| Page Range | 54701-55013 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 54733 - Federal Motor Vehicle Safety Standards; Electronic Stability Control Systems for Heavy Vehicles | |
| 80 FR 55011 - Continuation of the National Emergency With Respect to Certain Terrorist Attacks | |
| 80 FR 54789 - Sunshine Act Meeting | |
| 80 FR 54805 - Sunshine Act: Notice of Agency Meeting | |
| 80 FR 54803 - Government in the Sunshine Act Meeting Notice | |
| 80 FR 54737 - Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota Transfer | |
| 80 FR 54798 - Technical Mapping Advisory Council | |
| 80 FR 54794 - Drug Interactions With Hormonal Contraceptives: Public Health and Drug Development Implications; Public Meeting | |
| 80 FR 54762 - Submission for OMB Review; Comment Request | |
| 80 FR 54763 - Submission for OMB Review; Comment Request | |
| 80 FR 54729 - Tetraethylene Glycol; Exemption From the Requirement of a Tolerance | |
| 80 FR 54728 - National Emission Standards for Hazardous Air Pollutants for the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants; Correction | |
| 80 FR 54793 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 80 FR 54788 - Adequacy Determination for the Cache County PM2.5 | |
| 80 FR 54979 - Reportable Events and Certain Other Notification Requirements | |
| 80 FR 54806 - California Disaster # CA-00237 | |
| 80 FR 54806 - Illinois Disaster #IL-00046 | |
| 80 FR 54796 - Center for Scientific Review Notice of Closed Meetings | |
| 80 FR 54767 - Pacific Fishery Management Council; Public Meeting | |
| 80 FR 54766 - New England Fishery Management Council; Public Meeting | |
| 80 FR 54767 - Fisheries of the South Atlantic, Gulf of Mexico, and Caribbean; Southeast Data, Assessment, and Review (SEDAR); Public Meeting | |
| 80 FR 54737 - Fisheries of the Exclusive Economic Zone Off Alaska; Reapportionment of the 2015 Gulf of Alaska Pacific Halibut Prohibited Species Catch Limits for the Trawl Deep-Water and Shallow-Water Fishery Categories | |
| 80 FR 54736 - Interpretation of Notification Requirements To Exclude Model Aircraft | |
| 80 FR 54785 - Environmental Impact Statements; Notice of Availability | |
| 80 FR 54790 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB | |
| 80 FR 54768 - Procurement List; Proposed Addition | |
| 80 FR 54806 - Missouri Disaster Number MO-00076 | |
| 80 FR 54774 - National Advisory Committee on Institutional Quality and Integrity Meeting | |
| 80 FR 54774 - Notice of Availability of Government-Owned Inventions; Available for Licensing | |
| 80 FR 54795 - Meeting of the Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria | |
| 80 FR 54715 - Schedules of Controlled Substances: Removal of [123 | |
| 80 FR 54778 - Minneapolis Leased Housing Associates IV, Limited Partnership; Notice of Availability of Environmental Assessment | |
| 80 FR 54783 - Columbia Gulf Transmission, LLC; Columbia Gas Transmission, LLC; Notice of Intent To Prepare an Environmental Impact Statement for the Rayne Xpress Expansion Project, and Request for Comments on Environmental Issues | |
| 80 FR 54779 - Texas Gas Transmission, LLC; Notice of Intent To Prepare an Environmental Assessment for the Proposed Northern Supply Access Project and Request for Comments on Environmental Issues | |
| 80 FR 54781 - Eastern Shore Natural Gas Company; Notice of Intent To Prepare an Environmental Assessment For the Proposed System Reliability Project and Request for Comments on Environmental Issues | |
| 80 FR 54777 - Florida Southeast Connection, LLC; Transcontinental Gas Pipe Line Company, LLC; Sabal Trail Transmission, LLC | |
| 80 FR 54789 - Goodwin International Ltd v. Air Sea International Forwarding Inc. and Ray Tobia; Notice of Filing of Complaint and Assignment | |
| 80 FR 54789 - Notice of Agreement Filed | |
| 80 FR 54788 - General Motors LLC v. Nippon Yusen Kabushiki Kaisa; Wallenius Wilhelmsen Logistics As; Eukor Car Carriers Inc. | |
| 80 FR 54789 - Notice of Request for Additional Information | |
| 80 FR 54801 - Public Land Order No. 7840; Revocation of Withdrawal Created by Executive Order No. 5732, California | |
| 80 FR 54800 - Notice of Intent To Prepare an Environmental Impact Statement for the Proposed Gold Bar Mine Project, Eureka County, NV | |
| 80 FR 54808 - Indiana Boxcar Corporation-Continuance in Control Exemption-Camp Chase Railway Company, LLC | |
| 80 FR 54808 - Camp Chase Railway Company, LLC-Acquisition and Operation Exemption-Camp Chase Railroad Company | |
| 80 FR 54766 - Submission for OMB Review; Comment Request | |
| 80 FR 54760 - Onshore Oil and Gas Operations; Federal and Indian Oil and Gas Leases; Site Security | |
| 80 FR 54787 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Publicly Owned Treatment Works (Renewal) | |
| 80 FR 54786 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NSPS for Petroleum Dry Cleaners (Renewal) | |
| 80 FR 54785 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Recordkeeping and Reporting Related to E15 | |
| 80 FR 54803 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Applications for Special Deputation | |
| 80 FR 54768 - Procurement List; Additions | |
| 80 FR 54764 - Submission for OMB Review; Comment Request | |
| 80 FR 54786 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Semiconductor Manufacturing (Renewal) | |
| 80 FR 54765 - Submission for OMB Review; Comment Request | |
| 80 FR 54769 - phil&teds USA, Inc., Provisional Acceptance of a Settlement Agreement and Order | |
| 80 FR 54762 - Beaverhead-Deerlodge National Forest; Montana; Supplemental EIS for the Beaverhead-Deerlodge National Forest Land and Resource Management Plan To Comply With District of Montana Court Order | |
| 80 FR 54773 - Notice Is Given of the Names of Members of the Performance Review Board for the Department of the Air Force | |
| 80 FR 54805 - Advisory Committee for Education and Human Resources; Notice of Meeting | |
| 80 FR 54797 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 80 FR 54802 - Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes From Korea, Mexico, and Turkey; Determinations | |
| 80 FR 54722 - Rules of Practice Before the Judicial Officer | |
| 80 FR 54713 - Special Conditions: Korea Aerospace Industries, Ltd., Model K-100; Full Authority Digital Engine Control (FADEC) System | |
| 80 FR 54721 - Safety Zones; Fireworks Events in Captain of the Port New York Zone | |
| 80 FR 54804 - Division of Federal Employees' Compensation Proposed Extension of Existing Collection; Comment Request | |
| 80 FR 54803 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) | |
| 80 FR 54725 - Air Plan Approval; Wisconsin; Infrastructure SIP Requirements for the 2008 Ozone, 2010 NO2 | |
| 80 FR 54739 - Approval and Promulgation of Implementation Plans; New Mexico; Albuquerque-Bernalillo County; Infrastructure and Interstate Transport State Implementation Plan for the 2008 Lead National Ambient Air Quality Standards | |
| 80 FR 54773 - Proposed Collection; Comment Request | |
| 80 FR 54713 - Single Family Housing Direct Loan Program | |
| 80 FR 54723 - Air Plan Approval; Indiana; SO2 | |
| 80 FR 54744 - Air Plan Approval; Indiana; SO2 | |
| 80 FR 54744 - Air Plan Approval; Wisconsin; Wisconsin State Board Requirements | |
| 80 FR 54807 - Notice of Public Information Meeting and Comment Deadline in the Coordinated Remedy Program Proceeding for the Replacement of Certain Takata Air Bag Inflators | |
| 80 FR 54746 - World Trade Center Health Program; Addition of New-Onset Chronic Obstructive Pulmonary Disease and Acute Traumatic Injury to the List of WTC-Related Health Conditions | |
| 80 FR 54718 - Safety Zone; Mad Dog Truss Spar, Green Canyon 782, Outer Continental Shelf on the Gulf of Mexico | |
| 80 FR 54933 - Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions | |
| 80 FR 54811 - Federal Property Suitable as Facilities To Assist the Homeless | |
| 80 FR 54799 - Chincoteague National Wildlife Refuge and Wallops Island National Wildlife Refuge, Accomack County, Virginia; Final Comprehensive Conservation Plan and Environmental Impact Statement | |
| 80 FR 54701 - Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards |
Food and Nutrition Service
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Census Bureau
National Oceanic and Atmospheric Administration
Air Force Department
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National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Land Management Bureau
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Workers Compensation Programs Office
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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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National Aeronautics and Space Administration.
Final rule.
NASA has adopted as final, with changes, an interim rule to implement regulations for Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards.
Barbara Orlando, NASA, Office of Procurement, Contract and Grants Policy Division (Suite 5L34); (202) 358-3911; email:
An interim rule was published on 19 December, 2014 (79 FR 75872) implementing the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards. This part establishes policies and procedures for grants and cooperative agreements awarded by National Aeronautics and Space Administration (NASA) to non-Federal entities, commercial firms (when cost sharing is not required), and foreign organizations as allowed by 2 CFR 200.101 Applicability. The policies and procedures that recipients must follow are those appearing in subparts A through F of 2 CFR part 200 and as supplemented by 2 CFR part 1800. For the supplemental guidance, NASA has adopted section numbers that correspond to those in the OMB guidance in 2 CFR part 200.
No public comments were received. However, upon internal review NASA identified some areas that needed changing and/or clarifying. The first group of changes were editorial changes to provide clarification. NASA added definitions to provide clarity to the various sections of this regulation. Notable definition changes occurred as follows:
• Referencing the term “award” when referring to both grant and cooperative agreement awards.
• Clarifying the roles of the Administrative Grant Officer, Grant Officer and NASA Technical Officer. And
• Including definitions of “original signature” and ”prescription.”
Language was added to 2 CFR 1800.306 clarifying that NASA may require matching funds on some research opportunities.
A second group of changes was made to Appendix B, Terms and Conditions. The most substantive changes were to 2 CFR 1800.900, 1800.906, 1800.907, 1800.909, 1800.918, 1800.923, 1800.924 and 1800.925 as follows:
• 2 CFR 1800.900 was changed by adding clarification that State laws supersede the terms and conditions of a grant award; as required in the Presidential Memorandum on Preemption.
• 2 CFR 1800.906 was changed to assure compliance with laws regarding the use of appropriated funds.
• 2 CFR 1800.907 was changed to expand the exemption for prior approval to include any research grant not just those awarded through the Federal Demonstration Partnership.
• 2 CFR 1800.909 and 1800.923 were changed to remove references to the Federal Acquisition Regulation (FAR) and remove those segments that apply to contracts, such as withholding payments, that are not applicable to assistance awards.
• 2 CFR 1800.918 was changed to clarify flow down requirements.
• 2 CFR 1800.924 was changed to reflect a new structure for reporting to the New Technology Officers. and
• 2 CFR 1800.925 Invention Reporting and Rights was eliminated since it duplicated parts 2 CFR 1800.902. All subsequent sections were renumbered to reflect the elimination of this section.
NASA determined that the changes implemented with this revision will benefit the NASA financial assistance community by reducing administrative costs through clarifying ambiguous terms, reducing the reporting burden, and eliminating duplicative regulations.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Paperwork Reduction Act (Pub. L. 104-13) does not apply because this final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Federal financial assistance.
Accordingly, NASA adopts the interim rule published December 19, 2014, at 79 FR 75871, as final with the following revision of part 1800:
Appendix A to Part 1800—Certifications, Assurances, and Representations
Appendix B to Part 1800—Terms and Conditions
51 U.S.C. 20113 (e), Pub. L. 97-258, 96 Stat. 1003 (31 U.S.C. 6301
The National Aeronautics and Space Administration (NASA) awards grants and cooperative agreements under the authority of 51 U.S.C. 20113 (e), the National Aeronautics and Space Act. This part 1800 is issued under the authority of 51 U.S.C. 20113 (e), Pub. L. 97-258, 96 Stat. 1003 (31 U.S.C. 6301
This part adopts the Office of Management and Budget (OMB) guidance in subparts A through F of 2 CFR part 200, as supplemented by this part, as the NASA policies and procedures for uniform administrative requirements, cost principles, and audit requirements for Federal awards. It thereby gives regulatory effect for NASA to the OMB guidance as supplemented by this part.
(a) This part establishes policies and procedures for grants and cooperative agreements awarded by NASA to non-Federal entities, commercial firms (when cost sharing is not required), and foreign organizations as allowed by 2 CFR 200.101 Applicability. The policies and procedures that you must follow are those appearing in subparts A through F of 2 CFR part 200 and as supplemented by 2 CFR part 1800. For supplemental guidance, NASA has adopted section numbers that correspond to those in the OMB guidance in 2 CFR part 200.
(b) Throughout this part, the term “award” refers to both “grant” and “cooperative agreement” unless otherwise indicated.
(c) When commercial firms are required to provide cost sharing pursuant to 2 CFR 200.306, Cost Sharing, the regulations at 14 CFR part 1274 apply.
(d)(1) In general, research with foreign organizations will not be conducted through grants or cooperative agreements, but instead will be accomplished on a no-exchange-of-funds basis. In these cases, NASA enters into agreements undertaking projects of international scientific collaboration. NASA policy on performing research with foreign organizations on a no-exchange-of-funds basis is set forth at NASA FAR Supplement (NFS) 1835.016-70. In rare instances, NASA may enter into an international agreement under which funds will be transferred to a foreign recipient.
(2) Grants or cooperative agreements awarded to foreign organizations are made on an exceptional basis only. Awards require the prior approval of the Headquarters Office of International and Interagency Relations and the Headquarters Office of the General Counsel. Requests to issue awards to foreign organizations are to be coordinated through the Office of Procurement, Program Operations Division.
This part will be amended by publication of changes in the
The official site for accessing the NASA Grant and Cooperative Agreement Regulation, including notices, internal guidance, certifications, Grants and Cooperative Agreements Manual and other source information is on the internet at
(a) A deviation is required for any of the following—
(1) When a prescribed term or condition set forth verbatim in this Part 1800 is modified or omitted.
(2) When a term or condition is set forth in this Part, but not for use verbatim, and the Center substitutes a term or condition which is inconsistent with the intent, principle, and substance of the term or condition.
(3) When a form prescribed by this Part is altered or another form is used in its place.
(4) When limitations, imposed by this regulation upon the use of an award term or condition, form, procedure, or any other award action, are changed.
(5) When a form is created for recipient use that constitutes a “Collection of Information” within the meaning of the Paperwork Reduction Act (44 U.S.C. 35) and its implementation in 5 CFR part 1320.
(b) Requests for authority to deviate from this part shall be submitted, by appropriate NASA staff, to the Office of Procurement, NASA Headquarters, Program Operations Division. Requests, signed by the procurement officer, shall contain the following—
(1) A full description of the deviation, the circumstances in which it will be used, and identification of the requirement from which a deviation is sought;
(2) The rationale for the request, pertinent background information, and the intended effect of the deviation;
(3) The name of the recipient, identification of the award affected, and the dollar value;
(4) A statement as to whether the deviation has been requested previously, and, if so, details of that request; and
(5) A copy of legal counsel's concurrence or comments.
(c) Where it is necessary to obtain an exception from 2 CFR part 200, the Program Operations Division will process all necessary documents. (See 2 CFR 200.102.)
(a) The following definitions are a supplement to the subpart A definitions set forth at 2 CFR 200.2 through 200.99.
The certifications and representations for NASA may be found at Appendix A of this part and
NASA waives the approval requirement for pre-award costs of 90 days or less.
The terms and conditions for NASA may be found at Appendix B of this part and
Payments under awards with commercial firms will be made based on incurred costs. Standard Form 425 is not required. Commercial firms shall not submit invoices more frequently than quarterly. Payments to be made on a more frequent basis require the written approval of the Grant Officer.
In some cases NASA research projects require cost sharing/match. Where cost sharing/match is required, recipients must secure and document matching funds, to receive the Federal award.
Under the authority of the Childs Act, 31 U.S.C. 6301 to 6308, NASA has determined to vest title to property acquired with Federal funds in the recipient without further obligation to NASA, including reporting requirements.
Due to the substantial involvement on the part of NASA under a cooperative agreement, intellectual property may be produced by Federal employees and NASA contractors tasked to perform NASA assigned activities. Title to intellectual property created under the cooperative agreement by NASA or its contractors will initially vest with the creating party or parties. Certain rights may be exchanged with the recipient.
NASA reserves the ability to terminate a Federal award in accordance with § 200.338 through § 200.342 and as set forth in 2 CFR 1800.921.
Payment of fee or profit is consistent with an activity whose principal purpose is the acquisition of goods and services for the direct benefit or use of the United States Government, rather than an activity whose principal purpose is assistance. Therefore, the Grants Officer shall use a procurement contract, rather than assistance instrument, in all cases where fee or profit is to be paid to the recipient of the instrument or the instrument is to be used to carry out a program where fee or profit is necessary to achieving program objectives. Grants and Cooperative Agreements shall not provide for the payment of fee or profit to the recipient.
These Certifications, Assurances, and Representations apply to all awards and are required at time of application.
A.1 Certifications, Assurances, and Representations.
A.2 Certification of Compliance on Proposal Cover Page.
A.3 Assurance of Compliance with the National Aeronautics and Space Administration Regulations Pursuant to Nondiscrimination in Federally Assisted Programs.
A.4 Certification Regarding Lobbying.
A.5 Certification Regarding Debarment, Suspension, and Other Matters of Responsibility.
A.6 Certifications to Implement Restrictions in Appropriations Acts.
Unless prohibited by statute or codified regulation, NASA will allow recipients to submit certain certifications and representations required by statute, executive order, or regulation on an annual basis, if the recipients have ongoing and continuing relationships with the agency. Annual certifications and representations shall be signed by responsible officials with the authority to ensure recipients' compliance with the pertinent requirements. Recipients determine how annual representations affect their responsibility to obtain required certifications from pass-through entities. All Certification required for an application can be found at
By submitting the proposal identified in the Cover Sheet/Proposal Summary in response to this Research Announcement, the Authorizing Official of the proposing organization (or the individual Proposer if there is no proposing organization) as identified below—
(a) Certifies that the statements made in this proposal are true and complete to the best of his/her knowledge;
(b) Agrees to accept the obligation to comply with NASA award terms and conditions if an award is made as a result of this proposal; and
(c) Confirms compliance with all applicable terms and conditions, rules, and stipulations set forth in the Certifications, Assurances, and Representations contained in this NRA or CAN. Willful inclusion of false information in this proposal and/or its supporting documents, or in reports required under an ensuing award, is a criminal offense (U.S. Code, Title 18, Section 1001).
The Organization, corporation, firm, or other organization on whose behalf this assurance is made, hereinafter called “Applicant”
“HEREBY acknowledges and agrees that it must comply (and require any subawardees, contractors, successors, transferees, and assignees to comply) with applicable provisions of National laws and policies prohibiting discrimination, including but not limited to—
1. Title VI of the Civil Rights Act of 1964, as amended, which prohibits recipients of Federal financial assistance from discriminating on the basis of race, color, or national origin (42 U.S.C. 2000d
2. Title IX of the Education Amendments of 1972, as amended, which prohibits discrimination on the basis of sex in education programs or activities (20 U.S.C. 1681
a. The Applicant is required to designate at least one employee to serve as its Title IX coordinator (14 CFR 1253.135(a)).
b. The Applicant is required to notify all of its program beneficiaries of the name, office, address, and telephone number of the employee(s) designated to serve as the Title IX coordinators (14 CFR 1253.135(a)).
c. The Applicant is required to publish internal grievance procedures to promptly and equitably resolve complaints alleging illegal discrimination in its programs or activities (14 CFR 1253.135(b).
d. The Applicant is required to take specific steps to regularly and consistently notify program beneficiaries that The Applicant does not discriminate in the operation of its programs and activities (14 CFR 1253.140).
3. Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits The Applicant from discriminating on the basis of disability (29 U.S.C. 794) as implemented by NASA Section 504 regulations, 14 CFR part 1251.
a. The Applicant is required to designate at least one employee to serve as its Section 504 coordinator (14 CFR 1251.106(a)).
b. The Applicant is required to notify all its program beneficiaries of the name, office, address, and telephone number of the employee(s) designated to serve as the Section 504 coordinator (14 CFR 1251.106(a)).
c. The Applicant is required to publish internal grievance procedures to promptly and equitably resolve complaints alleging illegal discrimination in its programs or activities (14 CFR 1251.106(b)).
d. The Applicant is required to take specific steps to regularly and consistently notify program beneficiaries that the Applicant does not discriminate in the operation of its programs and activities (14 CFR 1251.107).
4. The Age Discrimination Act of 1975, as amended, which prohibits the Applicant from discriminating on the basis of age (42 U.S.C. 6101
The Applicant also acknowledges and agrees that it must cooperate with any compliance review or complaint investigation conducted by NASA and comply (and require any subawardees, contractors, successors, transferees, and assignees to comply) with applicable terms and conditions governing NASA access to records, accounts, documents, information, facilities, and staff. The Applicant must keep such records and submit to the responsible NASA official or designee timely, complete, and accurate compliance reports at such times, and in such form and containing such information, as the responsible NASA official or his designee may determine to be necessary to ascertain whether the Applicant has complied or is complying with relevant obligations and must immediately take any measure determined necessary to effectuate this agreement. The Applicant must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance.
The United States shall have the right to seek judicial enforcement of these obligations. This assurance is binding on the Applicant, its successors, transferees, and assignees, and the person or persons whose signatures appear below are authorized to sign on behalf of the Applicant.”
Under penalty of perjury, the undersigned officials certify that they have read and understand their obligations as herein described, that the information submitted in conjunction with this document is accurate and complete, and that the recipient is in compliance with the nondiscrimination requirements set out above.
No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal award, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which
Pursuant to Executive Order 12549, Debarment and Suspension, and implemented at 2 CFR parts 180 and 1880—
(1) The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals—
(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency;
(b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statues or commission of embezzlement theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and
(d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State, or local) terminated for cause or default.
(2) Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
The text of these certifications is found at
(a) Unless otherwise noted in the prescriptive language awards with Non-Federal entities shall incorporate by reference the terms and conditions set forth in sections §§ 1800.901 through 1800.918 of this appendix. Any of the terms and conditions in sections §§ 1800.919 through 1800.928 shall be referenced in full text. The program office may need to include information required for certain terms and conditions to allow for additional information, or permit minor modifications. For example, the Grant Officer may substitute appropriate sections of § 1800.902, Technical Publications and Reports,” with reporting requirements specified by the program office.
(b) Additional special terms and conditions may be included to the extent they are required and are not inconsistent with the other terms and conditions in this Appendix B. A deviation in accordance with 2 CFR 1800.6 is required before a new term and condition inconsistent with the standard terms and conditions can be included in an award.
(c) Whenever the word “award” appears in this Appendix, it shall be deemed to include, both grants and cooperative agreements, as appropriate.
(d) Terms and conditions for research awards awarded to foreign organizations, when approved by Headquarters, will be provided in full text. Referenced handbooks, statutes, or other regulations, which the recipient may not have access to, must be made available when requested by the foreign organization.
(e) Awards issued by NASA to commercial organizations where cost sharing is not required shall incorporate the terms and conditions set forth in this appendix.
(f) Terms and conditions do not supersede state laws.
Prescription—This term and condition implements 2 CFR part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal awards herein referred to as the “OMB Uniform Guidance.” The Grant Officer shall use this term and condition in all awards with recipients that are other than commercial firms. The Grant Office shall use Alternate 1 for awards with commercial firms.
This award is subject to the requirements set forth in 2 CFR part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal awards as adopted by NASA in Part 1800 of Title 2 of the Code of Federal Regulations. Specific terms and conditions set forth in this award document are provided to supplement and clarify, not replace, the OMB Uniform Guidance, except in circumstances where a waiver from OMB Uniform Guidance requirements has been obtained by NASA.
(a) With the exception of Subpart E and F, this award is subject to the requirements set forth in OMB Guidance on Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal awards at 2 CFR Chapter 1, and Chapter II Part 200 as adopted by NASA in Part 1800 of Title 2 of the Code of Federal Regulations. Specific terms and conditions set forth in this award document are provided to supplement and clarify, not replace, the Guidance, except in circumstances where a waiver from the OMB Uniform Guidance requirements has been obtained by NASA.
(b) In lieu of Subparts E and F of 2 CFR part 200, the expenditure of Government funds by the recipient and the allowability of costs recognized as a resource contribution by the recipient shall be governed by the FAR cost principles implemented by FAR Parts 30, 31, and 48 CFR part 99. (If the recipient is a consortium which includes non-commercial firm members, cost allowability for those members will be determined by the OMB Uniform Guidance at Subpart E and F of 2 CFR 200.)
Prescription—The Grant Officer shall include on a “substantially as” basis in all awards. The requirements set forth under this term and condition may be modified by the Grant Officer based on specific report needs for the award.
(a) NASA encourages the widest practicable dissemination of research results at any time during the course of the investigation.
(1) All information disseminated as a result of the award shall contain a statement which acknowledges NASA's support and identifies the award by number (
(2) Except for articles or papers published in scientific, technical, or professional journals, the exposition of results from NASA supported research should also include the following disclaimer— “Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the National Aeronautics and Space Administration.”
(3) As a courtesy, any release of a NASA photograph or illustration should list NASA first on the credit line followed by the name of the Principal Investigator's Institution. As an example— “Photograph or illustration, figure, etc. courtesy of NASA or NASA Center managing the mission or program and the Principal Investigator's institution.”
(b) Reports shall be in the English language, informal in nature, and ordinarily not exceed three pages (not counting bibliographies, abstracts, and lists of other media). The recipient shall submit the following reports—
(1) A Progress Report for all but the final year of the award. Each report is due 60 days before the anniversary date of the award and shall briefly describe what was accomplished during the reporting period. A term or condition specifying more frequent reporting may be required.
(2) A Summary of Research or Educational Activity Report is due within 90 days after the end date for the period of performance, regardless of whether or not support is continued under another award. This report shall be a comprehensive summary of significant accomplishments during the duration of the award.
(c) Progress Reports, Summaries of Research, and Educational Activity Reports shall include the following on the first page:
(1) Title of the award.
(2) Type of report.
(3) Name of the principal investigator.
(4) Period covered by the report.
(5) Name and address of the recipient's institution.
(6) Award number.
(d) Progress Reports, Summaries of Research, and Educational Activity Reports shall be distributed as follows:
(1) The original report, in both hard copy and electronic format, to the Technical Officer.
(2) One copy to the NASA Technical Officer and New Technology Officer with a notice to the Grant Officer, that a report was sent.
Prescription—The Grant Officer shall include this term and condition in all awards except awards with commercial firms. If included, minor modifications to the term and condition, such as the time frame for cost extensions, is permissible.
(a) It is NASA's policy to provide maximum possible continuity in funding award-supported research and educational activities, therefore, awards may be extended for additional periods of time when necessary to complete work that was part of the original award. NASA generally only approves such extensions within funds already made available. Any extension that would require additional funding must be supported by a proposal submitted at least three months in advance of the end date of the period of performance.
(b) Recipients may extend the expiration date of an award if additional time beyond the established end date is required to assure adequate completion of the original scope of work within the funds already made available. For this purpose, the recipient may make a one-time no-cost extension, not to exceed 12 months, prior to the established expiration date. Written notification of such an extension, with the supporting reasons, must be received by the NASA Grant Officer at least ten days prior to the expiration of the award. A copy of the extension must also be forwarded to cognizant Office of Naval Research (ONR) office, if administration has been delegated to ONR. NASA reserves the right to disapprove the extension if the requirements set forth at § 200.308(d) (2) are not met.
(c) Requests for approval for all other no-cost extensions must be submitted in writing to the NASA Grant Officer. A copy of this request must also be forwarded to cognizant Office of Naval Research (ONR) office, if administration has been delegated to ONR.
Prescription—This term and condition implements § 200.338 through § 200.342. The Grant Officer shall include this term and condition in all awards.
Termination and enforcement conditions of this award are specified in § 200.338 through § 200.342.
Prescription—The Grant Officer shall include this term and condition in all awards.
(a) The recipient shall obtain the approval of the NASA Grant Officer for a change of the Principal Investigator, or for a significant absence of the Principal Investigator from the project, defined as a three month absence from the program or a 25 percent reduction in time devoted to the project. Significantly reduced availability of the services of the Principal Investigator(s) named in the award instrument could be grounds for termination, unless alternative arrangements are made and approved in writing by the Grant Officer.
(b) Prior written approval is required from NASA if there is to be a significant change in the objective or scope of the project.
Prescription—This term and condition implements § 200.302. The Grant Officer shall include this term and condition in all awards except when the recipient is a commercial firm.
(a) Advance payments will be made by the Financial Management Office of the NASA Center assigned financial cognizance of the award, using the Department of Health and Human Services' Payment Management System (DHHS/PMS), in accordance with procedures provided to the recipient. The recipient shall submit a Federal Financial Report (SF 425), and, when applicable, a Federal Financial Report Attachment (SF 425A) electronically to DHHS/PMS within 30 days following the end of each Federal fiscal quarter (
(b) In addition, the recipient shall submit a final SF 425 in electronic or paper form to NASA within 90 calendar days after the end date of the period of performance. The final SF 425 shall pertain only to the completed award and shall include total disbursements from inception through completion. The report shall be marked “Final.” The final SF 425 shall be submitted to NASA per the Grants and Cooperative Agreement Manual (GCAM) Exhibit E, Required Publications and Reports, A copy of the GCAM is located at
(c) By signing any report delivered under the award, the authorizing official for the recipient certifies to the best of his or her knowledge and belief that the report is true, complete, and accurate, and the expenditures, disbursements and cash receipts are for the purposes and intent set forth in the award documents. The authorizing official by signing the report also certified he or she is aware that any false, fictitious, or fraudulent information, or the omission of any material fact, may subject him or her to criminal, civil or administrative penalties for fraud, false statements, false claims or otherwise. (U.S. Code, Title 18, Section 1001 and Title 31 Section 3729-3733 and 3801-3812.)
(d) Unless otherwise directed by the Grant Officer, any unexpended balance of funds which remains at the end of any funding period, except the final funding period of the award, may be carried over to the next funding period, and may be used to defray costs of any funding period of the award. This includes allowing the carryover of funds to the second and subsequent years of a multiple year award. Unexpended funds from one award may not be carried over to a new or different award. This term and condition also applies to subawardees/subcontractors performing substantive work under the award. NASA reserves the right to remove unexpended balances from awards when insufficient efforts have been made by the awardee to liquidate funding balances in a timely fashion.
Prescription—The Grant Officer shall include this term and condition in all awards except when recipient is a commercial firm.
(a) NASA permits acquisition of special purpose and general purpose equipment specifically required for use exclusively for research activities.
(1) Acquisition of special purpose or general purpose equipment costing in excess of $5,000 (unless a lower threshold has been established by the recipient) and not included in the approved proposal budget, requires the prior approval of the NASA Grant Officer. Requests to the Grant Officer for the acquisition of equipment shall be supported by written documentation setting forth the description, purpose, and acquisition value of the equipment, and including a written certification that the equipment will be used exclusively for research, activities. (A change in the model number of a prior approved piece of equipment does not require resubmission for that item.) Research awards are exempt from the prior approval requirement.
(2) Special purpose and general purpose equipment costing in excess of $5,000 (unless a lower threshold has been established by the recipient) acquired by the recipient under an award for the purpose of research shall be titled to the recipient as “exempt” without further obligation to NASA, including reporting of the equipment, in accordance with § 200.312(c) and § 1800.312. Special purpose or general purpose equipment costing in excess of $5,000 (unless a lower threshold has been established by the recipient) acquired by the recipient under an award for non-research work shall be titled to the recipient in accordance with § 200.313.
(3) Special purpose or general purpose equipment acquired by the recipient with award funds, valued under $5,000 (unless a lower threshold is established by the recipient) are classified as “supplies,” do not require the prior approval of the NASA Grant Officer, shall vest in the recipient and will be titled to the recipient in accordance with § 200.314.
(4) Award funds may be expended for the acquisition of land or interests therein or for the acquisition and construction of facilities only under a facilities award.
(b) As required the recipient shall submit an annual Inventory Report, to be received no later than October 15 of each year, which lists all reportable non-exempt equipment and/or Federally owned property in its custody as of September 30. Negative responses for annual Inventory Reports (when there is no reportable equipment) are not required. A Final Inventory Report of Federally Owned Property, including equipment where title was taken by the Government, will be submitted by the recipient no later than 60 days after the end date of the period of performance. Negative responses for Final Inventory Reports are required.
(1) All reports will include the information listed in paragraph (d)(1) of § 200.313, Equipment. No specific report form or format is required, provided that all necessary information is provided.
(2) The original of each report shall be submitted to the Deputy Chief Financial Officer (Finance). Copies shall be furnished to the Center Industrial Property Officer and to ONR.
Prescription—The Grant Officer shall include this term and condition in all awards, except awards with large businesses.
As stated at § 200.315(c), this award is subject to the provisions of 37 CFR 401.3(a) which requires use of the standard clause set out at 37 CFR 401.14 “Patent Rights (Small Business Firms and Nonprofit Organizations)” and the following:
(a) Definitions.
The words “contract” or “Contractor” are used in 37 CFR 401.14. Those words shall be replaced by the words “award” or “recipient,” respectively.
The term “Federal Agency,” “agency,” or “funding Federal agency” is used 37 CFR 401.14, the term shall be replaced by the term “NASA.”
The term “award,” as used in this term and condition, means any actual or proposed grant, cooperative agreement, understanding, or other arrangement, and includes any assignment, substitution of parties, subaward, or subcontract executed or entered into thereunder.
(b) The below items are added to the end of paragraph (c) of 37 CFR 401.14 are as follows:
“(5) The recipient may use whatever format is convenient to disclose subject invention required in subparagraph (c)(1). NASA prefers that the recipient use either the electronic or paper version of NASA Form 1679, Disclosure of Invention and New Technology (Including Software), to disclose subject inventions. Both the electronic and paper version of the NASA Form 1679 may be accessed at the electronic New Technology Reporting Web site
“(6) In addition to the above, the recipient shall provide the New Technology Representative, as designated under term and condition “Designation of New Technology Representative and Patent Representative” at 1800.924 of this award, the following:
(i) A yearly interim new technology summary report listing any subject inventions required to be disclosed during the preceding year (or a statement certifying there were none).
(ii) A final new technology summary report listing all subject inventions (or a statement certifying there were none) for the entire award period; which report shall be submitted within 90 days after the end date for the period of performance within the designated system noted within the award document.”
(c) The below item is added to the end of paragraph (f)(1) of 37 CFR 401.14 “Patent Rights” as follows:
“(iii) The recipient shall through employee agreements or other suitable recipient policy, require that its employees “will assign and do hereby assign” to the recipient all right, title and interest in any subject invention under this award.”
(d) The term “subcontract” in paragraph (g) of 37 CFR 401.14 shall include purchase orders.
(f) The following constitutes paragraph “(l)” of in 37 CFR 404.14—
“(l) Communications. A copy of all submissions or requests required 37 CFR 401.14, plus a copy of any reports, manuscripts, publications or similar material bearing on patent matters, shall be sent to the Center Patent Counsel and the NASA Grant Officer in addition to any other submission requirements in the award terms and conditions (
(g) NASA Inventions. NASA will use reasonable efforts to report inventions made by NASA employees as a consequence of, or which bear a direct relation to, the performance of specified NASA activities under this agreement and, upon timely request, will use reasonable efforts to grant the recipient an exclusive, or partially exclusive, revocable, royalty-bearing license, subject to the retention of a royalty-free right of the Government to practice or have practiced the invention by or on behalf of the Government.
(h) The recipient agrees, subject to (g)(1) below, that the Government may duplicate and disclose subject invention disclosures and all other reports and papers furnished or required to be furnished pursuant to this term and condition.
(1) Publishing information concerning an invention before a patent application is filed on a subject invention may create a bar to a valid patent. To avoid this bar, agencies may withhold information from the public that discloses any invention in which the Government owns or may own a right, title, or interest (including a nonexclusive license) (see 35 U.S.C. 205 and 37 CFR part 401). Agencies may only withhold information concerning inventions for a reasonable time in order for a patent application to be filed. Once filed in any patent office, agencies are not required to release copies of any
(2) In the event NASA contractors are tasked to perform work in support of specified activities under a cooperative agreement and inventions are made by contractor employees, the contractor will normally retain title to its employee inventions in accordance with 35 U.S.C. 202, 14 CFR part 1245, and/or Executive Order 12591. In the event the contractor decides not to pursue rights to title in any such invention and NASA obtains or retains title to such inventions, NASA will use reasonable efforts to report such inventions and, upon timely request, will use reasonable efforts to grant the recipient an exclusive, or partially exclusive, revocable, royalty-bearing license, subject to the retention of a royalty-free right of the Government to practice or have practiced the invention by or on behalf of the Government.
Prescription—The Grant Officer may revise the language under this term and condition to modify each party's rights based on the particular circumstances of the program and/or the recipient's need to protect specific proprietary information. Any modification to the standard language set forth under the term and condition requires the concurrence of the Center's Patent Counsel and that the term and condition be printed in full text.
(a) “Data,” as used in this term and condition, means recorded information, regardless of form, the media on which it may be recorded, or the method of recording. The term includes, but is not limited to, data of a scientific or technical nature, and any copyrightable work, including computer software and documentation thereof.
(b) As to data first produced by recipient in carrying out recipient's responsibilities under this award in which the recipient asserts copyright, or data for which copyright ownership was acquired under the grant, the recipient grants to the Federal Government (Government), a royalty-free, nonexclusive and irrevocable license to use, reproduce, distribute (including distribution by transmission) to the public, perform publicly, prepare derivative works, and display publicly, data in whole or in part and in any manner for Federal purposes and to have or permit others to do so for Federal purposes only.
(c) In order that the Government may exercise its license rights in data, the Government, upon request to the recipient, shall have the right to review and/or obtain delivery of data resulting from the performance of work under this award or acquired under this award, and authorize others to receive such data to use for Federal purposes.
(d) Cost Sharing and/or Matching Efforts. When the recipient cost shares with the Government on the effort, the following paragraph also applies—
“(1) In the event data first produced by the recipient in carrying out recipient's responsibilities under this award is furnished to NASA, and recipient considers such data to embody trade secrets or to comprise commercial or financial information which is privileged or confidential, and such data is so identified with a suitable notice or legend, the data will be maintained in confidence and disclosed and used by the Government and its contractors (under suitable protective conditions) only for experimental, evaluation, research and development purposes, by or on behalf of the Government for an agreed to period of time, and thereafter for Federal purposes as defined in § 1800.909(b).”
(e) For Cooperative Agreements, the following paragraph also applies—
“(1) As to data first produced by NASA in carrying out NASA's responsibilities under a cooperative agreement and which data would embody trade secrets or would comprise commercial or financial information that is privileged or confidential if it has been obtained from the recipient, such data will be marked with an appropriate legend and maintained in confidence for 5 years (unless a shorter period has been agreed to between the Government and recipient) after development of the information, with the express understanding that during the aforesaid period such data may be disclosed and used (under suitable protective conditions) by or on behalf of the Government for Government purposes only, and thereafter for any purpose whatsoever without restriction on disclosure and use. Recipient agrees not to disclose such data to any third party without NASA's written approval until the aforementioned restricted period expires.”
Prescription—This term and condition implements Executive Order 12829. The Grant Officer shall include in all awards.
NASA awards normally do not involve classified information. However, if it is known in advance that an award involves classified information or if the work on the award is likely to develop classified information, individuals performing on the award who will have access to the information must obtain the appropriate security clearance in advance of performing on the award, in accordance with NASA Procedural Requirements (NPR) 1600.2, NASA Classified National Security Information (CNSI) w/Change 2. When access to classified information is not originally anticipated in the performance of an award, but such information is subsequently sought or potentially developed by the award recipient, the NASA Grant Officer who issued the award shall be notified immediately, and prior to work under the award proceeding, to implement the appropriate clearance requirements.
Prescription—This term and condition implements Executive Order 11246. The Grant Officer shall include in all awards.
(a) To the extent provided by law and any applicable agency regulations, this award and any program assisted thereby are subject to the provisions of Title VI of the Civil Rights Act of 1964 (Pub. L. 88-352), Title IX of the Education amendments of 1972 (Pub. L. 92-318, 20 U.S.C. 1681
(b) Except for commercially available supplies, materials, equipment, or general support services, the recipient shall obtain an assurance of compliance as required by NASA regulations from each organization that applies or serves as a subrecipient, subawardee, contractor or subcontractor under this award.
(c) Work on NASA awards is subject to the provisions of Title VI of the Civil Rights Act of 1964 (Pub. L. 88-352; 42 U.S.C. 2000d-1), Title IX of the Education Amendments of 1972 (20 U.S.C. 1680
Prescription—This term and condition implements the Clean Air Act at 42 U.S.C. 7401
The recipient agrees to the following:
(a) Comply with applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended (42 U.S.C. 7401
(b) Ensure that no portion of the work under this award will be performed in a facility listed on the Environmental Protection Agency (EPA) List of Violating Facilities on the date that this award was effective unless and until the EPA eliminates the name of such facility or facilities from such listings.
(c) Use its best efforts to comply with clean air standards and clean water standards at the facility in which the award is being performed.
(d) Insert the substance of these terms and conditions into any nonexempt subaward or contract under the award.
(e) Report violations to NASA and to EPA.
Prescription—This term and condition implements Executive Order 12829. The Grant Officer shall include this term and condition in all awards. The term and condition must be augmented to conform to the requirements of OMB Guidance M-05-24 “Implementation of Homeland Security Presidential Directive (HSPD) 12—Policy for a Common Identification Standard for Federal Employees and Contractors” when a
(a) NASA reserves the right to perform security checks and to deny or restrict access to a NASA Center, facility, or computer system, or to NASA technical information, as NASA deems appropriate. To the extent the recipient needs such access for performance of the work, the recipient shall ensure that individuals needing such access provide the personal background and biographical information requested by NASA. Individuals failing to provide the requested information may be denied such access.
(b) All requests to visit a NASA Center or facility must be submitted in a timely manner in accordance with instructions provided by that Center or facility.
Prescription—This term and condition implements The Fly American Act, 49 U.S.C. 1517 and the Department of Transportation regulations on hazardous materials. The Grant Officer will include this term and condition in all awards.
(a) The Fly American Act, 49 U.S.C. 1517, requires the recipient to use U.S. flag air carriers for international air transportation of personnel and property to the extent that service by those carriers is available.
(b) Department of Transportation regulations, 49 CFR 173, govern recipient shipment of hazardous materials and other items.
Prescription—This term and condition implements NPR 8715.3C or its successor requirements document. The Grant Officer will include this term and condition in all awards.
(a) The recipient shall act responsibly in matters of safety and shall take all reasonable safety measures in performing under this award. The recipient shall comply with all applicable Federal, state, and local laws relating to safety. The recipient shall maintain a record of, and will notify the NASA Grant Officer immediately (within one workday) of any accident involving death, disabling injury or substantial loss of property in performing this award. The recipient will immediately (within one workday) advise NASA of hazards that come to its attention as a result of the work performed.
(b) Where the work under this award involves flight hardware, the hazardous aspects, if any, of such hardware will be identified, in writing, by the recipient. Compliance with this term and condition by subawardees/subcontractors shall be the responsibility of the recipient.
Prescription—This term and condition implements section 319 of Public Law 106-391, the NASA Authorization Act. The Grant Officer will include this term and condition in all awards, except awards with foreign recipients.
As stated in Section 319 of Public Law 106-391, the NASA Authorization Act as amended recipients are encouraged to purchase only American-made equipment and products.
Prescription—This term and condition implements § 200.336, The Grant Officer shall include this term and condition in all awards.
Recipients of this award are subject to the requirements of 14 CFR 1275, “Investigation of Research Misconduct.”
Prescription—The Grant Officer shall include this term and condition in all awards.
(a) With respect to activities undertaken under this award, the recipient agrees not to make any claim against NASA or the U.S. Government with respect to the injury or death of its employees or its subawardees/contractors and subaward/subcontractor employees, or to the loss of its property or that of its subawardeees/contractors and subawardees/subcontractors, whether such injury, death, damage or loss arises through negligence or otherwise, except in the case of willful misconduct.
(b) In addition, as applicable, the recipient agrees to indemnify and hold the U.S. Government and its contractors and subcontractors harmless from any third party claim, judgment, or cost arising from the injury to or death of any person, or for damage to or loss of any property, arising as a result of its possession or use of any U.S. Government property. If State law prohibits the recipient from accepting indemnification, then the recipient shall ensure this term and condition applies to all subrecipients, subawardees, contractors or subcontractors under this award.
Prescription—The Grant Officer shall include this term and condition in all cooperative agreement awards.
(a) This award is a cooperative agreement and it is anticipated there will be substantial NASA involvement during performance of the effort. NASA and the recipient mutually agree to the following statement of anticipated cooperative interactions which may occur during the performance of this effort—
(Reference the approved proposal that contains a detailed description of the work and insert a concise statement of the exact nature of the cooperative interactions NASA and the recipient will provide.)
(b) The terms “award” and “recipient” mean “cooperative agreement” and “recipient of cooperative agreement,” respectively, wherever the language appears in terms and conditions included in this agreement.
(c) NASA's ability to participate and perform its collaborative effort under this cooperative agreement is subject to the availability of appropriated funds and nothing in this cooperative agreement commits the United States Congress to appropriate funds therefore.
Prescription—The Grant Officer shall include this term and condition in multi-year awards. This term and condition does not have to be included in awards with commercial firms. If included, minor modifications to the term and condition, such as the time frame for cost extensions, are permissible.
This is a multiple-year award contingent on the availability of funds, scientific progress of the project, and continued relevance to NASA programs. NASA anticipates continuing support at approximately the following levels—
Prescription—The Grant Officer shall include this term and condition when incremental funding is used, changes as needed are permissible.
(a) Only $XXX of the amount indicated on the face of this award is available for payment and allotted to this award. NASA contemplates making additional allotments of funds during performance of this effort. It is anticipated that these funds will be obligated as appropriated funds become available without any action required by the recipient. The recipient will be given written notification by the NASA Grant Officer.
(b) The recipient agrees to perform work up to the point at which the total amount paid or payable by the Government approximates but does not exceed the total amount actually allotted to this award. NASA is not obligated to reimburse the recipient for the expenditure of amounts in excess of the total funds allotted by NASA to this grant or cooperative agreement. The recipient is not authorized to continue performance beyond the amount allotted to this award.
Special Note—Balance is contingent on availability of funds. The remaining balance to fully fund this year is $XXX.
Prescription—The Grant Officer shall include this term and condition when an award involves cost sharing, changes as need are permissible.
(a) NASA and the recipient will share in providing the resources necessary to perform the award. NASA funding and non-cash contributions (personnel, equipment, facilities, etc.) and the dollar value of the recipient's cash and/or non-cash contribution will be on a __ percent recipient basis.
(b) The funding and non-cash contributions by both parties are represented by the following dollar amounts—
(c) Criteria and procedures for allowable and allocable costs of cash and non-cash contributions shall be governed by § 200.306, Cost Sharing or Matching. The applicable Federal cost principles are cited in 2 CFR 200 Subpart E.
(d) The Recipient's share shall not be charged to the Government under this award or under any other contract or award.
Prescription— The Grant Officer shall include this term and condition in all grants with commercial firms other than those with small businesses. This term and condition is used in lieu of the term and condition at 2 CFR 1800.908, Patent Rights.
(a) Definitions.
Administrator, as used in this term and condition, means the Administrator of the National Aeronautics and Space Administration (NASA) or duly authorized representative.
The term “award,” as used in this term and condition, means any actual or proposed grant, cooperative agreement, understanding, or other arrangement, and includes any assignment, substitution of parties, subaward, or subcontract executed or entered into thereunder.
