations for training costs. These surcharges would add an estimated $900,000 in costs, for a total 2016 cost increase from 2015 of $7,421,205. Since the Coast Guard must review and prescribe rates for Great Lakes Pilotage annually, the effects are estimated as single year costs rather than annualized over a ten-year period. This rulemaking would not result in a change to Coast Guard's budget and it would not increase Federal spending. A summary of the regulatory analysis can be found in Part VII.
We encourage you to submit comments (or related material) on this rulemaking. We will consider all submissions and may adjust our final action based on your comments. Comments should be marked with docket number USCG-2015-0497 and should provide a reason for each suggestion or recommendation. You should provide personal contact information so that we can contact you if we have questions regarding your comments; but please note that all comments will be posted to the online docket without change and that any personal information you include can be searchable online (see the
Mailed or hand-delivered comments should be in an unbound 8
Documents mentioned in this proposed rule and all public comments are in our online docket at
On September 17, 2015, members of the public are invited to attend a meeting in Detroit, Michigan, at which we will answer questions and take comments on this NPRM. See
The legal basis of this rulemaking is the Great Lakes Pilotage Act of 1960 (“the Act”),
The purpose of this notice of proposed rulemaking (NPRM) is to propose revisions to the annual ratemaking methodology and several Great Lakes pilotage regulations; to propose the addition of a new pilot change point; and to propose new base pilotage rates and surcharges, using the proposed revised ratemaking methodology.
The vessels affected by this NPRM are those engaged in foreign trade upon the U.S. waters of the Great Lakes. United States and Canadian “lakers,” which account for most commercial shipping on the Great Lakes, are not affected.
The U.S. waters of the Great Lakes and the St. Lawrence Seaway are divided into three pilotage districts. Pilotage in each district is provided by an association certified by the Coast Guard Director of Great Lakes Pilotage (“the Director”) to operate a pilotage pool. The Coast Guard does not control the actual compensation that pilots receive. The actual compensation is determined by each of the three district associations, which use different compensation practices.
District One, consisting of Areas 1 and 2, includes all U.S. waters of the St. Lawrence River and Lake Ontario. District Two, consisting of Areas 4 and 5, includes all U.S. waters of Lake Erie, the Detroit River, Lake St. Clair, and the St. Clair River. District Three, consisting of Areas 6, 7, and 8, includes all U.S. waters of the St. Mary's River; Sault Ste. Marie Locks, and Lakes Huron, Michigan, and Superior. Area 3 is the Welland Canal, which is serviced exclusively by the Canadian GLPA and, accordingly, is not included in the United States pilotage rate structure. Areas 1, 5, and 7 have been designated by Presidential Proclamation, pursuant to the Act, to be waters in which pilots must, at all times, be fully engaged in the navigation of vessels in their charge. Areas 2, 4, 6, and 8 have not been so designated because they are open bodies of water. While working in those undesignated areas, pilots must “be on board and available to direct the navigation of the vessel at the discretion of and subject to the customary authority of the master.”
The Coast Guard is required
As we do each year, the NPRM for the 2016 ratemaking proposes new rates. In addition, this year's NPRM must also propose procedural changes to the ratemaking methodology, for two reasons.
First, each year our ratemakings draw pilot and industry comments urging fundamental changes in our current ratemaking methodology.
Second, we seek to ensure a safe, efficient, and reliable pilotage system for the Great Lakes and to eliminate possible barriers to achieving that goal. According to the pilot associations, the variance between projected revenue and actual revenue represents a significant challenge, because failure to achieve published revenue projections deprives them of the resources they need to provide safe, efficient, and reliable pilotage service. The associations cite challenges in making capital investments, recruiting and retaining adequately qualified pilots, achieving professional development and training schedules recommended by the American Pilots Association, updating technology, and achieving target compensation goals. The associations say that as a result, several experienced pilots have left the system, and that other desirable mariners have been discouraged from applying to become pilots. In this rulemaking, we propose specific regulatory changes intended to address these issues.
The procedural changes we propose here were discussed in general at GLPAC's public meetings on July 23 and 24, 2014. Many of the specific changes we propose in this NPRM were submitted for GLPAC consideration at those meetings, and GLPAC unanimously recommended them for adoption.
Please note that we propose making the following procedural and rate changes effective 30 days after publication of a final rule, almost half a year earlier than the August 1 effective date we have used in previous rulemakings. We specifically request comments on this proposed change. The change is justified for two reasons. First, the traditional August 1 date was tied to the August 1 effective date for annual changes in benchmark union contract rates. As we subsequently discuss, we are no longer using the contract in question and hence there is no inherent reason why we should continue following the traditional practice. Second, annual Great Lakes pilotage rate adjustments are required by law
We propose the following procedural changes. Please note that, for each of the amended sections in the following discussion, we propose extensive rewording in the interest of greater clarity and to remove unnecessary verbiage.
This mixed approach complicates an otherwise simple transaction of paying for a pilot's service, either when the pilot is piloting on a vessel's bridge, or is at the vessel master's disposal to provide piloting. We propose eliminating the mixed approach in favor of setting, for each district, one hourly rate for designated waters, and another hourly rate for undesignated waters. Those rates would be different for each district based on differences across the districts in the infrastructure maintained by each district association (for example, differences in numbers and types of pilot boat, or in office arrangements) and in the distances that pilots must travel to and from assignments.
Currently, some rates published in 46 CFR part 401 are based on hours, and others are based on the distance between two geographical points. GLPAC recommended re-baselining this billing scheme by a 5-1 vote in July 2014, and we propose doing so by basing all rates on hours.
Proposed § 401.405 would set each district's new base hourly rates. The proposed changed to § 401.405 would replace the current text in §§ 401.407 and 401.410 so those section would be removed.
We would not retain § 401.428's current per diem allowance for a pilot who is picked up or discharged at a point other than a designated change point. Instead, if the pilot is kept aboard for the convenience of or at the request of the ship, the pilot would bill the vessel for the extra time involved, at the § 401.405 hourly rates, in addition to reasonable travel costs. If the pilot is kept aboard for circumstances outside of the ship's control, for example because a pilot boat is out of service, the pilot would bill the vessel only for reasonable travel costs. Finally, we would specify that for both sections, the “reasonable travel costs” cover travel to and from the pilot's base.
In both sections we propose maintaining a similar calendar-based authorization for delays and charges associated with weather, traffic and ice. These are expected conditions at the beginning and end of the season; thus, our rate structure allows them as acceptable charges after November 30th or before May 1st each year.
The section would also provide for a full ratemaking to establish base pilotage rates at least once every five years, with annual rate reviews and adjustments in the interim years, in accordance with the procedures described in part 404.
Currently, and as we have done since 2012, each year we conduct a full appendix A ratemaking to establish base pilotage rates. However, we believe establishing base rates for multi-year periods would produce more predictable rates for both pilots and industry. GLPAC recommended this approach in July 2014.
Under our proposed multi-year approach, we would conduct full ratemakings to establish base rates at least once every 5 years, with base rate reviews and necessary adjustments in interim years.
For a transitional period over the next several years, we would conduct annual reviews of the rate and change the base rates, as needed, to ensure the new methodology's efficacy. This would also allow time for the pilots and industry to become familiar with the new ratemaking methodology (including the new hourly billing scheme). Following the transitional period, we would propose interim-year adjustments using any of the three methods described in the preceding paragraph.
In the
This NPRM proposes base rates to take effect in 2016. It considers audited pilot association expenses from 2013, the last full year for which reported and audited financial information is available. Current Step 1.C allows us to apply a cost change factor only for the first year after that (2014). This does not take into account consumer price index changes in subsequent years (2015 and 2016). In July 2014 GLPAC recommended that we take the subsequent years into account,
Instead of projecting future bridge hours to calculate the number of pilots needed, we would rely on an average of actual past data, as recommended by GLPAC in July 2014.
If within the five most recent seasons data are unavailable or unreliable, we would consider substituting available and reliable data from another past shipping season or from a source other than an approved system, such as pilot association submitted data or Canadian GLPA data. Examples of unavailable or unreliable data are situations where data have not been recorded in an approved system, or come from an outlier year in which traffic was abnormally low or high and so could significantly distort our calculations. Generally, a traffic distortion of significant proportion, one that we would not expect be replicated within the next decade, would form the basis of this determination. That year's NPRM would explain, for public comment, our determination that normal data sources are unavailable or unreliable, and our selection of an alternate source. We specifically request public comment on whether there is an objective standard that we can and should use in each annual ratemaking, to determine whether a particular shipping season should be treated as an “outlier.”
For our first historical multi-year base period, we do not think we have sufficient reliable data for five recent
In July 2014, GLPAC recommended that we “take a serious look” at scheduling monthly 10 day recuperative rest periods for pilots.
In addition, we would determine, based on our analysis of best available data
First, Step 2.A sets two different target compensation figures, one for undesignated waters and the other for designated waters. Although we propose (in § 401.405) to set different rates for each district's designated and undesignated waters, we see no reasonable basis for discriminating between the target compensation of pilots on the basis of the distinction between designated or undesignated waters. In any waters and in any district, pilots need the same skills, and therefore we propose a single individual target pilot compensation figure across all three districts.
Second, as we explained in discussing § 404.2, our compensation benchmark can no longer rely (as it does under Step 2.A) on contract compensation information that now is treated as proprietary and therefore not fully available for Coast Guard or public review. Instead, we propose considering only the most relevant current data that are available for Coast Guard and public review. Sources for such data may vary from one full ratemaking to another, and for supportable circumstances we would be able to make reasonable and necessary adjustments to the data. We review the sources we considered for this NPRM in Part VI.
Third, we propose changing the way in which Step 2.C determines total pilot compensation in each district, which currently is to multiply individual target pilot compensation by the number of
Currently, Step 7 takes projected revenue needed and divides it by projected revenue. The resulting rate multiplier is the percentage by which rates should be changed, subject to adjustment as explained in the last sentence of Step 7's first paragraph (we propose discussing that adjustment in § 404.108). This bases the rate multiplier on a calculation that depends on the accuracy of our revenue projection.
Instead, we propose initially calculating rates by dividing the projected needed revenue (§ 404.106) by available and reliable data for actual hours worked by pilots in each district's designated and undesignated waters during a multi-year base period. We would average this data to compensate for normal traffic fluctuation from one season to another.
As we propose for § 404.103, the base period would normally consist of the five most recent full shipping seasons. Normally, our data source would be pilot association entries in the GLPMS, or another system we would approve under proposed § 403.300. If, within the five most recent seasons, data are unavailable or unreliable, we would substitute available and reliable data from another past shipping season or from a source other than GLPMS, including pilot association data or Canadian GLPA data. For example, if data has not been recorded in a system approved under § 403.300, or comes from an outlier year in which traffic was abnormally low or high it could significantly distort our calculations; we would look to an alternative source of available shipping data.
In some years and in some districts, dividing needed revenue by the multi-year average hours could produce significantly higher rates for designated waters than for undesignated waters. This imbalance could create unnecessary financial risk to the pilot associations by focusing revenue generation too narrowly in designated waters at the expense of undesignated waters. To ensure safe, efficient, and reliable pilotage in all Great Lakes waters whether designated or undesignated, we therefore propose applying a ratio to adjust the balance between rates, limiting the designated-water rate to no more than twice the undesignated-water rate. This would correct the undesirable rate imbalance, without affecting the total needed revenue projected for each district.
We propose new rates and 46 CFR 401.401 surcharges for 2016. We reviewed the independent accountant's financial reports for each association's 2013 expenses and revenues. Those reports, which include pilot comments on draft versions and the accountant's response to those comments, appear in the docket.
The following discussion applies the proposed ratemaking methodology that is discussed in section V of this preamble.
Tables 2 through 4 show each association's recognized expenses.
Next, we calculate the average cycle time associated with each pilot assignment, in each area, over the 2010-2013 base period. In the future, we intend to use GLPMS data to track cycle time, but that data is not available for 2010 through 2014. We consider our best source for that base period's cycle time to be the Bridge Hour Definition and Methodology Final Report prepared on the Coast Guard's behalf in June 2013.
We then determine the average peak late-season traffic demand over the base period, as shown in Table 9. Table 9 also shows the average number of pilots that would have been needed to meet the peak demand, and for comparison purposes shows the average number of needed pilots for the 2010-2013 time period (38) authorized for the pilot associations.
As shown in Table 8, according to the 2013 report cycle time for pilots in designated waters is a little over 20 hours. This implies that, on average in late seasons over the base period, one pilot could move one vessel per day. However, to fully meet peak season demand, the pilot associations must be staffed to provide double pilotage, and Table 9 reflects that doubling in the number of pilots needed in the designated waters of Areas 1, 5, and 7.
Except in extreme circumstances, double pilotage is not required in the open and undesignated waters of Areas 2, 4, 6, and 8, and Table 9 shows no doubling in those areas. However, the Table does show a 50% increase from the one pilot-one vessel standard in undesignated Areas 6 and 8, which are located in the large western Great Lakes. Areas 6 and 8 are not contiguous, but both flank the designated waters of Area 7. Travel times in Areas 6 and 8 are greater than they are in the undesignated waters of smaller Lakes Erie and Ontario, and on average a pilot needs 1.5 days per vessel, not just 1, to move a vessel. Therefore, Table 9 shows 6 pilots, not 4, in each of Areas 6 and 8. This number will ensure that the four ships shown as moving daily through Area 7 could be moved through the undesignated waters at the same rate.
Please note that the addition of Iroquois Lock to the District One change points, previously discussed in connection with our proposed amendment to § 401.450, could eventually support adding pilots in that district, but is not factored into Table 9.
Based on our Table 9 figures, and as shown in Table 10, we find that 50 pilots are needed over the period for which 2016 base rates would be in effect, as opposed to the 36 currently authorized pilots shown in Table 9. Table 10 also shows that based on our best current information we project there to be only 42 fully working and fully compensated pilots (“working pilots”) in 2016. Our goal is to help the pilot associations close the gap between needed pilots and working pilots as soon as possible.
At this time, we see no need to adjust the number of pilots shown in Table 10.
Table 11 presents average recent compensations for each of these three sources.
We evaluated the suitability of each of these sources as a benchmark for setting our target pilot compensation.
The LPA services all vessels that ultimately transit through the Saint Lawrence River and Great Lakes. The majority of their pilotage service is provided primarily to vessels that stop in Montreal, which are typically larger than vessels that proceed upbound into the Great Lakes. The LPA also provides service throughout the year, whereas Great Lakes navigation is closed for a portion of the year due to ice conditions and lock maintenance. Due to these differences between LPA and U.S. Great Lakes pilotage conditions, we find LPA compensation information unsuitable as a benchmark for setting target U.S. pilot compensation.
BLS data for masters, mates, and pilots cover officers whose duties and responsibilities are different from those of a U.S. Great Lakes pilot. For example, unlike U.S. Great Lakes pilots, most of these officers are not directly responsible for the safe navigation of vessels of any tonnage through restricted waters. Further, this data is skewed downward by the higher number of lower wage mates, who do not hold the same licenses as masters and pilots. Therefore, we find this information is also unsuitable as a benchmark for setting target pilot compensation.
Canadian GLPA pilots provide service that is almost identical to the service provided by U.S. Great Lakes pilots. However, unlike the U.S. pilots, Canadian GLPA pilots are Canadian government employees and therefore have guaranteed minimum compensation with increases for high-traffic periods, retirement, healthcare and vacation benefits, and limited professional liability. In addition, GLPA pilots have guaranteed time off while U.S. pilots must be available for service throughout the shipping season and without any guaranteed time off; and due to historic staffing differences U.S. pilots get less time off than GLPA pilots. Nevertheless, because they work under the same conditions, months, and vessels (sometimes concurrently) as the U.S. pilots, we find that GLPA compensation information is the most suitable available benchmark for establishing target pilot compensation.
The calculations shown in Tables 12 through 14 take the last four years of GLPA data (covering actual compensation, 2011 through 2014), adjust for foreign exchange differences and inflation,
Table 12 shows GLPA compensation for 2011 through 2014, adjusted for exchange rates in each year.
Table 13 takes the figures from Table 12 and adjusts them for inflation in each year, similar to way Tables 5-7 adjust U.S. pilot association operating expenses.
Using this data, converted to 2016 USD, we then review the percentage change in Canadian compensation.
Table 14 shows that, from the 2013 figure of $263,036, we project forward an annual 2.6% increase to align with the general trend of compensation increases for Canadian pilots. This is an average of the increases from 2012 and 2013. Table 15 shows the results of these calculations:
As previously discussed, the difference in status between GLPA employees and independent U.S. pilots creates significant differences in their relative compensation. These differences constitute supportable circumstances for adjusting U.S. target pilot compensation by increasing it 10% over our projected 2016 GLPA compensation figure, taking our proposed U.S. individual target pilot compensation to $312,500. Although the appropriateness of 10% as an adjustment figure was not put to a vote, that figure and no other was cited by several speakers at GLPAC's July 2014 meeting
Table 16 shows the total target compensation for each district, the result of multiplying our proposed individual target compensation of $312,500 by the number of working pilots shown in Table 10. Our proposed total target pilot compensation for 2016 is $13,125,000.
At this time, and subject to the public comments that we specifically request on this point, we find no economic data that supplies supportable circumstances for additional adjustments to target pilot compensation.
On May 8, 2015, the pilot associations requested that we consider $355,000 as an individual target pilot compensation figure, which they said would not guarantee, but might ensure, a sufficient amount to attract reasonable pilot
At this time, we decline to adopt either of the pilots' proposed amounts. To the extent they rely on the $295,000 compensation figure considered, and majority-approved but officially rejected by GLPAC, we do not accept the pilots' contention that GLPAC discussed that figure in the context of wages only, and not benefits; we believe the discussion considered total compensation, both wages and benefits. We also note that our proposed individual target pilot compensation, $312,500, is 10% higher than what we project as 2016 GLPA individual pilot compensation. By contrast, $355,000 would be about 25% higher than the GLPA compensation, and $394,000 would be about 39% higher; we question whether such large disparities can be justified. We specifically request public comment and supporting data on the pilot associations' proposal for setting the 2016 individual target pilot compensation.
Table 20 calculates new rates by dividing each association's projected needed revenue, from § 404.106, by the average hours shown in Table 19 and rounding to the nearest whole number.
Table 20 shows that the District 3 rate for designated waters would be more than twice the rate for undesignated waters. Therefore, as discussed earlier under this proposed section, we apply a ratio to adjust the balance between these rates so that the rate for designated waters is no more than twice the rate for undesignated waters, as shown in Table 21, rounded to the nearest whole number.
We developed this proposed rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes or E.O.s.
Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive effects, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This proposed rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, this proposed rule has not been reviewed by the Office of Management and Budget (OMB). We consider all estimates and analysis in this Regulatory Analysis to be subject to change in consideration of public comments.
The following table summarizes the affected population, costs, and benefits of the proposed rule.
The Coast Guard is required to review and adjust pilotage rates on the Great Lakes annually. See Parts III and IV of this preamble for detailed discussions of the Coast Guard's legal basis and purpose for this rulemaking and for background information on Great Lakes pilotage ratemaking. Based on our annual review for this proposed rulemaking, we are adjusting the pilotage rates for the 2016 shipping season to generate for each district sufficient revenues to reimburse its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and provide an appropriate profit to use for improvements. The rate changes in this proposed rule would, if codified, lead to an increase in the cost per unit of service to shippers in all three districts, and result in an estimated annual cost increase to shippers of approximately $6,268,152 across all three districts over 2015 payments (Table 24).
In addition to the increase in payments that would be incurred by shippers in all three districts from the previous year as a result of the proposed rate changes, we propose authorizing a temporary surcharge to allow the pilotage associations to recover training expenses that would be incurred in 2016. We estimate that each district will incur $300,000 in training expenses. These temporary surcharges would generate a combined $900,000 in revenue for the pilotage associations across all three districts.
Therefore, after accounting for the implementation of the temporary surcharges across all three districts, the annual payments made by shippers during the 2016 shipping season are estimated to be approximately $7,168,152 more than the payments that were made in 2015 (Table 24).
A draft regulatory assessment follows.
This proposed rulemaking proposes revisions to the annual ratemaking methodology (procedural changes), and applies the proposed ratemaking methodology to increase Great Lakes pilotage rates and surcharges from the current rates set in the 2015 final rule (rate changes). The proposed methodology is discussed and applied in detail in Parts V and VI of this preamble. The last full ratemaking was concluded in 2015. The last annual rate review, conducted under 46 CFR part 404, appendix C, was completed early in 2011.
The shippers affected by these rate changes are those owners and operators of domestic vessels operating on register (employed in foreign trade) and owners and operators of foreign vessels on routes within the Great Lakes system. These owners and operators must have pilots or pilotage service as required by 46 U.S.C. 9302. There is no minimum tonnage limit or exemption for these vessels. The statute applies only to commercial vessels and not to recreational vessels.
We used 2012-2014 vessel arrival data from the Coast Guard's Ship Arrival Notification System (SANS) to estimate the average annual number of vessels affected by the rate adjustment. Using that period, we found that a mean of 126 vessels journeyed into the Great Lakes system annually from the years 2012-2014. These vessels entered the Great Lakes by transiting at least one of the three pilotage districts before leaving the Great Lakes system. These vessels often make more than one distinct stop, docking, loading, and unloading at facilities in Great Lakes ports. Of the total trips for the 126 vessels, there were 396 annual U.S. port arrivals before the vessels left the Great Lakes system, based on 2012-2014 vessel data from SANS.
The procedural changes are the proposed revisions to the annual ratemaking methodology and several Great Lakes pilotage regulations. These procedural changes are intended to clarify and simplify the current methodology, and increase the accuracy
We estimate the effect of the rate changes by comparing the total projected revenues needed to cover costs in 2015 with the figures for 2016, plus the temporary surcharges authorized by the Coast Guard. The last full year for which we have reported and audited financial information for the pilot association expenses is 2013, as discussed in Section VI of this preamble. We projected 2015 revenues using the rate increases set in the 2014 and 2015 final rules. The 2014 final rule
Table 25 details the additional cost increases to shippers by area and district as a result of the rate changes and temporary surcharges on traffic in Districts One, Two, and Three.
The resulting difference between the projected revenue in 2015 and the projected revenue in 2016 is the annual change in payments from shippers to pilots as a result of the rate change. This figure is equivalent to the total additional payments from the previous year that shippers would incur for pilotage services from this proposed rule.
The effect of the rate change in this proposed rule on shippers varies by area and district. The rate changes would lead to affected shippers operating in District One, District Two, and District Three experiencing an increase in payments of $1,669,948, $1,885,871, and $2,712,332, respectively, from the previous year.
In addition to the rate changes, temporary surcharges on traffic in
To calculate an exact cost or savings per vessel is difficult because of the variation in vessel types, routes, port arrivals, commodity carriage, time of season, conditions during navigation, and preferences for the extent of pilotage services on designated and undesignated portions of the Great Lakes system. Some owners and operators would pay more and some would pay less, depending on the distance travelled and the number of port arrivals by their vessels. However, the increase in costs reported earlier in this NPRM does capture the adjustment in payments that shippers would experience from the previous year. The overall adjustment in payments, after taking into account the increase in pilotage rates and the addition of temporary surcharges would be an increase in payments by shippers of approximately $7,168,152 across all three districts.
This proposed rule would allow the Coast Guard to meet the requirements in 46 U.S.C. 9303 to review the rates for pilotage services on the Great Lakes. The rate changes would promote safe, efficient, and reliable pilotage service on the Great Lakes by ensuring rates cover an association's operating expenses; provide fair pilot compensation, adequate training, and sufficient rest periods for pilots; and ensures the association makes enough money to fund future improvements. The procedural changes would increase the accuracy of pilotage data by utilizing a uniform financial reporting system (see discussion of 46 CFR 403.300 in Part V of the preamble). The procedural changes will also promote greater transparency and simplicity in the ratemaking methodology through annual revenue audits (see discussion of 46 CFR 404.1 in Part V of the preamble).
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this proposed rule would have a significant economic effect on a substantial number of small entities. 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 people.
We expect that entities affected by the proposed rule would be classified under the North American Industry Classification System (NAICS) code subsector 483—Water Transportation, which includes the following 6-digit NAICS codes for freight transportation: 483111—Deep Sea Freight Transportation, 483113—Coastal and Great Lakes Freight Transportation, and 483211—Inland Water Freight Transportation. According to the Small Business Administration's definition, a U.S. company with these NAICS codes and employing less than 500 employees is considered a small entity.
For the proposed rule, we reviewed recent company size and ownership data for the period 2012 through 2014 in the Coast Guard's Marine Information for Safety and Law Enforcement (MISLE) database, and we reviewed business revenue and size data provided by publicly available sources such as MANTA
There are three U.S. entities affected by the proposed rule that receive revenue from pilotage services. These are the three pilot associations that provide and manage pilotage services within the Great Lakes districts. Two of the associations operate as partnerships and one operates as a corporation. These associations are designated with the same NAICS industry classification and small-entity size standards described above, but they have fewer than 500 employees; combined, they have approximately 65 total employees. We expect no adverse effect to these entities from this proposed rule because all associations receive enough revenue to balance the projected expenses associated with the projected number of bridge hours and pilots.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic effect on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic effect on it, please submit a comment to the Docket Management Facility at the address under
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Mr. Todd Haviland, Director, Great Lakes Pilotage, Commandant (CG-WWM-2), Coast Guard; telephone 202-372-2037, email
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).
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) but would adjust the burden for an existing COI number 1625-0086, as described below.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we will submit a copy of this proposed rule to the Office of Management and Budget (OMB) for its review of the collection of information.
We ask for public comment on the proposed collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.
If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under
You need not respond to a collection of information unless it displays a currently valid control number from OMB. Before the Coast Guard could enforce the collection of information requirements in this proposed rule, OMB would need to approve the Coast Guard's request to collect this information.
A rule has implications for federalism under E.O. 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 is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132. Our analysis is explained below.
Congress directed the Coast Guard to establish “rates and charges for pilotage services.” 46 U.S.C. 9303(f). This regulation is issued pursuant to that statute and is preemptive of state law as specified in 46 U.S.C. 9306. Under 46 U.S.C. 9306, a “State or political subdivision of a State may not regulate or impose any requirement on pilotage on the Great Lakes.” As a result, States or local governments are expressly prohibited from regulating within this category. Therefore, the rule is consistent with the principles of federalism and preemption requirements in E.O. 13132.
While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with implications and preemptive effect, E.O. 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this rule has implications for federalism under E.O. 13132, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995, (2 U.S.C. 1531-1538), requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal Government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we discuss the effects of this proposed rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under E.O. 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 E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed 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 E.O. 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.
We have analyzed this proposed rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that E.O. because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
The National Technology Transfer and Advancement Act (15 U.S.C. 272,
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. This proposed rule is categorically excluded under section 2.B.2, figure 2-1, paragraph 34(a) of the Instruction. Paragraph 34(a) pertains to minor regulatory changes that are editorial or procedural in nature. This proposed rule adjusts rates in accordance with applicable statutory and regulatory mandates. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Administrative practice and procedure, Great Lakes, Navigation (water), Penalties, Reporting and recordkeeping requirements, Seamen.
Great Lakes, Navigation (water), Reporting and recordkeeping requirements, Seamen, Uniform System of Accounts.
Great Lakes, Navigation (water), Seamen.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 46 CFR parts 401, 403, and 404 as follows:
46 U.S.C. 2103, 6101, 7701, 9303, 9304; Department of Homeland Security Delegation No. 0170.1(II)(92.a), (92.d), (92.e), (92.f).
(a) The hourly rate for pilotage service on:
(1) The St. Lawrence River is $590;
(2) Lake Ontario is $458;
(3) Lake Erie is $508;
(4) The navigable waters from Southeast Shoal to Port Huron, MI is $730;
(5) Lakes Huron, Michigan, and Superior is $351; and
(6) The St. Mary's River is $701.
(b) The pilotage charge is calculated by multiplying the hourly rate by the hours or fraction thereof (rounded to the nearest 15 minutes) that the registered pilot is on the bridge or available to the master of the vessel, multiplied by the weighting factor shown in § 401.400.
(a) Except as otherwise provided in this section, a vessel can be charged as authorized in § 401.405 for the waters in which the event takes place, if:
(1) A U.S. pilot is retained on board while a vessel's passage is interrupted;
(2) A U.S. pilot's departure from the vessel after the end of an assignment is delayed, and the pilot is detained on board, for the vessel's convenience; or
(3) A vessel's departure or movage is delayed, for the vessel's convenience, beyond the time that a U.S. pilot is scheduled to report for duty, or reports for duty as ordered, whichever is later.
(b) When an order for a U.S. pilot's service is cancelled after that pilot has begun traveling to the designated pickup place, the vessel can be charged for the pilot's reasonable travel expenses to and from the pilot's base; and the vessel can be charged for the time between the pilot's scheduled arrival, or the pilot's reporting for duty as ordered, whichever is later, and the time of cancellation.
(c) Between May 1 and November 30, a vessel is not liable for charges under paragraph (a)(1) or (2) of this section, if the interruption or detention was caused by ice, weather, or traffic.
(d) A pilotage charge made under this section takes the place and precludes payment of any charge that otherwise could be made under § 401.405.
For a situation in which a vessel boards or discharges a U.S. pilot at a point not designated in § 401.450, it could incur additional charges as follows:
(a) Charges for the pilot's reasonable travel expenses to or from the pilot's base, if the situation occurs for reasons outside of the vessel's control, for example for a reason listed in § 401.420(c); or
(b) Charges for associated hourly charges under § 401.405, as well as the pilot's travel expenses as described in paragraph (a) of this section, if the situation takes place for the convenience of the vessel.
(b) Iroquois Lock;
46 U.S.C. 2103, 2104(a), 9303, 9304; Department of Homeland Security Delegation No. 0170.1(II)(92.a), (92.d), (92.e), (92.f).
(a) Each association must maintain records for dispatching, billing, and invoicing, and make them available for Director inspection, using the system currently approved by the Director.
(b) Each association must submit the compiled financial data and any other required statistical data, and written certification of the data's accuracy signed by an officer of the association,
(c) By April 1 of each year, each association must obtain an unqualified audit report for the preceding year, audited and prepared in accordance with generally accepted accounting standards by an independent certified public accountant, and electronically submit that report with any associated settlement statements to the Director by April 7.
(a) Each association must record pilotage transactions using the system currently approved by the Director.
(b) Each pilot must complete a source form in detail as soon as possible after completion of an assignment, with adequate support for reimbursable travel expenses.
(c) Upon receipt, each association must complete the source form by inserting the rates and charges specified in 46 CFR part 401.
46 U.S.C. 2103, 2104(a), 9303, 9304; Department of Homeland Security Delegation No. 0170.1(II)(92.a), (92.d), (92.e), (92.f).
(a) The goal of ratemaking is to promote safe, efficient, and reliable pilotage service on the Great Lakes, by generating for each pilotage association sufficient revenue to reimburse its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and provide an appropriate profit to use for improvements.
(b) Annual reviews of pilotage association expenses and revenue will be conducted in conjunction with an independent party, and data from completed reviews will be used in ratemaking under this part.
(c) Full ratemakings to establish multi-year base rates and interim year reviews and adjustments will be conducted in accordance with § 404.100.
(a) A pilotage association must report each expense item for which it seeks reimbursement through the charging of pilotage rates, and make supporting information available to the Director. The Director must recognize the item as both necessary for providing pilotage service, and reasonable as to its amount when compared to similar expenses paid by others in the maritime or other comparable industry, or when compared with Internal Revenue Service guidelines. The association will be given an opportunity to contest any preliminary determination that a reported item should not be recognized.
(b) The Director applies the following criteria to recognize an expense item as necessary and reasonable within the meaning of paragraph (a) of this section:
(1)
(2)
(3)
(4)
(5)
(6)
(c) The Director does not recognize the following expense items as necessary and reasonable within the meaning of paragraph (a) of this section:
(1) Unreported or undocumented expenses, and expenses that are not reasonable in their amounts or not reasonably related to providing safe, efficient, and reliable pilotage service;
(2) Revenues and expenses from Canadian pilots that are commingled with revenues and expenses from U.S. pilots;
(3) Lobbying expenses; or
(4) Expenses for personal matters.
(a) The Director establishes base pilotage rates by a full ratemaking pursuant to §§ 404.101 through 404.108, conducted at least once every 5 years and completed by March 1 of the first year for which the base rates will be in effect. Base rates will be set to meet the goal specified in § 404.1(a).
(b) In the interim years preceding the next scheduled full rate review, the Director will review the existing rates to ensure that they continue to meet the goal specified in § 404.1(a). If interim-year adjustments are needed, they will be set according to one of the following procedures, selected as the Director deems best suited to adjust the rates to meet that goal:
(1) Automatic annual adjustments, set during the previous full rate review in anticipation of economic trends over the term of the rates set by that review;
(2) Annual adjustments reflecting consumer price changes as documented in the U.S. Bureau of Labor Statistics Midwest Region Consumer Price Index (CPI-U); or
(3) A new full ratemaking.
The Director uses an independent third party to review each pilotage association's expenses, as reported and audited for the last full year for which figures are available, and determines which expense items to recognize for base ratemaking purposes in accordance with § 404.2.
The Director projects the base year's non-compensation operating expenses for each pilotage association, using recognized operating expense items from § 404.101. Recognized operating
(a) The Director determines the base number of pilots needed by dividing each area's peak pilotage demand data by its pilot work cycle. The pilot work cycle standard includes any time that the Director finds to be a necessary and reasonable component of ensuring that a pilotage assignment is carried out safely, efficiently, and reliably for each area. These components may include but are not limited to:
(1) Amount of time a pilot provides pilotage service or is available to a vessel's master to provide pilotage service;
(2) Pilot travel time, measured from the pilot's base, to and from an assignment's starting and ending points;
(3) Assignment delays and detentions;
(4) Administrative time for a pilot who serves as a pilotage association's president;
(5) Rest between assignments, as required by 46 CFR 401.451;
(6) Ten days' recuperative rest per month from April 15 through November 15 each year, provided that lesser rest allowances are approved by the Director at the pilotage association's request, if necessary to provide pilotage without interruption through that period; and
(7) Pilotage-related training.
(b) Peak pilotage demand and the base seasonal work standard are based on averaged available and reliable data, as so deemed by the Director, for a multi-year base period. Normally, the multi-year period is the five most recent full shipping seasons, and the data source is a system approved under 46 CFR 403.300. Where such data are not available or reliable, the Director also may use data, from additional past full shipping seasons or other sources, that the Director determines to be available and reliable.
(c) The number of pilots needed in each district is calculated by totaling the area results by district and rounding them to the nearest whole integer. For supportable circumstances, the Director may make reasonable and necessary adjustments to the rounded result to provide for changes that the Director anticipates will affect the need for pilots in the district over the period for which base rates are being established.
(d) The Director projects, based on the number of persons applying under 46 CFR part 401 to become U.S. Great Lakes registered pilots, and on information provided by the district's pilotage association, the number of pilots expected to be fully working and compensated during the first year of the period for which base rates are being established.
The Director determines base individual target pilot compensation using a compensation benchmark, set after considering the most relevant currently available non-proprietary information. For supportable circumstances, the Director may make necessary and reasonable adjustments to the benchmark. The Director determines each pilotage association's total target pilot compensation by multiplying individual target pilot compensation by the number of pilots projected under § 404.103(d).
The Director calculates each pilotage association's allowed base return on investment by adding the projected adjusted operating expenses from § 404.102 and the total target pilot compensation from § 404.104, multiplied by the preceding year's average annual rate of return for new issues of high grade corporate securities.
The Director calculates each pilotage association's base projected needed revenue by adding the projected adjusted operating expenses from § 404.102, the total target pilot compensation from § 404.104, and the projected return on investment from § 404.105.
(a) The Director initially calculates base hourly rates by dividing the projected needed revenue from § 404.106 by averages of past hours worked in each district's designated and undesignated waters, using available and reliable data for a multi-year period set in accordance with § 404.103(b).
(b) If the result of this calculation initially shows an hourly rate for the designated waters of a district that would exceed twice the hourly rate for undesignated waters, the initial designated-waters rate will be adjusted so as not to exceed twice the hourly undesignated-waters rate. The adjustment is a reallocation only and will not increase or decrease the amount of revenue needed in the affected district.
The Director reviews the base pilotage rates initially set in § 404.107 to ensure they meet the goal set in § 404.1(a), and either finalizes them or first makes necessary and reasonable adjustments to them based on requirements of Great Lakes pilotage agreements between the United States and Canada, or other supportable circumstances. Adjustments will be made consistently with § 404.107(b).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule.
NMFS proposes to implement annual management measures and harvest specifications to establish the allowable catch levels (
Comments must be received by October 13, 2015.
You may submit comments on this document identified by NOAA-NMFS-2015-0096, by any of the following methods:
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Copies of the report “Pacific Mackerel (
Joshua Lindsay, West Coast Region, NMFS, (562) 980-4034.
During public meetings each year, the estimated biomass for Pacific mackerel is presented to the Pacific Fishery Management Council's (Council) CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC), and the biomass and the status of the fishery are reviewed and discussed. The biomass estimate is then presented to the Council along with the recommended overfishing limit (OFL) and acceptable biological catch (ABC) calculations from the SSC, along with the calculated ACL, HG and ACT recommendations, and comments from the Team and Subpanel. Following review by the Council and after reviewing public comment, the Council adopts a biomass estimate and makes its catch level recommendations to NMFS. NMFS manages the Pacific mackerel fishery in the U.S. EEZ off the Pacific coast (California, Oregon, and Washington) in accordance with the FMP. Annual specifications published in the
The CPS FMP and its implementing regulations require NMFS to set these annual catch levels for the Pacific mackerel fishery based on the annual specification framework and control rules in the FMP. These control rules include the HG control rule, which in conjunction with the OFL and ABC rules in the FMP, are used to manage harvest levels for Pacific mackerel, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
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At the June 2015 Council meeting, the Council adopted the “Pacific Mackerel (
Under this proposed action, upon attainment of the ACT, the directed fishing would close, reserving the difference between the HG and ACT (1,000 mt) as a set aside for incidental landings in other CPS fisheries and other sources of mortality. For the remainder of the fishing year incidental landings would also be constrained to a 45-percent incidental catch allowance when Pacific mackerel are landed with other CPS (in other words, no more than 45 percent by weight of the CPS landed per trip may be Pacific mackerel), except that up to 3 mt of Pacific mackerel could be landed incidentally without landing any other CPS. Upon attainment of the HG (21,469 mt), no retention of Pacific mackerel would be allowed in CPS fisheries. In previous years, the incidental set-aside established in the mackerel fishery has been, in part, to ensure that if the directed quota for mackerel was reached that the operation of the Pacific sardine fishery was not overly restricted. There is no directed Pacific sardine fishery for the 2015-2016 season, therefore the need for a high incidental set-aside is reduced. The purpose of the incidental set-aside and the allowance of an incidental fishery is to allow for restricted incidental landings of Pacific mackerel in other fisheries, particularly other CPS fisheries, when the directed fishery is closed to reduce potential discard of Pacific mackerel and allow for continued prosecution of other important CPS fisheries.
The NMFS West Coast Regional Administrator would publish a notice in the
Detailed information on the fishery and the stock assessment are found in the reports “Pacific Mackerel (
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the Assistant Administrator, NMFS, has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.
These proposed specifications are exempt from review under Executive Order 12866 because they contain no implementing regulations.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons:
On June 12, 2014, the Small Business Administration (SBA) issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33467). The rule increased the size standard for Finfish Fishing from $19.0 to 20.5 million, Shellfish Fishing from $ 5.0 to 5.5 million, and Other Marine Fishing from $7.0 to 7.5 million. 78 FR 33656, 33660, 33666 (See Table 1). NMFS conducted its analysis for this action in light of the new size standards.
As stated above, the SBA now defines small businesses engaged in finfish fishing as those vessels with annual revenues of or below $20.5 million. Under the former, lower size standards, all entities subject to this action in previous years were considered small entities, and under the new standards, as described below, they all would continue to be considered small.
The small entities that would be affected by the proposed action are those vessels that harvest Pacific mackerel as part of the West Coast CPS purse seine fleet. The CPS FMP and its implementing regulations requires NMFS to set an OFL, ABC, ACL, HG and ACT for the Pacific mackerel fishery based on the harvest control rules in the FMP. These specific harvest control rules are applied to the current stock biomass estimate to derive these catch specifications, which are used to manage the commercial take of Pacific mackerel. A component of these control rules is that as the estimated biomass decreases or increases from one year to the next, so do the applicable quotas. For the 2015-2016 Pacific mackerel fishing season NMFS is proposing an OFL of 25,291 metric tons (mt), an ABC and ACL of 23,104 mt, an HG of 21,469 mt and an ACT, which is the directed fishing harvest target, of 20,469 mt. These catch specifications are based on a biomass estimate of 120,435 mt.
Pacific mackerel harvest is one component of CPS fisheries off the U.S. West Coast, which primarily includes the fisheries for Pacific sardine, northern anchovy and market squid. Pacific mackerel are principally caught off southern California within the limited entry portion (south of 39 degrees N. latitude; Point Arena, California) of the fishery. Currently there are 58 vessels permitted in the Federal CPS limited entry fishery off California of which about 25 to 39 vessels have been annually engaged in harvesting Pacific mackerel in recent years (2009-2013). For those vessels that caught Pacific mackerel during that time, the average annual per vessel revenue has been about $1.25 million. The individual vessel revenue for these vessels is well below the SBA's threshold level of $20.5 million; therefore, all of these vessels are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule has an equal or similar effect on all of these small entities, and therefore will impact a substantial number of these small entities in the same manner.
NMFS used the ex-vessel revenue information for a profitability analysis, as the cost data for the harvesting operations of CPS finfish vessels was limited or unavailable. For the 2014-2015 fishing year, the maximum fishing level was 29,170 mt and was divided into a directed fishing harvest target (ACT) of 24,170 mt and an incidental set-aside of 5,000 mt. Approximately 3,611 mt was harvested in 2014-2015 fishing season with an estimated ex-vessel value of approximately $940,000. The maximum fishing level for the 2015-2016 Pacific mackerel fishing season is 21,469 mt, with an ACT of 20,469 mt and an incidental set-aside of 1,000 mt. If the fleet were to take the entire 2015-2016 ACT, the potential revenue to the fleet would be approximately $4.7 million (based on average ex-vessel price of $230 per mt during 2013-2014 and 2014-2015), which is the same as what the estimated potential revenue was last year for the 2014-2015 season (which was based on average ex-vessel price of $193 per mt during 2012-2013 and 2013-2014). However, this result will depend greatly on market forces within the fishery, and on the regional availability of the resource to the fleet and the fleets' ability to find schools of Pacific mackerel. The annual average U.S. Pacific mackerel harvest over the last decade (2001-2013) and in recent years (2009-2013) has been about 4,900 mt and 4,500 mt, respectively. In those periods, the landings have not exceeded 11,500 mt. The annual average landings during 2001-2013 and 2009-2013 were only about 20% and 15% of the annual average HGs, respectively. As a result, although this year's ACT represents a decrease compared to the previous fishing season, it is highly unlikely that the ACT proposed in this rule will limit the potential profitability to the fleet from catching Pacific mackerel. Accordingly, vessel income from fishing is not expected to be altered as a result of this rule as it compares to recent catches in the fishery, and specifically the fishery under the previous season's regulations.
Additionally, revenue derived from harvesting Pacific mackerel is typically only one factor determining the overall revenue for a majority of the vessels that harvest Pacific mackerel; as a result, the economic impact to the fleet from the proposed action cannot be viewed in isolation. From year to year, depending on market conditions and availability of fish, most CPS vessels supplement their income by harvesting other species. Many vessels in California also harvest anchovy, sardine, and in particular market squid, making Pacific mackerel only one component of a multi-species CPS fishery. For example, in recent years the annual total fleet revenue from Pacific mackerel alone has ranged from about $200,000 to $1.5 million with average fleet revenue of about $800,000 (or $23,422 per vessel). Thus, the revenue from Pacific mackerel in the CPS fleet is a very small fraction of the revenue whether from CPS species or all fish species. The revenue from Pacific mackerel constitutes about 1.98% and
These vessels typically rely on multiple species for profitability because abundance of mackerel, like the other CPS stocks, is highly associated with ocean conditions and different times of the year, and therefore are harvested at various times and areas throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time; therefore, as abundance levels and markets fluctuate, it has necessitated that the CPS fishery as a whole rely on a group of species for its annual revenues.
Pursuant to the Regulatory Flexibility Act and the SBA's June 20, 2013 and June 14, 2014 final rules (78 FR 37398 and 79 FR 33647, respectively), this certification was developed for this action using the SBA's revised size standards. NMFS considers all entities subject to this action to be small entities as defined by both the former, lower size standards and the revised size standards. Because each affected vessel is a small business, this proposed action is considered to equally affect all of these small entities in the same manner.
Based on the disproportionality and profitability analysis above, the proposed action, if adopted, will not have a significant economic impact on a substantial number of small entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.
This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.
16 U.S.C. 1801
Pursuant to the Federal Advisory Committee Act, notice is hereby given of a special session hosted by the Board for International Food and Agricultural Development (BIFAD). This public session will be held from 9:00 a.m. to 11:00 a.m. on Wednesday, October 14, 2015 at the Des Moines Marriot Downtown Hotel, 700 Grand Avenue, Des Moines, Iowa. The title of the session is
Dr. Brady Deaton, BIFAD Chair, will moderate the special session, which will begin promptly at 9:00 a.m. with opening remarks. The first speaker, Dr. Rob Bertram, USAID Bureau for Food Security's Chief Scientist, will provide an introduction to USAID's nutrition strategy under Feed the Future. The first hour of the session will consist of short presentations by a panel of nutrition experts from the university community. The panelists include Jessica Fanzo from the Bloomberg School of Public Health at Johns Hopkins University; John Hoddinott from the Charles H. Dyson School of Economics and Management at Cornell University; Grace Marquis from the School of Dietetics and Nutrition at McGill University, Canada; and Ana Lydia Sawaya from the Institute of Advanced Studies at the Federal University of Sao Paolo, Brazil. They will discuss emerging trends in the global pattern of malnutrition, including obesity and micronutrient deficiency, cognitive and physical impairments of children that arise from poor nutrition, and the economic and social impacts of malnutrition. The panel will conclude with examples of successful, evidence-based nutrition interventions.
At 10:30 a.m., Chairman Deaton will open the floor for questions to the panelists, as well as general information sharing and dialogue among all participants. At 11:00 a.m. BIFAD Chair Brady Deaton will make closing remarks and adjourn the BIFAD-sponsored special session.
Those wishing to attend the session or obtain additional information about BIFAD should contact Susan Owens, Executive Director and Designated Federal Officer for BIFAD in the Bureau for Food Security at USAID. Interested persons may write to her in care of the U.S. Agency for International Development, Ronald Reagan Building, Bureau for Food Security, 1300 Pennsylvania Avenue NW., Room 2.09-067, Washington, DC 20523-2110 or telephone her at (202) 712-0218.
Office of Inspector General, U.S. Agency for International Development.
Notice.
This notice is hereby given of the appointment of members of the updated U.S. Agency for International Development, Office of Inspector General's Senior Executive Service (SES) Performance Review Board.
August 31, 2015.
Robert S. Ross, Assistant Inspector General for Management, Office of Inspector General, U.S. Agency for International Development, 1300 Pennsylvania Avenue NW., Room 8.08-029, Washington, DC 20523-8700; telephone 202-712-0010; FAX 202-216-3392; Internet Email address:
5 U.S.C. 4314(b)(c) requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel Management at 5 CFR part 430, subpart C and Section 430.307 thereof in particular, one or more SES Performance Review Boards. The board shall review and evaluate the initial appraisal of each USAID OIG senior executive's performance by his or her supervisor, along with any recommendations to the appointing authority relative to the performance of the senior executive. This notice updates the membership of the USAID OIG's SES Performance Review Board as it was last published on December 19, 2014.
Approved: August 31, 2015.
The following have been selected as regular members of the SES Performance Review Board of the U.S. Agency for International Development, Office of Inspector General:
Notice.
This notice lists approved candidates who will comprise a standing roster for service on the Agency's 2015 and 2016 SES Performance Review Boards. The Agency will use this roster to select SES board members, and an outside member for the convening SES Performance Review Board each year. The standing roster is as follows:
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the public and other public agencies to comment on this proposed information collection. This is a new collection for the purpose of measuring changes in fruit and vegetable purchases and consumption, food security, and perceived diet quality and health status among Supplemental Nutrition Assistance Program (SNAP) participants receiving incentives at the point of purchase.
Written comments must be received on or before November 9, 2015.
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 on the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to: Eric Sean Williams, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Eric Sean Williams at 703-305-2576 or via email to
All written comments will be open for public inspection at the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m. Monday through Friday) at 3101 Park Center Drive, Room 1014, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collected should be directed to Eric Sean Williams, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302.
• Participant Survey: Two questions for the participant survey that have not been previously validated will be pretested with 9 SNAP participants. The pretest participants will not be included in the sample for the participant survey. SNAP participants in the intervention and comparison groups will be asked questions about their shopping patterns, knowledge and attitudes about fruits and vegetables, fruit and vegetable intakes, food security, household characteristics, and their experience with the incentive programs. Data collection procedures will be the same for the pre- and post-intervention surveys. At the onset of the voluntary study, a packet containing an advance invitation letter in English and Spanish, a $5 pre-survey incentive, pre-intervention survey, and postage paid return envelope will be mailed to participants. Both letters will include instructions to call a toll-free number; however, the Spanish letter will have an option for Spanish Speakers to complete their survey in Spanish. One week after the initial mailing, participants who have not returned the survey will receive an automated telephone call reminding them to complete and return the survey. Next, three weeks after the initial mailing, a FedEx package will be sent to non-responding participants, to
• Program Staff (Key Informants): State Agencies and Business Grantees will identify program administrators, retail and market operators and representatives from the partnering local community organization(s), to participate in two semi-structured telephone interviews regarding implementation of the incentive program. The interview procedures will be the same for the two interviews; trained project staff will use the interview guide and record the discussions. A thank you postcard will be mailed to all program staff. Since program staff are expected to cooperate with and contribute to the independent evaluation, they will be no monetary incentives for their participation in this study.
• State, Local or Tribal and Business-for-not-for-profit: Grantees will be emailed on a quarterly basis, with a request to complete the online minimum core data survey for all outlets that are involved in the incentive program. As indicated in the program staff section above, grantees are expected to cooperate with and contribute to the independent evaluation; therefore, grantees will not receive monetary incentives for their participation in the evaluation. However, they may receive a summary data report about their FINI grant project.
The burden is broken down by respondent type:
The Broadcasting Board of Governors.
Notice.
In accordance with Section 743 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111-117), the Broadcasting Board of Governors (BBG) is publishing this notice to instruct the public of the availability of its FY-2013 Service Contract Analysis and FY-2014 Service Contract Inventory. They are available on the BBG Internet site at
James McGuirk, Senior Procurement Analyst, IBB Office of Contracts via email at
U.S. Commission on Civil Rights.
Notice; correction.
The U.S. Commission on Civil Rights published a document in the
Melissa Mojnaroski, DFO, at 312-353-8311 or
In the
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
U.S. Census Bureau, Department of Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
To ensure consideration, written comments must be submitted on or before November 9, 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 Erin Love, Census Bureau, HQ-3H468E, Washington, DC 20233; (301) 763-2034 (or via the Internet at
The U.S. Census Bureau is committed to conducting research towards a 2020 Census that costs less while maintaining high quality results. The Census Bureau plans to request an extension of the current OMB approval to conduct a series of small-scale tests to research and evaluate how the use of automation can improve data collection activities. These tests will explore how the Census Bureau can use automated processes to improve efficiency, data quality, and response rates and reduce respondent burden.
This information collection will operate as a generic clearance. The estimated number of respondents and annual reporting hours requested cover both the known and yet to be determined tests. A generic clearance is needed for these tests because though each share similar methodology, the exact number of tests and the explicit details of each test to be performed has yet to be determined. Once information collection plans are defined, they will be submitted on an individual basis in order to keep OMB informed as these tests progress.
