| Page Range | 55503-55714 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 55543 - Basis in Interests in Tax-Exempt Trusts | |
| 80 FR 55503 - Continuation of the Exercise of Certain Authorities Under the Trading With the Enemy Act | |
| 80 FR 55609 - Sunshine Act Meeting Notice | |
| 80 FR 55661 - Temporary Emergency Committee of the Board of Governors; Sunshine Act Meeting | |
| 80 FR 55613 - Certain New Chemicals; Receipt and Status Information for July 2015 | |
| 80 FR 55548 - Approval and Promulgation of Air Quality Implementation Plans for Designated Facilities and Pollutants; Missouri; Sewage Sludge Incinerators | |
| 80 FR 55586 - Approval and Promulgation of Air Quality Implementation Plans for Designated Facilities and Pollutants; Missouri; Sewage Sludge Incinerators | |
| 80 FR 55674 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change To List and Trade Shares of the Global Currency Gold Fund Under NYSE Arca Equities Rule 8.201 | |
| 80 FR 55618 - Agency Information Collection Activities; Proposed Collection; Comment Request; Standardized Permit for RCRA Hazardous Waste Management Facilities | |
| 80 FR 55608 - Community Bank Advisory Council Meeting | |
| 80 FR 55568 - Treatment of Certain Transfers of Property to Foreign Corporations | |
| 80 FR 55538 - Clarification of the Coordination of the Transfer Pricing Rules With Other Code Provisions | |
| 80 FR 55561 - Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Trip Limit Adjustment for the Common Pool Fishery | |
| 80 FR 55562 - Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management Area | |
| 80 FR 55705 - Agency Information Collection Activities: Proposed Request and Comment Request | |
| 80 FR 55620 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 80 FR 55683 - AlphaClone, Inc., et al.; Notice of Application | |
| 80 FR 55619 - Next Meeting of the North American Numbering Council | |
| 80 FR 55621 - Proposed Agency Information Collection Activities; Comment Request | |
| 80 FR 55713 - Western Washington Railroad, LLC-Operation Exemption-Port of Chehalis | |
| 80 FR 55535 - IFR Altitudes; Miscellaneous Amendments | |
| 80 FR 55583 - Safety Zones; Lower Mississippi River Miles 95.7 to 96.7; New Orleans, LA | |
| 80 FR 55708 - 60-Day Notice of Proposed Information Collection: Application for Consular Report of Birth Abroad of a Citizen of the United States of America | |
| 80 FR 55606 - Pacific Fishery Management Council; Public Meeting | |
| 80 FR 55709 - Culturally Significant Objects Imported for Exhibition Determinations: “Fashion and Virtue: Textile Patterns and the Print Revolution, 1520-1620” Exhibition | |
| 80 FR 55708 - Culturally Significant Objects Imported for Exhibition Determinations: “Jewel City: Art from San Francisco's Panama-Pacific International Exposition” Exhibition | |
| 80 FR 55707 - Culturally Significant Objects Imported for Exhibition Determinations: “Jacqueline de Ribes: The Art of Style” Exhibition | |
| 80 FR 55640 - Renewal of Approved Information Collection; OMB Control No. 1004-0121 | |
| 80 FR 55597 - Submission for OMB Review; Comment Request | |
| 80 FR 55588 - Privacy Act Systems of Records; Animal Disease Traceability Information System | |
| 80 FR 55648 - Fiscal Year 2015 Cost of Hospital and Medical Care Treatment Furnished by the Department of Defense Medical Treatment Facilities; Certain Rates Regarding Recovery From Tortiously Liable Third Persons | |
| 80 FR 55607 - National Medal of Technology and Innovation Nomination Evaluation Committee | |
| 80 FR 55635 - National Center for Complementary & Integrative Health; Amended; Notice of Meeting | |
| 80 FR 55635 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 55627 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 80 FR 55627 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 55591 - Shasta County Resource Advisory Committee | |