Made, as used in this term and condition, means conception or first actual reduction to practice; provided, that in the case of a variety of plant, the date of determination (as defined in section 41(d) of the Plant Variety Protection Act, 7 U.S.C. 2401(d)) must also occur during the period of performance.
Nonprofit organization, as used in this term and condition, means a domestic university or other institution of higher education or an organization of the type described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and exempt from taxation under section 501(a) of the Internal Revenue Code (26 U.S.C. 501(a)), or any domestic nonprofit scientific or educational organization qualified under a State nonprofit organization statute.
Practical application, as used in this term and condition, means to manufacture, in the case of a composition or product; to practice, in the case of a process or method; or to operate, in case of a machine or system; and, in each case, under such conditions as to establish that the invention is being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.
Reportable item, as used in this term and condition, means any invention, discovery, improvement, or innovation of the awardee, whether or not patentable or otherwise protectable under Title 35 of the United States Code, made in the performance of any work under any NASA award or in the performance of any work that is reimbursable under any term and condition in any NASA award providing for reimbursement of costs incurred before the effective date of the award. Reportable items include, but are not limited to, new processes, machines, manufactures, and compositions of matter, and improvements to, or new applications of, existing processes, machines, manufactures, and compositions of matter. Reportable items also include new computer programs, and improvements to, or new applications of, existing computer programs, whether or not copyrightable or otherwise protectable under Title 17 of the United States Code.
Small business firm, as used in this term and condition, means a domestic small business concern as defined at 15 U.S.C. 632 and implementing regulations (see 13 CFR 121.401
Subject invention, as used in this term and condition, means any reportable item which is or may be patentable or otherwise protectable under Title 35 of the United States Code, or any novel variety of plant that is or may be protectable under the Plant Variety Protection Act (7 U.S.C. 2321
(b) Allocation of principal rights.
(1) Presumption of title.
(i) Any reportable item that the Administrator considers to be a subject invention shall be presumed to have been made in the manner specified in paragraph (A) or (B) of section 20135(b)(1) of the National Aeronautics and Space Act of 1958 (51 U.S.C. 20135) (hereinafter called “the Act”), and that presumption shall be conclusive unless at the time of reporting the reportable item the recipient submits to the Grant Officer a written statement, containing supporting details, demonstrating that the reportable item was not made in the manner specified in paragraph (A) or (B) of section 20135(b)(1) of the Act.
(ii) Regardless of whether title to a given subject invention would otherwise be subject to an advance waiver or is the subject of a petition for waiver, the recipient may nevertheless file the statement described in paragraph (b)(1)(i) of this term and condition. The Administrator will review the information furnished by the recipient in any such statement and any other available information relating to the circumstances surrounding the making of the subject invention and will notify the recipient whether the Administrator has determined that the subject invention was made in the manner specified in paragraph (A) or (B) of section 20135(b)(1) of the Act.
(2) Property rights in subject inventions. Each subject invention for which the presumption of paragraph (b)(1)(i) of this term and condition is conclusive or for which there has been a determination that it was made in the manner specified in paragraph (A) or (B) of section 20135(b)(1) of the Act shall be the exclusive property of the United States as represented by NASA unless the Administrator waives all or any part of the rights of the United States, as provided in paragraph (b)(3) of this term and condition.
(3) Waiver of rights.
(i) Section 20135(g) of the Act provides for the promulgation of regulations by which the Administrator may waive the rights of the United States with respect to any invention or class of inventions made or that may be made under conditions specified in paragraph (A) or (B) of section 20135(b)(1) of the Act.
(ii) As provided in 14 CFR part 1245, subpart 1, recipients may petition, either prior to execution of the award or within 30 days after execution of the award, for advance waiver of rights to any or all of the inventions that may be made under an award. If such a petition is not submitted, or if after submission it is denied, the recipient (or an employee inventor of the recipient) may petition for waiver of rights to an identified subject invention within eight months of first disclosure of the invention in accordance with paragraph (e)(2) of this term and condition, or within such longer period as may be authorized in accordance with 14 CFR 1245.105.
(c) Minimum rights reserved by the Government.
(1) With respect to each subject invention for which a waiver of rights is applicable in accordance with 14 CFR part 1245, subpart 1, the Government reserves—
(i) An irrevocable, nonexclusive, nontransferable, royalty-free license for the practice of such invention throughout the world by or on behalf of the United States or any foreign government in accordance with any treaty or agreement with the United States; and
(ii) Such other rights as stated in 14 CFR 1245.107.
(2) Nothing contained in this paragraph (c) shall be considered to grant to the Government any rights with respect to any invention other than a subject invention.
(d) Minimum rights to the Recipient.
(1) The recipient is hereby granted a revocable, nonexclusive, royalty-free license in each patent application filed in any country on a subject invention and any resulting patent in which the Government acquires title, unless the recipient fails to disclose the subject invention within the times specified in paragraph (e)(2) of this term and condition. The recipient's license extends to its domestic subsidiaries and affiliates, if any, within the corporate structure of which the recipient is a party and includes the right to grant sublicenses of the same scope to the extent the recipient was legally obligated to do so at the time the award was issued. The license is transferable
(2) The recipient's domestic license may be revoked or modified by the Administrator to the extent necessary to achieve expeditious practical application of the subject invention pursuant to an application for an exclusive license submitted in accordance with 37 CFR part 404, Licensing of Government Owned Inventions. This license will not be revoked in that field of use or the geographical areas in which the recipient has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at the discretion of the Administrator to the extent the recipient, its licensees, or its domestic subsidiaries or affiliates have failed to achieve practical application in that foreign country.
(3) Before revocation or modification of the license, the recipient will be provided a written notice of the Administrator's intention to revoke or modify the license, and the recipient will be allowed 30 days (or such other time as may be authorized by the Administrator for good cause shown by the recipient) after the notice to show cause why the license should not be revoked or modified. The recipient has the right to appeal to the Administrator any decision concerning the revocation or modification of its license.
(e) Invention identification, disclosures, and reports.
(1) The recipient shall establish and maintain active and effective procedures to assure that reportable items are promptly identified and disclosed to recipient personnel responsible for the administration of this New Technology term and condition within six months of conception and/or first actual reduction to practice, whichever occurs first in the performance of work under this award. These procedures shall include the maintenance of laboratory notebooks or equivalent records and other records as are reasonably necessary to document the conception and/or the first actual reduction to practice of the reportable items, and records that show that the procedures for identifying and disclosing reportable items are followed. Upon request, the recipient shall furnish the Grant Officer a description of such procedures for evaluation and for determination as to their effectiveness.
(2) The recipient will disclose each reportable item to the New Technology Representative, with notice to the Grant Officer, within two months after the inventor discloses it in writing to recipient personnel responsible for the administration of this New Technology term and condition or, if earlier, within six months after the recipient becomes aware that a reportable item has been made, but in any event for subject inventions before any on sale, public use, or publication of such invention known to the recipient. The disclosure to the agency shall be in the form of a written report and shall identify the award under which the reportable item was made and the inventor(s) or innovator(s). It shall be sufficiently complete in technical detail to convey a clear understanding, to the extent known at the time of the disclosure, of the nature, purpose, operation, and physical, chemical, biological, or electrical characteristics of the reportable item. The disclosure shall also identify any publication, on sale, or public use of any subject invention and whether a manuscript describing such invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure. In addition, after disclosure to the agency, the recipient will promptly notify the agency of the acceptance of any manuscript describing a subject invention for publication or of any on sale or public use planned by the recipient for such invention.
(3) The recipient shall furnish the New Technology Representative, with notice to the Grants Officer, the following:
(i) Interim new technology summary reports every 12 months from the date of the award, listing reportable items during that period, and certifying that all reportable items have been disclosed (or that there are no such inventions) and that the procedures required by paragraph (e)(1) of this term and condition have been followed.
(ii) A final new technology summary report within 90 days after the end of the period of performance, listing all reportable items or certifying that there were no such reportable items, and listing all research subawardees/subcontractors at any tier containing a patent rights clause or certifying that there were no such subcontractors.
(4) The recipient agrees, upon written request of the Patent Representative, to furnish additional technical and other information available to the recipient as is necessary for the preparation of a patent application on a subject invention and for the prosecution of the patent application, and to execute all papers necessary to file patent applications on subject inventions and to establish the Government's rights in the subject inventions.
(5) The recipient agrees, subject to 5(a) below, the Government may duplicate and disclose subject invention disclosures and all other reports and papers furnished or required to be furnished pursuant to this term and condition.
(a) Publishing information concerning an invention before a patent application is filed on a subject invention may create a bar to a valid patent. To avoid this bar, agencies may withhold information from the public that discloses any invention in which the Government owns or may own a right, title, or interest (including a nonexclusive license) (see 35 U.S.C. 205 and 37 CFR part 401). Agencies may only withhold information concerning inventions for a reasonable time in order for a patent application to be filed. Once filed in any patent office, agencies are not required to release copies of any document that is a part of a patent application for those subject inventions.
(f) Examination of records relating to inventions.
(1) The Grant Officer or any authorized representative shall, until 3 years after final payment under this award, have the right to examine any books (including laboratory notebooks), records, and documents of the recipient relating to the conception or first actual reduction to practice of inventions in the same field of technology as the work under this award to determine whether—
(i) Any such inventions are subject inventions;
(ii) The recipient has established and maintained the procedures required by paragraph (e)(1) of this term and condition; and
(iii) The recipient and its inventors have complied with the procedures.
(2) If the New Technology Representative or Patent Representative learns of an unreported recipient invention, the recipient may be required to disclose the invention to the agency for a determination of ownership rights.
(3) Any examination of records under this paragraph will be subject to appropriate conditions to protect the confidentiality of the information involved.
(h) Subawards/Subcontracts.
(1) Unless otherwise authorized or directed by the Grant Officer, the recipient shall—
(i) Include the clause at NASA FAR Supplement (NFS) 1852.227-70, New Technology, (suitably modified to identify the parties) in any subaward/subcontract hereunder (regardless of tier) with other than a small business firm or nonprofit organization for the performance of experimental, developmental, or research work; and
(ii) Include the FAR clause 52.227-11, as modified by the NASA FAR Supplement (NFS) 1852.227-11, “Patent Right-Retention by the Contractor (Short Form)” (suitably modified to identify the parties) in any subaward/subcontract hereunder (regardless of tier) with a small business firm or nonprofit organization for the performance of experimental, developmental, or research work.
(2) In the event of a refusal by a prospective subrecipient to accept such a clause the recipient—
(i) Shall promptly submit a written notice to the Grant Officer setting forth the subrecipient's reasons for such refusal and other pertinent information that may expedite disposition of the matter; and
(ii) Shall not proceed with such subaward/subcontract without the written authorization of the Grant Officer.
(3) The recipient shall promptly notify the Grant Officer in writing upon the award of any subaward/subcontract at any tier containing a patent rights clause by identifying the subrecipient, the applicable patent rights term and condition/clause, the work to be performed under the subrecipient and the dates of award and estimated completion. Upon request of the Grant Officer, the recipient shall furnish a copy of such subaward/subcontract, and, no more frequently than annually, a listing of the subawards/subcontracts that have been awarded.
(4) The subrecipient will retain all rights provided for the recipient in paragraph (h)(1)(i) or (ii) of this term and condition, whichever is included in the subaward/subcontracts, and the recipient will not, as part of the consideration for awarding the
(i) Preference for United States industry. Unless provided otherwise, no recipient that receives title to any subject invention and no assignee of any such recipient shall grant to any person the exclusive right to use or sell any subject invention in the United States unless such person agrees that any products embodying the subject invention will be manufactured substantially in the United States. However, in individual cases, the requirement may be waived by the Administrator upon a showing by the recipient or assignee that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States or that under the circumstances domestic manufacture is not commercially feasible.
Prescription—The Grant Officer shall include this term and condition all awards containing the term and condition “Patent Rights” at 1800.908 or the term and condition “New Technology” at 1800.923.
(a) For purposes of administration of the term and condition entitled “New Technology,” or “Patent Rights” whichever is included, the following named representatives are hereby designated by the Grant Officer to administer such term and condition—
(b) Reports of reportable items, and disclosure of subject inventions, interim reports, final reports, utilization reports, and other reports required by the term and condition, as well as any correspondence with respect to such matters, should be directed to the New Technology Representative, with notification to the Grant Officer, unless transmitted in response to correspondence or request from the Patent Representative. Inquires or requests regarding disposition of rights, election of rights, or related matters should be directed to the Patent Representative. This term and condition shall be included in any subaward/subcontract hereunder requiring a “New Technology” term and condition or “Patent Rights—Retention by the Contractor (Short Form)” term and condition unless otherwise authorized or directed by the Grant Officer. The respective responsibilities and authorities of the above named representatives are set forth in the Grants and Cooperative Agreement Manual.
Prescription—The Grant Officer shall include this term and condition in awards with commercial firms that have property.
(a) This award permits acquisition of special purpose equipment required for the conduct of research. Acquisition of special purpose equipment costing in excess of $5,000 and not included in the approved proposal budget requires the prior approval of the Grant Officer unless the item is merely a different model of an item shown in the approved proposal budget.
(b) Recipients may not purchase, as a direct cost to the award, items of general purpose equipment, examples of which include but are not limited to office equipment and furnishings, air conditioning equipment, reproduction and printing equipment, motor vehicles, and automatic data processing equipment. If the recipient requests an exception, the recipient shall submit a written request for Grant Officer approval, prior to purchase by the recipient, stating why the recipient cannot charge the general purpose equipment to indirect costs.
(c) Under no circumstances shall award funds be used to acquire land or any interest therein, to acquire or construct facilities (as defined in 48 CFR (FAR) 45.301), or to procure passenger carrying vehicles.
(d) The Government shall have title to equipment and other personal property acquired with Government funds. Such property shall be disposed of pursuant to 48 CFR (FAR) 45.603.
(e) Title to Government furnished equipment (including equipment, title to which has been transferred to the Government prior to completion of the work) will remain with the Government.
(f) The recipient shall establish and maintain property management standards for Government property and otherwise manage such property as set forth in 48 CFR (FAR) 45.5 and 48 CFR (NFS) 1845.5.
(g) Recipients shall submit annually a NASA Form 1018, NASA Property in the Custody of Contractors, in accordance with the instructions on the form, the provisions of 48 CFR (NFS) 1845.71 and any supplemental instructions that may be issued by NASA for the current reporting period. The original NF 1018 shall be submitted to the Center Deputy Chief Financial Officer (Finance) with three copies sent concurrently to the Center Industrial Property Officer. The annual reporting period shall be from October 1 of each year through September 30 of the following year. The report shall be submitted in time to be received by October 15. Negative reports (
(h) The requirements set forth in this term and condition supersedes award term and condition 1800.907, Equipment and Other Property.
Prescription—The Grant Officer shall include this term and condition in awards with property.
(a) Title to Federally-owned property provided to the recipient remains vested in the Federal Government, and shall be managed in accordance with § 200.312. The following items of Federally-owned property are being provided to the recipient for use in performance of the work under this award—
List property or state “not applicable.
(b) The following specific items of equipment acquired by the recipient have been identified by NASA for transfer of title to the Government when no longer required for performance under this award. This equipment will be managed in accordance with 200.313, and shall be transferred to NASA or NASA's designee in accordance with the procedures set forth at 200.313(e)—
(List property or state “not applicable.”)
Prescription—The Grant Officer shall include this term and condition in all awards with commercial firms.
(a) Invoices for payment of actual incurred costs shall be submitted by the recipient no more frequently than on a_XX__basis.
(b) Invoices shall be submitted by the recipient to the following offices:
(1) The original invoice shall be sent directly to the payment office designated on the award cover page.
(2) Copies of the invoice shall be sent to the NASA Technical Officer and NASA Grant Officer.
(c) All invoices shall reference the award number.
(d) The final invoice shall be marked “Final” and shall be submitted within 90 days of the end date of the period of performance.
(e) The requirements set forth in this term and condition shall govern to the extent these requirements are inconsistent with the requirements in term and condition “Financial Management” at 1800.906.
Prescription—The Grant Officer shall include this term and condition in all awards with commercial firms.
(a) Payments under this award will be made by the Government by electronic funds transfer through the Treasury Fedline Payment System (FEDLINE) or the Automated Clearing House (ACH), at the option of the Government. After award, but no later than 14 days before an invoice is submitted, the recipient shall designate a financial institution for receipt of electronic
(b) For payment through FEDLINE, the recipient shall provide the following information:
(1) Name, address, and telegraphic abbreviation of the financial institution receiving payment.
(2) The American Bankers Association 9-digit identifying number for wire transfers of the financing institution receiving payment if the institution has access to the Federal Reserve Communication System.
(3) Payee's account number at the financial institution where funds are to be transferred.
(4) If the financial institution does not have access to the Federal Reserve Communications System, name, address, and telegraphic abbreviation of the correspondent financial institution through which the financial institution receiving payment obtains wire transfer activity. Provide the telegraphic abbreviation and American Bankers Association identifying number for the correspondent institution.
(c) For payment through ACH, the recipient shall provide the following information:
(1) Routing transit number of the financial institution receiving payment (same as American Bankers Association identifying number used for FEDLINE).
(2) Number of account to which funds are to be deposited.
(3) Type of depositor account (“C” for checking, “S” for savings).
(4) If the recipient is a new enrollee to the ACH system, a “Payment Information Form,” SF 3881, must be completed before payment can be processed.
(d) In the event the recipient, during the performance of this award, elects to designate a different financial institution for the receipt of any payment made using electronic funds transfer procedures, notification of such change and the required information specified above must be received by the appropriate Government official 30 days prior to the date such change is to become effective.
(e) The documents furnishing the information required in this term and condition must be dated and contain the signature, title, and telephone number of the recipient official authorized to provide it, as well as the recipient's name and award number.
(f) Failure to properly designate a financial institution or to provide appropriate payee bank account information may delay payments of amounts otherwise properly due.
(g) The requirements set forth in this term and condition shall govern to the extent these requirements are inconsistent with the requirements in term and condition “Financial Management”.
Rural Housing Service, USDA.
Final rule; delay of effective date.
On April 29, 2015, the Rural Housing Service (RHS) published a final rule to create a certified loan application packaging process for the direct single family housing loan program. On June 5, 2015, the final rule's effective date was deferred to October 1, 2015. The final rule's effective date is further delayed until October 1, 2016.
Brooke Baumann, Branch Chief, Single Family Housing Direct Loan Division, USDA Rural Development, Stop 0783, 1400 Independence Avenue SW., Washington, DC 20250-0783, Telephone: 202-690-4250. Email:
Section 729 of the Consolidated and Further Continuing Appropriations Act, 2015 (Act) (Pub. L. 113-235) provides that the Agency will continue agreements with the current intermediaries in the pilot program and enter into additional agreements that increase the number of pilot intermediaries to at least 10. This appropriations mandate, which applies to the packaging pilot program in Fiscal Year 2015, prompted the Agency to defer the effective date of the final rule from July 28, 2015, to October 1, 2015, to allow the existing intermediaries under the pilot sufficient time to process loan application packages in their queue and to prepare for the implementation of the final rule.
Since Section 729 will remain in effect during any continuing resolution passed to continue program operations in Fiscal Year 2016 and given that similar mandatory language regarding the packaging pilot program is currently found in the Fiscal Year 2016 appropriations bills passed by the House and the Senate, the final rule to create a certified loan application packaging process will be deferred again. In an abundance of caution, the Agency takes this action to avoid the possibility of duplicative and inconsistent policies for this important certified loan application packaging process.
In the interim, existing pilot intermediaries will be contacted directly concerning extensions of their agreements. In addition, applications received from potential intermediaries under the final rule, which were due by July 9, 2015, will now be considered for inclusion in any Fiscal Year 2016 packaging pilot program.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Korea Aerospace Industries, Ltd., Model K-100 airplane. This airplane will have a novel or unusual design feature(s) associated with the use of an electronic engine control system instead of a traditional mechanical control system. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is September 11, 2015.
We must receive your comments by October 26, 2015.
Send comments identified by docket number FAA-2015-3678 using any of the following methods:
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Jeff Pretz, Federal Aviation Administration, Small Airplane Directorate, Aircraft Certification Service, ACE-111, 901 Locust, Room 301, Kansas City, MO 64106; telephone (816) 329-3239, facsimile (816) 329-4090.
The FAA has determined, in accordance with 5 U.S. Code §§ 553(b)(3)(B) and 553(d)(3), that notice and opportunity for prior public comment hereon are unnecessary because the substance of this special condition has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
On December 21, 2009, Korea Aerospace Industries, Ltd., applied for a type certificate for their new Model KC-100 airplane. The KC-100 is a normal category single engine four passenger composite low wing airplane with a maximum takeoff weight of 3600 pounds. It has fixed tricycle landing gear and is designed for both Visual Flight Rules (VFR) and Instrument Flight Rules (IFR) operations.
The KC-100 will use an electronic engine control system (FADEC) instead of a traditional mechanical control system. The engine control system will be certificated as part of the engine; however, the installation of an engine with an electronic control system requires evaluation due to critical environmental effects and possible effects on or by other airplane electronic systems, shared engine and airplane data and power sources.
The regulatory requirements in 14 CFR part 23 for evaluating the installation of complex systems, including electronic systems and critical environmental effects, are contained in § 23.1309. When § 23.1309 was developed, the use of electronic control systems for engines was not envisioned. Therefore, § 23.1309 requirements were not applicable to systems certificated as part of the engine (reference § 23.1309(f)(1)). Parts of the system that are not certificated with the engine could be evaluated using the criteria of § 23.1309. However, the integral nature of these systems makes it unfeasible to evaluate the airplane portion of the system without including the engine portion of the system. In some cases, the airplane that the engine is used in will require a higher classification than the engine controls are certificated for; requiring the FADEC system to be analyzed at a higher classification. As of November 2005, FADEC special conditions mandated the classification for § 23.1309 analyses for loss of FADEC control as catastrophic for any airplane using a FADEC. This is not to imply an engine failure is classified as catastrophic, but that the digital engine control must provide an equivalent reliability to mechanical engine controls.
Under the provisions of 14 CFR 21.17, Korea Aerospace Industries, Ltd., must show that the KC-100 meets the applicable provisions of part 23, as amended by amendment 23-1 through 23-59, thereto.
If the Administrator finds that the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, the KC-100 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the Noise Control Act of 1972.
The FAA issues special conditions, as defined in § 11.19, under § 11.38 and they become part of the type certification basis under § 21.17(a)(2).
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1).
The KC-100 will incorporate the following novel or unusual design features: an electronic engine control.
The Model KC-100 makes use of an electronic engine control system instead of a traditional mechanical control system, which is considered a novel design for this type of airplane. The applicable airworthiness regulations do
The special conditions are applicable to the KC-100. Should Korea Aerospace Industries, Ltd., apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would also apply to that model as well.
This action affects only certain novel or unusual design features on the KC-100. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, notice and opportunity for prior public comment hereon are unnecessary and the FAA finds good cause, in accordance with 5 U.S. Code §§ 553(b)(3)(B) and 553(d)(3), making these special conditions effective upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Signs and symbols.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.17; and 14 CFR 11.38 and 11.19.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Korea Aerospace Industries, Ltd., Model KC-100 airplanes.
a. For electronic engine control system installations, it must be established that no single failure or malfunction or probable combinations of failures of Electronic Engine Control (EEC) system components will have an effect on the system, as installed in the airplane, that causes the Loss of Thrust Control (LOTC)/Loss of Power Control (LOPC) probability of the system to exceed those allowed in part 33 certification.
b. EEC system installations must be evaluated for environmental and atmospheric conditions, including lightning. The EEC system lightning and high intensity radiated frequency effects that result during an LOTC/LOPC should be considered catastrophic.
c. The components of the installation must be constructed, arranged, and installed so as to ensure their continued safe operation between normal inspections or overhauls.
d. Functions incorporated into any EEC that make it part of any equipment, system or installation having functions beyond that of basic engine control, and may also introduce system failures and malfunctions, are not exempt from § 23.1309 and must be shown to meet part 23 levels of safety as derived from § 23.1309. Part 33 certification data, if applicable, may be used to show compliance with any part 23 requirements. If part 33 data is to be used to substantiate compliance with part 23 requirements, then the part 23 applicant must be able to provide this data for their showing of compliance.
The term “probable” in the context of “probable combination of failures” does not have the same meaning as in AC 23.13091D. The term “probable” in “probable combination of failures” means “foreseeable,” or not “extremely improbable,” as referenced in AC 23.1309-1D.
Drug Enforcement Administration, Department of Justice.
Final rule.
With the issuance of this final rule, the Administrator of the Drug Enforcement Administration removes [
John R. Scherbenske, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.
The Drug Enforcement Administration (DEA) implements and enforces titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. 21 U.S.C. 801-971. Titles II and III are referred to as the “Controlled Substances Act” and the “Controlled Substances Import and Export Act,” respectively, and are collectively referred to as the “Controlled Substances Act” or the “CSA” for the purpose of this action. The DEA publishes the implementing regulations for these statutes in title 21 of the Code of Federal Regulations (CFR), chapter II.
Under the CSA, each controlled substance is classified into one of five schedules based upon its potential for abuse, its currently accepted medical use in treatment in the United States, and the degree of dependence the substance may cause. 21 U.S.C. 812. The initial schedules of controlled substances established by Congress are found at 21 U.S.C. 812(c), and the current list of scheduled substances is published at 21 CFR part 1308.
Pursuant to 21 U.S.C. 811(a)(2), the Attorney General may, by rule, “remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.” The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA, 28 CFR 0.100.
The CSA provides that proceedings for the issuance, amendment, or repeal of the scheduling of any drug or other substance may be initiated by the Attorney General (1) on her own motion, (2) at the request of the Secretary of the Department of Health and Human Services (HHS),
[
Pursuant to 21 U.S.C. 811(b), (c), and (f), the HHS recommended to the DEA on November 2, 2010, that FDA-approved products containing [
In response, the DEA reviewed the scientific and medical evaluation and scheduling recommendation provided by the HHS, and all other relevant data. The DEA and HHS collaborated further regarding the available information. In a letter dated February 2, 2015, the HHS provided detailed responses to specific inquiries from the DEA (submitted by letter dated September 16, 2014). Upon further review of all of the available information, the DEA completed its own eight-factor review document on FDA-approved diagnostic products containing [
The FDA-approved diagnostic product, DaTscan, was used as the basis for the scientific and medical evaluation of FDA-approved products containing [
After a review of the available data, including the scientific and medical evaluation and recommendation, the Administrator of the DEA published in the
No requests for such a hearing were received by the DEA. The NPRM also provided an opportunity for interested persons to submit written comments on the proposal on or before July 6, 2015.
The DEA received nine comments on the proposed rule to decontrol [
Commenters in support of decontrolling [
The DEA appreciates the comments in support of this rulemaking.
Generally, DEA scheduling actions are effective 30 days from the date of
The DEA also notes that its decision to make this rule effective upon publication aligns with the exceptions to the 30-day effective date requirement of the Administrative Procedure Act (APA). One of the APA's exceptions to the 30-day effective date is for a substantive rule granting or recognizing an exemption or which relieves a restriction. 5 U.S.C. 553(d)(3).
Based on consideration of all comments, the scientific and medical evaluation and accompanying recommendation and clarification from the HHS, and based on the DEA's consideration of its own eight-factor analysis, the Administrator finds that these facts and all relevant data demonstrate that [
In accordance with 21 U.S.C. 811(a), this scheduling action is subject to formal rulemaking procedures done “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the criteria for scheduling a drug or other substance. Such actions are exempt from review by the Office of Management and Budget (OMB) pursuant to section 3(d)(1) of Executive Order 12866 and the principles reaffirmed in Executive Order 13563.
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.
This rulemaking does not have federalism implications warranting the application of Executive Order 13132. The rule does not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government.
This rule does not have tribal implications warranting the application of Executive Order 13175. This rule does not 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.
The Administrator, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA), has reviewed this rule and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. The purpose of this rule is to remove [
This rule will affect all persons who handle, or propose to handle, [
Although the DEA does not have a reliable basis to estimate the number of affected entities and quantify the economic impact of this final rule, a qualitative analysis indicates that this rule is likely to result in some cost savings for the healthcare industry. The affected entities will continue to meet existing Federal and/or state requirements applicable to those who handle radiopharmaceutical substances, including licensure, security, recordkeeping, and reporting requirements, which in many cases are more stringent than the DEA's requirements. However, the DEA believes cost savings will be realized from the removal of the administrative, civil, and criminal sanctions for those entities handling or proposing to handle [
Because of these facts, this rule will not result in a significant economic impact on a substantial number of small entities.
The DEA has determined and certifies pursuant to the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501
This action does not impose a new collection of information requirement under the Paperwork Reduction Act, 44 U.S.C. 3501-3521. This action would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act (CRA)). This rule will not result in: An annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. However, pursuant to the CRA, the DEA has submitted a copy of this final rule to both Houses of Congress and to the Comptroller General.
Administrative practice and procedure, Drug traffic control, Reporting and Recordkeeping Requirements.
For the reasons set out above, 21 CFR part 1308 is amended to read as follows:
21 U.S.C. 811, 812, 871(b), unless otherwise noted.
(b) * * *
(4) Coca leaves (9040) and any salt, compound, derivative or preparation of coca leaves (including cocaine (9041) and ecgonine (9180) and their salts, isomers, derivatives and salts of isomers and derivatives), and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include:
(i) Decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine; or
(ii) [
Coast Guard, DHS.
Interim rule and request for comments.
The Coast Guard published in the
This interim rule is effective September 11, 2015. Comments and related material must be received by the Coast Guard on or before October 13, 2015.
You may submit comments identified by docket number USCG-2015-0512 using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this interim rule, call or email Mr. Rusty Wright, U.S. Coast Guard, District Eight Waterways Management Branch; telephone 504-671-2138,
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the
We do not now plan to hold a public meeting. But you may submit a request for one by using one of the methods specified under
The Coast Guard published in the
For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Under the authority provided in 14 U.S.C. 85; 43 U.S.C. 1333; and Department of Homeland Security Delegation No. 0170.1. Title 33, CFR part 147 permits the establishment of safety zones for facilities located on the OCS for the purpose of protecting life, property and the marine environment. The purpose of this interim rule is to correct the coordinates, reflecting the actual location of the Mad Dog Truss Spar facility at 27°11′18.124″ N., 90°16′7.363″ W. By correcting the location, this interim rule also reflects the correct area covered by the safety zone in place around the Mad Dog Truss Spar. The purpose of the safety zone around the Mad Dog Truss Spar is to protect the facility from all vessels operating outside the normal shipping channels and fairways that are not providing services to or working with the facility. Safety zones established around such facilities significantly reduce the threat of allisions, collisions, security breaches, oil spills, releases of natural gas, and thereby protect the safety of life, property, and the environment.
For the purpose of safety zones established under 33 CFR part 147, the deepwater area is considered to be waters of 304.8 meters (1,000 feet) or greater depth extending to the limits of the Exclusive Economic Zone (EEZ) contiguous to the territorial sea of the United States and extending to a distance up to 200 nautical miles from the baseline from which the breadth of the sea is measured. Navigation in the vicinity of the safety zone consists of large commercial shipping vessels, fishing vessels, cruise ships, tugs with tows and the occasional recreational vessel. The deepwater area also includes an extensive system of fairways.
On July 29, 2005, the Coast Guard established a safety zone under 33 CFR 147.839, around the Mad Dog Truss Spar facility through a final rule publishing an incorrect location for the facility as 27°11′18″ N., 91°05′12″ W. This interim rule corrects the coordinates in the CFR to reflect the actual location of 27°11′18.124″ N., 90°16′7.363″ W., while also requesting comments before being made final. The original OCS safety zone and this interim rule correcting the location are established to address safety concerns for both the personnel aboard the facility and the environment. It is highly likely that any allision with the facility would result in a catastrophic event. In evaluating the need for a safety zone, the Coast Guard explored relevant safety factors and considered several criteria, including but not limited to, (1) the level of shipping activity around the facility, (2) safety concerns for personnel aboard the facility, (3) concerns for the environment, (4) the likeliness that an allision would result in a catastrophic event based on proximity to shipping fairways, offloading operations, production levels, and size of the crew, (5) the volume of traffic in the vicinity of the area, (6) the types of vessels navigating in the vicinity of the area, and (7) the structural configuration of the facility.
Results from a thorough and comprehensive examination of the criteria, International Maritime Organization (IMO) guidelines, and existing regulations warranted establishment of the original safety zone and support this correction establishing
We developed this interim rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This interim rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
This rule is not a significant regulatory action due to the location of the Mad Dog Truss Spar—on the Outer Continental Shelf—and its distance from both land and safety fairways. Vessels traversing waters near the interim safety zone will be able to safely travel around the zone using alternate routes. Exceptions to this interim rule include vessels measuring less than 100 feet in length overall and not engaged in towing. Deviation to transit through the interim safety zone may be requested. Such requests will be considered on a case-by-case basis and may be authorized by the Commander, Eighth Coast Guard District or a designated representative.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this interim rule will not have a significant economic impact on a substantial number of small entities.
This interim rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor within the area extending 500 meters (1640.4 feet) from the outermost edges of the Mad Dog Truss Spar located in Green Canyon 782 on the OCS.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessel traffic can pass safely around the safety zone using alternate routes. Based on the limited scope of the safety zone, any delay resulting from using an alternate route is expected to be minimal depending on vessel traffic and speed in the area. Deviation to transit through the interim safety zone may be requested. Such requests will be considered on a case-by-case basis and may be authorized by the Commander, Eighth Coast Guard District or a designated representative.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this interim rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please submit a comment (see
This interim rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this interim rule under that Order and have determined that it does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this interim rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This interim rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This interim rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this interim rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This interim rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the
We have analyzed this interim rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This interim rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this interim rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) 42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This interim rule involves the establishment of a safety zone around an OCS facility to protect life, property and the marine environment. This interim rule is categorical excluded from further review, under figure 2-1, paragraph (34)(g), of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and the Categorical Exclusion Determination are available in the docket where indicated under
Continental shelf, Marine safety, Navigation (water).
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 147 as follows:
14 U.S.C. 85; 43 U.S.C. 1333; and Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1) An attending vessel;
(2) A vessel under 100 feet in length overall not engaged in towing; or
(3) A vessel authorized by the Commander, Eighth Coast Guard District.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce various safety zones within the Captain of the Port New York Zone on the specified dates and times. This action is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks displays. During the enforcement period, no person or vessel may enter the safety zones without permission of the Captain of the Port (COTP).
The regulation for the safety zones described in 33 CFR 165.160 will be enforced on the dates and times listed in the table in
If you have questions on this notice, call or email MST1 Daniel Vazquez, Coast Guard; telephone 718-354-4197, email
The Coast Guard will enforce the safety zones listed in 33 CFR 165.160 on the specified dates and times as indicated in Table 1 below. This regulation was published in the
Under the provisions of 33 CFR 165.160, vessels may not enter the safety zones unless given permission from the COTP or a designated representative. Spectator vessels may transit outside the safety zones but may not anchor, block, loiter in, or impede the transit of other vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 165.160(a) and 5 U.S.C. 552(a). In addition to this notice in the
If the COTP determines that a safety zone need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be
Postal Service.
Final rule.
This document contains the final revisions to the rules of practice before the Judicial Officer relative to debt collection against current and former employees. These revisions are necessary to implement an electronic filing system.
Written inquiries may be directed to: Postal Service Judicial Officer Department, 2101 Wilson Boulevard, Suite 600, Arlington, VA 22201-3078.
Associate Judicial Officer Gary E. Shapiro, (703) 812-1910.
On July 1, 2015, the Judicial Officer Department published for comment proposed revisions to the rules of practice before the Judicial Officer relative to debt collection against current and former postal employees (39 CFR parts 961 and 966, respectively) to implement an electronic filing system (80 FR 37567-8). The period for comments closed on July 31, 2015, and no comments were received. The Judicial Officer has made no further revisions to the original proposed rules, which are now adopted as final.
Part 961 of title 39, Code of Federal Regulations, contains the rules of practice in proceedings under section 5 of the Debt Collection Act of 1982, as amended, 5 U.S.C. 5514, in which the Judicial Officer or an assigned Hearing Official provides the final agency adjudication for debt collection assessments by administrative salary offset issued by the Postal Service seeking to collect a debt owed it by a current employee. This authority is delegated by the Postmaster General.
Part 966 of title 39, Code of Federal Regulations, contains the rules of practice in proceedings relative to administrative offsets initiated against former employees of the Postal Service under section 10 of the Debt Collection Act of 1982, as amended, 31 U.S.C. 3716, in which the Judicial Officer provides the final agency adjudication for debt collection assessments by administrative offset issued by the Postal Service seeking to collect a debt owed it by a former employee. This authority is delegated by the Postmaster General.
In § 961.4, concerning filing a petition:
• Paragraph (a) is amended to identify the internet address for the electronic filing system.
• Paragraph (b) is amended to indicate that a sample petition is available through the electronic filing system.
In § 961.6, concerning the filing, docketing, and serving of documents, paragraph (a) is amended to indicate when documents submitted by parties are considered received, and to indicate when service of documents on the opposing party is required for purposes of the electronic filing system.
In § 966.4, concerning filing a petition:
• Paragraph (c) is amended to identify the internet address for the electronic filing system.
• Paragraph (d) is amended to indicate that a sample petition is available through the electronic filing system.
In § 966.6, concerning the filing, docketing, and serving of documents, paragraph (a) is amended to indicate when documents submitted by parties are considered received, and to indicate when service of documents on the opposing party is required for purposes of the electronic filing system.
Claims, Government employees, Wages.
Administrative practice and procedure, Claims, Government employees, Wages.
Accordingly, for the reasons stated, the Postal Service amends 39 CFR parts 961 and 966 as follows:
39 U.S.C. 204, 401; 5 U.S.C. 5514.
(a) If an employee desires a hearing, prescribed by section 5 of the Debt Collection Act, to challenge the Postal Service's determination of the existence or amount of a debt, or to challenge the involuntary repayment terms proposed by the Postal Service, the employee must file a written petition electronically at
(b) A sample petition is available through the Judicial Officer Electronic Filing Web site (
(a)
31 U.S.C. 3716; 39 U.S.C. 204, 401, 2601.
(c) Within thirty (30) calendar days after the date of receipt of the Accounting Service Center's decision upon reconsideration, after the expiration of sixty (60) calendar days after a request for reconsideration where a reconsideration determination is not made, or following an administrative offset taken without prior notice and opportunity for reconsideration pursuant to paragraph (b)(1) of this section, the former employee must file a written petition electronically at
(d) A sample petition is available through the Judicial Officer Electronic Filing Web site (
(a)
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving a request submitted by the Indiana Department of Environmental Management (IDEM) on June 1, 2015, to revise the Indiana state implementation plan (SIP) for sulfur dioxide (SO
This rule is effective on November 10, 2015, unless EPA receives adverse written comments by October 13, 2015. If EPA receives adverse comments, EPA will publish a timely withdrawal of the rule in the
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0380, by one of the following methods:
1.
2.
3.
4.
5.
Charles Hatten, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312)886-6031,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
This action only applies to Walsh and Kelly, Incorporated, located in Griffith, Lake County, Indiana.
IDEM published a public notice of the revisions to the SIP on February 4, 2015, to update its SO
EPA is approving a revision to Indiana's SO
Indiana's SO
In 2013, Walsh and Kelly, Incorporated replaced its aggregate drum dryer. The older aggregate drum dryer burner design capacity was rated at 120 million British thermal units per hour (MMBtu/hr). The new aggregate drum dryer burner has a smaller design capacity, rated at 115 MMBtu/hr.
IDEM made an administrative change to update rule 326 IAC 7-4.1-21(b) to reference the new 115 MMBtu/hr aggregate drum dryer. Rule 326 IAC 7-4.1-21 provides SO
EPA finds the change to rule 326 IAC 7-4.1-21 approvable.
EPA is approving revisions to Indiana's SO
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Indiana regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through
Under the Clean Air Act (CAA), the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 10, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Emissions Reporting, Incorporation by reference, Reporting and recordkeeping requirements, Sulfur dioxide.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve some elements of state implementation plan (SIP) submissions from Wisconsin regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 ozone, 2010 nitrogen dioxide (NO
This final rule is effective on October 13, 2015.
EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2014-0704. All documents in the docket are listed on the
Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4489,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
This rulemaking addresses June 20, 2013, submissions and a January 28, 2015, clarification from the Wisconsin Department of Natural Resources (WDNR) intended to address all applicable infrastructure requirements for the 2008 ozone, 2010 NO
Under section 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 2008 ozone, 2010 NO
EPA has highlighted this statutory requirement in multiple guidance documents. The most recent, entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and (2)”, was published on September 13, 2013.
EPA is acting upon the SIP submissions from Wisconsin that address the infrastructure requirements of CAA section 110(a)(1) and (2) for the 2008 ozone, 2010 NO
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA section 110(a)(1) and (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 SIP submissions that address the nonattainment planning requirements of part D and the Prevention of Significant Deterioration (PSD) requirements of part C of title I of the CAA, and “regional haze SIP” submissions required to address the visibility protection requirements of CAA section 169A.
This rulemaking will not cover three substantive areas because they are not integral to acting on a state's infrastructure SIP submissions: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction (”SSM”) at sources, 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 notice or without requiring further approval by EPA, that may be contrary to the CAA; and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final 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 in separate rulemakings. A detailed history, interpretation, and rationale as they relate 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?” (
EPA is taking final action to approve most elements of submissions from Wisconsin certifying that its current SIP is sufficient to meet the required infrastructure elements under section 110(a)(1) and (2) for the 2008 ozone, 2010 NO
The proposed rulemaking associated with this final action was published on April 20, 2015 (75 FR 21685), and EPA received no comments during the comment period, which ended on May 20, 2015. EPA is therefore taking final action to approve, as proposed, most elements of Wisconsin's submissions.
EPA's actions for the state's satisfaction of infrastructure SIP requirements, by element of section 110(a)(2) and NAAQS, are contained in the table below.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 10, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(g) Approval—In a June 20, 2013, submission with a January 28, 2015, clarification, Wisconsin certified that the state has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2008 ozone NAAQS. We are not taking action on the prevention of significant deterioration requirements related to section 110(a)(2)(C), (D)(i)(II), and (J), the transport provisions in section 110(a)(2)(D)(i)(I), and the state board requirements of (E)(ii). We will address these requirements in a separate action.
(h) Approval—In a June 20, 2013, submission with a January 28, 2015, clarification, Wisconsin certified that the state has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2010 nitrogen dioxide (NO
(i) Approval—In a June 20, 2013, submission with a January 28, 2015, clarification, Wisconsin certified that the state has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2010 sulfur dioxide (SO
Environmental Protection Agency (EPA).
Final rule; correcting amendments.
The Environmental Protection Agency (EPA) published a final rule in the
Effective September 9, 2015.
Ms. Sharon Nizich, Sector Policies and Programs Division (D243-04), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number: (919) 541-2825; facsimile number: (919) 541-5450; email address:
The EPA received communications from representatives of the Portland cement industry on five occasions in August 2015 (see memo to the docket (EPA-HQ-OAR-2011-0817) titled, “Communications on Errors PCA August 2015”). These communications outlined several errors in the regulatory text of the final rule (80 FR 44772). These all pertain to monitoring requirements. The EPA agrees that these are errors (typographical and unintended phrasing or omissions), and is correcting these errors in this document. We are also removing two passages (which consisted of four sentences) that were inadvertently left in the final amendments, but were discussed by the EPA as being removed in the Response to Comment (RTC) document for the final amendments (see docket item EPA-HQ-OAR-2011-0817-0870, page 8). In the RTC, we discussed that data substitution is not an allowed practice when determining compliance, but these four sentences discuss procedures for data substitution. Leaving these sentences in the rule, thus, does not reflect the EPA's stated intention, and would lead to confusion given the direct conflict between the RTC document and the rule text.
We are making one further technical correction involving timing of performance tests. The correction keeps in place the specified time by which performance tests must be conducted, but will no longer set out a window of time in which the test must be conducted. The net effect is that performance tests can be conducted earlier than the window of time in the current rule text if a source desires to conduct its performance test earlier. The EPA had already indicated in the RTC document that it was making this change (see docket item EPA-HQ-OAR-2011-0817-0870, page 5). The EPA regards this amendment as a clarification (the current rule could be interpreted to allow earlier testing) so that the rule reads precisely as intended, as stated by the EPA in the RTC document.
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401,
The revisions read as follows:
(b) * * *
(7) * * *
(v)* * * You are required to measure oHAP at the coal mill inlet or outlet and you must also measure oHAP at the alkali bypass outlet. * * *
(c) * * * Performance tests required every 30 months must be completed no more than 31 calendar months after the previous performance test except where that specific pollutant is monitored using CEMS; performance tests required every 12 months must be completed no more than 13 calendar months after the previous performance test.
The revisions read as follows:
(k) * * *
(2) * * *
(ii) * * * In this manner all hourly average values exceeding the span value measured by the Hg CEMS during the week following the above span linearity challenge when the CEMS response exceeds +/−20 percent of the certified value of the reference gas must be normalized using Equation 22.
(iii) Quality assure any data above the span value established in paragraph (k)(1) of this section using the following procedure. Any time two consecutive one-hour average measured concentrations of Hg exceeds the span value you must, within 24 hours before or after, introduce a higher, “above span” Hg reference gas standard to the Hg CEMS. The “above span” reference gas must meet the requirements of PS 12A, Section 7.1, must target a concentration level between 50 and 150 percent of the highest expected hourly concentration measured during the period of measurements above span, and must be introduced at the probe. While this target represents a desired concentration range that is not always achievable in practice, it is expected that the intent to meet this range is demonstrated by the value of the reference gas. Expected values may include “above span” calibrations done before or after the above span measurement period. Record and report the results of this procedure as you would for a daily calibration. The “above span” calibration is successful if the value measured by the Hg CEMS is within 20 percent of the certified value of the reference gas. If the value measured by the Hg CEMS exceeds 20 percent of the certified value of the reference gas, then you must normalize the one-hour average stack gas values measured above the span during the 24-hour period preceding or following the “above span” calibration for reporting based on the Hg CEMS response to the reference gas as shown in equation 22 below. Only one “above span” calibration is needed per 24 hour period.
(l) * * *
(1) * * * The span value and calibration requirements in paragraphs (l)(1)(i) and (ii) of this section apply to HCl CEMS other than those installed and certified under PS 15.
(ii) * * *
(B) * * * Any HCl CEMS above span linearity challenge response exceeding +/−20 percent of the certified value of the reference gas requires that all above span hourly averages during the week following the above span linearity challenge must be normalized using Equation 23.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of tetraethylene glycol (CAS Reg. No. 112-60-7) when used as an inert ingredient (solvent) in pesticide formulations applied to growing crops. Exponent, Inc. on behalf of Drexel Chemical Company submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of tetraethylene glycol.
This regulation is effective September 11, 2015. Objections and requests for hearings must be received on or before November 10, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0214, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0214 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before November 10, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0214, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the
Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for tetraethylene glycol including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with tetraethylene glycol follows.
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by tetraethylene glycol as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.
Acute, subchronic and mutagenicity studies were available but chronic, developmental, reproduction and metabolism studies were not available on tetraethylene glycol. Ethylene glycol and the higher glycols (di-, tri-, tetra-, and pentaethylene glygol) are closely related in structure. Their physicochemical properties differ in a regular and expected way due to the increasing molecular weight and consistent functionality of a relatively less stable hydroxy moiety on each end of the molecule. Therefore, the hazard profile and dose response are also expected to change consistently with decreasing potential for adverse effect with increasing molecular weight (OECD SIDS SIAM 18, 2004). Based on this, toxicity data on triethylene glycol (which has a lower molecular weight than tetraethylene glycol and is likely to provide a conservative estimate of potential for adverse effect) was used as surrogate data to bridge chronic, developmental, reproduction toxicity and metabolism data for tetraethylene glycol.