The Census Bureau plans to test the use of mobile computing devices, emails, text messages and applications in self-enumeration and data collection tasks. The enumeration functions research will focus on using various applications to enumerate households and persons. The research and evaluation may include: Developing an automated enumeration questionnaire; inviting respondents to participate; reminding them to participate; usability issues; conducting interviews; and ability to toggle to non-English language instrument. To test enumeration functions, the Census Bureau may conduct the enumeration directly with a household member or knowledgeable respondent. The questions asked in these tasks will be content or experimental content for the 2020 Census operations and forms, along with some attitudinal and satisfaction debriefing questions.
The information will be collected through observations, self-response, face-face interviews, and/or telephone interviews.
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.
CNH Industrial America, LLC (CNH), operator of Subzone 133E, submitted a notification of proposed production activity to the FTZ Board for its facilities located within Subzone 133E at sites in Burlington and West Burlington, Iowa. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on September 2, 2015.
The CNH facilities are used for the production and distribution of agricultural and construction equipment, subassemblies and kits. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt CNH from customs duty payments on the foreign-status components used in export production. On its domestic sales, CNH would be able to choose the duty rates during customs entry procedures that apply to decal kits; toolbox kits; air conditioner kits; air conditioner service kits; forklifts; crawler dozers; tractor loaders; tractor loader backhoes; tractor loader backhoe assemblies and attachments (shafts, hook assemblies, buckets, shaft masts); cabs units; forklifts; cab service kits; valve service kits; engine hoods; loaders; bucket arms; boom and dipper assemblies; link assemblies; crawler dozer frames with tracks; axle assemblies; cab assemblies; draper, auger, and corn headers; bucket service kits; strippers for combine headers; wheel mount assemblies; combine header service kits; combine header arm assemblies, frames, and floors; locking tabs; reel tine flap kits; header dividers; hydraulic valve kits; valve part kits; beacon kits; relay voltage kits; electrical control kits; programmable controller kits; electrical service kits; and ignition wire service kits (duty rates range from duty-free to 5.8%) for the foreign-status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
The components and materials sourced from abroad include: Articles of plastic (hoses; hose assemblies; shields; tubes without fittings; non-reinforced tubes, pipes and hoses with fittings; reinforced tubes, pipes and hoses with fittings; caution decals; insulators; fuel caps; steering wheel knobs; handles; spacers; tool boxes; joints; insulators; clamps; clips; retainers; strips; trim; seals; washers; and gaskets); articles of rubber (gaskets; insulation; pads; weather strips and sheets; weather strip profile shapes; insulation; non-reinforced elbows; tubes; and hoses without fittings; metal reinforced hose and hose assemblies without fittings; metal reinforced hoses; hose assemblies and tubes with fittings; textile reinforced rubber hoses; hose assemblies and sleeves without fittings; textile reinforced flexible hoses; air conditioner hoses; hose assemblies with fittings; reinforced (other materials) air hoses; flexible hoses; hydraulic hoses; alternator hoses and hose assemblies without fittings; reinforced (other materials) radiator hoses; pipes; flexible hoses with fittings; textile reinforced transmission belts; v-belts (60 to 180 cm outside circumference); textile reinforced transmission belts and v-belts (180 to 240 cm outside circumference); other transmission v-belts; textile reinforced belts; transmission belts; belt assemblies; belts; buffers; gaskets; seals; floor mats; liners; o-rings; packing; protection caps; glass stops; covers; shifter control lever boots; grommets; bellows; bushings; insulator blocks; mounts; pads; bands; stoppers and strips); coated paper gaskets and washers; training manuals; drawings; schematics; catalogs; rubber canvas radiator seals; anti-skid mats and strips; tempered safety glass for cabs of vehicles of chapter 87; mirrors and mirror assemblies; cold-rolled steel hollow tubes; stainless steel tubes; articles of iron or steel (tubes; couplings; connectors; fittings; elbows; stems; adapters; unions; o-rings; tees; cables; cable assemblies; ropes; wire ropes; roller chains; roller chain assemblies; chains; chain kits and assemblies; chain links and assemblies; screws; bolts; nuts; plugs; rods; retainers; rings; latches; washers; shims; pins; pin assemblies; rivets; springs; clamps; brackets; supports; racks; tool boxes; clips; and flanges); copper ground straps and cables; washers; and rivets; hex wrench sets; hammers; gathering chain tool assemblies; wrenches; latches; locks; catches; handles; lock assemblies; locks; lock keys; ignition keys; hinges; supports; iron/steel/aluminum/zinc/other base metal angles, dampers, brackets, gas struts, shock absorbers, springs, supports, plates, and mounts; plugs; radiator caps; covers; dust caps of base metal; decals; name plates; identity plates; emblems; engines; belt tensioners; hydraulic tubes; hydraulic cylinders; hydraulic motors and assemblies; fuel pumps; hydraulic fluid power pumps; hydraulic fluid power gear pumps; master cylinders; brake cylinders; pump modules and related parts (pump cores, covers, diaphragms, filters, gear sets, housings, impellers, repair kits, nozzles, pistons and plates); fans and fan assemblies; blowers and blower assemblies; turbochargers; compressors and compressor kits; heater cores; air conditioners; evaporator core assemblies; condensers; receiver-dryer assemblies; water filters; water screens; water strainers; oil filters; fuel filters; filter elements; hydraulic filters; filter receiver dryers; heaters; thermostats; filter cartridges; filter elements; filter strainers; air filters; air cleaners and assemblies; catalytic converters; cab filters; air dryer assemblies; receiver dryer assemblies; air cleaner manifolds and housing; oil and fuel filter elements; strainer assemblies; sprayer parts (tips, tubes, nozzles, tanks, supports, sprays, spindles, spacers, retainers, reservoirs for sprayers); jacks; lift cylinders; counterweights; mufflers; valve plates; buckets and bucket attachments; channels; wrist rest assemblies; bezels, brackets, bushings, dippers and arms for buckets; link blocks; frames; support brackets; elbows; cabs; shovel brackets; baffles; shovel discs; mounts; auger floor troughs; caps; door panels; tank ducts; fuel tanks; air intake tubes; header frames; cutterbars; conversion kits; accumulators; rotary brush attachments; wipers; straps; wiper blades and assemblies; hydraulic valves; center joints; swivel joints; joysticks; copper, iron or steel check valves; aspirator kits; breathers; plugs; poppets; copper/iron/steel shut-off valves, control valves, drain cocks and assemblies, quick couplings, valve fittings, and stop valves; copper/iron/steel connecting and coupling blocks, cylinder caps, cartridges, coils, control blocks, hydraulic manifolds, plugs, pistons, plug covers, control and hydraulic valves for non-hand operated valves; ball bearings; bearings and bearing assemblies; roller bearings; bearing cups; shims; spacers; tapered bearings; thrust washers; balls; collars; rings; races; transmission shafts; drive shafts and shaft assemblies; bearing housings; bearing carriers; bearing supports; torque converters; transmissions; drive assemblies; gear reduction units; reducers; final drive housings; swing
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is October 20, 2015.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
Diane Finver at
The City of Conroe, Texas, grantee of FTZ 265, submitted a notification of proposed production activity to the FTZ Board on behalf of Bauer Manufacturing Inc. (Bauer), located in Conroe, Texas. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on August 19, 2015.
Bauer has authority to produce pile drivers and leads, boring machinery, foundation construction equipment, foundation casings, related parts and sub-assemblies, and tools and accessories for pile drivers and boring machinery within Site 1 of FTZ 265. The current request would add new finished products (stationary oil/gas drilling rigs and related subassemblies) and foreign-status materials and components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Bauer from customs duty payments on the foreign status materials and components used in export production. On its domestic sales, Bauer would be able to choose the duty rate during customs entry procedures that applies to pile drivers and leads, boring machinery, foundation construction equipment, foundation casings, related parts and sub-assemblies, tools and accessories for pile drivers and boring machinery, and stationary oil/gas drilling rigs and related subassemblies (duty rates: Free, 2.9%, or 5.0%) for the foreign status materials and components noted below and in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
The materials and components sourced from abroad include: Subassemblies and components for stationary drilling rigs; sealing paper for gaskets; printed materials (protective covers for keyboards); electric voltage converters; cotton transport straps (Subheading 5806.31, 8.8%); antennas; steel flanges; expansion tanks; and, metal clamps (duty rate ranges from free to 8.8%). Inputs included in textile category 229 (classified within HTSUS Subheading 5806.31) will be admitted to the zone in privileged foreign status (19 CFR 146.41), thereby precluding inverted tariff benefits on such items.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is October 20, 2015.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
For further information, contact Pierre Duy at
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by
Subzone 77E was approved on December 20, 2010 (Board Order 1735, 76 FR 87, 01/03/2011) and currently consists of one site (23.3 acres) located at 4155 Quest Way, Memphis.
The applicant is requesting authority to expand the subzone to include two additional sites: Proposed Site 2 (19.91 acres)—5800 Challenge Drive, Memphis; and, Proposed Site 3 (20.9 acres)—4650 Quality Drive, Memphis. The existing subzone and expanded portion would be subject to the existing activation limit of FTZ 77. No authorization for production activity has been requested at this time.
In accordance with the FTZ Board's regulations, Kathleen Boyce of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is October 20, 2015. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to November 4, 2015.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
For further information, contact Kathleen Boyce at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In response to a request from the Petitioner,
George McMahon or Eric Greynolds, AD/CVD Operations Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1167 and (202) 482-6071, respectively.
The merchandise subject to this order is certain hot-rolled carbon steel flat products from India. The merchandise subject to this order is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Products subject to this order may also enter under HTSUS subheadings: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise subject to this order is dispositive.
The Department conducted this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our preliminary results, see the Preliminary Decision Memorandum. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Ispat, JSW, JSW Ispat, and Tata submitted timely-filed certifications that they had no exports, sales, or entries of subject merchandise during the POR,
Upon issuance of the final results of this administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department intends to issue assessment instructions to CBP 15 days after publication of the final results of this review.
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2) of the Act: (1) The cash deposit rates for respondents noted above, which claimed no shipments, will remain unchanged from the rates assigned to the companies in the most recently completed review of the companies; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 38.72 percent, the all-others rate established in the LTFV investigation, as amended. These cash deposit requirements, when imposed, shall remain in effect until further notice.
Pursuant to 19 CFR 351.309(c)(1)(ii) interested parties may submit case briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system within 30 days of publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) The number of participants; and (3) A list of the issues parties intend to discuss. If a request for a hearing is made, the Department intends to hold the hearing at the U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, at a time and location to be determined.
Unless the deadline is extended pursuant to section 751(a)(2)(B)(iv) of the Act, the Department will issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their case briefs, within 120 days after issuance of these preliminary results.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and increase the subsequent
These preliminary results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is rescinding its administrative review of the antidumping duty order on certain welded carbon steel standard pipes and tubes from India for the period of review (POR) May 1, 2014, through April 30, 2015.
Dmitry Vladimirov, 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: 202-482-0665.
On May 29, 2015, based on a timely request for review by Allied Tube & Conduit and JMC Steel Group, domestic interested parties and producers of certain welded carbon steel standard pipes and tubes from India,
On August 18, 2015, Allied Tube & Conduit and JMC Steel Group withdrew their request for an administrative review.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. Allied Tube & Conduit and JMC Steel Group withdrew their request for review within the 90-day time limit. Because no other party requested a review, the Department is rescinding this administrative review of the antidumping duty order on certain welded carbon steel standard pipes and tubes from India.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of certain welded carbon steel standard pipes and tubes from India during the POR at rates equal to the cash deposit rate of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after the publication of this notice in the
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO, in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is rescinding its administrative review of the antidumping duty order on silicomanganese from Kazakhstan for the period of review (POR) May 1, 2014, through April 30, 2015.
Hermes Pinilla, 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: 202-482-3477.
On June 1, 2015, based on a timely request for review by Eramet Marietta, Inc. (Eramet) and Felman Production, LLC (Felman), domestic interested parties and producers of
On August 25, 2015, Eramet and Felman withdrew their request for an administrative review.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. Eramet and Felman withdrew their request for review within the 90-day time limit. Because no other party requested a review, the Department is rescinding this administrative review of the antidumping duty order on silicomanganese from Kazakhstan.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of silicomanganese from Kazakhstan during the POR at rates equal to the cash deposit rate of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after the publication of this notice in the
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO, in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On March 6, 2015, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp from India.
Blaine Wiltse or Elizabeth Eastwood, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6345 or (202) 482-3874, respectively.
This review covers 211 producers/exporters. The respondents which the Department selected for individual examination are Devi Fisheries Limited (Devi Fisheries) and Falcon Marine Exports Limited/K.R. Enterprises (Falcon). The respondents which were not selected for individual examination are listed in the “Final Results of the Review” section of this notice.
On March 6, 2015, the Department published the
On June 23, 2015, we postponed the final results by 60 days, until September 2, 2015.
The merchandise subject to the order is certain frozen warmwater shrimp.
All issues raised in the case briefs by parties are listed in the Appendix to this notice and addressed in the Issues and Decision Memorandum. Parties can find a complete discussion of these issues and the corresponding recommendations in this public memorandum, which is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on a review of the record and comments receive from interested parties regarding our
The POR is February 1, 2013, through January 31, 2014.
We are assigning the following dumping margins to the firms listed below as follows:
Review-Specific Average Rate Applicable to the Following Companies:
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries.
Pursuant to 19 CFR 351.212(b)(1), because Devi Fisheries and Falcon reported the entered value for all of their U.S. sales, we calculated importer-specific
For the companies which were not selected for individual examination, we used as the assessment rate the cash deposit rate assigned to these exporters, in accordance with our practice.
The Department's “automatic assessment” practice will apply to entries of subject merchandise during the POR produced by Devi Fisheries or Falcon for which these companies did not know that the merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this practice, see
The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.
The following cash deposit requirements will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for the reviewed companies will be the rates shown above, except if the rate is less than 0.50 percent (
This notice serves as the only reminder to importers of their
In accordance with 19 CFR 351.305(a)(3), this notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213(h).
International Trade Administration, U.S. Department of Commerce.
Notice and Request for Comments.
The International Trade Administration invites submission of comments from the public and relevant industries on influenza surveillance and response, related to the implementation of the World Health Organization (WHO) Pandemic Influenza Preparedness Framework (PIP-FW) (
Written comments must be submitted on or before October 7, 2015. Comments should be no more than 15 pages. Business-confidential information should be clearly identified as such.
Submissions should be made via the Internet at
Questions regarding the submission of comments should be directed to Jennifer Boger at (202) 482-3360,
Background: In 2007, the Sixtieth World Health Assembly passed a resolution calling on the Director-General to convene an intergovernmental meeting to develop mechanisms to ensure the continued sharing of potential pandemic influenza viruses, and the fair and equitable sharing of benefits arising from such sample sharing. For four years, WHO member states met as an Intergovernmental Mechanism, as well as informally, to negotiate the Pandemic Influenza Preparedness Framework (PIP-FW). The PIP-FW came into effect on May 24, 2011 when it was unanimously adopted by the Sixty-fourth World Health Assembly.
The key goals of PIP are to improve and strengthen global influenza pandemic preparedness by:
(1) Ensuring the global sharing of influenza viruses with human pandemic potential for continuous global monitoring and assessment of risks, and for the development of safe and effective countermeasures. The PIP-FW provides a transparent mechanism for sharing virus samples, based on two Standard Material Transfer Agreements (SMTAs) that specify the conditions for samples passed within and outside of the Global Influenza Surveillance and Response System (GISRS), and a traceability mechanism to monitor the movement of samples.
(2) Increasing countries' access to vaccines and other pandemic related resources. Two innovative and complementary benefit-sharing mechanisms pool monetary and in-kind contributions from entities that use the GISRS to enhance pandemic influenza preparedness and response capacity for countries in need and at risk of pandemic influenza: The annual partnership contribution and the SMTA-2.
At the core of the PIP-FW is a robust Global Influenza Surveillance and Response System (GISRS, previously called the Global Influenza Surveillance Network or GISN). Section 7.4.2 of the PIP-FW provides that: “The Framework and its Annexes will be reviewed by 2016 with a view to proposing revisions reflecting development as appropriate, to the World Health Assembly in 2017, through the Executive Board.” It is in anticipation of the 2016 review that the U.S. Department of Commerce seeks comments on the following points:
(1) Experiences, best practices, opportunities, and challenges in advancing the PIP-FW over the past five years.
(2) Experiences relating to the status and process of concluding Standard Material Transfer Agreements (SMTA2).
(3) Use of partnership contributions and WHO efforts to strengthen the GISRS and overall global preparedness and response capability/capacity.
(4) How changing technology has impacted or has the ability to impact the existing PIP-FW.
(5) Other matters related to prevention, planning and response whose resolution will be integral for the effective operation of a global influenza pandemic response.
The facts and information obtained from written submissions will be used to inform the participation of the U.S. Department of Commerce in the interagency process to prepare for United States participation for the five-
The Department of Commerce invites comments from civil society organizations as well as pharmaceutical and medical technology industries and other interested members of the public on a number of issues regarding pandemic influenza preparedness and response. Entities making submissions may be contacted for further information or explanation and, in some cases, meetings with submitters may be requested.
NIST, 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 November 9, 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 and instructions should be directed to Diane Henderson, Manufacturing Extension Partnership, 100 Bureau Drive, Mail Stop 4800, 301-975-5105,
The National Institute of Standards and Technology's (NIST) Hollings Manufacturing Extension Partnership (MEP) works with small and medium-sized U.S. manufacturers to help them create and retain jobs, increase profits, and save time and money. The nationwide network provides a variety of services, from innovation strategies to process improvements to sustainable manufacturing, supply chain and technology acceleration services. MEP centers also work with partners at the State and Federal levels on programs that put manufacturers in position to develop new customers, expand into new markets and create new products.
As a program of the U.S. Department of Commerce, MEP offers a range of effective resources to help manufacturers identify opportunities that will accelerate and strengthen their growth and competitiveness in the global marketplace.
MEP is a nationwide network of more than 1,200 technical experts—located in every State—serving as trusted business advisors focused on transforming U.S. manufacturers to compete globally, supporting supply chain integration, and providing access to technology for improved productivity. MEP is built around manufacturing extension centers locally positioned throughout the 50 States and Puerto Rico. MEP Centers are a diverse network of State, non-profit university-based, and other non-profit organizations, offering products and services that address the critical needs of their local manufacturers.
Each MEP Center works directly with area manufacturers to provide expertise and services tailored to their most critical needs, ranging from process improvement and workforce development to business practices and technology transfer. Additionally, MEP Centers connect manufacturers with government and trade associations, universities and research laboratories, and a host of other public and private resources to help them realize individual business goals.
Through local and national resources, MEP Centers have helped thousands of manufacturers reinvent themselves, increase profits, create jobs and establish a foundation for long-term business growth and productivity.
This request is for the information collection requirements associated with submission of proposals for NIST MEP funding. The intent of the collection is to meet statutory requirements for NIST MEP, as well as compliance with 15 U.S.C. 278k, as implemented in 15 CFR part 290.
Electronically via
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before November 9, 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 and instructions should be directed to Minling Pan, National Marine Fisheries Service, (808) 725-5349 or
This request is for a new information collection.
The National Marine Fisheries Service (NMFS) proposes to collect information about annual base fishing expenses in the American Samoa longline fishery with which to conduct economic analyses that will improve fishery management in those fisheries; satisfy NMFS' legal mandates under Executive Order 12866, the Magnuson-Steven Fishery Conservation and Management Act (U.S.C. 1801
The economic surveys will be conducted via in-person interviews with fishing vessel owners and operators.
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; request for comments.
The Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application contains all of the required information and warrants further consideration. This Exempted Fishing Permit would allow four commercial fishing vessels to fish outside of the limited access sea scallop regulations in support of study investigating the effect different dredge tow cable scope ratios have on dredge pitch and catch rates using the Turtle Deflector Dredge and Low Profile Dredge designs.
Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed Exempted Fishing Permits.
Comments must be received on or before September 25, 2015.
You may submit written comments by any of the following methods:
•
•
Shannah Jaburek, Fisheries Management Specialist, 978-282-8456.
NOAA has preliminarily awarded the Coonamesset Farm Foundation (CFF) a grant through the 2015 Saltonstall Kennedy grant program, in support of a project titled “Improving an Ecosystem Friendly Scallop Dredge.” To conduct this research, CFF submitted a complete application for an EFP on August 6, 2015. The project would look at the effect different scope ratios have on dredge pitch and catch rates using the Turtle Deflector Dredge (TDD) and Low Profile Dredge (LPD) designs. The project would also utilize an underwater camera attached to the dredge frames to capture fish dredge interactions.
CFF is requesting exemptions that would allow four commercial fishing vessels be exempt from the Atlantic sea scallop days-at-sea (DAS) allocations at 50 CFR 648.53(b); crew size restrictions at § 648.51(c); and rotational closed area exemptions for Closed Area I at § 648.58(a), Closed Area II at § 648.58(b),
Four vessels would conduct scallop dredging in October 2015-April 2016, on four 7-day trips, for a total of 28 DAS. Each trip would complete approximately 50 tows per trip for an overall total of 200 tows for the project. Trips would take place in the open areas of southern New England and Georges Bank as well as in Georges Bank scallop access areas that are closed. Trips would be centralized around areas with high yellowtail and winter flounder bycatch and in areas that contain a wide range of scallop sizes to examine changes in size selectivity due to dredge design and wire scope.
All tows would be conducted in tandem using one TDD and one LPD for a duration of 60 minutes with a tow speed range of 4-5.5 knots. Both dredges would be 15 feet (4.57 meters) in width using 4-inch (10.16 cm) rings, and would be rigged with a 7-row apron, and twine top hanging ratio of 2:1. Both dredges would be equipped with a regulation turtle chain mat for any tows west of 71° W. longitude. The LPD dredge in comparison to the TDD dredge has a reduced frame angle from 45° to 22.5°, an extended shoe from 15 inches (38.10 cm) to 22 inches (55.88 cm), and a reduced frame height from 15 inches (38.10) to 9.5 inches (24.13 cm). Each tow pair would be conducted in a straight line varying between long (4:1) and short (3:1) scope ratios in an AB-BA alternating pattern. Scope is the ratio of deployed towing cable to ocean depth.
To film finfish interactions, both dredge frames would have an underwater camera attached to the outer frame bars facing the depressor plate. Each interaction would be recorded using Observer XT computer software and would fall into three categories: Horizontal escape where the fish swims perpendicular to the dredge; vertical escape where the fish swims over the frame; and overcome/capture where the fish passes under the cutting bar or through the openings between the depressor plate and cutting bar. Filming will help test the hypothesis that the LPD frame aids in flatfish escapement and reduces interaction time with the dredge potentially, reducing incidental mortality rates.
For all tows, the sea scallop catch would be counted into baskets and weighed. One basket from each dredge would be randomly selected and the scallops would be measured in 5-mm increments to determine size selectivity. Finfish catch would be sorted by species then counted, weighed, and measured in 1-mm increments. Depending on the volume of scallops and finfish captured, the catch would be subsampled as necessary. No catch would be retained for longer than needed to conduct sampling and no catch would be landed for sale.
CFF needs these exemptions to allow them to conduct experimental dredge towing without being charged DAS, as well as deploy gear in access areas that are currently closed to scallop fishing. Participating vessels need crew size waivers to accommodate science personnel and possession waivers will enable them to conduct finfish sampling activities.
If approved, the applicant may request minor modifications and extensions to the EFP throughout the year. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope or impact of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.
16 U.S.C. 1801
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before November 9, 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 and instructions should be directed to Lisa White, (301) 427-8402 or
This request is for an extension of a currently approved information collection.
Reporting injury to and/or mortalities of marine mammals is mandated under Section 118 of the Marine Mammal Protection Act. This information is required to determine the impacts of commercial fishing on marine mammal populations. This information is also used to categorize commercial fisheries into Categories I, II, or III. Participants in the first two categories must be authorized to take marine mammals, while those in Category III are exempt from that requirement. All categories must report injuries or mortalities on a National Marine Fisheries Service form.
Respondents have a choice of either electronic or paper forms. Methods of submittal include online forms, email of electronic or scanned forms, and mail
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public workshops.
Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in October, November, and December of 2015. Certain fishermen and shark dealers are required to attend a workshop to meet regulatory requirements and to maintain valid permits. Specifically, the Atlantic Shark Identification Workshop is mandatory for all federally permitted Atlantic shark dealers. The Protected Species Safe Handling, Release, and Identification Workshop is mandatory for vessel owners and operators who use bottom longline, pelagic longline, or gillnet gear, and who have also been issued shark or swordfish limited access permits. Additional free workshops will be conducted during 2016 and will be announced in a future notice.
The Atlantic Shark Identification Workshops will be held on October 8, November 12, and December 3, 2015.
The Protected Species Safe Handling, Release, and Identification Workshops will be held on October 7, October 21, November 4, November 18, December 2, and December 16, 2015.
See
The Atlantic Shark Identification Workshops will be held in Somerville, MA; Mount Pleasant, SC; and Largo, FL.
The Protected Species Safe Handling, Release, and Identification Workshops will be held in Panama City, FL; Warwick, RI; Wilmington, NC; Largo, FL; Kenner, LA; and Ronkonkoma, NY.
See
Rick Pearson by phone: (727) 824-5399, or by fax: (727) 824-5398.
The workshop schedules, registration information, and a list of frequently asked questions regarding these workshops are posted on the Internet at:
Since January 1, 2008, Atlantic shark dealers have been prohibited from receiving, purchasing, trading, or bartering for Atlantic sharks unless a valid Atlantic Shark Identification Workshop certificate is on the premises of each business listed under the shark dealer permit that first receives Atlantic sharks (71 FR 58057; October 2, 2006). Dealers who attend and successfully complete a workshop are issued a certificate for each place of business that is permitted to receive sharks. These certificate(s) are valid for 3 years. Approximately 113 free Atlantic Shark Identification Workshops have been conducted since January 2007.
Currently, permitted dealers may send a proxy to an Atlantic Shark Identification Workshop. However, if a dealer opts to send a proxy, the dealer must designate a proxy for each place of business covered by the dealer's permit which first receives Atlantic sharks. Only one certificate will be issued to each proxy. A proxy must be a person who is currently employed by a place of business covered by the dealer's permit; is a primary participant in the identification, weighing, and/or first receipt of fish as they are offloaded from a vessel; and who fills out dealer reports. Atlantic shark dealers are prohibited from renewing a Federal shark dealer permit unless a valid Atlantic Shark Identification Workshop certificate for each business location that first receives Atlantic sharks has been submitted with the permit renewal application. Additionally, trucks or other conveyances that are extensions of a dealer's place of business must possess a copy of a valid dealer or proxy Atlantic Shark Identification Workshop certificate.
To register for a scheduled Atlantic Shark Identification Workshop, please contact Eric Sander at
To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items to the workshop:
• Atlantic shark dealer permit holders must bring proof that the attendee is an owner or agent of the business (such as articles of incorporation), a copy of the applicable permit, and proof of identification.
• Atlantic shark dealer proxies must bring documentation from the permitted dealer acknowledging that the proxy is attending the workshop on behalf of the permitted Atlantic shark dealer for a specific business location, a copy of the
The Atlantic Shark Identification Workshops are designed to reduce the number of unknown and improperly identified sharks reported in the dealer reporting form and increase the accuracy of species-specific dealer-reported information. Reducing the number of unknown and improperly identified sharks will improve quota monitoring and the data used in stock assessments. These workshops will train shark dealer permit holders or their proxies to properly identify Atlantic shark carcasses.
Since January 1, 2007, shark limited-access and swordfish limited-access permit holders who fish with longline or gillnet gear have been required to submit a copy of their Protected Species Safe Handling, Release, and Identification Workshop certificate in order to renew either permit (71 FR 58057; October 2, 2006). These certificate(s) are valid for 3 years. As such, vessel owners who have not already attended a workshop and received a NMFS certificate, or vessel owners whose certificate(s) will expire prior to the next permit renewal, must attend a workshop to fish with, or renew, their swordfish and shark limited-access permits. Additionally, new shark and swordfish limited-access permit applicants who intend to fish with longline or gillnet gear must attend a Protected Species Safe Handling, Release, and Identification Workshop and submit a copy of their workshop certificate before either of the permits will be issued. Approximately 214 free Protected Species Safe Handling, Release, and Identification Workshops have been conducted since 2006.
In addition to certifying vessel owners, at least one operator on board vessels issued a limited-access swordfish or shark permit that uses longline or gillnet gear is required to attend a Protected Species Safe Handling, Release, and Identification Workshop and receive a certificate. Vessels that have been issued a limited-access swordfish or shark permit and that use longline or gillnet gear may not fish unless both the vessel owner and operator have valid workshop certificates onboard at all times. Vessel operators who have not already attended a workshop and received a NMFS certificate, or vessel operators whose certificate(s) will expire prior to their next fishing trip, must attend a workshop to operate a vessel with swordfish and shark limited-access permits that uses longline or gillnet gear.
To register for a scheduled Protected Species Safe Handling, Release, and Identification Workshop, please contact Angler Conservation Education at (386) 682-0158.
To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items with them to the workshop:
• Individual vessel owners must bring a copy of the appropriate swordfish and/or shark permit(s), a copy of the vessel registration or documentation, and proof of identification.
• Representatives of a business-owned or co-owned vessel must bring proof that the individual is an agent of the business (such as articles of incorporation), a copy of the applicable swordfish and/or shark permit(s), and proof of identification.
• Vessel operators must bring proof of identification.
The Protected Species Safe Handling, Release, and Identification Workshops are designed to teach longline and gillnet fishermen the required techniques for the safe handling and release of entangled and/or hooked protected species, such as sea turtles, marine mammals, and smalltooth sawfish. In an effort to improve reporting, the proper identification of protected species will also be taught at these workshops. Additionally, individuals attending these workshops will gain a better understanding of the requirements for participating in these fisheries. The overall goal of these workshops is to provide participants with the skills needed to reduce the mortality of protected species, which may prevent additional regulations on these fisheries in the future.
16 U.S.C. 1801
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before November 9, 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 Tom Sminkey, Ph.D., (301) 427-8177 or
This request is for extension of a currently approved information collection.
Marine recreational anglers are surveyed to collect catch and effort data, fish biology data, and angler socioeconomic characteristics. These
Marine recreational fishing catch and effort data are collected through a combination of mail surveys, telephone surveys and on-site intercept surveys with recreational anglers. Amendments to the Magnuson-Stevens Fishery Conservation and Management Act (MSA) require the development of an improved data collection program for recreational fisheries. To partially meet these requirements, NOAA Fisheries designed and implemented a new Access-Point Angler Intercept Survey (APAIS) in 2013 to ensure better coverage and representation of recreational fishing activity.
The APAIS intercepts marine recreational fishers at public-access sites in coastal counties from Maine to Louisiana, Hawaii, and Puerto Rico, to obtain information about the just-completed day's fishing activity. Respondents are asked about the time and type of fishing, the angler's avidity and residence location, and details of any catch of finfish. Species identification, number, and size are collected for any available landed catch. Data collected from the APAIS are used to estimate the catch per angler of recreational saltwater fishers. These APAIS estimates are combined with estimates derived from independent but complementary surveys of fishing effort, the Coastal Household Telephone Survey and the For-Hire Survey, to estimate total, state-level fishing catch, by species, and participation. These estimates are used in the development, implementation, and monitoring of fishery management programs by the NMFS, regional fishery management councils, interstate marine fisheries commissions, and state fishery agencies.
Information will be collected through onsite in-person interviews.
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; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we, NMFS, have issued an incidental harassment authorization (IHA) to the Washington State Department of Transportation Ferries System (WSF) to harass, by Level B harassment only, small numbers of eight marine mammal species incidental to construction work associated with the Mukilteo Ferry Terminal replacement project in Mukilteo, Snohomish County, Washington.
This authorization is effective from September 1, 2015 through August 31, 2016.
Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.
An electronic copy of WSF's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “ . . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. Except with respect to
On November 6, 2014, WSF submitted a request to NOAA requesting an IHA for the possible harassment of small numbers of eight marine mammal species incidental to construction work associated with the Mukilteo Ferry Terminal replacement project in Mukilteo, Snohomish County, Washington. The new terminal will be located to the east of the existing location at the site of the former U.S. Department of Defense Fuel Supply Point facility, known as the Tank Farm property, which includes a large pier extending into Possession Sound. Completion of the entire project will occur over 4 consecutive years. WSF plans to submit an IHA request for each consecutive year of construction. WSF previously received an IHA on July 25, 2014 (79 FR 43424) which was active from September 1, 2014 through August 31, 2015. However, the project was delayed for one year and did not begin until August 1, 2015. The IHA application currently under review would cover work from September 1, 2015 through August 31, 2016. Due to NMFS, U.S. Fish and Wildlife Service (USFWS), and Washington State Department of Fish and Wildlife (WDFW) in-water work timing restrictions to protect salmonids listed under the Endangered Species Act (ESA), planned WSF in-water construction is limited each year to August 1 through February 15. For removal of the Tank Farm Pier, which is the first stage of the project, in-water construction will take place between August 1, 2015 and February 15, 2016; and continue between August 1, 2016 and February 15, 2017, if pier removal is not completed during the 2015/16 work window. A new MMPA IHA application will be submitted for subsequent construction years for this project. Species that may be exposed to Level B harassment include Pacific harbor seal (
WSF is seeking an IHA for the first year of construction work associated with the Mukilteo Ferry Terminal replacement project in Mukilteo, Snohomish County, Washington. The IHA covers the initial phase of the project which is the demolition and removal of the Mukilteo Tank Farm Pier. Piles will be removed with a vibratory hammer or by direct pull using a chain wrapped around the pile.
WSF previously received an IHA on July 25, 2014 (79 FR 43424) which was active from September 1, 2014 through August 31, 2015. However, the project was delayed for almost a full year and did not begin until August 1, 2015. The IHA application currently under review would cover work from September 1, 2015 through August 31, 2016. All existing pier demolition and pile removal work will be done under these two successive permits. WSF in-water construction is limited each year to August 1 through February 15. For removal of the Tank Farm Pier, in-water construction is planned to take place between August 1, 2015 and February 15, 2016; and continue in August 1, 2016 to February 15, 2017, if pier removal and dredging is not completed during the 2015/16 work window.
The Mukilteo Tank Farm is located within the city limits of Mukilteo and Everett, Snohomish County, Washington. The property is located on the shore of Possession Sound, an embayment of the inland marine waters of Puget Sound.
We provided a description of the proposed action in our
The Mukilteo Tank Farm Pier, which has not been used for fuel transfers since the late 1970s, covers approximately 138,080 ft
A notice of NMFS' proposal to issue an IHA was published in the
There are eight marine mammal species known to occur in the vicinity of the project which may be subjected to Level B harassment. These include the Pacific harbor seal, California sea lion, Steller sea lion, harbor porpoise, Dall's porpoise, killer (southern resident and transient), gray whale, and humpback whale.
We have reviewed WSF's detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Section 3 of WSF's application as well as the proposed incidental harassment authorization published in the
Table 1 lists marine mammal stocks that could occur in the vicinity of the Mukilteo project that may be subject to Level B harassment and summarizes key information regarding stock status and abundance. Please see NMFS' Stock Assessment Reports (SAR), available at
The
The
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses.
Measurements from similar pile driving events were coupled with practical spreading loss to estimate zones of influence (ZOI; see “Estimated Take by Incidental Harassment”). ZOIs are often used to establish a mitigation zone around each pile (when deemed practicable) to prevent Level A harassment to marine mammals, and also provide estimates of the areas within which Level B harassment might occur. ZOIs may vary between different diameter piles and types of installation methods. WSF will employ the following mitigation measures:
(a) Conduct briefings between construction supervisors and crews and marine mammal monitoring teams prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
(b) For in-water heavy machinery work other than pile driving (using,
The following measures apply to WSF's mitigation through shutdown and disturbance:
If Southern Residents approach the zone of influence (ZOI) during vibratory pile removal, work will be paused until the Southern Residents exit the ZOI. The ZOI is the area co-extensive with shutdown and Level B harassment zones.
If any killer whales approach the ZOI during vibratory pile removal, and it is unknown whether they are Southern Resident killer whales or transients, it shall be assumed they are Southern Residents and work will be paused until the whales exit the ZOI.
If any Southern Residents enter the ZOI before they are detected, work will be paused until the Southern Residents exit the ZOI to avoid further Level B harassment take.
NMFS has carefully evaluated WSF's proposed mitigation measures and considered their effectiveness in past implementation to determine whether they are likely to effect the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.
Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
(1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
(2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only).
(5) Avoidance or minimization of adverse effects to marine mammal
(6) For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of WSF's proposed measures, including information from monitoring of implementation of mitigation measures very similar to those described here under previous IHAs from other marine construction projects, we have determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.
Any monitoring requirement we prescribe should improve our understanding of one or more of the following:
(1) An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;
(2) An increase in our understanding of how many marine mammals are likely to be exposed to levels of pile driving that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;
(3) An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);
Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);
Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
(4) An increased knowledge of the affected species; and
(5) An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
WSF has consulted with NMFS to create a marine mammal monitoring plan as part of the IHA application for this project. The monitoring plan proposed by WSF can be found in its IHA application. A summary of the primary components of the plan follows.
WSF will conduct briefings between the construction supervisors and the crew and protected species observers (PSOs) prior to the start of pile-driving activity, marine mammal monitoring protocol and operational procedures.
Prior to the start of pile driving, the Orca Network and/or Center for Whale Research will be contacted to find out the location of the nearest marine mammal sightings. The Orca Sightings Network consists of a list of over 600 (and growing) residents, scientists, and government agency personnel in the U.S. and Canada. Sightings are called or emailed into the Orca Network and immediately distributed to other sighting networks including: The NMFS Northwest Fisheries Science Center, the Center for Whale Research, Cascadia Research, the Whale Museum Hotline and the British Columbia Sightings Network.
Sighting information collected by the Orca Network includes detection by hydrophone. The SeaSound Remote Sensing Network is a system of interconnected hydrophones installed in the marine environment of Haro Strait (west side of San Juan Island) to study killer whale communication, in-water noise, bottom fish ecology and local climatic conditions. A hydrophone at the Port Townsend Marine Science Center measures average in-water sound levels and automatically detects unusual sounds. These passive acoustic devices allow researchers to hear when different marine mammals come into the region. This acoustic network, combined with the volunteer (incidental) visual sighting network allows researchers to document presence and location of various marine mammal species.
With this level of coordination in the region of activity, WSF will be able to get real-time information on the presence or absence of whales before starting any pile removal or driving.
WSF will employ qualified PSOs to monitor the 122 dB
• Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars will be necessary to correctly identify the target.
• Advanced education in biological science, wildlife management, mammalogy or related fields (Bachelor's degree or higher) is preferred, but not required.
• Experience or training in the field identification of marine mammals (cetaceans and pinnipeds).
• Sufficient training, orientation or experience with the construction operation to provide for personal safety during observations.
• Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary.
• Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).
• Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area during construction, dates and times when observations were conducted; dates and times when in-water construction activities were conducted; and dates and times when marine mammals were present at or within the defined ZOI.
PSOs will be present on site at all times during pile removal and driving. Marine mammal behavior, overall numbers of individuals observed, frequency of observation, and the time
WSF proposed the following methodology to estimate marine mammals taken as a result of the Mukilteo Multimodal Tank Farm Pier removal project:
• During vibratory pile removal, two land-based biologists will monitor the area from the best observation points available. If weather conditions prevent adequate land-based observations, boat-based monitoring may be implemented.
• To verify the required monitoring distance, the vibratory Level B behavioral harassment ZOI will be determined by using a range finder or hand-held global positioning system device.
• The vibratory Level B acoustical harassment ZOI will be monitored for the presence of marine mammals 30 minutes before, during, and 30 minutes after any pile removal activity.
• Monitoring will be continuous unless the contractor takes a significant break, in which case, monitoring will be required 30 minutes prior to restarting pile removal.
• If marine mammals are observed, their location within the ZOI, and their reaction (if any) to pile-driving activities will be documented.
We require that observers use approved data forms. Among other pieces of information, WSF will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, WSF will attempt to distinguish between the number of individual animals taken and the number of incidents of take. We require that, at a minimum, the following information be collected on the sighting forms:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Weather parameters (
• Water conditions (
• Species, numbers, and, if possible, sex and age class of marine mammals;
• Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
• Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
• Locations of all marine mammal observations; and
• Other human activity in the area.
WSF would provide NMFS with a draft monitoring report within 90 days of the conclusion of the proposed construction work. This report will detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. If comments are received from the NMFS Northwest Regional Administrator or NMFS Office of Protected Resources on the draft report, a final report will be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.
Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
WSF has requested authorization for the incidental taking of small numbers of humpback whale, Steller sea lion, California sea lion, Dall's porpoise, gray whale, harbor porpoise and killer whale near the Mukilteo Tank Farm Pier that may result from vibratory pile extraction activities.
All anticipated takes would be by Level B harassment resulting from vibratory pile removal and are likely to involve temporary changes in behavior. Injurious or lethal takes are not expected due to the expected source levels and sound source characteristics associated with the activity, and the proposed mitigation and monitoring measures are expected to further minimize the possibility of such take.
Given the many uncertainties in predicting the quantity and types of impacts of sound on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound.
We note that this practice potentially overestimates the numbers of marine mammals taken for stationary activities, as it is reasonable to assume that some individuals may accrue a number of incidences of harassment rather than each incidence of harassment accrues to a new individual, especially if those individuals display some degree of residency or site fidelity and the impetus to use the site (
In order to estimate the potential incidents of take that may occur incidental to the specified activity, we must first estimate the extent of the sound field that may be produced by the activity and then consider in combination with information about marine mammal density or abundance in the project area. We provided detailed information on applicable sound thresholds for determining effects to marine mammals as well as describing the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating potential incidences of take, in our
Currently NMFS uses 120 dB
Incidental take is estimated for each species by estimating the likelihood of a marine mammal being present within a ZOI during active pile removal or driving. Expected marine mammal presence is determined by past observations and general abundance near the Tank Farm Pier during the construction window. Typically, potential take is estimated by multiplying the area of the ZOI by the local animal density. This provides an estimate of the number of animals that might occupy the ZOI at any given moment. However, in some cases take requests were estimated using local marine mammal data sets (
NMFS is authorizing 1,820 takes by Level B harassment. However, many of these takes are likely to be repeated exposures of individual animals.
NMFS is authorizing 840 takes of California sea lions by Level B harassment. Many of these takes are likely to be repeated exposures of individual animals.
NMFS is authorizing 280 takes of Steller sea lions by Level B harassment. It is likely that many of these takes will be repeated exposures of individual animals.
NMFS is authorizing the Level B take of 1,120 takes of harbor porpoises by Level B harassment. Again, many of these takes are likely to be repeated exposures of individual animals.
NMFS is authorizing 420 takes of Dall's porpoise by Level B harassment. A number of these anticipated takes are likely to be repeated exposures of individual animals.
Note that pod size of Southern Resident killer whales can range from 3-50. NMFS assumed that one pod of 15 whales will be sighted during this authorization period and authorized that amount. However, it is possible that a larger group may be observed. In order to limit the take of southern resident killer whales, NMFS is requiring additional mitigation for killer whales. These steps are described above and in Appendix B of the Application.
However, a pod of 12 transients was spotted near the project area on August 6, 2015 August 9, 2015 (Whidbey News-Times, August 15, 2015). NMFS will assume that four pods of 12 whales will be sighted during this authorization period. Therefore, NMFS is authorizing 48 takes of transient killer whales.
Based on the frequency of sightings during the in-water work window, this analysis uses a conservative estimate of 3 gray whales per day potentially near the ZOI.
It is assumed that gray whales will not enter the ZOI each day of the project, but may be present in the ZOI for 5 days per month as they forage in the area, for a total of 30 days. For the exposure estimate, it will be conservatively assumed that up to 3 animals may be present within the ZOI and be exposed multiple times during the project.
NMFS is authorizing 90 takes of gray whales by Level B harassment. It is assumed that this number will include multiple harassments of individual animals.
Based on the frequency of sightings during the in-water work window, this analysis uses a conservative estimate of 2 humpback whales potentially near the ZOI.
It is assumed that humpback whales will not enter the ZOI each day of the project, but may be present in the ZOI for 3 days per month as they forage in the area, for a total of 18 days. For the exposure estimate, it will be conservatively assumed that up to 2 animals may be present within the ZOI and be exposed multiple times during the project.
NMFS is authorizing 36 takes of humpback whales by Level B harassment. It is assumed that this number will include multiple harassments of individual animals.
Based on the foregoing, an estimated maximum of approximately 1,820 Pacific harbor seals, 840 California sea lions, 280 Steller sea lions, 1,120 Harbor porpoise, 420 Dall's porpoise, 48 transient killer whales, 15 Southern Resident killer whales, 90 gray whales, and 36 humpback whales could be exposed to received sound levels above 122 dB re 1 μPa (rms) from the proposed Mukilteo Tank Farm Pier Removal project. A summary of the estimated takes is presented in Table 2.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the following discussion applies to the affected stocks of harbor seals, California sea lions, Steller sea lions, harbor porpoises, Dall's porpoises, gray whales and humpback whales, except where a separate discussion is provided for killer whales, as the best available information indicates that effects of the specified activity on individuals of those stocks will be similar, and there is no information about the population size, status, structure, or habitat use of the areas to warrant separate discussion.
Pile removal activities associated with the Mukilteo Tank Farm removal project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from underwater sounds generated from pile extraction. Potential takes could occur if individuals of these species are present in the ensonified zone when pile driving is happening.
No injury, serious injury, or mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for these outcomes is minimized through the construction method and the implementation of the planned mitigation measures. Specifically, vibratory hammers will be the primary method of extraction and no impact driving will occurs. Vibratory driving and removal does not have significant potential to cause injury to marine mammals due to the relatively low source levels produced (site-specific acoustic monitoring data show no source level measurements above 180 dB rms) and the lack of potentially injurious source characteristics. Given sufficient “notice” through use of soft start, marine mammals are expected to move away from a sound source. The likelihood that marine mammal detection ability by trained observers is high under the environmental conditions described for waters around the Mukilteo Tank Farm further enables the implementation of shutdowns if animals come within 10 meters of operational activity to avoid injury, serious injury, or mortality.
WSF proposed activities are localized and of relatively short duration. The entire project area is limited to water in close proximity to the tank farm. The project will require the extraction of 3,900 piles and will require 675-975 hours over 140-180 days.
These localized and short-term noise exposures may cause brief startle reactions or short-term behavioral modification by the animals. These reactions and behavioral changes are expected to subside quickly when the exposures cease. Moreover, the proposed mitigation and monitoring measures, including establishment of a shutdown zone, establishment of Level B harassment area, time and seasonal restrictions on operations, special Southern resident killer whale restrictions, and ramp up or soft start techniques, are expected to reduce potential exposures and behavioral modifications even further.
Critical habitat for Southern Resident killer whales has been identified in the area and may be impacted. The proposed action will have short-term adverse effects on Chinook salmon, the primary prey of Southern Resident killer whales. However, the Puget Sound Chinook salmon ESU comprises a small percentage of the Southern Resident killer whale diet. Hanson et al. (2010) found only six to 14 percent of Chinook salmon eaten in the summer were from Puget Sound. Therefore, NMFS concludes that both the short-term adverse effects and the long-term beneficial effects on Southern Resident killer whale prey quantity and quality will be insignificant. Also, the sound from vibratory pile driving and removal may interfere with whale passage. For example, exposed killer whales are likely to redirect around the sound instead of passing through the area. However, the effect of the additional distance traveled is unlikely to cause a measureable increase in an individual's energy budget, and the effects would therefore be temporary and insignificant. Additionally, WSF will employ additional mitigation measures to avoid or minimize impacts to Southern Residents. These measures were described previously in the section
The project also is not expected to have significant adverse effects on affected marine mammals' habitat, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” section. The project activities would not modify existing marine mammal habitat. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Furthermore, no important feeding and/or reproductive areas for other marine mammals are known to be near the proposed action area.
Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
In summary, we considered the following factors: (1) The possibility of injury, serious injury, or mortality may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior; (3) the absence of any significant habitat, other than identified critical habitat for Southern Resident killer whales within the project area, including rookeries, significant haul-outs, or known areas or features of special significance for foraging or reproduction; (4) the expected efficacy of the required mitigation measures in minimizing the effects of the specified activity on the affected species or stocks and their habitat to the level of least practicable impact. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals. Accordingly, the take resulting from the proposed WSF Mukilteo Multimodal Project Tank Farm Pier Removal project is not reasonably expected to and is not reasonably likely to adversely affect the marine mammal species or stocks through effects on annual rates of recruitment or survival.
Therefore, based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that the total marine mammal take from WSF's Mukilteo Multimodal Project Tank Farm Pier Removal project will have a negligible impact on the affected marine mammal species or stocks.
Based on long-term marine mammal monitoring and studies in the vicinity of the proposed construction areas, it is estimated that approximately 1,820 Pacific harbor seals, 840 California sea lions, 280 Steller sea lions, 1,120 harbor porpoises, 420 Dall's porpoises, 48 transient killer whales, 15 Southern Resident killer whales, 90 gray whales, and 36 humpback whales (and likely fewer, given that we expect at least some takes will be from repeat exposures of individual animals rather than new animals) could be exposed to received noise levels above 122 dB rms re 1 μPa from the proposed construction work at the Mukilteo Multimodal Ferry Terminal. These numbers represent approximately 0.3%-19.7% of the stocks and populations of these species that could be affected by Level B behavioral harassment.
The numbers of animals authorized to be taken for all species would be considered small relative to the relevant stocks or populations even if each estimated taking occurred to a new individual—an extremely unlikely scenario. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, we find that small numbers of marine mammals will be taken relative to the population sizes of the affected species or stocks.
There are no subsistence uses of marine mammals in the proposed project area; and, thus, no subsistence uses impacted by this action.
The humpback whale and Southern Resident stock of killer whale are the only marine mammal species currently listed under the ESA that could occur in the vicinity of WSF's proposed construction projects. NMFS issued a Biological Opinion that covers the proposed action on July 31, 2013, and concluded that the proposed action is not likely to jeopardize the continued existence of Southern Resident killer whales or humpback whales, and is not likely to destroy or adversely modify Southern Resident killer whales critical habitat.
NMFS re-affirms the document titled
As a result of these determinations, we have issued an IHA to WSF for conducting the described activities related to the Mukilteo Multimodal Project Tank Farm Pier Removal Project from September 1, 2015 through August 31, 2016 provided the previously described mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to the U.S. Navy (Navy) to incidentally harass, by Level B harassment only, three species of marine mammals during construction activities associated with a pier maintenance project at Naval Base Kitsap Bremerton, Washington.
This authorization is effective from October 1, 2014, through March 1, 2015.
Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.
An electronic copy of the Navy's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
On April 14, 2015, we received a request from the Navy for authorization to take marine mammals incidental to pile driving and removal associated with the Pier 6 pile replacement project at Naval Base Kitsap Bremerton, WA (NBKB). The Navy submitted revised versions of the request on May 20 and June 12, 2015, the latter of which we deemed adequate and complete. The Navy plans to continue this multi-year project, involving impact and vibratory pile driving conducted within the approved in-water work window. This IHA covers only the third year (in-water work window) of the project, from September 1, 2015, through March 1, 2014, which is expected to be the final year of work associate with the project. Hereafter, use of the generic term “pile driving” may refer to both pile installation and removal unless otherwise noted.
The use of both vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in behavioral harassment of marine mammals. Species with the expected potential to be present during the in-water work window include the Steller sea lion (
This is the third such IHA issued to the Navy for this project, following the IHAs issued effective from December 1, 2013, through March 1, 2014 (78 FR 69825) and from October 1, 2014, through March 1, 2015 (79 FR 59238). Monitoring reports associated with these previous IHAs are available on the Internet at
NBKB serves as the homeport for a nuclear aircraft carrier and other Navy vessels and as a shipyard capable of overhauling and repairing all types and sizes of ships. Other significant capabilities include alteration, construction, deactivation, and dry-docking of naval vessels. Pier 6 was completed in 1926 and requires substantial maintenance to maintain readiness. Over the length of the entire project, the Navy plans to remove up to 400 deteriorating fender piles and to replace them with up to 330 new pre-stressed concrete fender piles.
The allowable season for in-water work, including pile driving, at NBKB is June 15 through March 1, a window established by the Washington Department of Fish and Wildlife in coordination with NMFS and the U.S. Fish and Wildlife Service (USFWS) to protect fish. Under the specified activity—which includes only the portion of the project planned for completion under this IHA—a maximum of sixty pile driving days would occur. The Navy plans to conduct fifteen days of vibratory pile removal and 45 days of pile installation with an impact hammer. Either type of pile driving may occur on any day during the period of validity, including concurrent pile removal and installation. Pile driving may occur only during daylight hours.
NBKB is located on the north side of Sinclair Inlet in Puget Sound (see Figures 1-1 and 2-1 of the Navy's application). Sinclair Inlet, an estuary of Puget Sound extending 3.5 miles southwesterly from its connection with the Port Washington Narrows, connects to the main basin of Puget Sound through Port Washington Narrows and then Agate Pass to the north or Rich Passage to the east. Sinclair Inlet has been significantly modified by development activities. Fill associated with transportation, commercial, and residential development of NBKB, the City of Bremerton, and the local ports of Bremerton and Port Orchard has resulted in significant changes to the shoreline. The area surrounding Pier 6 is industrialized, armored and adjacent to railroads and highways. Sinclair Inlet is also the receiving body for a wastewater treatment plant located just west of NBKB. Sinclair Inlet is relatively shallow and does not flush fully despite freshwater stream inputs.
The Navy plans to remove deteriorated fender piles at Pier 6 and replace them with pre-stressed concrete piles. The entire project calls for the removal of 380 12-in diameter creosoted timber piles and twenty 12-in steel pipe piles. These will be replaced with 240 18-in square concrete piles and ninety 24-in square concrete piles. It is not possible to specify accurately the number of piles that might be installed or removed in any given work window, due to various delays that may be expected during construction work and uncertainty inherent to estimating production rates. The Navy assumes a notional production rate of sixteen piles per day (removal) and four piles per day (installation) in determining the number of days of pile driving expected, and scheduling—as well as exposure analyses—is based on this assumption.
All piles are planned for removal via vibratory driver. The driver is suspended from a barge-mounted crane and positioned on top of a pile. Vibration from the activated driver loosens the pile from the substrate. Once the pile is released, the crane raises the driver and pulls the pile from the sediment. Vibratory extraction is expected to take approximately 5-30 minutes per pile. If piles break during removal, the remaining portion may be removed via direct pull or with a clamshell bucket. Replacement piles will be installed via impact driver and are expected to require approximately 15-60 minutes of driving time per pile, depending on subsurface conditions. Impact driving and/or vibratory removal could occur on any work day during the period of the IHA. Only one pile driving rig is planned for operation at any given time.
We published a notice of receipt of the Navy's application and proposed IHA in the
There are five marine mammal species with records of occurrence in waters of Sinclair Inlet in the action area. These are the California sea lion, harbor seal, Steller sea lion, gray whale (
An additional seven species have confirmed occurrence in Puget Sound, but are considered rare to extralimital in Sinclair Inlet and the surrounding waters. These species—the humpback whale (
We have reviewed the Navy's detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Sections 3 and 4 of the Navy's application instead of reprinting the information here. Please also refer to NMFS' Web site (
Table 1 lists the marine mammal species with expected potential for occurrence in the vicinity of NBKB during the project timeframe and summarizes key information regarding stock status and abundance. Taxonomically, we follow Committee on Taxonomy (2014). Please see NMFS' Stock Assessment Reports (SAR), available at
Our
We described potential impacts to marine mammal habitat in detail in our
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
Measurements from similar pile driving events were coupled with practical spreading loss to estimate zones of influence (ZOI; see “Estimated Take by Incidental Harassment”); these values were used to develop mitigation measures for pile driving activities at NBKB. The ZOIs effectively represent the mitigation zone that would be established around each pile to prevent Level A harassment to marine mammals, while providing estimates of the areas within which Level B harassment might occur. In addition to the specific measures described later in this section, the Navy will conduct briefings between construction supervisors and crews, marine mammal monitoring team, and Navy staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
The following measures apply to the Navy's mitigation through shutdown and disturbance zones:
In order to document observed incidents of harassment, monitors record all marine mammal observations, regardless of location. The observer's location, as well as the location of the pile being driven, is known from a GPS. The location of the animal is estimated as a distance from the observer, which is then compared to the location from the pile. It may then be estimated whether the animal was exposed to sound levels constituting incidental harassment on the basis of predicted distances to relevant thresholds in post-processing of observational and acoustic data, and a precise accounting of observed incidences of harassment created. This information may then be used to extrapolate observed takes to reach an approximate understanding of actual total takes.
The following additional measures apply to visual monitoring:
(1) Monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Qualified observers are trained biologists, with the following minimum qualifications:
• Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
• Advanced education in biological science or related field (undergraduate degree or higher required);
• Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);
• Experience or training in the field identification of marine mammals, including the identification of behaviors;
• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and
• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
(2) Prior to the start of pile driving activity, the shutdown zone will be monitored for fifteen minutes to ensure that it is clear of marine mammals. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals; animals will be allowed to remain in the shutdown zone (
(3) If a marine mammal approaches or enters the shutdown zone during the course of pile driving operations, activity will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal. Monitoring will be conducted throughout the time required to drive a pile.
The Navy did not request the authorization of incidental take for killer whales or gray whales (see discussion below in “Estimated Take by Incidental Harassment”). Therefore, shutdown will be implemented in the event that either of these species is observed in the vicinity, prior to entering the defined disturbance zone. As described later in this document, we believe that occurrence of these species during the in-water work window would be uncommon and that the occurrence of an individual or group would likely be highly noticeable and would attract significant attention in local media and with local whale watchers and interested citizens. Prior to the start of pile driving on any day, the Navy will contact and/or review the latest sightings data from the Orca Network and/or Center for Whale Research to determine the location of the nearest marine mammal sightings. The Orca Sightings Network consists of a list of over 600 residents, scientists, and government agency personnel in the U.S. and Canada, and includes passive acoustic detections. The presence of a killer whale or gray whale in the southern reaches of Puget Sound would be a notable event, drawing public attention and media scrutiny. With this level of coordination in the region of activity, the Navy should be able to effectively receive real-time information on the presence or absence of whales, sufficient to inform the day's activities. Pile driving will not occur if there was the risk of incidental harassment of a species for which incidental take was not authorized.
During vibratory pile driving, one land-based observer will be positioned at the pier work site. Additionally, one vessel-based observer will travel through the monitoring area, completing an entire loop approximately every thirty minutes (please see Figure 1 of Appendix C in the Navy's applications). If any killer whales or gray whales are detected, activity would not begin or would shut down.
In the project area, designated timing restrictions exist to avoid in-water work when salmonids and other spawning forage fish are likely to be present. The in-water work window is June 15-March 1. All in-water construction activities will occur only during daylight hours (sunrise to sunset).
The use of a soft start procedure is believed to provide additional protection to marine mammals by warning or providing a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers and, for impact hammers, the actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in “bouncing” of the hammer as it strikes the pile, resulting in multiple “strikes.” The pier maintenance project will utilize soft start techniques for both impact and vibratory pile driving. We require the Navy to initiate sound from vibratory hammers for fifteen seconds at reduced energy followed by a thirty-second waiting period, with the procedure repeated two additional times. For impact driving, we require an initial set of three strikes from the impact hammer at reduced energy, followed by a thirty-second waiting period, then two subsequent three strike sets. Soft start will be required at the beginning of each day's pile driving work and at any time following a cessation of pile driving of thirty minutes or longer (specific to impact and vibratory driving).
We have carefully evaluated the Navy's proposed mitigation measures and considered their effectiveness in past implementation to determine whether they are likely to effect the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned;
Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
(1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
(2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only).
(5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of habitat during a biologically important time.
(6) For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of the Navy's proposed measures, as well as any other potential measures that may be relevant to the specified activity, we have determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.
Any monitoring requirement we prescribe should improve our understanding of one or more of the following:
• Occurrence of marine mammal species in action area (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological).
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) Population, species, or stock.
• Effects on marine mammal habitat and resultant impacts to marine mammals.
• Mitigation and monitoring effectiveness.
The Navy marine mammal monitoring plan can be found as Appendix C of the Navy's application, on the Internet at
The Navy will implement a sound source level verification study during the specified activities. Data will be collected in order to estimate airborne and underwater source levels for vibratory removal of timber piles and impact driving of concrete piles, with measurements conducted for ten piles of each type. Monitoring will include one underwater and one airborne monitoring position. These exact positions will be determined in the field during consultation with Navy personnel, subject to constraints related to logistics and security requirements. Reporting of measured sound level signals will include the average, minimum, and maximum rms value and frequency spectra for each pile monitored. Please see section 11.4.4 of the Navy's application for details of the Navy's acoustic monitoring plan.
The Navy will collect sighting data and behavioral responses to construction for marine mammal species observed in the region of activity during the period of activity. All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. The Navy will monitor the shutdown zone and disturbance zone before, during, and after pile driving, with observers located at the best practicable vantage points. Based on our requirements, the Navy would implement the following procedures for pile driving:
• MMOs will be located at the best vantage point(s) in order to properly see the entire shutdown zone and as much of the disturbance zone as possible.
• During all observation periods, observers will use binoculars and the naked eye to search continuously for marine mammals.
• If the shutdown zones are obscured by fog or poor lighting conditions, pile driving at that location will not be initiated until that zone is visible. Should such conditions arise while impact driving is underway, the activity must be halted.
• The shutdown and disturbance zones around the pile will be monitored for the presence of marine mammals before, during, and after any pile driving or removal activity.
During vibratory pile driving, two observers will be deployed as described under Mitigation, including one land-based observer and one-vessel-based observer traversing the extent of the Level B harassment zone. We previously required (for Years 1-2 of the Pier 6 project) the deployment of four land-based observers (in addition to one vessel-based observer) during vibratory driving. This additional monitoring effort served to confirm that our assumptions relating to marine mammal occurrence in the action area were accurate, and we do not believe it necessary to continue with two shore-based observers in the far-field, in addition to the far-field vessel-based observer, to accomplish the required monitoring of incidental take. During impact driving, one observer would be positioned at or near the pile to observe the much smaller disturbance zone.
Individuals implementing the monitoring protocol will assess its effectiveness using an adaptive approach. Monitoring biologists will use their best professional judgment
We require that observers use approved data forms. Among other pieces of information, the Navy will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, the Navy will attempt to distinguish between the number of individual animals taken and the number of incidents of take. We require that, at a minimum, the following information be collected on the sighting forms:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Weather parameters (
• Water conditions (
• Species, numbers, and, if possible, sex and age class of marine mammals;
• Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
• Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
• Description of implementation of mitigation measures (
• Locations of all marine mammal observations; and
• Other human activity in the area.
A draft report will be submitted to NMFS within 45 days of the completion of marine mammal monitoring, or sixty days prior to the issuance of any subsequent IHA for this project, whichever comes first. The report will include marine mammal observations pre-activity, during-activity, and post-activity during pile driving days, and will also provide descriptions of any behavioral responses to construction activities by marine mammals and a complete description of all mitigation shutdowns and the results of those actions and an extrapolated total take estimate based on the number of marine mammals observed during the course of construction. A final report must be submitted within thirty days following resolution of comments on the draft report.
The Navy complied with the mitigation and monitoring required under the previous authorizations for the Pier 6 project. Marine mammal monitoring occurred before, during, and after each pile driving event. During the course of these activities, the Navy did not exceed the take levels authorized under the IHAs. In accordance with the 2013 and 2014 IHAs, the Navy submitted monitoring reports (available at:
Under the 2013 IHA, the Navy anticipated a total of 65 pile driving days; however, only a limited program of test pile driving actually took place. Pile driving occurred on only two days, with a total of only two piles driven (both impact-driven concrete piles). The only species observed was the California sea lion. A total of 24 individuals were observed within the defined Level B harassment zone, but all were hauled-out on port security barrier floats outside of the defined Level B harassment zone for airborne sound. Therefore, no take of marine mammals occurred incidental to project activity under the year one IHA.
Under the 2014 IHA, the Navy anticipated a total of sixty pile driving days, but actually conducted a total of 32 pile driving days. This total included sixteen days each of impact driving and pile removal; however, only approximately fifty percent of pile removal required use of the vibratory driver and there were a total of 24 monitoring days. Only two species, the California sea lion and harbor seal, were observed. Total observed incidents of take were 275 for California sea lions (151 during vibratory removal and 124 during impact driving) and ten for harbor seals (nine during vibratory removal and one during impact driving). Given the extensive far-field monitoring required, no extrapolation of observed takes to unobserved area was necessary.
Observed behaviors were typical for pinnipeds and included foraging, milling, and traveling. Numerous California sea lions use the port security floats as a haul-out. No reactions indicative of disturbance were observed.
Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
All anticipated takes would be by Level B harassment resulting from vibratory and impact pile driving and involving temporary changes in behavior. The planned mitigation and monitoring measures are expected to minimize the possibility of injurious or lethal takes such that take by Level A harassment, serious injury, or mortality is considered extremely unlikely. However, it is unlikely that injurious or lethal takes would occur even in the absence of the planned mitigation and monitoring measures.
If a marine mammal responds to a stimulus by changing its behavior (
The project area is not believed to be particularly important habitat for
The Navy requested authorization for the incidental taking of small numbers of Steller sea lions, California sea lions, and harbor seals in Sinclair Inlet and nearby waters that may result from pile driving during construction activities associated with the pier maintenance project described previously in this document. In order to estimate the potential incidents of take that may occur incidental to the specified activity, we first estimated the extent of the sound field that may be produced by the activity and then considered that in combination with information about marine mammal density or abundance in the project area. We provided detailed information on applicable sound thresholds for determining effects to marine mammals as well as describing the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating potential incidents of take, in our
Sinclair Inlet does not represent open water, or free field, conditions. Therefore, sounds would attenuate according to the shoreline topography. Distances shown in Table 2 are estimated for free-field conditions, but areas are calculated per the actual conditions of the action area. See Appendix B of the Navy's application for a depiction of areas in which each underwater sound threshold is predicted to occur at the project area due to pile driving.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Pile driving activities associated with the pier maintenance project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from underwater sounds generated from pile driving. Potential takes could occur if individuals of these species are present in the ensonified zone when pile driving is happening.
No injury, serious injury, or mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for these outcomes is minimized through the construction method and the implementation of the planned mitigation measures. Specifically, piles will be removed via vibratory means—an activity that does not have the potential to cause injury to marine mammals due to the relatively low source levels produced (less than 180 dB) and the lack of potentially injurious source characteristics—and, while impact pile driving produces short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks, only small diameter concrete piles are planned for impact driving. Predicted source levels for such impact driving events are significantly lower than those typical of impact driving of steel piles and/or larger diameter piles. In addition, implementation of soft start and shutdown zones significantly reduces any possibility of injury. Given sufficient “notice” through use of soft start (for impact driving), marine mammals are expected to move away from a sound source that is annoying prior to its becoming potentially injurious. Environmental conditions in Sinclair Inlet are expected to generally be good, with calm sea states, although Sinclair Inlet waters may be more turbid than those further north in Puget Sound or in Hood Canal. Nevertheless, we expect conditions in Sinclair Inlet will allow a high marine mammal detection capability for the trained observers required, enabling a high rate of success in implementation of shutdowns to avoid injury, serious injury, or mortality. In addition, the topography of Sinclair Inlet should allow for placement of observers sufficient to detect cetaceans, should any occur (see Figure 1 of Appendix C in the Navy's application).
Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of injury, serious injury, or mortality may reasonably be considered discountable; (2) the anticipated incidences of Level B harassment consist of, at worst, temporary modifications in behavior; (3) the absence of any significant habitat within the project area, including rookeries, significant haul-outs, or known areas or features of special significance for foraging or reproduction; (4) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable impact. In addition, these stocks are not listed under the ESA or considered depleted under the MMPA. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals. The specified activity is not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the planned monitoring and mitigation measures, we find that the total marine mammal take from Navy's pier maintenance activities will have a negligible impact on the affected marine mammal species or stocks.
The number of incidences of take authorized for these stocks would be considered small relative to the relevant stocks or populations (one percent or less for both sea lion stocks and six percent for harbor seals; Table 3) even if each estimated taking occurred to a new individual. This is an extremely unlikely scenario as, for pinnipeds in estuarine/inland waters, there is likely to be some overlap in individuals present day-to-day.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, we have determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
No marine mammal species listed under the ESA are expected to be affected by these activities. Therefore, we have determined that a section 7 consultation under the ESA is not required.
In compliance with the NEPA of 1969 (42 U.S.C. 4321
We have reviewed the Navy's application for a renewed IHA for ongoing construction activities for
As a result of these determinations, we have issued an IHA to the Navy for conducting the described pier maintenance activities in Sinclair Inlet, from September 1, 2015 through March 1, 2016, provided the previously described mitigation, monitoring, and reporting requirements are incorporated.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act (PRA) of 1995.
Written comments must be submitted on or before November 9, 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 and instructions should be directed to Adam Bailey, National Marine Fisheries Service (NMFS), Southeast Regional Office (SERO), 263 13th Avenue S., St. Petersburg, FL 33701, (727) 824-5305, or
This request is for a revision to the existing reporting requirements that are currently approved under OMB Control No. 0648-0205, Southeast Region Permit Family of Forms, in association with the upcoming final rule, Regulation Identifier Number (RIN) 0648-BB02, Amendment 9 to the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP) (Amendment 9), developed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801.
The final rule, RIN 0648-BB02, would implement a number of Atlantic shark and smoothhound shark management measures and would establish an effective date for previously-adopted smoothhound shark management measures finalized in Amendment 3 to the 2006 Consolidated Atlantic HMS FMP (Amendment 3) and the 2011 Final Rule to Modify the Retention of Incidentally-Caught Highly Migratory Species in Atlantic Trawl Fisheries. Among these previously-adopted smoothhound shark management measures is a commercial smoothhound shark permit requirement. The commercial smoothhound shark permitting requirement contained in this rule would become effective at a date specified after approval of this revision request.
In April 2011, NMFS submitted a PRA change request to the Office of Management and Budget (OMB) to add the commercial smoothhound shark permit to the existing HMS permit PRA package (OMB Control No. 0648-0327). OMB subsequently approved the change request to add the Federal commercial smoothhound shark permit to the HMS permit PRA package in May 2011. In July 2015, the commercial smoothhound shark permit was removed from the HMS permit PRA package (OMB Control No. 0648-0327) with the intention of transferring it to the Southeast Region Permit Family of Forms. This revision seeks to add this permit to OMB Control No. 0648-0205, because the SERO Permits Office will administer the smoothhound shark permit. The revision also addresses a new permit fee of $25 ($10 if issued in conjunction with another SERO-administered permit) related to SERO's administration of the permit and a more accurate estimate of the number of respondents, reducing the estimated number of respondents from 4,000, to 500 based on recent landings data.
Specifically for the smoothhound shark commercial permit, NMFS estimates 500 respondents to apply. If a respondent already holds a SERO-administered permit, applying for a smoothhound shark permit would only require checking an additional box on the permits application form, which would take approximately 10 seconds. If the respondent does not hold a SERO-administered permit, a new application must be filled out, which would take approximately 30 minutes. Thus, the total annual burden estimate is between 1.4 hours and 250 hours. It is likely that many respondents already hold a permit issued through the SERO Permits Office due to participation in other SERO fisheries (including other shark fisheries), thus, they would simply need to check a box on their existing form. However, at this time, NMFS does not have an estimate of the number of respondents who would apply for this permit and that already hold a permit administered through the SERO Permits Office, and therefore, for the purpose of this revision request, NMFS assumes the high estimate of 250 burden hours annually for the commercial smoothhound shark permit.
There is a $25 fee for a stand-alone commercial smoothhound shark permit or a $10 fee if issued in conjunction with another SERO-administered permit. Thus, the total annual cost to the public for the permit is between $12,500 if none of the 500 respondents hold another SERO-administered permit and $5,000 if all the respondents hold another SERO-administered permit. For the purpose of this revision request, NMFS assumes the high estimate of $12,500 in total annual costs for the commercial smoothhound shark permit.
The commercial smoothhound shark permit would add a maximum of 500 respondents, 250 burden hours, and $12,500 total annual costs to this information collection.
Respondents have a choice of either electronic or paper forms. Methods of submittal include email of electronic forms, and mail and facsimile transmission of paper forms.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Regional or community economic analysis of proposed fishery management policies is required by the Magnuson-Stevens Fishery Conservation and Management Act, National Environmental Policy Act, and Executive Order 12866, among others. To satisfy these mandates and inform policymakers and the public of the likely regional economic impacts associated with fishery management policies, appropriate economic models and the data to implement them are needed. Much of the data required for regional economic analysis of Southwest Alaska fisheries are either unavailable or unreliable. Accurate fishery-level data on employment, labor income, and expenditures in the Southwest Alaska fishery and related industries are not generally available but are needed to estimate the role of fisheries and effects of fishery policies on local, regional and national economies. The Southwest region for this survey includes six boroughs and census areas (BCAs)—Aleutians East Borough, Aleutians West Census Area, Bristol Bay Borough, Dillingham Census Area, Lake and Peninsula Borough, and Kodiak Island Borough.
In 2007-2008, a similar data collection project was administered for the Southwest Alaska region by obtaining 2006 annual data. However, that data is now outdated and incomplete. In the proposed survey, 2013 or 2014 annual data for important regional economic variables will be collected from fish harvesting and seafood processing businesses operating in the region (2012 data on these variables will be collected if more recent vessel landings and processed products data are not available at the time the data collection begins). The data will be used to develop Southwest regional and BCA-level models that will provide more reliable impact estimates and significantly improve policymakers' ability to assess effects on fishery-dependent communities in Southwest Alaska. A departure from the prior survey effort is that more information will be collected this time on the source locations of business expenditures by catcher vessels and seafood processors. The survey will be conducted one time only.
A mail survey will be used to collect data on employment, labor income, and expenditures from owners of 2,731 catcher vessels whose boats delivered fish to Southwest Alaska processors. Key informant interviews will be conducted to gather additional information from 30 seafood processors, including catcher-processor and floating processor vessels, and 20 local businesses that supply inputs to regional fish harvesters and seafood processors. The interviews will be used to determine relative expenditures for inputs made in nine geographical areas—(1) each of the six BCAs within the Southwest region, (2) non-Southwest Alaska region, (3) West Coast, and (4) the rest of US and elsewhere. Personal interviews with input suppliers will gather additional information on (i) the level of supplier sales to regional seafood industry businesses, and (ii) the portion of business expenditures for labor and non-labor inputs that were made in each of the above nine geographical areas.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice, withdrawal of an Incidental Harassment Authorization (IHA) application.
Notice is hereby given that the U.S. Army Corps of Engineers (ACOE) has withdrawn its application
The documents and the application related to this action are available by writing to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, or by telephoning the contact listed here.
A copy of the IHA application may be obtained by writing to the address specified above, telephoning the contact listed below (see
Howard Goldstein or Jolie Harrison, NMFS, 301-427-8401.
On November 15, 2013, NMFS received an application from the ACOE requesting an IHA. The requested IHA would authorize the take, by Level B harassment, small numbers of Atlantic bottlenose dolphins (
United States Patent and Trademark Office, Commerce.
Notice.
In conformance with the Civil Service Reform Act of 1978, the United States Patent and Trademark Office announces the appointment of persons to serve as members of its Performance Review Board.
Director, Human Capital Management, Office of Human Resources, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450.
Karen Karlinchak at (571) 272-8717.
The membership of the United States Patent and Trademark Office Performance Review Board is as follows:
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by October 13, 2015.
Fred Licari, 571-372-0493.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
• Federal eRulemaking Portal:
Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
US Army in Europe (USAREUR), G1, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by November 9, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to U.S. Army in Europe (USAREUR), G1, CPD, Attn: AEPE-CD, Unit 29351, Box 99, APO AE 09014-9351, or email Armand Lepage, Chief, DoD Contractor Personnel Office (DOCPER),
Respondents are DoD contractors and their contractor employees who, if desiring NATO SOFA status, must provide certain information under the bilateral agreements with the Host Nations. For contracts, the information provided is the contract itself, including a description of the work to be done by the contractor, and the various positions, locations, and salaries associated with each position on the contract. For the contractor employee, personal information to be provided includes full name, SSN, date and place of birth, resumes, dependent information, and sufficient personal historical information intended to assure the Host Nation that the contractor employee is not considered to be “ordinarily resident”,
Department of the Navy, DoD.
Notice.
Pursuant to section 102(2)(c) of the National Environmental Policy Act of 1969, as implemented by the Council on Environmental Quality regulations (40 Code of Federal Regulations parts 1500-1508), the Department of the Navy (DoN) announces its intent to prepare an Environmental Impact Statement (EIS) to evaluate the potential environmental consequences of transitioning six FA-18C (Hornet) strike fighter squadrons to FA-18E (Super Hornet) strike fighter squadrons at Naval Air Station (NAS) Oceana, Virginia. The EIS will also include a comprehensive analysis of NAS Oceana operations, addressing
Two public scoping meetings will be held from 5:00 p.m. to 8:00 p.m. on:
1. Tuesday, September 29, 2015, at the Columbian Club, 1236 Prosperity Road, Virginia Beach, VA 23451; and
2. Wednesday, 30 September, 2015, at Centerville Baptist Church, 908 Centerville Turnpike, Chesapeake, VA 23322.
The two public scoping meetings will be informal, using an open house format to obtain verbal or written comments on the scope of the EIS and to identify specific environmental concerns or topics for consideration. Each information station will be staffed by DoN representatives. Additional information concerning each public scoping meeting is available on the EIS Web page located at:
NAS Oceana EIS Project Manager (Code EV21/TW); Naval Facilities Engineering Command (NAVFAC) Atlantic, 6506 Hampton Boulevard, Norfolk, Virginia 23508.
Since 2002, FA-18C Hornet aircraft have been used in support of world-wide operations at higher rates than originally projected. The result of this higher use has been greater airframe fatigue, which in turn is rapidly accelerating the date at which the Hornet aircraft will reach the end of their service life and need to be retired. While the DoN plan had been to replace Hornet aircraft with the F-35C Joint Strike Fighter (JSF) aircraft, the entry of the F-35C into the U.S. Navy inventory has been delayed and it will not be available on the East Coast before the current inventory of Hornet aircraft based at NAS Oceana will be retired.
The combination of the accelerated retirement of the Hornet aircraft and delays in the availability of replacement F-35C aircraft warrants an interim measure to ensure the requisite number of strike fighter aircraft remain at NAS Oceana to meet operational and training needs. Therefore, the DoN proposes to transition the six NAS Oceana squadrons that still operate the FA-18C Hornet, and the NAS Oceana-based Fleet Replacement Squadron (FRS), to the FA-18E Super Hornet aircraft. The proposed transition would involve a one-for-one aircraft replacement, occur at NAS Oceana, and begin no earlier than 2018. The proposed action will provide newer, more capable, and more reliable aircraft to the NAS Oceana-based strike fighter community using existing assets until the replacement F-35C aircraft are available for East Coast operations. No other aircraft carrier (CVN)-capable strike fighter aircraft exist to cover the gap until the introduction of the F-35C.
Since Super Hornet flight training is nearly identical to Hornet flight training, the type and quantity of flight training operations at NAS Oceana, NALF Fentress, and the local operating areas are not expected to be affected by the proposed transition and the subsequent retirement of the Hornet. Other than minor modifications to aircraft auxiliary power utilities in hangars, and installation of Super Hornet-compatible electrical distribution on the flight line, no major construction or facility modifications are planned.
Recognizing that noise will be an important environmental concern associated with the transition, the EIS will include a comprehensive analysis of NAS Oceana air operations, including noise impacts, at the main base and FCLP operations at NALF Fentress. In addition, the DoN will use the EIS scoping period to conduct a thorough review of existing flight procedures to determine if any reasonable adjustments can be made to mitigate potential noise impacts of the proposed action. Following scoping, the DoN will also consider input from the public to help identify reasonable noise mitigation alternatives not already implemented to carry forward for analysis in the Draft EIS.
Federal, state, and local agencies, the public and interested persons are encouraged to provide comments to the DoN during the public scoping period to identify environmental concerns that the commenter believes should be addressed in the EIS. To be most effective, scoping comments should clearly describe the specific issues(s) or topic(s) that the EIS should address. Mailed comments must be postmarked by (30 Days).
In addition to the proposed action, the EIS will address the No Action Alternative. Under the No Action Alternative, the DoN would not transition six NAS Oceana Hornet squadrons and the NAS Oceana based FRS from Hornet aircraft to Super Hornet aircraft. The shortage of Hornet airframes that would result under this alternative would have an immediate and growing impact on the operational readiness of the strike fighter squadrons at NAS Oceana.
The DoN will analyze the potential environmental effects of transitioning the remaining Hornet aircraft to the Super Hornet aircraft. Resource areas to be addressed in the EIS will include, but not be limited to: noise, air quality, land use, socioeconomics, natural resources, biological resources, cultural resources, and safety and environmental hazards. The analysis will evaluate direct and indirect impacts, and will account for cumulative impacts from other relevant activities near the installation. Relevant and reasonable measures that could avoid or mitigate environmental effects will also be analyzed. Additionally, the DoN will undertake any consultations required by law or regulation.
The DoN will not release the names, street addresses, email addresses and screen names, telephone numbers, or other personally identifiable information of individuals who provide comments during scoping unless required by law. However, the DoN may release the city, state, and 5-digit zip code of individuals who provide comments. Each commenter making oral comments at the public scoping meetings will be asked by the stenographer if he/she otherwise elects to authorize the release of their personally identifiable information prior to providing their comments. Commenters submitting written comments, either using comment forms or via the project Web site, may elect to authorize release of personally identifiable information by checking a “release” box on the comment form.
To be included on the DoN's mailing list for the EIS (or to receive a copy of the Draft EIS, when released), electronic requests can be made on the project Web site at
Institute of Education (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before October 13, 2015.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Erica Johnson, 202-219-1373.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Department of Energy.
Notice of open meeting.
This notice announces an open meeting of the Secretary of Energy Advisory Board (SEAB). SEAB was reestablished pursuant to the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) (the Act). This notice is provided in accordance with the Act.
Friday, September 25, 2015, 8:30 a.m.-12:30 p.m.
Department of Energy, 1000 Independence Avenue SW., Room 8E-089, Washington, DC 20585.
Karen Gibson, Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; telephone (202) 586-3787;
Individuals and representatives of organizations who would like to offer comments and suggestions may do so during the meeting. Approximately 30 minutes will be reserved for public comments. Time allotted per speaker will depend on the number who wish to speak but will not exceed 5 minutes. The Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Those wishing to speak should register to do so beginning at 8:30 a.m. on September 25th.
Those not able to attend the meeting or who have insufficient time to address the committee are invited to send a written statement to Karen Gibson, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585, email to
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open meeting.
This notice announces an open meeting of the Hydrogen and Fuel Cell Technical Advisory Committee (HTAC). The Federal Advisory Committee Act, Public Law 92-463, 86 Stat. 770, requires notice of the meeting be announced in the
Tuesday, October 27, 2015, 8:30 a.m.-5:00 p.m.; Wednesday, October 28, 2015, 8:00 a.m.-12:30 p.m.
Holiday Inn Capitol Hotel, 550 C St. SW., Washington, DC 20024
Email:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Description: § 205(d) Rate Filing: Engineering, Procurement, & Construction Agreement with Black Oak Wind Farm to be effective 8/18/2015.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 32.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 32.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 32.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Federal Election Commission.
999 E Street NW., Washington, DC.
This meeting will be closed to the public.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final notice.
This final notice announces our decision to approve the request from Harsha Behavioral Center, Incorporation (HBC) for an exception to the prohibition against expansion of facility capacity.
Patricia Taft, (410) 786-4561.
Teresa Walden, (410) 786-3755.
Section 1877 of the Social Security Act (the Act), also known as the physician self-referral law—(1) prohibits a physician from making referrals for certain “designated health services” (DHS) payable by Medicare to an entity with which he or she (or an immediate family member) has a financial relationship (ownership or compensation), unless the requirements of an applicable exception are satisfied; and (2) prohibits the entity from filing claims with Medicare (or billing another individual, entity, or third party payer) for those DHS furnished as a result of a prohibited referral.
Section 1877(d)(2) of the Act provides an exception, known as the rural provider exception, for physician ownership or investment interests in rural providers. In order for an entity to qualify for the rural provider exception, the DHS must be furnished in a rural area (as defined in section 1886(d)(2)(D) of the Act) and substantially all the DHS furnished by the entity must be furnished to individuals residing in a rural area.
Section 1877(d)(3) of the Act provides an exception, known as the hospital ownership exception, for physician ownership or investment interests held in a hospital located outside of Puerto Rico, provided that the referring physician is authorized to perform services at the hospital and the ownership or investment interest is in the hospital itself (and not merely in a subdivision of the hospital).
Section 6001(a)(3) of the Patient Protection and Affordable Care Act (Pub. L. 111-148) as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (hereafter referred to together as “the Affordable Care Act”) amended the rural provider and hospital ownership exceptions to the physician self-referral prohibition to impose additional restrictions on physician ownership and investment in hospitals. Since March 23, 2010, a physician-owned hospital that seeks to avail itself of either exception is prohibited from expanding facility capacity unless it qualifies as an “applicable hospital” or “high Medicaid facility” (as defined in sections 1877(i)(3)(E), (F) of the Act and 42 CFR 411.362(c)(2), (3) of our regulations) and has been granted an exception to the facility expansion prohibition by the Secretary of the Department of Health and Human Services (the Secretary). Section 1877(i)(3)(A)(ii) of the Act provides that individuals and entities in the community in which the provider requesting the exception is located must have an opportunity to provide input with respect to the provider's request for the exception. Section 1877(i)(3)(H) of the Act states that the Secretary shall publish in the
On November 30, 2011, we published a final rule in the
In the November 30, 2011 final rule, we specified that prior to our review of the request, we will solicit community input on the request by publishing a notice of the request in the
If we grant the request for an exception to the prohibition against expansion of facility capacity, the expansion may occur only in facilities on the hospital's main campus and may not result in the number of operating rooms, procedure rooms, and beds for which the hospital is licensed to exceed 200 percent of the hospital's baseline number of operating rooms, procedure rooms, and beds (§ 411.362(c)(6)).
On June 19, 2015, we published a notice in the
In the June 19, 2015 notice, we also solicited comments from individuals and entities in the community in which HBC is located. We received no comments during the 30-day public comment period. Accordingly, CMS deemed the request complete on July 20, 2015, the end date of the public comment period.
This final notice announces our decision to approve HBC's request for
• HBC is not the sole hospital in Vigo, Indiana, the county in which it is located;
• HBC certified that it does not discriminate against beneficiaries of Federal health care programs and does not permit physicians practicing at the hospital to discriminate against such beneficiaries; and
• With respect to each of the 3 most recent fiscal years for which data were available as of the date HBC submitted its request, it has an annual percentage of total inpatient admissions under Medicaid that is estimated to be greater than such percentage with respect to such admissions for any other hospital located in Vigo County, Indiana, the county in which it is located.
Our approval grants HBC's request to add a total of 44 beds. Pursuant to § 411.362(c)(6), the expansion may occur only in facilities on the hospital's main campus and may not result in the number of operating rooms, procedure rooms, and beds for which HBC is licensed to exceed 200 percent of its baseline number of operating rooms, procedure rooms, and beds. HBC certified that its baseline number of operating rooms, procedure rooms, and beds is 44. Accordingly, we find that granting an additional 44 beds will not exceed the limitation on a permitted expansion.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance entitled “Q3D Elemental Impurities.” The guidance was prepared under the auspices of the International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH). The guidance establishes permitted daily exposures for 24 elements in drug products based on evaluation of toxicity data. Permitted daily exposures are provided for each element by three routes of administration—oral, parenteral and inhalation. The guidance also provides for a risk-based approach to assessing the likelihood that elemental impurities with established permitted daily exposures will be present in a pharmaceutical product. The guidance is intended to provide a harmonized approach to control of elemental impurities in pharmaceutical products in order to avoid the uncertainty and duplication of work that results from different requirements in different ICH regions.
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of the guidance to the Division of Drug Information (HFD-240), Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993, or the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 240-402-7800. See the
Submit electronic comments on the guidance to
In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote international harmonization of regulatory requirements. FDA has participated in many meetings designed to enhance harmonization and is committed to seeking scientifically based harmonized technical procedures for pharmaceutical development. One of the goals of harmonization is to identify and then reduce differences in technical requirements for drug development among regulatory agencies.
ICH was organized to provide an opportunity for tripartite harmonization initiatives to be developed with input from both regulatory and industry representatives. FDA also seeks input from consumer representatives and others. ICH is concerned with harmonization of technical requirements for the registration of pharmaceutical products among three regions: The European Union, Japan, and the United States. The six ICH sponsors are the European Commission; the European Federation of Pharmaceutical Industries Associations; the Japanese Ministry of Health, Labour, and Welfare; the Japanese Pharmaceutical Manufacturers Association; the Centers for Drug Evaluation and Research and Biologics Evaluation and Research, FDA; and the Pharmaceutical Research and Manufacturers of America. The ICH Secretariat, which coordinates the preparation of documentation, is provided by the International Federation of Pharmaceutical Manufacturers Associations (IFPMA).
The ICH Steering Committee includes representatives from each of the ICH sponsors and the IFPMA, as well as observers from the World Health Organization, Health Canada, and the European Free Trade Area.
In the
After consideration of the comments received and revisions to the guidance, a final draft of the guidance was submitted to the ICH Steering Committee and endorsed by the three participating regulatory agencies on December 16, 2014.
The guidance establishes permitted daily exposures for 24 elements in drug products and provides for a risk-based approach to assessing the likelihood that elemental impurities with established permitted daily exposures will be present in a pharmaceutical product. In response to comments on the draft guidance, several changes were made to the final guidance including clarifying the scope, reevaluation of some permitted daily exposures based on new toxicology data, simplification of the classification scheme for elemental impurities, and clarifying the examples to illustrate certain concepts within the guidance.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on Q3D elemental impurities. It does establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit either electronic comments regarding this document to
Persons with access to the Internet may obtain the document at
Food and Drug Administration, HHS.
Notice of public workshop; request for comments.
The Food and Drug Administration's (FDA or Agency) Division of Bone, Reproductive, and Urologic Products in the Center for Drug Evaluation and Research is announcing a public workshop entitled “Osteoporosis Drug Development: Moving Forward.” The purpose of this workshop is to seek input from experts on scientific issues important to clinical development of drugs and therapeutic biologics intended to treat osteoporosis. During the workshop, attendees will discuss potential surrogate endpoints and the endpoints' ability to predict clinical benefit.
FDA is announcing a public workshop entitled “Osteoporosis Drug Development: Moving Forward.” The Agency will engage experts in osteoporosis to address challenging issues related to osteoporosis drug development. Workshop sessions will include discussions on the indication language, target populations for treatment and prevention of osteoporosis, and phase 3 clinical trial design issues. The afternoon discussion session will focus on surrogate endpoints for fracture and the requirements for validation of a surrogate endpoint. This workshop is part of the Agency's program to facilitate the development of surrogate endpoints, clinical endpoints, and other scientific methods for predicting clinical benefit, in accordance with section 901 of the Food and Drug Administration Safety and Innovation Act, signed into law on July 9, 2012, which is titled “Enhancement of Accelerated Patient Access to New Medical Treatments.”
There is no fee to attend the public workshop, but attendees should register in advance. Space is limited and registration will be on a first-come, first-served basis. Persons interested in attending this workshop must register online at
The afternoon session will have an open public hearing. Interested persons may present data, information, or views, orally or in writing, on issues related to osteoporosis drug development. Those individuals interested in making formal oral presentations should notify the contact person and submit the following information on or before October 21, 2015: A brief statement of the general nature of the evidence or arguments
Regardless of whether you attend this meeting, you can submit either electronic comments regarding this public workshop to
Transcripts of the workshop will be available for review at the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry (GIF) #231 entitled “Distributor Labeling for New Animal Drugs.” This draft guidance discusses FDA's current thinking with respect to the factors it considers in determining whether to take regulatory action against distributor labeling for a new animal drug that differs from the labeling approved as part of a New Animal Drug Application or Abbreviated New Animal Drug Application (NADA/ANADA) in ways other than those permitted by regulation.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by November 9, 2015.
Submit written requests for single copies of the draft guidance to the Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft guidance to
Dorothy McAdams, Center for Veterinary Medicine, Division of Surveillance (HFV-210), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5763, email:
FDA is announcing the availability of draft GFI #231 entitled “Distributor Labeling for New Animal Drugs.” “Distributor labeling” refers to the labeling of an approved new animal drug marketed by a distributor who distributes the product under its own label or proprietary name. Unlike the approved labeling, which the Center for Veterinary Medicine reviews as part of a NADA/ANADA approval process to ensure the safe and effective use of the drug and compliance with the Federal Food, Drug, and Cosmetic Act (the FD&C Act) and its implementing regulations, distributor labeling does not ordinarily go through a premarket approval process.
FDA regulations (21 CFR 514.80) require that distributor labeling be identical to the labeling approved in the NADA/ANADA, except for a different and suitable proprietary name and the name and address of the distributor preceded by an appropriate qualifying phrase. These requirements are meant to ensure that distributor labeling complies with the requirements of the FD&C Act and its implementing regulations and to prevent distributor label products from reaching the market with labeling that compromises the safe and effective use of the new animal drug.
This level 1 draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on distributor labeling for new animal drugs. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in § 514.80 have been approved under OMB control number 0910-0284.
Interested persons may submit either electronic comments regarding this document to
Persons with access to the Internet may obtain the draft guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing the fees we will assess for issuing export certificates for animal food. The FDA Food Safety Modernization Act (FSMA) of 2011 authorizes us to charge fees to cover our costs associated with issuing export certificates for regulated food including animal food. This notice provides the fee schedule for issuing these certificates and the basis for the fees. We have not previously collected fees to issue export certificates for animal food.
The fees described in this document for export certificates for animal food will be effective October 1, 2015.
Joanne Kla, Office of Surveillance and Compliance, Center for Veterinary Medicine (HFV-235), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-5605,
In April 1996, a law entitled the “FDA Export Reform and Enhancement Act of 1996” (Pub. L. 104-134, amended by Pub. L. 104-180) amended sections 801(e) and 802 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 381(e) and 382). It was designed to ease restrictions on exportation of unapproved pharmaceuticals, biologics, and devices regulated by FDA. Section 801(e)(4) of the FD&C Act provides that persons exporting certain FDA regulated products may request FDA to certify that the products meet the requirements of section 801(e)(1), section 802, or other applicable requirements of the FD&C Act. Section 801(e)(4) of the FD&C Act also requires FDA to issue certification within 20 days of receipt of the request and authorizes us to charge up to $175 for each certification issued within 20 days. In January 2011, section 801(e)(4)(A) of the FD&C Act was amended by FSMA (Pub. L. 111-353) to provide authorization for export certification fees for regulated food, including animal food (referred to as animal feed in section 107(b) of FSMA). Section 801(e)(4) of the FD&C Act authorizes FDA to issue export certificates for regulated food, drugs, and devices that are legally marketed in the United States, as well as for these same products that are not legally marketed but are legally exported under section 801(e) or 802 of the FD&C Act. The focus of this notice is on export certificates issued by the Center for Veterinary Medicine (CVM) for animal food.
CVM estimates the costs of the export certification program for animal food to be approximately $548,000 per year for payroll and operating expenses. There are four cost categories for preparing and issuing export certificates in general. They are: (1) Direct personnel for research, review, tracking, writing, and assembly; (2) purchase of equipment and supplies used for tracking, processing, printing, and packaging. Recovery of the cost of the equipment is calculated over its useful life; (3) billing and collection of fees; and (4) overhead and administrative support. In fiscal year (FY) 2014 CVM issued approximately 933 animal food export certificates. Because CVM has not been charging fees for issuing export certificates for animal food, the program has been covered by appropriated funds.
As mentioned previously in this document, FDA may charge up to $175 for each certificate. Certificates for some classes of products, including animal food, cost the Agency more than $175 to prepare. Subsequent certificates issued for the same product(s) in response to the same request generally cost FDA less than $175 to prepare. The fee for all subsequent certificates for the same product(s) issued in response to the same request reflects reduced FDA costs for preparing those certificates.
The following fees will be assessed starting October 1, 2015, for animal food export certificates:
The fee for issuing the first export certificate for animal food will be at the maximum allowable amount and consistent with the export certification fees assessed since FY 1997 by other FDA Centers that provide export certification for drugs and devices. The fees for issuing subsequent certificates continue to differ among the Centers, based on varying costs.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled, “New Animal Drugs for Investigational Use” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food
On July 14, 2015, the Agency submitted a proposed collection of information entitled, “New Animal Drugs for Investigational Use” to OMB for review and clearance under 44 U.S.C. 3507. 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. OMB has now approved the information collection and has assigned OMB control number 0910-0117. The approval expires on August 31, 2018. A copy of the supporting statement for this information collection is available on the Internet at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The 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.
National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209 and 37 CFR part 404, that the National Institutes of Health (NIH), Department of Health and Human Services, is contemplating the grant of a
Only written comments and/or application for a license that are received by the NIH Office of Technology Transfer on or before September 25, 2015 will be considered.
Requests for a copy of the patent application, inquiries, comments and other materials relating to the contemplated license should be directed to: Cristina Thalhammer-Reyero, Ph.D., M.B.A., Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804; Email:
The invention relates to compositions and methods for using multi-domain amphipathic α-helical peptides or peptide analogs to treat or inhibit dyslipidemic disorders. More specifically, the peptides and peptide analogs with multiple amphipathic α-helical domains: (a) Promote lipid efflux from cells via an ABCAl-dependent pathway; and (b) activate lipoprotein lipase.
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR part 404. The prospective exclusive option license may be granted unless, within 15 days from the date of this published Notice, NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
The field of use may be limited to “Therapeutic uses for cardio-metabolic indications, including hypertriglyceridemia, hypercholesterolemia and diabetes”.
Properly filed competing applications for a license filed in response to this notice will be treated as objections to the contemplated license. Comments and objections submitted in response to this notice will not be made available for public inspection, and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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 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.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the Commonwealth of Kentucky (FEMA-4239-DR), dated August 12, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the Commonwealth of Kentucky is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of August 12, 2015.
Breathitt, Fleming, and Perry Counties for Individual Assistance (already designated for Public Assistance).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Missouri (FEMA-4238-DR), dated August 7, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the
Camden, Jackson, New Madrid, Nodaway, Oregon, Pemiscot, Phelps, and St. Clair Counties for Public Assistance.
Science and Technology Directorate, DHS.
Committee management; Notice of Federal advisory committee meeting.
The Homeland Security Science and Technology Advisory Committee (HSSTAC) will meet on September 29, 2015, in Washington, DC. The meeting will be a virtual (Webinar)—open session.
The HSSTAC will meet virtually Tuesday, September 29, 2015 2 p.m.-3:30 p.m.
Please note the meeting may close early if the committee has completed its business.
Virtual Meeting,
For information on services for individuals with disabilities or to request special assistance at the meeting, contact Bishop Garrison as soon as possible. To pre-register for the virtual meeting please send an email to:
To facilitate public participation, we invite public comment on the issues to be considered by the committee as listed in the
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A period is allotted for public comment on September 29, 2015 after the completion of the Webinar. Please note that the public comment period may end before the time indicated, following the last call for comments. To register as a speaker, contact the person listed below.
Bishop Garrison, HSSTAC Executive Director, S&T IAO STOP 0205, Department of Homeland Security, 245 Murray Lane, Washington, DC 20528-0205, 202-254-5617 (O), 202-254-6176 (F),
Notice of this meeting is given under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. (Pub. L. 92-463). The committee addresses areas of interest and importance to the Under Secretary for Science and Technology, such as new developments in systems engineering, cyber-security, knowledge management and how best to leverage related technologies funded by other federal agencies and by the private sector. It also advises the Under Secretary on policies, management processes, and organizational constructs as needed.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until November 9, 2015.
All submissions received must include the OMB Control Number 1615-0111 in the subject box, the agency name and Docket ID USCIS-2012-0011. To avoid duplicate submissions, please use only
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USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Laura Dawkins, Chief, 20 Massachusetts Avenue NW., Washington, DC 20529-2140, telephone number 202-272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until October 13, 2015. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Laura Dawkins, Chief, 20 Massachusetts Avenue NW., Washington, DC 20529-2140, Telephone number (202) 272-8377 (comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until October 13, 2015. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Laura Dawkins, Chief, 20 Massachusetts Avenue NW., Washington, DC 20529-2140, Telephone number (202) 272-8377 (comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Office of the Deputy Secretary, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone number 202-402-3400 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This request is for the clearance of data collection and reporting requirements to enable the U.S. Department of Housing and Urban Development (HUD) Office of Strategic Planning and Management (OSPM) to better assess the effectiveness of competitively-funded grants included in this information collection request (ICR). The competitively-funded grant programs included in this ICR are: Community Development Block Grant Program for Indian Tribes and Alaska Native Villages (ICDBG), Family Self-Sufficiency Program (FSS), Housing Counseling (HC), Housing Opportunities for Persons with AIDS (HOPWA), JobsPlus Program (Jobs+), Juvenile Reentry Assistance Program (JRAP), Lead-Based Paint Hazard Control (LBPHC), Lead Hazard Reduction Demonstration (LHRD), Self-Help Homeownership Opportunity Program (SHOP), Supportive Services Demonstration Program (202), and Resident Opportunity and Self Sufficiency Service Coordinators Program (ROSS).
A key component of this proposed collection is the reporting of measureable outcomes. Additionally, the standardization of data collection and reporting requirements across the Department will increase data
The Department has several reporting models in place for competitive grant programs, including the eLogic Model. The reporting models provide information on a wide variety of outputs and outcomes and are based on unique data definitions and outcome measures in program-specific performance and progress reports. In Federal Fiscal Year 2013, nine program offices at HUD used six systems and 15 reporting tools to collect over 700 data elements in support of varied metrics to assess the performance of competitively-funded. The proposed data collection and reporting requirements described in this notice are designed to replace the use of the eLogic Model and other report forms and requirements.
The lack of standardized data collection and reporting requirements imposes an increased burden on grantees with multiple grant awards from HUD. The need for a comprehensive and standardized reporting approach is underscored by reviews conducted by external oversight agencies, including the Department's Office of Inspector General (OIG) and the Government Accountability Office (GAO). These oversight agencies have questioned the validity and comparability of data reported by the Department. To address these issues, the Department is using its statutory and regulatory authority to redesign and strengthen performance reporting for many of its competitive grant programs into a single comprehensive approach.
The Secretary's statutory and regulatory authority to administer housing and urban development programs include provisions allowing for the requirement of performance reporting from grantees. This legal authority is codified at 42 U.S.C. 3535(r). The individual privacy of service recipients is of the highest priority. The reporting repository established at HUD to receive data submission from grantees will not include any personally identifying information (PII). Additionally, if the data for a grant has 25 or fewer individuals served during a fiscal year as reported in the record-level reports, then the results for the demographic data elements for the 25 or fewer individuals will also be redacted or removed from the public-use data file and any publicly available analytical products in order to ensure the inability to identify any individual.
Eligible entities awarded grants by the Department are expected to implement the proposed recordkeeping and reporting requirements with available grant funds. It is important to note that much of the data to be reported by grantees under this ICR is already required and reported to one or more program offices at HUD. Furthermore, generally only a subset of the universe of data elements presented will be submitted as data collection and reporting requirements are determined by the program office and include consideration of the type and level of service provided by the respective grant programs.