The acute oral and dermal toxicity of tetraethylene glycol is low. The oral and dermal LD
Tetraethylene glycol did not cause toxicity at doses up to 2,000 milligrams/kilograms/day (mg/kg/day) in a subchronic oral toxicity study in rats.
Based on developmental and reproduction toxicity studies with triethylene glycol, tetraethylene glycol is not expected to be a developmental/reproduction toxicant. Neither maternal, developmental nor reproduction toxicity was observed up to 3,300 mg/kg/day (greater than three times the limit dose).
Available mutagenicity studies included the Ames test, mammalian gene mutation, sister chromatid exchange, chromosome aberrations, the chromatid dominant lethal test, and mouse micronucleus assays. Tetraethylene glycol was negative for inducing mutations and aberrations in all of the studies except the sister chromatid exchange assay which was positive. However, based on the weight of evidence tetraethylene glycol is not expected to be mutagenic.
Carcinogenicity studies were not available. However, based on the lack of systemic toxicity and the lack of mutagenicity tetraethylene glycol is not expected to be carcinogenic.
Neurotoxicity and immunotoxicity studies were not available for review. However, evidence of neurotoxicity and immunotoxicity was not observed in the available studies.
Metabolism studies are not available on tetraethylene glycol. However, it is postulated that the metabolic pathway for tetraethylene glycol is similar to that of triethylene glycol in that it undergoes oxidation via alcohol dehydrogenases and aldehyde dehydrogenases to generate dicarboxylic acid metabolites.
Specific information on the studies received and the nature of the adverse effects caused by tetraethylene glycol as well as the NOAEL and the LOAEL from the toxicity studies can be found at
The available toxicity studies indicate that tetraethylene glycol has low toxicity. No effects were observed up to 2,000 mg/kg/day following subchronic exposure. In the developmental and reproduction toxicity studies, effects were observed only at very high doses (≥3,300 mg/kg/day). Further, the only effect observed at 3,300 mg/kg/day was a minor decrement in bodyweight. Although, doses between 590-3300 mg/kg/day were not tested in the developmental and reproduction studies in mice, the Agency is reasonably certain that no harm will occur to the general population or infants and children following the use of tetraethylene glycol at any dose below the limit dose given the lack of effects being found and the fact that the only effect seen was a minor bodyweight decrease seen at 3,300 mg/kg/day. Since, no other effects were observed, the Agency concluded that there are no endpoints of concern for tetraethylene glycol and a qualitative risk assessment is appropriate.
1.
Tetraethylene glycol will be used as a solvent in pesticide formulations used on agricultural crops. Additionally, it is used as an indirect food additive.
For the general population, the majority of exposure to tetraethylene glycol occurs from the extensive use as a FDA-approved indirect food additive. Under this exemption from the requirement of a tolerance, residues of this chemical also may be found on treated crops. Because no hazard endpoint of concern was identified for the acute and chronic dietary assessment (food and drinking water), a quantitative dietary exposure risk assessment was not conducted.
2.
Tetraethylene glycol is used as an inert ingredient in non-food use pesticide formulations and is also used as a humectant in cosmetics. However, based on the lack of toxicity, a quantitative exposure assessment from residential exposures was not performed.
3.
EPA has not found tetraethylene glycol to share a common mechanism of toxicity with any other substances, and tetraethylene glycol does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that tetraethylene glycol does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
As part of its qualitative assessment, the Agency did not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children. Based on an assessment of tetraethylene glycol and its chemical properties, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children.
Because no toxicological endpoints of concern were identified, EPA concludes that aggregate exposure to residues of tetraethylene glycol will not pose a risk to the U.S. population, including infants and children, and that no harm will result to the general population, or to infants and children from aggregate exposure to tetraethylene glycol residues.
An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of tetraethylene glycol in or on any food commodities. EPA is establishing a limitation on the amount of tetraethylene glycol that may be used in pesticide formulations applied to growing crops. That limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136
Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.920 for tetraethylene glycol (CAS Reg. No. 112-60-7) when used as an inert ingredient (solvent) in pesticide formulations applied to growing crops.
This action establishes an exemption from the requirement of tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
In rule document 2015-14127, appearing on pages 36050-36110 in the issue of Tuesday, June 23, 2015, make the following correction:
On pages 36102-36103, in the table titled “Table 1: Controls, Telltales, and Indicators With Illumination or Color Requirements”, the images are corrected to appear as follows:
National Transportation Safety Board (NTSB or Board).
Notice of interpretation.
This document provides the NTSB's interpretation of the applicability of the agency's regulations concerning aircraft accident notification requirements to unmanned aircraft. The regulations define “unmanned aircraft accident” and require notifications of accidents that fulfill the criteria included in the definition. By this Notice, the NTSB clarifies it does not consider model aircraft to fall within the regulatory definition of unmanned aircraft accident, for purposes of required notification.
Effective September 11, 2015.
A copy of this Notice of interpretation is available for inspection and copying at NTSB Headquarters, 490 L'Enfant Plaza SW., Washington, DC 20594-2003. Alternatively, a copy of the Notice is available on the NTSB's Web site at
William English, NTSB Office of Aviation Safety, (202) 314-6686.
On August 24, 2010, the NTSB published a Final Rule defining “unmanned aircraft accident” as:
[A]n occurrence associated with the operation of any public or civil unmanned aircraft system that takes place between the time that the system is activated with the purpose of flight and the time that the system is deactivated at the conclusion of its mission, in which: (1) Any person suffers death or serious injury; or (2) The aircraft has a maximum gross takeoff weight of 300 pounds or greater and sustains substantial damage.
In the preamble to the Final Rule, the NTSB stated it sought to exclude model aircraft from the notification requirements of 49 CFR part 830. 75 FR at 51954. The NTSB's promulgation of the notification requirements with well-recognized definitions in part 830 was prompted by enactment of the Airport and Airway Safety and Capacity Expansion Act of 1987, Public Law 100-223, 101 Stat. 1486 (Dec. 30, 1987). The statute specifically required the NTSB to promulgate notification requirements, stating the NTSB must “establish by regulation requirements binding on persons reporting . . . accidents and aviation incidence subject to the Board's investigatory jurisdiction under this subsection.”
The NTSB has consistently excluded unmanned aircraft systems (UAS) flown for hobby and recreational use from the definition of “accident” under 49 CFR part 830, and has historically not investigated the rare occasions in which a model aircraft has caused serious injury or fatality. For purposes of defining the term “model aircraft” in this publication, the NTSB has adopted the definition of the term that appears in section 336(c) of the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012, Public Law 112-95; 126 Stat. 77-78 (Feb. 14, 2012). Section 336(c) defines “model aircraft” to mean an unmanned aircraft that is:
(1) capable of sustained flight in the atmosphere;
(2) flown within visual line of sight of the person operating the aircraft; and
(3) flown for hobby or recreational purposes.
The NTSB's exclusion of model aircraft from the applicability of 49 CFR part 830 is consistent with international practices and interpretations concerning accident notifications and investigations. For example, Circular 328 from the International Civil Aviation Organization states model aircraft are outside the scope of applicability of the Chicago Convention. International Civil Aviation Organization,
On February 14, 2012, the President signed into law the FAA Modernization and Reform Act of 2012. Public Law 112-95. Among other provisions, the statute defines unmanned aircraft and small unmanned aircraft. The statute describes UAS as “an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system.”
In addition, the statute provides a definition of “model aircraft.” As quoted above, section 336(c) of the Act states the definition of a model aircraft is dependent upon the aircraft's use; an aircraft capable of sustained flight in the atmosphere that is flown within the operator's visual line of sight and only for hobby or recreational purposes is considered a “model aircraft.”
Section 336(a) of the Act precludes the FAA from promulgating any rule concerning a model aircraft if the aircraft: (1) Is flown “strictly for hobby or recreational use”; (2) is “operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization”; (3) is limited to not more than 55 pounds unless otherwise certified; (4) is “operated in a manner that does not interfere with and gives way to any manned aircraft”; and (5) when flown within 5 miles of an airport, the model aircraft's operator provides the airport operator and air traffic control tower with prior notice of its operation.
On June 25, 2014, the FAA published a Notice of interpretation with request for comment in the
In light of recent regulatory and legislative actions and industry developments in the area of unmanned aircraft, the agency believes it is prudent to clarify our interpretation of the definitions codified at 49 CFR 830.2 and the notification requirements contained in § 830.5(a) (applicable to “aircraft accidents” and “serious incidents”).
The NTSB does not now propose a definition of model aircraft, but will consider as instructive the description of “model aircraft” within section 336 of the FAA Modernization and Reform Act of 2012, as described above in the section of this Notice entitled “Related Legislative and Regulatory Developments.”
The NTSB trusts operators will find this statement of interpretation helpful in understanding the NTSB's definition of “unmanned aircraft accident.”
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; quota transfer.
NMFS announces that the Commonwealth of Virginia is transferring a portion of its 2015 commercial Atlantic bluefish quota to the Commonwealth of Massachusetts. This quota adjustment is necessary to comply with the Bluefish Fishery Management Plan quota transfer provisions. This announcement informs the public of the revised commercial quota for each state involved.
Effective September 8, 2015, through December 31, 2015.
Reid Lichwell, Fishery Management Specialist, (978) 281-9112.
Regulations governing the bluefish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Florida through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.162.
The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan, published in the
Virginia has agreed to transfer 50,000 lb (22,680 kg) of its 2015 commercial quota to Massachusetts. This transfer was prompted by state officials in Massachusetts to ensure their commercial bluefish quota is not exceeded. The Regional Administrator has determined that the criteria set forth in § 648.162(e)(1) are met. The revised bluefish quotas for calendar year 2015 are: Virginia, 422,629 lb (191,701 kg); and Massachusetts, 602,036 lb (273,079 kg), based on the final 2015 Atlantic Bluefish Specifications published August 6, 2015 (80 FR 46848).
This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reapportionment.
NMFS is reapportioning the seasonal apportionments of the 2015 Pacific halibut prohibited species catch (PSC) limits for the trawl deep-water and shallow-water species fishery categories in the Gulf of Alaska. This action is necessary to account for the actual halibut PSC use by the trawl deep-water and shallow-water species fishery categories from May 15, 2015 through June 30, 2015. This action is consistent with the goals and objectives of the Fishery Management Plan for Groundfish of the Gulf of Alaska.
Effective 1200 hours, Alaska local time (A.l.t.), September 9, 2015 through 2400 hours, A.l.t., December 31, 2015.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the
The final 2015 and 2016 harvest specifications for groundfish in the GOA (80 FR 10250, February 25, 2015) apportions the 2015 Pacific halibut PSC limit for trawl gear in the GOA to two trawl fishery categories: A deep-water species fishery and a shallow-water species fishery. The halibut PSC limit for these two trawl fishery categories is further apportioned by season, including four seasonal apportionments to the shallow-water species fishery and three seasonal apportionments to the deep-water species fishery. The two fishery categories also are apportioned a combined, fifth seasonal halibut PSC limit. Unused seasonal apportionments are added to the next season apportionment during a fishing year.
Regulations at § 679.21(d)(4)(iii)(D) require NMFS to combine management of the available trawl halibut PSC limits in the second season (April 1 through July 1) deep-water and shallow-water species fishery categories for use in either fishery from May 15 through June 30 of each year. Furthermore, NMFS is required to reapportion the halibut PSC limit between the deep-water and shallow-water species fisheries after June 30 to account for actual halibut PSC use by each fishery category during May 15 through June 30. As of September 1, 2015, NMFS has determined that the trawl deep-water and shallow-water fisheries used 75 metric tons (mt) and 1 mt of halibut PSC, respectively, from May 15 through June 30. Accordingly, pursuant to § 679.21(d)(4)(iii)(D), the Regional Administrator is reapportioning the combined first and second seasonal apportionments (836 mt) of halibut PSC limit between the trawl deep-water and shallow-water fishery categories to account for the actual PSC use in each fishery. Therefore, Table 16 of the final 2015 and 2016 harvest specifications for groundfish in the GOA (80 FR 10250, February 25, 2015) is revised consistent with this adjustment.
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 allow for harvests that exceed the originally specified apportionment of the halibut PSC limits to the deep-water and shallow-water fishery categories. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 3, 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.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Environmental Protection Agency (EPA).
Proposed rule.
Under the Federal Clean Air Act (CAA), the Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) submission from the Governor of New Mexico for the City of Albuquerque-Bernalillo County for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS). The submittal addresses how the existing SIP provides for implementation, maintenance, and enforcement of the 2008 Pb NAAQS (infrastructure SIP or i-SIP). This i-SIP ensures that the State's SIP for Albuquerque-Bernalillo County is adequate to meet the state's responsibilities under the CAA, including the four CAA requirements for interstate transport of Pb emissions.
Written comments must be received on or before October 13, 2015.
Submit your comments, identified by Docket ID Number EPA-R06-OAR-2012-0400, by one of the following methods:
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Tracie Donaldson, telephone 214-665-6633,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
On October 5, 1978, we published the first NAAQS for lead (Pb) (43 FR 46246). Both the primary and secondary standards were set at 1.5 micrograms per cubic meter (µg/m3). In 2008, following a periodic review of the NAAQS for lead, we published a revised, more stringent NAAQS of 0.15 µg/m3 for both the primary and secondary standards (73 FR 66964, November 13, 2008). For more information on these standards, please see the Technical Support Document (TSD) and EPA Web site
Each state must submit an i-SIP within three years after the promulgation of a new or revised NAAQS. Section 110(a)(2) of the CAA includes a list of specific elements the i-SIP must meet. EPA issued guidance addressing the i-SIP elements for NAAQS.
EPA is proposing to approve the Albuquerque-Bernalillo County, New Mexico i-SIP submittal for the 2008 Pb NAAQS
Below is a summary of EPA's evaluation of the Albuquerque-Bernalillo County, New Mexico i-SIP for each applicable element of 110(a)(2) A-M. The Albuquerque-Bernalillo County Air Quality Control Board (Air Board) provided a demonstration of how the existing Albuquerque-Bernalillo County, New Mexico SIP met all the requirements of the 2008 Pb NAAQS on May 2, 2012. This SIP submission became complete by operation of law on November 2, 2013.
Legislative authority for Albuquerque-Bernalillo County's air quality program, codified in Chapter 74
The AQCA provides AQP with the authority to monitor ambient air quality in the county (NMSA 1978, section 74-2-5). AQP maintains a monitoring network for the NAAQS and submits an annual Network Assessment to EPA. The network includes one monitor for Pb. AQP's 2014 Air Monitoring Network Plan is the most recently EPA-approved network monitoring plan and was approved by EPA on February 3, 2015. All monitoring data is measured using EPA approved methods and subject to the EPA quality assurance requirements. AQP submits all required data to EPA, in accordance with EPA rules. The monitoring network was approved into the SIP (46 FR 4005, August 6, 1981). AQP conducts an assessment of the monitoring network every 5 years. Data is available upon request and in the EPA Air Quality System (AQS) database.
With respect to significant contribution to nonattainment or interference with maintenance of the Pb NAAQS, the physical properties of Pb, which is a metal and very dense, prevent Pb emissions from experiencing a significant degree of travel in the ambient air. No complex chemistry is needed to form Pb or Pb compounds in the ambient air; therefore, ambient concentrations of Pb are typically highest near Pb sources. More specifically, there is a sharp decrease in ambient Pb concentrations as the distance from the source increases. According to EPA's report entitled
There are no areas within Albuquerque-Bernalillo County that are designated as nonattainment with respect to the 2008 Pb NAAQS, and there are no significant sources of Pb emissions within the County that emit Pb in amounts equal to or exceeding 0.5 tons per year, nor sources of Pb emissions within two miles of a neighboring state line. Total Pb emissions within Albuquerque-Bernalillo County in 2011 were less than two tons, and most of the Pb-emitting sources within the State are general aviation airports where aviation gasoline containing tetra-ethyl lead is still in use. Therefore, we deem that Albuquerque-Bernalillo County has presumptively satisfied the interstate transport requirements pertaining to significant contribution to nonattainment or interference with maintenance of the Pb NAAQS.
With respect to the interstate transport and PSD requirement, we note that Albuquerque-Bernalillo County's satisfaction of the applicable infrastructure SIP PSD requirements for attainment/unclassifiable areas with regards to the 2008 Pb NAAQS have been detailed in the section addressing section 110(a)(2)(C). Therefore, we deem that the SIP has presumptively satisfied the interstate transport and PSD requirement.
With regard to the applicable requirement for interstate transport and visibility protection, significant impacts from Pb emissions from stationary sources are expected to be limited to short distances from the source and most, if not all, stationary sources of Pb emissions are located at sufficient distances from Class I areas such that visibility impacts would be negligible. Although Pb can be a component of coarse and fine particles, Pb generally comprises only a small fraction of coarse and fine particles. A recent EPA study conducted to evaluate the extent that Pb could impact visibility concluded that Pb-related visibility impacts at Class I areas were found to be insignificant (
Section 110(a)(2)(D)(ii) also requires that the SIP ensure compliance with the applicable requirements of sections 126 and 115 of the CAA, relating to interstate and international pollution abatement, respectively. Section 126(a) of the CAA requires new or modified sources to notify neighboring states of potential impacts from sources within the State. Albuquerque-Bernalillo County regulations require that affected states, tribes and federal land managers receive notice prior to the commencement of any construction or significant modification of a major source. In addition, no source or sources located in Albuquerque-Bernalillo County have been identified by EPA as having any interstate impacts under section 126 in any pending actions relating to any air pollutant.
Section 115 of the CAA authorizes EPA to require a state to revise its SIP under certain conditions to alleviate international transport into another country. There are no final findings under section 115 of the CAA against New Mexico with respect to any air pollutant. Thus, the State's SIP does not need to include any provisions to meet the requirements of section 115.
Based upon review of the State's infrastructure SIP submission for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in New Mexico's SIP, EPA believes that Albuquerque-Bernalillo County has the adequate infrastructure needed to address sections 110(a)(2)(D)(i)(I) and (II) (all 4 interstate transport requirements), and 110(a)(2)(D)(ii) for the 2008 Pb NAAQS and is proposing to approve this element of the May 2, 2012, submission.
Both elements A and E address the requirement that there is adequate authority to implement and enforce the SIP and that there are no legal impediments.
This i-SIP submission for the 2008 Pb NAAQS describes the SIP regulations governing the various functions of personnel within the AQP and the Air Board, including the administrative, technical support, planning, enforcement, and permitting functions of the program.
With respect to funding, the resources to carry out the plan are provided through General Funds, Permit Fees and the CAA grant process. Permit Fees are collected under the authority of section 74-2-7.
As required by the CAA and the Environmental Improvement Act (EIA), the SIP stipulates that any members of the board or body, or the head of an agency with similar powers, adequately disclose any potential conflicts of interest. NMSA 1978 section 74-1-4 provides the Air Board contain 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 or who appear before the board on issues related to the CAA or the Air Act. Board members are required to recuse themselves from rule-makings in which their impartiality may reasonably be questioned.
With respect to assurances that the Air Board has responsibility to implement the SIP adequately when it
The Albuquerque-Bernalillo County Air Quality Control Board assumes jurisdiction for local administration and enforcement of the AQCA in Bernalillo County. There are Albuquerque/Bernalillo County SIP provisions which are part of the New Mexico SIP.
Requirements in 20.11.47 NMAC,
The AQCA provides the New Mexico Environment Department with authority to address environmental emergencies, inclusive of contingency plans to implement emergency episode provisions.
Pursuant to 40 CFR 51, Subpart H,
Albuquerque-Bernalillo County's SIP is a compilation of regulations, plans and submittals that act to improve and maintain air quality in accordance with national standards. The authority to develop or revise the SIP is based on the authority to adopt new regulations and revise existing regulations to meet the NAAQS. NMSA 1978 section 74-7-5 gives the board the authority to perform these functions. Section 74-7-5 also gives the board the authority to adopt regulations to abate, control and prohibit air pollution throughout Albuquerque-Bernalillo County in accordance with the
As noted earlier, EPA does not expect infrastructure SIP submissions to address subsection (I). The specific SIP submissions for designated nonattainment areas, as required under CAA title I, part D, are subject to different submission schedules than those for section 110 infrastructure elements. Instead, EPA will take action on part D attainment plan SIP submissions through a separate rulemaking process governed by the requirements for nonattainment areas, as described in part D. The Albuquerque-Bernalillo County nonattainment new source review (NNSR) provisions required for the 2008 Pb NAAQS and other NAAQS were approved as part of the SIP (72 FR 20728, April 26, 2007).
Additionally, Albuquerque-Bernalillo County presently does not contain any non-attainment areas for Pb.
(1)
(2)
(3)
AQP has the duty, authority and technical capability to conduct air quality modeling, pursuant to the AQCA, in order to assess the effect on ambient air quality of relevant pollutant emissions; and can provide relevant data as part of the permitting and NAAQS implementation process. AQP follows EPA guidelines for air dispersion modeling. Upon request, AQP will submit current and future data relating to air quality modeling to EPA.
The fee requirements of 20.11.2 NMAC have been approved by EPA as meeting the CAA requirements and were incorporated into the Albuquerque-Bernalillo County, New Mexico SIP [4/10/80, 45 FR 24468]. Albuquerque-Bernalillo County's title V operating permit program codified at 20.11.42 NMAC,
New Mexico State Statute Section 74-2-5.2
EPA is proposing to approve the May 2, 2012, infrastructure SIP submission from Albuquerque-Bernalillo County, New Mexico, which addresses the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2008 Pb NAAQS. Specifically, EPA is proposing to approve the following infrastructure elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). EPA is not proposing action pertaining to section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions as EPA believes this need not be addressed in the i-SIP. Based upon review of the state's infrastructure SIP submissions and relevant statutory and regulatory authorities and provisions referenced in these submissions or referenced in Albuquerque-Bernalillo County, New Mexico's SIP, EPA believes that Albuquerque-Bernalillo County, New Mexico has the infrastructure in place to address all applicable required elements of sections 110(a)(1) and (2) to ensure that the 2008 Pb NAAQS are implemented in the county. We also are proposing to approve the State's demonstration that it meets the four statutory requirements for interstate transport of Pb emissions.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead (Pb), Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a request submitted by the Indiana Department of Environmental Management on June 1, 2015, to revise its state implementation plan (SIP) for sulfur dioxide (SO
Comments must be received on or before October 13, 2015.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0380 by one of the following methods:
1.
2.
3.
4.
5.
Please see the direct final rule which is located in the Rules section of this
Charles Hatten, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6031,
In the Final Rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve state implementation plan (SIP) submissions from Wisconsin regarding the state board requirements under section 128 of the Clean Air Act (CAA). EPA is also proposing to approve elements of SIP submissions from Wisconsin regarding the infrastructure requirements of section 110 relating to state boards for the 1997 ozone, 1997 fine particulate (PM
Comments must be received on or before October 13, 2015.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0464, by one of the following methods:
1.
2.
3.
4.
5.
Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4489,
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 submissions from the Wisconsin Department of Natural Resources (WDNR) dated July 2, 2015. These submissions are intended to address CAA requirements relating to the state board requirements under section 128, as well as infrastructure requirements of section 110 relating to state boards for the 1997 ozone, 1997 PM
The requirement for states to make infrastructure SIP submissions 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.
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA section 110(a)(1) and (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. This specific rulemaking is only taking action on the CAA 110(a)(2)(E)(ii) element of these infrastructure SIP requirements, which is the only infrastructure SIP element addressed in WDNR's submittal dated July 2, 2015.
EPA's guidance for these submissions is highlighted 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
Pursuant to section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. WDNR provided notice of a public comment period on May 9, 2015, held a public hearing at WDNR State Headquarters on June 9, 2015, and closed the public comment period on June 11, 2015. No comments were received.
Wisconsin provided a detailed synopsis of how various components of its SIP meet each of the applicable requirements in section 128 and 110(a)(2)(E)(ii) for the 1997 ozone, 1997 PM
Section 128 of the CAA includes just one subsection labeled “(a)”, which contains two explicit requirements: (1) 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 (2) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.
On July 2, 2015, WDNR submitted rules from Wisconsin Statutes (
Under section 128(a)(2) of the CAA, the head of the executive agency with the power to approve permits or enforcement orders must adequately disclose any potential conflicts of interest. In Wisconsin, this power is vested in the Secretary of the WDNR.
Section 110(a)(2)(E)(ii) of the CAA also requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA.
In its submittal dated July 2, 2015, WDNR requested that
EPA is proposing to incorporate
In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
Centers for Disease Control and Prevention, HHS.
Notice of proposed rulemaking.
The World Trade Center (WTC) Health Program, at the direction of the Administrator, conducted a review of published studies regarding potential evidence of chronic obstructive pulmonary disease (COPD) and acute traumatic injury among individuals who were responders to or survivors of the September 11, 2001, terrorist attacks. The Administrator of the WTC Health Program found that
Comments must be received by October 26, 2015.
•
•
Rachel Weiss, Program Analyst, 1090 Tusculum Ave, MS: C-46, Cincinnati, OH 45226; telephone (855)818-1629 (this is a toll-free number); email
This rulemaking is being conducted in order to add new-onset COPD and acute traumatic injury to the List of WTC-Related Health Conditions (List). Following requests by the directors of the WTC Health Program Clinical Centers of Excellence (CCE) and Data Centers to the WTC Health Program to consider adding the two conditions,
This rule proposes the addition of new-onset COPD and acute traumatic injury to the List of WTC-Related Health Conditions in 42 CFR 88.1. As a result, these conditions will be eligible for treatment and monitoring coverage by the WTC Health Program.
The proposed addition of new-onset COPD and acute traumatic injury by this rulemaking is estimated to cost the WTC Health Program between $5,124,477 and $9,350,966 in 2015 and 2016. All of the costs to the WTC Health Program are transfers. Benefits to current and future WTC Health Program members may include improved access to care and better treatment outcomes than in the absence of Program coverage.
Interested persons or organizations are invited to participate in this rulemaking by submitting written views, opinions, recommendations, and/or data. Comments are invited on any topic related to this proposed rule. The Administrator invites comments specifically on the following questions related to this rulemaking:
1. Is September 11, 2003 an appropriate deadline by which an individual must have received initial medical treatment for an acute traumatic injury?
2. Is there evidence of acute traumatic injuries that occurred as a result of the September 11, 2001, terrorist attacks that would not be covered by the proposed definition? What are the types of long-term consequences or medically associated health conditions that result from the treatment or progression of acute traumatic injuries like those sustained on or after September 11, 2001?
3. Are data available on the chronic care needs of individuals who suffered acute traumatic injuries during the September 11, 2001, terrorist attacks, and its aftermath that the Administrator can use to estimate the number of current and future WTC Health Program members who may seek certification of WTC-related acute traumatic injuries as well as treatment costs?
4. Are data available on the prevalence and cost estimates for new-onset COPD?
Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Comments submitted electronically or by mail should be titled “Docket No. CDC-2015-0063” and should identify the author(s) and contact information in case clarification is needed. Electronic and written comments can be submitted to the addresses provided in the
The Administrator has determined that good cause exists to extend the traditional 30-day comment period to 45 days. The comment period is extended to provide interested parties, including peer-reviewers, adequate time to review the proposed rule and supporting scientific literature and to submit written comments to the docket.
Title I of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111-347), amended the Public Health Service Act (PHS Act) to add Title XXXIII,
All references to the Administrator of the WTC Health Program (Administrator) in this notice mean the Director of the National Institute for Occupational Safety and Health (NIOSH) or his or her designee. Section 3312(a)(6) of the PHS Act requires the Administrator to conduct rulemaking to propose the addition of a health condition to the List of WTC-Related Health Conditions (List) codified in 42 CFR 88.1.
Consideration of an addition to the List of WTC-Related Health Conditions (List) may be initiated at the Administrator's discretion
The Administrator has established a methodology for evaluating whether to add non-cancer health conditions to the List of WTC-Related Health Conditions; this methodology is published online in the Policies and Procedures section of the WTC Health Program Web site.
On May 13, 2014, the Administrator received a letter from the directors of the WTC Health Program Clinical Centers of Excellence (CCEs) and Data Centers, asking that the Administrator consider all requests for certification of COPD.
In accordance with the established methodology for the addition of non-cancers to the List, the Administrator charged the ADS with conducting a review of the relevant, peer-reviewed, published studies of 9/11-exposed populations.
Because definitions of COPD vary among authorities, the ADS first had to identify the best definition for the purposes of the WTC Health Program.
Diagnosis of COPD requires the use of a spirometry test, which measures how much and how quickly an individual inhales and exhales air from his or her lungs. The diagnosis of COPD is confirmed by a spirometry test demonstrating poorly-reversible or irreversible airways obstruction (
In accordance with the GOLD definition, described above, the ADS initiated a literature search for “chronic obstructive pulmonary disease,” “chronic bronchitis,” “pulmonary emphysema,” “pulmonary function decline,” “respiratory insufficiency,” “airways obstruction,” and “airflow limitation.”
Weiden
Aldrich
Webber
Weakley
Friedman
In a follow-up to the Friedman study reviewed above, Maslow
The ADS assessed each of the six studies described above according to the methodology established by the Administrator. The studies were assessed for relevance, quality, bias, and confounding by applying criteria extrapolated from the Bradford Hill criteria.
First, the studies were assessed for strength of the association between 9/11 exposures and a health condition (including the magnitude of the effect and statistical significance). Weiden
In addition to the Weiden and Aldrich studies, strength of association was also demonstrated by Weakley
Finally, among WTC Health Registry (Registry) participants, exposure factors (dust cloud density, smoke at home or work, and dust at home or work) and IOS outcomes (indicative of distal airways obstruction) were statistically associated with persistent post-9/11 onset of lower respiratory symptoms [Friedman
The studies were next assessed for consistency of their findings. Objective findings of new onset, post-9/11 and persistent airflow limitation, as well as physician-diagnosed cases of COPD, including chronic bronchitis and COPD/emphysema, were identified among symptomatic FDNY responders for whom pre-9/11 results were available [Weiden
The studies were also reviewed to assess the biological gradient or dose-response relationships between 9/11 exposures and the health condition. Newly developed lower respiratory symptoms and persistent pulmonary function abnormalities suggestive of airways injury and obstruction were significantly associated with 9/11 exposure in the FDNY studies, even after accounting for cigarette smoking. [Weiden
Finally, the studies were reviewed for plausibility and coherence with known facts about the biology of the health condition. Exposure to the massive alkaline dust cloud produced by the collapse of the WTC buildings was reportedly associated with upper and lower airway irritation with penetration into the bronchial tree, distal airways, and alveoli leading to respiratory symptoms, pulmonary function changes, and chronic inflammation. These are known contributing risk factors for the development of COPD.
In summary, obstructive airways disease is a category that includes both asthma and the umbrella term COPD, which itself includes obstructive chronic bronchitis, obstructive bronchiolitis, and emphysema. Upon assessment of the literature discussed above, the Administrator has found evidence that exposure to WTC dust is associated with the development of new-onset lower respiratory symptoms, prolonged airway inflammation and persistent airflow limitation, which are the main indicators of chronic airways obstruction. While it is difficult to demonstrate that the airway obstruction found in WTC survivors and responders is due to COPD versus asthma, three studies reported cases of physician-diagnosed COPD/emphysema, one reported on IOS findings of air trapping and increased small airways resistance, and another study reported on HRCT findings of bronchial wall thickening, air trapping and emphysema, indicating that some proportion of OAD cases found in WTC survivors and responders could be interpreted as COPD. Further, because some cases of asthma are known to progress to COPD, it is likely that some of the diagnosed cases of asthma seen in these and other epidemiologic studies of the 9/11-exposed populations have already progressed to COPD.
In order to propose the addition of a health condition to the List, the Administrator must determine with high confidence that the evidence supports the findings regarding a causal association between 9/11 exposure(s) and the health condition. In this instance, the Administrator finds there is substantial evidence that the 9/11 exposures produced chronic airway inflammation manifested by persistent lower respiratory symptomatology and decline in pulmonary function which may have progressed to new-onset COPD in a proportion of exposed subjects in the period since exposure, independently from any cigarette smoking among the cohort. This evidence provides substantial support for a causal relationship between 9/11 exposures and new-onset COPD.
On May 13, 2014, the Administrator received a letter from the directors of the WTC Health Program CCEs and Data Centers supporting “coverage of not only heavy lifting or repetitive strain but significant traumatic injuries like head trauma, burns, fractures, tendon tears and serious complex sprains” within the WTC Health Program.
In accordance with the methodology discussed above, the ADS initiated a search of published, peer-reviewed studies of traumatic injuries suffered by responders, recovery workers, and survivors as a result of the terrorist attacks on September 11, 2001, and the subsequent response and recovery efforts. Search terms used in the literature review included, “wounds,” “lacerations,” “brain injury(ies),” “injury(ies),” “crush(ing),” “burn(s),” “ocular,” and “fracture(s).”
The literature search yielded over 300 citations; the associated study abstracts were reviewed for relevance to 9/11-exposed populations.
Berrios-Torres
Perritt
Banauch
The New York City Department of Health (NYCDOH) [2002]
Perritt
Yurt
Rutland-Brown
Wang
The ADS assessed each of the identified studies according to the methodology established by the Administrator. All of the studies discussed above were observational reports of visits by responders and survivors to area hospitals, burn units, and DMATs. Because these were direct observational studies rather than epidemiologic studies, they were assessed for relevance, quality, and quantity to determine whether, taken together, they provide substantial evidence supporting the addition of acute traumatic injury to the List.
First, the ADS assessed the relevance of the eight studies described above. Because most of the individuals who were treated at the DMATs and in area hospitals sustained injuries from fires and falling debris in the conduct of rescue operations or fleeing from the site, all of the studies reference the period of time immediately following the September 11, 2001, terrorist attacks, and several refer to data collected for months after. The studies assessed by the ADS demonstrate the occurrence of the same types of acute traumatic injuries identified by the directors of the CCEs and Data Centers in their letter: Severe burns, head trauma, fractures, tendon tears, and complex sprains. Other similar injuries identified in the studies include eye injuries, lacerations, and orthopedic injuries. There were no severe types of injuries referenced in the surveillance literature that have not been documented by the CCEs. Furthermore, the ADS determined that all of the referenced types of injuries could be described as being caused by a brief exposure to energy. Accordingly, the ADS found these eight studies to be relevant.
Next, the ADS assessed the quality of the studies and found that many shared common limitations, such as: incomplete data sets (
Finally, the ADS assessed the quantity of the studies and found it to be sufficient. The eight relevant studies analyzed and reviewed overlapping populations affected by the attacks and response activities. Taken together, the studies provide a broad coverage of the affected populations and consistent information on the types of acute traumatic injuries that occurred. Because data regarding responders to the Pentagon and Shanksville, Pennsylvania sites is limited, the ADS found it appropriate to extrapolate the findings discussed above, which predominantly concern the New York City site, to all responder populations because of the similar hazards at all three sites.
In summary, the 9/11 exposures for acute traumatic injuries were the conditions at the sites during the attacks, collapses, evacuations, recovery, and clean-up. Acute traumatic injuries documented in the published scientific literature were sustained by construction workers, police officers, firefighters, emergency medical service technicians, others engaged in response activities, and survivors. Hazards at the WTC site, at the Pentagon, and in Shanksville, Pennsylvania may have included, but are not limited to, falling debris, fires, chemical reactions, explosions, and other dangers. These hazards caused a range of injuries, such as abrasions, burns, concussions, contusions, corneal abrasions, crushes, dislocations, eye irritation, fractures, head trauma, lacerations, orthopedic injuries, punctures, sprains/strains, and tears. Many of these types of injuries were likely minor, and did not require substantial or on-going attention. In their letter to the Administrator, the CCE and Data Center directors identified severe burns, head trauma, fractures, tendon tears, and complex sprains as those types of acute traumatic injuries that should be added to the List of WTC-Related Health Conditions for all WTC Health Program members. Accordingly, the Administrator has determined that the types of injuries most likely to have resulted in the need for medical treatment and monitoring by the WTC Health Program are those types identified by the CCE and Data Center directors and in the injury surveillance literature reviewed above.
Upon review of the evidence provided by the relevant published, peer-reviewed direct observational studies discussed above, the Administrator finds substantial support for a causal association between 9/11 exposures and acute traumatic injuries.
Title II of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111-347) reactivated the September 11th Victim Compensation Fund (VCF). Administered by the U.S. Department of Justice (DOJ), the VCF provides compensation to any individual or representative of a deceased individual who was physically injured or killed as a result of the September 11, 2001, terrorist attacks or during the debris removal. Eligibility criteria for compensation by the VCF include a list of presumptively covered health conditions, which are physical injuries determined to be WTC-related health conditions by the WTC Health Program. Pursuant to DOJ regulations, the VCF Special Master is required to update the list of presumptively covered conditions when the List of WTC-Related Health Conditions in 42 CFR 88.1 is updated.
For the reasons discussed above, the Administrator proposes to amend 42 CFR 88.1, List of WTC-Related Health Conditions, paragraph (1)(v), to add “new-onset” to the existing “WTC-exacerbated chronic obstructive pulmonary disease (COPD).” This will permit the WTC Health Program to certify cases of COPD determined to have been caused or contributed to by 9/11 exposures (considered “new-onset” cases), in addition to those cases of COPD which were exacerbated by 9/11 exposures and which are already included on the List.
For the reasons discussed above, the Administrator also proposes to add “acute traumatic injury” to the List of
The Administrator proposes to limit the availability of certification of acute traumatic injuries to those WTC Health Program members who received initial medical treatment for the injury no later than September 11, 2003. The Administrator has determined that this date offers a reasonable amount of time in which to expect that an injured responder or survivor received treatment for an acute traumatic injury. The proposed end-date of September 11, 2003, is the date originally used to identify traumatic injuries determined to be eligible for treatment by the WTC Medical Monitoring and Treatment Program that pre-dated the WTC Health Program. In addition, the PHS Act uses this date as the treatment cut-off date to identify musculoskeletal disorders eligible for certification in responders. The Administrator seeks comment on whether September 11, 2003, is an appropriate deadline.
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This notice of proposed rulemaking has been determined not to be a “significant regulatory action” under sec. 3(f) of E.O. 12866. This rule proposes the addition of new-onset COPD
As of July 31, 2014, the WTC Health Program had enrolled 61,086 responders and 7,806 survivors (68,892 total). Of that total population, 56,334 responders and 4,754 survivors (61,088 total) were participants in previous WTC medical programs and were `grandfathered' into the WTC Health Program established by Title XXXIII of the PHS Act.
CCE or Nationwide Provider Network physicians will conduct a medical assessment for each patient and make a determination, which the Administrator will then use to certify or not certify the health condition (in this case, new-onset COPD or an acute traumatic injury) for treatment by the WTC Health Program. However, for the purpose of this analysis, the Administrator has assumed that all diagnosed cases of new-onset COPD and acute traumatic injury will be certified for treatment by the WTC Health Program. Finally, because there are no existing data on new-onset COPD rates related to 9/11 exposures at either the Pentagon or Shanksville, Pennsylvania sites, and only limited data on acute traumatic injuries at the Pentagon, the Administrator has used only data from studies of individuals who were responders or survivors in the New York City area.
To estimate the number of potential cases of WTC-related new-onset COPD to be certified for treatment by the WTC Health Program, we first subtracted the number of current members certified for an obstructive airways disease, including WTC-exacerbated COPD, from the total number of members.
While this rulemaking would make acute traumatic injuries eligible for certification, the Administrator assumes that the conditions most likely to receive treatment within the WTC Health Program will be those medically associated conditions which are the long-term consequences of the certified WTC-related acute traumatic injuries. Health conditions medically associated with WTC-related health conditions are determined on a case-by-case basis in accordance with WTC Health Program policy.
Although we were able to estimate from the surveillance literature the number of responders and survivors who received medical treatment for acute traumatic injuries on or in the aftermath of September 11, 2001, we do not know the number of individuals who still experience health problems because of those traumatic injuries and are in need of chronic care. First, we estimated the number of persons in the responder and survivor populations with 9/11-related acute traumatic injuries by reviewing the studies referenced above in the acute traumatic injury literature review; we derived estimates from Berrios-Torres
The Administrator estimated the medical treatment costs associated with COPD in this rulemaking, using the methods described below, to be between $1,032 and $1,930 per case in 2014.
The low estimate, $1,032 per case, was based on WTC Health Program costs associated with the treatment of WTC-exacerbated COPD for the period October 1, 2013 through September 30, 2014. These medical costs included medical services only.
The high estimate, $1,930 per case, was based on a study by Leigh
Table 3 below shows the net present value of the range of the medical treatment cost per COPD case for the period 2015-2016:
The Administrator estimated the medical treatment costs associated with acute traumatic injury in this rulemaking using the methods described below. Because it is not possible to identify all possible types of acute traumatic injury for which a WTC responder or survivor might seek certification, we have identified several types of acute traumatic injury that may represent those types of acute traumatic injury that might be certified by the WTC Health Program. Representative examples of acute traumatic injuries include closed head injuries, burns, fractures, strains and sprains, orthopedic injuries (
This cost figure was based on a study by the National Council on Compensation Insurance (NCCI).
• Long-term medical services provided in 2011 and 2012 (
• Injuries occurring between 1983 and 1990
• Claimants with dates of birth between 1920 and 1970
• States for which NCCI collects MDC
For individuals born during 1951-1970, the medical cost per case was about $11,216 in 2014 dollars, after adjusting for inflation using the Medical Consumer Price Index for all urban consumers.
Table 4 below shows the present value of the range of the medical treatment cost per traumatic injury case for the period 2015-2016:
This rulemaking is estimated to cost the WTC Health Program between $5,124,477 and $9,350,966 for the years 2015 and 2016.
Since the implementation of provisions of the Affordable Care Act on January 1, 2014, all of the members and future members are assumed to have or have access to medical insurance coverage other than through the WTC Health Program. Therefore, all treatment costs to be paid by the WTC Health Program through 2016 are considered transfers. Tables 5 and 6 describe the estimated allocation of WTC Health Program transfer payments.
This section describes qualitatively the potential benefits of the proposed rule in terms of the expected improvements in the health and health-related quality of life of potential new-onset COPD or acute traumatic injury patients treated through the WTC Health Program, compared to no treatment by the Program.
The Administrator does not have information on the health of the population that may have experienced 9/11 exposures and is not currently enrolled in the WTC Health Program. However, the Administrator assumes that all unenrolled responders and survivors are now covered by health insurance (due to the ACA) and may be receiving treatment outside the WTC Health Program.
Although the Administrator cannot quantify the benefits associated with the WTC Health Program, members with new-onset COPD or acute traumatic injury would have improved access to care and thereby the Program should produce better treatment outcomes than in its absence. Under other insurance plans, patients may have deductibles and copays, which impact access to care and timeliness of care. WTC Health Program members who are certified for these conditions would have first-dollar coverage and, therefore, are likely to seek care sooner when indicated, resulting in improved treatment outcomes.
The analysis presented here was limited by the dearth of verifiable data on the new-onset COPD and acute traumatic injury status of responders and survivors who have yet to apply for enrollment in the WTC Health Program. Because of the limited data, the Administrator was not able to estimate benefits in terms of averted healthcare costs. Nor was the Administrator able to estimate indirect costs such as averted absenteeism, short and long-term disability, and productivity losses averted due to premature mortality.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501
As required by Congress under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
This proposed rule has been drafted and reviewed in accordance with Executive Order 12988, “Civil Justice Reform,” and will not unduly burden the Federal court system. This rule has been reviewed carefully to eliminate drafting errors and ambiguities.
The Administrator has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” The rule 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.”
In accordance with Executive Order 13045, the Administrator has evaluated the environmental health and safety effects of this proposed rule on children. The Administrator has determined that the rule would have no environmental health and safety effect on children.
In accordance with Executive Order 13211, the Administrator has evaluated the effects of this proposed rule on energy supply, distribution or use, and has determined that the rule will not have a significant adverse effect.
Under Public Law 111-274 (October 13, 2010), executive Departments and Agencies are required to use plain language in documents that explain to the public how to comply with a requirement the Federal Government administers or enforces. The Administrator has attempted to use plain language in promulgating the proposed rule consistent with the Federal Plain Writing Act guidelines.
Administrative practice and procedure, Health care, Lung diseases, Mental health programs.
For the reasons discussed in the preamble, the Department of Health and Human Services proposes to revise 42 CFR part 88 as follows:
42 U.S.C. 300mm-300mm-61, Pub. L. 111-347, 124 Stat. 3623.
(1) * * *
(v) WTC-exacerbated and new-onset chronic obstructive pulmonary disease (COPD).
(5) Acute traumatic injuries for those WTC responders and screening- and certified-eligible WTC survivors who received any medical treatment for such an injury on or before September 11, 2003.
(i) Eye injuries.
(ii) Severe burns.
(iii) Head trauma.
(iv) Fractures.
(v) Tendon tears.
(vi) Complex sprains.
(vii) Other similar acute traumatic injuries.
Bureau of Land Management, Interior.
Proposed rule; extension of public comment period.
On July 13, 2015, the Bureau of Land Management (BLM) published in the
The changes proposed as part of this proposed rule would allow the BLM to strengthen its policies governing production verification and accountability by updating Order 3's requirements to address changes in technology and industry practices that have occurred in the 25 years since Order 3 was issued, and to respond to recommendations made by the Government Accountability Office with respect to the BLM's production verification efforts. This notice extends the public comment period for 28 days beyond the initial comment-period deadline on the proposed rule.
The comment period for the proposed rule published on July 13, 2015 (80 FR 40768) is extended. Send your comments on this proposed rule to the BLM on or before October 9, 2015.
Michael Wade, BLM Colorado State Office, at 303-239-3737. For questions relating to regulatory process issues, please contact Faith Bremner, BLM Washington Office, at 202-912-7441. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individuals during normal business hours. FIRS is available 24 hours a day, 7 days a week to leave a message or question with the above individuals. You will receive a reply during normal business hours.
If you wish to comment, you may submit your comments by any one of several methods:
Please make your comments as specific as possible by confining them to issues directly related to the content of the proposed rule, and explain the basis for your comments. The comments and recommendations that will be most useful and likely to influence agency decisions are:
1. Those supported by quantitative information or studies; and
2. Those that include citations to, and analyses of, the applicable laws and regulations.
The BLM is not obligated to consider or include in the Administrative Record for the rule comments received after the close of the comment period (see
Before including your address, telephone number, email address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.
The proposed rule was published on July 13, 2015 (80 FR 40768), with a 60-day comment period closing on September 11, 2015. Since publication, the BLM has received requests for extension of the comment period on the proposed rule. In response to those comments, the BLM is extending the comment period on the proposed rule for 28 days. The closing date of the extended comment period is now October 9, 2015.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The FNS-543A is the instrument used to voluntarily collect information about summer meal sites from State agencies. It collects site name, location and operating details such as dates and times of the day that the sites are in operation that provide summer meals to children 18 years and younger in low-income communities during the summer.
Section 26 of the National School Lunch Act, which was added to the Act by Section 123 of Public Law 103-448 on November 2, 1994, mandated that the Food and Nutrition Service (FNS) enter into a contract with a nongovernmental organization to develop and maintain a national information clearinghouse of grassroots organizations working on hunger, food, nutrition, and other agricultural issues, including food recovery, food assistance and self-help activities to aid individuals to become self-reliant and other activities that empower low-income individuals.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Beaverhead-Deerlodge National Forest will prepare a Supplemental Environmental Impact Statement (SEIS) to the 2009 Beaverhead-Deerlodge National Forest Revised Land and Resource Management Plan (Forest Plan) environmental analysis in response to an August 27, 2015 Order from the U.S. District Court for the District of Montana. The Court directed the Forest Service to “properly disclose the information underlying its analysis of snowmobile impacts on big game wildlife” and “adequately appl[y] the minimization criteria in the [2005 Travel Management Rule].”