The reporting requirements in this proposal better organize the data already being collected, standardize outcomes and performance measures, and allow program offices at HUD to select which data elements and performance indicators are relevant for their respective programs. Documents detailing the data elements, performance indicators, and draft online data entry forms are available for review by request from Colette Pollard (
Information collected and reported will be used by recipients or grantees and the Department for the following purposes:
• To provide program and performance information to recipients, general public, Congress, and other stakeholders;
• To continuously improve the quality, effectiveness, and efficiency of grant-funded programs;
• To provide management information for use by the Department in program administration and oversight, including the monitoring of grant-specific participation, services, capital investments, and outcomes; and
• To better measure and analyze performance information to identify successful practices to be replicated and prevent or correct problematic practices and improve outcomes in compliance with the Government Performance and Results Act (GPRA) and the GPRA Modernization Act.
The data collection and reporting requirements will be phased in over a three-year period which includes a proof of concept pilot in FY16. The Department will provide technical assistance to recipients or grantees throughout the implementation.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comments in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
Through this notice, HUD announces that it will be holding a conference call on September 16, 2015, to discuss HUD's previous participation review process and solicit feedback on how this process can be improved. On August 10, 2015, HUD published a proposed rule to revise its regulations governing the previous participation review process that is applied to certain entities seeking to take part in multifamily housing and healthcare programs administered by HUD's Office of Housing. HUD's goal in revising the regulations is to simplify the process by which HUD currently reviews the previous participation of participants that have decision-making authority over their projects as one component of HUD's responsibility to assess financial and operational risk to the projects in these programs.
The teleconference call will be held on September 16, 2015, commencing at 11:30 a.m., EDT.
Because this is a conference call, there is no meeting venue. Current and prior multifamily housing and healthcare programs' participants interested in participating in the conference call can register for the call at HUD's Web site at
Aaron Hutchinson, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 6178, Washington, DC 20410; telephone number 202-708-3994 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339 (this is not a toll-free number).
HUD's regulations governing the assessment of previous participation are codified in 24 CFR part 200, subpart H (Subpart H),
Participants in HUD's multifamily housing and healthcare programs have long complained about the delays with HUD's previous participation review process because of the number of required principals that must complete the form and the overly detailed information required to be submitted, and HUD is committed to improving the process. HUD has commenced steps to strive to improve the previous participation process and on August 10, 2015, at 80 FR 47874, HUD published a proposed rule, entitled “Retrospective Review—Improving the Previous Participation Reviews of Prospective Multifamily Housing and Healthcare Programs Participants.”
To aid HUD in the goal to revise the previous participation regulations so that the review process is effective but also expedient and less burdensome, HUD seeks input in the form of public comment on how the process can be
Comments on HUD's proposed rule can be submitted through the
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
12 U.S.C. 1701z-1 Research and Demonstrations.
Office of the General Counsel, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Reports Liaison Officer, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500.
Lindsey Allen, Deputy Assistant General Counsel, Ethics Law Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 2130, Washington, DC 20410-0500, telephone (202) 708-3815 (this is not a toll-free number). This form can be viewed or accessed at
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary
This Notice also lists the following information:
Each applicant that submits an application for assistance, within the jurisdiction of the HUD, to a state or to a unit of general local government for a specific project or activity must disclose this information whenever the dollar threshold is met. This information must be kept updated during the application review process and while the assistance is being provided.
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the General Counsel, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Nacheshia Foxx, Reports Liaison Officer, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10276, Washington, DC 20410-0500.
Millicent Potts, Assistant General Counsel for Multifamily Mortgage Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 9230, Washington, DC 20410-0500, telephone (202) 708-1274 (this is not a toll-free number) for a copy of the instructions.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This notice also lists the following information:
The Legal Instructions Concerning Applications for Full Insurance Benefits—Assigment of Multifamily Mortgage, in its current form and
HUD proposes to make the following revisions to this document:
Under Part B, Submissions of Legal Documents after Recordation of Assignment, HUD proposes to add a new paragraphs 12 and 13 to read as follows:
12.
[Insert name of the mortgagee] affirms under penalty of law that the [describe flood insurance policy by name of insurance company or producer and policy number] described in the [Evidence of Insurance or other document name, as applicable] is in full force and effect and names the Secretary of Housing and Urban Development, of Washington, DC, his/her successors and assigns, 451 Seventh Street SW., Room 9230, Washington, DC 20410-0500 as loss payee as of [insert the date of assignment].
The effective date of this endorsement and mortgagee's affidavit, if applicable, should be the date the assignment of mortgage to the Secretary is filed for record. The evidence of flood insurance is acceptable if it contains language to the effect that it is for informational purposes only and does not confer rights upon the holder of the policy only if accompanied by the mortgagee's affidavit. A Certificate of Insurance is not acceptable.
13. An assignment of the mortgagee's interest in the flood insurance policy should state the following:
The interest of ______, as the Mortgagee under Policy No. ____ issued by ______ is hereby assigned to the Secretary of Housing and Urban Development of Washington, DC, his/her successors and assigns. Date: ____
Existing paragraphs 12 through 16 would be unchanged except for being redesignated paragraaphs 14 through 18.
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
12 U.S.C. 1701z-1 Research and Demonstrations.
Fish and Wildlife Service, Interior.
Notice of extension of nominations period.
On August 10, 2015, via a
Nominations must be received by September 25, 2015.
Send nominations, preferably by email, to Mr. Cade London, Special Assistant, Assistant Director for International Affairs, at
Mr. Cade London, Special Assistant, Assistant Director for International Affairs, U.S. Fish and Wildlife Service, via email at
On August 10, 2015, via a
The Council was formed and conducts its operations in accordance with the provisions of the Federal Advisory Committee Act (5 U.S.C. Appendix). It reports to the Task Force through the Secretary of the Interior or her designee and functions solely as an advisory body. The Council advises and makes recommendations on issues related to combating wildlife trafficking, including, but not limited to:
(1) Effective support for anti-poaching activities,
(2) Coordinating regional law enforcement efforts,
(3) Developing and supporting effective legal enforcement mechanisms, and
(4) Developing strategies to reduce illicit trade and reduce consumer demand for illegally traded wildlife, including protected species.
The Council meets approximately 3-4 times annually, and at such time as designated by the Designated Federal Officer.
Members must include knowledgeable individuals from the private sector, former governmental officials, representatives of nongovernmental organizations, and others who are in a position to provide expertise and support to the Task Force. No member of the Council may be an employee of the Federal Government. Members' appointments will be for 3-year terms.
Individuals who are federally registered lobbyists are ineligible to serve on all FACA and non-FACA boards, committees, or councils in an individual capacity. The term “individual capacity” refers to individuals who are appointed to exercise their own individual best judgment on behalf of the government, such as when they are designated Special Government Employees, rather than being appointed to represent a particular interest.
The Department of the Interior is extending the nominations to be considered as Council members. Nominations should include a resume providing contact information and an adequate description of the nominee's qualifications, including information that would enable the Department of the Interior to make an informed decision regarding whether individual nominees meet the membership requirements of the Council.
Bureau of Land Management, Interior.
Notice of Realty Action.
The Bureau of Land Management (BLM) proposes to offer, by modified-competitive, sealed-bid sale, public lands totaling 2,486.38 acres in Eddy County, New Mexico, at not less than the appraised fair market value (FMV) of $298,000. The sale will be subject to the applicable provisions of Section 203 of the Federal Land Policy and Management Act of 1976 (FLPMA).
Interested parties may submit written comments regarding the sale and the environmental assessment (EA) until October 26, 2015. Sealed bids may be mailed or delivered to the BLM Carlsbad Field Office, at the address
Mail written comments to the BLM Carlsbad Field Manager, Carlsbad Field Office, 620 East Greene, Carlsbad, NM 88220. The modified-competitive sale will be held at the BLM Carlsbad Field Office.
Tammie Hochstein, Realty Specialist, at the address above, by telephone at 575-234-5902, or by email at
The land is hereby classified for disposal in accordance with Executive Order No. 6910, and with Section 7 of the Taylor Grazing Act, 43 U.S.C. 315F. The lands proposed for disposal are described as follows:
The area described aggregates 2,486.38 acres.
The sale parcel offered for the proposed modified-competitive sale is suitable for disposal, this action is in conformance with the 1988 Carlsbad Resource Management Plan, and Amendment dated 1997.
The locatable, salable, and leasable mineral rights will be reserved by the United States. In accordance with 43 CFR 4110.4-2(b), which states that when public lands are disposed of or devoted to a public purpose which precludes livestock grazing, the permittee shall be given 2 years prior notification before his or her grazing permit or permitted use may be canceled or reduced.
Additionally, 43 CFR 4110.4-2(b) provides an opportunity for the grazing permittee to waive the 2-year notification period. The grazing permittee for this land sale has agreed to the sale and signed the waiver/relinquishment agreement.
The use of the modified-competitive sale method is consistent with 43 CFR 2711.3-2(a)(1)(i) because the authorized officer has determined it is necessary in order to assure equitable distribution of land among purchasers or to recognize equitable considerations or public policies. Under the modified competitive bidding procedure, a designated bidder is offered the highest bid. Refusal or failure to meet the highest bid shall constitute a waiver of such bidding provisions. Failure to accept an offer to purchase the offered lands within the time specified by the authorized officer shall constitute a waiver of his preference consideration. The authorized officer has identified Bill Kennedy as the designated bidder for this parcel.
The sale parcel, NMNM 90300, is being analyzed in Environmental Assessment Number DOI-BLM-NM-P020-2014-1493-EA. Upon publication of this notice, the EA is available at the BLM Carlsbad Field Office for public review and comments. Only written comments will be considered properly filed.
Any adverse comments regarding the sale will be reviewed by the BLM New Mexico State Director or other authorized official of the Department of Interior, who may sustain, vacate, or modify this realty action in whole or in part.
Before including your address, phone number, email address, or other personal identifying information, 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.
Information concerning the sale, appraisal, reservations, sale procedures and conditions, Comprehensive Environmental Response Compensation and Liability Act (CERCLA), map delineating the sale parcel, mineral potential report, EA, and other environmental documents will be available for review during business hours, from 7:45 a.m. to 4:30 p.m., Mountain Time, Monday through Friday at the BLM Carlsbad Field Office except during federally recognized holidays.
Publication of this notice in the
The parcel is subject to limitations prescribed by law and regulation and, prior to patent issuance, a holder of any right-of-way within the parcel may be given the opportunity to amend the right-of-way for conversion to a new term, including perpetuity, if applicable, or conversion to an easement. In accordance with regulation at 43 CFR 2807.15(b), the BLM notified the valid existing right-of-way holders by letter of their ability to convert their rights-of-way to perpetual rights-of-way or easements. None of the holders requested conversion of their current authorizations, so the BLM will continue to administer their rights-of-way as authorized after the sale.
The following rights, reservations, and terms and conditions will appear on the conveyance document for these parcels:
1. A reservation for all mineral deposits in the land so patented, and to it or persons authorized by it, the right to enter the land and prospect for; mine; and remove such deposits from the same under applicable laws and such regulations as the Secretary of the Interior may prescribe shall be reserved to the United States;
2. A reservation for any right-of-way thereon for ditches and canals constructed by the authority of the United States, Reservation in Patent Right of Way for Ditches or Canals Act of August 30, 1890 (26 Stat. 291; 43
NM-72756, NM-77814, NM-60190, NM-93139, NM-121560, NM-115291, NM-106778, NM-40925, NM-40738, NM-29305, NM-121143, NM-121142, NM-33339, NM-33338, NM-32422, NM-68029, NM-114258, NM-113331, NM-72654, NM-72655, NM-24321, NM-03604, NM-09542A, NM-11461, NM-15664, NM-71846, NM-71987, NM-71999, NM-72087, NM-72380, NM-72535, NM-343045, NM-440087, NM-471842, NM-487738, NM-0-196959.
3. The parcel is subject to valid existing rights, including but not limited to, rights-of-way for roads, public utilities, and flood control improvements;
4. An appropriate indemnification clause protecting the United States from claims arising out of the patentee's use, occupancy, or occupation on the patented lands. Pursuant to the requirements established by Section 120(h) of the, 42 U.S.C. 9620(h) CERCLA, as amended, notice is hereby given that the above-described lands have been examined and no evidence was found to indicate that any hazardous substances have been stored for 1 year or more, nor had any hazardous substances been disposed of or released on the subject property.
No representation, warranty, or covenant of any kind, express or implied, is given or made by the United States as to access to or from any parcel of land, the title, whether or to what extent the land may be developed, its physical condition, present or potential uses, or any other circumstance or condition. The conveyance of the sale parcel will not be on a contingency basis.
Sealed bids will be presented for the sale parcel. Sealed-bid envelopes must be clearly marked on the front lower left corner with: “SEALED BID BLM LAND SALE” and the identification number for the sale parcel “BLM SERIAL NUMBER NMNM 90300.” Each sealed bid shall be accompanied by a cashier's check, certified check, or U.S. postal money order, and made payable in U.S. dollars to “Department of the Interior—Bureau of Land Management” for not less than 20 percent of the amount bid. Personal or company checks will not be accepted. The sealed-bid envelope shall include a completed and signed Certificate of Eligibility.
Sealed bids will be opened and recorded to determine the high bidder on November 10, 2015, 10:00 a.m., Mountain Time at the BLM Carlsbad Field Office. The highest bidder among the qualified bids received for the sale will be announced under 43 CFR 2711.3-1(d). Following the end of the sale, all bid deposits will be returned to the unsuccessful bidders, if present, or by certified mail. If the winning bidder defaults on the parcel, the BLM may retain the bid deposit and cancel the sale. If the high bidder is unable to consummate the transaction for any reason, the BLM, in its sole discretion, may consider the second-highest bid and offer the sale to the person who submitted this bid. The BLM will send the successful bidder a high-bidder letter with detailed information for full payment.
Pursuant to regulation at 43 CFR 2711.2, bidders must be (1) United States citizens, 18 years of age or older; (2) A corporation subject to the laws of any State or of the United States; (3) An entity including, but not limited to, associations or partnerships capable of acquiring and owning real property, or interests therein, under the laws of the State of New Mexico; or (4) A State, State instrumentality, or political subdivision authorized to hold real property. United States citizenship is evidenced by presenting a birth certificate, passport, or naturalization papers. Failure to submit the above requested documents to the BLM within 30 days from receipt of the high-bidder letter shall result in cancellation of the sale and forfeiture of the bid deposit.
Within 30 days of the bid opening, the BLM will, in writing, either accept or reject all bids received. No contractual, or other rights against the United States, may accrue until the BLM officially accepts the offer to purchase and the full bid price is paid. Unless other satisfactory arrangements are approved in advance by a BLM authorized officer, conveyance of title will be through the use of escrow. Designation of the escrow agent shall be through mutual agreement between the BLM and the prospective patentee, and costs of escrow shall be borne by the prospective patentee.
Requests for all escrow instructions must be received by the BLM Carlsbad Field Office prior to 30 days before the prospective patentee has scheduled closing date. No exceptions will be made.
No contractual or other rights against the United States may accrue until the BLM officially accepts the offer to purchase, and the full bid price is submitted by the 180th day following the sale.
All name changes and supporting documentation must be received at the BLM Carlsbad Field Office 30 days from the date on the high-bidder letter by 4:30 p.m., Mountain Time. Name changes will not be accepted after that date. To submit a name change, the apparent high bidder must submit the name change on the Certificate of Eligibility to the BLM Carlsbad Field Office in writing. Certificates of Eligibility are available at the BLM Carlsbad Field Office.
The remainder of the full bid price for the sale parcel must be received no later than 4:30 p.m. Mountain Time, within 180th day following the day of the sale. Payment must be submitted in the form of a, certified check, postal money order, bank draft or cashier's check or made available by electronic fund transfer made payable in U.S. dollars to the “Department of the Interior—Bureau of Land Management.” The BLM will not accept personal or company checks.
Arrangements for electronic fund transfer to BLM for payment of the balance due must be made a minimum of two weeks prior to the payment date. Failure to pay the full bid price prior to the expiration of the 180th day will disqualify the apparent high bidder and cause the entire 20 percent bid deposit to be forfeited to the BLM. Forfeiture of the 20 percent bid deposit is in accordance with 43 CFR 2711.3-1(d). No exceptions will be made. The BLM cannot accept the remainder of the bid price after the 180th day of the sale date.
The BLM will not sign any documents related to 1031 Exchange transactions. In accordance with 43 CFR 2711.3-1(f), the BLM may accept or reject any or all offers to purchase, or withdraw any parcel of land or interest therein from sale, if, in the opinion of a BLM authorized officer, consummation of the sale would be inconsistent with any law, or for other reasons.
The parcel, if not sold by modified-competitive, sealed-bid sale, may be identified for sale later without further legal notice.
It is the bidder's responsibility to be aware of all applicable Federal, State, and local government laws, regulations and policies that may affect the subject lands, including any required dedication of lands for public uses. It is the bidder's responsibility to be aware of existing or prospective uses of nearby properties. When conveyed out of Federal ownership, the lands will be subject to any applicable laws, regulations, and policies of the applicable local government for proposed future uses. It will be the responsibility of the purchaser to be aware of those laws, regulations, and policies, and to seek any required local approvals for future uses. Bidders should also make themselves aware of any Federal or State law or regulation that may affect the future use of the property. Any land lacking access from a public road or highway will be conveyed as such, and future access acquisition will be the responsibility of the buyer.
43 CFR 2710 and 2711.1-2 (a) and (c)
National Indian Gaming Commission, Interior.
Second notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the National Indian Gaming Commission (NIGC or Commission) is announcing its submission, concurrently with the publication of this notice or soon thereafter, of the following information collection requests to the Office of Management and Budget (OMB) for review and approval.
The Commission is seeking comments on the renewal of information collections for the following activities: (i) Indian gaming management contract-related submission requirements, as authorized by OMB Control Number 3141-0004 (expires on October 31, 2015); (ii) Indian gaming fee payment-related submission requirements, as authorized by OMB Control Number 3141-0007 (expires on November 30, 2015); (iii) minimum internal control standards for class II gaming submission and recordkeeping requirements, as authorized by OMB Control Number 3141-0009 (expires on October 31, 2015); (iv) facility license-related submission and recordkeeping requirements, as authorized by OMB Control Number 3141-0012 (expires on October 31, 2015); and (v) minimum technical standards for class II gaming systems and equipment submission and recordkeeping requirements, as authorized by OMB Control Number 3141-0014 (expires on November 30, 2015).
In addition, the Commission is seeking comments on its request for a new information collection,
The OMB has up to 60 days to approve or disapprove the information collection requests, but may respond after 30 days. Therefore, public comments should be submitted to OMB by October 13, 2015 in order to be assured of consideration.
Submit comments directly to OMB's Office of Information and Regulatory Affairs, Attn: Policy Analyst/Desk Officer for the National Indian Gaming Commission. Comments can also be emailed to
For further information, including copies of the proposed information collection requests and supporting documentation, contact Armando J. Acosta at (202) 632-7003; fax (202) 632-7066 (not toll-free numbers). You may also review these information collection requests by going to
The gathering of this information is in keeping with the purposes of the Indian Gaming Regulatory Act of 1988 (IGRA or the Act), Public Law 100-497, 25 U.S.C. 2701,
Section 533.2 requires a tribe or management contractor to submit a management contract for review within 60 days of execution, and to submit all of the items specified in § 533.3. Section 535.1 requires a tribe to submit an amendment to a management contract within 30 days of execution, and to submit all of the items specified in § 535.1(c). Section 535.2 requires a tribe or a management contractor, upon execution, to submit the assignment by a management contractor of its rights under a previously approved management contract. Section 537.1 requires a management contractor to submit all of the items specified in § 537.1(b), (c) in order for the Commission to conduct background investigations on: each person with management responsibility for a management contract; each person who is a director of a corporation that is a party to a management contract; the ten persons who have the greatest direct or indirect financial interest in a management contract; any entity with a
Section 514.6 requires a tribe to submit, along with its fee payments, quarterly fee statements (worksheets) showing its assessable gross revenues for the previous fiscal year in order to support the computation of fees paid by each gaming operation. Section 514.7 requires a tribe to submit a notice within 30 days after a gaming operation changes its fiscal year. Section 514.15 allows a tribe to submit fingerprint cards to the Commission for processing by the Federal Bureau of Investigation (FBI), along with a fee to cover the NIGC's and FBI's costs to process the fingerprint cards on behalf of the tribes. Parts of this collection are mandatory and the other part is voluntary. The required submission of the fee worksheets allows the Commission to both set and adjust fee rates, and to support the computation of fees paid by each gaming operation. In addition, the voluntary submission of fingerprint cards allows a tribe to conduct statutorily mandated background investigations on applicants for key employee and primary management official positions.
Section 543.3 requires a tribal gaming regulatory authority (TGRA) to submit to the Commission a notice requesting an extension to the deadline (by an additional six months) to achieve compliance with the requirements of the new tier after a gaming operation has moved from one tier to another. Section 543.5 requires a TGRA to submit a detailed report after the TGRA has approved an alternate standard to any of the NIGC's minimum internal control standards, and the report must contain all of the items specified in § 543.5(a)(2). Section 543.23(c) requires a tribe to maintain internal audit reports and to make such reports available to the Commission upon request. Section 543.23(d) requires a tribe to submit two copies of the agreed-upon procedures (AUP) report within 120 days of the gaming operation's fiscal year end. This collection is mandatory and allows the NIGC to confirm tribal compliance with the minimum internal control standards in the AUP reports.
Section 559.2 requires a tribe to submit a notice (that a facility license is under consideration for issuance) at least 120 days before opening any new facility on Indian lands where class II and/or class III gaming will occur, with the notice containing all of the items specified in § 559.2(b). Section 559.3 requires a tribe to submit a copy of each newly issued or renewed facility license within 30 days of issuance. Section 559.4 requires a tribe to submit an attestation certifying that by issuing the facility license, the tribe has determined that the construction, maintenance, and operation of that gaming facility is conducted in a manner that adequately protects the environment and the public health and safety. Section 559.5 requires a tribe to submit a notice within 30 days if a facility license is terminated or
Section 547.5(b)(2) requires a tribal gaming regulatory authority (TGRA) to submit a notice regarding a grandfathered class II gaming system's approval. Section 547.5(b)(5) requires a TGRA to maintain records of approved modifications that affect the play of a grandfathered class II gaming system, and must make the records available to the Commission upon request. Section 547.5(d)(3) requires a TGRA to maintain records of approved emergency hardware and software modifications to a class II gaming system (and a copy of the testing laboratory report) so long as the gaming system remains available to the public for play, and must make the records available to the Commission upon request. Section 547.5(f) requires a TGRA to maintain records of its following determinations: (i) Regarding a testing laboratory's (that is owned or operated or affiliated with a tribe) independence from the manufacturer and gaming operator for whom it is providing the testing, evaluating, and reporting functions; (ii) regarding a testing laboratory's suitability determination based upon standards no less stringent than those set out in 25 CFR 533.6(b)(1)(ii) through (v) and based upon no less information than that required by 25 CFR 537.1; and/or (iii) the TGRA's acceptance of a testing laboratory's suitability determination made by any other gaming regulatory authority in the United States. The TGRA must maintain said records for a minimum of three years and must make the records available to the Commission upon request. Section 547.17 requires a TGRA to submit a detailed report for each enumerated standard for which the TGRA approves an alternate standard, and the report must contain the items identified in § 547.17(a)(2). This collection is mandatory and allows the NIGC to confirm tribal compliance with NIGC regulations on “electronic, computer, or other technologic aids” to conduct class II gaming activities.
The Commission is requesting a new clearance to conduct voluntary stakeholder surveys in order to: (i) Determine the stakeholders' satisfaction with the level(s) of service, trainings, and/or technical assistance provided by the Commission; (ii) identify any perceived weaknesses in those services, trainings, and/or technical assistance; (iii) seek any other information on the service, training, and/or technical assistance received; (iv) seek suggestions on improving the product or its format; and (v) seek suggestions for other services, trainings, and/or technical assistance. This new collection will be voluntary and the information gleaned from these surveys will be used to help direct service, training, and/or technical assistance improvement efforts, and to assist the Commission in better identifying the needs of its stakeholders. The Commission will take precautions to ensure that the respondents are aware that they are not under any risk for not responding or for the content of their responses.
Regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act, require that interested members of the public have an opportunity to comment on an agency's information collection and recordkeeping activities.
The Commission will submit the preceding requests to OMB to renew its approval of the information collections and to approve its request for a new information collection to conduct voluntary stakeholder satisfaction surveys. The Commission is requesting a three-year term of approval for each of these information collection and recordkeeping activities.
You are again invited to comment on these collections in order for the Commission to: (i) Evaluate whether the proposed information collection is necessary for the agency to perform its duties, including whether the
Comments submitted in response to this second notice will be summarized and become a matter of public record. The NIGC will not request nor sponsor a collection of information, and you need not respond to such a request, if there is no valid OMB Control Number.
Bureau of Reclamation, Interior.
Notice.
The Bureau of Reclamation has prepared a Final Environmental Impact Statement (EIS) for the Central Valley Project Municipal and Industrial Water Shortage Policy. The Final EIS addresses updating the Central Valley Project Municipal and Industrial Water Shortage Policy and implementation guidelines. The Central Valley Project Municipal and Industrial Water Shortage Policy would be used by Reclamation to: (1) Define water shortage terms and conditions for applicable Central Valley Project water service contractors, as appropriate; (2) establish Central Valley Project water supply allocations that, together with the municipal and industrial water service contractors' drought water conservation measures and other water supplies, would assist the municipal and industrial water service contractors in their efforts to protect public health and safety during severe or continuing droughts; and (3) provide information to water service contractors for their use in water supply planning and development of drought contingency plans.
The Bureau of Reclamation will not issue a final decision on the proposal for a minimum of 30 days after the date that the Environmental Protection Agency releases the Final EIS. After the 30-day period, the Bureau of Reclamation will complete a Record of Decision. The Record of Decision will state the action that will be implemented and will discuss all factors leading to the decision.
Send written correspondence or requests for copies of the Final EIS to Mr. Tim Rust, Bureau of Reclamation, Resources Management Division, 2800 Cottage Way, Sacramento, CA 95825, or via email to
The Final EIS may be viewed at the Bureau of Reclamation's Web site at
Mr. Tim Rust, Program Manager, Bureau of Reclamation, via email at
The Central Valley Project is operated under Federal statutes authorizing the Central Valley Project, and by the terms and conditions of water rights acquired pursuant to California law. During any year, constraints may occur on the availability of Central Valley Project water for municipal and industrial water service contractors. The cause of the water shortage may be drought, unavoidable causes, or restricted operations resulting from legal and environmental obligations or mandates. Those legal and environmental obligations include, but are not limited to, the Endangered Species Act, the Central Valley Project Improvement Act (CVPIA), and conditions imposed on Central Valley Project water rights by the California State Water Resources Control Board. The 2001 draft Central Valley Project Municipal & Industrial Water Shortage Policy, as modified by Alternative 1 B of the 2005 draft environmental assessment (EA), establishes the terms and conditions regarding the constraints on availability of water supply for the Central Valley Project municipal and industrial water service contracts.
Allocation of Central Valley Project water supplies for any given water year is based upon forecasted reservoir inflows and Central Valley hydrologic conditions, amounts of storage in Central Valley Project reservoirs, regulatory requirements, and management of Section 3406(b)(2) resources and refuge water supplies in accordance with CVPIA. In some cases, municipal and industrial allocations in water shortage years may differ between Central Valley Project divisions due to regional Central Valley Project water supply availability, system capacity, or other operational constraints.
The purpose of the update to the 2001 Central Valley Project Municipal & Industrial Water Shortage Policy, as modified by Alternative 1 B of the 2005 draft EA, is to provide detailed, clear, and objective guidelines for the distribution of Central Valley Project water supplies during water shortage conditions, thereby allowing Central Valley Project water users to know when, and by how much, water deliveries may be reduced in drought and other low water supply conditions.
The increased level of clarity and understanding that will be provided by the update to the 2001 draft Central Valley Project Municipal & Industrial Water Shortage Policy is needed by water managers and the entities that receive Central Valley Project water to better plan for and manage available Central Valley Project water supplies, and to better integrate the use of Central Valley Project water with other available non-Central Valley Project water supplies. The update to the 2001 draft Central Valley Project Municipal & Industrial Water Shortage Policy is also needed to clarify certain terms and conditions with regard to its applicability and implementation. The proposed action is the adoption of an updated Central Valley Project Municipal & Industrial Water Shortage Policy and its implementation guidelines.
The EIS analyzes five alternative actions. Alternative 1 is No Action, and represents the current 2001 draft Central Valley Project Municipal & Industrial Water Shortage Policy, as modified by Alternative 1 B of the 2005 EA, which
A Notice of Availability of the Draft EIS was published in the
Copies of the Final EIS are available for public review at the following locations:
Before including your address, phone number, email address, or other personal identifying information in any communication, you should be aware that your entire communication—including your personal identifying information—may be made publicly available at any time. While you can ask us in your communication 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, Department of the Interior.
Notice, extension of comment period.
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are announcing extension of the comment period on the proposed stream protection rule and the draft environmental impact statement (DEIS) and draft regulatory impact analysis (RIA) prepared in connection with that rule.
We will accept electronic or written comments on the proposed rule, DEIS, and RIA that we receive on or before October 26, 2015.
You may submit comments by any of the following methods:
If you wish to comment on the information collection aspects of this proposed rule, submit your comments to the Department of the Interior Desk Officer at OMB—OIRA, via email at
On July 16, 2015, we announced that the proposed rule, DEIS, and draft RIA were available for review at
On July 17, 2015, we published a notice in the
On July 27, 2015, we published the proposed stream protection rule in the
In response to requests for additional time to review and prepare comments on all three documents, we are extending the comment period for the proposed rule, DEIS, and RIA through October 26, 2015. Please follow the instructions for submission of comments in Part XII of the proposed rule. See 80 FR 44580 (Jul. 27, 2015).
United States International Trade Commission.
Expansion of scope of investigation; extension of deadline for filing written submissions.
Following receipt of a letter on August 19, 2015, from the Committee on Finance of the United States Senate (Committee), the Commission has expanded the scope of investigation No. 332-552,
October 23, 2015: Deadline for filing all written submissions.
March 17, 2016: Transmittal of Commission report to the Senate Committee on Finance.
All Commission offices, including the Commission's hearing rooms, are located in the United States International Trade Commission Building, 500 E Street SW., Washington, DC. All written submissions should be addressed to the Secretary, United States International Trade Commission, 500 E Street SW., Washington, DC 20436. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at
Project Leader Heidi Colby-Oizumi (202-205-3391;
Background: The Commission instituted the investigation in response to a letter from the Committee on Finance dated December 17, 2014. In that letter the Committee asked that the Commission institute an investigation and provide a report that includes, to the extent possible, the following: (1) An overview of Cuba's imports of goods and services from 2005 to the present, including identification of major supplying countries, products, and market segments; (2) a description of how U.S. restrictions on trade, including those relating to export financing terms and travel to Cuba by U.S. citizens, affect Cuban imports of U.S. goods and services; and (3) for sectors where the impact is likely to be significant, a qualitative and, to the extent possible, quantitative estimate of U.S. exports of goods and services to Cuba in the event that statutory, regulatory, or other trade restrictions on U.S. exports of goods and services as well as travel to Cuba by U.S. citizens are lifted. The Committee also asked that the report include, to the extent possible, state-specific analysis of the impacts described above, and that the report be transmitted by September 15, 2015. In response, the Commission instituted the current investigation and published a notice of the investigation in the
In a letter dated and received on August 19, 2015, the Committee asked that the Commission expand the scope of its report to include:
(1) A qualitative analysis of existing Cuban non-tariff measures, Cuban institutional and infrastructural factors, and other Cuban barriers that inhibit or affect the ability of U.S. and non-U.S. firms to conduct business in and with Cuba, with such measures, factors, and barriers to include, to the extent feasible, but not be limited to, the following topics: restrictions on trade and investment; property rights and ownership; customs duties and procedures; sanitary and phytosanitary measures; state trading; protection of intellectual property rights; and infrastructure as it affects telecommunications, port facilities, and the storage, transport, and distribution of goods;
(2) a qualitative analysis of any effects that such measures, factors, and barriers would have on U.S. exports of goods and services to Cuba in the event of changes to statutory, regulatory, or other trade restrictions on U.S. exports of goods and services to Cuba; and
(3) to the extent feasible, a quantitative analysis of the aggregate effects of Cuban tariff and non-tariff measures on the ability of U.S. and non-U.S. firms to conduct business in and with Cuba.
In its letter of August 19, 2015, the Committee asked that the Commission transmit its completed report by March 17, 2016.
Written Submissions: The Commission does not plan to hold a further public hearing in this investigation. However, interested parties are invited to file written submissions concerning this investigation. All written submissions should be addressed to the Secretary, and all such submissions should be received no later than 5:15 p.m., October 23, 2015. All written submissions must conform to the provisions of section 201.8 of the Commission's Rules of Practice and Procedure (19 CFR 201.8). Section 201.8 and the Commission's Handbook on Filing Procedures require that interested parties file documents electronically on or before the filing deadline and submit eight (8) true paper copies by 12:00 p.m. eastern time on the next business day. In the event that confidential treatment of a document is requested, interested parties must file, at the same time as the eight paper copies, at least four (4) additional true paper copies in which the confidential information must be deleted (see the following paragraph for further information regarding confidential business information). Persons with questions regarding electronic filing should contact the Secretary (202-205-2000).
Any submissions that contain confidential business information (CBI) must also conform to the requirements of section 201.6 of the Commission's Rules of Practice and Procedure (19 CFR 201.6). Section 201.6 of the rules requires that the cover of the document and the individual pages be clearly marked as to whether they are the “confidential” or “non-confidential” version, and that the confidential business information is clearly
The Committee has asked that the Commission's report not contain any confidential business information. Any confidential business information received by the Commission in this investigation and used in preparing this report will not be published in a manner that would reveal the operations of the firm supplying the information.
Summaries of Written Submissions: The Commission intends to publish summaries of the positions of interested persons in an appendix to its report. Persons wishing to have a summary of their position included in the appendix should include a summary with their written submission. The summary may not exceed 500 words, should be in MSWord format or a format that can be easily converted to MSWord, and should not include any confidential business information. The summary will be published as provided if it meets these requirements and is germane to the subject matter of the investigation. In the appendix the Commission will identify the name of the organization furnishing the summary, and will include a link to the Commission's Electronic Document Information System (EDIS) where the full written submission can be found.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review-in-part the final initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) in the above-captioned investigation on July 2, 2015. The Commission requests certain briefing from the parties on the issues under review, as indicated in this notice. The Commission also requests briefing from the parties and interested persons on the issues of remedy, the public interest, and bonding.
Lucy Grace D. Noyola, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-3438. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on July 14, 2014, based on a complaint filed by Navico, Inc. of Tulsa, Oklahoma, and Navico Holding AS, of Egersund, Norway (collectively, “Navico”). 79
On July 2, 2015, the ALJ issued a final ID finding no violation of section 337 with respect to all three asserted patents. Specifically, the ALJ found that the asserted claims of each patent are not infringed and were not shown to be invalid for anticipation or obviousness. The ALJ found that the economic prong of the domestic industry requirement was not satisfied with respect to the '550 patent. The ALJ also issued a Recommended Determination on Remedy and Bonding (“RD”), recommending, if the Commission finds a section 337 violation, that a limited exclusion order and a cease and desist order should issue and that a bond should be imposed at a reasonable royalty of eight percent for each infringing device imported during the period of presidential review.
On July 20, 2015, Navico, Garmin, and OUII timely filed petitions for review challenging various findings in the final ID. On July 28, 2015, the parties filed responses. On August 5, 2015, Navico and Garmin filed a post-RD statement on the public interest under Commission Rule 210.50(a)(4). The Commission did not receive any post-RD public interest comments from the public.
Having examined the record of this investigation, including the ID, the petitions for review, and the responses thereto, the Commission has determined to review the ALJ's determination of no violation in part. Specifically, the Commission has determined to review (1) the ALJ's construction of the limitation “single linear downscan transducer element” recited in claims 1 and 23 of the '840 patent (and its variants in the '499 and '550 patents); (2) the ALJ's construction of the limitation “combine” (and its variants) recited in claims 1, 24, and 43 of the '499 patent; (3) the ALJ's findings of noninfringement with respect to the three asserted patents; (4) the ALJ's findings of validity with respect to the three asserted patents; and (5) the ALJ's finding regarding the economic prong of the domestic industry requirement with respect to the '550 patent.
The Commission has determined not to review the remaining issues decided in the final ID.
The parties are requested to brief their positions on the issues under review
1. Discuss whether the limitation “single linear downscan transducer element” as recited in claims 1 and 23 of the '840 patent (and its variants in the '499 and '550 patents) should be construed as “a single downwardly pointed transducer that is formed from a single element or a plurality of elements that act together as if they were a single element.” Discuss whether the phrase “act together” in this construction means act simultaneously or in phase. If the variants of the limitation “single linear downscan transducer element” in the '499 and '550 patents should be construed differently, please explain any such differences.
2. Applying the construction in Question No. 1, discuss whether the accused products satisfy the limitation “single linear downscan transducer element.”
3. Applying the construction in Question No. 1, discuss whether the prior art anticipates or renders obvious the asserted claims with respect to the limitation “single linear downscan transducer element.”
In connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in the respondent(s) being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background, see
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Advisory Committee on Rules of Evidence, Judicial Conference of the United States.
Notice of open meeting.
The Advisory Committee on Rules of Evidence will hold a one-day meeting. The meeting will be open to public observation but not participation.
October 9, 2015.
The John Marshall Law School, 315 South Plymouth Court, Room 1200, Chicago, IL 60604.
Rebecca A. Womeldorf, Rules Committee Secretary, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Foreign Claims Settlement Commission, U.S. Department of Justice, Washington, DC 20579.
The Foreign Claims Settlement Commission, pursuant to its regulations (45 CFR part 503.25) and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of open meetings as follows:
All meetings are held at the Foreign Claims Settlement Commission, 600 E Street NW., Washington, DC. Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Patricia M. Hall, Foreign Claims Settlement Commission, 600 E Street NW., Suite 6002, Washington, DC 20579. Telephone: (202) 616-6975.
Antitrust Division, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Antitrust Division (ATR), 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 November 9, 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 Jill Ptacek, Attorney, Antitrust Division, United States Department of Justice, 450 Fifth Street NW., Suite 8000, Washington, DC 20530 (phone: 202-307-6607).
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:
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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.
Mine Safety and Health Administration, Labor.
Notice.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and Title 30 of the Code of Federal Regulations Part 44 govern the application, processing, and disposition of petitions for modification. This notice is a summary of petitions for modification submitted to the Mine Safety and Health Administration (MSHA) by the parties listed below.
All comments on the petitions must be received by the MSHA's Office
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
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MSHA will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments.
Barbara Barron, Office of Standards, Regulations, and Variances at 202-693-9447 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor determines that:
1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
2. That the application of such standard to such mine will result in a diminution of safety to the miners in such mine.
In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modification.
(1) There are a total of 17 shelters installed in the mines listed above, which are of three different types manufactured by Mine Shield LLC. Type A is the CF210A model; type B is the CF208A model; and type C is the CF208B model. All the units have been retrofitted as prescribed by MSHA.
(2) Testing and examination cannot be accomplished according to the manufacturer's recommendation since Mine Shield LLC is no longer in business.
(3) The testing, examinations and repairs as required by the manufacturer's recommendation cannot be conducted since the manufacturer's technicians are no longer available. The petitioner proposes to:
Within 60 days after the Proposed Decision and Order (PDO) becomes final, the petitioner will submit proposed revisions for its approved part 48 training plan to the District Manager. These proposed revisions will specify initial and refresher training regarding the terms and conditions stated in the PDO.
The petitioner asserts that application of the existing standard will result in diminution of safety the miners and that the proposed alternative method will guarantee no less than the same measure of protection afforded by the existing standard.
1. The Viper Mine's existing automatic fan signal device is a Model CT7100 Omega Circular Chart Recorder. The device continuously monitors and records the fan's operating pressure.
2. The main mine fan has a normal operating pressure of approximately 8 inches of water gauge, as measured by the chart recorder.
3. An alarm signal will be activated when the fan pressure falls below 6 inches of water gauge. The petitioner proposes to:
The petitioner asserts that the proposed alternative method will guarantee no less than the same measure of protection afforded by the existing standard.
1. On January 22, 2009, Macoupin Energy, LLC acquired Monterey #1 Mine from Monterey Coal Company and renamed the mine Shay #1 Mine. The MSHA Mine I.D. (No. 11-00726) and the address remain the same. MaRyan Mining, LLC is the contracted operator of the mine.
2. The approved petition is for a Getman Grader Model No. RDG 1504S, Serial No. 6345.
3. Macoupin Energy is requesting the approved petition be amended to add a second Getman Grader Model No. RDG 1504C, Serial No. 6718. This grader is similar to the currently approved grader and would also be provided an equivalent level of safety to the standard's requirement that each wheel of the grader be equipped with service brakes by training the grader operator to lower the moldboard in emergency conditions.
4. The grader has 12.00 × 20.00 tires, which also limit the speed to 10 miles per hour.
The petitioner requests that the terms and conditions of the previously granted petition be applied to the additional grader, which the petitioner asserts will provide an equivalent level of safety as the existing standard.
Office of Government Information Services (OGIS), National Archives and Records Administration (NARA).
Notice of Federal Advisory Committee Meeting.
In accordance with the Federal Advisory Committee Act (5 U.S.C. App) and the second United States Open Government National Action Plan (NAP) released on December 5, 2013, NARA announces an upcoming Freedom of Information Act (FOIA) Advisory Committee meeting.
The meeting will be on October 20, 2015, from 10:00 a.m. to 1:00 p.m. EDT. You must register for the meeting by 5:00 p.m. EDT on October 19, 2015.
National Archives and Records Administration (NARA); 700 Pennsylvania Avenue NW.; Archivist's Reception Room (Room 105); Washington, DC 20408.
Christa Lemelin, Designated Federal Officer for this committee, by mail at National Archives and Records Administration; Office of Government Information Services; 8601 Adelphi Road—OGIS; College Park, MD 20740-6001, by telephone at 202-741-5773, or by email at
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of the Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is titled, “Specific Domestic Licenses to Manufacture or Transfer Certain Items Containing Byproduct Material.” The NRC regulations that are the subject of this information collection establish procedures and criteria for the issuance of licenses to manufacture or transfer certain items containing byproduct material. Information concerning the annual estimated burdens associated with the recordkeeping, reporting, and third party notification requirements imposed by these regulations is provided in the Supporting Statement for 10 CFR part 32, Specific Domestic Licenses to Manufacture or Transfer Certain Items Containing Byproduct Material, and NRC Form 653, 653A and 653B, “Transfers of Industrial Devices Report.”
Submit comments by November 9, 2015. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Tremaine Donnell, Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6258; email:
Please refer to Docket ID NRC-2015-0177 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2015-0177 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
OPIC's Sunshine Act notice of its Public Hearing in Conjunction with each Board meeting was published in the
Information on the hearing cancellation may be obtained from Catherine F.I. Andrade at (202) 336-8768, or via email at
Peace Corps.
60-Day Notice and request for comments.
The Peace Corps will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval. The purpose of this notice is to allow 60 days for public comment in the
Submit comments on or before November 9, 2015.
Comments should be addressed to Denora Miller, FOIA/Privacy Act Officer. Denora Miller can be contacted by telephone at 202-692-1236 or email at
Denora Miller at Peace Corps address above.
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This notice is issued in Washington, DC, on September 4, 2015.
U.S. Office of Personnel Management.
October 22, 2015 Council Meeting.
The Hispanic Council on Federal Employment (Council) meeting will be held on Thursday, October 22, 2015 at the location shown below from 2:00 p.m. to 3:30 a.m.
The Council is an advisory committee composed of representatives from Hispanic organizations and senior government officials. Along with its other responsibilities, the Council shall advise the Director of the Office of Personnel Management on matters involving the recruitment, hiring, and advancement of Hispanics in the Federal workforce. The Council is co-chaired by the Director of the Office of Personnel Management and the Chair of the National Hispanic Leadership Agenda (NHLA).
The meeting is open to the public. Please contact the Office of Personnel Management at the address shown below if you wish to present material to the Council at any of the meetings. The manner and time prescribed for presentations may be limited, depending upon the number of parties that express interest in presenting information.
U.S. Office of Personnel Management, 1900 E St. NW., Executive Conference Room, 5th Floor, Washington, DC 20415.
Sharon Wong, Acting Director for the Office of Diversity and Inclusion, Office of Personnel Management, 1900 E St. NW., Suite 5H35, Washington, DC 20415. Phone (202) 606-0020 FAX (202) 606-6012 or email at
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Express Contract 27 negotiated service agreement to the competitive product list. 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.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, 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 Nos. MC2015-81 and CP2015-135 to consider the Request pertaining to the proposed Priority Mail Express Contract 27 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 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 11, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Kenneth R. Moeller to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2015-81 and CP2015-135 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Kenneth R. Moeller is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than September 11, 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 the addition of Priority Mail Contract 141 negotiated service agreement to the competitive product list. 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.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, 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 Nos. MC2015-80 and CP2015-134 to consider the Request pertaining to the proposed Priority Mail Contract 141 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 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 11, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2015-80 and CP2015-134 to
2. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than September 11, 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 the addition of a Foreign Postal Operators 1 negotiated service agreement with China Post Group to the competitive product list. 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 September 3, 2015, the Postal Service filed notice that it has entered into an additional Foreign Postal Operators 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. CP2015-136 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 11, 2015. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints James F. Callow to serve as Public Representative in this docket.
It is ordered:
1. The Commission establishes Docket No. CP2015-136 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, James F. Callow 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 11, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on September 3, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on September 3, 2015, it filed with the Postal Regulatory Commission a
The Presidio Trust.
Notice of Public Meeting.
In accordance with § 103(c)(6) of the Presidio Trust Act, 16 U.S.C. 460bb appendix, and in accordance with the Presidio Trust's bylaws, notice is hereby given that a public meeting of the Presidio Trust Board of Directors will be held commencing 6:30 p.m. on Thursday, October 8, 2015, at the
The purposes of this meeting are to take action on the minutes of a previous Board meeting; to provide the Chairperson's report; to provide the Interim Leadership Team's report; to provide partners' reports; to provide committee reports; to take action on the formation and composition of Board committees; to take action on the Audit, Finance, Governance and Human Resources, Planning and Real Estate, and Programs and Communications committee charters; and to receive public comment in accordance with the Trust's Public Outreach Policy.
Individuals requiring special accommodation at this meeting, such as needing a sign language interpreter, should contact Mollie Matull at 415.561.5300 prior to October 1, 2015.
The meeting will be held at the Officers' Club, 50 Moraga Avenue, Presidio of San Francisco.
Andrea Andersen, Acting General Counsel, the Presidio Trust, 103 Montgomery Street, P.O. Box 29052, San Francisco, California 94129-0052, Telephone: 415.561.5300.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend BX rules at Chapter VI, Section 9, which is currently reserved, to establish a price-improvement mechanism on BX.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to establish a price-improvement mechanism, “PRISM,” on the Exchange, which includes auto-match functionality in which a Participant (an “Initiating Participant”) may electronically submit for execution an order it represents as agent on behalf of a Public Customer,
All options traded on the Exchange are eligible for PRISM. Proposed Rule Chapter VI, Section 9(i) describes the circumstances under which an Initiating Participant may initiate an Auction. The Initiating Participant may initiate an Auction provided the conditions which follow are met: If the PRISM Order is for the account of a Public Customer the Initiating Participant must stop the entire PRISM Order at a price that is equal to or better than the National Best Bid/Offer displayed (“NBBO”) on the opposite side of the market from the PRISM Order, provided that such price must be at least one minimum trading increment specified in Chapter VI, Section 5
PRISM Orders that do not comply with these aforementioned requirements are not eligible to initiate an Auction and will be rejected. Also, PRISM Orders submitted at or before the opening of trading are not eligible to initiate an Auction and will be rejected. PRISM Orders submitted during the final two seconds of the trading session in the affected series are not eligible to initiate an Auction and will be rejected. Finally, an Initiating Order may not be a solicited order for the account of any BX Options Market Maker assigned in the affected series.
Only one Auction may be conducted at a time in any given series. Once commenced, an Auction may not be cancelled and would proceed as described herein. To initiate the Auction, the Initiating Participant must mark the PRISM Order for Auction processing, and specify either: (a) A single price at which it seeks to execute the PRISM Order (a “stop price”); (b) that it is willing to automatically match as principal or as agent on behalf of an Initiating Order the price and size of all PRISM Auction Notifications (“PAN”) responses, and trading interest (“auto-match”) in which case the PRISM Order will be stopped at the NBBO on the Initiating Order side;
When the Exchange receives a PRISM Order for Auction processing, a PAN detailing the side, size and options series of the PRISM Order will be sent over the Exchange's Specialized Quote Feed (“SQF”).
NASDAQ OMX PHLX LLC (“Phlx”) staff distributed a survey to all Phlx market maker firms inquiring as to the timeframe within which these market participants respond to an auction with a duration time ranging from less than fifty (50) milliseconds to more than one (1) second. The market marker firms on Phlx represent membership similar to BX Market Makers.
BX believes the proposed rule change could provide orders within PRISM an opportunity for price improvement. Also, the shorter duration of time for the auction reduce the market risk for all Participants executing trades in PRISM. Initiating Participants are required to guarantee an execution at the NBBO or at a better price, and are subject to market risk while their PRISM Order is exposed to other BX Participants. While other Participants are also subject to market risk, those providing responses in PRISM may cancel or modify their orders. BX believes that the Initiating Participant acts in a critical role within the PRISM auction. Their willingness to guarantee the orders entered into PRISM an execution at NBBO or a better price is the keystone to an order gaining the opportunity for price improvement. BX believes that allowing for an auction period of no less than one hundred milliseconds and no more than one second will benefit Participants trading in PRISM. BX believes it is in these Participants' best interests to minimize the auction time while continuing to allow Participants adequate time to electronically respond. Both the order being exposed and the responding orders are subject to market risk during the auction.
While some Participants may wait to respond until later in the auction, presumably to minimize their market risk, the Exchange believes that a majority of the orders would respond earlier in the auction. Based on experience with the Phlx's PIXL mechanism on BX's affiliated exchange, BX believes that 100 milliseconds will continue to provide all market participants with sufficient time to respond, compete, and provide price improvement for orders and will provide investors and other market participants with more timely executions, thereby reducing their market risk. The proposed rule allows people to respond quickly at the most favorable price while reducing the risk that the market will move against the response.
BX believes that its Participants operate electronic systems that enable them to react and respond to orders in a meaningful way in fractions of a second. BX believes that its Participants will be able to compete within 100 milliseconds and this is a sufficient amount of time to respond to, compete for, and provide price improvement for orders, and will provide investors and other market participants with more timely executions, and reduce their market risk.
Finally, with respect to the impact of this proposal, more specifically the timing of the responses proposed herein, on System
A PAN response size at any given price point may not exceed the size of the PRISM Order. A PAN response with a size greater than the size of the PRISM Order will be rejected. A PAN response must be equal to or better than the NBBO at the time of receipt of the PAN response. PAN responses may be modified or cancelled during the Auction.
The PRISM Auction would conclude at the earlier of the end of the Auction period, any time the BX BBO crosses the PRISM Order stop price on the same side of the market as the PRISM Order
If the Auction concludes at the earlier of the BX BBO crossing the PRISM Order stop price on the same side of the market as the PRISM Order or any time there is a trading halt on the Exchange in the affected series, the entire PRISM Order will be executed as follows: (1) In the case of the BX BBO crossing the PRISM Order stop price, the best response price(s) or, if the stop price is the best price in the Auction, at the stop price, unless the best response price is equal to or better than the price of a limit order resting on the Order Book on the same side of the market as the PRISM Order, in which case the PRISM Order will be executed against that response, but at a price that is at the minimum trading increment better than the price of such limit order at the time of the conclusion of the Auction; or (2) in the case of a trading halt on the Exchange in the affected series, the stop price, in which case the PRISM Order will be executed solely against the Initiating Order. In the event of a trading halt, since the Initiating Participant has guaranteed that an execution will occur at the stop price (or better), and PAN responses offer no such guarantee, the stop price is the only valid price at which to execute the PRISM Order, and the Initiating Member is the appropriate contra-side.
Any unexecuted PAN responses will be cancelled.
At the conclusion of the Auction, the PRISM Order will be allocated at the best price(s) as follows for underlying symbols which are designated as Size
If the Initiating Participant selected the single stop price option of the PRISM Auction, PRISM executions will occur at prices that improve the stop price, and then at the stop price with up to 40% of the remaining contracts after Public Customer interest is satisfied being allocated to the Initiating Participant the stop price. However, if only one other Participant matches the stop price, then the Initiating Participant may be allocated up to 50% of the contracts executed at such price. Remaining contracts would be allocated, pursuant to proposed Chapter VI, Section 9(ii)(E)(3) through (5), among remaining quotes, orders and PAN responses at the stop price. Thereafter, remaining contracts, if any, would be allocated to the Initiating Participant. The allocation will account for Surrender, if applicable.
If the Initiating Participant selected the auto-match option of the PRISM Auction the Initiating Participant would be allocated an equal number of contracts as the aggregate size of all other quotes, orders and PAN responses at each price point until a price point is reached where the balance of the order can be fully executed, except that the Initiating Participant would be entitled to receive up to 40% of the contracts remaining at the final price point (including situations where the stop price is the final price) after Public Customer interest has been satisfied but before remaining interest. If there are other quotes, orders and PAN responses at the final price point the contracts will be allocated to such interest pursuant to proposed Chapter VI, Section 9(ii)(E)(3) through (5). Any remaining contracts would be allocated to the Initiating Participant.
In the case of a PRISM, if the Initiating Participant selected the “stop and NWT” option of the PRISM Auction, contracts would be allocated as follows: (i) First to quotes, orders and PAN responses at prices better than the NWT price (if any), beginning with the best price, pursuant to proposed Chapter VI, Section 9(ii)(E)(3) through (5), at each price point; and (ii) next, to quotes, orders and PAN responses at prices at the Initiating Participant's NWT price and better than the Initiating Participant's stop price, beginning with the NWT price. The Initiating Participant would be allocated an equal number of contracts as the aggregate size of all other quotes, orders and PAN responses at each price point, except that the Initiating Participant would be entitled to receive up to 40% (multiple competing orders) or 50% (one competing order) of the contracts remaining at the final price point (including situations where the final price is the stop price), after Public Customer interest has been satisfied but before remaining interest. In the case of an Initiating Order with a NWT price at the market, the Initiating Participant would be allocated an equal number of contracts as the aggregate size of all other quotes, orders and PAN responses at all price points, except that the Initiating Participant would be entitled to receive up to 40% of the contracts remaining at the final price point (including situations where the final price is the stop price), after Public Customer interest has been satisfied but before remaining interest. If there are other quotes, orders and PAN responses at the final price point the contracts will be allocated to such interest pursuant to proposed Chapter VI, Section 9(ii)(E)(3) through (5). Any remaining contracts would be allocated to the Initiating Participant.
Next, BX Options Market Makers that were at a price that is equal to or better
Next, Non-Priority Market Makers and Priority Market Maker interest which exceeded their displayed size in the Initial Displayed NBBO would have priority at each price level at or better than the Initial Displayed NBBO after Public Customer, Initiating Participants and Priority Market Makers have received allocations. Non-Priority Market Maker and Priority Market Maker interest which exceeded their displayed size in the Initial Displayed NBBO will be allocated pursuant to the Size Pro-Rata algorithm set forth in Exchange Rules at Chapter VI, Section 10(1)(B).
Finally, all other interest will be allocated, after proposed Chapter VI, Section 9(ii)(E)(1) through (4) have been satisfied. Such interest will be allocated pursuant to the Size Pro-Rata algorithm set forth in Exchange Rules at Chapter VI, Section 10(1)(B).
At the conclusion of the Auction, the PRISM Order will be allocated at the best price(s) as indicated below for underlying symbols designated as Price/Time as described in proposed Chapter VI, Section10(1)(C)(2)(i). First, Public Customer orders would have time priority at each price level. Next, the Initiating Participant would be allocated after Public Customer Orders.
If the Initiating Participant selected the single stop price option of the PRISM Auction, PRISM executions will occur at prices that improve the stop price, and then at the stop price with up to 40% of the remaining contracts after Public Customer interest is satisfied being allocated to the Initiating Participant the stop price. However, if only one other Participant matches the stop price, then the Initiating Participant may be allocated up to 50% of the contracts executed at such price. Remaining contracts would be allocated pursuant to proposed Chapter VI, Section 9(ii)(F)(3) and (4), among remaining quotes, orders and PAN responses at the stop price. Thereafter, remaining contracts, if any, would be allocated to the Initiating Participant. The allocation will account for Surrender, if applicable.
If the Initiating Participant selected the auto-match option of the PRISM Auction the Initiating Participant would be allocated an equal number of
Next, Priority Market Makers that were at a price that is equal to or better than the displayed NBBO on the opposite side of the market from the PRISM Order at the time of initiation of PRISM Auction would have priority up to their displayed quote size in the Initial Displayed NBBO at each price level better than the Initial Displayed NBBO, after Public Customer and Initiating Participants have received allocations. Priority Market Maker interest at prices better than the Initial Displayed NBBO will be allocated pursuant to the Size Pro-Rata algorithm set forth in Exchange Rules at Chapter VI, Section 10(1)(B). Priority Market Maker interest at a price equal to or inferior to the Initial Displayed NBBO will not have priority over other participants and will be allocated pursuant to the Price/Time algorithm set forth in Exchange Rules at Chapter VI, Section 10(1)(A).
Finally, all other interest will be allocated, after proposed Chapter VI, Section 9(ii)(E)(1) through (3) have been satisfied. Such interest will be allocated pursuant to the Price/Time algorithm set forth in Exchange Rules at Chapter VI, Section 10(1)(A).
With respect to Intermarket Sweep Orders or “ISO” Orders,
With respect to Post Only Orders resting on the book at the time the PRISM Auction is initiated,
The PRISM Auction may be used only where there is a genuine intention to execute a bona fide transaction. It will be considered a violation of this Rule and will be deemed conduct inconsistent with just and equitable principles of trade and a violation of Rule 2110 if an Initiating Participant submits a PRISM Order (initiating an Auction) and also submits its own PAN response in the same Auction.
In lieu of the procedures in proposed paragraphs (i)-(ii) to Chapter VI, Section 9, an Initiating Participant may enter a PRISM Order for the account of a Public Customer paired with an order for the account of a Public Customer and such paired orders will be automatically executed without a PRISM Auction. The execution price for such a PRISM Order must be expressed in the quoting increment applicable to the affected series. Such an execution may not trade through the NBBO or at the same price as any resting Public Customer order.
BX Rules at Chapter VII, Section 12
Subject to a Pilot expiring July 18, 2016, there will be no minimum size requirement for orders to be eligible for the Auction. During this Pilot Period,
The Exchange represents that, in support of its proposed pilot program, it proposes three components on a pilot basis: (1) Auction eligibility requirements; (2) the early conclusion of the PRISM Auction; and (3) no minimum size requirement of orders. the Exchange will provide the following additional information on a monthly basis:
(1) The number of contracts (of orders of 50 contracts or greater) entered into the PRISM;
(2) The number of contracts (of orders of fewer than 50 contracts) entered into the PRISM;
(3) The number of orders of 50 contracts or greater entered into the PRISM; and
(4) The number of orders of fewer than 50 contracts entered into the PRISM.
If the Commission approves this proposed rule change, as amended, the Exchange anticipates that it will deploy PRISM within 45 days of approval. Members will be notified of the deployment date by way of an Options Trader Alert posted on the Exchange's Web site.
During auction, Market Maker C responds to sell 20 at 1.02 and Market Maker A and Market Maker B each respond to sell 30 contracts at 1.02.
Auction ends, PRISM contra is allocated 40 contracts at 1.02 (40% carve out); Market Maker A and Market Maker B each trade 30 contracts since they are Priority Market Makers for 30 contracts. Market Maker C does zero.
The outcome in this example is the same regardless of the underlying symbol being designated as Pro-Rata or Price/Time.
During auction, Market Maker C responds to sell 10 at 1.01, Market Maker A and Market Maker B each respond to sell 30 contracts at 1.02, and Market Maker D responds to sell 10 contracts at 1.02.
Auction ends, Market Maker C trades 10 at 1.01 since he was only interest offered at best price, PRISM contra is allocated 36 contracts at 1.02 (40% carve out); Market Maker A and Market Maker B each trade 27 contracts (pro rata among Priority Market Makers A and B). Market Maker D does zero since there were no contracts open after Priority Market Maker A and Priority Market Maker B were filled at that price.
During auction, Market Maker C responds to sell 10 at 1.01, Market Maker A and Market Maker B each respond to sell 10 contracts at 1.02, and Market Maker D responds to sell 10 contracts at 1.02.
Auction ends, Market Maker C trades 10 at 1.01 since he was only interest offered at best price; Market Maker A and Market Maker B each trade 10 contracts at 1.02 since they have priority status for up to 30 contracts; Market Maker D then trades 10 contracts at 1.02; PRISM Contra trades 40% or 20 contracts at the stop price of 1.03. Assuming Market Maker A was at the BX BBO of 1.03 before Market Maker B, Market Maker A would execute 30 contracts at 1.03. Market Maker B would not trade any at 1.03 since the order is filled before getting to his quote in a price time fashion.
During auction, Market Maker C responds to sell 10 at 1.01, Market Maker A and Market Maker B each respond to sell 50 contracts at 1.02 (priority status for 30 contracts each and non-priority status for 20 contracts each), and Market Maker D responds to sell 50 contracts at 1.02.
Auction ends, Market Maker C trades 10 at 1.01 since he was only interest offered at best price; Market Maker A and Market Maker B each trade 30 contracts at 1.02 since they have priority up to their size at the NBBO when the auction started; Market Maker A, Market Maker B, and Market Maker D then pro-rata split the balance of 20 contracts at 1.02 based on their remaining interest size with Market Maker A being allocated 4 contracts (=20/90*20), Market Maker B being allocated 4 (=20/90*20) contracts, and Market Maker D being allocated 11 contracts (=50/90*20) and the residual 1 contract being allocated to one of the 3 MMs (Market Maker A) in time priority.
During auction, Market Maker C responds to sell 10 at 1.01, Market Maker A and Market Maker B each respond to sell 50 contracts at 1.02 (priority status for 30 contracts each and non-priority status for 20 contracts each), and Market Maker D responds to sell 50 contracts at 1.02.
Auction ends, Market Maker C trades 10 at 1.01 since he was only interest offered at best price; PRISM Contra is allocated 40% or 32 contracts at 1.02 since it will be the final price point, Market Maker A and Market Maker B
The outcome in this example is the same regardless of Pro-Rata or Price/Time designation.
During auction, Market Maker C responds to sell 10 at 1.01, Market Maker A and Market Maker B each respond to sell 50 contracts at 1.02, and Market Maker D responds to sell 50 contracts at 1.02.
Auction ends, Market Maker C trades 10 at 1.01 since he was only interest offered at best price; PRISM Contra is allocated 40% or 56 contracts at 1.02 since it will be the final price point; Market Maker A and Market Maker B each trade 30 contracts at 1.02 since they have priority up to their size at the NBBO when the auction started; Market Maker A, Market Maker B, and Market Maker D then pro-rata split the balance with Market Maker A and Market Maker B each trading 5 additional contracts at 1.02 (20/90*24) and Market Maker D trading 13 contracts at 1.02 (50/90*24). The residual 1 contract will be allocated among the three MM (Market Maker A) in time priority.
During auction, Market Maker C responds to sell 10 at 1.01, Market Maker A and Market Maker B each respond in that time order (A before B) to sell 50 contracts at 1.02 (30 of the 50 contracts are considered as Priority Market Maker interest), and Market Maker D responds to sell 50 contracts at 1.02.
During auction, Market Maker A moves his quote and BX BBO becomes .95-1.02 for 30 contracts and NBBO becomes .97-1.02. Market Maker A maintains his Priority Market Maker status.
Auction ends, Market Maker C trades 10 at 1.01 and PRISM Contra matches and trades 10 at 1.01 based on his NWT price of 1.01; PRISM Contra is allocated 40% or 52 contracts at 1.02 since it will be the final price point; Market Maker A and Market Maker B each trade 30 contracts at 1.02 since they have priority up to their size at the NBBO when the auction started (since Market Maker A has both a response and quote interest, Market Maker A's 30 contracts are allocated in a time fashion among Market Maker A's interest at 1.02 with each of the responses trading all 30 contracts); the residual 18 contracts are traded in a Price/Time fashion at 1.02 among residual Market Maker interest with Market Maker A response trading all 18 contracts.
During auction, Market Maker C responds to sell 10 at 1.01, Market Maker A and Market Maker B each respond in that order to sell 50 contracts at 1.02 (30 of the 50 contracts will be considered as Priority Market Maker), and Market Maker D responds to sell 50 contracts at 1.02.
Auction ends, Market Maker C trades 10 at 1.01 and PRISM Contra matches and trades 10 at 1.01; PRISM Contra is allocated 40% or 52 contracts at 1.02 since it will be the final price point; remaining allocation is in Pro-Rata fashion with priority Market Maker interest trading ahead of non-Priority Market Maker interest, Market Maker A and Market Maker B each trade 30 contracts as Priority Market Maker then Market Maker A, Market Maker B, and Market Maker D Pro Rata split the balance with Market Maker A and Market Maker B each trading 4 contracts at 1.02 (20/90 *18) and Market Maker D trading 10 contracts at 1.02 (50/90*18).
During auction, Market Maker C responds to sell 10 at 1.01, Market Maker A and Market Maker B each respond in that order to sell 50 contracts at 1.02 (30 of the 50 contracts are considered as Priority Market Maker), and Market Maker D responds to sell 50 contracts at 1.02.
During auction, Market Maker A moves his quote (but maintains Priority Market Maker status) and BX BBO becomes .95-1.02 for 30 contracts and NBBO becomes .97-1.02. Then, a Public Customer order is received on the opposite side of the PRISM Order, offering 10 contracts at 1.02 which does not cause an early auction termination.
Auction ends, Market Maker C trades 10 at 1.01 and PRISM Contra matches and trades 10 at 1.01; Public Customer order then trades 10 contracts at 1.02. After Public Customer is satisfied, PRISM Contra is allocated 40% of remaining which equates to 48 contracts; Priority Market Maker interest is then traded with Market Maker A trading 30 contracts at 1.02 (all allocated to response since first in time priority of Market Maker A interest at 1.02) and Market Maker B response trading 30 contracts at 1.02. The residual 12 contracts are allocated among remaining Market Maker interest at 1.02 in a Price/Time fashion, with Market Maker A response trading all 12 contracts.
During auction, Market Maker C responds to sell 10 at 1.01, Market Maker A responds to sell 10 contracts at 1.02 (considered as Priority Market Maker), Market Maker B responds to sell 50 contracts at 1.02 (30 of the 50 contracts are considered as Priority Market Maker), and Market Maker D responds to sell 50 contracts at 1.02.
During auction, Market Maker A moves his quote (maintains Priority Market Maker status) and BX BBO becomes .95-1.02 for 10 contracts and NBBO becomes .97-1.02.
Then, a Public Customer order is received offering 10 contracts at 1.02.
Auction ends, Market Maker C trades 10 at 1.01 and PRISM Contra matches and trades 10 at 1.01; Public Customer order then trades 10 contracts at 1.02. After Public Customer is satisfied, PRISM Contra is allocated 40% of remaining which equates to 48 contracts; Priority Market Maker interest is then traded with Market Maker A trading 20 contracts at 1.02 (all of his interest, response and quote, since it is less than the 30 he is entitled to as a priority Market Maker) and Market Maker B response trades 30 contracts at 1.02. The remaining 22 contracts are allocated in price time fashion among remaining Market Maker interest at 1.02 with Market Maker B response trading 20 contracts and Market Maker D response trading 2 contracts.
During auction, Market Maker C responds to sell 20 at 1.03 and Public Customer offers 2 contracts at 1.03.
Auction ends, Public Customer trades 2 contracts at 1.03 and PRISM contra is allocated 40% of residual or 39 contracts at 1.03; remaining allocation is purely Price/Time with Market Maker A trading 30 contracts and Market Maker B trading 29 contracts.
During auction, Market Maker C responds to sell 20 at 1.03 and Public Customer offers 2 contracts at 1.03.
Auction ends, Public Customer trades 2 contracts at 1.03 and PRISM contra is allocated 40% of residual or 39 contracts at 1.03; remaining allocation is pro-rata among Priority Market Maker interest with Market Maker A trading 29 contracts (30/60*59), Market Maker B trading 29 contracts (30/60*59), and the residual 1 contract being allocated to Market Maker A based on time.
During auction, Market Maker C responds to sell 5 at 1.01, Market Maker A responds to sell 10 contracts at 1.02, Market Maker B responds to sell 50 contracts at 1.02 (30 of the 50 contracts are considered as Priority Market Maker), and Market Maker D responds to sell 40 contracts at 1.02.
During auction, Market Maker A moves his quote for 10 contracts at 1.02, now alone at that price, (maintains Priority Market Maker status) and BX BBO becomes .95-1.02 for 10 contracts and a Firm order arrives offering 10 contracts at 1.02.
Auction ends, Market Maker C trades 5 at 1.01 and PRISM Contra matches and trades 5 at 1.01; All 1.02 interest is then allocated as follows: Priority Market Maker interest is fully allocated with Market Maker A response trading 10, Market Maker B response trading 30, and Market Maker A quote trading 10 at 1.02. Non-Priority MM is allocated in Price/Time with Market Maker B trading an additional 20 contracts and Market Maker D trading 40 contracts at 1.02. After all Market Maker interest is satisfied, the Firm order is allocated its full size of 10 contracts at 1.02. The PRISM Contra order matches the full volume trading at 1.02 (b/c of NWT price) which is 120 contracts. The remaining 50 contracts are traded at 1.03 with the PRISM Contra trading 50% of remaining since only matching one other participant or 25 contracts. The other 25 contracts are traded in Price/Time fashion in accordance with the underlying algorithm with Market Maker B trading all 25 contracts at 1.03.
During auction, Market Maker C responds to sell 5 at 1.01, Market Maker A responds to sell 10 contracts at 1.02 (considered as Priority Market Maker), Market Maker B responds to sell 50 contracts at 1.02 (30 of the 50 contracts are considered as Priority Market Maker), Market Maker D responds to sell 40 contracts at 1.02, and Market Maker A responds with 30 additional contracts at 1.03 (considered as Priority Market Maker).
During auction, Market Maker A moves his quote (maintain Priority Market Maker status) and BX BBO becomes .95-1.02 for 10 contracts and a Firm order arrives offering 10 contracts at 1.02.
Auction ends, Market Maker C trades 5 at 1.01 and PRISM Contra matches and trades 5 at 1.01; All 1.02 interest is then allocated as follows: Priority Market Maker interest is fully allocated with Market Maker A response trading 10, Market Maker B response trading 30, and Market Maker A quote trading 10 at 1.02. Non-priority Market Maker is allocated with Market Maker B trading an additional 20 contracts and Market Maker D trading 40 contracts at 1.02. After all Market Maker interest is satisfied, the Firm order is allocated its full size of 10 contracts at 1.02. The PRISM Contra order matches the full volume trading at 1.02 (b/c of NWT price) which is 120 contracts. The remaining 50 contracts are traded at 1.03 with the PRISM Contra trading 40% of remaining or 20 contracts. The other 30 contracts are traded in a Pro-Rata fashion in accordance with the underlying algorithm with Market Maker A and Market Maker B as Priority Market Maker each trading 15 contracts at 1.03.
During auction (in the following order), Market Maker C responds to sell 10 at 1.01, Market Maker A responds to sell 40 at 1.01 (10 of 40 contracts is considered Priority Market Maker), Market Maker A and Market Maker B each respond to sell 50 contracts at 1.02 (10 of 50 contracts is considered Priority Market Maker), and Market Maker D responds to sell 50 contracts at 1.02.
During auction, Market Maker A moves his quote (maintains Priority Market Maker status) and BX BBO becomes .95-1.02 for 10 contracts and NBBO becomes .97-1.02.
Then, a Public Customer order is received offering 10 contracts at 1.02.
Auction ends, Market Maker A trades 10 contracts at 1.01 as a priority MM, then Market Maker C trades 10 at 1.01 in price/time and Market Maker A trades his additional 30 contracts at 1.01 which outsized his priority status, and PRISM Contra matches and trades a total of 50 at 1.01; Public Customer order of 10 contracts trades at 1.02 then PRISM Contra is allocated 40% of 90 or 36 contracts at 1.02. The remaining 54 contracts are then allocated at 1.02 with Market Maker A and Market Maker B trading 10 contracts each as priority Market Maker and 34 contracts are then allocated in price/time to Market Maker A at 1.02.
During auction, Market Maker C responds to sell 5 at 1.01, Market Maker A responds to sell 5 contracts at 1.02, Market Maker B responds to sell 20 contracts at 1.02, and Market Maker D responds to sell 20 contracts at 1.02.
During auction, Market Maker A moves his quote (maintains Priority Market Maker status) and BX BBO becomes .95-1.02 for 5 contracts and NBBO becomes .97-1.02.
Auction ends, Market Maker C trades 5 at 1.01; Priority Market Maker interest trades the remaining 15 contracts in a Pro-Rata fashion: Market Maker A executes 5 contracts (10/30*15) with all 5 being given to the Market Maker A response since he was first in time order of Market Maker A interest at 1.02 and Market Maker B response executes 10 contracts (20/30*15) at 1.02. The PRISM Contra executes no contracts.
During auction, Market Maker C responds to sell 5 at 1.01, Market Maker A responds to sell 5 contracts at 1.02, Market Maker B responds to sell 40 contracts at 1.02, and Market Maker D responds to sell 20 contracts at 1.02.
During auction, Market Maker A moves his quote (maintains Priority Market Maker status) and BX BBO becomes .95-1.02 for 5 contracts and NBBO becomes .97-1.02.
Auction ends, Market Maker C trades 5 at 1.01; Priority Market Maker interest at 1.02 then trades with Market Maker A response executing 5 contracts, Market Maker B response volume with Priority status executes 30 contracts, and Market Maker A quote executes 5 contracts; Non Priority Market Maker interest at 1.02 then executes with Market Maker B trading 10 contracts and Market Maker D trading 20 contracts. The PRISM Contra then executes the remaining 25 contracts at 1.02 since there is no other interest to satisfy the PRISM Order at a price equal to or better than the stop price of 1.02.
During auction, Market Maker C responds to sell 10 at 1.01, Market Maker A and Market Maker B each respond to sell 10 contracts at 1.02, and Market Maker D responds to sell 10 contracts at 1.02.
Auction ends, Market Maker C trades 10 at 1.01 since he was only interest offered at best price; Market Maker A and Market Maker B each trade 10 contracts at 1.02 since they have priority status for up to 30 contracts; Market Maker D then trades 10 contracts at 1.02; Market Maker A then executes his quote of 30 contracts at 1.04. PRISM Contra trades 50% or 10 contracts at the stop price of 1.05 since only one Market Maker at 1.05. Market Maker B then trades the remaining 10 contracts at 1.05.
The outcome of this example is the same in both Pro-Rata or Price/Time allocation models.
During auction, Market Maker C quotes .95-1.02 for 10 contracts and BX BBO becomes .95-1.02 for 10 contracts and NBBO becomes .97-1.02.
During auction, Market Maker A moves his quote (maintains Priority Market Maker status) and joins the BX BBO at .95-1.02 for 10 contracts and NBBO remains .97-1.02.
Auction ends, Priority MM interest trades first: Market Maker A gets allocated 10 contracts of PRISM Order. Non priority interest trades next: Market Maker C gets allocated 10 contracts. The PRISM contra executes no contracts. Market Maker B receives no allocation in this example.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that the proposal will result in increased liquidity available at improved prices, with competitive final pricing out of the Initiating Participant's complete control. PRISM should promote and foster competition and provide more options contracts with the opportunity for price improvement. As a result of the increased opportunities for price improvement, the Exchange believes that participants will use PRISM to increase the number of Public Customer orders that are provided with the opportunity to receive price improvement over the NBBO.
The Exchange believes that the PRISM auction will encourage BX Market Makers to quote at the NBBO with additional size and thereby result in tighter and deeper markets, resulting in more liquidity on BX. Specifically, by offering BX Market Makers the ability to receive priority in the proposed allocation during the PRISM auction, a BX Market Maker will be encouraged to quote outside of the PRISM auction at the their best and most aggressive prices with additional size. BX believes that this incentive may result in a narrowing of quotes and thus further enhance BX's market quality. Within the PRISM auction, BX believes that the rules that are proposed will encourage BX Market Makers to compete vigorously to provide the opportunity for price improvement in a competitive auction process.
Further, the new functionality may lead to an increase in Exchange volume and should allow the Exchange to better compete against other markets that already offer an electronic solicitation mechanism, while providing an opportunity for price improvement for agency orders. The Exchange believes that its proposal will allow the Exchange to better compete for solicited transactions, while providing an opportunity for price improvement for agency orders and assuring that Public Customers on the book are protected. The new solicitation mechanism should promote and foster competition and provide more options contracts with the opportunity for price improvement, which should benefit market participants, investors, and traders. The Exchange has proposed a range between no less than one hundred milliseconds and no more than one second for the duration of the PRISM Auction; therefore the proposed rule change will provide investors with more timely execution of their options orders than a mechanism that has a one second auction, while ensuring that there is an adequate exposure of orders in BX PRISM. The Exchange preliminary expects to use a default of 100 milliseconds for all symbols. The time will be announced in an Options Trader Alert. The proposed auction response time, no less than one hundred milliseconds and no more than one second, should allow investors the opportunity to receive price improvement through PRISM while reducing market risk. The Exchange believes a briefer time period reduces the market risk for the Initiating Participant, versus an auction with a one second period, as well as for any Participant providing orders in response to a broadcast. As such, BX believes the proposed rule change would help perfect the mechanism for a free and open national market system, and generally help protect investors' and the public interest. The Exchange believes the proposed rule change is not unfairly discriminatory because the PRISM duration would be the same for all Participants and symbols. All Participants will have an equal opportunity to respond with their best prices during the PRISM auction.
The Exchange believes using the Price/Time allocation method for interest remaining after proposed Chapter VI, Section 9(ii)(E)(1) through (3) have been satisfied provides consistency with the underlying symbol allocation designation. Since the Exchange considers all interest present in the System, and not solely auction Responses, for execution against the PRISM Order, those participants who are not explicit responders to the auction will expect executions based on their Price/Time priority. In addition, the Exchange believes executing such remaining interest in a Price/Time fashion does not unfairly advantage/disadvantage one participant over another since executions are done with price priority first and time only becoming a factor when considering equally priced interest for execution. Also, other exchanges utilize Price/Time in their auctions today.
With respect to trading halts, as described herein, in the case of a trading halt on the Exchange in the affected series, the stop price, in which case the PRISM Order will be executed solely against the Initiating Order. The Exchange believes that executing the stop price solely against the Initiating Order promotes just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities since the Initiating Member has guaranteed that an execution will occur at the stop price (or better) prior to the trading halt, and PAN responses offer no such guarantee, the stop price is the only valid price at which to execute the PRISM Order, and the Initiating Member is the appropriate contra-side.
With respect to rounding, the Initiating Participant will be rounded up or down to the nearest integer, all other rounding is down to the nearest integer. If rounding results in an allocation of less than one contract, then one contract will be allocated to the Initiating Participant, only if the Initiating Participant did not otherwise receive an allocation. The Exchange believes that rounding differently for the Initiating Participant as compared to all other market participants is not unfairly discriminatory in that the Initiating Participant is not eligible to receive residual contracts as are other market participants, unless no other interest is available to trade. The Exchange is permitting the Initiating Participant to receive the benefit of the rounding in an allocation of less than one contract, only if the Initiating Participant did not otherwise receive an allocation. because the Initiating Participant is not eligible to receive residual contracts.
The Exchange further believes that the proposal is consistent with the requirements of Section 11(a) of the Act
The Exchange does not operate a physical trading floor, rather the Exchange operates an electronic market. The Rule's first condition is that orders for Covered Accounts be transmitted from off the exchange floor. In the context of automated trading systems, the Commission has found that the off-floor transmission requirement is met if a Covered Account order is transmitted from a remote location directly to an exchange's floor by electronic means.
The second condition of Rule 11a2-2(T) requires that neither a member nor an associated person participate in the execution of its order once the order is transmitted to the floor for execution. The Exchange represents that, upon submission to the PRISM auction, an order will be executed automatically pursuant to the rules set forth for PRISM. In particular, execution of an order sent to the mechanism depends not on the Initiating Participant entering the order, but rather on what other orders are present and the priority of those orders. Thus, at no time following the submission of an order is a Participant able to acquire control or influence over the result or timing of order execution.
Rule 11a2-2(T)'s third condition requires that the order be executed by an exchange member who is unaffiliated with the member initiating the order. The Commission has stated that the requirement is satisfied when automated exchange facilities, such as the PRISM are used, as long as the design of these systems ensures that members do not possess any special or unique trading advantages in handling their orders after transmitting them to the exchange.
Rule 11a2-2(T)'s fourth condition requires that, in the case of a transaction effected for an account with respect to which the initiating member or an associated person thereof exercises investment discretion, neither the initiating member nor any associated person thereof may retain any compensation in connection with effecting the transaction, unless the person authorized to transact business for the account has expressly provided otherwise by written contract referring to Section 11(a) of the Act and Rule 11a2-2(T) thereunder.
The Exchange believes that the instant proposal is consistent with Rule 11a2-2(T), and that therefore the exception should apply in this case.
The Exchange also believes that the proposed rule changes would further the objectives of the Act to protect investors by promoting the intermarket price protection goals of the Options Intermarket Linkage Plan.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The competition among the options exchanges is vigorous and this proposal is intended to afford the BX Options market the opportunity to compete for order flow by offering an auction mechanism on BX similar to that of other exchanges.
With respect to intra-market competition, the auction will be available to all BX Participants. Moreover, as explained above, the proposal should encourage BX Participants to compete amongst each other by responding with their best price and size for a particular auction. With respect to overall market quality, the Exchange believes that the PRISM auction, as proposed herein, will encourage BX Market Makers to quote at the NBBO with additional size and thereby result in tighter and deeper markets, resulting in more liquidity. Specifically, by offering BX Market Makers the ability to receive priority in the proposed allocation during the PRISM auction, a BX Market Maker will be encouraged to quote outside of the PRISM auction at the their best and most aggressive prices. BX believes that this incentive may result in a narrowing of quotes and thus further enhance BX's and overall market quality. Within the PRISM auction, BX believes that the rules that are proposed will encourage BX Market Makers to compete vigorously to provide the opportunity for price improvement in a competitive auction process. The Exchange does not believe that providing BX Market Makers with an opportunity to receive priority allocation will create an undue burden on intra-market competition. BX Market Makers have obligations to the market unlike other market participants.
The Exchange's proposal is a competitive response to similar provisions in the price improvement auction rules of other options exchanges.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, 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.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal
All submissions should refer to File Number SR-BX-2015-032 and should be submitted on or before October 1, 2015.
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 definition of Pre-Opening Session under Rule 1.5(r) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time, Rule 11.1(a) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time, and to make related changes to Rules 11.23, 14.6, 14.11, and 14.12. The Exchange also proposes to adopt new Rule 11.1(a)(1) to define Effective Start Time, which would be an order instruction enabling 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 amend the definition of Pre-Opening Session under Rule 1.5(r) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time, Rule 11.1(a) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time, and to make related changes to Rules 11.23, 14.6, 14.11, and 14.12. The Exchange also proposes to adopt new Rule 11.1(a)(1) to define Effective Start Time, which would be an order instruction enabling Members indicate a time upon which their order may become eligible for execution.
The Exchange trading day is currently divided into two sessions: (i) The Pre-Opening Session which starts at 8:00 a.m. and ends at 9:30 a.m. Eastern Time; and (ii) the Regular Trading Hours which runs from 9:30 a.m. to 4:00 p.m. Eastern Time. The Exchange proposes to amend the definition of “Pre-Opening Session” under Rule 1.5(r) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time.
The Exchange also proposes to amend Rule 11.1(a) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time. Other than the proposal to change the start of the Pre-Opening Session from 8:00 a.m. to 7:00 a.m. Eastern Time discussed above, the Exchange does not propose to amend the substance or operation of Rule 11.1(a).
As amended, orders entered between 6:00 a.m. and 7:00 a.m. Eastern Time, rather than 6:00 a.m. and 8:00 a.m. Eastern Time, would not eligible for execution until the start of the Pre-Opening Session or Regular Trading Hours,
• Rule 11.23, Auctions. The Exchange proposes to amend Rules 11.23(b)(1)(A) and (c)(1)(A) to reflect that Users may submit orders at start of the Pre-Opening Session at 7:00 a.m., rather than 8:00 a.m.
• Rule 14.6, Obligations of Companies Listed on the Exchange. The Exchange proposes to amend Rules 14.6(b)(1), (b)(2), and Interpretation and Policies .01(a), (c), and .02 to require an Exchange-Listed Company that public releases material information outside of the Exchange market hours to inform the Exchange's Surveillance Department of that material information prior to 6:50 a.m. rather than 7:50 a.m. Eastern Time. The Exchange proposes to amend Rule 14.6, Interpretation and Policies .01(b), (c), and .02 to reflect the extension of the Pre-Opening Session to 7:00 a.m. Eastern Time. The amended provisions of Rule 14.6, Interpretation and Policies .01(b), (c), and .02 require companies to notify the Exchange's Surveillance Department of the release of certain material information at least ten minutes prior to the release of such information to the public when the public release of the information is made during Exchange market hours.
• Rule 14.11, Other Securities. The Exchange proposes to amend Rule 14.11(b)(7) and (c)(7) to reflect the extension of the Pre-Opening Session to 7:00 a.m. Eastern Time.
• Rule 14.12, Failure to Meet Listing Standards. The Exchange proposes to amend Rule 14.12(e) and (m)(11) to require that companies that publicly announce the receipt of a notification of deficiency, Staff Delisting Determination, Public Reprimand Letter or Adjudicatory Body Decision that serves as a Public Reprimand outside of Exchange market hours inform the Exchange's Surveillance Department of the material information prior to 6:50 a.m. rather than 7:50 a.m. Eastern Time.
The Exchange propose to adopt a new defined term, Effective Start Time, under proposed paragraph (a)(1) to Rule 11.1. Effective Start Time would be defined as an instruction a User may attach to an order to buy or sell which indicates the time upon which the order is to become eligible for execution. Like orders placed on the BATS Book at the start of the Pre-Opening Session under Rule 11.1(a), at the Effective Start Time, the order will be placed on the BATS Book, routed, cancelled, or executed in accordance with the terms of the order. Once received, orders with an Effective Start Time are placed in a suspended state and not placed on the BATS Book until the Effective Start Time selected by the User. Orders with an Effective Start Time are treated like all other orders once placed on the BATS Book and will receive a time stamp at the time the order becomes eligible for execution. Pursuant to Rule 11.12, orders entered with identical Effective Start Times will retain their priority as compared to each other based upon the time such orders were initially received by the System.
In general, a User may specify a time between 7:00 a.m. and 4:00 p.m. Eastern Time as the order's Effective Start Time, subject to the trading sessions that the particular order type is eligible for execution. A Member would not be able to combine an Effective Start Time with BATS Post Only Orders, BATS Market Orders, Minimum Quantity Orders, ISOs, or orders that include a TIF of IOC or FOK. The Effective Start Time instruction would be available for all other order types that include a TIF other than IOC or FOK. This is also consistent with current Rule 11.1(a), under which the Exchange does not accept the following orders prior to the start of the Pre-Opening Session: BATS Post Only Orders, Partial Post Only at Limit Orders, ISO, BATS Market Orders with a TIF other than Regular Hours Only, Minimum Quantity Orders that also include a TIF of Regular Hours
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes its proposal to amend Rule 1.5(r) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time, Rule 11.1(a) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time, and the related changes to Rules 11.23, 14.6, 14.11, and 14.12 promote just and equitable principles of trade, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. The Exchange believes that opening its system at 7:00 a.m. will benefit investors, the national market system, Members and the Exchange market. Opening at 7:00 a.m. will benefit investors and the national market system by increasing competition for order flow and executions, and thereby spurring product enhancements and lowering prices. Opening at 7:00 a.m. will benefit Members and the Exchange market by increasing trading opportunities between 7:00 a.m. and 8:00 a.m. without increasing ancillary trading costs (telecommunications, data, connectivity, etc.) and, thereby, decreasing average trading costs per share. Opening the Exchange at 7:00 a.m. will also benefit Members that choose not to participate in the early hours but nonetheless gain the opportunity to interact with liquidity entered by other members during the early session.
The proposed rule change promotes just and equitable principles of trade by offering additional trading opportunities to Members that desire them, without imposing burdens on Members that do not. The proposal will facilitate a well-regulated, orderly, and efficient market during a period of time that is currently underserved. The Exchange notes that the proposed trading period has been available on NYSE Arca and Nasdaq.
The Exchange believes its proposed Effective Start Time instruction also promotes just and equitable principles of trade, and removes impediments to and perfects the mechanism of a free and open market and a national market system. The Exchange believes that the proposed Effective Start Time instruction will provide Users with greater control over their orders by electing a specific time upon which their order may become eligible for execution. The concept of selecting conditions during which an order it [
The Exchange believes it has appropriately limited the availability of the Effective Start Time instruction to exclude its use with order types and order instructions that it may be deemed inconsistent with. Specifically, the Effective Time instruction is not available for ISOs and the use of such an instruction may be considered inconsistent with a Member's responsibility to comply with the requirements of Regulation NMS relating to ISOs. In addition, the Effective Start Time instruction is not available for BATS Market Orders or orders with a TIF instruction of IOC or FOK as well as orders with BATS Post Only Order or Minimum Quantity Orders. BATS Market Orders and orders with a TIF instruction of IOC and FOK are immediately executable once placed on the BATS Book. Permitting the use of an Effective Start time with such orders appears inconsistent as a User will not know at the time of order entry what the market for such a security would be at the selected Effective Start Time.
The Exchange believes its proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposal to start the Pre-Opening Session at 7:00 a.m. Eastern Time would enhance competition by enabling the Exchange to directly compete with NYSE Arca and Nasdaq for order flow and executions starting at 7:00 a.m., rather than 8:00 a.m. In addition, the proposed Effective Start Time instruction will enable the Exchange to provide similar functionality as NYSE Arca. The fact that the extending the Pre-Opening Session and Effective Start Time are themselves a response to the competition provided by other markets is evidence of its pro-competitive nature.
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.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and 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.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form T-2 (17 CFR 269.2) is a statement of eligibility of an individual trustee under the Trust Indenture Act of 1939. The information is used to determine whether the individual is qualified to serve as a trustee under the indenture. Form T-2 takes approximately 9 hours per response to prepare and is filed by 18 respondents. We estimate that 25% of the 9 burden hours (2 hours per responses) is prepared by the filer for a total reporting burden of 36 hours (2 hours per response × 18 responses).
Written comments are invited on: (a) Whether this proposed collection of information is necessary for the performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Please direct your written comment to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549 or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the definition of Pre-Opening Session under Rule 1.5(s) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time and Rule 11.1(a)(1) to account for
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 amend the definition of Pre-Opening Session under Rule 1.5(s) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time and Rule 11.1(a)(1) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time. The Exchange also proposes to amend: (i) Rule 11.6 to adopt a new defined term, Effective Start Time, which would be an order instruction enabling Members indicate a time upon which their order may become eligible for execution; (ii) and Rule 11.8 to identify which order types an Effective Start Time may be utilized with.
The Exchange trading day is currently divided into three sessions: (i) The Pre-Opening Session which starts at 8:00 a.m. and ends at 9:30 a.m. Eastern Time; (ii) the Regular Session which runs from the completion of the Opening Process or Continent Open as defined in Rule 11.7 and 4:00 p.m. Eastern Time; and (iii) the Post-Closing Session which starts at 4:00 p.m. and ends at 8:00 p.m. Eastern Time. The Exchange proposes to amend the definition of “Pre-Opening Session” under Rule 1.5(s) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time.
The Exchange also proposes to amend Rule 11.1(a)(1) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time. Rule 11.1(a)(1) states that all orders are eligible for execution during the Regular Session.
As amended, orders entered between 6:00 a.m. and 7:00 a.m. Eastern Time, rather than 6:00 a.m. and 8:00 a.m. Eastern Time, would not eligible for execution until the start of the Pre-Opening Session or Regular Trading Hours,
The Exchange propose to amend Rule 11.6 to adopt a new defined term, Effective Start Time, under which Members may indicate a time upon which their order may become eligible for execution and Rule 11.8 to identify which order types an Effective Start Time may be utilized with.
Effective Start Time would be defined under new paragraph (t) to Rule 11.6 as an instruction a User may attach to an order to buy or sell which indicates the time upon which the order is to become eligible for execution. Like orders placed on the EDGX Book at the start of the Pre-Opening Session under Rule 11.1(a)(1), at the Effective Start Time, the order will be placed on the EDGX Book, routed, cancelled, or executed in accordance with the terms of the order. Once received, orders with an Effective Start Time are placed in a suspended state and not placed on the EDGX Book until the Effective Start Time selected by the User. Orders with an Effective Start Time are treated like all other orders once placed on the EDGX Book and will receive a time stamp at the time the order becomes eligible for execution. Pursuant to Rule 11.9, orders entered with identical Effective Start Times will retain their priority as compared to each other based upon the time such orders were initially received by the System.
The Exchange also proposes to amend Rule 11.8 to identify which order types an Effective Start Time may be utilized with. In general, a User may specify a time between 7:00 a.m. and 8:00 p.m. Eastern Time as the order's Effective Start Time, subject to the trading sessions that the particular order type is eligible for execution. The Effective Start Time instruction will not be available for ISOs, Market Orders, or orders with a TIF of IOC or FOK as the Exchange believes the instruction is not consistent with the purposes of these order types and order type instructions. This is also consistent with current Rule 11.1(a)(1), under which the Exchange does not accept the following orders prior to the start of the Pre-Opening Session: Orders with a Post Only instruction, ISOs, Market Orders with a TIF instruction other than Regular Hours Only, orders with a Minimum Execution Quantity instruction that also include a TIF instruction of Regular Hours Only, and all orders with a TIF instruction of IOC or FOK.
Effective Start Time will be available for the following order types:
• Limit Orders. Under Rule 11.8(b)(6), Effective Start Time would be available for Limit Orders with a TIF instruction other than IOC or FOK. Effective Start Time would not be available for orders with a Post Only instruction or Minimum Execution Quantity. This is consistent with current Rule 11.1(a)(1), under which the Exchange does not accept the following orders with a Post Only instruction or Minimum Execution Quantity.
• MidPoint Peg Orders. Under Rule 11.8(d)(4) and like Limit Orders described above, Effective Start Time would be available for MidPoint Peg Orders with a TIF instruction other than IOC or FOK. Effective Start Time would not be available for orders with a Post Only instruction or Minimum Execution Quantity.
• Market Maker Peg Orders. Under Rule 11.8(e)(7), all Market Maker Peg Orders may include an Effective Start Time. The Exchange notes that Market Maker Peg Orders are not permitted to include a TIF instruction of IOC or FOK. They may only include a TIF instruction of Day, RHO or GTD. Market Maker Peg Orders are designed to assist Market Makers
Supplemental Peg Orders. Under Rule 11.8(f)(4), all Supplemental Peg Orders may include an Effective Start Time. The Exchange notes that Supplemental Peg Orders are not permitted to include a TIF instruction of IOC or FOK. They may only include a TIF instruction of Day, RHO, GTD or GTX. A Supplemental Peg Order with a Minimum Execution Quantity may not also contain an Effective Start Time.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes its proposal to amend Rule 1.5(s) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time and Rule 11.1(a)(1) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time promote just and equitable principles of trade, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. The Exchange believes that opening its system at 7:00 a.m. will benefit investors, the national market system, Members and the Exchange market. Opening at 7:00 a.m. will benefit investors and the national market system by increasing competition for order flow and executions, and thereby spurring product enhancements and lowering prices. Opening at 7:00 a.m. will benefit Members and the Exchange market by increasing trading opportunities between 7:00 a.m. and 8:00 a.m. without increasing ancillary trading costs (telecommunications, data, connectivity, etc.) and, thereby, decreasing average trading costs per share. Opening the Exchange at 7:00 a.m. will also benefit Members that choose not to participate in the early hours but nonetheless gain the opportunity to interact with liquidity entered by other members during the early session.
The proposed rule change promotes just and equitable principles of trade by offering additional trading opportunities to Members that desire them, without imposing burdens on Members that do not. The proposal will facilitate a well-regulated, orderly, and efficient market during a period of time that is currently underserved. The Exchange notes that the proposed trading period has been available on NYSE Arca and Nasdaq.
The Exchange believes its proposed Effective Start Time instruction also promotes just and equitable principles of trade, and removes impediments to and perfects the mechanism of a free and open market and a national market system. The Exchange believes that the proposed Effective Start Time instruction will provide Users with greater control over their orders by electing a specific time upon which their order may become eligible for execution. The concept of selecting conditions during which an order it [
The Exchange believes it has appropriately limited the availability of the Effective Start Time instruction to exclude its use with order types and order instructions that it may be deemed inconsistent with. Specifically, the Effective Time instruction is not available for ISOs and the use of such an instruction may be considered inconsistent with a Member's responsibility to comply with the requirements of Regulation NMS relating to ISOs. In addition, the Effective Start Time instruction is not available for Market Orders or orders with a TIF instruction of IOC or FOK as well as orders with Post Only instruction or Minimum Execution Quantity. Market Orders and orders with a TIF instruction of IOC and FOK are immediately executable once placed on the EDGX Book. Permitting the use of an Effective Start time with such orders appears inconsistent as a User will not know at the time of order entry what the market for such a security would be at the selected Effective Start Time.
The Exchange believes its proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposal to start the Pre-Opening Session at 7:00 a.m. Eastern Time would enhance competition by enabling the Exchange to directly compete with NYSE Arca and Nasdaq for order flow and executions starting at 7:00 a.m., rather than 8:00 a.m. In addition, the proposed Effective Start Time instruction will enable the Exchange to provide similar functionality as NYSE Arca. The fact that the extending the Pre-Opening Session and Effective Start Time are themselves a response to the competition provided by other markets is evidence of its pro-competitive nature.
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.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may
• 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 is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend the Fee Schedule on the BOX Market LLC (“BOX”) options facility. While changes to the fee schedule pursuant to this proposal will be effective upon filing, the changes will become operative on September 1, 2015. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to make a number of changes to Facilitation and Solicitation fees and credits within the BOX Fee Schedule.
First, the Exchange proposes to amend Section I (Exchange Fees) to establish a subsection entitled “Facilitation and Solicitation Transactions.” The Exchange proposes to move all the fees associated with Facilitation and Solicitation Transactions
The Exchange then proposes to adjust exchange fees for Facilitation and Solicitation Transactions. For Agency Orders
For example, if a Market Maker submitted an Agency Order through the Facilitation mechanism, the Market Maker would no longer be charged for the Agency Order or matching contra order. To expand on this example, if the Market Maker instead was responding to the Facilitation Order, then the Market Maker would be charged $0.20.
Consequently, the Exchange proposes to rename Section 1.B. from “Auction Transactions” to “PIP and COPIP Transactions” as this section will now only reflect the Exchange fees for PIP and COPIP transactions. The Exchange is also proposing to amend the footnotes in the PIP and COPIP transactions subsection to remove any references to the Facilitation and Solicitation auction mechanisms.
The Exchange then proposes to amend Section II.B of the BOX Fee Schedule, liquidity fees and credits for Facilitation and Solicitation transactions. Specifically, the Exchange proposes to establish different liquidity fees and credits for Facilitation and Solicitation transactions in Penny Pilot Classes than for Facilitation and Solicitation transactions in Non-Penny Pilot Classes. Currently all Facilitation and Solicitation transactions are assessed a $0.30 fee for adding liquidity and credited $0.30 for removing liquidity. The Exchange now proposes to adopt the following liquidity fees and credits:
The Exchange also proposes to amend the Liquidity Fees and Credits for Facilitation and Solicitation transactions to specify that Agency Orders submitted to the Facilitation and Solicitation mechanisms are assessed the “removal” credit only if the Agency Order does not trade with their contra order. The Exchange also proposes to specify that only Responses to Facilitation and Solicitation Orders executed in these mechanisms shall be charged the “add” fee.
For example, if an OFP submits an Agency Order to buy 200 contracts in the facilitation auction and there are no responders, the Agency Order would execute against the matching Facilitation Order to sell 200 contracts and neither Order would be assessed a liquidity fee or credit. If, instead, the same Agency Order receives a Market Maker Response to sell 150 contracts, at the end of the auction the Agency Order would now execute against the Market Maker Response for 150 contracts and the Facilitation Order for 50 contracts, and liquidity fees and credits would be assessed on the 150 contracts which executed against the Market Maker Response.
The proposed reduction in exchange fees and increase in liquidity fees and credits in Facilitation and Solicitation transactions is designed to provide BOX Participants additional incentives to submit block orders to these auctions and to remain competitive with other options exchanges that have similar mechanisms for large block orders.
Finally, the Exchange is proposing to make additional non-substantive changes to the Fee Schedule. Specifically, the Exchange is renumbering certain footnotes, headings and internal references to accommodate the above proposed changes to the Fee Schedule.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act, in general, and Section 6(b)(4) and 6(b)(5)of the Act,
The Exchange believes creating a separate subsection for the Facilitation and Solicitation transactions is reasonable, equitable and not unfairly discriminatory as the proposed subsection is meant to provide clarity about the applicable exchange fees for each of BOX's auction mechanisms. The Exchange also believes that the proposed exchange fees for Facilitation and Solicitation transactions are reasonable, equitable and not unfairly discriminatory. The Exchange believes that it is reasonable to remove the fees for Agency, Facilitation and Solicitation Orders, and lower the Facilitation and Solicitation Order Response fees from $0.37 to $0.27 for Professional Customers and Broker Dealers, and from $0.30 to $0.20 for Market Makers. Further, the Exchange believes that it is reasonable to eliminate the $25,000 fee cap for Facilitation and Solicitation transactions, as most the exchange fees for these transactions are being removed. The Exchange believes eliminating and reducing these fees will attract order flow to these mechanisms which will result in greater liquidity and ultimately benefit all Participants trading on the Exchange.
The Exchange believes it is reasonable, equitable and not-unfairly discriminatory to charge higher exchange fees for responders in the
The Exchange also believes that charging Professional Customers and Broker Dealers higher fees than Public Customers for Responses in the Facilitation and Solicitation auction mechanisms is equitable and not unfairly discriminatory. Professional Customers, while Public Customers by virtue of not being Broker Dealers, generally engage in trading activity more similar to Broker Dealer proprietary trading accounts. The Exchange believes that the higher level of trading activity from these Participants will draw a greater amount of BOX system resources, and the Exchange aims to recover its costs by assessing Professional Customers and Broker Dealers higher fees for these orders.
The Exchange believes it is equitable and not unfairly discriminatory to charge Public Customers less than Market Makers, Broker Dealers and Professional Customers for their Responses to the Facilitation and Solicitation Auction mechanisms. The securities markets generally, and BOX in particular, have historically aimed to improve markets for investors and develop various features within the market structure for Public Customer benefit. The Exchange believes that charging lower fees to Public Customers is reasonable and, ultimately, will benefit all Participants trading on the Exchange by attracting Public Customer order flow.
Finally, the Exchange believes it is equitable and not unfairly discriminatory for BOX Market Makers to be assessed lower fees than Professional Customers and Broker Dealers for Responses in the Facilitation and Solicitation auction mechanisms because of the significant contributions to overall market quality that Market Makers provide. Market Makers generally provide higher volumes of liquidity and assessing overall lower fees for these Participants within the BOX Fee Schedule will help attract a higher level of Market Maker order flow to the BOX Book and create liquidity, which the Exchange believes will ultimately benefit all Participants trading on BOX. Additionally, Market Makers are the Participants most likely to use the Facilitation and Solicitation auction mechanisms, and the Exchange believes that assessing lower fees for these Participants will help drive liquidity to these block trade mechanisms.