Under 40 CFR 1502.9(c)(4), there is no formal scoping period for this proposed action. The Draft SEIS is expected to be published in November 2015, which will then begin, in accordance with 36 CFR 219.16(a)(2), a 90-day public comment period on the Draft SEIS.
Jan Bowey, Beaverhead-Deerlodge National Forest, 125 Mill Street, Sheridan, MT 59749 (406) 842-5432. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at
The 2009 Forest Plan provides management direction for activities on the Beaverhead-Deerlodge National Forest for the next 10 to 15 years, including direction on eight topics (vegetation, wildlife, aquatic resources, recreation and travel management, fire management, livestock grazing, timber and recommended wilderness).
In 2010, WildEarth Guardians, Friends of the Bitterroot, Inc., and Montanans for Quiet Recreation, Inc., filed a complaint in U.S. District Court for the District of Montana (Case 9:10-cv-00104-DWM) alleging inadequate analysis of the “site-specific impacts of snowmobile use on big game winter habitat and conflicting recreational uses” when developing the Forest Plan, failure “to apply certain criteria [referred to as the minimization criteria] when designating areas open to snowmobile use” and that Subpart C of the 2005 Travel Management Rule concerning over-snow vehicles was invalid. In its June 22, 2015 Opinion (
However, in the same opinion, the U.S. Court of Appeals held that the Forest Service did not provide the public adequate access to information about the impact of snowmobiles on big game wildlife and habitat and did not allow the public to play an appropriate role in the decision-making process. The U.S. Court of Appeals also found the Forest Service did not adequately apply the minimization criteria found in the Travel Management Rule. The matter was remanded to the U.S. District Court for the District of Montana.
In an August 27, 2015 Order, the U.S. District Court for the District of Montana ordered the Forest Service to “properly disclose the information underlying its analysis of snowmobile impacts on big game wildlife” and “adequately appl[y] the minimization criteria in the [2005 Travel Managment Rule].” The SEIS will disclose information underlying its analysis of snowmobile impacts on big game wildlife and apply the minimization criteria to areas on the Beaverhead-Deerlodge National Forest open to over-snow vehicle use during the winter recreation season (December 2 through May 15).
A Draft SEIS is expected to be available for public review and comment in November 2015. The comment period for the Draft SEIS will be 90 days from the date the Notice of Availability is published in the
The Department of Agriculture has submitted the following information collection requirement(s) to Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, 725—17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
The 10 questionnaires for collecting the data are each tailored to the unique characteristics of the type and size of government or government agency to be surveyed. The type of employment and payroll data to be collected No changes will be made to the form content as currently approved. However, formatting changes will be made to the forms to facilitate data capture using current technology, Integrated Computer Assisted Data Entry (iCADE), and to clarify wording and form flow with respondents such as integrating the instruction in bullet form into the questions. These changes were cognitively tested.
Statistics compiled from data gathered using these forms are used in several important Federal government programs. Economists at the Bureau of Economic Analysis (BEA) use the statistics for developing the National Income and Product Accounts. According to the Chief Statistician of BEA, “The data obtained from these forms are critical to BEA for maintaining reliable estimates. Specifically, BEA uses national, state, local, and type-of-government aggregate data by function for full-time and part-time employees, payroll, and number of part-time hours worked to prepare estimates of functional payrolls for the public sector
BEA also uses the Census of Governments and the Annual Survey of Public Employment & Payroll to derive state-level estimates of the employment and wages and salaries of students and their spouses who are employed by public institutions of higher education in which the students are enrolled. There is no other national or state source for information on student workers at state institutions of higher education.
The employment data are used for two other data collection efforts currently conducted by the Census Bureau. The Medical Expenditures Panel Survey (MEPS) collects data for the Department of Health and Human Services (HHS) on health plans offered to state and local government employees. The MEPS sample of public employees is drawn from the Census of Governments: Employment component universe and employment data from the survey are used in statistical methods for creating national estimates on health plans. The Criminal Justice Employment and Expenditure program (CJEE), sponsored by the Bureau of Justice Statistics (BJS), uses employment data to provide employee and payroll statistics on police protection and correctional activities.
State and local government officials use these employment data to analyze and assess individual government labor force and wage levels. Both management and labor consult these data during wage and salary negotiations.
Public interest groups of many types produce analyses of public sector activities using these data. User organizations representing state and local government include the Council of State Governments, the National Conference of State Legislatures, Government Research Association, U.S. Conference of Mayors, National Association of Counties, National League of Cities, and the National Association of Towns and Townships. Another category of users, having a more specific focus on government activities, includes organizations such as the National School Boards Association and the National Sheriffs Association.
A variety of private sector organizations and individuals make use of these employment and payroll data. Notable research organizations include the Brookings Institution and the Nelson A. Rockefeller Institute of Government.
Both public and private universities utilize these data. Instructors, researchers, and students in schools of public administration, political science, management, and industrial relations as well as other members of the public also use employment data.
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
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
The Census Bureau is requesting approval to continue collection of the QFR program. QFR's last submission for forms approval included an announcement of an expansion of its coverage to include four new service sectors. The new sectors included subsectors in Sector 53 (Real Estate and Rental and Leasing), excluding subsector 533 (Lessors of Nonfinancial Intangible Assets); Sector 56 (Administrative and Support and Waste Management and Remediation Services); Sector 62 (Health Care and Social Assistance); and Sector 72 (Accommodation and Food Services) based on the 2007 North American Industry Classification System (NAICS). However, on June 9, 2014, the QFR ceased collection of these additional sectors due to sample restrictions and budget constraints. Notification of this change was announced on the QFR Business Help Site (BHS) Web site and the QFR Publication. Furthermore, we are pursing funding to get the expansion reinstated.
The survey forms used to conduct the QFR are: QFR-200 (MT) Long Form (manufacturing, mining, wholesale trade, and retail trade); QFR-201 (MG) Short Form (manufacturing); and the QFR-300 (S) Long Form (services).
The primary purpose of the QFR is to provide timely, accurate data on business financial conditions for use by Government and private-sector organizations and individuals. The primary public users include the Bureau of Economic Analysis, Federal Reserve Board, Federal Trade Commission, Small Business Administration, U.S. Treasury-Office of Tax Analysis, and the Joint Committee on Taxation. These same organizations play a major role in providing guidance, advice, and support to the QFR program. The primary private-sector data users are a diverse group including universities, financial analysts, unions, trade associations, public libraries, banking institutions, and U.S. and foreign corporations.
Title 13 U.S.C., Section 91.
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
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
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).
Title 13, United States Code, Sections 8(b), 141, 182; and Title 20, United States Code, Sections 3475, 9543, 9544, and 9546.
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; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Observer Policy Committee meeting to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Monday, September 28, 2015 at 1 p.m.
The meeting will be held at the Radisson Hotel, 180 Water Street,
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Committee will review draft Environmental Assessment (EA) for NMFS-led omnibus amendment, which would establish provisions for industry-funded monitoring (IFM) across all New England and Mid-Atlantic Council-managed fisheries and also proposes requirements for IFM in the Atlantic herring and mackerel fisheries. The Committee will also review/discuss omnibus alternatives in the IFM amendment and options for IFM in the Atlantic herring and mackerel fisheries; herring/mackerel options may include requirements for industry-funded observer coverage, at-sea monitoring, portside sampling, and/or electronic monitoring (EM) as well as develop recommendations regarding any additional management measures to be considered in the omnibus IFM amendment. They will also develop recommendations regarding the selection of preferred alternatives for the omnibus IFM amendment and the approval of the Draft EA for public comment. The Committee may address other business as necessary.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting of the SEDAR Steering Committee.
The SEDAR Steering Committee will meet to discuss the SEDAR process and assessment schedule. See
The SEDAR Steering Committee will meet from 1 p.m. on Monday, September 28, until 4 p.m. on Tuesday, September 29, 2015.
The Steering Committee meeting will be held at the Crowne Plaza, 4381 Tanger Outlet Boulevard, North Charleston, SC 29418; telephone: (843) 744-4422.
John Carmichael, SEDAR Program Manager, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone (843) 571-4366 or toll free (866) SAFMC-10; fax: (843) 769-4520; email:
The items of discussion are as follows:
1. Review progress of ongoing assessment projects.
2. Receive a report on the Data Best Practices Workshop.
3. Review Southeast Fishery Science Center progress on recommendations from the Data and Assessment Program Reviews.
4. Receive a report on the NOAA Fisheries Stock Assessment Prioritization Plan.
5. Approve SEDAR Operating Procedures changes.
6. Address the SEDAR assessment schedule: identify assessment capability, determine 2017 priorities and identify projects for 2018-19.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Pacific Council) Scientific and Statistical Committee (SSC) Groundfish Subcommittee will hold a work session to review stock assessments for black rockfish off Oregon, new harvest specification projections for arrowtooth flounder, an updated rebuilding analysis for yelloweye rockfish, and a new proposed methodology for determining big skate harvest specifications.
The SSC's Groundfish Subcommittee meeting will be held beginning at 8:30 a.m., Monday, September 28, 2015 and end at 5:30 p.m. or as necessary to complete business for the day. The Subcommittee will reconvene on Tuesday, September 29, 2013 and will continue through Thursday, October 1, 2015 beginning at
The SSC's Groundfish Subcommittee meeting will be held the National Marine Fishery Service Western Regional Center's Sand Point facility, Alaska Fisheries Science Center, 7600 Sand Point Way NE., Seattle, WA 98115; telephone: (206) 526-4000. The meeting will be held in Building 4, Traynor Room 2076 on September 28—October 1, 2015. If the SSC's Groundfish Subcommittee meeting needs to continue on Friday, October 2, 2015, the meeting will reconvene in Building 4, Observer Training Room 1055.
Mr. John DeVore, Pacific Council; telephone: (503) 820-2413.
The purpose of the SSC's Groundfish Subcommittee meeting is to review draft 2015 stock assessment documents and any other pertinent information for new full stock assessment of black rockfish off Oregon, work with the Stock Assessment Teams to make necessary revisions, and produce a report for use by the Pacific Council family and other interested persons for developing management recommendations for fisheries in 2017 and beyond. Additionally, the SSC Groundfish Subcommittee will review an updated yelloweye rockfish rebuilding analysis, review new overfishing limit (OFL) projections for arrowtooth flounder, and review new methodology for determining a big skate OFL. No management actions will be decided by the SSC Groundfish Subcommittee. The Subcommittee's role will be development of recommendations and reports for consideration by the SSC and the Pacific Council at its November meeting in Garden Grove, California.
Although non-emergency issues not contained in the meeting agenda may come before the subcommittee meeting participants for discussion, those issues may not be the subject of formal action during this meeting. Subcommittee action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Subcommittee participants' intent to take final action to address the emergency.
All visitors to the National Marine Fisheries Service Western Regional Center's Sand Point facility should bring one of the following forms of identification:
Visitors who are foreign nationals (defined as a person who is not a citizen or national of the United States) will require additional security clearance to access the Western Regional Center's Sand Point facility. Foreign national visitors should contact Dr. Martin Dorn at (206) 526-6548 at least 2 weeks prior to the meeting date to initiate the security clearance process.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820-2425 at least 5 days prior to the meeting date.
Committee for Purchase from People Who are Blind or Severely Disabled.
Proposed addition to the Procurement List.
The Committee is proposing to add a service to the Procurement List that will be provided by a nonprofit agency employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149.
For further information or to submit comments contact Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice will be required to provide the service listed below from the nonprofit agency employing persons who are blind or have other severe disabilities.
The following service is proposed for addition to the Procurement List for production by the nonprofit agency listed:
Service Type: Janitorial Service.
Service is Mandatory for: U.S. Geological Survey, 4611 Research Park Circle, Suites D and E, Las Cruces, NM.
Mandatory Source(s) of Supply: Tresco, Inc., Las Cruces, NM.
Contracting Activity: Department of the Interior, Geological Survey, Office of Acquisition and Grants—Denver, Denver, CO.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds products to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
On 6/6/2014 (79 FR 32716-32718), 6/5/2015 (80 FR 32096-32097) and 6/12/2015 (80 FR 33485-33489), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and impact of the additions on the current or most recent contractors, the Committee has determined that the products listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products to the Government.
2. The action will result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products proposed for addition to the Procurement List.
Accordingly, the following products are added to the Procurement List:
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by September 28, 2015.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 15-C0007 Office of the Secretary, Consumer Product Safety Commission, 4330 East-West Highway, Room 820, Bethesda, Maryland 20814-4408.
Leah Wade, Trial Attorney, Office of the General Counsel, Division of Compliance, Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7225.
The text of the Agreement and Order appears below.
In the Matter of: phil&teds USA, Inc.
1. In accordance with the Consumer Product Safety Act (“CPSA”), 15 U.S.C. 2051-2089 and 16 CFR 1118.20, phil&teds USA, Inc. (“phil&teds USA” or “Firm”), and the U.S. Consumer Product Safety Commission (“Commission”), through its staff (“Staff”), hereby enter into this Settlement Agreement. The Settlement Agreement and Affidavit of Corporate Officer, attached at Exhibit A (collectively the “Agreement”) and the incorporated attached Order (“Order”) resolve Staff's charges set forth below.
2. The Commission is an independent federal regulatory agency established pursuant to, and responsible for, the enforcement of the CPSA. By executing this Agreement, Staff is acting on behalf of the Commission, pursuant to 16 CFR § 1118.20(b). The Commission issues the Order under the provisions of the CPSA.
3. phil&teds USA is a corporation, organized and existing under the laws of the state of Colorado, with its principal corporate office located in Fort Collins, CO. phil&teds USA is an importer, distributor and retailer of children's strollers, child carriers and other baby products and accessories.
4. From May 2009 through January 2011, phil&teds USA imported and sold in the United States, approximately 13,500 clip-on high chairs under the brand name, MeToo Chairs (“Chairs”). The Firm sold the Chairs online and through independent retailers nationwide.
5. The Chairs are “consumer products,” and, at all relevant times, phil&teds USA was either the importer, “distributor” or “retailer” of these consumer products, which were “distributed in commerce,” as those terms are defined or used in sections 3(a)(5), (7), (8),and (13) of the CPSA, 15 U.S.C. 2052(a)(5), (7), (8), and (13).
6. The Chairs are defective and create an unreasonable risk of serious injury because the clamps on the Chairs can detach from the table, posing a fall hazard. If only one side of the Chair detaches, the lack of space between the metal cross bar and the clamps creates a finger pinching, laceration, and amputation hazard.
7. Between September 2009 and October 2010, the Firm obtained sufficient information that reasonably supported the conclusion that the Chairs contained a defect that could create a substantial product hazard or created an unreasonable risk of serious injury. Specifically, the Firm was aware of reports of incidents and injuries, including reports of fingertip amputations to children. The Firm was also aware that two design changes had been implemented to address the defects in the Chair.
8. Despite having information regarding the Chair's defect or risk, the Firm failed to inform the Commission immediately, as required by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. §§ 2064(b)(3) and (4).
9. Because the information in the Firm's possession constituted actual and presumed knowledge, the Firm knowingly violated section 19(a)(4) of the CPSA, 15 U.S.C. § 2068(a)(4), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. § 2069(d).
10. When the Firm filed its Full Report, the Firm:
a. underreported the total number of incidents and injuries involving the Chairs, stating that it was aware of 10 “instances” involving the product, but provided no details on the instances and failed to indicate that the Firm was aware of two amputation injuries;
b. failed to notify staff that the Chairs posed an amputation hazard; and
c. withheld information that the Chair had been redesigned to address the hazard and that the sample product supplied with the Full Report was manufactured differently than the Chairs involved in the incident and injury reports.
11. The Firm's failure to report this information resulted in delayed implementation of the corrective action and recall of the product, which was not publicly announced until August 17, 2011.
12. By making these inaccurate and incomplete statements in the Full Report, the Firm knowingly committed a material misrepresentation to an officer or employee in the course of an investigation under the CPSA, which violates section 19(a)(13) of the CPSA, 15 U.S.C. § 2068(a)(13), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. § 2069(d).
13. Under section 20 of the CPSA, 15 U.S.C. § 2069, the Firm is subject to civil penalties for its knowing violation of section 19(a)(4) of the CPSA, 15 U.S.C. § 2068(a)(4) and for the Firm's knowing material misrepresentations in violation of section 19(a)(13) of the CPSA, 15 U.S.C. § 2068(a)(13).
14. This Agreement does not constitute an admission by the Firm to the charges set forth in paragraphs 4 through 13, including charges that phil&teds USA violated any statute or regulation, failed to timely report, or committed a material misrepresentation in violation of the CPSA. In fact, phil&teds USA took the initiative in reporting incidents surrounding the Chair to the CPSC, disclosed the number of those incidents, and further explained that unreasonable misuse of the product was the cause of serious injuries.
15. Under the CPSA, the Commission has jurisdiction over the matter involving the Chairs and over phil&teds USA, Inc.
16. In settlement of Staff's charges, and to avoid the cost, distraction, delay, uncertainty, and inconvenience of protracted litigation or other proceedings, the Firm shall pay a civil penalty in the amount of three million, five hundred thousand dollars ($3,500,000) (“Total Civil Penalty Amount”). In reliance on the accuracy and completeness of the Firm's representations and warranties in this Agreement, the Commission agrees to suspend all but two hundred thousand dollars ($200,000) of the Total Civil Penalty Amount (“$200,000 Payment”), on the terms and conditions set forth in this Agreement. The $200,000 Payment shall be paid within thirty (30) calendar days after the Firm receives service of the Commission's final Order accepting the Agreement. All payments to be made under the Agreement shall constitute debts owing to the United States and shall be made by electronic wire transfer to the United States via:
17. phil&teds USA represents and warrants that the financial statements of phil&teds USA provided to the Commission in connection with the matters addressed in this Agreement (“Financial Statements”) are complete, accurate and current and have been prepared on a consistent basis throughout the periods indicated except as otherwise noted therein, and that the Financial Statements fairly present the financial condition and results of operations and cash flow of the Firm as of the dates, and for the periods, indicated therein, all consistently applied during the periods involved except as noted therein, and subject, in the case of the unaudited interim financial statements, to the absence of notes and normal year-end adjustments.
18. The Firm represents and warrants that the information supplied by the Firm to the Commission in connection with the matters addressed in the Agreement (including information about the Firm's financial resources and ability to pay the Total Civil Penalty Amount) did not, at the time provided to the Commission, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
19. The parties agree that an amount equal to Total Civil Penalty Amount minus any amounts paid by phil&teds USA pursuant to this Agreement shall become due and payable immediately upon the occurrence of an “Event of Default,” without notice or further action by any party. An “Event of Default” means:
a. a failure of phil&teds USA to pay the $200,000 Payment (or any portion thereof) when due and payable;
b. the breach or inaccuracy of any representation or warranty of phil&teds USA in this Agreement;
c. the breach or failure by phil&teds USA to observe or perform any of its obligations, covenants or agreements set forth in the Agreement; or
d. a failure of phil&teds USA to comply with all CPSC statutes or regulations for three (3) years after the effective date of this Agreement.
20. All unpaid amounts, if any, due and owing under the Agreement shall constitute a debt due and immediately owing by phil&teds USA to the United States, and interest shall accrue and be paid by phil&teds USA at the federal legal rate of interest set forth at 28 U.S.C. § 1961(a) and (b) from the date of Event of Default until all amounts due have been paid in full (hereinafter “Default Payment Amount” and “Default Interest Balance”). phil&teds USA shall consent to a Consent Judgment in the amount of the Default Payment Amount and Default Interest Balance, and the United States, at its sole option, may collect the entire Default Payment Amount and Default Interest Balance or exercise any other rights granted by law or in equity, including but not limited to referring such matters for private collection, and phil&teds USA agrees not to contest, and hereby waives and discharges any defenses to, any collection action undertaken by the United States or its agents or contractors pursuant to this paragraph. phil&teds USA shall pay the United States all reasonable costs of collection and enforcement under this paragraph, respectively, including reasonable attorney's fees and expenses.
21. phil&teds USA shall notify CPSC in writing if any financial information supplied or to be supplied in writing by phil&teds USA to the Commission in connection with the Agreement is, in any material respect, discovered not to be true, accurate or complete; is no longer true, accurate or complete as a result of subsequent events; is discovered to contain an untrue statement of a material fact or to omit a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; or contains as a result of subsequent events an untrue statement of a material fact or an omission of a material fact required to be stated, not misleading.
22. After Staff receives this Agreement executed on behalf of phil&teds USA, Staff shall promptly submit the Agreement to the Commission for provisional acceptance. Promptly following the Commission's provisional acceptance of the Agreement, the Agreement shall be placed on the public record and published in the
23. This Agreement is conditioned upon, and subject to, the Commission's final acceptance, as set forth above, and is subject to the provisions of 16 CFR § 1118.20(h). Upon the later of: (i) The Commission's final acceptance of this Agreement and service of the accepted Agreement upon phil&teds USA, and (ii) the date of issuance of the final Order, this Agreement shall be in full force and effect, and shall be binding upon the parties.
24. Effective upon the later of: (i) The Commission's final acceptance of the Agreement and service of the accepted Agreement upon phil&teds USA, and (ii) the date of issuance of the final Order, for good and valuable consideration, phil&teds USA hereby expressly and irrevocably waives and agrees not to assert any past, present, or future rights to the following, in connection with the matter described in the Agreement: (a) An administrative or judicial hearing; (b) judicial review or other challenge or contest of the validity of the Order or of the Commission's actions; (c) a determination by the Commission of whether phil&teds USA failed to comply with the CPSA and the underlying regulations; (d) a statement of findings of fact and conclusions of law; and (e) any claims under the Equal Access to Justice Act.
25. phil&teds USA shall implement and maintain a compliance program designed to ensure compliance with the statutes and regulations enforced by the Commission that, at a minimum, contains the following elements:
a. written standards and policies concerning products sold by phil&teds USA in the United States that may relate to, or impact, CPSA compliance;
b. procedures for verifying the accuracy and completeness of information conveyed to the Commission;
c. procedures for implementing corrective and preventive actions when compliance deficiencies or violations are identified;
d. procedures for collecting information from phil&teds USA's affiliates on incidents and injuries occurring outside the United States;
e. a mechanism for confidential employee reporting of compliance-related questions or concerns to either a compliance officer or to another senior manager with authority to act as necessary;
f. effective communication of company compliance-related policies and procedures to all employees through training programs or otherwise;
g. senior manager responsibility for compliance and accountability for violations of the statutes and regulations enforced by the Commission;
h. board oversight of compliance; and
i. retention of all compliance-related records for at least five (5) years and availability of such records to Staff, upon request.
26. phil&teds USA shall implement, maintain and enforce a system of internal controls and procedures designed to ensure that:
a. information required to be disclosed by phil&teds USA to the Commission is recorded, processed and reported in accordance with applicable law;
b. all reporting made to the Commission is timely, truthful, complete and accurate; and
c. prompt disclosure is made to phil&teds USA's management of any significant deficiencies or material weaknesses in the design or operation of such internal controls that are reasonably likely to adversely affect in any material respect phil&teds USA's ability to record, process, and report to the Commission in accordance with applicable law.
27. Upon Staff's request, phil&teds USA shall provide written documentation of its compliance program and system of internal controls and procedures, including, but not limited to, the effective dates of the program, controls and procedures and improvements thereto. phil&teds USA shall cooperate fully and truthfully with Staff and shall make available all information, materials, and personnel deemed necessary by Staff to evaluate phil&teds USA's compliance with the terms of the Agreement.
28. phil&teds USA agrees that any settlement agreements with consumers involving products over which the Commission has jurisdiction, and which include a confidentiality clause, must include an exception to the confidentiality clause that allows consumers to discuss any issues related to their settlement agreement with officers and employees of the Commission and other local, state and federal government representatives.
29. The parties acknowledge and agree that the Commission may make public disclosure of the terms of the Agreement and Order.
30. phil&teds USA represents that the Agreement: (i) Is entered into freely and voluntarily, without any degree of duress or compulsion whatsoever; (ii) has been duly authorized; and (iii) constitutes the valid and binding obligation of phil&teds USA, and each of its successors, transferees, and/or assigns.
31. The signatories represent that they are authorized to execute this Agreement.
32. The Agreement is governed by the laws of the United States.
33. The Agreement and the Order shall apply to, and be binding upon, phil&teds USA and each of its successors, transferees, and/or assigns, and a violation of the Agreement or Order may subject phil&teds USA and each of its successors, transferees, and/or assigns to appropriate legal action.
34. The Agreement and the Order constitute the complete agreement between the parties on the subject matter.
35. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. For purposes of construction, the Agreement shall be deemed to have been drafted by both of the parties, and therefore, shall not be construed against any party for that reason in any subsequent dispute.
36. The Agreement shall not be waived, amended, modified, or otherwise altered, except as in accordance with the provisions of 16 CFR 1118.20(h). The Agreement may be executed in counterparts.
37. If any provision of the Agreement or the Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and the Order, such provision shall be fully severable. The balance of the Agreement and the Order shall remain in full force and effect, unless the Commission and phil&teds USA agree that severing the provision materially affects the purpose of the Agreement and Order.
I, the undersigned, swear and affirm that I am employed by phil&teds USA, Inc., that I hold the position indicated below, and, by reason of my position, I am authorized and qualified to make the following statements. All capitalized terms not defined in this affidavit shall have the meanings given to them in the Agreement between phil&teds USA, Inc. and the U.S. Consumer Product Safety Commission, of which this Affidavit is a part.
1. The financial statements of phil&teds USA provided to the Commission in connection with the matters addressed in this Agreement (“Financial Statements”) are complete, accurate and current and have been prepared on a consistent basis throughout the periods indicated except as otherwise noted therein, and that the Financial Statements fairly present the financial condition and results of operations and cash flow of phil&teds USA as of the dates, and for the periods, indicated therein, all consistently applied during the periods involved except as noted therein, and subject, in the case of the unaudited interim financial statements, to the absence of notes and normal year-end adjustments.
2. phil&teds USA has supplied all documents and information responsive to CPSC's requests.
3. The information supplied by phil&teds USA to the Commission in connection with the matters addressed in the Agreement (including information about the Firm's financial resources and ability to pay the Total Civil Penalty Amount) did not, at the time provided to the Commission, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
4. For each of the fiscal years ended March 31, 2015, 2014 and 2013, the net income, the net worth/stockholder's equity and working capital of phil&teds USA, Inc., was negative and to satisfy liabilities, phil&teds USA, Inc. relied on payments from its parent entity, Most Excellent World Holdings, Limited (“MEW”), pursuant to an intercompany agreement.
5. phil&teds USA, Inc. has insufficient cash or other liquid assets to satisfy a civil penalty payment in excess of $200,000, has no sources of funding that could be used to provide the liquidity to make such a payment, and is unable to secure funds from MEW to fulfill a civil penalty payment obligation.
6. phil&teds USA, Inc. will not directly or indirectly receive reimbursement, indemnification, insurance-related payment or other payment in connection with the matters addressed in the Agreement.
7. Any civil penalty payment by phil&teds USA, Inc. in excess of $200,000 will require phil&teds USA, Inc. to cease operations as an ongoing business.
I declare under penalty of perjury that the foregoing is true and correct. I understand that any intentional false statement in this declaration may be a criminal offense under 18 U.S.C. § 1001.
In the Matter of: phil&teds USA, Inc.
Upon consideration of the Settlement Agreement entered into between phil&teds USA, Inc. (“phil&teds USA”), and the U.S. Consumer Product Safety Commission (“Commission”), and the Commission having jurisdiction over the subject matter and over phil&teds USA, and it appearing that the Settlement Agreement and the Order are in the public interest, it is
ORDERED that the Settlement Agreement be, and is, hereby, accepted; and it is
FURTHER ORDERED, that phil&teds USA shall comply with the terms of the Settlement Agreement and shall pay a civil penalty of $3,500,000, with $3,300,000 of the total suspended, subject to the terms and conditions of the Settlement Agreement. phil&teds USA shall pay the non-suspended portion of the penalty, $200,000, in
Department of the Air Force, Department of Defense.
Notice.
Notice is given of the names of members of the Performance Review Board for the Department of the Air Force.
Pursuant to 5 U.S.C. 4314(c) (1-5), the Department of the Air Force (AF) announces the appointment of members to the AF's Senior Executive Service (SES) Performance Review Board (PRB). Appointments are made by the authorizing official. Each board member shall review and evaluate performance scores provided by the SES' immediate supervisor. Performance standards must be applied consistently across the AF. The board will make final recommendations to the authorizing official relative to the performance of the executive.
The members of the 2015 Performance Review Board for the U.S. Air Force are:
1. Board President—Gen McDew, Commander, United States Transportation Command.
2. Gen Goldfein, Vice Chief of Staff of the Air Force.
3. Honorable Lisa Disbrow, Under Secretary of the Air Force.
4. Honorable Miranda Ballentine, Assistant Secretary of the Air Force for Installations, Environment, and Logistics.
5. Lt Gen James McLaughlin, Deputy Commander at United States Cyber Command.
6. Lt Gen Andrew Busch, Director, Defense Logistics Agency.
7. Ms. Thomas, Deputy Chief Management Officer of the Air Force.
8. Mr. Gill, Executive Director, Air Force Materiel Command.
9. Mr. Hartley, Principal Deputy Assistant Secretary of the Air Force for Installations, Environment and Energy.
10. Mr. Bennett, Principal Deputy Assistant Secretary of the Air Force for Financial Management and Comptroller.
11. Mr. Lombardi, Principal Deputy Assistant Secretary of the Air Force (Acquisition).
12. Mr. Corsi, Assistant Deputy Chief of Staff for Manpower, Personnel and Services.
13. Mr. Salvatori, Director, Capabilities Management Office.
14. Mr. Geurts, Acquisition Executive, U.S. Special Operations Command.
15. Mr. Fedrigo, Deputy Assistant Secretary of the Air Force for Reserve Affairs and Airman Readiness.
16. Ms. Kay, Director of Security, Special Program Oversight and Information Protection. Additionally, all career status Air Force Tier 3 SES members not included in the above list are eligible to serve on the 2015 Performance Review Board and are hereby nominated for inclusion on an ad hoc basis in the event of absence(s).
Please direct any written comments or requests for information to Dr. Daramia Hinton, Deputy Director, Senior Executive Management, AF/DPS, 1040 Air Force Pentagon, Washington, DC 20330-1040 (PH: 703-695-7677; or via email at
Army & Air Force Exchange Service (Exchange), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by November 10, 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 the Army and Air Force Exchange Service, Office of the General Counsel, Compliance Division, Attn: Teresa Schreurs, 3911 South Walton Walker Blvd., Dallas, TX 75236-1598 or call the Exchange Compliance Division at 800-967-6067.
Respondents are individuals and/or households affiliated with Army and Air Force Exchange Service (Exchange) by assignment, employment contractual relationship, or as a result of an inter service support agreement on which personnel security clearance determination has been completed or is pending. Information collected is utilized to process the personnel security clearance of contractors and/or vendors to work at an Exchange facility, record the security clearances issued or denied, and to verify the eligibility for access to classified information or assignment to a sensitive position. In addition to utilizing the information for processing security clearances, the information may also be used by Exchange executives for adverse personnel actions such as removal from sensitive duties, removal from contract agreement, denial to a restricted or sensitive area, and revocation of security clearance.
Department of the Navy, DoD.
Notice.
The inventions listed below are assigned to the United States Government, as represented by the Secretary of the Navy and are available for domestic and foreign licensing by the Department of the Navy.
The following patents are available for licensing: Patent No. 9,054,544: ACCESSORY MOUTNING APPARATUS FOR A VEHICLE//Patent No. 9,083,078: UNIVERSAL ANTENNA MOUNTING BRACKET//Patent No. 9,079,211: INTERGRANULAR CORROSION (IGC) AND INTERGRANULAR STRESS CORROSION CRACKING (IGSCC) RESISTANCE IMPROVEMENT METHOD FOR METALLIC ALLOYS//Patent No. 9,080,989: WHISKER MANUFACTURING, DETECTION, RESPONSE, AND COMPOUND MANUFACTURING APPARATUS AND METHOD//Patent No. 9,081,409: EVENT DETECTION CONTROL SYSTEM FOR OPERATING A REMOTE SENSOR OR PROJECTILE SYSTEM//Patent No. 9,083,418: VERSATILE ANTENNA RECEIVED SIGNAL STRENGTH MEASUREMENT SYSTEM NOT AFFECTING PATTERN AND RECEIVER PERFORMANCE.
Requests for copies of the patents cited should be directed to Naval Surface Warfare Center, Crane Div, Code OOL, Bldg 2, 300 Highway 361, Crane, IN 47522-5001.
Mr. Christopher Monsey, Naval Surface Warfare Center, Crane Div, Code OOL, Bldg 2, 300 Highway 361, Crane, IN 47522-5001, telephone 812-854-4100.
35 U.S.C. 207, 37 CFR Part 404.
National Advisory Committee on Institutional Quality and Integrity (NACIQI), Office of Postsecondary Education, U.S. Department of Education.
Announcement of an open meeting.
This notice sets forth the agenda for the December 16, 17, and 18, 2015, meeting of the National Advisory Committee on Institutional Quality and Integrity (NACIQI), and provides information to members of the public on submitting written comments and on requesting to make oral comments at the meeting. The notice of this meeting is required under section 10(a)(2) of the Federal Advisory Committee Act (FACA) and section 114(d)(1)(B) of the Higher Education Act (HEA) of 1965, as amended.
The NACIQI meeting will be held December 16, 17, and 18, 2015, from 8:30 a.m. to 5:30 p.m. at a location in the Washington DC area to be announced in a later notice.
The exact location of the meeting will be published at a later date in the
• The establishment and enforcement of the criteria for recognition of accrediting agencies or associations under subpart 2, part H, title IV of the HEA, as amended.
• The recognition of specific accrediting agencies or associations or a specific State public postsecondary vocational education or nurse education approval agency.
• The preparation and publication of the list of nationally recognized accrediting agencies and associations.
• The eligibility and certification process for institutions of higher education under title IV of the HEA, together with recommendations for improvement in such process.
• The relationship between (1) accreditation of institutions of higher education and the certification and eligibility of such institutions, and (2) State licensing responsibilities with respect to such institutions.
• Any other advisory function relating to accreditation and institutional eligibility that the Secretary may prescribe.
Association of Institutions for Jewish Studies Requested scope of recognition: The accreditation of postsecondary institutions of Jewish Studies within the United States exclusively offering educational programs leading to a certificate, associate degree, baccalaureate degree or their equivalent credential in Jewish Studies or Classical Torah Studies.
(The agency does not accredit any institution or program that offers credit for distance education or correspondence education.)
Scope of recognition: The accreditation of institutions and programs within the United States awarding diplomas, associate degrees and bachelor's degrees in funeral service or mortuary science, including the accreditation of distance learning courses and programs offered by these programs and institutions.
Scope of recognition: The accreditation and preaccreditation (Accreditation Candidate) throughout the United States of education programs in audiology and speech-language pathology leading to the first professional or clinical degree at the master's or doctoral level, and the accreditation of these programs offered via distance education.
Scope of recognition: The accreditation of institutions and programs in the United States that award postsecondary certificates, postsecondary diplomas, academic Associate degrees and occupational Associate degrees, in the practice of massage therapy, bodywork, and aesthetics/esthetics and skin care, including components of programs which are offered through distance learning modalities.
Scope of recognition: The accreditation and preaccreditation throughout the United States of graduate-level, four-year naturopathic medical education programs leading to the Doctor of Naturopathic Medicine (N.M.D.) or Doctor of Naturopathy (N.D.)
Scope of recognition: The accreditation and preaccreditation throughout the United States of direct- entry midwifery educational institutions and programs conferring degrees and certificates, including the accreditation of such programs offered via distance education.
Scope of recognition: The accreditation of Montessori teacher education institutions and programs throughout the United States, including those offered via distance education.
Scope of recognition: The accreditation throughout the United States of postsecondary schools and departments of cosmetology arts and sciences and massage therapy.
1. Accrediting Commission for Education in Nursing (Consideration of relevant and material information not contained in the record pursuant to 34 CFR 602.36(g)(1)(i) and (ii).)
Scope of recognition: Accreditation of nursing education programs and schools, both postsecondary and higher degree, which offer a certificate, diploma, or a recognized professional degree including clinical doctorate, masters, baccalaureate, associate, diploma, and practical nursing programs in the United States and its territories, including those offered via distance education.
2. Council on Accreditation of Nurse Anesthesia Educational Programs
Scope of recognition: The accreditation of institutions and programs of nurse anesthesia at the post master's certificate, master's, or doctoral degree levels in the United States, and its territories, including programs offering distance education.)
3. Northwest Commission on Colleges and Universities
Scope of recognition: The accreditation and preaccreditation (“Candidacy status”) of postsecondary degree-granting educational institutions in Alaska, Idaho, Montana, Nevada, Oregon, Utah, and Washington, and the accreditation of programs offered via distance education within these institutions.
4. Western Association of Schools and Colleges, Accrediting Commission for Community and Junior Colleges
Scope of recognition: The accreditation and preaccreditation (“Candidate for Accreditation”) of two-year, associate degree-granting institutions located in California, Hawaii, the United States territories of Guam and American Samoa, the Republic of Palau, the Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands, including the accreditation of such programs offered via distance education at these colleges.
Requested Scope of Recognition: The accreditation and preaccreditation (“Candidate for Accreditation”) of community and other colleges with a primarily pre-baccalaureate mission located in California, Hawaii, the United States territories of Guam and American Samoa, the Republic of Palau, the Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands, which offer certificates, associate degrees, and the first baccalaureate degree by means of a substantive change review offered by institutions that are already accredited by the agency, and such programs offered via distance education and correspondence education at these colleges. This recognition also extends to the Committee on Substantive Change of the Commission, for decisions on substantive changes, and the Appeals Panel.
United States Air Force Institute of Technology, Graduate School of Engineering and Management (request to offer Masters in Operations Management degree at an additional location at Kirtland Air Force Base, Albuquerque, NM).
Pursuant to 10 U.S.C. 9314, the United States Air Force Institute of Technology has submitted a request for modification of existing degree-granting authority to the U.S. Secretary of Education. The NACIQI is the designated review committee for matters concerning degree-granting authority of military educational institutions as outlined in the U.S. Department of Defense Instruction 5545.04 (DoDI 5545.04) and the Federal Policy Governing the Granting of Academic Degrees by Federal Agencies and Institutions (approved by a letter, dated December 23, 1954, from the Director, Bureau of the Budget, to the Secretary for Health, Education, and Welfare). Under DoDI 5545.04, recommendations by the U.S. Secretary of Education regarding substantive change requests submitted by military educational institutions will be included with subsequent notification to the House and Senate Armed Services Committees.
The oral comments made will become part of the official record and will be considered by the Department and NACIQI in their deliberations. No individual in attendance or making oral presentations may distribute written materials at the meeting.
You may also access documents of the Department published in the
20 U.S.C. 1011c.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a draft environmental impact statement (EIS) for the Hillabee Expansion, Sabal Trail, and Florida Southeast Connection (FSC) Projects as proposed by Transcontinental Gas Pipe Line Company, LLC (Transco), Sabal Trail Transmission, LLC (Sabal Trail), and Florida Southeast Connection, LLC (FSC), respectively, in the above-referenced dockets. These are separate, but connected, natural gas transmission pipeline projects collectively referred to as the Southeast Market Pipelines (SMP) Project. The applicants request authorization to construct and operate a total of about 685.5 miles of natural gas transmission pipeline and associated facilities, six new natural gas-fired compressor stations, and modify existing compressor stations in Alabama, Georgia, and Florida. The SMP Project would provide about 1.1 billion cubic feet per day of natural gas to meet growing demands by the electric generation, distribution, and end use markets in Florida and the southeast United States.
The draft EIS assesses the potential environmental effects of the construction and operation of the SMP Project in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the SMP Project would have some adverse environmental impacts; however, these impacts would be reduced to less-than-significant levels with the implementation of the applicants' proposed mitigation and the additional measures recommended in the draft EIS.
The U.S. Army Corps of Engineers (USACE) participated as a cooperating agency in the preparation of the draft EIS. The USACE has jurisdiction by law or special expertise with respect to resources potentially affected by the proposals and is participating in the NEPA analysis. The USACE has jurisdictional authority pursuant to section 404 of the Clean Water Act, which governs the discharge of dredged or fill material into waters of the United States; section 10 of the Rivers and Harbors Act, which regulates any work or structures that potentially affect the navigable capacity of navigable waters of the United States; and section 14 of the Rivers and Harbors Act which regulates the temporary occupation of water-related structures constructed by the United States. The USACE may adopt and use the EIS to support its review of the SMP Project. Although the cooperating agency provides input to the conclusions and recommendations presented in the draft EIS, the agency will present its own conclusions and recommendations in its Record of Decision for the project. A copy of the USACE's public notice of its receipt of applications from Transco, Sabal Trail, and FSC is enclosed with our draft EIS.
The draft EIS of the SMP Project addresses the potential environmental effects of the construction and operation of the following project facilities:
The Hillabee Expansion Project would include:
• Approximately 43.5 miles of new 42- and 48-inch-diameter natural gas pipeline loop
• one new compressor station in Choctaw County, Alabama and modifications to three existing compressor stations in Dallas, Chilton, and Coosa Counties, Alabama; and
• installation of pig
The Sabal Trail Project would include:
• Approximately 515.5 miles of new natural gas pipeline in Alabama, Georgia, and Florida, including:
○ 480.9 miles of 36-inch-diameter mainline pipeline in Alabama, Georgia, and Florida;
○ the 21.5-mile-long, 24-inch-diameter Citrus County Line in Florida; and
○ the 13.1-mile-long, 36-inch-diameter Hunters Creek Line in Florida;
• five new compressor stations in Tallapoosa County, Alabama; Dougherty County, Georgia; and Suwannee, Marion, and Osceola Counties, Florida;
• subsequent modifications to two of the new compressor stations in Dougherty County, Georgia and Suwannee County, Florida; and
• installation of pig launchers/receivers, MLVs, and meter and regulating stations.
The FSC Project would include:
• Approximately 126.4 miles of new 30- and 36-inch-diameter natural gas pipeline in Florida; and
• installation of pig launchers/receivers, MLVs, and meter and regulating stations.
The FERC staff mailed copies of the draft EIS to federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American tribes; potentially affected landowners and other interested individuals and groups; newspapers and libraries in the project area; and parties to this proceeding. Paper copy versions of this draft EIS were mailed to those specifically requesting them; all others received a CD version. In addition, the draft EIS is available for public viewing on the FERC's Web site (
Any person wishing to comment on the draft EIS may do so. To ensure consideration of your comments on the proposal in the final EIS, it is important that the Commission receive your comments by October 26, 2015.
For your convenience, there are four methods you can use to submit your comments to the Commission. In all instances, please reference the appropriate docket numbers (CP14-554-000 for the FSC Project; CP15-16-000 for the Hillabee Expansion Project; or CP15-17-000 for the Sabal Trail Project) with your submission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the eComment feature on the Commission's Web site (
(2) You can file your comments electronically by using the eFiling feature on the Commission's Web site (
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket numbers (CP14-554-000, CP15-16-000, and CP15-17-000) with your submission:
(4) In lieu of sending written or electronic comments, the Commission invites you to attend one of the public meetings its staff will conduct in the SMP Project area to receive comments on the draft EIS. We encourage interested groups and individuals to attend and present oral comments on the draft EIS. The meetings are scheduled as follows:
We will begin our sign up of speakers at 5:30 p.m. The comment meetings will begin at 6:00 p.m. with a presentation by Commission staff on our environmental review process, after which speakers will be called. The meeting will end once all speakers have provided their comments or at 8:00 p.m., whichever comes first. Please note that there may be a time limit of 3 minutes to present comments, and speakers should structure their comments accordingly. If time limits are implemented, they will be strictly enforced to ensure that as many individuals as possible are given an opportunity to comment. The meetings are recorded by a stenographer to ensure comments are accurately recorded. Transcripts will be entered into the formal record of the Commission proceeding. It is important to note that verbal comments hold the same weight as written or electronically submitted comments.
Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR part 385.214).
Additional information about the SMP Project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription that allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission or FERC) regulations, 18 Code of Federal Regulations Part 380 (Order No. 486, 52
In the EA, Commission staff analyze the potential environmental effects of licensing the project and conclude that licensing the project, with appropriate measures, would not constitute a major federal action significantly affecting the quality of the human environment.
A copy of the EA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
For further information, please contact Shana Murray by telephone at (202) 502-8333 or by email at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Northern Supply Access Project (Project), which would involve construction and operation of facilities by Texas Gas Transmission, LLC (Texas Gas) in Ohio, Indiana, Kentucky, Tennessee, Mississippi, and Louisiana. The Commission will use this EA in its decision-making process to determine whether the Project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the Project. You can make a difference by providing use with your specific comments or concerns about the Project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues need to be evaluated in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before October 5, 2015.
If you sent comments on this project to the Commission before the opening of this docket on June 5, 2015, you will need to file those comments in Docket No. CP15-513-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this Project. State and local government representatives should notify their constituents of this planned Project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the Project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement and the Project is approved, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
Texas Gas provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
For your convenience, there are three methods you can use to submit your comments to the Commission. In all instances, please reference the Project docket number (CP15-513-000) with your submission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically using the
(3) You can file a paper copy of your comments by mailing them to the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Texas Gas proposes to construct, install, own, operate, and maintain the proposed Northern Supply Access Project, which (as described more fully below) would involve modifications at eight existing compressor stations along its existing pipeline and one new compressor station located in Ohio, Indiana, Kentucky, Tennessee, Mississippi, and Louisiana. The project is designed to provide an additional 384,000 million standard cubic feet of natural gas per day of north to south transportation capacity on Texas Gas's system while maintaining bi-directional flow capability on its system.
Texas Gas proposes to modify seven existing compressor stations located in Lawrence and Dearborn Counties, Indiana; Webster, Breckinridge, and Jefferson Counties, Kentucky; Tipton County, Tennessee; and Coahoma County, Mississippi, by installing yard and station pipeline and various auxiliary facilities. Texas Gas also proposes to modify the existing Bastrop Compressor Station in Morehouse Parish, Louisiana by classifying four existing compressor units as back-up units (a total of 7,040 horsepower) and adding one new 9,688 horsepower turbine compressor unit. The Project also includes the construction and operation of the new 23,877 horsepower Harrison Compressor Station in Hamilton County, Ohio.
The general location of the Project facilities is shown in Appendix 1.
Construction of the proposed facilities would disturb about 146 acres of land. Following construction, Texas Gas would retain about 13 acres to operate the new facilities, the remaining acreage would be restored and revert to former uses.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation and maintenance of the planned Project under these general headings:
• Geology and soils;
• water resources, fisheries, and wetlands;
• vegetation and wildlife, including migratory birds;
• endangered and threatened species;
• land use, including residential, commercial, and prime farmland uses;
• cultural resources;
• socioeconomics;
• air quality and noise;
• public safety; and
• cumulative impacts.
We will also evaluate reasonable alternatives to the proposed Project or portions of the Project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received durin ghte scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section of this notice, beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this Project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for Section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with applicable State Historic Preservation Offices (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the Project's potential effects on historic properties.
The environmental mailing list includes: federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for Project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the Project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed Project.
If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (Appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the “Document-less Intervention Guide” under the “e-filing” link on the Commission's Web site. Motions to intervene are more fully described at
Additional information about the Project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription that
Finally, public meetings or site visits will be posted on the Commission's calendar located at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the System Reliability Project involving construction and operation of facilities by Eastern Shore Natural Gas Company (Eastern Shore) in Kent, New Castle, and Sussex Counties, Delaware. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before October 5, 2015.