BOX believes that the changes to Facilitation and Solicitation transaction liquidity fees and credits are equitable and not unfairly-discriminatory in that they apply to all categories of participants and across all account types. The Exchange also believes the fees and credits are reasonable and competitive when compared to similar fees at competing venues.
However, for the equivalent of Non-Penny Pilot Classes
With the proposed fee changes for Facilitation and Solicitation transactions, Initiators will never pay a fee and will only receive a credit of $0.40 in Penny Pilot Classes and $0.95 in Non-Penny Pilot Classes for the portion of the order that interacts with a Responder. In comparison, under the ISE Fee Schedule all Initiators except Public Customers are charged a $.20 fee for Penny Pilot Classes and $0.20 to $0.25 fee for Non-Penny Pilot Classes.
Finally, if the order executes against a responder within one of these mechanisms the Initiator will receive an additional rebate of $0.15 for Penny Pilot Classes. For Non-Penny Pilot Classes, the Initiator will typically receive a proportional PFOF credit to their pool which they can allocate as they so choose.
In conclusion, the Exchange believes the proposed Facilitation and Solicitation fees and credits are reasonable when compared to fees and credits for similar mechanisms at the ISE. While it is difficult to exactly equate these two fee structures, most Responders on ISE (Market Makers interacting with Customer Orders) will pay $0.47 (Penny Pilot Classes) and $1.17 (Non-Penny Pilot Classes) while most Responders on BOX (Market Makers interacting with Customer Orders) will pay $0.60 (Penny Pilot Classes) and $1.15 (Non-Penny Pilot Classes). At the ISE, depending on volume, Initiators in this scenario could receive a credit per contract for all Facilitation and Solicitation orders, and an additional $0.15 break up credit (Penny Pilot Classes) or PFOF credit (Non-Penny Pilot Classes).
Further, the Exchange believes that the proposed difference between what an Initiator will pay compared to what a Responder will pay is reasonable, equitable and not unfairly discriminatory. As stated above, this difference is in-line with the credits and fees at the ISE. Further, the Exchange believes that this differential is reasonable because Responders are willing to pay a higher fee for liquidity discovery.
Further, the Exchange notes that with the proposed reduction in Responder exchange fees, all Responders except for Public Customers are only paying an overall higher fee for their Responses to Non-Penny Class transactions. For example, a Responder under the current schedule would be assessed an exchange fee of $0.37 (for Professional Customers and Broker Dealers) and $0.30 (for Market Makers) along with a fee for “adding” liquidity of $0.30. In total, Professional Customers and Broker Dealers are currently assessed $0.67 and Market Makers $0.60. Under the proposed change to both the Exchange fees and Liquidity Fees and Credits, Professional Customers and Broker Dealers Responders would still be assessed $0.67 in total for Penny Pilot Classes ($0.27 exchange fee and $0.40 liquidity fee) and Market Makers would be assessed $0.60 ($0.20 exchange and $0.40 liquidity fee). While Participants would be assessed overall higher fees for responding to Non-Penny Pilot Issues, as stated above, the Exchange believes that these liquidity fees are reasonable as they are within the range assessed for Facilitation and Solicitation responses at a competing exchange.
The Exchange also believes it is reasonable to establish different fees and credits for Facilitation and Solicitation transactions in Penny Pilot Classes compared to transactions in Non-Penny Pilot Classes. The Exchange makes this distinction throughout the BOX Fee Schedule, including the liquidity fees and credits for PIP and COPIP Transactions. The Exchange believes it is reasonable to establish higher fees and credits for Non-Penny Pilot Classes because these Classes are typically less actively traded and have wider spreads. The Exchange believes that offering a higher rebate will incentivize order flow in Non-Penny Pilot issues on the Exchange, ultimately benefitting all Participants trading on BOX.
Further, the Exchange notes that the proposed fees and credits for transactions on BOX offset one another in any particular transaction. The result is that BOX will collect a fee from Participants that add liquidity on BOX and credit another Participant an equal amount for removing liquidity. Stated otherwise, the collection of these liquidity fees will not directly result in revenue to BOX, but will simply allow BOX to provide the credit incentive to Participants to attract order flow. The Exchange believes it is appropriate to provide incentives to market participants to use the Facilitation and Solicitation auction mechanisms, because doing so may result in greater liquidity on BOX which would benefit all market participants.
The Exchange believes it is reasonable, equitable and not-unfairly discriminatory for responders to Facilitation and Solicitation auctions to be assessed higher fees than initiators. The Agency Order is a block sized order typically composed of Public Customer orders and represented by an OFP who then guarantees the execution by submitting a matching Facilitation or Solicitation Order. Responders in the Facilitation and Solicitation mechanisms are always non-Public Customers and more typically are Market Makers. The Exchange believes it is reasonable, equitable and not unfairly discriminatory to give these Agency Orders a credit when their orders execute against a non-Public Customer and, accordingly, charge non-Public Customers a fee when their orders execute against a Public Customer. The Exchange notes that increasing fees to non-Public Customers in order to provide incentives for Public Customers is similar to the payment for order flow and other pricing models that have been adopted by competing exchanges
Further, the Exchange believes it is reasonable, equitable and not unfairly discriminatory to only assess liquidity fees and credits on Agency Orders that do not trade with their contra order, and the Responses to these Orders. As stated above, liquidity fees and credits are meant to incentivize order flow, and the Exchange believes incentives are not necessary for internalized orders in these mechanisms that only trade against their contra order. Additionally, other Exchanges also make this distinction in their Facilitation and Solicitation auction mechanisms.
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing exchanges. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The proposed rule change modifies the exchange fees and raises the liquidity fees and credits for Facilitation and Solicitation transactions. BOX notes that its market model and fees are generally intended to benefit retail customers by providing incentives for Participants to submit their customer order flow to BOX. The Exchange does not believe that the proposed liquidity fees and credits will burden competition by creating such a disparity between the fees an Initiating Participant in the Facilitation and Solicitation auction pays and the fees a competitive responder pays that would result in certain Participants being unable to compete with initiators. In fact, the Exchange believes that these changes will not impair these Participants from adding liquidity and competing in Facilitation and Solicitation auction transactions and will help promote competition by providing incentives for market participants to submit customer order flow to BOX and thus, create a greater opportunity for customers to receive additional price improvement. Specifically, BOX is removing and lowering the exchange fees for Facilitation and Solicitation transactions to encourage all market participants to participate in these auctions. While the liquidity fees and
BOX believes that this proposal will enhance competition between exchanges because it is designed to allow the Exchange to better compete with other exchanges for Facilitation and Solicitation auction order flow.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend the rule change if it appears to the Commission that the action is necessary or appropriate in the public interest, for the protection of investors, or would otherwise further 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 is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend the Fee Schedule on the BOX Market LLC (“BOX”) options facility. While changes to the fee schedule pursuant to this proposal will be effective upon filing, the changes will become operative on September 1, 2015. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at
In its filing with the Commission, the 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
The Exchange proposes to amend the Fee Schedule for trading on BOX to amend how PIP and COPIP Orders
The Exchange first proposes to add subsection 3 to Section I.B. (PIP and COPIP Orders Executed Against Orders on the BOX Book) and state that each PIP or COPIP Order which executes against an Unrelated Order on the BOX Book shall be treated as a Non-Auction transaction and be subject to Section I.A. Exchange Fees (Non-Auction Transactions).
The Exchange does not believe that this change will have a noticeable impact on the fees assessed on its Participants.
While unlikely that a Participant other than a Public Customer would be interacting with the order on the BOX Book, the Exchange notes that a Market Maker who submits a PIP or COPIP Order that executes against an order on the BOX Book would be charged anywhere from $0.05 to $0.55 in Penny Pilot Classes and $0.10 to $0.90 in Non-Penny Pilot Classes depending on the Participant type that the Order interacted with. The Market Maker would also be eligible for the Tiered Volume Rebate of up to $0.10 per contract depending on its monthly average daily volume. Comparatively, the same Market Maker would be assessed a $0.20 Exchange fee for the PIP and COPIP Order and a credit for removing liquidity of $0.35 (Penny Pilot Classes) and $0.75 (Non-Penny Pilot Classes).
A Professional Customer or Broker Dealer who submits a PIP or COPIP Order that executes against an order on the BOX Book could be charged anywhere from $0.40 to $0.64 in Penny Pilot Classes and $0.40 to $0.99 in Non-Penny Pilot Classes. The same Professional Customer or Broker Dealer would be assessed a $0.37 Exchange fee for the PIP and COPIP Order and a credit for removing liquidity of $0.35 (Penny Pilot Classes) and $0.75 (Non-Penny Pilot Classes).
The Exchange also proposes to remove obsolete language in this subsection that references immediately marketable Unrelated Orders, specifically the language that states that “an Unrelated Order that is not immediately marketable will be charged as an Improvement Order when it executes against a PIP Order or a COPIP Order,” as well as “When a non-immediately marketable order executes against a PIP Order or a COPIP Order, therefore becoming an Unrelated Order, it shall be charged as an Improvement Order.” Since the introduction of the pro-rata allocation algorithm within the PIP and COPIP,
The Exchange notes that the fees for immediately marketable Unrelated Orders remain unchanged. These orders continue to be charged as Non-Auction transactions for purposes of the BOX Fee schedule.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act, in general, and Section 6(b)(4) and 6(b)(5)of the Act,
The Exchange believes treating PIP and COPIP Orders that execute against an Unrelated Order on the BOX Book as Non-Auction transactions is reasonable, equitable and not unfairly discriminatory. As the Exchange noted above, almost all PIP and COPIP Orders are from the accounts of Public Customers. If this type of interaction does take place the Public Customer will still not be charged a fee and may also receive a credit depending on its ADV for the month.
Additionally, the Exchange believes it is reasonable to potentially assess Market Makers, Broker Dealers, and Professional Customers with higher fees if their PIP or COPIP Orders execute on the BOX Book. While this scenario is rare, the Exchange notes that it has adopted similar methodology for Complex Orders that execute on the BOX Book, and while the result of this structure is that the BOX Participant does not know the fee it will be charged when submitting a PIP or COPIP Order, the Participant must recognize that it could be charged the highest applicable fee on the exchange's schedule. For example, while a Market Maker's PIP Order in a Penny Pilot Class would currently expect to be charged a $0.20 exchange fee and receive a $0.35 removal “credit” if the Order executed
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing exchanges. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange also does not believe that this change would disincentivize a market participant from sending in a PIP or COPIP Order, as the proposed rule change is meant to provide clarity to the BOX Fee Schedule so that Participants understand the fees they can be charged in this scenario. Under the proposed change PIP and COPIP Orders that execute against an Unrelated Order on the BOX Book will be subject to fees already in place on the Exchange. Further, almost all these transactions the PIP or COPIP Order will be from the account of the Public Customer and there will be no change to the fees assessed on these Participants. In rare cases, Market Makers, Broker Dealers and Professional Customers could be assessed a higher fee but the Exchange believes any fees assessed would be nominal.
Finally, the Exchange does not believes that treating PIP and COPIP Orders that execute against an Unrelated Order on the BOX Book as Non-Auction transactions will impose a burden on competition among various Exchange Participants because all Participants will be affected to the same extent.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend the rule change if it appears to the Commission that the action is necessary or appropriate in the public interest, for the protection of investors, or would otherwise further the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 6, 2015, ICE Clear Credit LLC (“ICC”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. ICC's proposed rule change would provide the basis for ICC to include the Federal Republic of Germany, the French Republic and the United Kingdom of Great Britain and Northern Ireland in the list of specific Eligible Standard Western European Sovereign (“SWES”) Reference Entities to be cleared by ICC. Because the proposed rule change is dependent on the approval and implementation of the proposed rule change in SR-ICC-2015-009, which is currently under Commission review, the Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of this proposed rule change is to amend OCC's Schedule of Fees, effective September 1, 2015, to allow a clearing fee waiver for exchange new products that is longer than the current clearing fee waiver for exchange new products.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The purpose of this proposed rule change is to amend OCC's Schedule of Fees to allow for a longer clearing fee waiver period, for up to twelve (12) months, for clearing members trading exchange new products. OCC's Schedule of Fees sets forth the clearing fee related to “New Products” listed by an exchange and cleared through OCC. New products are currently subject to a fee waiver, or “fee holiday,” in which OCC does not charge a clearing fee from the first day of the listing of the new product through the end of the following calendar month. After that time, the clearing fee reverts to the applicable clearing fee set forth in the Schedule of Fees.
OCC is proposing to revise its Schedule of Fees to allow the exchange new product fee waiver period to be longer in duration than the current exchange new product fee waiver period in the event that OCC and an exchange would agree to a longer fee waiver. The length of any proposed extended exchange new product fee waiver would be subject to agreement between OCC and the requesting exchange and shall not exceed 12 months. Each exchange clearing new products through OCC would be able to extend the clearing fee waiver for its new products beyond the period in the current Schedule of Fees for up to 12 months, subject to OCC's agreement. Further, consistent with the terms of the Restated Participant Exchange Agreement for options exchanges and OCC's Clearing and Settlement Services Agreements with futures exchanges, OCC may not discriminate among exchanges with respect to the nature or quality of the services it provides to the exchanges for which it provides clearance and settlement services. Accordingly, the service terms provided to one exchange, such as an extended clearing fee waiver for new products, would also need to be made available to all other exchanges.
In addition, the current clearing fee waiver period for exchange new products would not be shortened by this proposed rule change. OCC believes that the proposed flexibility in the waiver period for exchange new products will enhance innovation for the introduced new products.
OCC believes the proposed rule change is consistent with Section 17A(b)(3)(D)
OCC does not believe that the proposed rule change would impose a burden on competition.
Written comments on the proposed rule change were not and are not intended to be solicited with respect to the proposed rule change and none have been received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and paragraph (f) of Rule 19b-4 thereunder. 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.
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 Commissions Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-OCC-2015-014 and should be submitted on or before October 1, 2015.
For the Commission by the Division of Trading and Markets, pursuant to delegated Authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, September 10, 2015 at 2:00 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the Closed Meeting.
Commissioner Stein, as duty officer, voted to consider the items listed for the Closed Meeting in closed session. The duty officer determined no earlier notice of this Meeting was practicable.
The subject matter of the Closed Meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form F-80 (17 CFR 239.41) is a registration form used by large, publicly-traded Canadian issuers to register securities that will be offered in a business combination, exchange offer or other reorganization requiring the vote of shareholders of the participating companies. The information collected is intended to make available material information upon which shareholders and investors can make informed voting and investment decisions. Form F-80 takes approximately 2 hours per response and is filed by approximately 4 issuers for a total annual burden of 8 hours. The estimated burden of 2 hours per response was based upon the amount of time necessary to compile the registration statement using the existing Canadian prospectus plus any additional information required by the Commission.
Written comments are invited on: (a) Whether this proposed 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 the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Please direct your written comment to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549 or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form T-6 (17 CFR 269.9) is an application for eligibility and qualification for a foreign person or corporation under the Trust Indenture Act of 1939 (15 U.S.C. 77aaa
Written comments are invited on: (a) Whether this proposed 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 the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Please direct your written comment to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549 or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation FD (17 CFR 243.100
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following Web site,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the definition of Pre-Opening Session under Rule 1.5(r) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time and Rule 11.1(a) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time. The Exchange also proposes to adopt new Rule 11.1(a)(1) to define Effective Start Time, which would be an order instruction enabling 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 amend the definition of Pre-Opening Session under Rule 1.5(r) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time and Rule 11.1(a) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time. The Exchange also proposes to adopt new Rule 11.1(a)(1) to define Effective Start Time, which would be an order instruction enabling Members indicate a time upon which their order may become eligible for execution.
The Exchange trading day is currently divided into two sessions: (i) The Pre-Opening Session which starts at 8:00 a.m. and ends at 9:30 a.m. Eastern Time; and (ii) the Regular Trading Hours which runs from 9:30 a.m. to 4:00 p.m. Eastern Time. The Exchange proposes to amend the definition of “Pre-Opening Session” under Rule 1.5(r) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time.
The Exchange also proposes to amend Rule 11.1(a) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time. Other than the proposal to change the start of the Pre-Opening Session from 8:00 a.m. to 7:00 a.m. Eastern Time discussed above, the Exchange does not propose to amend the substance or operation of Rule 11.1(a).
As amended, orders entered between 6:00 a.m. and 7:00 a.m. Eastern Time, rather than 6:00 a.m. and 8:00 a.m. Eastern Time, would not eligible for execution until the start of the Pre-Opening Session or Regular Trading Hours,
The Exchange propose to adopt a new defined term, Effective Start Time, under proposed paragraph (a)(1) to Rule 11.1. Effective Start Time would be defined as an instruction a User may attach to an order to buy or sell which indicates the time upon which the order is to become eligible for execution. Like orders placed on the BATS Book at the start of the Pre-Opening Session under Rule 11.1(a), at the Effective Start Time, the order will be placed on the BATS Book, routed, cancelled, or executed in accordance with the terms of the order. Once received, orders with an Effective Start Time are placed in a suspended state and not placed on the BATS Book until the Effective Start Time selected by the User. Orders with an Effective Start Time are treated like all other orders once placed on the BATS Book and will receive a time stamp at the time the order becomes eligible for execution. Pursuant to Rule 11.12, orders entered with identical Effective Start Times will retain their priority as compared to each other based upon the time such orders were initially received by the System.
In general, a User may specify a time between 7:00 a.m. and 4:00 p.m. Eastern Time as the order's Effective Start Time, subject to the trading sessions that the particular order type is eligible for execution. A Member would not be able to combine an Effective Start Time with BATS Post Only Orders, BATS Market Orders, Minimum Quantity Orders, ISOs, or orders that include a TIF of IOC or FOK. The Effective Start Time instruction would be available for all other order types that include a TIF other than IOC or FOK. This is also consistent with current Rule 11.1(a), under which the Exchange does not accept the following orders prior to the start of the Pre-Opening Session: BATS Post Only Orders, Partial Post Only at Limit Orders, ISO, BATS Market Orders with a TIF other than Regular Hours Only, Minimum Quantity Orders that also include a TIF of Regular Hours Only, and all orders with a TIF instruction of IOC or FOK.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes its proposal to amend Rule 1.5(r) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time and Rule 11.1(a) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time promote just and equitable principles of trade, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. The Exchange believes that opening its system at 7:00 a.m. will benefit investors, the national market system, Members and the Exchange market. Opening at 7:00 a.m. will benefit investors and the national market system by increasing competition for order flow and executions, and thereby spurring product enhancements and lowering prices. Opening at 7:00 a.m. will benefit Members and the Exchange market by increasing trading opportunities between 7:00 a.m. and 8:00 a.m. without increasing ancillary trading costs (telecommunications, data, connectivity, etc.) and, thereby, decreasing average trading costs per share. Opening the Exchange at 7:00 a.m. will also benefit Members that choose not to participate in the early hours but nonetheless gain the opportunity to interact with liquidity entered by other members during the early session.
The proposed rule change promotes just and equitable principles of trade by offering additional trading opportunities to Members that desire them, without imposing burdens on Members that do not. The proposal will facilitate a well-regulated, orderly, and efficient market during a period of time that is currently underserved. The Exchange notes that the proposed trading period has been available on NYSE Arca and Nasdaq.
The Exchange believes its proposed Effective Start Time instruction also promotes just and equitable principles of trade, and removes impediments to and perfects the mechanism of a free and open market and a national market system. The Exchange believes that the proposed Effective Start Time instruction will provide Users with greater control over their orders by electing a specific time upon which their order may become eligible for execution. The concept of selecting conditions during which an order it [sic] to be eligible for execution is not novel. The operation of the Effective Start Time instruction is similar to functionality available on the Exchange and elsewhere that permits members to elect when their orders are to become eligible for executions. Specifically, on the Exchange, a User may elect a buy (sell) Stop Order or Stop Limit Order indicating that the order become eligible for execution when the consolidated last sale (purchase) in a security occurs at or above (below) a specified Stop Price.
The Exchange believes it has appropriately limited the availability of the Effective Start Time instruction to exclude its use with order types and order instructions that it may be deemed inconsistent with. Specifically, the Effective Time instruction is not available for ISOs and the use of such an instruction may be considered inconsistent with a Member's responsibility to comply with the requirements of Regulation NMS relating to ISOs. In addition, the Effective Start Time instruction is not available for BATS Market Orders or orders with a TIF instruction of IOC or FOK as well as orders with BATS Post Only Order or Minimum Quantity Orders. BATS Market Orders and orders with a TIF instruction of IOC and FOK are immediately executable once placed on the BATS Book. Permitting the use of an Effective Start time with such orders appears inconsistent as a User will not know at the time of order entry what the market for such a security would be at the selected Effective Start Time.
The Exchange believes its proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposal to start the Pre-Opening Session at 7:00 a.m. Eastern Time would enhance competition by enabling the Exchange to directly compete with NYSE Arca and Nasdaq for order flow and executions starting at 7:00 a.m., rather than 8:00 a.m. In addition, the proposed Effective Start Time instruction will enable the Exchange to provide similar functionality as NYSE Arca. The fact that the extending the Pre-Opening Session and Effective Start Time are themselves a response to the competition provided by other markets is evidence of its pro-competitive nature.
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.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and 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 is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form ADV-E (17 CFR 2799.8) is the cover sheet for certificates of accounting filed pursuant to rule 206(4)-2 under the Investment Advisers Act of 1940 (17 CFR 275.206(4)-2). The rule further requires that the public accountant file with the Commission a Form ADV-E and accompanying statement within four business days of the resignation, dismissal, removal or other termination of its engagement. The annual burden is approximately three minutes per respondent.
The estimate of burden hours set forth above is made solely for the purposes of the Paperwork Reduction Act and is not derived from a comprehensive or even representative survey or study of the cost of Commission rules and forms.
The information provided on Form ADV-E is mandatory. Responses will not be kept confidential. An agency may not conduct or sponsor a collection of information unless it displays a currently valid 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.
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form T-1 (17 CFR 269.1) is a statement of eligibility and qualification under the Trust Indenture Act of 1939 (15 U.S.C. 77aaa
Written comments are invited on: (a) Whether this proposed collection of information is necessary for the performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Please direct your written comment to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549 or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the definition of Pre-Opening Session under Rule 1.5(s) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time and Rule 11.1(a)(1) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time. The Exchange also proposes to amend: (i) Rule 11.6 to adopt a new defined term, Effective Start Time, which would be an order instruction enabling 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 amend the definition of Pre-Opening Session under Rule 1.5(s) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time and Rule 11.1(a)(1) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time. The Exchange also proposes to amend: (i) Rule 11.6 to adopt a new defined term, Effective Start Time, which would be an order instruction enabling Members indicate a time upon which their order may become eligible for execution; (ii) and Rule 11.8 to identify which order types an Effective Start Time may be utilized with.
The Exchange trading day is currently divided into three sessions: (i) The Pre-Opening Session which starts at 8:00 a.m. and ends at 9:30 a.m. Eastern Time; (ii) the Regular Session which runs from the completion of the Opening Process or Continent Open as defined in Rule 11.7 and 4:00 p.m. Eastern Time; and (iii) the Post-Closing Session which starts at 4:00 p.m. and ends at 8:00 p.m. Eastern Time. The Exchange proposes to amend the definition of “Pre-Opening Session” under Rule 1.5(s) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time.
The Exchange also proposes to amend Rule 11.1(a)(1) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time. Rule 11.1(a)(1) states that all orders are eligible for execution during the Regular Session.
As amended, orders entered between 6:00 a.m. and 7:00 a.m. Eastern Time, rather than 6:00 a.m. and 8:00 a.m. Eastern Time, would not eligible for execution until the start of the Pre-Opening Session or Regular Trading Hours,
The Exchange propose to amend Rule 11.6 to adopt a new defined term, Effective Start Time, under which Members may indicate a time upon which their order may become eligible for execution and Rule 11.8 to identify which order types an Effective Start Time may be utilized with.
Effective Start Time would be defined under new paragraph (t) to Rule 11.6 as an instruction a User may attach to an order to buy or sell which indicates the time upon which the order is to become eligible for execution. Like orders placed on the EDGA Book at the start of the Pre-Opening Session under Rule 11.1(a)(1), at the Effective Start Time, the order will be placed on the EDGA Book, routed, cancelled, or executed in accordance with the terms of the order. Once received, orders with an Effective Start Time are placed in a suspended state and not placed on the EDGA Book until the Effective Start Time selected by the User. Orders with an Effective Start Time are treated like all other orders once placed on the EDGA Book and will receive a time stamp at the time the order becomes eligible for execution. Pursuant to Rule 11.9, orders entered with identical Effective Start Times will retain their priority as compared to each other based upon the time such orders were initially received by the System.
The Exchange also proposes to amend Rule 11.8 to identify which order types an Effective Start Time may be utilized with. In general, a User may specify a time between 7:00 a.m. and 8:00 p.m. Eastern Time as the order's Effective Start Time, subject to the trading sessions that the particular order type is eligible for execution. The Effective Start Time instruction will not be available for ISOs, Market Orders, or orders with a TIF of IOC or FOK as the Exchange believes the instruction is not consistent with the purposes of these order types and order type instructions. This is also consistent with current Rule 11.1(a)(1), under which the Exchange does not accept the following orders prior to the start of the Pre-Opening Session: orders with a Post Only instruction, ISOs, Market Orders with a TIF instruction other than Regular Hours Only, orders with a Minimum Execution Quantity instruction that also include a TIF instruction of Regular Hours Only, and all orders with a TIF instruction of IOC or FOK.
Effective Start Time will be available for the following order types:
• Limit Orders. Under Rule 11.8(b)(6), Effective Start Time would be available for Limit Orders with a TIF instruction other than IOC or FOK. Effective Start Time would not be available for orders with a Post Only instruction or Minimum Execution Quantity. This is consistent with current Rule 11.1(a)(1), under which the Exchange does not accept the following orders with a Post Only instruction or Minimum Execution Quantity.
• MidPoint Peg Orders. Under Rule 11.8(d)(4) and like Limit Orders described above, Effective Start Time would be available for MidPoint Peg Orders with a TIF instruction other than IOC or FOK. Effective Start Time would not be available for orders with a Post
• MidPoint Discretionary Orders (“MDO”). Under Rule 11.8(e)(3), MDOs may include an Effective Start Time. The Exchange notes that Market MDOs are not permitted to include a TIF instruction of IOC or FOK. They may only include a TIF instruction of Day, RHO, GTX, or GTD.
• Market Maker Peg Orders. Under Rule 11.8(f)(7), all Market Maker Peg Orders may include an Effective Start Time. The Exchange notes that Market Maker Peg Orders are not permitted to include a TIF instruction of IOC or FOK. They may only include a TIF instruction of Day, RHO or GTD. Market Maker Peg Orders are designed to assist Market Makers
Supplemental Peg Orders. Under Rule 11.8(g)(4), all Supplemental Peg Orders may include an Effective Start Time. The Exchange notes that Supplemental Peg Orders are not permitted to include a TIF instruction of IOC or FOK. They may only include a TIF instruction of Day, RHO, GTD or GTX. A Supplemental Peg Order with a Minimum Execution Quantity may not also contain an Effective Start Time.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes its proposal to amend Rule 1.5(s) to state that the Pre-Opening Session will start at 7:00 a.m. rather than 8:00 a.m. Eastern Time and Rule 11.1(a)(1) to account for the Pre-Opening Session starting at 7:00 a.m. Eastern Time promote just and equitable principles of trade, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. The Exchange believes that opening its system at 7:00 a.m. will benefit investors, the national market system, Members and the Exchange market. Opening at 7:00 a.m. will benefit investors and the national market system by increasing competition for order flow and executions, and thereby spurring product enhancements and lowering prices. Opening at 7:00 a.m. will benefit Members and the Exchange market by increasing trading opportunities between 7:00 a.m. and 8:00 a.m. without increasing ancillary trading costs (telecommunications, data, connectivity, etc.) and, thereby, decreasing average trading costs per share. Opening the Exchange at 7:00 a.m. will also benefit Members that choose not to participate in the early hours but nonetheless gain the opportunity to interact with liquidity entered by other members during the early session.
The proposed rule change promotes just and equitable principles of trade by offering additional trading opportunities to Members that desire them, without imposing burdens on Members that do not. The proposal will facilitate a well-regulated, orderly, and efficient market during a period of time that is currently underserved. The Exchange notes that the proposed trading period has been available on NYSE Arca and Nasdaq.
The Exchange believes its proposed Effective Start Time instruction also promotes just and equitable principles of trade, and removes impediments to and perfects the mechanism of a free and open market and a national market system. The Exchange believes that the proposed Effective Start Time instruction will provide Users with greater control over their orders by electing a specific time upon which their order may become eligible for execution. The concept of selecting conditions during which an order it [sic] to be eligible for execution is not novel. The operation of the Effective Start Time instruction is similar to functionality available on the Exchange and elsewhere that permits members to elect when their orders are to become eligible for executions. Specifically, on the Exchange, a User may elect a Stop Price or Stop Limit Price on a buy (sell) Market Order or Limit Order indicating that the order become eligible for execution when the consolidated last sale (purchase) in a security occurs at or above (below) a specified Stop Price.
The Exchange believes it has appropriately limited the availability of the Effective Start Time instruction to exclude its use with order types and order instructions that it may be deemed inconsistent with. Specifically, the Effective Time instruction is not available for ISOs and the use of such an instruction may be considered inconsistent with a Member's responsibility to comply with the requirements of Regulation NMS relating to ISOs. In addition, the Effective Start Time instruction is not available for Market Orders or orders with a TIF instruction of IOC or FOK as well as orders with Post Only instruction or Minimum Execution Quantity. Market Orders and orders with a TIF instruction of IOC and FOK are immediately executable once placed on the EDGA Book. Permitting the use of an Effective Start time with such orders appears inconsistent as a User
The Exchange believes its proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposal to start the Pre-Opening Session at 7:00 a.m. Eastern Time would enhance competition by enabling the Exchange to directly compete with NYSE Arca and Nasdaq for order flow and executions starting at 7:00 a.m., rather than 8:00 a.m. In addition, the proposed Effective Start Time instruction will enable the Exchange to provide similar functionality as NYSE Arca. The fact that the extending the Pre-Opening Session and Effective Start Time are themselves a response to the competition provided by other markets is evidence of its pro-competitive nature.
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.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rule 11.21(d) to state that unless otherwise instructed by the Member,
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.
Exchange Rule 11.21 defines a Retail Order and sets forth the attestation requirements
The Exchange proposes to implement the proposed rule change on or about September 10, 2015.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes its proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposal would enhance competition for retail order flow by enabling Members to identify their Retail Orders as Retail when they are routed to an away Trading Center, including exchanges that operate a retail liquidity program.
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 has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. Waiver of the 30-day operative delay would permit the Exchange to identify Retail Orders as Retail when routed to an away Trading Center, including exchanges that operate a retail liquidity program, enabling the orders to receive potential price improvement. Based on the foregoing, the Commission believes that waiving the 30-day operative delay is consistent with the protection of
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.
All submissions should refer to File Number SR-EDGX-2015-40 and should be submitted on or before October 1, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend BX Rule 7039 (BX Last Sale and NASDAQ Last Sale Plus Data Feeds) with language indicating the fees for NASDAQ Last Sale Plus (“NLS Plus”), a comprehensive data feed offered by NASDAQ OMX Information LLC.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposal is to amend BX Rule 7039 with language indicating the fees for NLS Plus. NLS Plus allows data distributors to access the three last sale products offered by each of NASDAQ OMX's three U.S. equity markets.
NLS Plus, which is codified in NASDAQ Rule 7039(d) and BX Rule 7039(b), has been offered since 2010 via NASDAQ OMX Information LLC. NLS Plus is described online at
NLS Plus allows data distributors to access last sale products offered by each of NASDAQ OMX's three equity exchanges. NLS Plus includes all transactions from all of NASDAQ OMX's equity markets, as well as FINRA/NASDAQ TRF data that is included in the current NLS product. In addition, NLS Plus features total cross-market volume information at the issue level, thereby providing redistribution of consolidated volume information (“consolidated volume”) from the securities information processors (“SIPs”) for Tape A, B, and C securities.
NLS Plus is currently codified in NASDAQ Rule 7039(d) and BX Rule 7039(b),
The Exchange believes that market data distributors may use the NLS Plus data feed to feed stock tickers, portfolio trackers, trade alert programs, time and sale graphs, and other display systems. The contents of NLS Plus are set forth in BX Rule 7039(b).
Firms that receive an NLS Plus feed today are liable for annual administration fees for applicable NASDAQ equity exchanges: $1,000 for NASDAQ, $1,000 for BX, and $1,000 for PSX.
Accordingly, proposed BX Rule 7039 states the following at sections (b)(1) through (b)(3):
(1) Firms that receive NLS Plus shall pay the annual administration fees for NLS, BX Last Sale, and PSX Last Sale, and a data consolidation fee of $350 per month.
(2) Firms that receive NLS Plus would either be liable for NLS fees or NASDAQ Basic fees.
(3) In the event that NASDAQ OMX BX and/or NASDAQ OMX PHLX adopt user fees for BX Last Sale and/or PSX Last Sale, firms that receive NLS Plus would also be liable for such fees.
The Exchange notes that the proposed fee structure is designed to ensure that vendors could compete with the Exchange by creating a product similar to NLS Plus.
The proposed fee structure is reasonable and proper. First, the proposed administration fee is essentially a codification of the current administration fee vis a vis NASDAQ, BX and PSX. Second, NLS Plus recipients would also be liable for fees if the Exchange adopts user fees for BX Last Sale and/or PSX Last Sale. To that end, the Exchange notes that it has filed separate proposals to adopt NLS Plus in the BX Last Sale and PSX Last Sale provisions,
The Exchange believes that the proposed NLS Plus fee is a simple codification of the existing NLS PLS [sic] fee into BX Rule 7039, as discussed, with the addition of a monthly data consolidation fee, and as such meets the requirements of the Act.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that the proposed fees offered to firms that elect to receive NLS Plus are reasonable, equitable and not unfairly discriminatory. These fees are reasonable because they are, as discussed, simply a codification of the existing fee structure, with an addition of the above-discussed consolidation fee, into existing BX Rule 7039. The proposed fee structure would apply equally to all firms that choose to avail themselves of the NLS Plus data feed, and no firm is required to use NLS Plus. Moreover, the Exchange believes that the consolidation fee, while in addition to the current NLS Plus fee, would not be material to firms. The consolidation fee would, however, enable the Exchange to recoup the monthly consolidation cost emanating from the aggregation and consolidation of the data and data streams that make up the NLS Plus data feed. Such consolidated costs include, for example, the monthly costs of combining the feeds, adding the Bloomberg ID, and creating the consolidated sale info. The proposed fee structure would not be unfairly discriminatory because it would apply equally to all firms that choose to use NLS Plus.
The Exchange believes that the proposed fees are also consistent with the investor protection objectives of Section 6(b)(5) of the Act
The Exchange notes that the Commission has recently approved data products on several exchanges that are similar to NLS Plus, and specifically determined that the fee-liable approved data products were consistent with the Act.
In adopting Regulation NMS, the Commission granted SROs and broker-
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
The decision of the United States Court of Appeals for the District of Columbia Circuit in
The Court in
Moreover, fee liable data products such as NLS Plus are a means by which exchanges compete to attract order flow, and this proposal simply codifies the relevant fee structure into an Exchange rule. To the extent that exchanges are successful in such competition, they earn trading revenues and also enhance the value of their data products by increasing the amount of data they are able to provide. Conversely, to the extent that exchanges are unsuccessful, the inputs needed to add value to data products are diminished. Accordingly, the need to compete for order flow places substantial pressure upon exchanges to keep their fees for both executions and data reasonable.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed fee structure is designed to ensure a fair and reasonable use of Exchange resources by allowing the Exchange to recoup costs while continuing to offer its data products at competitive rates to firms.
The market for data products is extremely competitive and firms may freely choose alternative venues and data vendors based on the aggregate fees assessed, the data offered, and the value provided. This rule proposal does not burden competition, which continues to offer alternative data products and, like the Exchange, set fees,
NLS Plus joins the existing market for proprietary last sale data products that is currently competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market. Similarly, with respect to the FINRA/NASDAQ TRF data that is a component of NLS and NLS Plus, allowing exchanges to operate TRFs has permitted them to earn revenues by providing technology and data in support of the non-exchange segment of the market. This revenue opportunity has also resulted in fierce competition between the two current TRF operators,
Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price, and distribution of its data products. Without trade executions, exchange data products cannot exist. Moreover, data products are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, the operation of the exchange is characterized by high fixed costs and low marginal costs. This cost structure is common in content and content distribution industries such as software, where developing new software typically requires a large initial investment (and continuing large investments to upgrade the software), but once the software is developed, the incremental cost of providing that software to an additional user is typically small, or even zero (
An exchange's BD customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A BD will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the BD chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the BD will choose not to buy it. Moreover, as a BD chooses to direct fewer orders to a particular exchange, the value of the product to that BD decreases, for two reasons. First, the product will contain less information, because executions of the BD's trading activity will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that BD because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the BD is directing orders will become correspondingly more valuable.
Similarly, in the case of products such as NLS Plus that are distributed through market data vendors, the vendors provide price discipline for proprietary data products because they control the primary means of access to end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail BDs, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: They can simply refuse to purchase any proprietary data product that fails to provide sufficient value. Exchanges, TRFs, and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully. Moreover, the Exchange believes that products such as NLS Plus can enhance order flow by providing more widespread distribution of information about transactions in real time, thereby encouraging wider participation in the market by investors with access to the internet or television. Conversely, the value of such products to distributors and investors decreases if order flow falls, because the products contain less content.
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. The Exchange pays rebates to attract orders, charges relatively low prices for market information and charges relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower liquidity rebates to attract orders, setting relatively low prices for accessing posted liquidity, and setting relatively high prices for market information. Still others may provide most data free of charge and rely exclusively on transaction fees to recover their costs. Finally, some platforms may incentivize use by providing opportunities for equity ownership, which may allow them to charge lower direct fees for executions and data.
In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering. Such regulation is unnecessary because an “excessive” price for one of the joint products will ultimately have to be reflected in lower prices for other products sold by the firm, or otherwise the firm will experience a loss in the volume of its sales that will be adverse to its overall profitability. In other words, an increase in the price of data will ultimately have to be accompanied by a decrease in the cost of executions, or the volume of both data and executions will fall.
The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including eleven SRO markets, as well as internalizing BDs and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated TRFs compete to attract internalized transaction reports. It is common for BDs to further and exploit this competition by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products.
The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including NASDAQ, NYSE, NYSE MKT, NYSE Arca, and BATS/Direct Edge.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple BDs' production of proprietary data products. The potential sources of proprietary products are virtually limitless. Notably, the potential sources of data include the BDs that submit trade reports to TRFs and that have the ability to consolidate and distribute their data without the involvement of FINRA or an exchange-operated TRF.
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and NYSE Arca did before registering as exchanges by publishing proprietary book data on the internet. Second, because a single order or transaction report can appear in a core data product, an SRO proprietary product, and/or a non-SRO proprietary product, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace. Indeed, in the case of NLS Plus, the data provided through that product appears both in (i) real-time core data products offered by the SIPs for a fee, (ii) free SIP data products with a 15-minute time delay, and (iii) individual exchange data products, and finds a close substitute in last-sale products of competing venues.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TracECN, BATS Trading and BATS/Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While BDs have previously published their proprietary data individually, Regulation NMS encourages market data vendors and BDs to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg and Thomson Reuters. In Europe, Cinnober aggregates and disseminates data from over 40 brokers and multilateral trading facilities.
In the case of TRFs, the rapid entry of several exchanges into this space in 2006-2007 following the development and Commission approval of the TRF structure demonstrates the contestability of this aspect of the market.
Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products that are a subset of the consolidated data stream. First, the consolidated data is widely available in real-time at $1 per month for non-professional users. Second, consolidated data is also available at no cost with a 15- or 20- minute delay. Because consolidated data contains marketwide information, it effectively places a cap on the fees assessed for proprietary data (such as last sale data) that is simply a subset of the consolidated data. The mere availability of low-cost or free consolidated data provides a powerful form of pricing discipline for proprietary data products that contain data elements that are a subset of the consolidated data, by highlighting the optional nature of proprietary products.
In this environment, a super-competitive increase in the fees charged for either transactions or data has the potential to impair revenues from both products. “No one disputes that competition for order flow is `fierce'.”
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-BX-2015-054 and should be submitted on or before October 1, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to Section 3 of NYSE Arca Equities Rule 8 (Trading of Certain Equity Derivatives) to extend the effectiveness of the ETP Incentive Program for additional one-year pilot period, ending September 4, 2016. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Section 3 of NYSE Arca Equities Rule 8 (Trading of Certain Equity Derivatives) to extend the effectiveness of the ETP Incentive Program
The ETP Incentive Program is a pilot program designed to incentivize quoting and trading in ETPs and to add competition among existing qualified Market Makers.
The Exchange proposes to extend the current operation of the ETP Incentive Program for an additional year to allow the Commission, the Exchange, LMMs, and issuers to further assess the impact of such program before proposing to make it available to other securities and implementing the programs on a permanent basis.
Prior to the end of the pilot period ending September 4, 2016, the Exchange proposes to post a report relating to the ETP Incentive Program (the “Assessment Report”) on its Web site five months before the end of the pilot period or at the time it files to terminate the pilot, whichever comes first. The proposed Assessment Report would list the program objectives that are the focus of the pilot and, for each, provide (a) a statistical analysis that includes evidence that is sufficient to inform a reader about whether the program has met those objectives during the pilot period, along with (b) a narrative explanation of whether and how the evidence indicates the pilot has met the objective, including both strengths and weaknesses of the evidence in this regard. The Assessment Report also would include a discussion of (a) the procedures used in selecting any samples that are used in constructing tables or statistics for inclusion in the Assessment Report, (b) the definitions of any variables and statistics reported in the tables, including test statistics, (c) the statistical significance levels of any test statistics and (d) other statistical or qualitative information that may enhance the usefulness of the Assessment Report as a basis for evaluating the performance of the program. The Assessment Report would present statistics on product performance relative to the performance of comparable or other suitable benchmark products (including test statistics that permit the reader to evaluate the statistical significance of any differences reported or discussed in the report), along with information on the procedures that were used to identify those comparable or benchmark products, the characteristics of each comparable or benchmark products, the characteristics of each product that is the focus of the pilot, the procedures used in selecting the time horizon of the sample and the sensitivity of reported statistics to changes in the time horizon of the sample.
This filing is not otherwise intended to address any other issues and the Exchange is not aware of any problems that Equity Trading Permit Holders or issuers would have in complying with the monthly selection provision [sic] or the proposed extension of the pilot program.
The proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the ETP Incentive Program is designed to enhance the market quality for ETPs by incentivizing Market Makers to take LMM assignments in certain lower volume ETPs by offering an alternative fee structure for such LMMs that would be funded from the Exchange's general revenues. The ETP Incentive Program is designed to improve the quality of market for lower-volume ETPs, thereby incentivizing them to list on the Exchange. Moreover, as described in the ETP Incentive Program Release, the Exchange believes that the ETP Incentive Program, which is entirely voluntary, encourages competition among markets for issuers' listings and among Market Makers for LMM assignments.
The Exchange believes that, by providing additional time for issuers to participate in the ETP Incentive Program, through an extension of the pilot period until September 4, 2016, the ETP Incentive Program would continue to provide an opportunity for rewarding competitive liquidity-providing LMMs, with associated requirements for quoting by LMMs at the National Best Bid or National Best Offer. The ETP Incentive Program, therefore, has the potential to enhance competition among liquidity providers and thereby improve execution quality on the Exchange. An extension of such pilot period will permit additional time for the Commission, the Exchange,
The Exchange will continue to monitor the efficacy of the ETP Incentive Program during the extended pilot period. Prior to the end of the pilot period ending September 4, 2016, the Exchange proposes to post an Assessment Report on its Web site five months before the end of the pilot period or at the time it files to terminate the pilot, whichever comes first. The proposed Assessment Report would list the program objectives that are the focus of the pilot as well as additional information described above.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The proposed extension to the pilot period for the ETP Incentive Program is not designed to address any competitive issues but rather to program [sic] additional time for the Commission, the Exchange, LMMs and issuers to assess the impact of such program.
No written comments were solicited or received with respect to the proposed rule change.
Because the 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 prior to 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder.
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of the filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange requests that the Commission waive the 30-day operative delay to allow the ETP Incentive Program to continue without interruption after September 4, 2015. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of NEW YORK dated 08/20/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14434 B and for economic injury is 14435 0.
The States which received an EIDL Declaration # are New York, Pennsylvania.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for the State of Kentucky (FEMA—4239—DR), dated 08/12/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the Commonwealth of Kentucky, dated 08/12/2015 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a notice of an Economic Injury Disaster Loan (EIDL) declaration for the State of Ohio, dated 08/20/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's EIDL declaration, applications for economic injury disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for economic injury is 144360
The State which received an EIDL Declaration # is OHIO.
U.S. Small Business Administration (SBA).
Notice of open Federal Advisory Committee meetings.
The SBA is issuing this notice to announce the location, date, time and agenda for the September meeting of the National Small Business Development Center (SBDC) Advisory Board.
The meetings will be held September 10, 2015 at 8:00 a.m. PDT.
This meeting is accessible via conference call.
Pursuant to section 10(a) of the Federal Advisory Committee Act (5 U.S.C. Appendix 2), SBA announces the meetings of the National SBDC Advisory Board. This Board provides advice and counsel to the SBA Administrator and Associate Administrator for Small Business Development Centers.
The purpose of these meetings is to discuss following issues pertaining to the SBDC Advisory Board:
The meeting is open to the public however advance notice of attendance is requested. Anyone wishing to be a listening participant must contact Monika Nixon by fax or email. Her contact information is Monika Nixon, Program Specialist, 409 Third Street SW., Washington, DC 20416, Phone, 202-205-7310, Fax 202-481-5624, email,
Additionally, if you need accommodations because of a disability or require additional information, please contact Monika Nixon at the information above.
U.S. Small Business Administration.
Notice
This is a notice of an Administrative declaration of a disaster for the State of ALASKA dated 08/26/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14441 5 and for economic injury is 14442 0.
The State which received an EIDL Declaration # is ALASKA.
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Abu 'Ubaydah Yusuf al 'Anabi, also known as Yusuf Abu-`Ubaydah al-Anabi, also known as Abou Obeida Youssef al- Annabi, also known as Abu-Ubaydah Yusuf al-Inabi, also known as Mebrak Yazid, also known as Youcef Abu Obeida, also known as Mibrak Yazid, also known as Yousif Abu Obayda Yazid, also known as Yazid Mebrak, also known as Yazid Mabrak, also known as Yusuf Abu Ubaydah, also known as Abou Youcef, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized
This notice shall be published in the
The charter for the U.S. Department of State Bureau of Overseas Buildings Operations' (OBO) Industry Advisory Group has been renewed for an additional two-year period. The group's annual meeting is held in the Harry S. Truman Building at the U.S. Department of State, located at 2201 C Street NW., Washington, DC. Each meeting is devoted to an exchange of ideas between OBO's senior management and the group members on issues relating to property management; site acquisition; project planning; design and engineering; construction; facility maintenance; and building operations.
The meetings are generally open to the public and are subject to advance registration and provision of required security information. Procedures for registration are included with each meeting announcement, no later than fifteen business days before each meeting.
OBO's mission is to provide safe, secure and functional facilities that represent the U.S. government to the host nation and support our staff in the achievement of U.S. foreign policy objectives. These facilities represent American values and the best in American architecture, engineering, technology, sustainability, art, culture, and construction execution.
For further information, please contact Christine Foushee at
Office of the United States Trade Representative.
Notice of request for public comments.
The Office of the United States Trade Representative (USTR) requests written comments from the public identifying Internet and physical markets based outside the United States that should be included in the 2015 Notorious Markets List. In 2010, USTR began publishing the Notorious Markets List separately from the annual Special 301 Report as an “Out-of-Cycle Review.” The Notorious Markets List (List) identifies online and physical marketplaces that reportedly engage in and facilitate substantial copyright piracy and trademark counterfeiting.
The deadline for interested parties to submit written comments is 11:59 p.m. (EDT) on October 5, 2015. Interested parties who wish to provide rebuttal or other information to be considered during the review may do so through this docket until 11:59 p.m. (EDT) on October 12, 2015.
All written comments should be filed electronically via
Christine Peterson, Director for Intellectual Property and Innovation, Office of the United States Trade Representative, at
The United States is concerned with trademark counterfeiting and copyright piracy on a commercial scale because they cause significant financial losses for rights holders, legitimate businesses, and governments, undermine critical U.S. comparative advantages in innovation and creativity to the detriment of American workers, and potentially pose significant risks to consumer health and safety as well as privacy and security. The List identifies select online and physical marketplaces that reportedly engage in or facilitate substantial copyright piracy and trademark counterfeiting.
Beginning in 2006, USTR identified notorious markets in the annual Special 301 Report. In 2010, pursuant to the Administration's 2010 Joint Strategic Plan on Intellectual Property Enforcement, USTR announced that it would begin publishing the List as an Out-of-Cycle Review, separately from the annual Special 301 Report. USTR published the first such List in February 2011. USTR develops the annual List based upon public comments solicited through the
The United States encourages owners and operators of markets reportedly involved in piracy and counterfeiting to adopt business models that rely on the licensed distribution of legitimate content and products and to work with rights holders and enforcement officials to address infringement. We also encourage responsible government authorities to intensify their efforts to investigate reports of piracy and counterfeiting in such markets, and to pursue appropriate enforcement actions.
The List does not purport to reflect findings of legal violations, nor does it reflect the United States Government's analysis of the general intellectual property rights (IPR) protection and enforcement climate in the country or countries concerned. For an analysis of the IPR climate in particular countries, please refer to the annual Special 301 Report, published each spring no later than 30 days after USTR submits the National Trade Estimate to Congress.
USTR invites written comments from the public concerning examples of Internet and physical notorious markets, including foreign trade zones that allegedly facilitate substantial trademark counterfeiting and copyright piracy. Commenters are requested to support their nominations with the information listed in Section 2.b.
To receive full consideration, written comments should be as detailed as possible. Comments must clearly identify the market and the reason or reasons why the commenter considers that the market should be included in the Notorious Markets List.
Commenters are strongly encouraged to include the following information, as applicable:
• If a physical market, the market's name and location,
• if an online market, the domain name(s) past and present, available registration information, and name(s) and location(s) of the hosting provider(s);
• whether the physical or online market is owned, operated, or otherwise affiliated with a government entity;
• types of counterfeit or pirated products or services sold, traded, distributed, or otherwise made available in or at that market;
• volume of transactions in counterfeit or pirated goods or services or other indicia of a market's scope, scale, or reach or relative significance in a given geographic area or with respect to a category of goods or services; if an online market, information on the volume and type of Internet traffic associated with the Web site, including number of visitors, number of page views, average time spent on the site by visitors, estimate of the number of infringing items sold or traded and number of files streamed, shared, seeded, leeched, downloaded, uploaded, or otherwise distributed or reproduced, and global or country popularity rating (
• if an online market, revenue sources such as sales, subscriptions, donations, upload incentives or advertising and the methods by which that revenue is collected;
• estimates of economic harm to the rights holder resulting from the piracy or counterfeiting and a description of the methodology used to calculate the harm;
• whether the goods or services sold, traded, distributed, or made available pose a risk to public health or safety;
• any known contractual, civil, administrative, or criminal enforcement activity against the market and the effectiveness of that enforcement activity;
• additional actions taken by the market owners or operators to remove, limit or discourage the availability of counterfeit or pirated goods or services, including removing or disabling access to such goods or services, issuing and enforcing guidelines prohibiting the posting of such goods or services, or cooperating in enforcement efforts; and
• any additional information relevant to the review.