If you sent comments on this project to the Commission before the opening of this docket on May 22, 2015, you will need to file those comments in Docket No. CP15-498-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
Eastern Shore provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility on My Land? What Do I Need to Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP15-498-000) with your submission:
Eastern Shore proposes to construct and operate 10.1 miles of new natural gas pipeline loops
The Eastern Shore System Reliability Project would consist of the following facilities:
• 2.5 miles of 16-inch-diameter looping pipeline in New Castle County;
• pigging facilities
• about 7.6 miles of 16-inch diameter looping pipeline, one mainline valve assembly, pigging facilities, and one permanent access road in Kent County; and
• an additional 1,775 horsepower of compression, a new operations control station, and one permanent access road at the existing Bridgeville Compressor Station in Sussex County.
The general location of the project facilities is shown in appendix 1.
Construction of the proposed facilities would disturb about 156.7 acres of land for the aboveground facilities and the pipeline. Following construction, Eastern Shore would maintain about
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• vegetation and wildlife;
• air quality and noise;
• endangered and threatened species;
• public safety; and
• cumulative impacts.
We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the “Document-less Intervention Guide” under the “e-filing” link on the Commission's Web site. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will evaluate the environmental impacts of the Rayne XPress Expansion Project (project) in an environmental impact statement (EIS) being prepared for the related Leach XPress Project filed by Columbia Gas Transmission (Columbia Gas) in Docket No. CP15-514.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EIS. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before October 5, 2015.
If you sent comments on this project to the Commission before the opening of this docket on July 29, 2015, you will need to file those comments in Docket No. CP15-539-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
Columbia Gulf provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP15-539-000) with your submission:
Columbia Gulf plans to construct and operate 51,800 horsepower (hp) of new compression in Carter, Menifee and Montgomery Counties, Kentucky, and modification of the existing Means Measurement and Regulation Station in Montgomery County, Kentucky. The project would provide about 621,000 Dekatherms per day of firm transportation on its system.
The project would consist of the following facilities:
• A new 36,400 hp Grayson Compressor Station consisting of two gas-driven compressor units at Milepost (MP) 68 on Columbia Gulf's existing Mainline 100, 200 and 300 pipelines in in Carter County, Kentucky;
• a new 15,400 hp Means Compressor Station consisting of two gas-driven compressor units at MP 6.5 on Columbia Gulf's existing Mainline 100, 200 and 300 pipelines in in Menifee and Montgomery Counties, Kentucky; and
• modifications to station piping and Supervisory Control and Data Acquisition systems at the existing Means Measurement and Regulation Station in Montgomery County, Kentucky.
The general location of the project facilities is shown in appendix 2.
Construction of the proposed facilities would disturb about 34 acres of land, converting about 17 acres of land to industrial land use under permanent operation of the project's facilities. Columbia Gulf would restore the remaining acreage to former uses.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and
In the EIS we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology;
• soils;
• water resources, including surface water and groundwater;
• wetlands;
• vegetation and wildlife, including migratory birds;
• fisheries and aquatic resources;
• threatened, endangered, and other special status species;
• land use, recreation, special interest areas, and visual resources;
• socioeconomics;
• cultural resources;
• air quality and noise;
• public safety and reliability; and
• cumulative environmental impacts.
We will also evaluate possible alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EIS will present our independent analysis of the issues. We will publish and distribute the draft EIS for public comment. After the comment period, we will consider all timely comments and revise the document, as necessary, before issuing a final EIS. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate with us in the preparation of the EIS.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
Copies of the completed draft EIS will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the “Document-less Intervention Guide” under the “e-filing” link on the Commission's Web site. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “Recordkeeping and Reporting Related to E15” (EPA ICR No. 2408.04, OMB Control No. 2060-0675) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before October 13, 2015.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2015-0202, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Geanetta Heard, Fuel Compliance Center, 6406J, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202-343-9017 fax number: 202-565-2085 email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
Responsible Agency: Office of Federal Activities, General Information (202) 564-7146 or
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NESHAP for Semiconductor Manufacturing (40 CFR part 63, subpart BBBBB) (Renewal)” (EPA ICR No. 2042.06, OMB Control No. 2060-0519), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before October 13, 2015.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0089, to: (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NSPS for Petroleum Dry Cleaners (40 CFR part 60, subpart JJJ) (Renewal)” (EPA ICR No. 0997.11, OMB Control No. 2060-0079), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before October 13, 2015.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0031, to: (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NESHAP for Publicly Owned Treatment Works (40 CFR part 63, subpart VVV) (Renewal)” (EPA ICR No. 1891.07, OMB Control No. 2060-0428), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before October 13, 2015.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0071, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice of adequacy.
In this notice, the Environmental Protection Agency (EPA) is notifying the public that the EPA has found the following adequate for transportation conformity purposes: The Cache County, Logan, UT-ID PM
This finding is effective on September 28, 2015.
Tim Russ, Air Program, Mailcode 8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, telephone number (303) 312-6479, fax number (303) 312-6064, or email
Throughout this document, whenever “we,” “us,” or “our,” are used, we mean the EPA. Whenever “State” is used, we mean the State of Utah.
Transportation conformity is required by section 176(c) of the Clean Air Act (CAA). The conformity rule provisions at 40 CFR 93 require that transportation plans, programs, and projects conform to a State Implementation Plan (SIP) and establish the criteria and procedures for determining whether or not they do. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the National Ambient Air Quality Standard.
The criteria by which we determine whether a SIP revision's MVEBs are adequate for conformity purposes are outlined in 40 CFR 93.118(e)(4), which was promulgated August 15, 1997 (62 FR 43780). We described our process for determining the adequacy of submitted SIP MVEBs in our July 1, 2004 Transportation Conformity Rule Amendments (69 FR 40004). We used these resources in making our adequacy determinations announced in this notice.
This notice is simply an announcement of findings that we have already made and are as described below:
The Governor submitted the Cache County, Logan, UT-ID PM
For the Cache County, Logan, UT-ID PM
Please note that our adequacy review of the MVEBs as described above is separate from our future rulemaking action on the Cache County, Logan, UT-ID PM
42 U.S.C. 7401
Notice is given that a complaint has been filed with the Federal Maritime Commission (Commission) by General Motors LLC, hereinafter “Complainant,” against Nippon Yusen Kabushiki Kaisha (“NYK Japan”), Wallenius Wilhemsen Logistics AS (“WWL Norway”), and EUKOR Car Carriers Inc. (“EUKOR”), hereinafter “Respondents.” Complainant states it is a Delaware limited liability company and “one of the world's largest automobile original equipment manufacturers.” Complainant alleges that Respondent NYK Japan is a Japanese company that ships vehicles “into and out of the United States.” Complainant alleges that Respondent WWL Norway is a Norwegian company that provides “Vehicle Carrier Services for shipments to and from the United States.” Complainant alleges that Respondent
Complainant alleges that “Respondents have entered in to a secret, unfiled, and not yet effective and/or unlawful agreement and or agreements to allocate customers, raise and fix prices, and rig bids in violation of the Shipping Act. These statutory violations include, but are not limited to 46 U.S.C. 40302(a), 41102(b)(1), 41102(c), 41103(a)(1) and (2), 41104(10), 41105(1) and (6), and 46 CFR 535.401,
Complainant seeks reparations “in a sum to be proven under 46 U.S.C. 41305, with interest . . . and reasonable attorney's fees . . .” and that it “be awarded double its proven actual injury under 46 U.S.C. 41102(b) and 41105(1).”
The full text of the complaint can be found in the Commission's Electronic Reading Room at
This proceeding is assigned to the Office of Administrative Law Judges. The initial decision of the presiding officer in this proceeding shall be issued by September 6, 2016, and the final decision of the Commission shall be issued by March 6, 2017.
The Commission gives notice that it has formally requested that the parties to the below listed agreement provide additional information pursuant to 46 U.S.C. 40304(d). This action prevents the agreement from becoming effective as originally scheduled. Interested parties may file comments within fifteen (15) days after publication of this notice in the
By Order of the Federal Maritime Commission.
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may submit comments on the agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Federal Maritime Commission.
September 16, 2015; 10:00 a.m.
800 N. Capitol Street NW., First Floor Hearing Room, Washington, DC.
The first portion of the meeting will be held in Open Session; the second in Closed Session.
Karen V. Gregory, Secretary, (202) 523-5725.
Notice is given that a complaint has been filed with the Federal Maritime Commission (Commission) by Goodwin International Ltd., hereinafter “Complainant,” against Air Sea International Forwarding Inc. and Ray Tobia, hereinafter “Respondents.” Complainants states it is a United Kingdom corporation that “designs, manufactures, and supplies check valves and exports the check valves internationally.” Complainant alleges that Respondent is a Commission licensed non-vessel operating common carrier and a New Jersey corporation.
Complainant alleges that in connection with delivery of Complainant's imports Respondent collected from Complainant “for the correct duty rate at 5%, and by paying the U.S. Customs through the Customs broker a lower rate at 2%, 3% or zero” and by “filing of false and fraudulent documentation” violated 46 U.S.C. 41102(c), 46 CFR 515.11(a)(1), and 46 CFR 515.31(e).
Complainants seek reparations in the amount of $209,712.24, plus “interest and any penalties, as may be proven during the course of this proceeding, with interest as may lawfully [sic] permitted by law, costs, and attorney's fees.
The full text of the complaint can be found in the Commission's Electronic Reading Room at
This proceeding has been assigned to the Office of Administrative Law Judges. Complainant also filed a Motion for Confidential Treatment of certain attachments to the complaint, which will be directed to the Office of Administrative Law Judges. The initial decision of the presiding officer in this proceeding shall be issued by
Board of Governors of the Federal Reserve System.
Notice is hereby given of the final approval of proposed information collections by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority, as per 5 CFR 1320.16 (OMB Regulations on Controlling Paperwork Burdens on the Public). Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW., Washington, DC 20503.
The information on Forms 1522 and 1523 generally are not considered confidential. However, the notificant or applicant may request confidential treatment for portions of these forms pursuant to exemption 4 of the Freedom of Information Act, (5 U.S.C. 552(b)(4)) if it believes disclosure of those portions would likely result in substantial competitive harm. All such requests for confidential treatment would need to be reviewed on a case-by-case basis and in response to a specific request for disclosure.
Any savings association subsidiary or subsidiary holding company of a mutual holding company must file an application (Form 1523) for minority stock issuance. Minority stock issuances applications are required to provide the Federal Reserve with information to determine whether mutual holding companies and their subsidiaries are conducting insider abuse or unsafe and unsound practices.
The Federal Reserve intends to update and revise the Notice and Application to conform to Federal Reserve standards in the near future.
Forms 1681, 1682, and 1683 are distributed to the owners of the mutual holding company; no issues of confidentiality should arise in connection with these forms. One of the elements required for the application on Form 1680 is a consolidated business plan showing how the capital acquired in the conversion will be used. Business plans are not considered confidential, although the applicant may request confidential treatment pursuant to sections (b)(4), of the Freedom of Information Act (5 U.S.C. 552(b)(4),) for portions of the business plan if disclosure would likely result in substantial competitive harm. All such requests for confidential treatment would need to be reviewed on a case-by-case basis and in response to a specific request for disclosure.
The information on Form H-(e) is not considered confidential unless the applicant requests confidential treatment pursuant to exemption 4 or 6 of the Freedom of Information Act (5 U.S.C. 552(b)(4),(6)). All such requests for confidential treatment would need to be reviewed on a case-by-case basis and in response to a specific request for disclosure.
The Sound Incentive Compensation Policies (the Guidance) was developed to help protect the safety and soundness of banking organizations and promote the prompt improvement of incentive compensation practices throughout the banking industry. In addition, the guidance is consistent with the Principles for Sound Compensation Practices adopted by the Financial Stability Board (FSB) in April 2009, as well as the Implementation Standards for those principles issued by the FSB in September 2009.
Principle 2 of the Guidance states that a banking organization should have strong controls governing its process for designing, implementing, and monitoring incentive compensation arrangements. An organization's policies and procedures should:
• Identify and describe the role(s) of the personnel, business units, and control units authorized to be involved in the design, implementation, and monitoring of incentive compensation arrangements;
• identify the source of significant risk-related inputs into these processes and establish appropriate controls governing the development and approval of these inputs to help ensure their integrity; and
• identify the individual(s) and control unit(s) whose approval is necessary for the establishment of new incentive compensation arrangements or modification of existing arrangements. Banking organizations also should create and maintain sufficient documentation to permit an audit of the organization's processes for establishing, modifying, and monitoring incentive compensation arrangements.
The Guidance also states that a banking organization should conduct regular internal reviews to ensure that its processes for achieving and maintaining balanced incentive compensation arrangements are consistently followed. Such reviews should be conducted by audit, compliance, or other personnel in a manner consistent with the organization's overall framework for compliance monitoring. An organization's internal audit department also should separately conduct regular audits of the organization's compliance with its established policies and controls relating to incentive compensation arrangements. The results should be reported to appropriate levels of management and, where appropriate, the organization's board of directors.
Principle 3 of the Guidance states that the board of directors should review and approve the overall goals and purposes of the firm's incentive compensation system. The board of directors should provide clear direction to management to ensure that its policies and procedures are carried out in a manner that achieves balance and is consistent with safety and soundness.
The board of directors should approve and document any material exceptions or adjustments to the incentive compensation arrangements established for senior executives and should carefully consider and monitor the effects of any approved exceptions or adjustments on the balance of the arrangement, the risk-taking incentives of the senior executive, and the safety and soundness of the organization.
The board of directors should receive and review, on an annual or more frequent basis, an assessment by management, with appropriate input from risk management personnel, of the effectiveness of the design and operation of the organization's incentive compensation system in providing risk taking incentives that are consistent with the organization's safety and soundness. These reports should include an evaluation of whether or how incentive compensation practices may be encouraging excessive risk taking. These reviews and reports should be appropriately scoped to reflect the size and complexity of the banking organization's activities and the prevalence and scope of its incentive compensation arrangements. In addition, at banking organizations that are significant users of incentive compensation arrangements, the board should receive periodic reports that review incentive compensation awards and payments relative to risk outcomes on a backward-looking basis to determine whether the organization's incentive compensation arrangements may be promoting excessive risk-taking.
In August 2010, the Federal Financial Institutions Examination Council, on behalf of its member agencies,
The guidance describes reporting, recordkeeping, and disclosures for both proprietary and HECM reverse mortgages. A number of these disclosures are “usual and customary” business practices for proprietary and HECM reverse mortgages, and these would not meet the PRA's definition of “paperwork.” Other included disclosure requirements are currently mandated by RESPA or TILA for all reverse mortgage loans and information collections required by HUD's rules for HECM loans.
Proprietary reverse mortgage products, however, are not subject to HUD's rules for HECM loans. To the extent that the interagency guidance applies HECM requirements to proprietary loans, this would meet the PRA's definition of paperwork burden.
There are also additional provisions in the guidance that apply to both proprietary and HECM reverse mortgages that do not meet the “usual and customary” standard, are not covered by already approved information collections and, therefore, likewise meet the PRA's definition of paperwork burden.
Financial institutions offering proprietary reverse mortgages are encouraged under the guidance to follow or adopt relevant HECM requirements for mandatory counseling, disclosures, affordable origination fees, restrictions on cross-selling of ancillary products, and reliable appraisals.
Financial institutions offering either proprietary or HECM reverse mortgages are encouraged to develop clear and balanced product descriptions and make them available to consumers shopping for a mortgage. They should set forth a description of how disbursements can be received and include timely information to supplement disclosures mandated by TILA and other disclosures. Promotional materials and product descriptions should include information about the costs, terms, features, and risks of reverse mortgage products.
Financial institutions should adopt policies and procedures that prohibit directing a consumer to a particular counseling agency or contacting a counselor on the consumer's behalf. They should adopt clear written policies and establish internal controls specifying that neither the lender nor any broker will require the borrower to purchase any other product from the lender in order to obtain the mortgage. Policies should be clear so that originators do not have an inappropriate incentive to sell other products that appear linked to the granting of a mortgage. Legal and compliance reviews should include oversight of compensation programs so that lending personnel are not improperly encouraged to direct consumers to particular products.
Financial institutions making, purchasing, or servicing reverse mortgages through a third party should conduct due diligence and establish criteria for third-party relationships and compensation. They should set requirements for agreements and establish systems to monitor compliance with the agreement and applicable laws and regulations. They should also take corrective action if a third party fails to comply. Third-party relationships should be structured in a way that does not conflict with RESPA.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
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The goal of this revision of the CMS 855S is to simplify and clarify the current data collection and to remove obsolete and/or redundant questions. Grammar and spelling errors were corrected. Limited informational text has been added within the application form and instructions in conjunction with links to Web sites when greater detail is needed by the supplier. To clarify current data collection differentiations and to be in sync with accreditation coding, Section 3D (“Products and Services Furnished by This Supplier”) has been updated. This revision does not offer any new material data collection.
Food and Drug Administration, HHS.
Notice of public meeting; request for comments.
The Food and Drug Administration (FDA) is announcing a public meeting entitled “Drug Interactions with Hormonal Contraceptives: Public Health and Drug Development Implications” and an opportunity for public comment on the topic of drug interactions with hormonal contraceptives (HCs). The goal of this public meeting is to provide an opportunity for FDA to seek input from experts on the public health concerns associated with use of HCs and interacting drugs that might affect efficacy and safety, pharmacokinetic (PK)/pharmacodynamic (PD) considerations in designing drug interaction studies with HCs during drug development, and approaches to translating the results of drug interaction information into informative labeling and communication. The input received may be used to refine FDA's thinking on HC drug interaction study design and interpretation, and labeling communication on drug interaction risk.
The public meeting will be held on November 9, 2015, from 8:30 a.m. to 4:30 p.m. Individuals who wish to attend the meeting in person or via Web cast must register by October 9, 2015. Please submit either electronic or written comments by December 15, 2015, to receive consideration. See the
The meeting will be held at the FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, Section A of the Great Room (Rm. 1503), Silver Spring, MD 20993. Entrance for the public
Submit electronic comments to
FDA will post the agenda approximately 5 days before the meeting at:
Christine Le, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 3196, Silver Spring, MD 20993, 301-796-2398, email:
In general, HCs are highly effective in preventing pregnancy when used correctly. However, concomitant use of other drugs may affect the safety and/or efficacy of HCs due to drug interactions affecting either blood levels (PK) and/or physiologic effects (PD) of HC components (
Historically, most drug interaction studies conducted during drug development with HCs have not had a clearly stated rationale for the choice of HCs being studied. Questions remain as to whether the study results of specific contraceptive steroids can be extrapolated to other progestins or estrogens or other dose strengths. The choice of HC is important because different progestins may have different metabolic and/or transporter pathways and safety profiles. Without a mechanistic understanding of the underlying drug-drug interaction (DDI) mechanism, it is difficult to interpret and extrapolate study results from one HC to another.
The public meeting on November 9, 2015, will include a discussion of the following topics on which FDA is also seeking public comment:
• Public health concerns associated with use of HCs and interacting drugs that might affect efficacy and safety.
• PK and PD considerations in designing drug interaction studies with HCs during drug development. Key elements in designing a study include a mechanistic understanding of potential DDI mechanisms, the choice of contraceptive products and their dose, study population/duration, and proper selection of a PK alone or PK-PD-based drug interaction study approach.
• Drug interaction study result interpretation and its potential impact on guidance of HC use in women of childbearing potential who are enrolled in clinical trials for other therapeutic agents during drug development.
• The current approach of translating the results from drug interaction studies into labeling recommendations and opportunities to improve the communication to healthcare providers.
• Research opportunities and tools for investigating the safe use of HCs in the presence of other drugs.
The input received may be used to refine FDA's thinking on the drug interaction study design with HCs and labeling communication of drug interaction risks with HCs.
If you wish to attend these meetings, register online at
Seating will be limited, so early registration is recommended. Registration is free and will be on a first-come, first-served basis. However, FDA may limit the number of participants from each organization based on space limitations. Registrants will receive confirmation once they have been accepted. Onsite registration on the day of the meetings will be based on space availability. If you need special accommodations because of disability, please contact Christine Le (see
FDA will hold an open public comment period during the November 9, 2015, public meeting to give the public an opportunity to comment. Registration for open public comment will occur at the registration desk on the day of the meeting on a first-come, first-served basis.
Regardless of whether you attend this meeting, you can submit electronic or written comments, including responses to the public docket (see
Transcripts for the November 9, 2015, meeting will be posted, when available, at
Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
As stipulated by the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) is hereby giving notice that a meeting of the Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria (the Advisory Council) is scheduled for September 29, 2015, from 9:00 a.m. to 5:00 p.m. ET. The meeting will be open to the public; a public comment session will be held during the meeting. Pre-registration is required for members of the public who wish to attend the meeting and who wish to participate in the public comment session. Individuals who wish to attend the meeting and/or send in their public comment via email should email
The meeting is scheduled to be held on September 29, 2015, from 9:00 a.m. to 5:00 p.m. ET. Pre-registration for attending the meeting in person is required to be completed no later than September 21, 2015; public attendance at the meeting is limited to the available space.
U.S. Department of Health and Human Services, Hubert H. Humphrey Building, Great Hall, 200 Independence Avenue SW., Washington, DC 20201.
The meeting also can be accessed through a live webcast the day of the meeting. For more information, visit
Bruce Gellin, Designated Federal Official, Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria, Office of the Assistant Secretary for Health, U.S. Department of Health and Human Services, Room 715H, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201. Phone: (202) 260-6638; email:
Under Executive Order 13676, dated September 18, 2014, authority was given to the Secretary of Health and Human Services to establish the Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria (Advisory Council), in consultation with the Secretaries of Defense and Agriculture. Activities of the Advisory Council are governed by the provisions of Public Law 92-463, as amended (5 U.S.C. App.), which sets forth standards for the formation and use of federal advisory committees.
The Advisory Council will provide advice, information, and recommendations to the Secretary of HHS regarding programs and policies intended to support and evaluate the implementation of Executive Order 13676, including the National Strategy for Combating Antibiotic-Resistant Bacteria and the National Action Plan for Combating Antibiotic-Resistant Bacteria. The Advisory Council shall function solely for advisory purposes.
In carrying out its mission, the Advisory Council will provide advice, information, and recommendations to the Secretary regarding programs and policies intended to preserve the effectiveness of antibiotics by optimizing their use; advance research to develop improved methods for combating antibiotic resistance and conducting antibiotic stewardship; strengthen surveillance of antibiotic-resistant bacterial infections; prevent the transmission of antibiotic-resistant bacterial infections; advance the development of rapid point-of-care and agricultural diagnostics; further research on new treatments for bacterial infections; develop alternatives to antibiotics for agricultural purposes; maximize the dissemination of up-to-date information on the appropriate and proper use of antibiotics to the general public and human and animal healthcare providers; and improve international coordination of efforts to combat antibiotic resistance.
The September public meeting will be the inaugural meeting for the Advisory Council. The Advisory Council members will be sworn in and presented with an overview of different topics surrounding antibiotic resistance, including an overview of the National Strategy for Combating Antibiotic-Resistant Bacteria and Action Plan for Combating Antibiotic-Resistant Bacteria. The meeting agenda will be posted on the Advisory Council Web site at
Public attendance at the meeting is limited to the available space. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the National Vaccine Program Office at the address/telephone number listed above at least one week prior to the meeting. For those unable to attend in person, a live webcast will be available. More information on registration and accessing the webcast can be found at
Members of the public will have the opportunity to provide comments prior to the Advisory Council meeting by emailing
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.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (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.
The Services Accountability Improvement System (SAIS) is a real-time, performance management system that captures information on the substance abuse treatment and mental health services delivered in the United States. A wide range of client and program information is captured through SAIS for approximately 650 grantees. Continued approval of this information collection will allow SAMHSA to continue to meet Government Performance and Results Act of 1993 (GPRA) reporting requirements that quantify the effects and accomplishments of its discretionary grant programs which are consistent with OMB guidance.
Based on current funding and planned fiscal year 2015 notice of funding announcements (NOFA), the CSAT programs that will use these measures in fiscal years 2015 through 2017 include: Access to Recovery 3 (ATR3); Adult Treatment Court Collaboratives (ATCC); Enhancing Adult Drug Court Services, Coordination and Treatment (EADCS); Offender Reentry Program (ORP); Treatment Drug Court (TDC); Office of Juvenile Justice and Delinquency Prevention—Juvenile Drug Courts (OJJDP-JDC); Teen Court Program (TCP); HIV/AIDS Outreach Program; Targeted Capacity Expansion Program for Substance Abuse Treatment and HIV/AIDS Services (TCE-HIV); Addictions Treatment for the Homeless (AT-HM); Cooperative Agreements to Benefit Homeless Individuals (CABHI); Cooperative Agreements to Benefit Homeless Individuals—States (CABHI-States); Recovery-Oriented Systems of Care (ROSC); Targeted Capacity Expansion—Peer to Peer (TCE-PTP); Pregnant and Postpartum Women (PPW); Screening, Brief Intervention and Referral to Treatment (SBIRT); Targeted Capacity Expansion (TCE); Targeted Capacity Expansion—Health Information Technology (TCE-HIT); Targeted Capacity Expansion Technology Assisted Care (TCE-TAC); Addiction Technology Transfer Centers (ATTC); International Addiction Technology Transfer Centers (I-ATTC); State Adolescent Treatment Enhancement and Dissemination (SAT-ED); Grants to Expand Substance Abuse Treatment Capacity in Adult Tribal Healing to Wellness Courts and Juvenile Drug Courts; and Grants for the Benefit of Homeless Individuals—Services in Supportive Housing (GBHI). Grantees in the Adult Treatment Court Collaborative program (ATCC) will also provide program-level data using the CSAT Aggregate Instrument.
SAMHSA and its Centers will use the data for annual reporting required by GPRA and for National Outcome Measures (NOMs) comparing baseline with discharge and follow-up data. GPRA requires that SAMHSA's report for each fiscal year include actual results of performance monitoring for the three preceding fiscal years. The additional information collected through this process will allow SAMHSA to report on the results of these performance outcomes as well as be consistent with the specific performance domains that SAMHSA is implementing as the NOMs, to assess the accountability and performance of its discretionary and formula grant programs.
Note that there are no changes to the instrument from the previous OMB submission.
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 2-1057, One Choke Cherry Road, Rockville, MD 20857
Federal Emergency Management Agency, DHS.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Federal Emergency Management Agency (FEMA) Technical Mapping Advisory Council (TMAC) will meet via conference call on September 29, 2015. The meeting will be open to the public.
The TMAC will meet via conference call on Tuesday, September 29, 2015 from 10:00 a.m.-5:00 p.m., Eastern Daylight Savings Time (EDT). Please note that the meeting will close early if the TMAC has completed its business.
For access to the conference call bridge, information on services for individuals with disabilities, or to request special assistance at the meeting, contact the person listed in
To facilitate public participation, members of the public are invited to provide written comments on the issues to be considered by the TMAC, as listed in the
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A public comment period will be held on September 29, 2015, from 4:00-4:30 p.m. Speakers are requested to limit their comments to no more than three minutes. The public comment period will not exceed 30 minutes. Please note that the public comment period may end before the time indicated, following the last call for comments. Contact the individual listed below to register as a speaker by close of business on Friday, September 18, 2015.
Mark Crowell, Designated Federal Officer for the TMAC, FEMA, 1800 South Bell Street Arlington, VA 22202, telephone (202) 646-3432, and email
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. Appendix.
As required by the
The TMAC must also develop recommendations on how to ensure that flood insurance rate maps incorporate the best available climate science to assess flood risks and ensure that FEMA uses the best available methodology to consider the impact of the rise in sea level and future development on flood risk. The TMAC must collect these recommendations and present them to the FEMA Administrator in a future conditions risk assessment and modeling report. Further, in accordance with the
Agenda: On September 29, 2015, the TMAC members will present and deliberate on draft narrative and proposed recommendations concerning (1) the flood hazard mapping process and product, and (2) future conditions methods and considerations that will be incorporated into both the 2015 Annual Report and Future Conditions Report. A brief public comment period will take place prior to the end of the meeting, and before any voting on recommendations that takes place before the full TMAC. In addition, the TMAC members will identify and coordinate next steps of TMAC report
Fish and Wildlife Service, Interior.
Notice of availability; final comprehensive conservation plan and environmental impact statement.
We, the U.S. Fish and Wildlife Service, announce the availability for review of our final comprehensive conservation plan (CCP) and environmental impact statement (EIS) for Chincoteague National Wildlife Refuge (NWR, refuge) and Wallops Island NWR. The CCP/EIS describes how we propose to manage both the staffed 14,032-acre Chincoteague NWR and the unstaffed 373-acre Wallops Island NWR over the next 15 years.
We will sign a record of decision no sooner than 30 days after the publication of this notice.
You may view, obtain, or request CD-ROM copies of the final CCP/EIS by any of the following methods.
To view comments on the final CCP-EIS from the Environmental Protection Agency (EPA), or for information on EPA's role in the EIS process, see EPA's Role in the EIS Process under
Thomas Bonetti, Natural Resource Planner, 413-253-8307 (phone);
With this notice, we continue the CCP process for Chincoteague NWR and Wallops Island NWR, which we began by publishing a notice of intent in the
The EPA is charged under section 309 of the Clean Air Act to review all Federal agencies' EISs and to comment on the adequacy and the acceptability of the environmental impacts of proposed actions in the EISs.
EPA also serves as the repository (EIS database) for EISs prepared by Federal agencies and provides notice of their availability in the
The notice of availability is the start of the 45-day public comment period for draft EISs, and the start of the 30-day “wait period” for final EISs, during which agencies are generally required to wait 30 days before making a decision on a proposed action. For more information, see
The CCP will guide us in managing and administering the refuges for 15 years. Alternative B, as we described in the final CCP/EIS, is our preferred alternative.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Refuge Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each NWR. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and goals and contributing to the mission of the National Wildlife Refuge System. CCPs should be consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies, as well as respond to key issues and public concerns. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years, in accordance with the Refuge Administration Act.
We evaluated three alternatives for managing Chincoteague NWR and Wallops Island NWR; alternative B is our preferred alternative. Based on feedback on the draft CCP/EIS, some modifications have been made to alternative B and are summarized below. A full description of all alternatives, including changes to our preferred alternative, can be found in the final CCP/EIS at the sources identified in
• The assigned area, consisting of the 1-mile recreational beach, associated parking, and new Visitor Contact Station, would extend south 1 more mile to the terminus of Swan Cove Trail (2 miles total), thus doubling the length of the assigned area.
• Over sand vehicles (OSV) and hiking access would continue via Beach Road across Toms Cove south to Fishing Point September 16 through March 14.
• A new
• We will keep current biking access open via Swan Cove Trail and will not propose an alternative bike route north to the relocated public beach (from Wildlife Loop to Mallard (C Dike)).
• The Service Road would continue to be open year-round to hikers north to the refuge/National Seashore boundary.
• A section of the Affected Environment (Chapter 3) on cultural resources was inadvertently left out of the draft CCP/EIS. This section, which has been coordinated with the Virginia Department of Historic Resources, is included in the final CCP/EIS.
Alternative B would continue established habitat and wildlife management strategies but focus them in light of the new goals and vision established by the CCP. The alternative balances habitat management, public use and access, and administration of the refuge. We would continue to preserve approximately 2,650 acres of wetland impoundments, but make adjustments in accordance with a new impoundment management plan that takes into account various factors, such as the habitat needs of black ducks and monarch butterflies, climate change and natural coastal processes, and relocated beach access and parking. The refuge would continue to protect and enhance the wilderness character of the 1974 proposed wilderness area, and there would be no change in its size (1,300 acres) or location.
In recognition of the vulnerability of the current parking, the refuge would develop and implement a site design plan for parking and access to a new beach location, approximately 1.5 miles north of the existing beach. We are committed to working with the National Park Service (NPS) and others to future design, refine, and analyze beach relocation infrastructure in a separate National Environmental Policy Act document.
Over the next 15 years, the refuge would maintain and, where possible, expand current hunting opportunities by including additional species, extending hours, and providing special events. The refuge would add mourning doves, light geese, and non-migratory Canada goose hunting opportunities to the refuge's migratory bird hunting program. Additionally, the refuge would allow migratory bird hunting on Federal holidays within the Commonwealth of Virginia hunting seasons. The refuge would also add turkeys to the big game hunting program and pursue development of a trapping program for furbearers. The refuge would continue sika hunting and would conduct research to identify a desired population size.
The refuge would pursue partnerships to enhance land conservation, environmental education, and interpretation on the Delmarva Peninsula. The “Chincoteague ponies” have a strong cultural tie to the community, and the refuge would implement a Chincoteague pony management plan that meets multiple objectives: visitor viewing, habitat management, and pony health. The refuge would allow grazing of the current pony population, with a maximum pony herd size of 150, per the management agreement with the Chincoteague Volunteer Fire Company.
You can view or obtain the final CCP/EIS as indicated under
During the public comment period, a total of 236 emails and 94 letters were received, including official comments from the town of Chincoteague, the Chincoteague Chamber of Commerce, The Nature Conservancy, NPS, Environmental Protection Agency, various departments from the Commonwealth of Virginia, and other local interest groups. In addition a petition was submitted supporting Alternative “A plus,” an alternative with elements of both alternative A and B, with approximately 600 individuals signing. Another petition supporting the preferred alternative (alternative B) was submitted with 112 individuals signing. We held two public open house meetings in Chincoteague, and additional meetings in Melfa, Virginia, and Pocomoke City, Maryland. As part of the public involvement process, we held a public hearing on June 26, 2014, in Chincoteague with 28 people formally raising a variety of issues and concerns.
We evaluated all the letters and emails sent to us during that comment period, along with comments recorded at our public hearing, and addressed all substantive comments. A summary of those comments and our responses to them is included in the final CCP/EIS as appendix R.
We will document the final decision in a record of decision, which will be published in the
Bureau of Land Management, Interior.
Notice.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) Mount Lewis Field Office, Battle Mountain, Nevada, intends to prepare an Environmental Impact Statement (EIS) and by this notice is announcing the beginning of the scoping process to solicit public comments and identify issues.
This notice initiates the public scoping process for the EIS. Comments on issues may be submitted in writing until October 13, 2015. The date(s) and location(s) of any scoping meetings will be announced at least 15 days in advance through local media, newspapers and the BLM Web site at:
You may submit comments related to the Gold Bar Mine Project by any of the following methods:
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Documents pertinent to this proposal may be examined at the Mount Lewis Field Office.
Joseph Moskiewicz—Project Manager, telephone 775-635-4000; address 50 Bastian Road, Battle Mountain, Nevada 89820; email
McEwen Mining Inc. (McEwen) proposes to develop a gold mine in the southwest portion of the Roberts Mountains, approximately 30 miles northwest of Eureka, Nevada. The proposed McEwen Gold Bar Mine Project (Project) consists of a mining Plan of Operations and four ROW grant authorizations to be analyzed in a single NEPA analysis document. Mining would occur from the existing Gold Pick and Gold Ridge pits and the proposed Cabin Creek North and South pits. Additional disturbance would be result from activities associated with gold mining operations, including waste rock disposal areas, crusher and ore stockpile pad, growth media stockpiles, process ponds, haul roads, access roads and power lines, heap leach facility, ancillary facilities, and diversion channels and sediment basins. Total proposed Project disturbance would be approximately 1,300 acres, including disturbance associated with the ROWs (consisting of approximately 1,137 acres of surface disturbance on public land and 163 acres of surface disturbance on private land controlled by McEwen, as well as other private land owners); 366 acres of the total disturbance would occur on areas disturbed by previous mining operations. The proposed Project would take up to 17 years to complete, including: A year of pre-stripping and construction, 8 years of mining, 4 years of reclamation following mine closure, and 4 years of post-reclamation monitoring. The proposed pit depths would not intercept groundwater. No pit dewatering would be necessary and no pit lakes are expected to form after mining operations end. The Project is expected to employ 151 individuals comprised of 90 contractors and 61 staff.
Mt. Wheeler Power requested a ROW grant authorization to supply needed power to the Project. McEwen has requested three ROW grant authorizations for the following: 1) Primary access along the Atlas Haul Road; 2) Employee transport and emergency secondary access along North Roberts Creek Road and GB Process Road; and 3) A water supply pipeline.
The Gold Bar Project boundary contains 916.5 acres of Greater Sage-Grouse Preliminary Priority Habitat (PPH) on BLM-managed public lands. The total mine disturbance, including the right-of-way (ROW), affecting Greater Sage-Grouse habitat on public land is 294 acres of PPH and 36 acres of Preliminary General Habitat (PGH). Since 2013, BLM biologists at the Mount Lewis Field Office have coordinated with the Nevada Department of Wildlife and the BLM State Office regarding Gold Bar's ROW and disturbance to Greater Sage-Grouse habitat. Collectively, the organizations formulated best management practices for Greater Sage-Grouse and other wildlife species and developed measures to offset the potential disturbance associated with the project to benefit Greater Sage-Grouse habitat. For example, as a result of this collaboration, the proposed project's power line was re-routed to use pre-existing routes in order to minimize effects to Greater Sage-Grouse habitat. These and other measures, including compliance with the Nevada and Northeastern California Greater Sage-Grouse Land Use Plan Amendment, if finalized, will be among the issues analyzed in the EIS.
The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the process for developing the EIS. At present, the BLM has identified the following preliminary issues: Water resources; air quality; vegetation resources (including noxious weeds); wildlife (including migratory birds and Greater Sage-Grouse); special status species; grazing management; land use and access; aesthetics (noise and visual); cultural resources; geological resources; minerals; soils; recreation; social and economic values; hazardous materials; Native American cultural concerns; and wild horses.
The BLM will utilize and coordinate the NEPA scoping process to help fulfill the public involvement requirements under the National Historic Preservation Act (NHPA) (54 U.S.C. 306108) as provided in 36 CFR 800.2(d)(3). The information about historic and cultural resources within the area potentially affected by the proposed Project will assist the BLM in identifying and evaluating impacts to such resources in the context of both NEPA and NHPA.
The BLM will consult with Indian tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the proposed Project that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the environmental analysis as a cooperating agency.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1501.7
The Bureau of Land Management.
Public Land Order.
This order revokes in its entirety the withdrawal created by Executive Order No. 5732 dated October 14, 1931, which withdrew 40 acres of public land from settlement, location, sale, or entry for use as a lookout station
Effective date: September 11, 2015.
Christine Sloand, Realty Specialist, at 831-630-5022 or via email at
The Executive Order withdrew 40 acres of land on Smith Mountain for a lookout station used by the State of California Division of Forestry. Because the land is no longer used for lookout station purposes, the Bureau of Land Management has determined that the withdrawal is no longer needed.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714, it is ordered as follows:
The withdrawal created by Executive Order No. 5732 of October 14, 1931, which temporarily withdrew the following described land from settlement, location, sale, or entry for use as a lookout station, is hereby revoked in its entirety:
The area described contains 40.00 acres, more or less, in Monterey and Fresno Counties.
At 10 a.m., on October 13, 2015, the above-described land will be open to operation of the public land laws, generally, including the mining laws, and to settlement, location, sale, or entry, subject to valid existing rights, the provisions of existing withdrawals, and the requirements of applicable law. All valid applications received at or prior to 10 a.m. on October 13, 2015, shall be considered as simultaneously filed at that time. Those received thereafter shall be considered in the order of filing.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On July 21, 2015, Atlas Tube, a division of JMC Steel Group (Chicago, Illinois), Bull Moose Tube Company (Chesterfield, Missouri), EXLTUBE (North Kansas City, Missouri), Hannibal Industries, Inc. (Los Angeles, California), Independence Tube Corporation (Chicago, Illinois), Maruichi American Corporation (Santa Fe Springs, California), Searing Industries (Rancho Cucamonga, California), Southland Tube (Birmingham, Alabama), and Vest, Inc. (Los Angeles, California) filed petitions with the Commission and Commerce, alleging that an industry in the United States is materially injured and threatened with material injury by reason of LTFV and subsidized imports of heavy walled rectangular welded carbon steel pipes and tubes from Korea, Mexico, and Turkey. Accordingly, effective July 21, 2015, the Commission, pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)), instituted countervailing duty investigation No. 701-TA-539 and antidumping duty investigation Nos. 731-TA-1280-1282 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)). It completed and filed its determinations in these investigations on September 4, 2015. The views of the Commission are contained in USITC Publication 4563 (September 2015), entitled
By order of the Commission.
United States International Trade Commission.
September 15, 2015 at 11:00 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agendas for future meetings: None
2. Minutes
3. Ratification List
4. Vote in Inv. Nos. 701-TA-523 and 731-TA-1259 (Final) (Boltless Steel Shelving Units Prepackaged for Sale from China). The Commission is currently scheduled to complete and file its determinations and views of the Commission on September 28, 2015.
5. Outstanding action jackets: None
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting. Earlier notification of this meeting was not possible.
By order of the Commission.
United States International Trade Commission.
September 18, 2015 at 11:00 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 701-TA-464 and 731-TA-1160 (Review) (Prestressed Concrete Steel Wire Strand from China). The Commission is currently scheduled to complete and file its determinations and views of the Commission on September 28, 2015.
5. Vote in Inv. No. 731-TA-1047 (Second Review) (Ironing Tables and Certain Parts Thereof from China). The Commission is currently scheduled to complete and file its determination and views of the Commission on September 28, 2015.
6. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
On September 4, 2015, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Western District of Pennsylvania in the lawsuit entitled
The proposed settlement resolves the United States' claims against Dunbar Asphalt Products, Inc. (“Dunbar”) for past and future response costs and injunctive relief pursuant to CERCLA Sections 106(a), 107(a)(1), and 113(g), at Operable Unit Two (“OU-2”) of the Sharon Steel Corporation (Farrell Works Disposal Area) Superfund Site in the City of Hermitage, Mercer County, Pennsylvania (“the Site”). The proposed Consent Decree requires that Dunbar perform the interim OU-2 remedial action at the 30 acre OU-2, which includes Dunbar's owned 25-acre property and approximately five acres owned by another party. The estimated cost of the selected interim remedy for OU-2 is approximately $1.7 million. In exchange for Dunbar's agreement to perform the interim remedy on the portion of OU-2 it does not own, the United States will compromise its claim for past response costs related to OU-2. Dunbar will also pay 90% of the government's future response costs for OU-2.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $39.75 (25 cents per page reproduction cost), or $11.50 for the Consent Decree without the Appendices, payable to the United States Treasury.
U.S. Marshals Service, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), U.S. Marshals Service (USMS), 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. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until October 13, 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 Nicole Feuerstein, Publications Specialist, U.S. Marshals Service, CS-3, 10th Floor, Washington, DC 20530-0001 (phone: 202-307-5168). Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20530 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation Programs is soliciting comments concerning its proposal to extend OMB approval of the information collection: Representative Fee Request (CA-143/CA-155). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before November 10, 2015.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S-3323, Washington, DC 20210, telephone/fax (202) 354-9647, Email
I.
II.
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* enhance the quality, utility and clarity of the information to be collected; and
* minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
III.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
2:00 p.m., Wednesday, September 16, 2015.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Closed
1. Consideration of Supervisory Action. Closed pursuant to Exemptions (8), (9)(i)(B) and (9)(ii).
2. Consideration of Supervisory Action. Closed pursuant to Exemptions (8), (9)(i)(B) and (9)(ii).
3. Consideration of Supervisory Action. Closed pursuant to Exemptions (8), and (9)(i)(B).
4. Consideration of Supervisory Action. Closed pursuant to Exemptions (8), (9)(i)(B) and (9)(ii).
3:30 p.m.
10:00 a.m., Thursday, September 17, 2015.
Board Room, 7th Floor, Room 7047, 1775 Duke Street (All visitors must use Diagonal Road Entrance), Alexandria, VA 22314-3428.
Open.
1. Corporate Stabilization Fund Quarterly Report.
2. Request to Expand Community Charter, Charlotte Metro Federal Credit Union.
3. NCUA Rules and Regulations, Aggregate Lending Limit for Corporate Credit Unions.
4. NCUA's Rules and Regulations, Implementing Statutory Inflation of Civil Money Penalties.
5. NCUA's Rules and Regulations, Regulatory Flexibility Act Asset Threshold.
Gerard Poliquin, Secretary of the Board, Telephone: 703-518-6304.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
Advisory Committee for Education and Human Resources (#1119).
September 29, 2015; 3:00-4:00 p.m. Eastern.
NSF, 4201 Wilson Blvd., Arlington, VA 22230.
This will be a virtual meeting. All participants may join the conference call and webinar by clicking this link:
Please follow the teleconference instructions to connect to the audio using a telephone. If you have trouble with the video portion of the meeting please contact dial 703-292-4357. Press 1 for videoconference support.
Those who wish to listen only please dial: 800-857-3133, Password: EHR AC.
If you have trouble with the audio portion of the meeting please contact customer service: 800-857-8777 (Audio only).
Meeting materials and minutes will also be available on the EHR Advisory Committee Web site at:
OPEN.
Michael Sullivan, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230; (703) 292-8600;
To review, deliberate, and provide recommendations and the report of the Subcommittee on Advancing Historically Black Colleges and Universities of the Advisory Committee of the National Science Foundation Directorate for Education and Human Resources to the NSF (EHR AC).
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Illinois dated 09/03/2015.
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 14448 B and for economic injury is 14449 0.
The States which received an EIDL Declaration # are Illinois, Indiana.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of CALIFORNIA dated 09/03/2015.
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 14450 5 and for economic injury is 14451 0.
The State which received an EIDL Declaration # is California.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Missouri (FEMA-4238-DR), dated 08/07/2015.
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,
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Missouri, dated 08/07/2015, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
National Highway Traffic Safety Administration (NHTSA), DOT.
Notice of public information meeting; notice of comment deadline.
NHTSA will hold a public information meeting in the Coordinated Remedy Program Proceeding, including presentation of facts established through this proceeding and possible actions that could aid in prioritizing, organizing, and phasing the multiple recalls to remedy defective Takata air bag inflators pursuant to 49 U.S.C. 30120(c)(3) and other authority. This notice also sets the comment deadline for Docket No. NHTSA-2015-0055.
The public information meeting will be held beginning at 10:00 a.m. ET on October 22, 2015, at the U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590. If you wish to attend the public information meeting, you must register in advance no later than October 18, 2015 (and October 15, 2015 for non-U.S. citizens), by following the instructions in the PROCEDURAL MATTERS section of this notice. Space is limited. NHTSA will consider late registrants to the extent space allows, but cannot ensure that all registrants will be able to attend the public information meeting.
To ensure that NHTSA has an opportunity to consider all comments regarding a possible Coordinated Remedy Program, NHTSA must receive those written comments not later than October 28, 2015, submitted following the instructions provided in the
You may submit comments to the docket number identified in the heading of this document by any of the following methods:
•
•
•
•
Regardless of how you submit your comments, you should mention the docket number of this document.
You may call the Docket at 202-366-9324.
Note that all comments received will be posted without change to
For registration to attend the public information meeting: Carla Bridges, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 (Telephone: 202-366-5263) (Fax: 202-366-3820). For meeting procedures: Arija Flowers, Office of the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 (Telephone: 202-366-5263). Information regarding NHTSA's investigation into Takata Air Bag Inflator ruptures is available on NHTSA's Web site at:
As set forth in the
Based on information obtained through the Coordinated Remedy Program Proceeding, NHTSA may issue one or more administrative orders that would coordinate remedy programs associated with defective Takata air bag inflators. 49 U.S.C. 30120(c)(3); 49 CFR 573.14. Coordination of the remedy programs may include “acceleration,” prioritization, organization, and/or phasing of some or all such air bag inflator remedy programs to ensure that defective vehicles and equipment are recalled and remedied. 49 U.S.C. 30118-30120; 49 CFR 573, 577. It may further include, among other things, coordination as to air bag inflator sourcing, production, allocation, delivery, installation, and adequacy of the remedy. 49 U.S.C. 30120(c)(3); 49 CFR 573.14.
NHTSA has decided to hold a public information meeting on facts established through the Coordinated Remedy Program Proceeding, analyses being conducted by industry and NHTSA, separately and cooperatively, and possible actions that could aid in prioritizing, organizing, and phasing the multiple recalls to remedy defective Takata air bag inflators pursuant to 49 U.S.C. 30120(c)(3) and other authority. This may include, among other things, information on supply challenges of
NHTSA has determined that given the importance of the subject matter and of public education on this significant defect and recall, it is appropriate to hold a public information meeting to provide updated information relevant to NHTSA's decision-making process in the Coordinated Remedy Program Proceeding.
Any interested person may provide written comments regarding a possible Coordinated Remedy Program, including questions or factors the individual believes NHTSA should consider in deciding whether, and if so how, NHTSA should exercise its authority under the Safety Act. Comments must be submitted by October 28, 2015, following the directions in the
For security purposes, photo identification is required to enter the U.S. Department of Transportation building. To allow sufficient time to clear security and enter the building, NHTSA recommends that meeting participants arrive 30 to 60 minutes prior to the start of the public information meeting.
The meeting will be held at a site accessible to individuals with disabilities. Individuals who require accommodations, such as sign language interpreters, should contact Ms. Arija Flowers using the contact information in the
Persons who wish to file written comments should submit them so that they are received by NHTSA no later than October 28, 2015, following the submission instructions provided in the
49 U.S.C. 30101,
Camp Chase Railway Company, LLC (CCRY),
This transaction is related to a concurrently filed verified notice of exemption in
The transaction may not be consummated until September 27, 2015 (30 days after the notice of exemption was filed).
CCRY certifies that its projected annual revenues as a result of this transaction will not result in its becoming a Class II or Class I rail carrier and will not exceed $5 million.
CCRY states that the transaction does not involve any provision or agreement that limits future interchange with a third-party connecting carrier.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35954, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on John D. Heffner, Strasburger & Price, LLP, 1025 Connecticut Ave. NW., Suite 717, Washington, DC 20036.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Indiana Boxcar Corporation (IBCX), a noncarrier, has filed a verified notice of exemption pursuant to 49 CFR 1180.2(d)(2) to continue in control of Camp Chase Railway Company, LLC (CCRY), upon CCRY's becoming a Class III rail carrier.
This transaction is related to a concurrently filed verified notice of exemption in
The transaction may be consummated on or after September 27, 2015, the effective date of the exemption (30 days after the notice of exemption was filed).
IBCX currently owns three Class III rail carriers operating in four states: Vermilion Valley Railroad Company, Inc., operating in Illinois; Chesapeake & Indiana Railroad Company, Inc., operating in Indiana; and Youngstown & Southeastern Railway Company, Inc., operating in Ohio and Pennsylvania.
IBCX certifies that: (1) The Camp Chase Industrial Track does not connect with any carrier which IBCX owns; (2) the transaction is not part of a series of anticipated transactions that would connect these railroads with each other; and (3) the transaction does not involve a Class I rail carrier. Therefore, the transaction is exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under § 11324 and § 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here because all of the carriers involved are Class III carriers.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35955, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on John D. Heffner, Strasburger & Price, LLP, 1025 Connecticut Ave. NW., Suite 717, Washington, DC 20036.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402-3970; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, and suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to: Ms. Theresa M. Ritta, Chief Real Property Branch, the Department of Health and Human Services, Room 5B-17, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857, (301)-443-2265 (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available. Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 for detailed instructions or write a letter to Ann Marie Oliva at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
Property Number: 21201530067
Office of Federal Contract Compliance Programs (OFCCP), Labor.
Final rule.
The Office of Federal Contract Compliance Programs (OFCCP) publishes this final rule to implement Executive Order 13665 (also referred to as “the Order,”
The implementing regulations for Executive Order 11246 set forth the basic equal employment opportunity requirements that apply to Federal contractors and subcontractors.
Debra A. Carr, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW., Room C-3325, Washington, DC 20210. Telephone: (202) 693-0104 (voice) or (202) 693-1337 (TTY). Copies of this rule in alternative formats may be obtained by calling (202) 693-0104 (voice) or (202) 693-1337 (TTY). The rule also is available on the Regulations.gov Web site at
The Office of Federal Contract Compliance Programs (OFCCP) is a civil rights and worker protection agency. OFCCP enforces an Executive Order and two laws that prohibit employment discrimination and require affirmative action by companies doing business with the Federal Government.
These compliance evaluations and complaint investigations determine contractor compliance with VEVRAA, which prohibits employment discrimination against certain protected veterans. OFCCP also determines compliance with Section 503, which prohibits employment discrimination against qualified individuals with disabilities. Finally, OFCCP assesses compliance with Executive Order 11246, as amended, which prohibits employment discrimination because of race, color, religion, sex, sexual orientation, gender identity, or national origin. Compensation discrimination is one form of discrimination prohibited by Executive Order 11246.
On April 8, 2014, President Obama issued Executive Order 13665, entitled “Non-Retaliation for Disclosure of Compensation Information,” amending section 202 of Executive Order 11246 to prohibit Federal contractors from discharging or discriminating in any way against employees or applicants who inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant.
Despite the existence of laws protecting workers from gender-based compensation discrimination for more than five decades, a pay gap between men and women persists today. Among the possible contributing factors to the enduring pay gap is the prevalence of workplace prohibitions on discussing compensation.
A comparison of average annual wage data from 2013 reveals that women make 78 cents for every dollar that men make.
The impact of the wage gap remains a significant problem, especially for the working poor. While the gap may not be larger for poor women when compared to more affluent women, the economic impact of the disparity is greater for poor women who are already in financial jeopardy. U.S. Census data show that more than 15.2 million family households in the United States are headed by women.
Generally, it is true that men and women tend to work in different industries and occupations. Women are much more likely than men to be clustered in a limited number of occupations, with slightly less than half or 44 percent of all working women employed in the 20 most common occupations for women. These occupations include secretaries and administrative assistants, registered nurses, and school teachers.
Although some of the wage gap is due to occupational segregation, that does not mean that the wage difference can be overcome by women making different career or work choices. In part, the gap is due to factors such as sex discrimination, including gender stereotyping.
In every racial group, women earn less than their male counterparts, according to U.S. Census Bureau data analyzed by the Institute for Women's Policy Research (IWPR).
Many of the studies analyzing pay disparities for Hispanic populations focus on differences in education and age as compared to white workers.
Potentially nondiscriminatory factors can explain some of the gender wage differences, but accounting for them does not account for the full pay gap.
These statistics provide an overview of the full societal impact of the pay gap, which will not be fully addressed by this rule. For example, such general information about pay differentials among men and women includes pay differentials that may not be attributed to discrimination. In addition, these statistics include all employers and all employees in the U.S., whereas this final rule applies only to Federal contractors and their employees. Therefore, the potential impact of this rule in reducing the pay gap would be much smaller than the impact of eliminating the pay gap among all working men and women.
Whether communicated through a written employment policy or through informal means, restrictions on revealing compensation can conceal compensation disparities that exist among employees. Although very little research has been conducted about pay secrecy policies and their effects, a recent survey by IWPR provides some insight into the prevalence of workplace rules against discussing compensation. The survey found that 51 percent of female respondents and 47 percent of male respondents reported that the discussion of wage and salary information is either discouraged or prohibited and/or could lead to punishment.
In a different survey of private sector employers, 49 percent of the employers surveyed admitted having a specific policy regarding pay secrecy or confidentiality issues,
Prohibitions on discussing pay prevent employees from knowing whether they are underpaid in comparison to their peers. Underpaid employees, who may be paid less because of their gender or race, will remain unaware of the disparity if compensation remains hidden. Thus, they are precluded from exercising their rights through OFCCP's complaint procedures. OFCCP enforces the prohibition against compensation discrimination by investigating class complaints of compensation discrimination and conducting compliance evaluations under Executive Order 11246.
Policies prohibiting employee conversations about compensation can also serve as a significant barrier to Federal enforcement of the laws against compensation discrimination. OFCCP primarily enforces prohibitions in Executive Order 11246 against pay and other forms of compensation discrimination by conducting compliance evaluations of Federal contractors.
The experience of Lilly Ledbetter demonstrates how pay secrecy enables illegal compensation discrimination. For Ledbetter, her employer's insistence on pay secrecy likely cost her the ability to seek justice for the compensation discrimination she suffered throughout her career. Ledbetter was employed at the Gadsden, Alabama plant of Goodyear Tire and Rubber Company. While there, she filed a charge with the EEOC alleging that she was paid a discriminatorily low salary as an area manager because of her sex in violation of Title VII of the Civil Rights Act of 1964.
Pay secrecy policies interfere with the Federal Government's interest in efficiency in procurement. Economy and efficiency in Federal procurement require that contractors compensate employees under merit-based practices, without any barriers to success. As set out in Executive Order 13665, the Federal contractors with pay secrecy practices are subject to enforcement actions and, as a result, may face a higher risk of disruption, delay and expense associated with contract performance. Allowing discussions of pay by employees of these contractors will contribute to minimizing these risks. This final rule eliminates some of the barriers created by pay secrecy policies and helps ensure that Federal contractors compensate employees based on merit.
In addition to disruptions and delays, Federal contractors with pay secrecy policies may also experience a decrease in worker productivity. Workers, due to a lack of compensation information, may experience a reduction in performance motivation and are likely to perceive their employer as unfair or untrustworthy. Both reduce work productivity.
The first of these theories is based on the idea that because of pay secrecy
This phenomenon has a unique consequence in labor markets where those involved in the transaction are people who, unlike machines, are likely to be affected by the information in terms of motivation and effort. In companies with pay secrecy policies, negative influences on productivity may stem from workers overestimating the lower limits of pay for others in similar positions leading to an inaccurate compression of the pay range, and causing a perception that increased work will not result in a corresponding reward.
The second theory is that worker distrust of corporate management may be another potential cause of the lag in productivity for workers subject to pay secrecy policies. Restrictions on sharing compensation information may create a sense that the company has something to hide with respect to compensating employees. Feelings of institutional unfairness may have a negative impact on workers' productivity.
Eliminating pay secrecy policies may have benefits beyond improving the productivity of Federal contractors and their employees. Generally, employers seek to provide opportunities for employees to advance within the corporate hierarchy because these employees will work harder to achieve goals and secure advancement. The result of this may be not only higher productivity and better quality, but also lower turnover, retention of organizational knowledge, and lower training and onboarding expenses.
Under the final rule, contractors could also realize a reduction in the cost and burden associated with investigating baseless claims of compensation discrimination. Workers with knowledge of compensation relative to other employees can make more accurate determinations about the presence or absence of discriminatory practices.
Transparency about compensation also allows companies and their employees to identify and resolve unwarranted disparities in compensation prior to the employee filing a formal complaint or pursuing litigation. This additional openness about compensation could decrease discrimination complaints and investigations, saving both the contractor and the government time and money. Moreover, the employees may receive a faster remedy through internal resolution than would be possible through a complaint process or subsequent litigation.
The preceding paragraphs present several reasons why the final rule could yield productivity benefits or cost savings for covered Federal contractors. However, OFCCP notes that, in addition to these benefits, and in order to achieve its goal of ensuring employees receive fair wages, this final rule is expected to result in increased wage payments to employees. This may be the result of employees using the information that they receive about the compensation paid to others to pursue increased wage payments. Employers may either voluntarily increase wages or be required to do so through actions taken by employees. These higher wage payments may, in some instances, result in net costs to covered contractors.
Issued in 1965, and amended several times in the intervening years, Executive Order 11246 has two purposes. First, it prohibits covered Federal contractors and subcontractors from discriminating against employees and applicants because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
The requirements in Executive Order 11246 generally apply to any business or organization that (1) holds a single Federal contract, subcontract, or federally assisted construction contract in excess of $10,000; (2) has Federal contracts or subcontracts that combined total in excess of $10,000 in any 12-month period; or (3) holds Government bills of lading, serves as a depository of Federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount.
Pursuant to Executive Order 11246, receiving a Federal contract comes with a number of responsibilities. Section
The final rule protects employees' inquiries, discussions, and disclosures of their own pay and benefits, and similar employee activities related to the pay and benefits of others, if they obtained that information through ordinary means such as conversations with co-workers. What the Order, and in turn this final rule, does not protect is the disclosure of others' pay information that an employee obtained as part of the employee's essential job functions. So, for example, if the employee making the disclosure to others had access to the information as a part of carrying out the essential job functions of the position of payroll administrator or benefits administrator, the contractor may be justified in taking adverse action based on that disclosure. This is because the employee, as payroll or benefits administrator, had access to the information as an essential part of the job and shared that information with others who do not otherwise have access to such information, which could undermine a contractor's ability to maintain necessary confidentiality concerning compensation. The nondiscrimination provision of the final rule may not protect this employee. The final rule specifically allows a contractor to take adverse action when an employee, with access to compensation information as part of an essential job function, discloses that information to others and the disclosure does not fall into one of the exemptions. The exemptions are disclosures made in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing or action, including an investigation by the contractor, or disclosures consistent with the contractor's legal duty to furnish the information.
Nothing in the final rule prohibits contractors from proactively promoting what they view as good about their pay policies and practices. As a best practice, contractors are encouraged to remove barriers to employees knowing that the contractor's pay and benefit practices are competitive with other companies within the same industry, and to promote their company's practices regarding advancement opportunities, merit increases in pay, and other factors that affect their employees' pay. The more a contractor's employees know about where they stand in terms of their pay within the company, the more the employees should feel that they have a stake in the company and its financial success.
The final rule applies to all Federal contractors with contracts entered into or modified on or after the effective date of the rule that exceed $10,000 in value. The major provisions in the final rule:
• Revise the equal opportunity clause that is currently included in qualifying Federal Government contracts, federally assisted construction contracts, subcontracts, and purchase orders. The revised clause includes a provision prohibiting contractors from discharging, or in any manner discriminating against, any employee or applicant for employment because the employee or applicant inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.
• Define “compensation” in a manner consistent with the definition used by OFCCP in other existing guidance. Compensation is defined for these purposes as any payments made to, or on behalf of, an employee or offered to an applicant as remuneration for employment, including but not limited to salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and retirement.
• Define “compensation information” as the amount and type of compensation provided to employees or offered to applicants, including but not limited to the desire of the contractor to attract and retain a particular employee for the value they are perceived to add to the contractor's profit or productivity; the availability of employees with like skills in the marketplace; market research about the worth of similar jobs in the relevant marketplace; job analysis, descriptions, and evaluations; salary and pay structures; salary surveys; labor union agreements; and contractor decisions, statements, and policies related to setting or altering employee compensation.
• Define “essential job function” to provide clarity about the positions covered by minimizing the degree of subjectivity involved in the determination. A job function may be considered essential if: (1) The access to compensation information is necessary in order to perform that function or other routinely assigned business task; or (2) the function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information.
• Establish a
• Require contractors to disseminate a nondiscrimination provision, as prescribed by the Director of OFCCP and made available on the OFCCP Web site. Contractors must disseminate the provision to employees and applicants using their existing employee manuals or handbooks, and either electronically or by posting the prescribed provision in conspicuous places available to employees and job applicants.
This is not economically significant under section 3(f) of Executive Order 12866, though it is a “significant regulatory action.” The total cost of the final rule is $42,726,188.
The final rule provisions primarily require contractors to refrain from discriminatory activity, and notify employees, job applicants, and subcontractors of the nondiscrimination obligation using existing or common methods of communication. Notice to subcontractors is provided by amending the existing equal opportunity clause that contractors are currently required to include in their subcontracts and purchase orders. Contractors are not required to develop and deliver new staff or management training on the new nondiscrimination obligation in the final rule; however, providing such training is considered a best practice. The final rule also includes a defenses provision that allow contractors to pursue a defense to a claim of discrimination under certain circumstances.
At an estimated cost of $85 per company, the final rule should result in benefits to workers who have historically experienced pay discrimination, and also transfers between groups of employees and from contractors, employers, or taxpayers to workers. The provisions in the final rule should help to ensure that fear of discrimination does not inhibit the employees of Federal contractors from sharing information with one another about their compensation. The final rule's provisions, as discussed earlier in the preamble, also promote economy and efficiency in Federal Government procurement, potentially contribute to the economic security of working women and their families, and support enforcement of nondiscrimination and equal employment opportunity protections.
Prior to issuing an NPRM, OFCCP conducted listening sessions with individuals from the contractor community, civil rights groups, and other interested parties to understand their perspectives on the scope and intent of Executive Order 13665 amending Executive Order 11246. After reviewing all of the comments on the NPRM, OFCCP's final rule incorporates many of the provisions in the NPRM. However, in order to clarify and focus the scope of one or more provisions in the final rule, while not increasing the estimated burden, the final rule revises some of the NPRM's provisions.
OFCCP received 6,524 comments on the NPRM, of which 6,443 were the result of organized efforts using form letters generally in support of the NPRM. The remaining group of 81 unique or non-form letter comments represented diverse perspectives including one contractor, three law firms, four contractor associations, 13 civil rights organizations, four employee associations and unions, and 56 individuals. The commenters raised a range of issues, including concerns about the definitions of “compensation,” “compensation information,” and “essential job functions.” A few commenters urged OFCCP to make the definition of “compensation” consistent with existing OFCCP Directive 2013-03,
Another commenter was concerned that the proposed definition of “compensation information” would include information covered by the attorney-client privilege or the attorney work product doctrine. As discussed in the section-by-section analysis, the final rule modifies the definition of compensation information. It provides more specificity as to the type of information covered but the final rule does not adopt other suggested changes related to concerns about attorney-client privilege or the attorney work product doctrine. The information that OFCCP could request would not involve legal opinions or advice, but would include factual data that informed the contractor's compensation decisions. The information sought is not significantly different in nature from what OFCCP could request during a compliance evaluation or complaint investigation.
A definition for “essential job functions” that was proposed in the NPRM was based on the approach used in the Americans with Disabilities Act (ADA), as amended, and OFCCP's regulations implementing Section 503. The “essential job function” analysis and evidence in these instances relate to issues of reasonable accommodation and qualification. However, in the context of Executive Order 13665, the purpose or goal of the “essential job functions” analysis is different. Most of the commenters stated that the definition proposed in the NPRM for “essential job functions” is too broad. They proposed narrowing it to employees whose jobs are to maintain and protect the privacy of employee personnel records, and minimizing the amount of subjectivity available to contractors when determining what constitutes essential job functions. Others commented that the proposed definition of essential job functions was too narrow. Some commenters believed that the definition of essential job functions is inconsistent with the National Labor Relations Act (NLRA), and that the proposals in the NPRM are unnecessary because the NLRA covers pay secrecy issues under the right to discuss “terms and conditions of employment.” The final rule rejects the ADA, as amended, definition of essential job functions as proposed in the NPRM. The final rule also rejects the comparison made by some commenters with the NLRA. Instead, the final rule identifies two types or categories of essential job functions to minimize subjectivity and provide specificity for the types of job functions that would be covered as essential.
Some commenters sought to expand the defenses provisions in the NPRM to allow contactors to take action when employees or applicants access information without the contractor's authorization, or violate contractor policies or other limitations created pursuant to applicable laws protecting private or confidential information. The final rule does not expand the defenses to include these recommendations, nor does it limit the ability of contractors to take disciplinary actions for violations of security policies and applicable privacy laws.
A significant number of commenters raised issues about the legal framework that would apply to analyzing an alleged violation. Commenters were concerned that the NPRM proposed prohibiting “discrimination” for conduct that is more appropriately considered “retaliation.” The commenters noted that the proposed prohibition is not based on the employees' or applicants' membership in one of the protected categories under
Other commenters proposed that OFCCP require contractors to take additional measures to disseminate the equal opportunity clause such as requiring mandatory training to ensure that managers and employees understand the proposed protections. The commenters considered this training especially necessary where a contractor has longstanding pay secrecy policies or a culture of secrecy surrounding pay disclosures. One commenter would require training for departmental leadership responsible for handling compensation-related matters. Several commenters opposed mandatory training but encouraged it as a best practice, including one noting that training is no guarantee of effectiveness and that compliance is best achieved through clear guidance to contractors. Another commenter believed that training on the proposed new protections described in the NPRM could result in confusion, and encourage frivolous claims because employees are already aware that compensation discrimination is unlawful. The minority of the comments included one that proposed eliminating the equal opportunity clause altogether and focusing on collecting data. The final rule declines to require mandatory staff and management training.
There were also comments associated with the cost and burden of the proposed rule, and the authority of OFCCP to undertake this rulemaking. Other comments on the NPRM addressed access to technical assistance and training, alternatives to the proposals in the NPRM, and the absence of a provision obligating the government to intervene and pay costs and attorneys' fees should a prime contractor terminate a subcontractor under a government mandate. OFCCP carefully considered all comments in the development of this final rule.
The proposed rule provided definitions for three terms used in Executive Order 13665. The NPRM defined the term “compensation” to include payments made to an employee, or on behalf of an employee, or offered to an applicant as remuneration for employment, including but not limited to salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and retirement. This definition of “compensation” aligns with the definition OFCCP uses in the context of compensation discrimination investigations. OFCCP received three comments regarding the definition of “compensation.” One commenter generally supported the proposed definition. Another commenter supported the definition, but suggested expanding it to include “sick time” and “paid leave.” The third commenter stated that the definition of “compensation” in the NPRM differed from the definition of that term in OFCCP's Directive 2013-03, and further suggested that both the final rule and the Directive contain the same definition.
After consideration, OFCCP does not believe it would be appropriate to include “sick time” and “paid leave” expressly in the definition of compensation. The NPRM's definition of “compensation” includes a general list of compensation types, but was not meant to be exhaustive. As a matter of consistency OFCCP will use the definition as stated in the NPRM, which aligns with the definition used in the context of its compensation discrimination investigations. OFCCP also notes the comment regarding the differing definitions in Directive 2013-03 and the NPRM, which advocates for making them consistent. However, OFCCP's guidance and regulations have historically included salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options, profit sharing and retirement. Though the definition of compensation in Directive 2013-03 and the final rule are not identical, Directive 2013-03 should be interpreted in a manner consistent with the final rule.
The proposed definition in the NPRM for the term “compensation information” is consistent with the approach described in OFCCP's existing compensation guidance.
Lastly, the NPRM also proposed a definition for the term “essential job functions.” OFCCP had proposed to use the ADA, as amended, definition of essential job functions. Under that definition, a job function may be considered essential for any of several reasons, including: (1) The function may be essential because the reason the position exists is to perform that function; (2) the function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (3) the function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
OFCCP received a number of comments, some indicating that the ADA, as amended, definition was too narrow, and others indicating that it was too broad or needed further specificity. In response to these comments, the final rule modifies the proposal in the NPRM by eliminating the use of the ADA, as amended, definition of essential job functions in favor of identifying two categories or types of essential job functions. In the final rule, a job function may be considered an essential job function if: (1) The access to compensation information is necessary in order to perform that function or another routinely assigned business task; or (2) the function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information.
Generally, those commenters who favored broadening the definition of “essential job functions,” and therefore the exception to the rule's protections, suggested that OFCCP adopt a definition that relies more on whether employees required access to confidential compensation information in the performance of their job duties, rather than on whether the employee's position description related to handling compensation information. One commenter noted that the complexity of large enterprises made it unrealistic that such employers could effectively operate through only selected employees whose “fundamental” job duties involved access to pay information or whose job exists only to perform those functions or who have specialized expertise or ability somehow related to pay information. Another commenter suggested that the test for what constitutes an essential job function should rely on whether access to compensation information was granted as necessary to the performance of a legitimate, assigned business task. Another commenter suggested that the definition of “essential job functions” should include all employees who have authorized access to an employer's compensation information, whether or not that access falls within the employee's primary job responsibilities.
OFCCP agrees with many of these comments and has determined that a definition of “essential job functions” that is driven by the employee's position description, rather than the assigned tasks, could create confusion among employers in determining which employees are covered by the definition. Instead, the revised definition makes clear that employees performing job functions or routinely assigned tasks that require them to have access to confidential compensation information will be covered. Additionally, job functions that require protecting or maintaining the privacy of employee personnel records will be covered by the revised definition.
Some commenters identified specific occupations that they thought should be covered by the definition, such as IT employees and program staffers who prepare bids for government contracts that regularly require access to compensation information, even if the position was not created for the purpose of handling compensation data. The determination of whether any particular employee received compensation information in the course of their “essential job functions” will be determined on a case-by-case basis by OFCCP. OFCCP agrees, however, that a position where the functions of that position require access to compensation information, or protecting and maintaining the privacy of employee personnel records, should generally fall within the definition of “essential job functions.”
Some commenters, on the other hand, were concerned that the exception could be construed too broadly, such that groups of employees with access to compensation information, such as human resource employees, could be denied protection under the regulations. Many of these commenters suggested that the employer's ability to assert “essential job functions” as an affirmative defense must be limited to only a very narrow subset of employees whose job is to maintain and protect the privacy of employee personnel records. One commenter also suggested that the definition should focus on whether employees used compensation information as part of their essential job functions, rather than whether they have access to such information.
The revised definition includes “protecting and maintaining the privacy of employee personnel records” as one category of “essential job functions.” However, it also includes functions and routinely assigned business tasks for which accessing compensation information is necessary to their performance. This definition provides adequate protection to employers in preserving the confidentiality of compensation and personnel data but limits the scope of the exception to those positions that require access to the information to perform their job functions and tasks. Furthermore, as discussed below, the application of the “essential job functions” defense is narrowed by the fact that even employees in positions covered by the definition are protected if they discuss compensation information that they obtained from a source outside of their essential job functions, or if they discuss information relating to their own possible claim of compensation discrimination, or if they discuss compensation information of others accessed within their essential job functions so long as the discussion takes place internally with a management official of the contractor or while using the contractor's internal complaint process.
Some of the commenters favoring a narrow interpretation also wanted the definition of “essential job functions” to rely less on subjective factors. They suggested that an employer's judgment should not be given conclusive weight on the question of what constitutes an essential job function. The revised definition replaces the more subjective factors under the ADA, as amended, definition with two categories that more clearly identify which classes of job functions should be deemed essential for purposes of these regulations. As noted in paragraph 3 of the regulatory definition, this definition of “essential job functions” is limited to the discrimination claims governed by Executive Order 13665 and its implementing regulations, and does not apply to claims brought pursuant to other EEO laws.
As proposed in the NPRM, the final rule revises the equal opportunity clause in § 60-1.4(a) and § 60-1.4(b) to include the new nondiscrimination provision. Section 60-1.4 requires contracting agencies to include this
The final rule revises § 60-1.4(a) by inserting a new paragraph 3 into the equal opportunity clause and by renumbering the subsequent paragraphs in the clause. The text of the new paragraph in § 60-1.4(a) is identical to the text in section 2(b) of Executive Order 13665. Under the terms of this new provision, it is unlawful for contractors to discharge or discriminate in any other manner against any employee or job applicant because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision does not apply when an employee with access to the compensation information of other employees or job applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in support of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
Under the equal opportunity clause in § 60-1.4(b), administering agencies involved in federally assisted construction through grants, loans, insurance, or guarantee must include text in their contracts for construction work informing the funding applicant that the equal opportunity clause must be incorporated into the contracts and contract modifications if they are funded in whole or in part by Federal money. This section further provides the exact language for the equal opportunity clause. As with § 60-1.4(a), by accepting funding the contractor agrees to assume the nondiscrimination and affirmative action obligations of Executive Order 11246, including incorporating the equal opportunity clause into their subcontracts and purchase orders unless exempted by law, regulations, or order of the Secretary of the U.S. Department of Labor. The final rule revises § 60-1.4(b) by inserting a new paragraph 3 into the equal opportunity clause, and renumbering the subsequent paragraphs in the clause. The text of the new paragraph is identical to the text in section 2(b) of Executive Order 13665.
OFCCP made changes to § 60-1.4 with the intent to eliminate the secrecy and fear surrounding a discussion or disclosure of compensation information. When employees lack access to compensation information it is more difficult for them to make informed choices about their own compensation, and it creates unnecessary barriers to filing complaints with civil rights agencies such as OFCCP. Secrecy may also have a detrimental impact on business productivity, employee morale and retention, and could drive increased cost related to human resources management as discussed earlier in the preamble to the final rule.
OFCCP received three comments on the proposed revisions to § 60-1.4. One commenter suggested that OFCCP eliminate the proposed equal opportunity clause provisions and focus instead on establishing “thorough but undemanding reporting requirements” to detect compensation discrimination. With respect to that comment, OFCCP proposed an NPRM on August 8, 2014, entitled “Government Contractors, Requirement To Report Summary Data on Employee Compensation.”
Another commenter suggested that the final rule modify the equal opportunity clause by adding language from Sections 7 and 8 of the National Labor Relations Act (NLRA).
The other comment regarding revisions to § 60-1.4 asserted that it is not necessary for OFCCP to alter the heading for § 60-1.4(d) from “Incorporation of the equal opportunity clause by reference” to “Inclusion of the equal opportunity clause by reference;” or to alter the first sentence of § 60-1.4(d) by deleting “incorporated by reference” and inserting “included by reference.” OFCCP does not agree that this change is unnecessary and will change the current regulatory language of the heading and first sentence of § 60-1.4(d). Making the change to “inclusion” is consistent with the
SUBPART B—General Enforcement; Compliance Review and Complaint Procedure
As proposed in the NPRM, § 60-1.35 becomes a new section to part 60-1 in this final rule, to implement the requirements of section 2(b), as well as the contractor defenses set forth in the Executive Order.
In the NPRM, OFCCP stated that it viewed Executive Order 13665 “as establishing a new prohibition against discrimination against any employee or applicant” and announced its intent to use the burdens and standards of proof applicable to Title VII discrimination claims—including the use of a motivating factor framework for analyzing causation. OFCCP provided three broad reasons for adopting this approach in the NPRM: (1) the equal opportunity clause paragraph set out in section 2(b) of Executive Order 13665 is framed in terms of discrimination; (2) the prohibitions set forth in Executive Order 13665 diverged from the traditional Title VII retaliation framework, to which the different “but-for” standard of review applies; and (3) the application of the motivating factor framework would maintain consistency with the review of similar claims under the National Labor Relations Act (NLRA), which also utilizes the motivating factor approach.
OFCCP received seven comments on the proposed analytical framework. Five of these comments, largely from organizations representing employers, opposed the proposal, and urged instead that OFCCP adopt a “but-for” causation standard, citing the recent
The most frequent comments on the proposed analytical framework concerned the applicability of the
The comments from the organizations representing employers all stated that the holding in
Historically, OFCCP has followed Title VII principles in cases brought under Executive Order 11246.
This difference in scope underpinned OFCCP's position in the NPRM that the Order is “framed in terms of discrimination” and that its protections are uniquely directed toward “protecting workers from pay discrimination itself,” thus supporting a discrimination analysis. While two of the commenters took issue with this latter statement, asserting that Title VII's retaliation statute serves the same purpose, we believe there is an important difference—the Order's protections are geared not only to safeguard the integrity of existing pay discrimination laws, but to also allow workers to
While OFCCP recognizes the lack of specific “motivating factor” language in the Order and the other textual arguments raised by commenters,
The NPRM also included the motivating factor framework in part because of the overlap in legal protections offered by the Order and the National Labor Relations Act, which also uses a motivating factor analysis. Two commenters took issue with this rationale. One stated simply that the NLRA was “not applicable” to claims under the Order, while another asserted that there are differences in the scope and remedial schemes of the NLRA and the Order that necessitated differing analytical frameworks.
Regarding the first of these commenters, OFCCP respectfully disagrees that the NLRA is simply “not applicable” to the discussion of how claims under Executive Order 13665 should be analyzed. As we stated in the NPRM, there is a close relationship in the type of activity each law protects. Section 7 of the NLRA guarantees the right to engage in “concerted activities for the purpose of . . . mutual aid or protection,” 29 U.S.C. 157, and the National Labor Relations Board has long held that this includes the right “to ascertain what wages are paid by their employer, as wages are . . . probably the most critical element in employment.”
The second commenter raised two broad issues. First, it stated that the analytical framework under the NLRA was different from that proposed under the Executive Order 13665, in that under the NLRA an employer can escape all liability if it can establish that it would have taken the adverse action against the employee in any event. As stated in the NPRM, the reasoning behind the proposed motivating factor framework was “consistency with Title VII
The NLRA and Title VII then diverge in the remedial structure following a successful articulation of the defense: under the NLRA, the employer can escape all liability, whereas under Title VII, the court may still grant injunctive and declaratory relief, as well as attorneys' fees. While the final rule follows Title VII rather than NLRA principles in this regard, the enforcement mechanisms in the Order significantly lessen the distinction with the NLRA in two ways. First, the Order does not permit OFCCP to recover attorneys' fees and costs, thus, as with the NLRA, monetary remedies are not available if an employer establishes a defense in a case proceeding under the motivating factor framework. Second, the inclusion of a specific, complete “essential job functions” defense in the Order, discussed elsewhere in the preamble, provides a mechanism for contractors to avoid liability in certain circumstances consistent with the NLRA.
The commenter also noted that the interpretation of the Order in the NPRM covers more people and more types of activity than does the NLRA and that this will lead to an “exponential increase” in claims, and that applying a motivating factor analysis will further result in an increase in the number of frivolous claims, thus raising costs for the contractor community. As to any potential increase in claims, it is true that one specific purpose of the Order is to expand protections against pay secrecy policies to individuals and types of activities beyond that protected by the NLRA; otherwise, there would be no need for the Order. As discussed at length in the NPRM and in the preamble here, pay discrimination, as well as the existence of pay secrecy policies, remains widespread despite the protections in the NLRA. To the extent there is an increase in meritorious claims, this would indicate the Order's success at addressing these widespread problems. As to the assertion that there would be an untenable increase in the number of frivolous claims solely because of the availability of a motivating factor framework, we respectfully disagree. Significantly, there is no private right of action under Executive Orders 11246 or 13665; OFCCP is responsible for investigating complaints filed and bringing enforcement actions, which it has discretion to do only if there is a violation and it has attempted to resolve such violations through informal means.
For the foregoing reasons, OFCCP concludes that the motivating factor framework is a permissible approach for claims brought under the Executive Order 13665. However, the fact that it is
A number of comments concerned the compatibility or consistency of the Order with the NLRA beyond those comments addressed in the analytical framework section above. Some commenters noted that the NLRA already provides some protection for disclosure of compensation information and, therefore, believe this rule is unnecessary. As an initial matter, the Order plainly requires OFCCP to draft implementing regulations.
One commenter took issue with this last point, stating that the Department has not presented sufficient data to justify coverage of supervisors. Another commenter noted, conversely, that coverage of supervisors is important specifically because they are not covered by the NLRA.
We decline the recommendation to limit coverage of the Order solely to employees who are not supervisors. Neither the Order nor any of the comments provide a basis for doing so. The plain text of the Order extends protections to “
One commenter raised an issue about having the opportunity to comment on coordination it believes is necessary between the Department and the NLRB in terms of having a consistent standard and a consistent class of covered employees for pay transparency cases. Because sufficient notice about the standard to be applied as well as the covered class was provided during this comment period, there was sufficient opportunity for input on these issues. The Department enforces statutes with overlapping jurisdiction with other agencies and coordinates when necessary. There is no justification for not covering all employees who are covered generally by the protections provided under Executive Order 11246.
As was proposed in the NPRM, and as was established in Executive Order 13665, the final rule contains contractor defenses to alleged violations. First, the contractor may pursue a defense if its adverse action against an employee or applicant is not based on a rule, policy, practice, agreement or other instrument that prohibits employees and applicants from disclosing compensation. Second, the protections of the Order do not apply, and thus a contractor is allowed to take adverse action against an employee or applicant, if the employee discloses compensation information accessed or received based on performing an essential job function unless the disclosure falls into one or more exemptions.
The structure and function of these defenses are notably different from each other in the text of Executive Order 13665 and, accordingly, are so under these regulations. The “essential job functions” defense is set forth in the same paragraph as the prohibition on discrimination, and states that the prohibition “shall not apply” in instances in which employees disclose compensation data that they have access to as part of their essential job functions.
The NPRM proposed to include a general contractor defense to an alleged violation of paragraph (3) of the equal opportunity clauses listed in § 60-1.4(a) and (b) under which a contractor's actions would not be deemed to be discrimination if the contractor could show that it disciplined the employee for violation of a consistently and uniformly applied rule, policy, practice, agreement, or other instrument that does not prohibit, or tend to prohibit,
OFCCP received several comments on this proposed defense. Some commenters were concerned that the defense was so broad that it could be used as pretext for discrimination and that it allowed for excessive employer subjectivity. These commenters explained that the example cited in the NPRM, where a contractor disciplines an employee for standing on her desk and repeatedly shouting out her pay in violation of a workplace rule prohibiting disruptive behavior, illustrated that contractors could apply such workplace rules in a subjective and discriminatory manner because contractors could define “disruptive” to include all conversations about compensation. These commenters suggested that OFCCP should provide specific definitions and examples of legitimate workplace rules. One commenter also suggested that OFCCP should identify sources that employers could draw from when citing a legitimate workplace rule, such as employee handbooks or collective bargaining agreements.
One other commenter suggested that OFCCP delete “and uniformly” from the phrase “by proving that the contractor disciplined the employee for violation of a consistently and uniformly applied rule . . .” because “uniformly” was superfluous and because contractors should not be required to apply a rule “uniformly” in situations when circumstances warrant a different approach.
OFCCP believes that the defense, as proposed in the NPRM, adequately prevents contractors from using a legitimate workplace rule as a way to avoid liability in the event that it discriminated against an employee or applicant for discussing compensation. The defense requires the contractor to show that it applied a legitimate workplace rule to the employee or applicant in a consistent and uniform manner. If the contractor cannot demonstrate a track record of consistent and uniform application of the workplace rule, then the contractor will not be able to successfully use this defense. Although a contractor need not discipline all employees in an identical way under the workplace rule, it must show that it did not discipline the employee or applicant in question more severely under the rule because of the employee's or applicant's protected activity.
In response to the concern that contractors could use workplace rules, such as those that prohibit disruptive employee behavior, to target discussions of compensation, OFCCP notes that contractors may only rely on workplace rules that do not prohibit, or tend to prohibit, employees or applicants from discussing or disclosing their compensation or the compensation of other employees or applicants. A rule that treated all discussions of pay as “disruptive” would violate these regulations.
OFCCP declines to articulate specific workplace rules that contractors may assert pursuant to this defense. There are many legitimate workplace rules that contractors may be entitled to enforce; OFCCP cannot predict the content or the source of any particular rule that a contractor may rely upon in asserting this defense. Regardless of the type of workplace rule relied upon, however, every contractor must show that the identified workplace rule does not prohibit, or tend to prohibit, employees or applicants from discussing their compensation and that any such rule has been consistently and uniformly applied. For example, if a contractor disciplined an employee or applicant, who was also discussing pay, pursuant to an allegedly legitimate workplace rule, but, for example, had never promulgated or enforced that rule before, the contractor may not be able to show that the workplace rule qualified as a legitimate workplace rule under this defense.
Finally, OFCCP will retain the word “uniformly” in the final rule. OFCCP recognizes that different circumstances may warrant different forms of discipline under the same workplace rule; the fact that an employee or applicant was also discussing compensation, however, should not justify applying the workplace rule in a non-uniform manner. For example, it may be a consistent application for a contractor to suspend all employees who exceed their allotted break time by an hour, even if the contractor only provides a verbal warning to employees who exceed their allotted break time one time by five minutes. For the contractor to act in a uniform manner, it should apply the same corrective action—here, a verbal warning—to employees who exceed their allotted break time once by five minutes, including any employees who may have been discussing compensation. As mentioned above, an employee's or applicant's protected activity should not affect the severity of the discipline they receive pursuant to a workplace rule. Requiring that contractors uniformly apply workplace rules to similarly situated employees, regardless of their protected activity, prevents contractors from using the rule as a way to avoid liability for discrimination. Therefore, OFCCP believes that the use of the word “uniformly” is not superfluous and will remain in the final rule.
Two commenters proposed adding more specific defenses to the regulation. One commenter suggested that OFCCP add a defense for contractors who limit discussion or disclosure of compensation information pursuant to laws enacted to protect private and/or confidential information. Another commenter recommended that the rule include a specific defense against hacking, such that if an employee obtained salary information through unauthorized access, then the employer should be able to discipline the employee for doing so.
As previously mentioned, the final rule does not expand the defenses to include these recommendations; however, it does not limit the ability of contractors to take disciplinary actions for violations of security policies and applicable privacy laws. Furthermore, as noted in the preamble to the proposed rule, the general defense provision is intended to permit employers to have personnel policies that are uniformly applied to maintain discipline in the workplace and to protect their business. We note generally that a policy that would have the effect of broadly prohibiting employee communication about compensation would be unlawful under this rule. However, a company policy that is narrowly tailored to prohibit disclosure of specific proprietary business information or trade secrets, or that is otherwise designed to be consistent with federal or state privacy laws, if violated, could fall within the general defenses already set forth in the rule. Similarly, if a contractor consistently and uniformly applies a rule prohibiting employees from accessing information without authorization, then this too could potentially fall within the general defense provision. Whether a company policy concerning confidentiality or unauthorized access would be deemed unlawful would be a highly fact-specific inquiry. However, because the general defense set forth could potentially be invoked for these purposes, OFCCP declines to adopt the recommendations to include these specific defenses.
Accordingly, OFCCP declines to make the suggested changes and adopts the defense requirements outlined in the
As proposed in the NPRM, § 1.35(b) contains a second contractor defense to a claim of discrimination under these regulations. Pursuant to this defense, a contractor will not violate these regulations if it takes adverse action against an employee, who has access to the compensation information of other employees or applicants as part of his or her essential job functions, for disclosing the compensation of other employees or applicants, unless the disclosure occurs in certain limited circumstances. These limited circumstances include disclosures in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing or action, including an investigation conducted by the contractors, or consistent with the contractor's legal duty to provide information. A formal complaint or charge would include, for example, written and oral complaints submitted by the employee, or someone on behalf of the employee, to the contractor's human resources or other appropriate office or official, and to a Federal, state or local government entity, including courts and administrative boards and councils. Under § 1.35(b), the employee would typically be making the disclosure within, related to, or pursuant to some sort of official action, process, policy, or procedure if the conduct is to be protected from adverse action by the contractor.
As discussed above, OFCCP has revised the definition of “essential job functions” to identify two specific categories of job functions: (1) the access to compensation information is necessary in order to perform that function or other routinely assigned business task; or (2) the function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information. Many of the comments that OFCCP received on this topic related to the definition of “essential job functions” and have been previously addressed. To reiterate, some commenters felt that the definition of essential job functions, and therefore the accompanying defense, should be broadened, while others felt it should be narrowed.
As stated in the NPRM, this defense acknowledges that an employee who has access to compensation information of others within an organization as part of his or her essential job functions has a duty to protect such information from disclosure. The revised definition of “essential job functions” reflects these concerns, while also limiting an employer's subjectivity in deciding what functions constitute essential job functions. As was stated in the NPRM, however, if an employee discloses or discusses the compensation of other applicants or employees based on information that the employee receives through means other than essential job functions access, the defense would not apply. Similarly, the defense would not apply where such an employee pursues her own possible compensation discrimination claim or raises possible disparities involving the compensation of other employees to a management official with the contractor or while using the contractor's internal complaint process. This balance protects employers' confidential information, but does not inhibit those workers with access to such information from pursuing their own claims of compensation discrimination or raising possible disparities to the contractor's own management to consider and address if necessary to comply with the law. Without this distinction, employees with essential job functions access, who primarily work in human resources departments and who are predominantly women,
As with any defense, OFCCP will evaluate the availability of a defense under section 1.35(b) based on the specific facts and circumstances of each case. As discussed above, this defense may serve as a complete bar to liability under these regulations. The “motivating factor” framework will not limit the application of the essential job functions defense because releasing compensation information obtained during the course of an employee's essential job functions is not protected by Executive Order 13665 or this final rule. The policy underlying Executive Order 13665 recognizes that contractors are entitled to prohibit some of their employees from releasing sensitive and confidential information relating to compensation; accordingly, such prohibitions will not give rise to impermissible “motivating factors” under these regulations, and therefore will not implicate the remedial structure under the “motivating factor” framework.
The NPRM proposed to require that Federal contractors incorporate the nondiscrimination provision described in section 2(b) of Executive Order 13665 into existing employee manuals or handbooks, and disseminate the nondiscrimination provision to employees and job applicants. The NPRM proposed that the Director of OFCCP would prescribe the language in the nondiscrimination provision, and that OFCCP would make the language available on the OFCCP Web site. The NPRM stated that contractors would disseminate the provision either electronically or by posting a copy of the provision in conspicuous places available to employees and job applicants. The NPRM did not require or recommend in-person or face-to-face communication of the provision, however, the proposed rule stated that contractors might use this method if they typically communicate information
OFCCP received six comments on this proposed requirement. One commenter encouraged OFCCP to create a new “pay transparency” poster and add a requirement for contractors to post it in the workplace. Two commenters recommended that OFCCP revise the current “EEO is the Law” poster to include language describing the prohibition against discrimination based on compensation inquiries, discussions, or disclosures, instead of requiring publication of the prescribed nondiscrimination provision in employee manuals and handbooks. Another commenter challenged the use of prescribed language by the OFCCP's Director. The commenter stated that contractors would be best suited to develop language that articulates both employee and employer rights and obligations.
OFCCP believes that contractors can accomplish the goal of providing notice of the nondiscrimination provision to applicants and employees through existing structures, such as handbooks and manuals. Moreover, OFCCP is mindful of the additional burden that a new posting requirement would impose on contractors, as explained in the below Regulatory Procedures section of this preamble. OFCCP also considered the suggestion that individual contractors develop the language they would use to describe the nondiscrimination provision in their employee handbooks and manuals. However, OFCCP believes that uniformity of such language is necessary to ensure consistency and clarity in the information provided to applicants and employees. Of course, nothing in this rule limits contractors' ability to provide additional information to their employees about employer and employee rights and obligations. Further, OFCCP seeks to lessen the costs and burden associated with dissemination of the nondiscrimination provision by prescribing the language to describe it. Accordingly, OFCCP declines to make the suggested changes and adopts the dissemination requirements proposed in the NPRM into the final rule.
OFCCP agrees with the suggested inclusion of language describing the prohibition against discrimination based on compensation inquiries, discussions, or disclosures on the “EEO is the Law” poster that contractors are currently required to post. OFCCP will take necessary steps toward producing a poster with this new language. However, posting the “EEO is the Law” poster will not eliminate the obligation to publish the prescribed nondiscrimination provisions in employee manuals and handbooks.
In the proposed rule, OFCCP sought comments on the feasibility of a proposition that would require contractors with existing manager trainings or meetings to include in them a review of the prohibition on discrimination based on an employee or applicant inquiring about, discussing, or disclosing compensation information. The training requirement, as proposed, would have applied only to contractors that provide manager trainings or meetings; OFCCP would have encouraged other contractors to adopt such training as a best practice for minimizing the likelihood of workplace discrimination. OFCCP received five comments in support and three comments in opposition of this proposed requirement.
Generally, commenters supporting the training proposal asserted that requiring manager training should be required for all contractors. Such a requirement would ensure effective implementation of the new provision, particularly for those contractors with longstanding polices that prohibit wage discussions. Some of these commenters asserted further that contractors with existing training could incorporate required new training into already existing training sessions, as proposed. One commenter suggested extending the training requirement to require contractors to provide employees with individual notice at staff meetings, performance reviews, and other channels.
However, commenters in opposition to the training requirement generally asserted that the proposed training provision would not guarantee effectiveness, would create confusion, would involve significant expense, and would be unnecessary given that contractors are likely already subject to similar Federal and state provisions. One commenter specifically asserted that requiring training for some contractors while only encouraging it for other contractors would create confusion amongst the regulated community with regard to what is required for compliance. Another commenter stated that contractors would achieve increased compliance with the new nondiscrimination provision through clearer guidance from OFCCP as opposed to mandated contractor training. Yet another commenter opposed the requirement because the expense for contractors to update existing training programs would be significant. Such an update would require several levels of internal company review, in addition to costs to re-deploy training modules. Rather than impose a training requirement on some contractors, some of the comments in opposition suggested that OFCCP only encourage providing this training as a best practice for all contractors.