Comments must be in English. To ensure the timely receipt and consideration of comments, USTR strongly encourages commenters to submit comments electronically, using the
The
A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. In the document, confidential business information must clearly be designated as such; the submission must be marked “BUSINESS CONFIDENTIAL” on the cover page and each succeeding page, and the submission should clearly indicate, via brackets, highlighting, or other means, the specific information that is business confidential. Additionally, the submitter should type “Business Confidential 2015 Out-of-Cycle Review of Notorious Markets” in the “Type Comment” field. Anyone submitting a comment containing business confidential information must also submit, as a separate submission, a non-business confidential version of the submission, indicating where the business confidential information has been redacted. The file names of both documents should reflect their status—“BC” for the business confidential version and “P” for the public version. The non-business confidential version will be placed in the docket at
As noted, USTR strongly urges commenters to submit comments through
Comments received will be placed in the docket and open to public inspection pursuant to 15 CFR 2006.13, except business confidential information exempt from public inspection in accordance with 15 CFR 2006.15. Comments may be viewed free of charge by visiting
Federal Aviation Administration, DOT.
Notice.
The Federal Aviation Administration (FAA) announces its determination that the Noise Exposure Maps submitted by Memphis-Shelby County Airport Authority for Memphis International Airport under the provisions of 49 U.S.C. 47501
The effective date of the FAA's determination on the noise exposure maps is September 1, 2015.
Phillip J. Braden, Federal Aviation Administration, Memphis Airports District Office, 2600 Thousand Oaks Blvd., Suite 2250, Memphis, Tennessee 38118, 901-322-8181.
This notice announces that the FAA finds that the Noise Exposure Maps submitted for Memphis International Airport are in compliance with applicable requirements of Title 14 Code of Federal Regulations (CFR) Part 150, effective September 1, 2015. Under 49 U.S.C. 47503 of the Aviation Safety and Noise Abatement Act (the Act), an airport operator may submit to the FAA Noise Exposure Maps which meet applicable regulations and which depict noncompatible land uses as of the date of submission of such maps, a description of projected aircraft operations, and the ways in which such operations will affect such maps. The Act requires such maps to be developed in consultation with interested and affected parties in the local community, government agencies, and persons using the airport. An airport operator who has submitted Noise Exposure Maps that are found by FAA to be in compliance with the requirements of 14 CFR part 150, promulgated pursuant to the Act, may submit a Noise Compatibility Program for FAA approval which sets forth the measures the airport operator has taken or proposes to take to reduce existing noncompatible uses and prevent the introduction of additional noncompatible uses.
The FAA has completed its review of the Noise Exposure Maps and accompanying documentation submitted by Memphis-Shelby County Airport Authority. The documentation that constitutes the “Noise Exposure Maps” as defined in Section 150.7 of 14 CFR part 150 includes: ” Figure 2.1, Study Area Boundaries And Jurisdictions; Figure 2.2, Land Use In Memphis And Shelby County; Figure 2.3, City of Southhaven Existing Land Use; Figure 2.4, City of Southhaven Noise Abatement Zone; Figure 2.5, City of Southhaven Future Land Use Plan; Figure 2.6, City of Southaven Proposed Land Use For Area 2; Figure 2.7, City of Horn Lake Proposed Land Use Map; Figure 2.8, Desoto County Existing Land Use Map; Figure 2.9, Desoto County Future Land Use Map; Figure 2.10, Noise Sensitive Sites; Figure 2.11, Mitigated Properties; Figure 3.1, Vicinity Map; Figure 3.2, Airport Diagram; Figure 3.3, Memphis Airspace; Figure 3.4, Daytime/Nightime Distribution By Aircraft Type; Figure 3.5, Overall Runway Utilization; Figure 3.6, North/East Flow Departures; Figure 3.7, North/East Arrivals; Figure 3.8, South/West Flow Departures; Figure 3.9, South/West Flow Arrivals; Figure 3.10, Military Flight Tracks; Figure 3.11, Helicopter Flight Tracks; Figure 3.12, Run-Up Locations; Figure 3.13 Protected Areas and Departure Tracks; Figure 4.1, Noise Monitoring Locations; Figure 4.2, 2013 Existing Contour Noise Exposure Map; Figure 4.3, Existing Condition NEM With Noise-Sensitive Sites; Figure 4.4, 2013 Existing Condition NEM With Mitigated Properties; Figure 4.5, 2013 Existing Condition NEM With Noncompatible Land Uses; Figure 5.1, Run-Up Locations; Figure 5.2, North/East Flow Flight Tracks; Figure 5.3, South/West Flow Flight Tracks; Figure 5.4, 2020 Future Condition Noise Exposure Map; Figure 5.5, Proposed Fedex Run-Up Location Noise Impacts; Figure 5.6, 2020 Future Condition NEM With Noise-Sensitive Sites; Figure 5.7, 2020 Future Condition NEM With Mitigated Properties; Figure 5.8, 2020 Future Condition NEM With Noncompatible Land Uses. The FAA has determined that these Noise Exposure Maps and accompanying documentation are in compliance with applicable requirements. This determination is effective on September 1, 2015.
FAA's determination on the airport operator's Noise Exposure Maps is limited to a finding that the maps were developed in accordance with the procedures contained in Appendix A of 14 CFR part 150. Such determination does not constitute approval of the airport operator's data, information or plans, or a commitment to approve a Noise Compatibility Program or to fund the implementation of that Program. If questions arise concerning the precise relationship of specific properties to noise exposure contours depicted on a Noise Exposure Map submitted under Section 47503 of the Act, it should be noted that the FAA is not involved in any way in determining the relative locations of specific properties with regard to the depicted noise exposure contours, or in interpreting the Noise Exposure Maps to resolve questions concerning, for example, which properties should be covered by the provisions of Section 47506 of the Act. These functions are inseparable from the ultimate land use control and planning responsibilities of local government. These local responsibilities are not changed in any way under 14 CFR part 150 or through FAA's review of Noise Exposure Maps. Therefore, the responsibility for the detailed overlaying of noise exposure contours onto the map depicting properties on the surface rests exclusively with the airport operator that submitted those maps, or with those public agencies and planning agencies with which consultation is required under Section 47503 of the Act. The FAA has relied on the certification by the airport operator, under Section 150.21 of 14 CFR part 150, that the statutorily required consultation has been accomplished.
Copies of the full Noise Exposure Maps documentation and of the FAA's evaluation of the maps are available for examination at the following locations: Federal Aviation Administration, Memphis Airports District Office, 2600 Thousand Oaks Boulevard, Suite 2250, Memphis, Tennessee 38118.
Questions may be directed to the individual named above under the heading,
Federal Highway Administration (FHWA); DOT.
Notice of deadline for submitting comments.
This notice announces a deadline for submitting comments to the U.S. Department of Transportation (DOT) for consideration as part of the Moving Ahead for Progress in the 21st Century Act (MAP-21) Comprehensive Truck Size and Weight Limits Study Report to Congress. On June 5, 2015, DOT released for public comment and peer review the technical results of a comprehensive study of certain safety, infrastructure, and efficiency issues surrounding the Federal truck size and weight limits and the potential impacts of changing those limits. The DOT is now preparing a Report to Congress to conclude this study.
Comments must be received on or before October 13, 2015 to receive full consideration by DOT with respect to the MAP-21 Comprehensive Truck Size and Weight Limits Study Report to Congress. The public docket will remain
Comments on the Comprehensive Truck Size and Weight Limits Study may be submitted and viewed at Docket Number FHWA-2014-0035. The Web address is:
Email
The MAP-21 (Pub. L. 112-141) requires DOT to conduct a Comprehensive Truck Size and Weight Limits Study (MAP-21 sec. 32801) addressing differences in safety risks, infrastructure impacts, and the effect on levels of enforcement between trucks operating at or within Federal truck size and weight limits and trucks legally operating in excess of Federal limits; comparing and contrasting the potential safety and infrastructure impacts of alternative configurations (including configurations that exceed current Federal truck size and weight limits) to the current Federal truck size and weight law and regulations; and, estimating the effects of freight diversion due to these alternative configurations. On June 5, 2015, DOT released for public comment and peer review the technical results of this comprehensive study. The DOT is now preparing a Report to Congress. Additional technical finding, presentations, and related documents can be found on FHWA's Truck Size and Weight Web site; at
The DOT invites comments by all those interested in the MAP-21 Comprehensive Truck Size and Weight Limits Study. Comments on the Comprehensive Truck Size and Weight Limits Study may be submitted and viewed at Docket Number FHWA-2014-0035. The Web address is:
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of Intent to prepare an environmental impact statement.
The FHWA is issuing this notice to advise the public that an environmental impact statement (EIS) will be prepared for a proposed highway project in Cowlitz County, Washington.
Liana Liu, Area Engineer, Federal Highway Administration, 711 South Capitol Way, Suite 501, Olympia, Washington 98501; telephone: (360) 753-9553; email:
The FHWA, in cooperation with WSDOT and Cowlitz County, will prepare an EIS on the Industrial Way/Oregon Way Intersection Project to provide improvements at the intersection of State Route (SR) 432 and SR 433 to reduce congestion, increase freight mobility, and improve safety. Improvements to the intersection are considered necessary to meet forecasted long term vehicular traffic growth.
Preliminary alternatives under consideration include: (1) Taking no action; (2) raising the intersection to completely separate highway traffic from train traffic; and (3) making at-grade highway improvements; (4) a combination of raising the highway intersection while retaining some roadway at-grade access.
The FHWA along with WSDOT and Cowlitz County are holding a public scoping meeting on September 17, 2015, from 5:00 p.m. to 7:00 p.m. at the Cowlitz PUD Auditorium in Longview, Washington to solicit public comments regarding scope of issues to be addressed in the EIS. The public were notified of these meetings on September 4, 2015 in a flyer mailed to interested parties and residents in the vicinity of the project as well as published in a legal notice in The Columbian and The Daily News. The meeting will use an open-house format and will begin with a presentation to provide an overview of the project. Exhibits, maps, and other pertinent information about this project will be displayed. Staff will be present to answer questions as appropriate and as time permits.
Agencies, Tribes, and the public are encouraged to submit comments on the purpose and need and preliminary range of alternatives during the scoping period. Comments must be received by October 12, 2015, to be included in the formal scoping record. To ensure that the full range of issues related to this proposed action is addressed, and all the significant issues identified, comments and suggestions are invited from interested parties during the scoping period. Comments concerning this proposal will be accepted at the public meeting or can be sent by mail to: Claude Sakr, Project Manager, Cowlitz County Public Works, 1600 13th Avenue South, Kelso, WA 98626, or by email to:
Federal Highway Administration (FHWA), Department of Transportation.
Notice to rescind a Notice of Intent for an Environmental Impact Statement.
A Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS) was published in the
Alan Hansen, Team Leader, Planning, Environment, Air Quality, and Realty, Federal Highway Administration, 4000 North Central Avenue, Suite 1500, Phoenix, AZ 85012-3500, Telephone: (602) 382-8964, Email:
Ammon Heier, Area Engineer, Federal Highway Administration, 4000 North Central Avenue, Suite 1500, Phoenix, AZ 85012-3500, Telephone: (602) 382-8983, Email:
The FHWA Arizona Division Office's normal business hours are 8 a.m. to 5 p.m. (Mountain Standard Time).
On June 1, 2007, the FHWA, in cooperation with ADOT, issued an NOI titled: Environmental Impact Statement: Mohave County, AZ” (
A No-Build Alternative and at least two different alignments for potential relocation and development of the highway as a limited access facility located east of the existing SR 95 highway were under consideration. The No-Build Alternative served as the baseline for the analysis conducted under the National Environmental Policy Act.
On December 23, 2013, FHWA revised the NOI to announce that FHWA and the project sponsor, ADOT, intended to use a tiered process (as provided for in 40 Code of Federal Regulations 1508.28 and in accordance with FHWA guidance) in the completion of the environmental study to facilitate project decision-making. A Tier 1 EIS was initiated to focus on the evaluation of corridors rather than alignments because sufficient funding to implement, operate, and maintain the proposed project had not yet been committed in the fiscally-constrained State Transportation Improvement Program.
The State's limited resources combined with the fact that no improvements can be budgeted in the foreseeable future does not justify continuing to study improvements to a corridor that cannot be implemented when the study is eventually completed. As such, the preparation of the EIS for the realignment of SR 95: I-40 to SR 68 is being terminated. Any future transportation improvements or realignment of SR 95 will be determined and prioritized through ADOT's Long-Range Transportation Plan and 5-Year Transportation Facilities Construction Program, and any future actions will progress under a separate environmental review process, in accordance with all applicable laws and regulations.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that Daimler Trucks North America (Daimler) has requested an exemption for one commercial motor vehicle (CMV) driver, Michael Seitter, from the Federal requirement to hold a commercial driver's license (CDL) issued by one of the States. This project engineer holds a valid German CDL and wants to test-drive Daimler vehicles on U.S. roads to better understand product requirements for these systems in “real world” environments, and verify results. Daimler believes the requirements for a German CDL ensure that holders of the license will likely achieve a level of safety equal to or greater than that of drivers who hold a U.S. State-issued CDL.
Comments must be received on or before October 13, 2015.
You may submit comments identified by Federal Docket Management System Number FMCSA-2012-0032 by any of the following methods:
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Mrs. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 202-366-4325. Email:
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Since 2012, FMCSA has granted five Daimler drivers similar exemptions [May 25, 2012 (77 FR 31422); July 22, 2014 (79 FR 42626); August 29, 2014 (79 FR 516910); March 27, 2015 (80 FR 16511)]. Each of these drivers held a valid German commercial license but lacked the U.S. residency required to obtain a CDL. FMCSA has concluded that the process for obtaining a German commercial license is comparable to or as effective as the U.S. CDL requirements and ensures that these drivers will likely achieve a level of safety equivalent to or greater than the level that would be obtained in the absence of the exemption.
Daimler has applied for an exemption for one of its engineers from 49 CFR 383.23, which prescribes licensing requirements for drivers operating CMVs in interstate or intrastate commerce. This driver, Michael Seitter, holds a valid German CDL but is unable to obtain a CDL in any of the U.S. States due to residency requirements. A copy of the application is in Docket No. FMCSA-2012-0032.
The exemption would allow Mr. Seitter to operate CMVs in interstate or intrastate commerce to support Daimler field tests designed to meet future vehicle safety and environmental requirements and to develop improved safety and emission technologies. According to Daimler, Mr. Seitter will typically drive for no more than 6 hours per day for 2 consecutive days, and 10 percent of the test driving will be on two-lane State highways, while 90 percent will be on interstate highways. The driving will consist of no more than 200 miles per day, for a total of 400 miles during a two-day period on a quarterly basis. He will in all cases be accompanied by a holder of a U.S. CDL who is familiar with the routes to be traveled. Daimler requests that the exemption cover a two-year period.
FMCSA has previously determined that the process for obtaining a German commercial license is comparable to the Federal requirements of 49 CFR part 383 and adequately assesses a driver's ability to operate CMVs in the United States.
In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA requests public comment on Daimler's application for an exemption from the CDL requirements of 49 CFR 383.23. The Agency will consider all comments received by close of business on October 13, 2015. Comments will be available for examination in the docket at the location listed under the
In accordance with part 235 of Title 49 Code of Federal Regulations (CFR) and 49 U.S.C. 20502(a), this document provides the public notice that by a document dated July 7, 2015, Norfolk Southern Corporation (NS) petitioned the Federal Railroad Administration (FRA) seeking approval for the discontinuance or modification of a signal system. FRA assigned the petition Docket Number FRA-2015-0083.
NS seeks approval of the discontinuance of Control Point (CP) Raitt on the Buchanan Branch, Milepost (MP) D-16.3, at Weller, VA. All existing signals will be removed and the existing power-operated switch will be converted to a hand-operated switch. Current operating rules in the area will not change.
The reason given for the proposed discontinuance is that it is no longer needed for current railroad operations.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
In accordance with part 211 of Title 49 of the Code of Federal Regulations (CFR), this document provides the public notice that by a document dated July 27, 2015, the Norfolk Southern Corporation (NS) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 236, Applicability, minimum requirements, and penalties. FRA assigned the petition Docket Number FRA-2015-0082.
This request is for relief from the mechanical locking requirements of 49 CFR 236.312,
The design of the CP 509 bridge dates to its commissioning in 1911 and features circuitry and locking mechanisms installed in 1930. The design called for surface detection of the rails and circuit controllers on all four corners of the movable span to detect when the movable span is properly seated. Unlike the test requirements of 49 CFR 236.312, which state that the locking member must be within one inch of proper alignment before a permissive signal governing movements can be lined, NS adjusts the span circuit controllers to three-eighths of an inch before a permissive signal can be lined. The regulation calls for a single point of mechanical locking on each end of the movable span, but the NS design has four points of detection to ensure the entire movable span is properly seated.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Surface Transportation Board, DOT.
Notice of decision.
On September 8, 2015, the Board served a decision announcing the 2014 revenue adequacy determinations for the Nation's Class I railroads. Four carriers, BNSF Railway Company, Grand Trunk Corporation, Norfolk Southern Combined Railroad Subsidiaries, and Union Pacific Railroad Company, were found to be revenue adequate.
Pedro Ramirez, (202) 245-0333.
The Board is required to make an annual determination of railroad revenue adequacy. A railroad is considered revenue adequate under 49 U.S.C. 10704(a) if it achieves a rate of return on net investment equal to at least the current cost of capital for the railroad industry for 2014, determined to be 10.65% in
The decision in this proceeding is posted on the Board's Web site at
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Miller.
Animal and Plant Health Inspection Service, USDA.
Proposed rule.
We are proposing to amend the scrapie regulations by changing the risk groups and categories established for individual animals and for flocks, increasing the use of genetic testing as a means of assigning risk levels to animals, reducing movement restrictions for animals found to be genetically less susceptible or resistant to scrapie, and simplifying, reducing, or removing certain recordkeeping requirements. We also propose to provide designated scrapie epidemiologists with more alternatives and flexibility when testing animals in order to determine flock designations under the regulations. We propose to change the definition of high-risk animal, which will change the types of animals eligible for indemnity, and to pay higher indemnity for certain pregnant ewes and early maturing ewes. The proposed changes would also make the identification and recordkeeping requirements for goat owners consistent with those for sheep owners. These changes would affect sheep and goat producers, persons who handle sheep and goats in interstate commerce, and State governments.
We will consider all comments that we receive on or before November 9, 2015.
You may submit comments by either of the following methods:
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Supporting documents and any comments we receive on this docket may be viewed at
Dr. Diane Sutton, National Scrapie Program Coordinator, Sheep, Goat, Cervid & Equine Health Center, Surveillance, Preparedness and Response Services, VS, APHIS, 4700 River Road, Unit 43, Riverdale, MD 20737-1235; (301) 851-3509.
Scrapie is a member of a class of diseases called transmissible spongiform encephalopathies (TSEs). Scrapie is a degenerative and eventually fatal disease affecting the central nervous systems of sheep and goats. To control the spread of scrapie within the United States, the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture (USDA), administers regulations at 9 CFR parts 54 and 79 (referred to below as the scrapie regulations), which respectively describe program procedures and restrict the interstate movement of certain sheep and goats. APHIS also administers the voluntary Scrapie Flock Certification Program (the SFCP),
The last major revision of the scrapie regulations occurred on August 21, 2001, when we published in the
The changes we are proposing in this document are based on our evaluation of input that we have received from the regulated industry and the States since the implementation of the August 2001 final rule. A number of regulatory changes have been suggested, including changes to the risk groups and categories established for individual animals and flocks, increased use of genetic testing as a means of assigning risk levels to flocks and animals, reduced movement restrictions for animals found to be genetically less susceptible or resistant to scrapie, and simplification and reduction of recordkeeping requirements. States have also requested that we provide designated scrapie epidemiologists (DSEs) with more alternatives and flexibility in determining how many and which animals in a flock must be tested in order to determine the flock's status under the regulations. We are also proposing changes to the procedures for paying indemnity for animals, based on input from industry on how to equitably decide which animals should qualify and how payment amounts should be set. This proposed rule addresses all of these areas.
The scrapie regulations are quite complex, and understanding them is easier when a few overarching principles are kept in mind. One of these principles is
This proposal would improve the ability of APHIS and States to trace animals. It would do this by changing requirements for records needed to trace animals, and by adding provisions to link official individual animal identification applied by persons other than the flock owner to the flock of origin in the National Scrapie Database rather than just the person who applied the official identification. The current regulations address trace forward primarily in § 54.8(f) regarding the responsibility of flock owners to disclose records to APHIS representatives or State representatives for the purpose of tracing animals, in § 79.2(b) regarding the responsibility of persons applying eartags to maintain appropriate records that permit traceback of animals, and in § 79.6(a)(5) regarding State responsibilities to do epidemiologic investigations of source and infected flocks that include tracing animals. The proposed rule would ensure that better records are available for tracing animals, by adding requirements in new § 54.8(b),
In addition to improving the utility of records for tracing animals, the proposed rule would reduce some recordkeeping, primarily by eliminating the requirement in many cases to read and record individual identification that was applied before a new owner or shipper receives the animal. Further, by making the regulations easier to understand we hope to eliminate cases where owners and markets unnecessarily keep records or apply unneeded identification or fail to do so when required through lack of understanding. Also, in cases where genetic testing allows us to determine that all exposed animals in a flock are genetically resistant, use of genetic testing would allow some flocks to avoid being placed under a flock plan or post-exposure management and monitoring plan (PEMMP), thus avoiding the substantial recordkeeping requirements for such flocks imposed by § 54.8.
The proposal to enhance use of the National Scrapie Database would also aid trace back and trace forward. Proposed § 54.11 would ensure official test results are recorded in the database and proposed § 79.2(b) addresses linking animal identification numbers for sheep and goats in interstate commerce to flock of origin in the database.
A third guiding principle in both the current and proposed regulations is
Those principles are all important factors in the design of the current scrapie regulations. Many of the changes we are proposing in this document incorporate an additional guiding principle,
The Scrapie Ovine Slaughter Surveillance study
Beginning April 1, 2002, and continuing through March 31, 2003, the SOSS study collected samples from 12,508 mature sheep at 22 slaughter plants and 1 large livestock market. Samples from 33 animals tested positive for scrapie. The overall weighted national prevalence of scrapie in mature cull sheep was estimated to be 0.20 percent.
To evaluate the potential relationship between scrapie susceptibility and certain genotypes, approximately one-fourth of the negative samples (
Susceptibility to scrapie has been linked to certain codons in the sheep genotype. A codon is a set of three nucleotides that encode for a specific amino acid. Codons that encode for amino acids at positions 136 and 171 in the prion protein (PrP) have been associated with scrapie susceptibility in sheep in the United States. However, codon 171 is thought to be the major determinant of scrapie susceptibility in the United States.
Codon values are stated as the diploid PrP genotype for the encoded amino acids. The relevant amino acid single-letter abbreviations are Q (glutamine) and R (arginine) for codon 171, and A (alanine) and V (valine) for codon 136. So, for example, a sheep genotype that
The following is a simplified summary of the current knowledge of how genotype affects susceptibility to scrapie. Two codons of the sheep genotype, codons 136 and 171, are especially important to scrapie susceptibility or resistance. In general, a glutamine (Q) at codon 171 of the PrP allele is associated with susceptibility to scrapie. Sheep with two alleles with Q at codon 171 (QQ) are markedly susceptible; sheep with only one (QR) are rarely susceptible. Sheep that have two alleles with arginine at codon 171 (RR) appear to be very resistant. No cases of classical scrapie have been reported in 171 (RR) sheep in the United States and are rare in other countries.
Codon 136 also has significant effects on scrapie susceptibility or resistance. There are at least two field strains of classical scrapie in the United States. When the strain to which a flock was exposed can be inferred, and the genotypes of sheep in the flock are known, this information can be used to depopulate only those exposed animals susceptible to the strain involved. The more prevalent strain, valine-independent scrapie, accounts for at least 93 percent of scrapie cases and affects sheep with either valine (V) or alanine (A) at codon 136, but only very rarely affects sheep that also have at least one allele with arginine (R) at codon 171.
The less common strain of classical scrapie in the United States, valine-associated scrapie, has only been reported in sheep with at least one allele with V at codon 136, and it is significantly more likely than the other strain to affect sheep with a single allele with R at codon 171, since it affects sheep that are AV at codon 136 and QR at codon 171.
An important observation about the genetic results of the SOSS study is that 100 percent of the scrapie-positive sheep were coded QQ for codon 171. Other scientific studies and subsequent data collected by USDA confirm that U.S. sheep that test positive for scrapie coded QQ or QH for codon 171 in more than 99 percent of the cases. As illustrated by the following tables adapted from the SOSS study, approximately 40 percent of sheep in the United States were coded QQ for codon 171.
The genotype of a sheep with respect to codons 136 and 171 can be represented by two pairs of letters; for example AA RR would indicate a sheep where both 136 codons are coded for alanine and both 171 codons are coded for arginine. This representation is used to discuss the scrapie susceptibility implications of different sheep genotypes.
QQ sheep (AA QQ, AV QQ, and VV QQ) are susceptible to the more common U.S. scrapie strain and, if infected, can transmit the disease to susceptible flock mates. AA QQ sheep appear to be resistant to the less common valine-associated strain which affects AV QQ, VV QQ, and AV QR sheep. All genotypes of sheep and goats appear to be susceptible to non-classical scrapie. The United States has had 14 cases of non-classical scrapie in sheep.
In contrast, AA RR sheep are nearly completely resistant to, and are unlikely to carry or transmit classical scrapie. Only two sheep with classical scrapie that were AA RR have been reported worldwide.
AA QR sheep are rarely susceptible to classical scrapie. In rare cases, AA QR sheep in Europe have become infected, and there have been two unconfirmed and three confirmed reports in AA QR U.S. sheep. It is unknown whether infected AA QR sheep can transmit the disease. The risk from exposed AA QR sheep is probably minor, since infected AA QR sheep are rare and it is less common for the scrapie prion protein to be found outside the brain of these sheep. However, AA QR sheep are susceptible to non-classical scrapie.
AV QR sheep are somewhat susceptible to the valine associated scrapie strain. As of June 30, 2015, 11 confirmed positive AV QR sheep have been identified in the United States. The risk from exposed AV QR sheep is probably small, since infected AV QR sheep are uncommon, making up less than 1 percent of the scrapie-positive
The observations discussed above, in conjunction with APHIS and State experience in conducting scrapie control pilot projects,
We would define genetically resistant sheep to include most sheep and sheep embryos with the RR genotype. The exception would be if a sheep with the RR genotype is ever epidemiologically linked to a scrapie-positive RR sheep or to a scrapie type that affects RR sheep. A genetically resistant sheep that was exposed to scrapie would be a genetically resistant exposed sheep. Genetically less susceptible sheep would include most sheep (or sheep embryos) with the AA QR or AV QR genotype. A low-risk exposed animal would be a sheep or goat deemed to present significantly lower risks than a typical exposed animal due to the nature of either the exposure or the animal. The exact definitions for these categories are discussed in more detail below. Flexibility has been written into these definitions to allow the Administrator to adjust the classification of animals based on the strain involved and the genotype of the animal as additional research becomes available.
Genetically susceptible animals would include all goats, any sheep with a genotype other than QR or RR (such as QQ, HH, QH, QK, KK or KH), and any sheep with an unknown or undetermined genotype (
In order to assign individual sheep to one of these genetic susceptibility categories, APHIS has established procedures to ensure that genotype tests conducted as part of the Scrapie Eradication Program are reliable. We propose to amend the definition of
(1) An accredited veterinarian;
(2) A State or APHIS representative; or
(3) The animal's owner or owner's agent, using a tamper-resistant sampling kit approved by APHIS for this purpose.”
The primary change from the previous definition is that new paragraph (3) would allow owners to collect samples for official genotype tests and to clarify that when a sample is submitted it must be accompanied by a properly completed official form. We believe this would make it more convenient and less expensive for owners to obtain genotype testing; however, it is also critical that the sample is from an animal that is officially identified and that the sample maintains its identity and its association with the correct animal throughout the process of collection and submission. We propose to stress that the form must be properly completed due to the significant percentage of forms submitted to approved laboratories that are incomplete or undecipherable. To protect against error and tampering, we propose to allow owners or owner agents
Note that in addition to approving tamper-resistant sampling kits, test methodologies, and laboratories that may perform tests, APHIS reserves the right to require confirmatory genotype
We propose to amend the regulations in several ways to provide for the use of the genotype information, and, with the resulting capability to classify exposed animals as genetically susceptible, genetically less susceptible, or genetically resistant, would be able to more precisely classify the risk that an individual exposed animal may spread scrapie. We would incorporate genetic susceptibility into the definitions of
Under the regulations, animals for which indemnity is paid must be destroyed. The current definition of
APHIS indemnified and destroyed 235 sheep and goats during the first 6 months of 2014 under the regulations, of which 133 were destroyed by slaughter. This change would therefore divert on average approximately 266 sheep and goats per year from slaughter channels; however, it is expected that as the program progresses the number of animals indemnified will decrease and thus the number of animals diverted will decrease. Postmortem testing of mature scrapie exposed sheep and goats in FY 2013 and FY 2014 resulted in 5.6 and 2.7 percent of the animals testing positive for scrapie, respectively. In FY 2014, a large scrapie source flock with a very low prevalence accounted for about half of the animals depopulated in FY 2014. If this flock is excluded, the percent of exposed animals that tested positive is approximately 4.8 percent. Therefore, this change would likely keep approximately 12 to 15 scrapie-positive animals from food or feed uses each year.
To accomplish this change, we propose to revise the definition of
In the following sections, we discuss in detail how genotype information would affect the regulations' definitions, movement restrictions, indemnity provisions, and other requirements.
We propose to make several changes to the definition of the term
The current definition of
To address these problems, we are developing a new category,
Creating the category of flock under investigation would leave the category of exposed flock to apply to only those flocks where there has been exposure or potential exposure that could not be adequately assessed, and/or the risks of exposure have not been sufficiently mitigated, so there is some significant continuing risk that a scrapie-positive animal might be detected in the flock. An exposed flock could be a flock under investigation whose owner declined to complete the genotyping or scrapie testing needed to complete the investigation, or declined to remove one or more genetically susceptible exposed animals or suspect animals identified during the investigation. Thus, the category of exposed flock would generally apply to flocks where the owner has decided to accept some level of continuing scrapie risk, rather than undertake the actions that would resolve the remaining risk.
Specifically, we propose to define these two categories as follows. A
An
We also propose to change the definition for
We would also add a new defined term,
We also propose to revise the definition of
We also propose to add definitions of several terms related to genetic susceptibility and resistance that appear in the defined term
We would define
• An exposed sheep or sheep embryo of genotype AA QR, unless it is epidemiologically linked to a scrapie-positive RR or AA QR sheep or to a scrapie type to which AA QR sheep are not less susceptible where Q represents any genotype other than R at codon 171; or
• An exposed sheep or sheep embryo of genotype AV QR, unless it is epidemiologically linked to a scrapie-positive RR or QR sheep, to a flock that the DSE has determined may be affected by valine associated scrapie (based on an evaluation of the genotypes of the scrapie-positive animals linked to the flock), or to another scrapie type to which AV QR sheep are not less susceptible where Q represents any genotype other than R at codon 171 and V represents any genotype other than A at codon 136; or
• An exposed sheep or sheep embryo of a genotype that has been exposed to a scrapie type to which the Administrator has determined that genotype is less susceptible but not resistant.”
We would define
We would define
We would define
• A genetically susceptible animal; or
• A sheep or sheep embryo of genotype AV QR that is epidemiologically linked to a scrapie-positive RR or QR sheep, to a flock that the DSE has determined may be affected by valine associated scrapie (based on an evaluation of the genotypes of the scrapie-positive animals linked to the flock), or to a scrapie type to which AV QR sheep are susceptible where Q represents any genotype other than R at codon 171 and V represents any genotype other than A at codon 136; or
• A sheep or sheep embryo of genotype AA QR that is epidemiologically linked to a scrapie-positive RR or AA QR sheep or to a scrapie type to which AA QR sheep are susceptible where Q represents any genotype other than R at codon 171; or
• A sheep or sheep embryo of genotype RR that is epidemiologically linked to a scrapie-positive RR sheep or to a scrapie type to which RR sheep are susceptible.”
We also propose to add the following definition of
We would define
• The positive animal that was the source of exposure was not born in the flock and did not lamb in the flock or in an enclosure where the exposed animal resided;
• The Administrator and State Veterinarian concur that the animal is unlikely to be infected due to factors such as, but not limited to, where the animal resided or the time period the animal resided in the flock;
• The exposed animal is male and was not born in an infected or source flock;
• The exposed animal is a castrated male;
• The exposed animal is an embryo of a genetically resistant exposed sheep or a genetically less susceptible exposed sheep unless placed in a recipient that was a genetically susceptible exposed animal; or
• The animal was exposed to a scrapie type and/or is of a genotype that the Administrator has determined poses low risk of transmission.”
We also propose to amend the definition of the term
The epidemiology and scrapie prevalence of the flock would also be considered in determining the risk level of genetically less susceptible sheep. We propose to amend the definition of
We also propose to amend the definition of
To support and clarify some of the changes discussed above, we propose to
The proposed definition of
We propose to amend this definition to provide uniformity between animal disease programs. The clarification is that all premises will have either a premises identification number created under the current definition's option (2) or a number issued by a State that is a nationally unique location identifier, which will identify that premises in the National Scrapie Database and related records. USDA and the States may also maintain secondary numbers created under option (1) to link historical premises numbers to the standardized program premises identification number in records and databases. Federal or State officials will generate a standardized program premises identification number both for existing premises in the National Scrapie Database and for any new premises.
We also propose to add a new provision to the definition of
We propose to make several changes to the descriptions in § 79.4 regarding the investigation procedures followed by officials who are authorized to designate or redesignate exposed animals, suspect animals, high-risk animals, exposed flocks, infected flocks, and source flocks. These proposed changes are to improve the clarity and practicality of the regulations.
We also propose to remove some repetitive language concerning investigation and testing from paragraph (a) of § 79.4. This language is no longer needed due to the new proposed definition for
In paragraph (b) of § 79.4, we propose to remove the detailed descriptions of the reclassification process and instead state that reclassification investigations will be conducted in accordance with procedures approved by the Administrator when evidence indicates that a previous designation can be changed.
We would provide the detailed reclassification processes to the public on the scrapie Web site at
As part of this change, we propose to reformat the reclassification processes described in current paragraph (b) as a chart instead of text, to make it easier to understand. We would also remove some repetitive language concerning investigation and testing from the current text in paragraph (b). The proposed chart of reclassification procedures, along with other materials this rule proposes to make available through the scrapie Web site rather than in the regulations, is available by contacting the person listed under
We propose to consolidate and simplify the recordkeeping requirements in the regulations. Currently, the description of these requirements is dispersed in several locations in the regulations, including the definition of
To aid clarity, we propose to consolidate and replace the existing recordkeeping language with two new paragraphs addressing recordkeeping requirements in § 79.2. We also propose to add three new paragraphs dealing with removal, loss, and replacement of official identification devices, and situations where use of more than one official eartag may be allowed. This language would be added to be consistent with APHIS official identification requirements in 9 CFR part 86. We would also change the heading of § 79.2 to read
The new paragraph (f) that addresses recordkeeping requirements for people who acquire or dispose of sheep and goats would continue to require, as current § 79.2(d) does, that these persons—whether or not the animals are required to be officially identified—maintain business records documenting the acquisition or disposal (such as yarding receipts, sale tickets, invoices, and waybills) for 5 years. We also propose to expand on the current § 79.2(d) requirement that such persons must keep “records relating to the transfer of ownership, shipment, or handling of the sheep or goats” by specifically stating that the records must include the following information:
• The number of animals purchased or sold including animals acquired or transferred without sale;
• The date of purchase, sale, or other transfer;
• The name and address of the person from whom the animals were purchased or otherwise acquired or to whom they were sold or otherwise transferred;
• The species, breed, and class of animal, such as replacement ewe lambs, slaughter lambs or kids, cull ewes, club lambs, bred ewes, etc. If breed is unknown, for sheep the face color or in the case of goats the type (milk, fiber, or meat) must be recorded instead;
• A copy of the brand inspection certificate for animals officially identified with brands or ear notches;
• A copy of any certificate or owner/hauler statement required for movement of the animals purchased, sold, or otherwise transferred; and
• If the flock of origin or the receiving flock is under a flock plan or PEMMP, any additional records required by the plan.
New paragraph (g) that addresses recordkeeping requirements for persons who apply official identification to animals would require such persons to maintain the following records:
• The flock identification number, the name and address of the person who currently owns the animals, and the name and address of the owner of the flock of origin if different;
• The name and address of the owner of the flock of birth, if known, for
• The date the animals were officially identified;
• The number of sheep and the number of goats identified;
• The breed and class of animals such as replacement ewe lambs, slaughter lambs or kids, cull ewes, club lambs, bred ewes, etc. If breed is unknown, for sheep the face color or in the case of goats the type (milk, fiber, or meat) must be recorded instead;
• The official identification numbers applied to animals by species or the GIN applied in the case of a group lot;
• Whether the animals were identified with “Slaughter Only” or “Meat” identification devices; and
• Any GIN with which the animal was previously identified.
Each person required to keep records under either of these paragraphs would have to maintain the records for at least 5 years, or longer if the Administrator requests it by written notice to the person, for purposes of any investigation or action involving the sheep or goats identified in the records. As in the current requirements, the person would have to make the records available for inspection and copying by any authorized USDA or State representative upon that representative's request and presentation of his or her official credentials.
New paragraph (h) in § 79.2 addresses removal or loss of official identification. The proposed requirements are consistent with parallel requirements in 9 CFR 86.4(d). Official identification is removed at slaughter, and this paragraph describes the responsibilities of slaughter plants to keep official identification correlated with carcasses through final inspection and procedures between APHIS and FSIS regarding collection of identification at the slaughter plants. This paragraph also describes procedures in the event of loss or destruction of official identification prior to slaughter.
New paragraph (i) addresses replacement of official identification devices for reasons other than loss, such as damage to the device or injury or infection of the animal that affects the device. The proposed requirements are consistent with parallel requirements in 9 CFR 86.4(e).
New paragraph (j) addresses use of more than one official eartag on a sheep or goat. The proposed requirements are consistent with parallel requirements in 9 CFR 86.4(c). We propose to prohibit the application of additional official eartags to a single animal unless warranted by a specific situation. This is because the use of multiple official eartags with multiple official identification numbers for a single animal can cause confusion and impede efforts to track the movements of that animal. However, we do propose to allow multiple eartags in situations where they would provide herd management advantages or where allowing only a single tag is impractical. We propose to allow multiple official eartags in the following situations:
• When the additional eartag bears the same official identification number as an existing one.
• In specific cases when the need to maintain the identity of an animal is intensified (
• An eartag with an animal identification number (AIN) beginning with the 840 prefix (either radio frequency identification or visual-only tag) may be applied to an animal that is already officially identified with another eartag. The person applying the AIN eartag must record the date the AIN tag is added and the official identification numbers of all official eartags on the animal and must maintain those records for 5 years.
• An official eartag that utilizes a flock identification number may be applied to a sheep or goat that is already officially identified with an official eartag if the animal has resided in the flock to which the flock identification number is assigned.
We also propose to make certain changes to the system for official animal identification in two sections, § 54.8 (retitled
• Prior to the point of first commingling with sheep or goats from any other flock of origin;
• Upon transfer of ownership of the sheep or goats;
• Upon unloading at a livestock facility or other premises that engages in interstate commerce of animals; or
• Prior to moving a sheep or goat from the premises on which it resides for any other type of movement.
We would provide an exemption from the requirement to officially identify animals before they leave their premises if they move, as part of a group lot, to a livestock facility approved in accordance with our regulations in 9 CFR 71.20 to handle the species and class of animal moved, provided that the facility has agreed to act as an agent for the owner to apply official identification. We would also exempt animals that are moved as part of a group lot to a slaughter plant listed in accordance with 9 CFR 71.21 or for managerial purposes between premises owned or leased by the same flock owner. We also propose to remove a provision in § 79.2(a) that expired on June 1, 2003, that allowed movement of certain animals that are not identified to their flock of birth.
Paragraph (a)(2) of § 79.2 lists approved identification methods. We are proposing to remove this list from the regulations and instead state in the regulations that sheep or goats must be identified and remain identified using a method approved by the Administrator. We would provide a list of approved identification methods on the scrapie Web site at
We are proposing this change because identification technologies are continually updated to take advantage of newly available technology and to meet industry needs. Maintaining a list of approved identification methods in the regulations requires rulemaking to update that list. Updating the list of
As part of this rulemaking, we are also soliciting comments on changes to the current list of approved identification methods in § 79.2. Copies of the list as we would establish it on the scrapie Web site are available by contacting the person listed under
Finally, we are proposing to move the current description of the process for approving new methods of identification in § 79.2(g) into paragraph (a)(2) and amend the current text of paragraph (g) and move it to a new paragraph (k) to reflect these changes. This paragraph indicates that written requests for approval of sheep or goat identification methods not listed in paragraph (a)(2) of § 79.2 should be sent to the National Scrapie Program Coordinator, Sheep, Goat, Cervid & Equine Health Center, Surveillance, Preparedness and Response Services, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737-1235. If the Administrator determines that the identification method will provide a means of tracing sheep and goats in interstate commerce, notice will be published in the
To be consistent with the other proposed changes we have discussed, we would replace the reference to paragraph (a)(2) in current paragraph (g) with a reference to the scrapie Web site, where the approved identification methods would be listed. We would also replace the reference to publishing a notice in the
With respect to responsibility for identifying animals, in § 79.2(a)(3) we propose to more clearly restate the current requirement that when an animal that is required to be identified is moved to a place where it will be put in the same enclosure with animals from a different flock of origin, the person who owns the animal, the person who transports or delivers that animal, and the person who accepts delivery of the animal are all responsible for ensuring that the animal is officially identified prior to commingling.
We are particularly seeking comment regarding the provisions in the regulations that allow some animals to be officially identified upon arrival at certain livestock facilities, rather than before leaving their premises, and that allow the identification to be applied by the livestock facility rather than the animals' owner. These provisions are found in § 79.2(a)(1)(ii) and § 79.2(a)(3) of the current regulations and appear in the regulatory text at the end of this proposed rule as § 79.2(a)(1)(ii) and § 79.3(a)(5). In both cases the livestock facility may apply the official identification if it has agreed to act as an agent for the owner to apply official identification, and has the necessary information and keeps the necessary records about the animals to correctly apply the identification, and does so before the animals are commingled with any other, unidentified animals at the facility. We seek comments on whether this provision is effective as written, or whether it should be eliminated (thereby making it a violation of the regulations to unload unidentified animals at an approved market) or amended,
In addition to the proposed changes affecting animal identification in § 54.8, we propose to make minor changes to paragraph § 54.8(e), which requires the owner of a flock under a flock plan or PEMMP to meet requirements, including but not limited to those listed in that paragraph, to monitor for scrapie and to prevent the recurrence or spread of scrapie in the flock. We propose to add that owners must report animals found dead and collect and submit test samples from them if an APHIS or State representative requests it. The regulations already assume owners will do this, and the requirement has appeared in the text of flock plans and PEMMPs, but we wish to add it to the regulations to ensure all owners are aware of it. We also propose to add that the owner of a flock under a flock plan or PEMMP must use genetically resistant rams if the DSE determines it is necessary to reduce the risk of the occurrence of scrapie in the flock. The use of such rams has become more common due to increased knowledge of sheep genetics, so we think it is worthwhile to add it to this paragraph as something that may be required in a flock.
We also propose to add a new paragraph (h) to § 54.8 discussing the types of animals that may be retained in a flock under a flock plan or PEMMP. This new paragraph would build on the changes discussed above that resulted from increased understanding of the genetics of scrapie resistance and the use of genetic testing as a means of assigning risk levels to animals. The result of this change would be that certain animals that previous flock plans would have removed from a flock may be allowed to remain in the flock. Proposed new paragraph (h) would read “The Administrator may allow high-risk animals that are not suspect animals to be permanently retained under restriction in the flock if they are not genetically susceptible animals or if they have tested `PrPsc not detected' on a live animal scrapie test approved for this purpose by the Administrator and are maintained in a manner that the Administrator determines minimizes the risk of scrapie transmission,
We also propose to add a statement to § 54.8(j), which describes the requirements for flock plans. As discussed above, we added a new definition for
The changes discussed above that would provide for the classification of animals based on their genetic susceptibility or resistance to scrapie would likely result in fewer animals being designated as high-risk animals. Most of the animals eligible for indemnity in accordance with § 54.3 are high-risk animals.
We also believe it is necessary to clarify what is meant by a statement in current § 54.3(b), “No indemnity will be paid to an owner if the owner assembled or increased his flock for the purpose of collecting or increasing indemnity.” Therefore, we propose several changes to § 54.3. First, we propose to clearly state that no indemnity will be paid for any animal, or the progeny of any animal, that has been moved or handled by the owner in violation of the requirements of 9 CFR chapter I. In line with this, we would also specifically state that no indemnity will be paid for an animal added to the premises while a flock is under investigation or while it is an infected or source flock other than for animals that are natural additions. We also propose that no indemnity will be paid for natural additions born more than 60 days after indemnity is offered in writing unless the Administrator makes a determination that the animals could not be removed within the allowed time as a result of conditions outside the control of the owner.
One current requirement of § 54.3 is that no indemnity shall be paid until the premises, including all structures, holding facilities, conveyances, and materials contaminated because of occupation or use by the depopulated animals, has been properly cleaned and disinfected. In enforcing this provision we have become aware that sometimes circumstances beyond an owner's control delay the cleaning and disinfection, despite the owner's best intentions. To alleviate financial hardship in such cases, we propose to amend § 54.3 to state that partial indemnity may be paid when the Administrator determines that weather or other factors outside the control of the owner make immediate disinfection impractical.
In § 54.6, paragraphs (a) and (b) set out procedures for determining what indemnity will be paid for sheep and goats that are eligible for indemnity under § 54.3. Paragraph (a) contains detailed information regarding price reports published by the Agricultural Marketing Service (AMS) that are used to calculate indemnity for sheep. Paragraph (b) sets out the process by which these price reports are used to determine indemnity for various classes of animals, with premiums paid for certain types of animals, such as registered animals and flock sires.
We are proposing to remove this detailed information from the regulations. The price reports we use as a basis for our indemnity calculations change frequently, as do the terms used in those price reports to refer to various types of sheep and goats. The price reports listed in paragraphs (a)(1) through (a)(6) in § 54.6 are currently out of date, and it would require frequent updates of the regulations to keep them consistent with the AMS data. In addition, the process in paragraph (b) sets out numerous specific weight thresholds and sets out dollar amounts for premiums. If the sheep and goat industries change, making these weight thresholds obsolete or the premiums inadequate to provide a fair indemnity, we must update the regulations.
Rather than use scrapie program resources to continually update § 54.6(a) and (b), we propose to retain only the general statement that indemnity paid for sheep and goats in accordance with § 54.3 will be the fair market value for the animals, based on available price report data that most accurately reflect the type of animal being indemnified and the time at which the animal was indemnified. Paragraph (a) of § 54.6 would also specify that premiums would be paid for certain animals and that APHIS will use AMS price report data or other available price information and any other data necessary to establish the value of different types of sheep and goats in its calculations. We would provide a detailed description of how we calculate indemnity on the scrapie Web site.
This approach would be consistent with some other parts in 9 CFR subchapter B, which provide that indemnity will be provided based on appraisals but do not specify the details of how an appraisal is conducted. For example, 9 CFR part 56, which provides for the payment of indemnity for poultry affected by low pathogenic avian influenza, states that indemnity will be paid based on appraisals; however, those regulations do not include the details of how appraisals are conducted, and they are typically conducted by use of spreadsheets showing data on inputs and expected prices. Similarly, the scrapie regulations provide for calculation of indemnity based on broad market data, with a few modifications; we believe it is appropriate to state in the regulations that indemnity will be based on those broad market data and provide the details on the scrapie Web site. We invite public comment on this approach.
We would also reorganize and renumber the paragraphs in § 54.6 and make other minor changes to the section to improve its comprehensibility.
As part of this change, we also propose to create a new indemnity classification for certain pregnant animals and early maturing ewes. At sales, animals in late pregnancy bring higher prices than animals that are not pregnant because of the additional value of the offspring they carry. We believe that indemnity prices should reflect this increase in value since indemnity is related to the fair market value of animals. We would also categorize early maturing ewe lambs as yearlings, which typically qualify for a higher indemnity value, because early maturing ewes can be bred at about 7 months and lamb at 12-14 months, increasing their value. Descriptions of these classifications as we would establish them are available by contacting the person listed under
Sections 54.3 and 54.5 already require that to obtain indemnity owners must make available to APHIS all bills of sale, pedigree registration certificates, and other records associated with ownership or movement of the animals. We propose to amend § 54.3 to also state that owners applying for indemnity must, within 30 days of request, make the animals in the flock available for inventory, evaluation, and testing. We propose this change because it is sometimes necessary to have physical access to the animals to confirm their eligibility for indemnity.
Current § 54.6(e) states that indemnity will be paid to an owner only for animals actually in a flock at the time
We also propose to revise the definition of
We believe the changes to parts 54 and 79 discussed above would improve the effectiveness of the scrapie program, reduce the risks associated with moving sheep and goats interstate, reduce some identification and recordkeeping requirements while changing others, and make the scrapie indemnity program more equitable.
We are proposing certain changes to § 54.10, “Tests for scrapie,” and § 54.11, “Approval of laboratories to run official scrapie tests and official genotype tests.” The proposed changes are intended to provide more information about APHIS procedures in these matters and to make the testing and laboratory approval processes more reliable, flexible, and market-oriented.
We propose to change the section title of § 54.10 to read “Program approval of tests for scrapie” to clarify that the section concerns how tests are approved, and is not merely a list of tests. We propose to change a sentence that states that specific guidance on the use of approved tests “will be added to this part as tests are approved and will also be contained in the Scrapie Eradication UM&R and the Scrapie Flock Certification Program standards.” We would change this to read “will be made available on the scrapie Web site at
We also propose to add to both § 54.10 and § 54.11 a standard paragraph stating that the Administrator may withdraw or suspend approval of an official test, or approval of a laboratory to perform tests. In both § 54.10, regarding approved tests, and § 54.11, regarding approved laboratories, there would be an opportunity for an appeal to the Administrator to resolve any questions of material fact regarding the withdrawal or suspension. The Administrator's decision would constitute final agency action.
We propose to add ELISA testing to the definition of
Surveillance is an important component of the National Scrapie Eradication Program because it identifies infected animals, and successful traceback of these animals to their flocks of origin allows us to identify previously unrecognized infected flocks for cleanup. As the United States progresses toward eradication of scrapie, surveillance is also necessary to measure the effectiveness of control measures and to document when regions achieve freedom from disease as defined by international standards affecting trade in animals and products from the regions.
To support traceback and eradication efforts, we propose to add a requirement that States must implement effective scrapie surveillance in order to qualify as a Consistent State. This requirement would include three components: Facilitating surveillance at slaughter establishments that do not engage in interstate commerce; reporting submission information and test results electronically to the National Scrapie Database administered by APHIS; and testing an appropriate number of targeted animals annually.
The first of these three new requirements would affect surveillance at slaughter establishments. Slaughter surveillance is a major component of the ongoing scrapie surveillance conducted by APHIS. The regulations in 9 CFR 71.21 describe the collection of tissues for surveillance purposes at slaughter establishments that receive livestock in interstate commerce. To achieve the eradication of scrapie, it is important to conduct surveillance in all slaughter establishments that receive targeted animals—including State-inspected and custom establishments that do not participate in interstate commerce. Surveillance at these concentration
The second new requirement would affect the reporting of surveillance data by States. In order to insure the integrity of surveillance data and to verify that a State is conducting adequate surveillance for scrapie, we propose to add language to § 79.6(a)(10)(ii) requiring that submission data and epidemiological information for all samples be electronically transmitted by accessing and updating a system provided by APHIS. Submission data will be electronically transmitted to an approved laboratory and the epidemiologic and testing data will be stored in the National Scrapie Database, allowing complete reports concerning scrapie surveillance to be generated for each State as well as for the entire United States. This system is currently used to submit information for over 99 percent of the scrapie samples collected for testing.
In the third new surveillance requirement, we propose to determine the appropriate sample size for surveillance within a State using one of two approaches. A State could meet annual State-level surveillance minimums established by APHIS. These minimums will be made publicly available at
The definition of
We are also proposing to provide in the regulations a process for updating the list of Consistent States. When we determine that a State should be added to or removed from the list of Consistent States, we would publish a notice in the
We propose to change § 54.21, “Participation,” which currently states that APHIS makes available a list of flocks participating in the SFCP and another list of flocks that are not in compliance with these regulations. We propose to make available a third list, of flocks that sold exposed animals that could not be traced, which would be of potential risk management use to persons who purchased animals from these flocks.
We propose to add several definitions to part 79 to ensure that readers understand terms used in those regulations. These include
(1) The name, address, and phone number of the owner and, if different, the hauler;
(2) The date the animals were moved;
(3) The flock identification number or PIN assigned to the flock or premises of the animals;
(4) If moving individually unidentified animals, the group/lot identification number and any information required to officially identify the animals;
(5) The number of animals;
(6) The species, breed, and class of animals. If breed is unknown, for sheep the face color and for goats the type (milk, fiber, or meat) must be recorded instead; and
(7) The name and address of point of origin, if different from the owner's address, and the destination.”
The changes discussed above, particularly the use of genetic information and testing to improve our ability to categorize animals by risk
We are also proposing to revise § 79.5 (retitled
We are also proposing to make miscellaneous changes, particularly in the definitions sections of parts 54 and 79, and in the description of cleaning and disinfection of premises in § 54.7, to make terminology and citations consistent throughout the regulations. We are changing the definitions of several terms to make them consistent with the definitions in new animal disease traceability regulations in 9 CFR part 86. In § 54.7, we propose to expand the brief description of cleaning and disinfection procedures to include more information about burial and composting options for organic and/or inorganic materials. We also propose minor changes throughout the regulations to consistently use the term “identification devices” instead of referring to “devices” in some sections and “tags” in others, to correct outdated Internet addresses, and to otherwise improve accuracy and readability.
This proposed rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.
We have prepared an economic analysis for this rule. The economic analysis provides a cost-benefit analysis, as required by Executive Orders 12866 and 13563, which 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, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The economic analysis also provides an initial regulatory flexibility analysis that examines the potential economic effects of this rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available by contacting the person listed under
Based on the information we have, there is no reason to conclude that adoption of this proposed rule would result in any significant economic effect on a substantial number of small entities. However, we do not currently have all of the data necessary for a comprehensive analysis of the effects of this proposed rule on small entities. Therefore, we are inviting comments on potential effects. In particular, we are interested in determining the number and kind of small entities that may incur benefits or costs from the implementation of this proposed rule.
APHIS is proposing to amend the scrapie regulations to relieve certain restrictions associated with the interstate movement of sheep and goats, reduce the number of exposed sheep and goats that are destroyed, and improve overall program effectiveness. More specifically, genetic testing would be used to identify genetically resistant or less susceptible sheep for exemption from destruction and as qualifying for interstate movement; designated scrapie epidemiologists would be given greater flexibility in determining the testing needs of flocks; the indemnity regulations would be changed to apply only to those animals that are found to be genetically susceptible to scrapie; official identification of goats produced for meat or fiber would be required; submission of tagging records by individuals who tag sheep or goats that do not originate on their premises would be required; and certain recordkeeping requirements would be reduced, changed or removed.
The primary benefits of this proposed rule for producers and the public would be more rapid progress toward scrapie eradication and the related boost to the Nation's animal health status, decreased losses for owners of exposed herds, and increased export opportunities for sheep and goats and their products. All segments and marketing channels of the sheep and goat industries would benefit from being able to operate under fewer restrictions while still complying with the scrapie eradication program. By enhancing traceability, the proposed rule would shorten the time and reduce the cost of eradication.
Costs associated with the proposed rule would be borne by APHIS and the regulated industry. APHIS would incur the costs of genotyping exposed sheep and testing genetically susceptible animals for scrapie. The total laboratory cost to APHIS for testing an average-sized exposed flock is estimated to be around $610. This Federal cost may be largely offset by a reduction in indemnity payments; genotyping is expected to result in the destruction of fewer animals.
Producers of goats for meat or fiber would incur costs of official identification as a result of the proposed rule. However, close to one-half of the goat farms reported in the 2012 Census of Agriculture are already in compliance with the proposed identification requirements.
The proposed rule would affect sheep and goat producers, as well as marketers and dealers. Most of these entities are small. However, in that costs of genotyping, testing, and provision of eartags would be borne by the Federal Government, we do not believe this rule would pose a significant cost burden for producers.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV)
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings
This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this rule will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.
As part of this review, APHIS sent letters to Tribal leaders describing the proposed rule, asking the leaders to consider and inform us of any potential impacts or possible outcomes for their tribes, and offering further discussion or consultation if desired. No Tribe identified issues of concern or requested further consultation. We believe that the issue in this proposed rule that is of most potential concern to Tribes is animal identification and traceability. That issue has been addressed in a previous proposed rule concerning traceability for livestock moving interstate (Docket No. APHIS-2009-0091, 76 FR 50082, published August 11, 2011). The Tribal summary impact statement for that proposed rule is available at
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Implementing the requirements of the proposed rule would change information collection and recordkeeping burden for persons such as animal market operators, dealers, accredited veterinarians, tag manufacturers, flock owners, haulers, State officials, terminal feedlot owners, laboratories, test kit manufacturers, slaughter plant/establishment owners, and other persons who apply official identification to sheep and goats. These changes will primarily affect persons who own or handle goats in interstate commerce. Some of this information would be entered in the Scrapie National Database, and persons who apply official identification for animal owners such as livestock markets would have the option of entering the information through a Web site into the Scrapie National Database or completing and submitting a form. These changes would also eliminate requirements to record individual identification numbers for certain classes of sheep and goats.
We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency s functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology;
Copies of this information collection can be obtained from Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.
The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.
Animal diseases, Goats, Indemnity payments, Scrapie, Sheep.
Animal diseases, Quarantine, Sheep, Transportation.
Accordingly, we are proposing to amend 9 CFR parts 54 and 79 as follows:
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
The additions and revisions read as follows:
(2) Any flock under investigation that retains a female genetically susceptible exposed animal or a suspect animal, or whose owner declines to complete genotyping and live-animal and/or post-mortem scrapie testing required by the APHIS or State representative investigating the flock; or
(3) Any noncompliant flock or any flock for which a PEMMP is required that is not in compliance with the conditions of the PEMMP. A flock will no longer be an exposed flock if it is redesignated in accordance with § 79.4 of this chapter.
(1) An exposed sheep or sheep embryo of genotype AA QR, unless it is epidemiologically linked to a scrapie-positive RR or AA QR sheep or to a scrapie type to which AA QR sheep are not less susceptible where Q represents any genotype other than R at codon 171; or
(2) An exposed sheep or sheep embryo of genotype AV QR, unless it is epidemiologically linked to a scrapie-positive RR or QR sheep, to a flock that the DSE has determined may be affected by valine associated scrapie (based on an evaluation of the genotypes of the scrapie-positive animals linked to the flock), or to another scrapie type to which AV QR sheep are not less susceptible where Q represents any genotype other than R at codon 171 and V represents any genotype other than A at codon 136; or
(3) An exposed sheep or sheep embryo of a genotype that has been exposed to a scrapie type to which the Administrator has determined that genotype is less susceptible.
(1) A genetically susceptible animal; or
(2) A sheep or sheep embryo of genotype AV QR that is epidemiologically linked to a scrapie-positive RR or QR sheep, to a flock that the DSE has determined may be affected by valine associated scrapie (based on an evaluation of the genotypes of the scrapie-positive animals linked to the flock), or to a scrapie type to which AV QR sheep are susceptible where Q represents any genotype other than R at codon 171 and V represents any genotype other than A at codon 136; or
(3) A sheep or sheep embryo of genotype AA QR that is epidemiologically linked to a scrapie-positive RR or AA QR sheep or to a scrapie type to which AA QR sheep are susceptible where Q represents any genotype other than R at codon 171; or
(4) A sheep or sheep embryo of genotype RR that is epidemiologically linked to a scrapie-positive RR sheep or to a scrapie type to which RR sheep are susceptible.
(1) The positive animal that was the source of exposure was not born in the flock and did not lamb in the flock or in an enclosure where the exposed animal resided;
(2) The Administrator and State representative concur that the animal is unlikely to be infected due to factors such as, but not limited to, where the animal resided or the time period the animal resided in the flock;
(3) The exposed animal is male and was not born in an infected or source flock;
(4) The exposed animal is a castrated male;
(5) The exposed animal is an embryo of a genetically resistant exposed sheep or a genetically less susceptible exposed sheep unless placed in a recipient that was a genetically susceptible exposed animal; or
(6) The animal was exposed to a scrapie type and/or is of a genotype that the Administrator has determined poses low risk of scrapie transmission.
(1) An accredited veterinarian;
(2) A State or APHIS representative; or
(3) The animal's owner or owner's agent, using a tamper-resistant sampling kit approved by APHIS for this purpose.
(1) A mature sheep or goat as evidenced by eruption of the first incisor that has been condemned by FSIS or a State inspection authority for central nervous system (CNS) signs, or that exhibits any of the following clinical signs of scrapie and has been determined to be suspicious for scrapie by an accredited veterinarian or a State or USDA representative, based on one or more of the following signs and the severity of the signs: Weakness of any kind including, but not limited to, stumbling, falling down, or having difficulty rising, not including those with visible traumatic injuries and no other signs of scrapie; behavioral abnormalities; significant weight loss despite retention of appetite or in an animal with adequate dentition; increased sensitivity to noise and sudden movement; tremors; star gazing; head pressing; bilateral gait abnormalities such as but not limited to incoordination, ataxia, high stepping gait of forelimbs, bunny-hop movement of rear legs, or swaying of back end, but not including abnormalities involving only one leg or one front and one back leg; repeated intense rubbing with bare
(2) A dry lot approved by a State or APHIS representative or an accredited veterinarian authorized to perform this function where only animals that either are not pregnant based on the animal being male, an owner certification that any female animals have not been exposed to a male in the preceding 6 months, an ICVI issued by an accredited veterinarian stating the animals are open, or the animals are under 6 months of age at time of receipt, where only castrated males are maintained with female animals, and all animals in the terminal feedlot are separated from all other animals such that physical contact cannot occur and from which animals are moved only to another terminal feedlot or directly to slaughter; or
(3) A pasture when approved by and maintained under the supervision of the State and in which only nonpregnant animals are permitted based on the animal being male, an owner certification that any female animals have not been exposed to a male in the preceding 6 months, or an ICVI issued by an accredited veterinarian stating the animals are open, or the animals are under 6 months of age at time of receipt, where only castrated males are maintained with female animals, where there is no direct fence-to-fence contact with another flock, and from which animals are moved only to another terminal feedlot or directly to slaughter.
(4) Records of all animals entering and leaving a terminal feedlot must be maintained for 5 years after the animal leaves the feedlot and must meet the requirements of § 79.2 of this chapter, including either a copy of the required owner/hauler statements for animals entering and leaving the facility or the information required to be on the statements. Records must be made available for inspection and copying by an APHIS or State representative upon request.
(b) USDA may withdraw an offer of indemnity if the owner of the animal fails to, within 30 days of request, make the animals in the flock available for inventory, evaluation, and testing or to provide APHIS animal registration certificates, sale and movement records, or other records requested in accordance with § 54.5. No indemnity will be paid for any animal, or the progeny of any animal, that has been moved or handled by the owner in violation of the requirements of the Animal Health Protection Act or the regulations promulgated thereunder. No indemnity will be paid for an animal added to the premises while a flock is under investigation or while it is an infected or source flock other than natural additions. No indemnity will be paid for natural additions born more than 60 days after the owner is notified they are eligible for indemnity unless the Administrator makes a determination that the dam could not be removed within the allowed time as a result of conditions outside the control of the owner. No indemnity will be paid unless the owner has signed and is in compliance with the requirements of a flock plan or post-exposure management and monitoring plan (PEMMP) as described in § 54.8. No indemnity will be paid until the premises, including all structures, holding facilities, conveyances, and materials contaminated because of occupation or use by the depopulated animals, have been properly cleaned and disinfected in accordance with § 54.7(e);
(a) * * *
(5) A copy of the registration papers issued in the name of the owner for any registered animals in the flock (registration papers are not required for the payment of indemnity for animals that are not registered); and
(a)
(b)
(c)
(d)
The additions and revisions read as follows:
(a) Animals for which indemnification is sought must be destroyed on the premises where they are held, pastured, or penned at the time indemnity is approved or moved to an approved research facility, unless the APHIS representative involved approves in advance of destruction moving the animals to another location for destruction.
(d) APHIS may pay the reasonable costs of disposal for animals that are indemnified. To obtain reimbursement for disposal costs, animal owners must obtain written approval of the disposal costs from APHIS, prior to disposal. For reimbursement to be made, the owner of the animals must present the Veterinary Services, Surveillance Preparedness and Response Services, Assistant Director responsible for the State involved with a copy of either a receipt for expenses paid or a bill for services rendered. Any bill for services rendered by the owner must not be greater than the normal fee for similar services provided by a commercial hauler or disposal facility.
(e) * * *
(2)
(iii) Use a product registered by the U.S. Environmental Protection Agency (EPA) specifically for reduction of prion infectivity at these sites in accordance with the label.
(iv) Use a product in accordance with an emergency exemption issued by the EPA for reduction of prion infectivity at these sites.
(a)
(1) All animals in the flock while it is subject to a flock plan or PEMMP;
(2) Any high-risk or genetically susceptible exposed animals in the flock and any other restricted animals;
(3) Any animals designated for testing by an APHIS representative or State representative until testing is completed, results reported, and animals classified, and
(4) All sexually intact animals, all exposed animals, and animals 18 months of age and older (as evidenced by the eruption of the second incisor) prior to a change in ownership and
(b)
(1) For acquired animals, the date of acquisition, name and address of the person from whom the animal was acquired, any identifying marks, or identification devices present on the animal including but not limited to the animal's individual official identification number(s) from its electronic implant, flank tattoo, ear tattoo, tamper-resistant eartag, or, in the case of goats, tail fold tattoo, and any secondary form of identification the owner of the flock may choose to maintain and the records required by § 79.2 of this chapter.
(2) For animals leaving the premises of the flock, the disposition of the animal, including, any identifying marks or identification devices present on the animal, including but not limited to the animal's individual official identification number from its electronic implant, flank tattoo, ear tattoo, tamper-resistant eartag, or, in the case of goats, a tail fold tattoo, and any secondary form of identification the owner of the flock may choose to maintain, the date and cause of death, if known, or date of removal from the flock and name and address of the person to whom the animal was transferred and the records required by § 79.2 of this chapter.
(c) Upon request by a State or APHIS representative or as required in a PEMMP, the owner of the flock or his or her agent must have an accredited veterinarian collect tissues from animals for scrapie diagnostic purposes and submit them to a laboratory designated by a State or APHIS representative or collect and submit samples by another method acceptable to APHIS.
(d) Upon request by a State or APHIS representative, the owner of the flock or his or her agent must make animals in the flock available for inspection and or testing and the records required to be kept as a part of these plans available for inspection and copying.
(e) The owner of the flock or his or her agent must meet requirements found necessary by a DSE to monitor for scrapie and to prevent the recurrence of scrapie in the flock and to prevent the spread of scrapie from the flock. These other requirements may include, but are not limited to: Utilization of a live-animal screening test; reporting animals found dead and collecting and submitting test samples from them; restrictions on the animals that may be moved from the flock; use of genetically resistant rams; segregated lambing; cleaning and disinfection of lambing facilities; and/or education of the owner of the flock and personnel working with the flock in techniques to recognize clinical signs of scrapie and to control the spread of scrapie.
(f) The owner of the flock or his or her agent must immediately report the following animals to a State representative, APHIS representative, or an accredited veterinarian; ensure that samples are properly collected for testing if the animal dies; allow the animals to be tested, and not remove them from a flock without written permission of a State or APHIS representative:
(1) Any sheep or goat exhibiting weight loss despite retention of appetite; behavioral abnormalities; pruritus (itching); wool pulling; wool loss; biting at legs or side; lip smacking; motor abnormalities such as incoordination, high stepping gait of forelimbs, bunny hop movement of rear legs, or swaying of back end; increased sensitivity to noise and sudden movement; tremor; star gazing; head pressing; recumbency; rubbing, or other signs of neurological disease or chronic wasting illness; and
(2) Any sheep or goat in the flock that has tested positive for scrapie or for the proteinase resistant protein associated with scrapie on a live-animal screening test or any other test.
(g) An epidemiologic investigation must be conducted to identify high-risk and exposed animals that currently reside in the flock or that previously resided in the flock, and all high-risk animals, scrapie-positive animals, and suspect animals must be removed from the flock except as provided in paragraph (h) of this section. The animals must be removed either by movement to an approved research facility or by euthanasia and disposal of the carcasses by burial, incineration, or other methods approved by the Administrator and in accordance with local, State, and Federal laws, or upon request in individual cases by another means determined by the Administrator to be sufficient to prevent the spread of scrapie;
(h) The Administrator may allow high-risk animals that are not suspect animals to be retained under restriction if they are not genetically susceptible animals or if they have tested “PrPsc not detected” on a live animal scrapie test approved for this purpose by the Administrator and are maintained in a manner that the Administrator determines minimizes the risk of scrapie transmission,
(i) The owner of the flock, or his or her agent, must request breed associations and registries, livestock facilities, and packers to disclose records to APHIS representatives or State representatives, to be used to identify source flocks and trace exposed animals, including high-risk animals;
(j)
(1) Clean and disinfect the premises in accordance with § 54.7(e). Premises or portions of premises may be exempted from the cleaning and disinfecting requirements if a designated scrapie epidemiologist determines, based on an epidemiologic investigation, that cleaning and disinfection of such buildings, holding facilities, conveyances, or other materials on the premises will not significantly reduce the risk of the spread of scrapie, either because effective disinfection is not possible or because the normal operations on the premises prevent transmission of scrapie. No confined area where a scrapie-positive animal was born, lambed or aborted may be exempted;
(2) Agree to conduct a post-exposure management and monitoring plan (PEMMP); and
(3) Comply with any other conditions in the flock plan;
(k)
(a) The Administrator may approve new tests or test methods for the diagnosis of scrapie conducted on live or dead animals for use in the Scrapie Eradication Program and/or the Scrapie Free Flock Certification Program. The Administrator will base the approval or disapproval of a test on the evaluation by APHIS and, when appropriate, outside scientists, of:
(1) A standardized test protocol that must include a description of the test, a description of the reagents, materials, and equipment used for the test, the test methodology, and any control or quality assurance procedures;
(2) Data to support repeatability, that is, the ability to reproduce the same result repeatedly on a given sample;
(3) Data to support reproducibility, that is, data to show that similar results can be produced when the test is run at other laboratories;
(4) Data to support the diagnostic and in the case of assays the analytical sensitivity and specificity of the test; and
(5) Any other data or information requested by the Administrator to determine the suitability of the test for program use. This may include but is not limited to past performance, cost of test materials and equipment, ease of test performance, generation of waste, and potential use of existing equipment.
(b) To be approved for program use, a scrapie test must be able to be readily and successfully performed at the National Veterinary Services Laboratories.
(c) The test must have a reliable, timely, and cost effective method of proficiency testing.
(d) The Administrator may decline to evaluate any test kit for program approval that has not been licensed for the intended use and may decline to evaluate any test or test method for program use unless the requester can demonstrate that the new method offers a significant advantage over currently approved methods.
(e) A test or combination of tests may be approved for the identification of suspect animals, or scrapie-positive animals, or for other purposes such as flock certification. For a test to be approved for the identification of scrapie-positive animals, the test must demonstrate a diagnostic specificity comparable to that of current program-approved tests, and the sensitivity of the test will also be considered in determining the approved uses of the test within the program. For a test to be approved for the removal of high-risk, exposed, or suspect animal designations the test must have a diagnostic sensitivity at least comparable to that of current program-approved tests used for this purpose. Since the purpose of a screening test is usually to identify a subset of animals for further testing, for a test to be approved as a screening test for the identification of suspect animals, the test must be usually reliable but need not be definitive for diagnosing scrapie.
(f) Specific guidelines for use of program-approved tests within the Scrapie Eradication Program or Scrapie Free Flock Certification Program will be made available on the scrapie Web site at
(g) If an owner elects to have an unofficial test conducted on an animal for scrapie, or for the proteinase resistant protein associated with scrapie, and that animal tests positive to such a test, the animal will be designated a suspect animal, unless the test is conducted as part of a research protocol and the protocol includes appropriate measures to prevent the spread of scrapie.
(h) The Administrator may withdraw or suspend approval of any test or test method if the test or method does not perform at an acceptable level following approval or if a more effective test or test method is subsequently approved. The Administrator shall give written notice of the suspension or proposed withdrawal to the director of the laboratories using the test or method or in the case of test kits to the manufacturer and shall give the director or manufacturer an opportunity to respond. Such action shall become effective upon oral or written notification, whichever is earlier, to the laboratory or manufacturer. If there are conflicts as to any material fact concerning the reason for withdrawal, a hearing may be requested in accordance with the procedure in § 79.4(c)(3) of this chapter. The action under appeal shall continue in effect pending the final determination of the Administrator, unless otherwise ordered by the Administrator. The Administrator's decision constitutes final agency action.
(a) State, Federal, and university laboratories, or in the case of genotype tests, private laboratories will be approved by the Administrator when he or she determines that the laboratory:
(1) Employs personnel assigned to supervise and conduct the testing who are qualified to conduct the test based on education, training, and experience and who have been trained by the National Veterinary Services Laboratories (NVSL) or who have completed equivalent training approved by NVSL;
(2) Has adequate facilities and equipment to conduct the test;
(3) Follows standard test protocols that are approved or provided by NVSL;
(4) Meets check test proficiency requirements and consistently produces accurate test results as determined by NVSL review;
(5) Meets recordkeeping requirements;
(6) Will retain records, slides, blocks, and other specimens from all cases for at least 1 year and from positive cases and DNA from all genotype tests for at least 5 years and will forward copies of records and any of these materials to NVSL within 5 business days of request;
(7) Will allow APHIS to inspect the laboratory without notice during normal business hours. An inspection may include, but is not limited to, review and copying of records, examination of slides, review of quality control procedures, observation of sample handling/tracking procedures, observation of the test being conducted, and interviewing of personnel;
(8) Will report all test results to State and Federal animal health officials and record them in the National Scrapie Database within timeframes and in the manner and format specified by the Administrator; and
(9) Complies with any other written guidance provided to the laboratory by the Administrator.
(b) A laboratory may request approval to conduct one or more types of program-approved scrapie test or genotype test on one or more types of tissue. To be approved, a laboratory must meet the requirements in paragraph (a) of this section for each type of test and for each type of tissue for which they request approval.
(c) The Administrator may suspend or withdraw approval of any laboratory for failure to meet any of the conditions required by paragraph (a) of this section. The Administrator shall give written
(d) The Administrator may require approved laboratories to reimburse APHIS for part or all of the costs associated with the approval and monitoring of the laboratory.
Any owner of a sheep or goat flock may apply to enter the Scrapie Free Flock Certification Program by sending a written request to a State scrapie certification board or to the Veterinary Services, Surveillance Preparedness and Response Services, Assistant Director responsible for the State involved. A notice containing a current list of flocks participating in the Scrapie Free Flock Certification Program, and the certification status of each flock, may be obtained from the APHIS Web site at
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
The additions and revisions read as follows:
(2) A list of Consistent States can be found on the Internet at
(3) When the Administrator determines that a State should be added
(2) Any flock under investigation that retains a female genetically susceptible exposed animal or a suspect animal, or whose owner declines to complete genotyping and live-animal and/or post-mortem scrapie testing required by the APHIS or State representative investigating the flock; or
(3) Any noncompliant flock or any flock for which a PEMMP is required that is not in compliance with the conditions of the PEMMP. A flock will no longer be an exposed flock if it is redesignated in accordance with § 79.4.
(1) An exposed sheep or sheep embryo of genotype AA QR, unless it is epidemiologically linked to a scrapie-positive RR or AA QR sheep or to a scrapie type to which AA QR sheep are not less susceptible where Q represents any genotype other than R at codon 171; or
(2) An exposed sheep or sheep embryo of genotype AV QR, unless it is epidemiologically linked to a scrapie-positive RR or QR sheep, to a flock that the DSE has determined may be affected by valine associated scrapie, or to another scrapie type to which AV QR sheep are not less susceptible where Q represents any genotype other than R at codon 171 and V represents any genotype other than A at codon 136; or
(3) An exposed sheep or sheep embryo of a genotype that has been exposed to a scrapie type to which the Administrator has determined that genotype is less susceptible.
(1) A genetically susceptible animal; or
(2) A sheep or sheep embryo of genotype AV QR that is epidemiologically linked to a scrapie-positive RR or QR sheep, to a flock that the DSE has determined may be affected by valine associated scrapie (based on an evaluation of the genotypes of the scrapie-positive animals linked to the flock), or to a scrapie type to which AV QR sheep are susceptible where Q represents any genotype other than R at codon 171 and V represents any genotype other than A at codon 136; or
(3) A sheep or sheep embryo of genotype AA QR that is epidemiologically linked to a scrapie-positive RR or AA QR sheep or to a scrapie type to which AA QR sheep are susceptible where Q represents any genotype other than R at codon 171; or
(4) A sheep or sheep embryo of genotype RR that is epidemiologically linked to a scrapie-positive RR sheep or to a scrapie type to which RR sheep are susceptible.
(1) The positive animal that was the source of exposure was not born in the flock and did not lamb in the flock or in an enclosure where the exposed animal resided;
(2) The Administrator and State representative concur that the animal is unlikely to be infected due to factors such as, but not limited to, where the animal resided or the time period the animal resided in the flock;
(3) The exposed animal is male and was not born in an infected or source flock;
(4) The exposed animal is a castrated male;
(5) The exposed animal is an embryo of a genetically resistant exposed sheep or a genetically less susceptible exposed sheep unless placed in a recipient that was a genetically susceptible exposed animal; or
(6) The animal was exposed to a scrapie type and/or is of a genotype that the Administrator has determined poses low risk of transmission.
(1) An accredited veterinarian;
(2) A State or APHIS representative; or
(3) The animal's owner or owner's agent, using a tamper-resistant sampling kit approved by APHIS for this purpose.
(1) The name, address, and phone number of the owner and, if different, the hauler;
(2) The date the animals were moved;
(3) The flock identification number or PIN assigned to the flock or premises of the animals;
(4) If moving individually unidentified animals, the group/lot identification number and any information required to officially identify the animals;
(5) The number of animals;
(6) The species, breed, and class of animals. If breed is unknown, for sheep the face color and for goats the type (milk, fiber, or meat) must be recorded instead; and
(7) The name and address of point of origin, if different from the owner's address, and the destination.
(1) A mature sheep or goat as evidenced by eruption of the first incisor that has been condemned by FSIS or a State inspection authority for central nervous system (CNS) signs, or that exhibits any of the following clinical signs of scrapie and has been determined to be suspicious for scrapie by an accredited veterinarian or a State or USDA representative, based on one or more of the following signs and the severity of the signs: Weakness of any kind including, but not limited to, stumbling, falling down, or having difficulty rising, not including those with visible traumatic injuries and no other signs of scrapie; behavioral abnormalities; significant weight loss despite retention of appetite or in an animal with adequate dentition; increased sensitivity to noise and sudden movement; tremors; star gazing; head pressing; bilateral gait abnormalities such as but not limited to incoordination, ataxia, high stepping gait of forelimbs, bunny-hop movement of rear legs, or swaying of back end, but not including abnormalities involving only one leg or one front and one back leg; repeated intense rubbing with bare areas or damaged wool in similar locations on both sides of the animal's body or, if on the head, both sides of the poll; abraded, rough, thickened, or hyperpigmented areas of skin in areas of wool/hair loss in similar locations on both sides of the animal's body or, if on the head, both sides of the poll; or other signs of CNS disease. An animal will no longer be a suspect animal if it is redesignated in accordance with § 79.4 of this part.
(2) A dry lot approved by a State or APHIS representative or an accredited veterinarian authorized to perform this function where only animals that either are not pregnant based on the animal being male, an owner certification that any female animals have not been exposed to a male in the preceding 6 months, an ICVI issued by an accredited veterinarian stating the animals are open, or the animals are under 6 months of age at time of receipt, where only castrated males are maintained with female animals, and all animals in the terminal feedlot are separated from all other animals such that physical contact cannot occur and from which animals are moved only to another terminal feedlot or directly to slaughter; or
(3) A pasture when approved by and maintained under the supervision of the State and in which only nonpregnant animals are permitted based on the animal being male, an owner certification that any female animals have not been exposed to a male in the preceding 6 months, or an ICVI issued by an accredited veterinarian stating the animals are open, or the animals are under 6 months of age at time of receipt, where only castrated males are maintained with female animals, where there is no direct fence-to-fence contact with another flock, and from which animals are moved only to another terminal feedlot or directly to slaughter.
(4) Records of all animals entering and leaving a terminal feedlot must be maintained for 5 years after the animal leaves the feedlot and must meet the requirements of § 79.2, including either a copy of the required owner/hauler statements for animals entering and leaving the facility or the information required to be on the statements. Records must be made available for inspection and copying by an APHIS or State representative upon request.
(a) No sheep or goat that is required to be individually identified or group identified by § 79.3 may be sold, disposed of, acquired, exhibited, transported, received for transportation, offered for sale or transportation, loaded, unloaded, or otherwise handled in interstate commerce or commingled with such animals or be loaded or unloaded at a premises or animal concentration point (including premises that exhibit animals) that engages in interstate commerce of animals unless each sheep or goat has been identified in accordance with this section.
(1) The sheep or goat must be identified to its flock of origin and, for an animal born after January 1, 2002, to its flock of birth
(i) Prior to the point of first commingling of the sheep or goats with sheep or goats from any other flock of origin;
(ii) Upon unloading of the sheep or goats at an approved livestock facility that is approved to handle that species and class of animals as described in § 71.20 of this subchapter that has agreed to act as an agent for the owner to apply official identification and prior to commingling with animals from another flock of origin. Such animals must be accompanied by an owner/hauler statement that contains the information needed for the livestock facility to officially identify the animals to their flock of origin and, when required, their flock of birth;
(iii) Upon transfer of ownership of the sheep or goats;
(iv) Prior to moving a sheep or goat from the premises on which it resides if the owner of the premises engages in the interstate commerce of animals unless the animals are moving to a livestock facility approved to handle the species and class of animal to be moved as described in § 71.20 of this subchapter that has agreed to act as an agent for the owner to apply official identification and in accordance with paragraph (a)(1)(ii) of this section or to a slaughter plant listed in accordance with § 71.21 of this subchapter as part of a group lot.
(v) In the case of animals that have only resided on premises and in flocks
(2) The sheep or goats must be identified and remain identified using a device or method approved by the Administrator. All animals required to be individually identified by § 79.3 shall be identified with official identification devices or methods. A list of approved identification devices and methods, including restrictions on their use, is available at
(3) No person shall buy or sell, for his or her own account or as the agent of the buyer or seller, transport, receive for transportation, offer for sale or transportation, load, unload, or otherwise handle any animal that is in or has been in interstate commerce that has not been identified as required by this section including loading or unloading at a premises (including premises that exhibit animals) that engages in interstate commerce of animals. No person shall commingle animals with any animal that is in or has been in interstate commerce that has not been identified as required by this section. If the person transporting animals is aware of any animal in the shipment that loses its identification to its flock of origin while in interstate commerce, the person transporting the animal is required to inform the receiving party of this fact, and it is the responsibility of the person who has control or possession of the animal upon unloading/delivery to identify the animal or have the animal identified prior to commingling it with any other animals. This shall be done by applying individual animal identification to the animal as required in paragraph (a)(2) of this section and recording the means of identification and the corresponding animal identification number on the waybill or other shipping document. If the flock of origin cannot be determined, all possible flocks of origin shall be listed on the record, or if this cannot be done, the animal must be identified with a slaughter only eartag and may only move in slaughter channels or in the case of sheep may move for other purposes if the animal is inspected by an accredited veterinarian, found free of evidence of infectious or contagious disease and officially genotyped as AA QR or AA RR.
(b)
(1) Official identification numbers for use on animals not in slaughter channels may only be assigned either directly to the owner of a breeding flock or, in the case of official serial numbers or serial number devices, to APHIS or State representatives or accredited veterinarians or other responsible individuals as described in paragraphs (b)(2) and (3) of this section for reassignment to owners of breeding flocks. APHIS or State representatives or accredited veterinarians that reissue official serial numbers or devices must provide, in a manner acceptable to APHIS, assignment data associating assigned serial sequences to the flock of origin and, when required, the flock of birth. One such method would be to enter the data into the AIN module of the National Scrapie Database.
(2) The official responsible for issuing eartags in a State may also assign serial numbers of official eartags to other responsible persons, such as 4-H leaders, if the State animal health official and Veterinary Services, Surveillance Preparedness and Response Services, Assistant Director responsible for the State involved agree that such assignments will improve scrapie control and eradication within the State. Such persons assigned serial numbers may either directly apply eartags to animals, or may reassign eartag numbers to producers. Such persons must maintain appropriate records in accordance with paragraph (g) of this section that permit traceback of animals to their flock of origin, or flock of birth when required, and must either reassign the tags in the National Scrapie Database or, if permitted by the Veterinary Services, Surveillance Preparedness and Response Services Field Office for the State involved, provide a written record of the reassignment to the Field Office or the State Office for entry into the National Scrapie Database.
(3)
(4)
(5)
(c) No person shall apply a premises or flock identification number or a brand or earnotch pattern to an animal that did not originate on the premises or flock to which the number was assigned by a State or APHIS representative or to which the brand or earnotch pattern has been assigned by an official brand registry. This includes individual identification such as USDA eartags that have been assigned to a premises or flock and registration tattoos that contain prefixes that have been assigned to a premises or flock for use as premises or flock identification. Unless the number sequence was issued specifically for use on animals born in a flock, this would not preclude the owner of a flock from using an official premises or flock identification number tag assigned to that flock on an animal owned by him or her that resides in that flock but that was born or previously resided on a different premises as long as the records required in paragraph (g) of this section are maintained.
(d) No person shall sell or transfer an official identification device or number assigned to his or her premises or flock except when it is transferred with a sheep or goat to which it has been applied as official identification or as directed in writing by an APHIS or State representative.
(e) No person shall use an official identification device or number provided for the identification of sheep and goats other than for the identification of a sheep or goat.
(f)
(1) The number of animals purchased or sold (or transferred without sale);
(2) The date of purchase, sale, or other transfer;
(3) The name and address of the person from whom the animals were purchased or otherwise acquired or to whom they were sold or otherwise transferred;
(4) The species, breed, and class of animal. If breed is unknown, for sheep the face color and for goats the type (milk, fiber, or meat) must be recorded instead;
(5) A copy of the brand inspection certificate for animals officially identified with brands or ear notches;
(6) A copy of any certificate or owner/hauler statement required for movement of the animals purchased, sold, or otherwise transferred; and
(7) If the flock of origin or the receiving flock is under a flock plan or post-exposure management and monitoring plan, any additional records required by the plan.
(g)
(1) The flock identification number of the flock of origin, the name and address of the person who currently owns the animals, and the name and address of the owner of the flock of origin if different;
(2) The name and address of the owner of the flock of birth, if known, for animals born after January 1, 2002, in another flock and not already identified to flock of birth;
(3) The date the animals were officially identified;
(4) The number of sheep and the number of goats identified;
(5) The breed and class of the animals. If breed is unknown, for sheep the face color and for goats the type (milk, fiber, or meat) must be recorded instead;
(6) The official identification numbers applied to animals by species or the GIN applied in the case of a group lot;
(7) Whether the animals were identified with “Slaughter Only” or “Meat” identification devices; and
(8) Any GIN with which the animal was previously identified.
(h)
(1) All man-made identification devices affixed to sheep or goats moved interstate must be removed at slaughter and correlated with the carcasses through final inspection by means approved by the Food Safety and Inspection Service (FSIS). If diagnostic samples, including whole heads, are taken, the identification devices must be packaged with the samples and must be left attached to approximately 1 inch of tissue or to the whole head to allow for identity testing and be correlated with the carcasses through final inspection by means approved by FSIS. Devices collected at slaughter must be made available to APHIS and FSIS.
(2) All official identification devices affixed to sheep or goat carcasses moved interstate for rendering must be removed at the rendering facility and made available to APHIS. If diagnostic samples, including whole heads, are taken, the identification devices must be packaged with the samples and must be left attached to approximately 1 inch of tissue or to the whole head to allow for identity testing.
(3) If a sheep or goat loses an official identification device except while in interstate commerce as described in paragraph (a)(3) of this section and needs a new one, the person applying the new official identification device must record the official identification number on the old device if known in addition to the information required to be recorded in accordance with paragraph (g) of this section.
(i)
(i) Deterioration of the device such that loss of the device appears likely or the number can no longer be read;
(ii) Infection at the site where the device is attached, necessitating application of a device at another location (
(iii) Malfunction of the electronic component of a radio frequency identification (RFID) device; or
(iv) Incompatibility or inoperability of the electronic component of an RFID device with the management system or unacceptable functionality of the management system due to use of an RFID device.
(2) Any time an official identification device is replaced, as authorized by the State or Tribal animal health official or the Veterinary Services, Surveillance Preparedness and Response Services, Assistant Director responsible for the State involved, the person replacing the device must record the following information about the event and maintain the record for 5 years:
(i) The date on which the device was removed;
(ii) Contact information for the location where the device was removed;
(iii) The official identification number (to the extent possible) on the device removed;
(iv) The type of device removed (
(v) The reason for the removal of the device;
(vi) The new official identification number on the replacement device; and
(vii) The type of replacement device applied.
(j)
(1) Another official eartag may be applied providing it bears the same official identification number as an existing one.
(2) In specific cases when the need to maintain the identity of an animal is intensified (
(3) An eartag with an animal identification number (AIN) beginning with the 840 prefix (either radio frequency identification or visual-only tag) may be applied to an animal that is already officially identified with another eartag. The person applying the AIN eartag must record the date the AIN tag is added and the official identification numbers of all official eartags on the animal and must maintain those records for 5 years.
(4) An official eartag that utilizes a flock identification number may be applied to a sheep or goat that is already officially identified with an official eartag if the animal has resided in the flock to which the flock identification number is assigned.
(k)
(2) Written requests for approval of official identification devices for sheep and goats should be sent to the National Scrapie Program Coordinator, Surveillance Preparedness and Response Services, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737-1235. The request must include:
(i) The materials used in the device and in the case of RFID the transponder type and data regarding the lifespan and read range.
(ii) Any available data regarding the durability of the device, durability and legibility of the identification numbers, rate of adverse reactions such as ear infections, and retention rates of the devices in animals, preferably sheep and/or goats.
(iii) A signed statement agreeing to:
(A) Send official identification devices only to a State or APHIS representative, to the owner of a premises or to the contact person for a premises at the address listed in the National Scrapie Database, or as directed by APHIS;
(B) When requested by APHIS, provide a report by State of all tags produced, including the tag sequences produced and the name and address of the person to whom the tags were shipped, and provide supplemental reports of this information when requested by APHIS;
(C) Maintain the security and confidentiality of all tag recipient information acquired as a result of being an approved tag manufacturer and utilize the information only to provide official identification tags; and
(D) Enter the sequences of tags shipped into the online animal identification number (AIN) management system module of the National Scrapie Database through an Internet Web page interface or other means specified by APHIS prior to shipping the identification device.
(iv) Twenty-five sample devices. Additional tags must be submitted if requested by APHIS.
(3) Approval will only be given for devices for which data have been provided supporting high legibility, readability (visual and RFID), and retention rates in sheep and goats that minimize injury throughout their lifespan, or for which there is a reasonable expectation of such performance. Approval to produce official identification devices will be valid for 1 year and must be renewed annually. The Administrator may grant provisional approval to produce devices for periods of less than 1 year in cases where there is limited or incomplete data. The Administrator may decline to renew a company's approval or suspend or withdraw approval if the devices do not show adequate retention and durability or cause injury in field use or if any of the requirements of this section are not met by the tag company. Companies shall be given 60 days' written notice of intent to withdraw approval. Any person who is approved to produce official identification tags in accordance with this section and who knowingly produces tags that are not in compliance with the requirements of this section, and any person who is not approved to produce such tags but does
The following prohibitions and movement conditions apply to the movement of or commingling with sheep and goats in interstate commerce, and no sheep or goat may be sold, disposed of, acquired, exhibited, transported, received for transportation, offered for sale or transportation, loaded, unloaded, or otherwise handled in interstate commerce, or commingled with such animals, or be loaded or unloaded at a premises or animal concentration point (including premises that exhibit animals) that engages in interstate commerce of animals except in compliance with this part.
(a) No sexually intact animal of any age or castrated animal 18 months of age and older (as evidenced by the eruption of the second incisor) may be moved or commingled with animals in interstate commerce unless it is individually identified to its flock of birth
(1) Animals in slaughter channels that are under 18 months of age;
(2) Animals in slaughter channels at 18 months and older (as evidenced by the eruption of the second incisor) if the animals were kept as a group on the same premises on which they were born and have not been maintained in the same enclosure with unidentified animals from another flock at any time, including throughout the feeding, marketing, and slaughter process;
(3) Animals in slaughter channels 18 months of age and older (as evidenced by the eruption of the second incisor) that are identified with official individual identification or in the case of animals from flocks that are low-risk commercial flocks that are identified using identification methods or devices approved for this purpose;
(4) Animals moving for grazing or other management purposes between two premises both owned or leased by the flock owner and recorded in the National Scrapie Database as additional flock premises and where commingling will not occur with unidentified animals that were born in another flock or any animal that is not part of the flock; and
(5) Animals moving to a livestock facility approved in accordance with § 71.20 of this subchapter and that has agreed to act as an agent for the owner to apply official identification if the animals have been in the same flock in which they were born and have not been maintained in the same enclosure with unidentified animals born in another flock at any time.
(b) No scrapie-positive or suspect animal may be moved other than by permit to an APHIS approved research or quarantine facility or for destruction under APHIS or State supervision. Such animals must be individually identified and listed on the permit.
(c) No indemnified high-risk animal or indemnified sexually intact genetically susceptible exposed animal may be moved other than by permit to an APHIS approved research or quarantine facility or for destruction at another site. Such animals that are not indemnified may be moved to slaughter under permit. Animals moved in accordance with this paragraph must be individually identified and listed on the permit.
(d) No exposed animal may be moved unless it is officially individually identified.
(e) No animal may be moved from an infected flock or source flock except as allowed by an approved flock plan.
(f) No animal may be moved from an exposed flock, a flock under investigation or a flock subject to a PEMMP except as allowed in a PEMMP or where a PEMMP is not required, as allowed by written instructions from an APHIS or State representative.
(g)
(h) No animals designated for testing as part of a classification or reclassification investigation may be moved until testing is completed and results reported, except for movement by permit for testing, slaughter, research, or destruction. Such animals must be individually identified and listed on the permit.
(i) The following animals, if not restricted as part of a flock plan or PEMMP, may be moved to any destination without further restriction after being officially identified and designated or redesignated by a DSE to be:
(1) Genetically resistant exposed sheep;
(2) Genetically less susceptible exposed sheep; or
(3) Low-risk exposed animals.
(j)
(1) Sheep and goats not in slaughter channels must be enrolled in the Scrapie Free Flock Certification Program or an equivalent APHIS recognized program or be sheep that are officially genotyped and determined to be AA QR or AA RR, be officially identified, and be accompanied by an ICVI that also states the individual animal identification numbers, the flock of origin and, for any animal born after January 1, 2002, the flock of birth, if different.
(2) Animals in slaughter channels must be officially identified with an official blue eartag marked with the words “Meat” or “Slaughter Only” and may move only directly to slaughter or to a terminal feedlot. Animals 18 months of age and older (as evidenced by the eruption of the second incisor) in slaughter channels must also be accompanied by an ICVI that states the individual animal identification numbers and, for any animal born after January 1, 2002, the flock of birth (and the flock of origin, if different).
(k) APHIS may enter into compliance agreements with persons such as dealers and owners of slaughter establishments and markets whereby animals may be received unidentified even if they cannot be identified to their flock of birth or origin because they were moved or commingled while unidentified, in violation of this regulation or an intrastate regulation as provided by § 79.6, if the violation is reported to the Veterinary Services, Surveillance Preparedness and Response Services, Assistant Director responsible for the State involved so that corrective action can be taken against the principal violator. In such cases the animal must be identified with a slaughter only tag, and is moved only in slaughter channels or, in the case of sheep, moved for other purposes if the animal is inspected by an accredited veterinarian, found free of evidence of infectious or contagious disease, and officially genotyped as AA QR or AA RR.
(a)
(b)
(c)
(1)
(2)
(3)
(a) ICVIs are required as specified by § 79.3 for certain interstate movements of sheep or goats and may be used to meet the requirements for entry into terminal feedlots. An ICVI must show the following information, except when § 79.3 states that the information is not required for the specific type of interstate movement:
(1) The ICVI must show the species, breed or, if breed is unknown, the face
(2) Each animal's official individual identification numbers:
(3) If any animals intended for breeding have undergone an official genotype test, the name of the testing laboratory, date the sample was taken, and result of the test; and
(4) A statement by the issuing accredited, State, or Federal veterinarian to the effect that on the date of issuance the animals were free of evidence of infectious or contagious disease and insofar as can be determined exposure thereto. This statement may be made with respect to scrapie for animals exposed to scrapie that's movement is not restricted that have been designated genetically resistant or less susceptible sheep or low-risk exposed animals. Except as provided in paragraphs (b) and (c) of this section, all information required by this paragraph must be typed or legibly written on the ICVI. Note that in accordance with paragraphs (a), (b), and (e) of § 79.3, scrapie-positive, suspect, and high-risk animals, some exposed animals, and some animals that originated in an infected or source flock require permits rather than ICVIs.
(b) As an alternative to typing or writing individual animal identification on an ICVI, if agreed to by the receiving State or Tribe, another document may be used to provide this information, but only under the following conditions:
(1) The document must be a State form or APHIS form that requires individual identification of animals or a printout of official identification numbers generated by computer or other means;
(2) A legible copy of the document must be stapled to the original and each copy of the ICVI;
(3) Each copy of the document must identify each animal to be moved with the ICVI, but any information pertaining to other animals, and any unused space on the document for recording animal identification, must be crossed out in ink; and
(4) The following information must be written in ink in the identification column on the original and each copy of the ICVI and must be circled or boxed, also in ink, so that no additional information can be added:
(i) The name of the document; and
(ii) Either the unique serial number on the document or, if the document is not imprinted with a serial number, both the name of the person who prepared the document and the date the document was signed.
(c) Ownership brands documents attached to ICVIs. As an alternative to typing or writing ownership brands on an ICVI, an official brand inspection certificate may be used to provide this information, but only under the following conditions:
(1) A legible copy of the official brand inspection certificate must be stapled to the original and each copy of the ICVI;
(2) Each copy of the official brand inspection certificate must show the ownership brand of each animal to be moved with the ICVI, but any other ownership brands, and any unused space for recording ownership brands, must be crossed out in ink; and
(3) The following information must be typed or written in ink in the official identification column on the original and each copy of the ICVI and must be circled or boxed, also in ink, so that no additional information can be added:
(i) The name of the attached document; and
(ii) Either the serial number on the official brand inspection certificate or, if the official brand inspection certificate is not imprinted with a serial number, both the name of the person who prepared the official brand inspection certificate and the date it was signed.
The revision and addition read as follows:
(a) * * *
(10) Has effectively implemented ongoing scrapie surveillance that meets the following criteria:
(i) Collects and submits surveillance samples from targeted animals slaughtered in State-inspected establishments and from slaughter establishments within the State that are not covered under § 71.21 of this subchapter, or allows and facilitates the collection of such samples by USDA personnel or contractors; and
(ii) Transmits required submission and epidemiological information for all scrapie samples using the electronic submission system provided by APHIS for inclusion in the National Scrapie Database and for transmission of the submission information to an approved laboratory; and
(iii) Achieves the annual State-level scrapie surveillance minimums for sheep and goats originating from the State as determined annually with input from the States and made available to the public at
(iv) Conducts annual surveillance at a level that will detect scrapie if it is present at a prevalence of 0.1 percent in the population of targeted animals originating in the State, with a 95 percent confidence.
(11) If a State does not meet the requirements of paragraph (a)(10) of this section as of [
(b) A contractor may not set a limit on the total accrual of paid sick leave per year, or at any point in time, at less than 56 hours.
(c) Paid sick leave earned under this order may be used by an employee for an absence resulting from:
(d) Paid sick leave accrued under this order shall carry over from 1 year to the next and shall be reinstated for employees rehired by a covered contractor within 12 months after a job separation.
(e) The use of paid sick leave cannot be made contingent on the requesting employee finding a replacement to cover any work time to be missed.
(f) The paid sick leave required by this order is in addition to a contractor's obligations under 41 U.S.C. chapter 67 (Service Contract Act) and 40 U.S.C. chapter 31, subchapter IV (Davis-Bacon Act), and contractors may not receive credit toward their prevailing wage or fringe benefit obligations under those Acts for any paid sick leave provided in satisfaction of the requirements of this order.
(g) A contractor's existing paid leave policy provided in addition to the fulfillment of Service Contract Act or Davis-Bacon Act obligations, if applicable, and made available to all covered employees will satisfy the requirements of this order if the amount of paid leave is sufficient to meet the requirements of this section and if it may be used for the same purposes and under the same conditions described herein.
(h) Paid sick leave shall be provided upon the oral or written request of an employee that includes the expected duration of the leave, and is made at least 7 calendar days in advance where the need for the leave is foreseeable, and in other cases as soon as is practicable.
(i) Certification.
(j) Nothing in this order shall require a covered contractor to make a financial payment to an employee upon a separation from employment for accrued sick leave that has not been used, but unused leave is subject to reinstatement as prescribed in subsection (d) of this section.
(k) A covered contractor may not interfere with or in any other manner discriminate against an employee for taking, or attempting to take, paid sick leave as provided for under this order or in any manner asserting, or assisting any other employee in asserting, any right or claim related to this order.
(l) Nothing in this order shall excuse noncompliance with or supersede any applicable Federal or State law, any applicable law or municipal ordinance, or a collective bargaining agreement requiring greater paid sick leave or leave rights than those established under this order.
(b) Within 60 days of the Secretary issuing regulations pursuant to subsection (a) of this section, agencies shall take steps, to the extent permitted by law, to exercise any applicable authority to ensure that contracts as described in section 6(d)(i)(C) and (D) of this order, entered into after January 1, 2017, consistent with the effective date of such agency action, comply with the requirements set forth in section 2 of this order.
(c) Any regulations issued pursuant to this section should, to the extent practicable and consistent with section 7 of this order, incorporate existing definitions, procedures, remedies, and enforcement processes under the Fair Labor Standards Act, 29 U.S.C. 201
(b) This order creates no rights under the Contract Disputes Act, and disputes regarding whether a contractor has provided employees with paid sick leave prescribed by this order, to the extent permitted by law, shall be disposed of only as provided by the Secretary in regulations issued pursuant to this order.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) This order shall apply only to a new contract or contract-like instrument, as defined by the Secretary in the regulations issued pursuant to section 3(a) of this order, if:
(e) For contracts or contract-like instruments covered by the Service Contract Act or the Davis-Bacon Act, this order shall apply only to contracts
(f) This order shall not apply to grants; contracts and agreements with and grants to Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended; or any contracts or contract-like instruments expressly excluded by the regulations issued pursuant to section 3(a) of this order.
(g) Independent agencies are strongly encouraged to comply with the requirements of this order.
(b) This order shall not apply to contracts or contract-like instruments that are awarded, or entered into pursuant to solicitations issued, on or before the effective date for the relevant action taken pursuant to section 3 of this order.
| 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 |