After consideration of the foregoing comments, the final rule does not require any contractors to modify their existing trainings or meetings to include a review of the prohibition on discriminating based on an employee or applicant inquiring about, discussing, or disclosing compensation information. In making this determination, OFCCP considered the added burden to contractors resulting from them modifying their training materials, as well as the potential for contractors to become confused about which of them would be covered by the training requirement. Although this final rule does not require training, OFCCP encourages all contractors to incorporate personnel training on this new nondiscrimination provision as a best practice.
In the NPRM, OFCCP requested comments from small contractors on possible alternatives that would minimize the impact of the proposed rule while still accomplishing its goals. Specifically, OFCCP invited interested persons to submit comments on NPRM estimates, including the number of small entities affected by the Order's prohibition on Federal contractors discriminating against employees and job applicants, the compliance cost estimates, and whether alternatives exist that would reduce burden on small entities while still remaining consistent with the objectives of Executive Order 13665.
OFCCP received two comments proposing alternative approaches. The commenters suggested that the final rule require Federal contractors to create and maintain publicly available employee pay scales, similar to the pay scales maintained for Federal employees. The commenters' proposal is beyond the scope of Executive Order 13665 and, even if within its scope, such an alternative would be more burdensome than what was proposed in the NPRM. OFCCP further finds that the proposed requirement to disseminate the nondiscrimination provision is the least burdensome means of fostering discussion among employees about pay and allowing for openness among employees to discuss compensation practices.
OFCCP is issuing this final rule in conformity with Executive Orders 13563 and 12866, which directs 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 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
Under Executive Order 12866, OFCCP must determine whether a regulatory action is significant and therefore subject to the requirements of the Executive Order and to review by OMB.
This rule has been designated a “significant regulatory action” although not economically significant under section 3(f) of Executive Order 12866. The rule is not economically significant because it will not have an annual effect on the economy of $100 million or more. Accordingly, the rule has been reviewed by the Office of Management and Budget.
On April 8, 2014, President Barack Obama signed Executive Order 13665, Non-Retaliation for Disclosure of Compensation Information. 79 FR 20749 (April 11, 2014). This Executive Order prohibits Federal contractors from discharging or discriminating in any other way against employees or applicants who inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant. Executive Order 13665 necessitates the regulatory changes in this rule to ensure that employees of Federal contractors and subcontractors are able to discuss their compensation without fear of adverse action. Federal contractors also need the regulatory changes to enhance their ability to detect and remediate unlawful discriminatory practices. OFCCP designed the rule to contribute to a more efficient market in Federal contracting, and to ensure that the most qualified and productive workers receive fair wages. The existence of pay secrecy practices means some workers can be fired for even disclosing their compensation or asking their co-workers how much they earn. Even employers who do not specifically restrict employee communications about compensation take great care to guard individual compensation information. This final rule benefits OFCCP's enforcement by incorporating into the equal opportunity clauses the prohibition against pay secrecy policies, specifically that an employer cannot discriminate against an employee or applicant who has inquired about, discussed, or disclosed compensation information.
Currently, OFCCP lacks sufficient, reliable data to assess the gender- or race-based pay gap experienced by employees of Federal contractors or subcontractors, including how much of the potential pay gap is attributable to pay discrimination instead of nondiscriminatory factors, and how many contractors are violating the pay discrimination laws OFCCP enforces. Pay secrecy ranks among one of the most prevalent employer policies and practices that makes discrimination more difficult to discover and remediate.
U.S. Census data show that more than 15.2 million family households in the United States are headed by women.
Discrimination, occupational segregation, and other factors contribute to creating and maintaining a gap in earnings and keeping a significant percentage of women in poverty. It is worth noting, however, that some research has established that women earn less than men regardless of the field or occupation.
In this section, OFCCP presents a summary of the costs associated with the requirements in the final rule at §§ 60-1.3, 60-1.4 and 60-1.35. The estimated labor cost to contractors is based on Bureau of Labor Statistics data in the publication “Employer Costs for Employee Compensation” issued in December 2013, which lists total compensation for management, professional, and related occupations as $51.58 per hour and for administrative support as $24.23 per hour. Unless specified otherwise, OFCCP estimates that 25 percent of the time burden for complying with this rule will be spent by persons in management, professional and related occupations and 75 percent will be spent by persons in administrative support occupations.
There are approximately 500,000 contractor companies or firms registered in the General Service Administration's System for Award Management (SAM). Therefore, OFCCP estimates that 500,000 contractor companies or firms may be affected by the final rule.
OFCCP acknowledges that 5 CFR 1320.3(b)(1)(i) requires agencies to include in the burden analysis for new information collection requirements the estimated time it takes for contractors to review and understand the instructions for compliance. In order to minimize the burden, OFCCP will publish compliance assistance materials including, but not limited to, fact sheets and “Frequently Asked Questions.” OFCCP will also host webinars for the contractor community that will describe the new requirements and conduct listening sessions to identify any specific challenges contractors believe they face, or may face, when complying with the requirements.
OFCCP believes that Federal contractors' human resources or personnel managers will be responsible for understanding or becoming familiar with the new requirements. OFCCP estimates that it will take one hour for a management professional at each contractor company to either read the compliance assistance materials provided by OFCCP or participate in an OFCCP webinar to learn more about the new requirements. One commenter asserted that one hour was an underestimation of the time needed for familiarization. The commenter asserted that multiple individuals at each contractor company would be required to become familiar with the requirements. OFCCP acknowledges that the precise amount of time each company will take to engage in certain activities will be difficult to estimate. However, the estimate used does take into account the fact that many contractors are smaller and may not have the same staff or human resources capabilities. Therefore, OFCCP retains its original estimate that it will take 60 minutes for regulatory familiarization. The estimated cost of this burden is assumed to be entirely at the Management, Professional, and Related Occupations level. Consequently, the estimated time burden for rule familiarization is 500,000 hours (500,000 contractor companies × 1 hour = 500,000 hours). The estimated cost is $25,790,000 (500,000 hours × $51.58/hour = $25,790,000).
The final rule prohibits discrimination based on employees and applicants inquiring about, discussing, or disclosing their compensation or the compensation of others unless the employee has access to compensation information of other employees or applicants as a part of such employee's essential job functions. The prohibition against discrimination would apply to all Federal contractors and subcontractors and federally assisted construction contractors and subcontractors with contracts or subcontracts in excess of $10,000. The new requirements are located at §§ 60-1.3, 60-1.4 and 60-1.35.
The final rule amends § 60-1.3 to include definitions for compensation, compensation information, and essential job functions as it relates to employees who have access to compensation information. Some commenters indicated that OFCCP should be required to assess additional burden because of the compensation
In § 60-1.4(a)(3), the final rule mandates that each contracting agency incorporate the prohibition into the equal opportunity clause of Federal contracts and contract modifications, if the provision was not included in the original contract. More specifically, existing § 60-1.4(a)(3) provisions on notices sent to each labor union or representative of workers would be placed in § 60-1.4(a)(4); existing § 60-1.4(a)(4) would be placed in § 60-1.4(a)(5); existing § 60-1.4(a)(5) would be placed in § 60-1.4(a)(6); existing § 60-1.4(a)(6) would be placed in § 60-1.4(a)(7); and existing § 60-1.4(a)(7) would be placed in new § 60-1.4(a)(8). The equal opportunity clause may be incorporated by reference into Federal contracts and subcontracts.
In § 60-1.4(b)(3), the final rule mandates that each administering agency incorporate the prohibition into the equal opportunity clause of a grant, contract, loan, insurance, or guarantee involving federally assisted construction that is not exempted from the equal opportunity clause. More specifically, existing § 60-1.4(b)(3) provisions on notices sent to each labor union or representative of workers would be placed in § 60-1.4(b)(4); existing § 60-1.4(b)(4) would be placed in § 60-1.4(b)(5); existing § 60-1.4(b)(5) would be placed in § 60-1.4(b)(6); existing § 60-1.4(b)(6) would be placed in § 60-1.4(b)(7); and existing § 60-1.4(b)(7) would be placed in new § 60-1.4(b)(8). The equal opportunity clause may be incorporated by reference into federally assisted contracts and subcontracts.
To comply with this requirement, contractors may incorporate the equal opportunity clause into their nonexempt subcontracts either in its entirety or by including it by reference. While some contractors may need to locate the revised equal opportunity clause and incorporate it into existing contract templates, other contractors that include the clause by reference will make no change to existing subcontract language. One commenter asserted that it would take at least ten hours to comply with the new requirement. The commenter asserted that it would involve attorneys, procurement, logistics, and vendor services. However, the commenter did not provide any specificity that would explain or support this estimate. OFCCP disagrees with this assessment as the activity simply involves finding the new clause, provided by either OFCCP or the procurement officer, and incorporating that new wording into a contract template. OFCCP's estimate takes into account the fact that many contractors are smaller and may not have staffing or departments devoted to procurement, logistics, or vendor services. Therefore, OFCCP retains its original estimate that contractors will spend approximately 15 minutes modifying existing contract templates to ensure the additional language is included. The estimated time burden for this provision is 125,000 hours (500,000 contractors × 0.25 hours = 125,000 hours). The estimated cost of this provision is $3,883,438 ((125,000 hours × 0.25 × $51.58) + (125,000 × 0.75 × $24.23) = $3,883,438).
The final rule adds § 60-1.35(a) and (b) discussing contractor defenses to an allegation of violation of § 60-1.4(a)(3) and (b)(3). The text of paragraph (a) incorporates the text in section 5(a) of Executive Order 13665. The text of paragraph (b) is drawn from the text in section 2(b) of the same Executive Order. There is no burden associated with the inclusion of these new paragraphs.
Section 60-1.35(c) of the final rule requires contractors to disseminate the nondiscrimination provision by incorporating it into existing employee manuals or handbooks, and disseminating it to employees and to job applicants. This dissemination can be executed electronically or by posting a copy of the provision in conspicuous places available to employees and applicants for employment. In person or face-to-face communication of the provision is not required or recommended, however, contractors may use this method if they typically communicate information to all employees or applicants in this manner. In order to reduce the burden to contractors associated with disseminating the provision, the final rule requires contractors to adopt the nondiscrimination language provided by OFCCP into contractors' existing employee manuals or handbooks and otherwise make it available to employees and applicants. One commenter indicated that disseminating the policy to employees and applicants would take considerably more time as it would not only be necessary to incorporate the provision into handbooks and post the policy, but it would also require additional personnel to communicate and approve the changes to handbooks and postings. The provisions of this rule apply to all Federal contractors and subcontractors, thus when estimating the cost, it is necessary to factor in that many Federal contractors are small and do not have the same staff or human resources capabilities. Thus, OFCCP retains its original calculation, as it is more reflective of the range of Federal contractors and their respective practices. A second commenter indicated that contractors should be allowed to develop their own statements for incorporation into handbooks. OFCCP disagrees with both of these commenters. By providing the required language, OFCCP significantly reduces the burden of this requirement. The statement as written in the regulations must be included verbatim into existing handbooks. Allowing contractors to develop their own statements would be more burdensome for contractors, requiring additional resources for the development and review of the statement. Moreover, using a uniform statement eliminates confusion about
Section 60-1.35(c)(i) requires contractors to include the nondiscrimination provision in existing employee manuals or handbooks. OFCCP assumes that most contractors (98 percent) maintain these documents electronically.
Section 60-1.35(c)(ii) requires contractors to disseminate the nondiscrimination provision to employees and to job applicants. This dissemination can be executed by electronic posting or by posting a copy of the provision in conspicuous places available to employees and applicants for employment. OFCCP believes that 99 percent of contractors will post the information electronically while 1 percent will post the provision on employee bulletin boards. OFCCP's estimate is that it will take 15 minutes (or 0.25 hours) for contractors posting the provision electronically to prepare and post the provision. Additionally, OFCCP estimates it will take 75 minutes (or 1.25 hours) for contractors posting the provision manually to prepare the provision and post it in conspicuous places available to employees and applicants for employment. Therefore, OFCCP estimates that the time burden of this provision is 130,000 hours ((500,000 contractor companies × 99% × 0.25 hours) + (500,000 contractor companies × 1% × 1.25 hours) = 130,000 hours). The estimated cost of this provision is $4,038,775 ((123,750 hours × 0.25 × $51.58 + 123,750 hours × 0.75 × $24.23) + (6,250 hours × 0.25 × $51.58) + (6,250 hours × 0.75 × $24.23)).
Contractors are required to maintain documentation of other notices; the regulations implementing Executive Order 11246, VEVRAA and Section 503 currently require recordkeeping related to personnel and employment activity.
OFCCP estimates that the combined time burden for becoming familiar with and complying with the final rule is 1,045,000 hours (500,000 hours + 125,000 hours + 290,000 hours + 130,000 hours = 1,045,000 hours).
In addition to the time burden calculated above, OFCCP estimates that contractors will incur operations and maintenance costs, mostly in the form of materials.
OFCCP estimates that 1 percent of contractors (5,000 contractor companies) will incorporate the nondiscrimination provision into their existing hardcopy handbook or manual. OFCCP estimates that these 5,000 contractor companies will incorporate into an existing handbook or manual a single one-page errata sheet that includes the nondiscrimination provision. OFCCP estimates the one-time operations and maintenance cost of this provision is $400 (500,000 contractors × 1% × 1 page × $0.08 = $400).
OFCCP estimates that 1 percent of contractors will inform employees by posting the provision on existing employee bulletin boards. OFCCP assumes that on average these contractors will post the policy on 10 bulletin boards. Therefore OFCCP estimates the operations and maintenance cost of this provision is $4,000 (500,000 contractor companies × 1% × 10 pages × $0.08 = $4,000).
The estimated total first year cost of the final rule is $42,726,188 or $85 per contractor company. Below, in Table 1, is a summary of the burden hours and costs; Table 2 shows the total cost summary for the first year and recurring years.
Executive Order 13563 recognizes that some rules have benefits that are difficult to quantify or monetize but are, nevertheless, important and states that agencies may consider such benefits. This rule, to the extent that it is effective, has equity and fairness benefits, which are explicitly recognized in Executive Order 13563. Enabling the employees and applicants of Federal contractors to discuss their compensation without fear of adverse action can contribute to reducing pay discrimination and ensuring that qualified and productive employees receive fair compensation. OFCCP designed the final rule to achieve these benefits by:
• Supporting more effective enforcement of the prohibition against compensation discrimination.
• Providing better remedies to workers victimized by compensation discrimination.
• Increasing employees' and applicants' understanding of the value of their skills in the labor market.
• Enhancing the ability of Federal contractors and their employees to detect and remediate unlawful discriminatory practices.
Social science research suggests antidiscrimination law can have broad social benefits, not only to those workers who are explicitly able to mobilize their rights and obtain redress, but also to the workforce and the economy as a whole. In general, discrimination is incompatible with an efficient labor market. Discrimination interferes with the ability of workers to find jobs that match their skills and abilities and to obtain wages consistent with a well-functioning marketplace.
For this reason, effective nondiscrimination enforcement can promote economic efficiency and growth. For example, a number of scholars have documented the benefits of the civil rights movement and the adoption of Title VII of the Civil Rights Act of 1964 on the economic prospects of workers and the larger economy.
The Regulatory Flexibility Act of 1980 (RFA) 5 U.S.C. 601
In the NPRM, OFCCP estimated the impact on small entities that are covered contractors of complying with the requirements contained in this final rule, OFCCP certifies that this rule will not have a significant economic impact on a substantial number of small entities. In making this certification, OFCCP determined that all small entities subject to Executive Order 11246 would be required to comply with all of the provisions of the final rule and that the compliance cost would be approximately $85 per contractor. Such compliance requirements are more fully described above in other portions of this preamble. The following section analyzes the cost of complying with Executive Order 13665.
In estimating the annual economic impact of this rule on the economy, OFCCP determined the compliance cost of the rule and whether the costs would be significant for a substantial number of small contractor firms (
The data sources used in the analysis of small business impact are the Small Business Administration's (SBA) Table of Small Business Size Standards,
OFCCP used the following steps to estimate the cost of the proposed rule per small contractor firm as measured by a percentage of the total annual receipts. First, OFCCP used Census SUSB data that disaggregates industry information by firm size in order to perform a robust analysis of the impact on small contractor firms. OFCCP applied the SBA small business size standards to the SUSB data to determine the number of small firms in the affected industries. Then OFCCP used receipts data from the SUSB to calculate the cost per firm as a percent of total receipts by dividing the estimated annual cost per firm by the average annual receipts per firm. This methodology was applied to each of the industries and the results by industry are presented in Tables 3-21 below.
In sum, the increased cost of compliance resulting from the proposed rule is
OFCCP then determined the number of small contractor firms actually affected by the proposed rule. This information is not readily available. The best source for the number of small contractor firms that are affected by this proposed rule is GSA's System for Award Management (SAM). OFCCP used SAM data to estimate the number of affected small contractor firms since SAM data allow us to directly estimate the number of small contractor firms. Federal contractor status cannot be discerned from the SBA firm size data. It can only be used to estimate the number of small firms, not the number of small contractor firms. OFCCP used the SBA data to estimate the impact of the proposed regulation on a “typical” or “average” small firm in each of the 19 industries. OFCCP then assumed that a typical small firm is similar to a small contractor firm. Thus, based on its analysis, OFCCP believes that this rule will not have a significant economic effect on a substantial number of small businesses.
Based on the most current SAM data available, if OFCCP defines small as fewer than 500 employees, then there are 328,552 small contractor firms. If OFCCP defines small as firms with less than $35.5 million in revenues, then there are 315,902 small contractor firms. Thus, OFCCP established the range from 315,902 to 328,552 as the total number of small contractor firms. Of course, not all of these contractor firms will be impacted by the proposed rule; only those contractor firms that have policies
OFCCP has closely reviewed the economic analysis it utilized in the proposed rule and carefully considered all the comments received. Based on its review and consideration, OFCCP has concluded that the method used to conduct the economic analysis in the proposed rule reasonably estimated the annual effect of the rule, based on the data sources available to OFCCP. OFCCP is accordingly adopting the proposed rule's economic analysis for purposes of the final rule.
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
Affected parties do not have to comply with the new information collection requirements under § 60-1.35 until the Department publishes a Notice in the
Executive Order 13665 amends the equal opportunity clause provided in Executive Order 11246 by adding the prohibition that Federal contractors may not discriminate against employees and job applicants who inquire about, discuss or disclose their own compensation or the compensation of other employees or applicants. Federal contractors are required to amend the equal opportunity clauses incorporated into their subcontracts, and notify job applicants and employees of the requirement. Executive Order 13665 became effective at signing and applies to contracts entered into on or after the effective date of this final rule.
The final rule contains several provisions that could be considered “collections of information” as defined by the PRA: The amendment to the equal opportunity clause incorporated into contracts and subcontracts, and the notification given to employees and job applicants.
Proposed § 60-1.35(c)(i) and (ii) required the incorporation of the new provision verbatim into existing handbooks and manuals, and the dissemination of a notification to employees and applications. The disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure is not included within the PRA's definition of “collection of information.”
Each contractor determines its own methods for developing and maintaining information, including creating electronic templates. Contractors may meet the requirements of this rule using paper or electronic means.
OFCCP sought public comments regarding the potential burdens imposed by information collections contained in the NPRM which reflected burden related to the amendment to the equal opportunity clause incorporated into contracts and subcontracts.
OFCCP received 11 comments regarding costs and burdens from employer groups, women's groups, employers and individuals. Of the 11 comments, one stated that the new rule should not incur any significant cost as the language will be prescribed by OFCCP and that the rule eliminates a
Some of the commenters indicated that the rule was unduly burdensome or unnecessary because it had no clear effect on addressing the pay gap. Some of these commenters indicated that the pay gap could be explained by other nondiscriminatory explanations. OFCCP disagrees that the rule is unnecessary and unduly burdensome. OFCCP worked with several other Federal agencies on the National Equal Pay Task Force to identify the persistent challenges to equal pay enforcement and to develop an action plan for implementing recommendations to resolve those challenges. OFCCP also consulted a number of sources in order to assess the need for the rule. For instance, OFCCP reviewed national statistics on earnings by gender produced by BLS and the U.S. Census Bureau. Those statistics show persistent pay gaps for female and minority workers. These well-documented earnings differences based on race and sex have not been fully explained by nondiscriminatory factors including differences in worker qualifications such as education and experience, occupational differences, work schedules or other similar factors. Thus, some of the remaining unexplained portion of the pay gap may be attributable to discrimination. In addition, prohibiting pay secrecy policies will enhance the ability of Federal contractors and their employees to detect and remediate unlawful discriminatory practices. Thus, the rule improves the efficacy of Executive Order 11246 and the efficiency of the market in Federal contracting. In order to reduce the burden of implementing Executive Order 13665, OFCCP allows contractors to incorporate the equal opportunity clause by reference into its subcontracts. In addition, OFCCP is providing specific language for incorporation into handbooks and the notice for applicants and employees. Thus, OFCCP has proposed the most efficient manner to implement the amendments.
Other commenters asserted that OFCCP underestimated the burdens created by the new rule. In this area, one commenter proposed alternative calculations related to the implementation of the rule. In considering the alternative calculations of burden, OFCCP took into consideration that although the commenter represents a segment of the contractor universe, it is not reflective of the entire SAM contractor universe. OFCCP expects the costs to vary by contractor. While some contractors may incur more costs, others will likely incur less. Thus, the estimates of burden reflect an average estimate for all covered contractors in the SAM contractor universe. Therefore, OFCCP has retained its calculation of the burden as proposed in the NPRM. Another commenter indicated that OFCCP did not include burdens associated with the definition of compensation and the impact that the definition proposed in the NPRM may have on Federal contractors. The commenter indicated that OFCCP should take the burden that the compensation definition “will impose on annual evaluations under contractors' identification of problem areas section of their affirmative action programs.” OFCCP disagrees with this commenter's assertion. Contractors are required to perform an in-depth analysis of its total employment process to determine whether and where impediments to equal employment opportunity exist.
One commenter suggested that OFCCP allow contractors discretion regarding the wording of the notice for incorporation in the handbook and posting. In order to reduce burden, OFCCP provides the wording for the notification. As the majority of comments received related to burden were opposed to increasing burden, OFCCP declines to increase burden and instead will provide the exact wording for the notice and language to incorporate into existing employee handbooks.
OFCCP has resubmitted the revised information collection (1250-0008) to OMB for approval, and OFCCP intends to publish a notice announcing OMB's decision regarding this information collection request. A copy of the information collection request can be obtained by contacting OFCCP as shown in the
Comments to the OMB should be directed to: Office of Information and Regulatory Affairs, Attention OMB Desk Officer for the Office of Federal Contract Compliance, Office of Management and Budget, Room 10235, Washington, DC 20503; Telephone: 202-395-7316 (these are not toll-free numbers). Comments can be submitted to OMB by email at
• Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of IT (
All nonexempt Federal contractors with contracts, subcontracts, federally assisted construction contracts or subcontracts in excess of $10,000 are required to comply with this final rule. There are approximately 500,000 contractor firms registered in the General Service Administration's SAM. Therefore, OFCCP estimates there are 500,000 contractor firms.
The estimated total annual burden for complying with the new regulatory requirement is listed in Table 22, below. The burden is calculated as an annual burden based on a three-year approval of this information collection request. OFCCP believes that in the first year of implementation contractors will modify their equal opportunity clauses. Additionally, OFCCP estimates that in subsequent years 1 percent of the contractors will be required to modify
These paperwork burden estimates are summarized as follows:
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.
For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, this rule does not include any Federal mandate that may result in excess of $100 million in expenditures by state, local, and tribal governments in the aggregate or by the private sector.
OFCCP has reviewed this rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” This rule will not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This rule does not have tribal implications under Executive Order 13175 that requires a tribal summary impact statement. The rule does not 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.
The undersigned hereby certifies that the rule would not adversely affect the well-being of families, as discussed under section 654 of the Treasury and General Government Appropriations Act, 1999.
This rule would have no environmental health risk or safety risk that may disproportionately affect children.
A review of this rule in accordance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
This rule is not subject to Executive Order 13211. It will not have a significant adverse effect on the supply, distribution, or use of energy.
This rule is not subject to Executive Order 12630 because it does not involve implementation of a policy that has takings implications or that could impose limitations on private property use.
This rule was drafted and reviewed in accordance with Executive Order 12988 and will not unduly burden the Federal court system. The rule was: (1) reviewed to eliminate drafting errors and ambiguities; (2) written to minimize litigation; and (3) written to provide a clear legal standard for affected conduct and to promote burden reduction.
Civil rights, Employment, Equal employment opportunity, Government contracts, Government procurement, Investigations, Labor, Reporting and recordkeeping requirements.
Accordingly, part 60-1 of title 41 of the Code of Federal Regulations is amended as follows:
Sec. 201, E.O. 11246, 30 FR 12319, 3 CFR, 1964-1965 Comp., p. 339, as amended by E.O. 11375, 32 FR 14303, 3 CFR, 1966-1970 Comp., p. 684, E.O. 12086, 43 FR 46501, 1978 Comp., p. 230 and E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258, E.O. 13665, 79 FR 20749 and E.O. 13672, 79 FR 42971.
(2) A job function may be considered essential if:
(i) The access to compensation information is necessary in order to perform that function or another routinely assigned business task; or
(ii) The function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information.
(3) The application or interpretation of the “essential job functions” definition in this part is limited to the discrimination claims governed by Executive Order 13665 and its implementing regulations.
(a)
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance:
(b)
The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 CFR Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their
Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work:
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
(2) [Reserved]
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(1) The nondiscrimination provision shall be incorporated into existing employee manuals or handbooks; and
(2) The nondiscrimination provision shall be disseminated to employees and applicants. Dissemination of the provision shall be executed by electronic posting or by posting a copy of the provision in conspicuous places available to employees and applicants for employment.
Pension Benefit Guaranty Corporation.
Final rule.
In 2013, PBGC proposed to establish risk-based safe harbors that would exempt most companies and plans from many of its reportable events requirements and target reporting toward the minority of plan sponsors and plans presenting the most substantial risk of involuntary or distress termination. After holding a hearing on the proposal, and carefully considering the public's written and oral comments, PBGC is publishing this final rule to make the requirements of the sponsor risk-based safe harbor more flexible, make the funding level for satisfying the well-funded plan safe harbor lower and tied to the variable-rate premium, and add public company waivers for five events. The waiver structure under the final rule will further reduce unnecessary reporting requirements, while at the same time better targeting PBGC's resources to plans that pose the greatest risks to the pension insurance system. PBGC anticipates the final rule will exempt about 94 percent of plans and sponsors from many reporting requirements and result in a net reduction in reporting to PBGC. This rulemaking is a result of PBGC's regulatory review under Executive Order 13563.
Effective October 13, 2015. See Applicability in
Daniel S. Liebman, Attorney (
This rule is needed to make reporting more efficient and effective, to avoid unnecessary reporting requirements, and to conform PBGC's reportable events regulation to changes in the law. A better-targeted and more efficient reporting system helps preserve retirement plans.
PBGC's legal authorities for this action are section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), which authorizes PBGC to issue regulations to carry out the purposes of title IV of ERISA, and section 4043 of ERISA, which gives PBGC authority to define reportable events and waive reporting.
Under the regulation's long-standing waiver structure for reportable events, which primarily focused on the funded status of a plan, PBGC often did not get reports it needed; at the same time, it received many reports that were unnecessary. This mismatch occurred because the old waiver structure was not well tied to the actual risks and causes of plan terminations, particularly the risk that a plan sponsor will default on its financial obligations, ultimately leading to an underfunded termination of its pension plan.
The final rule provides a new reportable events waiver structure that is more closely focused on risk of default than was the old waiver structure. Some reporting requirements that poorly identify risky situations—like those based on a supposedly modest level of plan underfunding—have been eliminated; at the same time, a new low-default-risk “safe harbor”—based on company financial metrics—is established that better measures risk to the pension insurance system. This sponsor safe harbor is voluntary and based on existing, readily-available financial information that companies already use for many business purposes.
With the low-default-risk safe harbor, PBGC is establishing a risk tolerance level for certain events faced by plans and plan sponsors that trigger reporting requirements so that PBGC can monitor and address situations that are most likely to pose problems to the pension insurance system. This reporting system is analogous to that used by an unsecured creditor in loan arrangements with a borrower so as to be alerted to important issues facing the borrower impacting its ability to meet its loan obligations.
The final rule also provides a safe harbor based on a plan's owing no variable-rate premium (VRP) (referred to as the well-funded plan safe harbor).
The rule simplifies the descriptions of several reportable events and makes some event descriptions (
The Pension Protection Act of 2006 (PPA) made changes in the law that affect the test for whether advance reporting of certain reportable events is required. This rule conforms the advance reporting test to the new legal requirements.
The rule makes electronic filing of reportable events notices mandatory. This furthers PBGC's ongoing implementation of the Government Paperwork Elimination Act. E-filing is more efficient for both filers and PBGC and has become the norm for PBGC's regulated community.
The Pension Benefit Guaranty Corporation (PBGC) administers the pension plan termination insurance program under Title IV of the Employee Retirement Income Security Act of 1974 (ERISA). Section 4043 of ERISA requires that PBGC be notified of the occurrence of certain “reportable events.” The statute provides for both post-event and
Reportable events include such plan events as missed contributions, insufficient funds, and large pay-outs, and such sponsor events as loan defaults and controlled group changes—events that may present a risk to a sponsor's ability to continue a plan. When PBGC has timely information about a reportable event, it can take steps to encourage plan continuation—for example, by exploring alternative funding options with the plan sponsor—or, if plan termination is called for, to maximize recovery of the shortfall from all possible sources.
Reportable events are rare and reporting is often waived. As a result, each year, on average only 4 percent of plans experience an event
On November 23, 2009 (at 74 FR 61248), PBGC published in the
PBGC received comments from actuaries, pension consultants, and organizations representing employers and pension professionals. The public comments on the 2009 proposal uniformly opposed the proposed elimination of most waivers. Commenters said that without the waivers, reporting would be required for events that posed little risk to PBGC and said that the increase in the public's burden of compliance would outweigh the benefit to the pension insurance system of the additional reporting. They also expressed concern that the proposed changes to the rule would discourage employers from continuing to maintain pension plans covered by Title IV. Several commenters urged PBGC to rethink and repropose the rule to address issues raised by the comments.
On January 18, 2011, the President issued Executive Order 13563 on Improving Regulation and Regulatory Review (76 FR 3821, January 21, 2011). Executive Order 13563 encourages identification and use of innovative tools to achieve regulatory ends, calls for streamlining existing regulations, and reemphasizes the goal of balancing regulatory benefits with burdens on the public. Executive Order 13563 also requires agencies to develop a plan to review existing regulations to identify any that can be made more effective or less burdensome in achieving regulatory objectives.
PBGC reconsidered the reportable events regulation in the spirit of Executive Order 13563 and in light of the comments to the 2009 proposal. On April 3, 2013 (at 78 FR 20039), PBGC published a new proposed rule (the 2013 proposal). The 2013 proposal took a very different approach to waivers from the 2009 proposal. Whereas the 2009 proposal simply eliminated most automatic waivers, the 2013 proposal substituted a new system of waivers (safe harbors) to reduce burden where possible without depriving PBGC of the information it needs to protect the pension insurance system.
One of the waivers in the 2013 proposal was for employers that met a safe harbor based on what the proposal described as sponsor financial soundness (
PBGC received 13 comment letters on the 2013 proposal, mainly from the same sources as the comments on the 2009 proposal.
Most of the commenters on the 2013 proposal expressed appreciation for PBGC's re-proposing the rule and for the opportunity for further public input. Several commenters complimented PBGC on its general overall effort or said the 2013 proposal was an improvement on the 2009 proposal. One commenter approved PBGC's efforts to balance its need for information with the public's burden of providing it and to streamline the reporting process. Another commenter applauded PBGC on its common sense, risk-based approach to reporting, and yet another commended PBGC for the proposed rule's significant relief for small plans, as well as the general focus on tying reporting to risk.
Nonetheless, all of the commenters took issue with aspects of the proposal, particularly with the safe harbors, which four commenters suggested could cause more sponsors to leave the defined benefit system. Other concerns dealt with the difficulty of monitoring events in controlled groups and with proposed changes to the events dealing with active participant reductions and missed contributions. Some plan sponsor groups expressed general concern that by creating a plan sponsor financial soundness safe harbor, PBGC, on behalf of the Federal government, inevitably would become an entity that makes formal pronouncements on the financial prospects of American businesses. Two commenters urged that the proposal be withdrawn. The comments on the 2013 proposal and PBGC's responses are discussed below with the topics to which they relate.
In response to the comments, PBGC is issuing a final rule with safe harbors that are simpler, more flexible, and easier to comply with and that clearly target risk to the pension insurance system.
As a result, if a reportable event occurs, 94 percent of all plans will qualify for at least one waiver under the final regulation (an increase from 89 percent under the old regulation):
To address the issue of risk, the 2013 proposal provided a risk-based safe harbor tied to the risk of default on financial obligations of a plan sponsor. PBGC developed the proposed safe harbor based on its experience that the default risk of a plan sponsor generally correlates with the risk of an underfunded termination of the sponsor's pension plan. One major component of the risk of underfunded termination is the likelihood that the plan sponsor will, within the near future, fall into one of the “distress” categories in section 4041(c)(2)(B) of ERISA (liquidation, reorganization, or inability to pay debts when due and to continue in business). Another is that the sponsor will go out of business, abandoning the plan and forcing PBGC to terminate it under section 4042 of ERISA. Thus, the 2013 proposal recognized that the risk of underfunded termination of a plan within the near future depends most significantly on the plan sponsor's financial strength.
The 2013 proposal provided a waiver from reporting for each of five events (active participant reductions, substantial owner distributions, controlled group changes, extraordinary dividends, and benefit liabilities transfers) if, as of the date an event occurred, each contributing sponsor (or highest US member of its controlled group) was what the proposal termed “financially sound,” that is, had adequate capacity to meet its obligations in full and on time as evidenced by its satisfaction of five criteria:
1. The entity had a qualifying commercial credit report score.
2. The entity had no secured debt (with certain exceptions).
3. The entity had positive net income for the most recent two fiscal years.
4. The entity did not experience any loan default event in the previous two years (regardless of whether reporting was waived).
5. The entity did not experience a missed contribution event in the previous two years (unless reporting was waived).
To focus public input on this issue, the 2013 proposal asked specific questions about the financial soundness standard and sought suggestions for alternative approaches to determining financial soundness based on widely available and accepted financial standards.
One commenter found the sponsor financial soundness safe harbor to be a reasonable attempt to accomplish the goal of providing broad waivers in situations where there is no significant risk to PBGC. But most commenters opposed the safe harbor as a concept, arguing that it would not be business-friendly or helpful in protecting the pension insurance system. Some commenters characterized the financial soundness test as a pronouncement by PBGC on the financial status of American businesses, which they believed to be inappropriate for a government agency.
However, many federal agencies have rules that include standards for measuring aspects of financial health or ability to meet certain financial obligations for a wide variety of purposes, including eligibility to use certain forms, qualification for funding, or participation in certain activities. These regulations govern not only the financial services industry, but such wide-ranging activities as agriculture, education, energy, and the environment.
PBGC understands that the proposed “financial soundness” terminology caused concern for some commenters, who perceived that the provisions of the safe harbor tests could be seen as measuring the overall financial prospects of a company. However, the safe harbor tests were never meant for that purpose. Rather, they were intended to measure the likelihood that a company would be able to continue to sponsor a plan and thus not present a risk to the pension insurance system. To clarify this point, the final regulation more precisely characterizes this safe harbor as the company low-default-risk safe harbor rather than the sponsor financial soundness safe harbor, and refers to a safe harbor for plans (described below) as the well-funded plan safe harbor rather than the plan financial soundness safe harbor.
PBGC's company low-default-risk safe harbor is entirely voluntary and relies mainly on private-sector financial metrics derived from a company's own financial information; one component of the safe harbor, which is not required to be used to satisfy the low-default-risk standard, is based on widely available financial information that most plan sponsors (and their U.S. parents) already have, and that represents well-known, objective, non-governmental assessments of default risk used in a wide variety of business contexts. Use of the safe harbor is not conditioned on an evaluation by PBGC of plan sponsor financial soundness. Nor does it involve sponsors' reporting to PBGC (or anyone) any financial metrics, such as company financial information, credit scores or other evidence of creditworthiness.
PBGC remains convinced that adding a company low-default-risk safe harbor to the reportable events regulation furthers PBGC's goals of tying reporting to risk and avoiding unnecessary reports. Thus, the final rule contains a risk-based safe harbor with modifications to mitigate commenters' concerns, particularly by providing more flexibility in applying the safe harbor and clarifying when and how the satisfaction of the low-default-risk standard is determined.
The final rule provides that an entity (a “company”) that is a contributing sponsor of a plan or the highest level U.S. parent of a contributing sponsor satisfies the low-default-risk standard if the company has adequate capacity to meet its obligations in full and on time as evidenced by satisfying either (A) the first two, or (B) any four, of the following seven criteria:
1. The probability that the company will default on its financial obligations is not more than 4 percent over the next five years or not more than 0.4 percent over the next year, in either case determined on the basis of widely available financial information on the company's credit quality.
2. The company's secured debt (with some exceptions) does not exceed 10 percent of its total asset value.
3. The company's ratio of total-debt-to-EBITDA
4. The company's ratio of retained-earnings-to-total-assets is 0.25 or more.
5. The company has positive net income for the two most recent completed fiscal years.
6. The company has not experienced any loan default event in the past two years regardless of whether reporting was waived.
7. The sponsor has not experienced a missed contribution event in the past two years unless reporting was waived.
For reporting to be waived for an event to which the safe harbor applies, both the contributing sponsor and the highest level U.S. parent of the contributing sponsor must satisfy the company low-default-risk safe harbor. (The 2013 proposal required only that, for each contributing sponsor of the plan, either the sponsor or the highest level U.S. parent of the contributing sponsor satisfy the safe harbor requirements.) Requiring that both entities satisfy the safe harbor requirements addresses the issue of intercompany transactions between or among members of a controlled group that may disperse assets and liabilities within the controlled group.
Although the low-default-risk safe harbor has some similarities with standards PBGC described in its 2013 guidelines concerning enforcement of ERISA section 4062(e),
The final rule revises two criteria (probability of default in the first criterion and secured debt level in the second criterion) from the 2013 proposal and adds two new criteria (based on a ratio of total-debt-to-EBITDA described in the third criterion listed above and a ratio of retained-earnings-to-total-assets described in the fourth criterion listed above). PBGC selected these four criteria based on historical data on rates of company defaults on financial obligations from widely published financial information.
To make the safe harbor user-friendly, the final rule provides that a company determine whether it qualifies for the low-default-risk safe harbor once during an annual financial reporting cycle (on a “financial information date”). If it qualifies on that financial information date, its qualification remains in place throughout a “safe harbor period” that ends 13 months later or on the next financial information date (if earlier).
The description of financial information used to determine whether the safe harbor is available is similar to that used in PBGC's regulation on Annual Financial and Actuarial Information Reporting.
For a company that does not have annual financial statements, the financial information date is the date the company files with the Internal Revenue Service (IRS) its annual federal income tax return or IRS Form 990.
The final regulation refers to the annual financial statements or applicable IRS return or Form 990 associated with a financial information date as “supporting financial information.” The supporting financial information associated with a financial information date will also be used to evaluate whether the secured debt, EBITDA-to-total-debt, and/or retained-earnings-to-total-assets criteria are met. To evaluate whether the positive net income criterion is met, supporting financial information associated with the two most recent consecutive fiscal years must be used.
If an accountant's audit or review report expresses a material adverse view or qualification, the company will not satisfy the low-default-risk standard for the safe harbor. Common adverse qualifiers used in the accounting profession that will render supporting financial information unsatisfactory for purposes of the safe harbor include such language as “awareness of one or more material modifications that should have been made in order for the financial statements to be in conformity with [applicable accounting standards]”; “the financial statements do not present fairly, in all material respects, the company's financial condition and results of operations in conformity with [applicable accounting standards]”; or “substantial doubt about the company's ability to continue as a going concern for a reasonable period of time.”
To satisfy the criterion for the company financial soundness safe harbor under the 2013 proposal, a company needed to have a credit score, reported by a commercial credit reporting company (CCRC) commonly used in the business community, that indicated a low likelihood that the company would default on its obligations over the next twelve months. Examples of such scores were to be listed in PBGC's reportable events forms and instructions.
Seven commenters were critical of the commercial credit score criterion. Most of these commenters opposed the use of the score as a criterion altogether, while some indicated that the use of credit scores or similar information would be acceptable in limited circumstances if it were voluntary. Some concerns raised by commenters centered on the extent to which companies pay attention or have access to CCRC scores. Large public companies typically are more familiar with their credit ratings from nationally recognized statistical rating organizations (NRSROs) registered with the SEC, and some small companies may not have CCRC scores. Other concerns included costs associated with obtaining or monitoring scores, inaccurate score data, and a lack of specificity as to how and when PBGC would update its forms and instructions with valid CCRC score examples.
The final regulation addresses these concerns. Under the final rule's company low-default-risk safe harbor provision, the criterion that corresponds to the proposed CCRC score criterion is optional. In addition, CCRC scores are not the exclusive benchmark for satisfying that new criterion. Instead, companies are not limited to using particular reports or tools and are afforded broad flexibility to use widely available business metrics that measure default probability. This approach avoids the need to list and update examples of scores in PBGC's forms and instructions.
Under the final rule, the first criterion (referred to as the “commercial measures” criterion) will be met for a company if the probability that the company will default on its financial obligations is not more than 4 percent over the next five years or not more than 0.4 percent over the next year, in either case determined on the basis of widely available financial information on the company's credit quality—not limited to CCRC scores. PBGC's intent is to provide flexibility to companies in meeting the standard and allow a company to determine whether it satisfies the new criterion by referring to third party information that the company considers reliable and already uses with confidence for other business purposes. Thus, the final rule does not require the use of a CCRC score to satisfy the commercial measures criterion (although a company may still choose to obtain a CCRC score if it does not have one, as contemplated in the 2013 proposal).
The commercial measures standard replicates the underlying probability of default risk reflected in the CCRC score standard under the 2013 proposal
PBGC believes that almost every sponsor and its highest level U.S. parent will be able to obtain widely available financial information that indicates their probability of default over either a one- or five-year period. Typical metrics (from 2013) that would meet the probability-of-default standard include a D&B score of 1477, risk class of 3, or percentile of 46-55; a CreditRiskMonitor
In crafting the revised commercial measures criterion, PBGC reviewed language used in a recent final rule designed to bring a Department of Treasury regulation into compliance with the Dodd-Frank Act.
“Sec. 1.249-1 Limitation on deduction of bond premium on repurchase: (e)(2)(ii) In determining the amount under paragraph (e)(2)(i) of this section, appropriate consideration shall be given to all factors affecting the selling price or yields of comparable nonconvertible obligations. Such factors include general changes in prevailing yields of comparable obligations between the dates the convertible obligation was issued and repurchased and the amount (if any) by which the selling price of the convertible obligation was affected by reason of any change in the issuing corporation's credit quality or the credit quality of the obligation during such period (
One of the commenters requested that PBGC provide relief from information penalties if a company relies on a CCRC score that turns out to be inaccurate or stale. PBGC believes such relief is unnecessary under the final rule because a company may choose a measure that the company knows is accurate, or the company may choose to satisfy the low-default-risk safe harbor in other ways.
Under the 2013 proposal, one of the criteria required to satisfy the sponsor financial soundness standard was that the entity had no secured debt, disregarding leases or debt incurred to acquire or improve property and secured only by that property (
Two commenters stated that a plan sponsor's use of secured debt is not appropriate as a measure of the plan sponsor's financial health because, as PBGC acknowledged in the 2013 proposal, a financially healthy company may obtain secured debt for a variety of business reasons that do not relate to the credit risk of the company, such as to obtain favorable interest rates or because the company has assumed the debt from an entity it acquires.
These comments gave PBGC a better appreciation for how widespread a practice it is for creditworthy companies to obtain secured debt. Under the final rule, the criterion will be satisfied if a company's secured debt (disregarding leases or debt incurred to acquire or improve property and secured only by that property) does not exceed 10 percent of the company's total assets.
PBGC was reluctant to try to predict the types of secured debt that low-risk borrowers would be more likely to have than higher-risk borrowers. The 10 percent threshold included in the criterion serves to make a simple allowance for secured debt that good credit quality businesses may have. In addition, PBGC's experience is that approximately 90 percent of companies that would meet the commercial measures criterion of the safe harbor do not have a ratio of secured-debt-to-total-assets above 10 percent.
Another criterion for the sponsor financial soundness safe harbor in the 2013 proposal was that the company had positive net income for the past two years. (For non-profit entities, “net income” was to be measured as the excess of total revenue over total expenses as required to be reported on Internal Revenue Service Form 990.)
Four commenters raised issues regarding the positive net income criterion. Two commenters stated that the requirement did not necessarily
PBGC did not revise this criterion in the final rule in response to the commenters' concerns about non-cash accounting losses. Net income measures the economic value a company creates over the measurement period, and a lack of net income is one indication of risk that a company may lack the resources to fulfill its obligations. Because non-cash losses (as well as non-cash gains) are components of such economic value, PBGC considers it appropriate not to exclude non-cash charges from the net-income criterion.
The description of the net-income criterion in the 2013 proposal indicated that net income was to be measured under generally accepted accounting principles (GAAP) or International Financial Reporting Standards (IFRS) standards. PBGC included GAAP and IFRS in the 2013 proposal to provide rigorous and widely-used accounting standards for determining net income and because some companies may need to comply with IFRS as a result of the international scope of their operations. One commenter stated that because GAAP and IFRS are not compatible standards, two similarly situated companies might have different reporting requirements. PBGC has addressed this concern by eliminating the references to GAAP and IFRS in the final rule.
Another commenter said that a company might not know net income for the prior fiscal year when an event occurs, making it impossible to determine whether the safe harbor was available. The final rule addresses this concern by providing that the low-default-risk safe harbor is satisfied on a financial information date (discussed above) rather than on a date an event occurs.
One commenter said that the net-income criterion was unfair because it could not be satisfied by financially healthy companies in cyclical industries or companies that experience rare and significantly adverse events, such as a natural disaster. As also explained in
One commenter objected to the application of the criterion to non-profits as inconsistent with the nature of non-profit organizations. PBGC disagrees. A non-profit may have positive net income that does not jeopardize its non-profit status, so long as the income is related to the non-profit's purpose and is not distributed to the non-profit's officers, directors, or others connected to the non-profit. In fact, many large non-profits with defined benefit plans, such as certain hospital systems, have substantial net income. Thus, PBGC does not view this criterion to be inconsistent with non-profit operating realities.
The 2013 proposal contained two other financial soundness safe harbor criteria, which were intended to supplement and confirm the general picture of financial soundness painted by the satisfaction of the credit report test. These criteria were:
• For the past two years, the company had no missed contribution events, unless reporting was waived.
• For the past two years, the company had no loan default events, whether or not reporting was waived.
Two commenters urged PBGC to disregard for purposes of the missed contribution criterion a missed contribution that occurred because of a missed or untimely funding balance election or because of a mandatory reduction of a funding standard carryover balance or prefunding balance. The latter can retroactively create a late quarterly contribution that may not be known of by the reporting deadline.
As discussed in the
One of these commenters also requested that PBGC clarify that late contribution reporting under section 303(k) (for amounts over $1 million) would not be considered when making the determination of whether the criterion was met. PBGC declined to make this change. Having unpaid contributions exceeding $1 million is too serious a deficit to ignore and in PBGC's view, not consistent with adequate capacity to meet one's obligations.
One commenter asked that PBGC make an exception to the no-loan-default criterion to excuse “meaningless technical defaults” that are not indicative of any financial challenges. As explained in detail in the
In addition to giving companies the ability to satisfy the low-default-risk safe harbor by various combinations of criteria, the final rule includes two additional criteria available for companies to use. Both of these new criteria are financial metrics that are easily derived from standard financial information.
One of these criteria is based on the ratio of total-debt-to-EBITDA. This ratio is commonly referred to as a leverage ratio and is used to assess a company's ability to meet its debt obligations. Companies with a ratio of total-debt-to-EBITDA of 3.0 or less correspond fairly closely with those that would satisfy the
The other new criterion is based on the ratio of retained-earnings-to-total-assets. To satisfy this criterion, a company must have a ratio of retained-earnings-to-total-assets of 0.25 (one-to-four) or more. PBGC included this safe harbor criterion because it shows how much of a company's assets have been financed with the company's profits. In PBGC's experience, companies with high retained earnings tend to have higher profitability and/or a longer operating history that enables the accumulation of retained earnings—qualities that indicate the ability to meet financial obligations. Analysis of information available to PBGC suggests that companies that would meet the commercial measures criterion have an average ratio of retained-earnings-to-total-assets of at least 0.25.
The old regulation had waivers based on several different measures of funded status, sometimes combined with other factors such as public company status. The 2013 proposal also used plan funding as a basis for relief from filing requirements, but with two different measures, both of which were to apply to the same five events as the company risk-based safe harbor (active participant reductions, substantial owner distributions, controlled group changes, extraordinary dividends, and benefit liabilities transfers). Reporting was to be waived if the plan was either fully funded on a termination basis or 120 percent funded on a premium basis (determined, in either case, using prior-year data).
In the preamble to the 2013 proposal, PBGC explained that from its perspective, it is more appropriate to measure plan funding levels using termination-basis assumptions than ongoing-plan assumptions because termination liability is a better measure of the financial impact of plan termination on PBGC and participants.
Nine commenters on the 2013 proposal criticized the plan financial soundness safe harbor because the required funding ratios were unrealistically high. The commenters also generally opposed basing a safe harbor on termination-basis liability since few plans ordinarily make that determination. Three commenters also said that funding at 100 percent of termination liability could create a risk of excise tax liability.
After consideration of the comments, PBGC is persuaded that a well-funded plan safe harbor based on termination-basis liability would be unnecessarily burdensome for most plans—especially if the threshold remained at 100 percent—and would give reporting relief to few plans. Thus, the final rule eliminates the test for the well-funded plan safe harbor based on termination-basis liability.
PBGC is also persuaded that a well-funded plan safe harbor based on 120 percent funding on a premium basis is not helpful to most plans since plans are not likely to fund that high, despite PBGC's belief that such a level of funding would better reflect the risk to the pension insurance system. After considering various levels of funding as suggested by commenters, PBGC concluded that 100 percent funding—meaning a plan would pay no variable-rate-premium (VRP)—is a realistic and reasonable goal and strikes an appropriate balance between the burden of reporting and PBGC's need for information to protect the pension insurance system. Thus, the well-funded plan safe harbor in the final rule applies if the plan owed no VRP for the plan year preceding the event year.
This safe harbor is less protective of the pension insurance system because, among other reasons, liabilities measured on an on-going basis are generally lower than liabilities measured on a termination basis, and for premium purposes, only vested liabilities are counted. Thus, PBGC anticipates that it will not receive some potentially useful reports. However, PBGC accepts this trade-off in the interest of addressing sponsor and plan concerns.
The 2013 proposal looked to the VRP data for the year before the event year to determine whether a plan qualified for the safe harbor. One commenter suggested that PBGC allow plans that did not meet the test with prior year premium information to meet the test based on current year premium information, if available by the date an event occurs. Under this approach, a calendar-year plan with a reportable event in November 2014 could determine its eligibility for the waiver based on its 2014 VRP filing, instead of its 2013 VRP filing.
After consideration of the comment, PBGC is not accepting this suggestion. PBGC does not want to lose reports from plans when funding improves without gaining reports from plans whose funding deteriorates. Yet PBGC does not want to require all plans to reassess qualification for the safe harbor when VRP data become available. Basing the safe harbor on prior year premium information keeps the safe harbor simple and predictable; plans will know for certain prior to year-end whether they will qualify for the safe harbor for the entire next plan year.
The 2013 proposal gave small plans a filing extension—for events to which this plan financial soundness safe harbor applied—until one month after the prior year's premium filing due date (
The 2013 proposal included small-plan waivers for five events, as compared to two events under the old regulation. One commenter specifically commended PBGC for expanding the availability of small plan waivers. The final rule changes the small-plan category from fewer than 100 participants to 100 participants or fewer for consistency with PBGC's recent premium final rule. Otherwise, the small-plan waiver is unchanged from the 2013 proposal.
The old regulation contained a limited public company waiver for reporting controlled group change and
The 2013 proposal did not include a reporting waiver for public companies. One commenter urged PBGC to exempt public company sponsors from reportable events requirements entirely. This commenter asserted that because publicly-traded companies already report significant events on their SEC filings, there is no reason for them to provide duplicative filings to PBGC.
In evaluating the commenter's suggestion, PBGC reviewed SEC reporting requirements and reportable event notices to determine the extent to which PBGC could get timely and relevant information from SEC filings that could substitute for reportable events filings.
The public company waiver does not apply to other events because PBGC found that for those events SEC filings would not necessarily provide adequate and timely information. For instance, SEC rules do not require specific reporting of ERISA events, such as an inability to pay benefits when due or a missed contribution, on SEC Form 8-K unless the events would be considered material to investor decisions,
Similarly, corporate events such as loan default and liquidation events may not be disclosed in SEC filings because the information is not considered material to investors (and thus not required to be reported under SEC rules).
There is no need for a public company waiver for the insolvency event in the final regulation (Bankruptcy or Similar Settlements under the old regulation), since the new event description excludes Bankruptcy Code filings, and public company insolvencies are handled through proceedings under the Bankruptcy Code.
The public company waiver's requirement of actual disclosure (and not mere public company status) is consistent with the requirement of actual disclosure for public company extensions under the old regulation. Such extensions are no longer necessary because all public companies will be waived from reporting these events so long as the event is actually disclosed.
The old regulation provided reporting waivers for several events where the entity or entities involved in the event were foreign entities or represented a
With respect to
One commenter raised concerns about the difficulty in monitoring members of complex controlled groups for reportable events, particularly for the
Similar issues existed under the old regulation. Nonetheless, the final rule makes changes from the proposal to addresses these concerns and minimizes burden for plans that experience events involving controlled groups in a number of ways. The final rule:
• Includes public company waivers for five events.
• Clarifies that the company low-default-risk safe harbor (which also applies to controlled group changes and extraordinary dividends) requires satisfaction by a contributing sponsor and the highest level U.S. parent of the contributing sponsor, not by the whole controlled group or by the contributing sponsor or highest level U.S. parent alone.
• Provides that satisfaction of the low-default-risk safe harbor is based on a single point in time during an annual financial cycle rather than determination after each of one or more events during a year.
Besides those changes in the final rule, the exclusion of proceedings under the Bankruptcy Code from the insolvency event description in the final rule (as in the 2013 proposal) will obviate most reporting of insolvency cases that involve controlled groups, since most such companies will go through federal bankruptcy proceedings in the event of insolvency.
The final regulation (like the proposal) provides relief from monitoring smaller controlled group members (through the
As discussed in the 2013 proposal, PBGC reviewed loan agreements to better understand the concerns of commenters on the 2009 proposal about the effect of the proposal on loan agreements.
PBGC sought further feedback from the public on this issue in the 2013 proposal and asked that commenters provide copies of relevant loan agreements and information about the number and circumstances of plan sponsors that have experienced default or suffered other adverse consequences related to loan agreements as a result of a reportable event. No such documentation was received.
One commenter on the 2013 proposal said that since the 2009 proposal, many companies already have renegotiated agreements to provide that the occurrence of a reportable event that is not automatically waived is an event of default only if the event could result in a certain amount of financial liability or could have a material adverse effect on the borrower. But the commenter went on to say that a material adverse effect clause does not provide clarity as to when the clause actually has been or could be triggered. A second commenter, while agreeing with PBGC that in most cases, a non-waived reportable event will not result in an automatic default, said it is the creditor who determines whether the event results in material adverse effect.
Two commenters urged PBGC to retain the old reportable events regulation because companies have taken the regulation's provisions into account in contracting with not only lenders but also with employee benefit plan investors (who invest in swaps and futures agreements).
Moreover, reportable events notices are designed to give PBGC notices of events that could impair the payment of a debt (
Although PBGC's understanding of the impact of the regulation on loan agreements has not changed, PBGC believes that the changes made in this final rule should assuage commenters' concerns in this area. The final rule provides more waivers than under the 2013 proposal. PBGC anticipates that about 94 percent of plans covered by PBGC will qualify for at least one waiver under the active participant reduction, controlled group change, extraordinary dividend, benefit liability transfer, and substantial owner distribution event provisions. Along with missed contribution events (which PBGC does not expect to be reported in greater numbers under the final rule), these five events accounted for over 90% of filings between 2012 and 2014. Thus, with more waivers covering the most common events, sponsors will be better off under the new regulation than under the old regulation, and PBGC expects an overall net reduction in reporting under the final rule (see discussion in
The next sections of the preamble address specific event descriptions, which can impact reporting requirements in much the same way as waivers. The final rule follows the 2013 proposal that reporting of an insolvency event is required only when a member of a plan's controlled group is involved in insolvency proceedings that are not under the federal Bankruptcy Code) and makes no changes in event descriptions that were not addressed in the 2013 proposal.
Under ERISA section 4043(c)(3), in general, a reportable active participant reduction occurs when the number of active participants is reduced below 80 percent of the number at the beginning of the year or below 75 percent of the number at the beginning of the prior year.
Creeping losses of active participants may cross the two percentage thresholds at different times in one year. The 2009 proposal added a reporting waiver to limit reporting to once a year on the premise that PBGC would monitor for at least a year any plan that reported an active participant reduction.
The 2013 proposal introduced a new approach to reporting active participant reductions. It distinguished between rapid reductions—which would have to be reported immediately—and slower reductions attributable to attrition—which would have to be tested for and reported only once a year. This approach addressed a comment on the 2009 proposal requesting relief from the need to monitor constantly for creeping active participant reductions that might exceed one of the percentage thresholds. Because the attrition event can occur only once a year, PBGC eliminated the 2009 proposal's waiver from reporting subsequent active participant reduction event notices after the first such event in the same year was reported. PBGC reasoned that quick drops in the number of active participants should be easy to spot without exercising unusual vigilance.
Under the 2013 proposal, a “quick” active participant reduction event would occur when the reporting threshold was crossed either within a single 30-day period (a short-period event) or as a result of a single cause (a single-cause event), such as the discontinuance of an operation, a natural disaster, a reorganization, a mass layoff, or an early retirement incentive program. An attrition event would occur if the active participant count at the end of a plan year fell below one of the percentage thresholds. A 120-day reporting extension beyond the end of the year would provide time to count active participants.
The final rule generally tracks the 2013 proposal but eliminates the short-period event (as one commenter requested), lengthens the reporting extension for attrition events, and makes some minor editorial changes for clarification. PBGC concluded that the burden of monitoring for short-period events would outweigh the value of short-period event reports, since most short-period events would likely also be either single-cause events or eventually captured in an attrition-event filing. In addition, PBGC decided to extend the reporting deadline for attrition events until the premium due date for the plan year following the event year.
Two commenters requested reinstatement of the waiver of reporting more than once a year from the 2009 proposal, or clarification of when more frequent reporting would be required. As explained above, the “once-a-year” waiver is no longer necessary for creeping active participant losses because the attrition event can arise only once a year. And after consideration, PBGC has concluded that it cannot adequately monitor plans for multiple rapid active participant reduction events in the same year. Further, two or more distinct events in the same year could signal extreme financial distress that merit timely reporting to PBGC. Thus the “once-a-year” waiver is not in the final rule.
Two commenters suggested exempting frozen plans from the active participant reduction event or waiving reporting unless plan liabilities increased (as from a triggering of shut-down benefits). PBGC has not adopted these suggestions. Although the active participant reduction event may be more easily triggered for a frozen plan, such plans can pose just as much risk to the pension insurance system as plans that are not frozen.
One commenter asked for a waiver or extension of the requirement to report active participant reductions caused by natural disasters. The issue here would appear to apply equally to all reportable events, but even limiting the proposal to the active participant reduction event, PBGC is concerned that the occurrence of a disaster may increase, rather than obviate, the importance of timely reporting because a natural disaster may have a lasting negative impact on the ability of a business to continue operating. Thus, PBGC is providing no special rules for disasters in the final rule. Note, however, that in appropriate cases, PBGC issues disaster relief notices that provide temporary relief from reporting requirements.
One commenter wanted PBGC to waive reporting of active participant reductions due to spinoffs within a controlled group. PBGC sees no more reason to waive reporting where there is an intra-group spinoff than where there is no spinoff. The loss of active participants is of concern itself, regardless of cause. Further, such a spin-off may be a precursor to the transfer of benefit liabilities outside the controlled group. Accordingly, no such waiver is provided in the final rule, though case-by-case waivers are available.
Finally, this commenter also questioned the utility of reports of active participant reduction events, suggesting that PBGC is unaffected by active participant reductions and takes no action on a report of such an event unless accompanied by some other event. PBGC disagrees with this assessment. Notices of active participant reductions (which often result from business restructurings) give PBGC a chance to intervene to protect plan assets when a restructuring fails and plan termination becomes a significant possibility.
Under the old regulation (§ 4043.25), a missed contribution event occurs when a plan sponsor fails to make any required plan contribution by its due date.
The final rule (like the 2009 and 2013 proposals) clarifies the language in § 4043.25. This reportable event does not apply only to contributions required by statute,
One commenter suggested that PBGC add a waiver for contributions missed solely because of a failure to timely make a funding balance election. The final rule adds a waiver for a missed contribution where the failure to timely make the contribution is due solely to the plan sponsor's failure to timely make a funding balance election.
The final rule also clarifies a technical point from the 2013 proposal. The requirement to submit a reportable event notice for a missed contribution is satisfied by submission of Form 200 for the same event. However, reliance on Form 200 to satisfy the reportable event filing requirement does not transform Form 200 into a reportable event notice. Thus, the final rule makes clear that a Form 200 filing is not protected by the non-disclosure provisions of ERISA section 4043(f).
In general, a reportable event occurs when a plan fails to make a benefit payment timely or when a plan's liquid assets fall below the level needed for paying benefits for six months. The old regulation excuses failure to pay due to inability to locate the payee or any other administrative delay of less than two months (or two benefit payment periods). In reviewing the proposed rule, PBGC concluded that it would be unfair to require a plan to report an inability to pay benefits when due simply because (despite the diligence called for by the fiduciary standards) a payee could not be located within the prescribed time limit. Accordingly, the final rule clarifies that the time limit does not apply to delay in paying a missing payee. Other administrative delays are excused only to the extent they do not exceed the prescribed time limit.
Under the old regulation, distributions to substantial owners generally were required to be reported if the total distributions to an owner exceeded $10,000 in a year, unless the plan was fully funded for nonforfeitable benefits. The 2013 proposal limited the event to circumstances where the distributions to one substantial owner exceeded one percent of plan assets or the distributions to all substantial owners exceeded five percent of plan assets. In addition, PBGC proposed to limit reporting for a distribution in the form of an annuity to one notice, which would satisfy all future reporting requirements for the annuity so long as the annuity did not increase. Once notified that an annuity was being paid to a substantial owner, PBGC would need no further notices that the annuity was continuing to be paid.
One commenter asked PBGC to exclude from reporting payments made to comply with the minimum required distribution rules of Code section 401(a)(9), which might involve an increasing annuity if the substantial owner were still working and accruing benefits but required to take minimum distributions. In response, the final rule provides that reporting for distributions in the form of annuities is required only once, without the limitation that the annuity be non-increasing.
Under § 4043.29 (both in the old regulation and the new regulation), a reportable event occurs for a plan when there is a transaction that results, or will result, in one or more persons' ceasing to be members of a plan's controlled group. For this purpose, the term “transaction” includes a written or unwritten legally binding agreement to transfer ownership or an actual transfer or change of ownership. (A transaction is not reportable if it will result solely in a reorganization involving a mere change in identity, form, or place of organization, however effected.)
One commenter to the 2013 proposal raised concerns that elimination of the waivers for this event under the old regulation (which the 2013 proposal replaced with other waivers) would require significant monitoring of every transaction in which any controlled group member engages throughout the year and analysis of each such transaction to determine whether reporting is required. This commenter further asserted that the 2013 proposal would add significant administrative burdens without a corresponding increase in the security of the pension insurance system and urged PBGC to restore the funding and public company waivers that applied under the old regulation. PBGC has addressed this concern with the final rule's inclusion of the small plan and public company waivers, without regard to plan funding status. See the discussion above in the sections
The 2013 proposal deleted the example in § 4043.29(e)(3) of the old regulation that indicated that a reportable event occurred when a member of a controlled group ceased to exist upon being merged into another member in the course of a reorganization. However, this point was not made clearly by the language in § 4043.29(a) describing the event. The final rule adds language further clarifying that a controlled group member's ceasing to exist because of a merger into another member of the group is not a reportable event.
Like the 2013 proposal, the final rule provides that whether an agreement is legally binding is to be determined without reference to any conditions in the agreement. For this purpose, a legally binding agreement means an agreement that provides for obligations that are material to and enforceable by and against the parties to the agreement, regardless of whether any conditions of the agreement have been met or satisfied (in other words, an agreement does not fail to be legally binding solely because it is subject to conditions that have not been performed).
Under the old regulation, an extraordinary dividend or stock redemption occurred when a member of a plan's controlled group declared a distribution (a dividend or stock redemption) that alone or in combination with previous distributions exceeded a level specified in the regulation. The 2013 proposal eliminated much of the computational detail that the old regulation prescribed for determining whether a reportable event had occurred by providing that the computations be done in accordance with generally accepted accounting principles.
Although PBGC did not receive comments on the 2013 proposal for this event, PBGC decided to include in the
The reportable events regulation requires reporting to PBGC when, in any 12-month period, three percent or more of a plan's benefit liabilities are transferred to a person outside the transferor plan's controlled group or to a plan or plans maintained by a person or persons outside the transferor plan's controlled group. Transfers of benefit liabilities are of concern to PBGC because they may reduce the transferor plan's funded percentage
Both the 2009 and 2013 proposals clarified that satisfaction of a plan's benefit liabilities through the payment of a lump sum or the purchase of an irrevocable commitment to provide an annuity would not constitute a transfer of benefit liabilities that must be reported under the regulation. In the preamble to the 2013 proposal (78 FR at 20050), PBGC stated it had concluded that such transfers need not be reported because the provisions in section 436 of the Code and section 206(g) of ERISA (as added by the Pension Protection Act of 2006 (PPA)) prohibit or limit cashouts and annuitizations by significantly underfunded plans. In addition, since cashouts and annuitizations do not involve benefit liabilities transferring to another plan, PBGC reasoned there would be no concern about a transferee plan's financial health.
One commenter on the 2013 proposal opposed the exclusion of lump sums and annuity purchases from the reporting requirement. This commenter suggested that cash-outs or annuitizations on a large scale, sometimes referred to as de-risking or risk transfers, presage the decline of the defined benefit pension plan system. This commenter stated PBGC could gather information that might lead to regulatory or statutory protection for participants impacted by these types of transactions. During the hearing on the 2013 proposal, however, all of the co-panelists of this commenter expressed opposite views.
PBGC shares concerns about the potential impact of cashouts and annuitizations on a large scale on retirement security, including concerns that some of these transactions may leave a plan underfunded or effectively be part of a standard termination without meeting the applicable statutory and regulatory requirements (including reporting to PBGC and disclosure to participants). PBGC also recognizes that such transactions may create burdens on individuals whose options to obtain lifetime income in retirement are limited or who may not have the resources or experience to manage lump sum distributions in a way that replicates the professional investment management (with the associated fiduciary responsibilities) of defined benefit plan assets. PBGC notes, however, that few companies would be subject to advance reporting of such transactions, thus severely limiting the utility of such reporting, as compared to its burden. Therefore, PBGC is not adopting the commenter's suggestion in this final rule. Accordingly, the final rule retains the treatment of lump sum distributions and annuity purchases from the proposals.
Nevertheless, PBGC believes there are ways to address the commenter's concerns. PBGC believes it has useful tools to monitor and analyze trends (
Under the old regulation, a loan default reportable event occurred, with respect to a loan with an outstanding balance of $10 million or more to any member of a plan's controlled group, when a loan payment was more than 30 days late (10 days in the case of advance reporting), when the lender accelerated the loan, or when there was a written notice of default based on a drop in cash reserves, an unusual or catastrophic event, or the debtor's persistent failure to meet agreed-on performance levels.
PBGC believes that the significance of both potential and actual loan defaults on such large loans is so great that reporting should not be restricted to the current list of reporting triggers. Rather, PBGC believes that not only any default on a loan of $10 million or more—even a default on a loan within a controlled group—but waivers and amendments of loan covenants that are made to avoid a default (to keep the loan arrangement functioning) may reflect financial difficulty and pose serious challenges for the pension insurance system. Accordingly, in the 2013 proposal PBGC expanded the definition of the loan default event. Under the 2013 proposal, a reportable event would occur if a member of a plan's controlled group had an outstanding loan balance of $10 million or more and—
• There was an acceleration of payment or a default under the loan agreement, or
• The lender waived or agreed to an amendment of any covenant in the loan agreement for the purpose of avoiding a default.
These changes were to apply for both post-event notices and advance notices.
In the preamble to the 2013 proposal, PBGC stated its belief that the reporting requirement for loan defaults under the proposed rule would be comparable to what a typical creditor would require of a borrower to monitor the ability of the borrower to meet its obligations under the loan agreement. PBGC sought the views of the public on specific issues dealing with loan defaults, including how PBGC might better replicate reporting of information to creditors and whether there is a category of “technical” defaults that should not be reportable events.
One commenter was concerned that the proposal would require PBGC to determine a plan sponsor's intent behind a waiver or amendment and was not sure how such intent could be determined. To address this comment, the final rule replaces words “for the purpose of avoiding a default” in the 2013 proposal with the words “the effect of which is to cure or avoid a breach that would trigger a default.”
This commenter also said that the scope of the proposed expansion of the event definition was too broad, especially for public companies that might face SEC disclosure issues. The commenter urged PBGC to modify the proposal to require the reporting of an amendment or waiver only to “material financial covenants,” and not all covenants (
After reviewing the comments and further analysis of typical loan
The final rule makes one other change to this event from the 2013 proposal. The final rule deletes a paragraph from the old regulation on the notice date for payment acceleration or loan default that referred to “other conditions” for such occurrences to be reportable. Because the provisions concerning “other conditions” are eliminated (following the 2013 proposal), this paragraph is no longer necessary.
One commenter suggested that PBGC allow for simplified reporting for Form 200 filings in limited situations, such as when the missed contribution has been made up by the filing due date and the plan has not missed any other contributions within a certain period of time. PBGC thought this was a good suggestion. Accordingly, under the final rule, if a plan sponsor makes up a missed contribution by the Form 200 notice due date, and the sponsor has not missed any other required contributions during the two-year period ending on the Form 200 notice due date, the plan may file the Form 200 notice without any of the attachments (
In general, reportable events must be reported to PBGC within 30 days after they occur. But section 4043(b) of ERISA requires advance reporting by a contributing sponsor for certain reportable events if a “threshold test” is met, unless the contributing sponsor or controlled group member to which an event relates is a public company. The advance reporting threshold test is based on the aggregate funding level of plans maintained by the contributing sponsor and members of the contributing sponsor's controlled group. The funding level criteria are expressed by reference to calculated values that are used to determine VRPs under section 4006 of ERISA.
PPA changed the plan funding rules in Title I of ERISA and in the Code and amended the VRP provisions of section 4006 of ERISA to conform to the changes in the funding rules. The final rule, like the prior proposals, conforms the regulation to the changes made under PPA.
The regulatory language under the final rule is slightly modified to conform to changes made in a recent final rule on PBGC premiums under which small plans generally calculate the VRP using data from the plan year preceding the premium payment year, a requirement referred to as the “look-back rule.”
There is no change in the final rule from the 2013 proposal that eliminated advance-notice extensions for loan default and voluntary insolvency events. (The notice date of an event where insolvency proceedings are filed against a debtor by someone outside the plan's controlled group is extended to 10 days after proceedings begin). Thus, under the final rule, the due date for these events is the same as for other reportable events subject to the advance-notice requirements (
PBGC issues three reporting forms for use under the reportable events regulation. Form 10 is for post-event reporting under subpart B of the regulation; Form 10-Advance is for advance reporting under subpart C of the regulation; and Form 200 is for reporting under subpart D of the regulation. Failure to report is subject to penalties under section 4071 of ERISA. The final rule eliminates some of the documentation that was required to be submitted with notices of two reportable events under the old regulation, but also requires that filers submit with notices of most events some information that is typically requested by PBGC after notices are reviewed. The final rule also requires the use of prescribed reportable events forms and moves from the regulation to the forms and instructions the lists of information items that must be reported.
Three commenters expressed concern about moving the information requirements from the regulation to the forms and instructions because public input on any changes might be limited; one of these commenters said that Paperwork Reduction Act (PRA) notices are easy to miss.
PBGC does not agree. PBGC posts all pending PRA submissions on its Web site at
One commenter felt that the 2013 proposal dramatically increased the information required to be initially reported. As explained in the 2013
The final rule, like the 2009 and 2013 proposals, requires electronic filing of reportable events notices. This requirement is part of PBGC's ongoing implementation of the Government Paperwork Elimination Act.
Filers are permitted to email filings with attachments using any one or more of a variety of electronic formats that PBGC is capable of reading as provided in the instructions on PBGC's Web site. (PBGC accepts imaged signatures for filings.)
PBGC may consider other E-filing enhancements, such as a Web-based filing application for reportable events similar to the applications for PBGC's section 4010 and premium filings, as internet capabilities and standards change. Such developments would be reflected in PBGC's reportable events e-filing instructions.
PBGC sought public comment on its proposal to require electronic filing. One commenter favored electronic reporting while two others requested a paper filing option. In view of the fact that all plans subject to the reportable events regulation must file Form 5500 and PBGC premiums electronically, a paper option within the regulation for the occasional reportable event notice seems unnecessary. However, PBGC may grant case-by-case waivers of the electronic filing requirement.
The final rule makes a change to § 4043.20 that was not included in the 2013 proposal to clarify that the responsibility for a failure to file a reportable event notice if there is a change in plan sponsor or plan administrator lies with the person who is the plan administrator or contributing sponsor of the plan on the due date. Without this change, if there were a change in plan administrator or sponsor after a notice had been filed but before the due date, the new plan administrator or sponsor would be required to file another notice. A similar change is made to § 4043.61(a) with respect to a change in a contributing sponsor and the responsibility to file advance-notice reports.
The final rule also makes applicable to the regulation generally a provision—limited to one event in the old regulation—waiving reporting for statutory reportable events outside the scope of the reportable events described in the regulation. This provision has been reworded and moved from § 4043.31(c)(1) (dealing with extraordinary dividends) to § 4043.4(e) (dealing with waivers generally).
The 2013 proposal made other technical changes that are retained in the final rule.
The following tables summarize waiver and safe harbor provisions for reportable events for which post-event reporting is required. The first table shows waivers and safe harbors available under this final rule, and the second table shows a comparison of such provisions between the old regulation and this final rule. As explained in detail above, the final rule also provides reporting relief—like the relief provided by waivers—through changes to the definitions of certain reportable events, including substantial owner distributions and active participant reductions and through the requirement for filing only once a plan year for active participant reductions that occur by attrition.
The changes to Part 4043 made by this final rule are applicable to post-event reports for reportable events occurring on or after January 1, 2016, and to advance reports due on or after that date.
PBGC has determined that this rule is a “significant regulatory action” under Executive Order 12866. The Office of Management and Budget has therefore reviewed this rule under Executive Order 12866.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Orders 12866 and 13563 require that a comprehensive regulatory impact analysis be performed for any economically significant regulatory action, defined as an action that would result in an annual effect of $100 million or more on the national economy or that have other substantial impacts. In accordance with OMB Circular A-4, PBGC has examined the economic and policy implications of this rule and has concluded that the action's benefits justify its costs.
As discussed above, some reportable events present little or no risk to the pension insurance system—where, for example, the plan sponsor presents a low risk of default and the risk of plan termination is correspondingly low. Reports of such events are unnecessary in the sense that PBGC typically reviews but takes no action on them. PBGC analyzed 2013 records to determine how many such reports it received for events to which the proposed sponsor safe harbor would apply, then reanalyzed the data to see how many unnecessary reports would have been received if the plan sponsor safe harbor in the proposed rule had been in effect (that is, excluding reports that would have been waived under the plan sponsor safe harbor test).
Fewer unnecessary reports means a more efficient reporting system and a greater proportion of filings that present the opportunity for increased plan protection through monitoring and possible intervention in transactions based on risk, leading to better protection for the pension insurance system and retirement security generally.
Using data from 2013, PBGC has estimated the benefit of better-targeted reporting under the new regulation in terms of the value of early intervention as a creditor where a reportable event may foreshadow sponsor default. Early intervention as a creditor leads to higher recoveries of plan underfunding. PBGC estimates that the value of early intervention would exceed the dollar equivalent of the increased burden associated with the higher rate of targeted reporting by approximately $4.3 million.
Under Section 3(f)(1) of Executive Order 12866, a regulatory action is economically significant if “it is likely to result in a rule that may . . . [h]ave an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” PBGC has determined that this final rule does not cross the $100 million threshold for economic significance and is not otherwise economically significant.
This action is associated with retrospective review and analysis in PBGC's Plan for Regulatory Review issued in accordance with Executive Order 13563 on “Improving Regulation and Regulatory Review.”
The Regulatory Flexibility Act imposes certain requirements with respect to rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency determines that a rule is not likely to have a significant economic impact on a substantial number of small entities, section 603 of the Regulatory Flexibility Act requires that the agency present an initial regulatory flexibility analysis at the time of the publication of the proposed rule describing the impact of the rule on small entities and seeking public comment on such impact. Small entities include small businesses, organizations and governmental jurisdictions.
For purposes of the Regulatory Flexibility Act requirements with respect to the proposed amendments to the reportable events regulation, PBGC considers a small entity to be a plan with fewer than 100 participants. This is the same criterion used to determine the availability of the “small plan” waiver, and is consistent with certain requirements in Title I of ERISA
Further, while some large employers may have small plans, in general most small plans are maintained by small employers. Thus, PBGC believes that assessing the impact of the final rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business based on size standards promulgated by the Small Business Administration (13 CFR 121.201) pursuant to the Small Business Act. PBGC requested comments on the appropriateness of the size standard used in evaluating the impact on small entities of the proposed amendments to the reportable events regulation. PBGC received no comments in response to this request.
On the basis of its definition of small entity, PBGC certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
PBGC is submitting the information collection requirements under this rule to the Office of Management and Budget (OMB) under the Paperwork Reduction Act. There are two information collections under part 4043, approved under OMB control number 1212-0013 (covering subparts B and C), which expires May 31, 2018, and OMB control number 1212-0041 (covering subpart D), which expires June 30, 2018.
PBGC is making the following changes to these information requirements that were approved by OMB:
• PBGC's experience is that in order to assess the significance of virtually every post-event filing for a missed contribution, inability to pay benefits, loan default, liquidation, or insolvency, it must obtain from the filer certain actuarial, financial and controlled group information. Filers were previously required to submit some of this information for some events, but PBGC has made its information collection for all these events more uniform. Accordingly, in connection with the final rule, PBGC now requires that every post-event filing for one of these events include the following financial and controlled group information (actuarial information was already required):
1. The financial information required will be copies of audited financial statements for the most recent fiscal year. (If audited statements were not immediately available, copies of unaudited financial statements (if available) or tax returns would be required, to be followed up with required financial statements when available.)
2. The controlled group information required will be tailored to the event being reported and will generally include identifying information for each plan maintained by any member of the controlled group and a description of the controlled group with members' names.
• Similarly, PBGC has found that it needs the same financial and controlled group information for advance-notice filings (in addition to actuarial information already required). For notices of applications for funding waiver requests, the information can typically be gleaned from the copy of the application that accompanies the reportable event notice. With this exception, PBGC is requiring that every advance notice filing include these items (unless the information is publicly available).
• Controlled group changes and benefit liability transfers involve both an “old” controlled group and a “new” controlled group. PBGC had already required submission of controlled group information with notices of controlled group changes under the old regulation and is now also requiring the same for benefit liability transfers.
• Because extraordinary distributions raise questions about controlled group finances, PBGC now requires submission of financial information with notices of events of this type.
• PBGC now requires that notices of substantial owner distributions give the reason for the distribution to help PBGC analyze its significance.
• Inability to pay benefits raises the specter of imminent sponsor shutdown and plan termination. Accordingly, for notice of this event, PBGC now requires submission of copies of the most recent plan documents and IRS qualification letter.
• PBGC is adding to the Form 200 information submission requirements a requirement to provide information about all controlled group real property, and identity of controlled group principal executive offices.
• Simplified reporting for Form 200 filings is now available where the filer has not missed any required contribution (other than the missed contribution that triggered the Form 200 filing requirement during the two-year period ending on the notice due date for the Form 200) and has made up the missed contribution by the notice due date; under the simplified reporting provision, none of the attachments that are otherwise required to be included in the filing (
• In missed contribution cases, there is sometimes a credit balance that is available for application to a contribution that is due. PBGC needs to be able to determine whether all or a portion of the credit balance has been properly applied toward payment of the contribution. Accordingly, PBGC is requiring Form 200 filers to indicate how much (if any) of the carryover balance or prefunding balance was used for partial payment of the missed contribution and submit copies of election letters relating to the application of the carryover balance and prefunding balance to the contribution.
• PBGC is requiring a description of each controlled group member's operational status (in Chapter 7 proceedings, liquidating outside of bankruptcy, on-going, etc.) in Form 200 filings.
PBGC needs the information in reportable events filings under subparts B and C of part 4043 (Forms 10 and 10-Advance) to determine whether it should terminate plans that experience events that indicate plan or sponsor financial problems. PBGC estimates that it will receive such filings from about 816 respondents each year and that the total annual burden of the collection of information will be about 4,496 hours and $607,570. This represents a decreased burden compared to that under the old regulation, as the following table shows:
As discussed above, the final rule is designed to reduce burden dramatically on well-funded plans and low-default-risk sponsors; thus, burden under the final rule is substantially associated with higher-risk events, which are much more likely to deserve PBGC's attention. PBGC separately estimated the average burden changes for low-default-risk and non-low-default-risk entities. The burden for low-default-risk sponsors is down from 443 hours and $118,025 to zero. The burden for non-low-default-risk sponsors is up by 402 hours and $64,742.
PBGC needs the information in missed contribution filings under subpart D of part 4043 (Form 200) to determine the amounts of statutory liens arising under ERISA section 303(k) and Code section 430(k) and to evaluate the funding status of plans with respect to which such liens arise and the financial condition of the persons responsible for their funding. PBGC estimates that it will receive such filings from about 165 respondents each year and that the total annual burden of the collection of information will be about 990 hours and $146,406.
Employee benefit plans, Pension insurance, Reporting and recordkeeping requirements.
Employee benefit plans, Pension insurance.
Employee benefit plans, Pension insurance, Reporting and recordkeeping requirements.
Employee benefit plans, Pension insurance, Reporting and recordkeeping requirements.
Employee benefit plans, Pension insurance.
Employee benefit plans, Pension insurance, Reporting and recordkeeping requirements.
For the reasons given above, PBGC is amending 29 CFR parts 4000, 4001, 4043, 4204, 4206, and 4231 as follows.
29 U.S.C. 1083(k), 1302(b)(3).
(b) * * *
(3) You must file notices under part 4043 of this chapter electronically in accordance with the instructions on PBGC's Web site,
29 U.S.C. 1301, 1302(b)(3).
29 U.S.C. 1083(k), 1302(b)(3), 1343.
This part prescribes the requirements for notifying PBGC of a reportable event under section 4043 of ERISA or of a failure to make certain required contributions under section 303(k)(4) of ERISA or section 430(k)(4) of the Code. Subpart A contains definitions and general rules. Subpart B contains rules for post-event notice of a reportable event. Subpart C contains rules for advance notice of a reportable event. Subpart D contains rules for notifying PBGC of a failure to make certain required contributions.
The following terms are defined in § 4001.2 of this chapter: benefit liabilities, Code, contributing sponsor, controlled group, ERISA, fair market value, irrevocable commitment, multiemployer plan, PBGC, person, plan, plan administrator, plan year, single-employer plan, and substantial owner.
In addition, for purposes of this part:
(1) Revenue not exceeding 10 percent of the controlled group's revenue;
(2) Annual operating income not exceeding the greater of—
(i) 10 percent of the controlled group's annual operating income; or
(ii) $5 million; and
(3) Net tangible assets at the end of the fiscal year(s) not exceeding the greater of—
(i) 10 percent of the controlled group's net tangible assets at the end of the fiscal year(s); or
(ii) $5 million.
(1) Is not a contributing sponsor of a plan;
(2) Is not organized under the laws of (or, if an individual, is not a domiciliary of) any state (as defined in section 3(10) of ERISA); and
(3) For the fiscal year that includes the date the reportable event occurs, meets one of the following tests—
(i) Is not required to file any United States federal income tax form;
(ii) Has no income reportable on any United States federal income tax form other than passive income not exceeding $1,000; or
(iii) Does not own substantial assets in the United States (disregarding stock of a member of the plan's controlled group) and is not required to file any quarterly United States tax returns for employee withholding.
(a)
(2)
(3)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(1) All of the plan's assets (other than any excess assets) are distributed pursuant to a termination under part 4041 of this chapter; or
(2) A trustee is appointed for the plan under section 4042 of ERISA.
(e)
Reportable event notices required under this part must be filed electronically in accordance with the instructions posted on PBGC's Web site,
(a)
(b)
PBGC applies the rules in subpart D of part 4000 of this chapter to compute any time period under this part.
In accordance with section 4043(f) of ERISA and § 4901.21(a)(3) of this chapter, any information or documentary material that is not publicly available and is submitted to PBGC pursuant to subpart B or C of this part will not be made public, except as may be relevant to any administrative or judicial action or proceeding or for disclosures to either body of Congress or to any duly authorized committee or subcommittee of the Congress. This provision does not apply to information or material submitted to PBGC pursuant to subpart D of this part, even where the submission serves as an alternative method of compliance with § 4043.25.
(a)
(b)
(1) Begins on a financial information date (as described in paragraph (c) of this section) on which the company satisfies the low-default-risk standard in paragraph (e) of this section, and
(2) Ends 13 months later or (if earlier) on the company's next financial information date.
(c)
(1) A date on which the company files on Form 10-K with the Securities and Exchange Commission (“SEC”) audited annual financial statements (including balance sheets, income statements, cash flow statements, and notes to the financial statements) for the company's most recent completed fiscal year preceding the date of such filing;
(2) The date (the “closing date”) on which the company closes the annual accounting period that results in the production of audited or unaudited annual financial statements for the company's most recent completed fiscal year preceding the closing date, if audited annual financial statements are not required to be filed with the SEC; or
(3) A date on which the company files with IRS an annual federal income tax return or IRS Form 990 (in either case, a “return”) for the company's most recent completed fiscal year preceding the date of such filing, if at the time the return is filed there are no annual financial statements for the year of the return.
(d)
(e)
(i) Both of the criteria described in paragraphs (e)(2)(i) and (ii) of this section, or
(ii) Any four of the seven criteria described in paragraphs (e)(2)(i) through (vii) of this section.
(2)
(i) The probability that the company will default on its financial obligations is not more than four percent over the next five years or not more than 0.4 percent over the next year, in either case determined on the basis of widely available financial information on the company's credit quality.
(ii) The company's secured debt (disregarding leases and debt incurred to acquire or improve property and secured only by that property) does not exceed 10 percent of the company's total assets.
(iii) The company has a ratio of retained-earnings-to-total-assets of 0.25 or more.
(iv) The company has a ratio of total-debt-to-EBITDA (earnings before interest, taxes, depreciation, and amortization) of 3.0 or less.
(v) The company has positive net income for the two most recently completed fiscal years preceding the qualifying date.
(vi) During the two-year period ending on the qualifying date, the company has not experienced an event described in § 4043.34(a)(1) or (2) (dealing with a default on a loan with an outstanding balance of $10 million or more) with respect to any loan with an outstanding balance of $10 million or more to the company regardless of whether reporting was waived under § 4043.34(b).
(vii) During the two-year period ending on the qualifying date, there has not been any failure to make when due any contribution described in § 4043.25(a)(1) or (2) (dealing with failure to make required minimum funding payments), unless reporting was waived under § 4043.25(c).
(3)
(ii) In addition to the use of the supporting financial information to evaluate criteria as described in paragraph (e)(3)(i) of this section, to evaluate whether the criterion described in paragraph (e)(2)(v) of this section is met, the company must also use the supporting financial information as described in paragraph (d) of this section associated with the financial information date for the fiscal year preceding the fiscal year covered by the
(iii) For purposes of paragraph (e)(2)(v) of this section, the excess of total revenue over total expenses as reported on the IRS Form 990 is considered to be net income.
(4)
For purposes of this part, a plan is in the well-funded plan safe harbor for an event year if no variable-rate premium was required to be paid for the plan under parts 4006 and 4007 of this chapter for the plan year preceding the event year.
The plan administrator and each contributing sponsor of a plan for which a reportable event under this subpart has occurred are required to notify PBGC within 30 days after that person knows or has reason to know that the reportable event has occurred, unless a waiver or extension applies. If there is a change in plan administrator or contributing sponsor, the responsibility for any failure to file or defective filing lies with the person who is the plan administrator or contributing sponsor of the plan on the 30th day after the reportable event occurs.
(a)
(b)
(a)
(b)
(a)
(1)
(2)
(b)
(2)
(i) Is receiving compensation for work performed;
(ii) Is on paid or unpaid leave granted for a reason other than a layoff;
(iii) Is laid off from work for a period of time that has lasted less than 30 days; or
(iv) Is absent from work due to a recurring reduction in employment that occurs at least annually.
(3)
(c)
(1) Is attributable to an event described in ERISA section 4062(e) or 4063(a), and
(2) Is timely reported to PBGC under ERISA section 4063(a).
(d)
(2)
(3)
(4)
(e)
(a)
(b)
(a)
(1) A contribution required under sections 302 and 303 of ERISA or sections 412 and 430 of the Code is not made by the due date for the payment under ERISA section 303(j) or Code section 430(j), or
(2) Any other contribution required as a condition of a funding waiver is not made when due.
(b)
(c)
(2)
(3)
(a)
(1)
(i) A limitation under section 436 of the Code and section 206(g) of ERISA (dealing with funding-based limits on benefits and benefit accruals under single-employer plans),
(ii) The inability to locate a person, or
(iii) Any other administrative delay, including the need to verify a person's eligibility for benefits, to the extent that the delay is for less than the shorter of two months or two full benefit payment periods.
(2)
(b)
(a)
(1) There is a distribution to a substantial owner of a contributing sponsor of the plan;
(2) The total of all distributions made to the substantial owner within the one-year period ending with the date of such distribution exceeds $10,000;
(3) The distribution is not made by reason of the substantial owner's death;
(4) Immediately after the distribution, the plan has nonforfeitable benefits (as provided in § 4022.5 of this chapter) that are not funded; and
(5) Either—
(i) The sum of the values of all distributions to any one substantial owner within the one-year period ending with the date of the distribution is more than one percent of the end-of-year total amount of the plan's assets (as required to be reported on Schedule H or Schedule I to Form 5500) for each of the two plan years immediately preceding the event year, or
(ii) The sum of the values of all distributions to all substantial owners within the one-year period ending with the date of the distribution is more than five percent of the end-of-year total amount of the plan's assets (as required to be reported on Schedule H or Schedule I to Form 5500) for each of the two plan years immediately preceding the event year.
(b)
(i) The cash amounts actually received by the substantial owner;
(ii) The purchase price of any irrevocable commitment; and
(iii) The fair market value of any other assets distributed, determined as of the date of distribution to the substantial owner.
(2)
(3)
(c)
(d)
(2)
(3)
(a)
(b)
(a)
(b)
(2)
(3)
(4)
(5)
(6)
(c)
(1)
(2)
(a)
(1) Is involved in any transaction to implement its complete liquidation (including liquidation into another controlled group member);
(2) Institutes or has instituted against it a proceeding to be dissolved or is dissolved, whichever occurs first; or
(3) Liquidates in a case under the Bankruptcy Code, or under any similar law.
(b)
(2)
(a)
(b)
(c)
(2)
(3)
(4)
(5)
(6)
(a)
(1) The plan makes a transfer of benefit liabilities to a person, or to a plan or plans maintained by a person or persons, that are not members of the transferor plan's controlled group; and
(2) The amount of benefit liabilities transferred, in conjunction with other benefit liabilities transferred during the 12-month period ending on the date of the transfer, is 3 percent or more of the plan's total benefit liabilities. Both the benefit liabilities transferred and the plan's total benefit liabilities are to be valued as of any one date in the plan year in which the transfer occurs, using actuarial assumptions that comply with section 414(
(b)
(2)
(c)
(2)
(3)
(4)
A reportable event for a plan occurs when an application for a minimum funding waiver for the plan is submitted under section 302(c) of ERISA or section 412(c) of the Code.
(a)
(1) There is an acceleration of payment or a default under the loan agreement, or
(2) The lender waives or agrees to an amendment of any covenant in the loan agreement the effect of which is to cure or avoid a breach that would trigger a default.
(b)
(2)
(a)
(1) Commences or has commenced against it any insolvency proceeding (including, but not limited to, the appointment of a receiver) other than a bankruptcy case under the Bankruptcy Code;
(2) Commences, or has commenced against it, a proceeding to effect a composition, extension, or settlement with creditors;
(3) Executes a general assignment for the benefit of creditors; or
(4) Undertakes to effect any other nonjudicial composition, extension, or settlement with substantially all its creditors.
(b)
(2)
(a)
(b)
(1) On the notice date, neither the contributing sponsor nor any member of the plan's controlled group to which the event relates is a public company; and
(2) The aggregate unfunded vested benefits, determined in accordance with paragraph (c) of this section, are more than $50 million; and
(3) The aggregate value of plan assets, determined in accordance with paragraph (c) of this section, is less than 90 percent of the aggregate premium funding target, determined in accordance with paragraph (c) of this section.
(c)
(d)
(a)
(b)
(2)
(a)
(b)
(a)
(b)
(a)
(b)
(2)
(i) Equals the present value of the accrued benefits (whether or not vested) being transferred, using actuarial assumptions that comply with section 414(
(ii) In conjunction with other assets transferred during the same plan year, is less than 3 percent of the assets of the transferor plan as of at least one day in that year.
(3)
(4)
(a)
(b)
Advance notice is required for an acceleration of payment, a default, a waiver, or an agreement to an amendment with respect to a loan agreement described in § 4043.34(a).
(a)
(b)
(a)
(1) Form 200 must be filed with PBGC no later than 10 days after the due date for any required payment for which payment was not made when due.
(2) If a contributing sponsor or the ultimate parent completes and submits Form 200 in accordance with this section, PBGC will consider the notification requirement in section 303(k)(4) of ERISA and section 430(k)(4) of the Code to be satisfied by all members of a controlled group of which the person who has filed Form 200 is a member.
(b)
(c)
29 U.S.C. 1302(b)(3), 1384(c).
29 U.S.C. 1302(b)(3) and 1386(b).
29 U.S.C. 1302(b)(3), 1411.
| 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 |