| 80 FR 55628 - World War One Centennial Commission; Notification of Upcoming Public Advisory Meeting | |
| 80 FR 55628 - GSA's Digital Innovation Hack-a-thon Fall 2015 | |
| 80 FR 55648 - Records Management; General Records Schedule (GRS); GRS Transmittal 25; Email Managed Under a Capstone Approach | |
| 80 FR 55636 - Draft Environmental Assessment and Draft Habitat Conservation Plan; Paso Robles Phase II; Hays County, Texas | |
| 80 FR 55668 - Securities Exchange Act of 1934; In the Matter of the Options Clearing Corporation; Order Discontinuing the Automatic Stay | |
| 80 FR 55700 - In the Matter of BATS Global Markets, Inc.; BOX Options Exchange LLC; KCG Holdings, Inc.; Miami International Securities Exchange, LLC; Susquehanna International Group, LLP; Order Granting Petitions for Review and Scheduling Filing of Statements | |
| 80 FR 55638 - Renewal of Agency Information Collection for Reindeer in Alaska | |
| 80 FR 55590 - Sequoia National Forest, California; Summit Fuels Reduction and Forest Health Project | |
| 80 FR 55646 - Establishing a Minimum Wage for Contractors, Notice of Rate Change in Effect as of January 1, 2016 | |
| 80 FR 55712 - Notice of Rail Energy Transportation Advisory Committee Meeting | |
| 80 FR 55564 - A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods-Part II (Menu Labeling Requirements in Accordance with the Patient Protection Affordable Care Act of 2010); Draft Guidance for Industry; Availability | |
| 80 FR 55593 - Agenda and Notice of Public Meeting of the South Dakota Advisory Committee | |
| 80 FR 55634 - National Institute on Aging; Notice of Closed Meeting | |
| 80 FR 55636 - National Cancer Institute; Notice of Closed Meetings | |
| 80 FR 55636 - National Institute of Biomedical Imaging and Bioengineering; Notice of Closed Meeting | |
| 80 FR 55631 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 80 FR 55711 - Proposed Agency Information Collection Activities; Comment Request | |
| 80 FR 55592 - Notice of Public Meeting of the Mississippi Advisory Committee To Vote on Its Advisory Memorandum Regarding Civil Rights Concerns Relating to Distribution of Federal Child Care Subsidies in Mississippi | |
| 80 FR 55594 - Export Trade Certificate of Review | |
| 80 FR 55691 - ISE Mercury, LLC; Notice of Filing of Application for Registration as a National Securities Exchange Under Section 6 of the Securities Exchange Act of 1934 | |
| 80 FR 55692 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing of and Immediate Effectiveness of Proposed Rule Change Regarding NASDAQ Last Sale Plus | |
| 80 FR 55667 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Exchange's Pricing Schedule Under Section VIII With Respect to Execution and Routing of Orders in Securities Priced at $1 or More Per Share | |
| 80 FR 55701 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Regarding a Change to the Reference Index Relating to the Market Vectors Short High Yield Municipal Index ETF | |
| 80 FR 55672 - Self-Regulatory Organizations; ICE Clear Credit LLC; Notice of Filing of Amendments No. 1 and 2 and Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendments No. 1 and 2, To Revise the ICC Risk Management Framework | |
| 80 FR 55665 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Arca Options Fee Schedule | |
| 80 FR 55661 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Nasdaq Rules 7014 and 7018, Pertaining to Credits, Rebates, and Fee Caps | |
| 80 FR 55698 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Amend NASDAQ Rules 7015(b) and (g) to Modify Port Fees | |
| 80 FR 55671 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To Require an Indicator When a TRACE Report Does Not Reflect a Commission or Mark-Up/Mark-Down | |
| 80 FR 55669 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of Fees | |
| 80 FR 55713 - Submission for OMB Review; Comment Request | |
| 80 FR 55611 - Combined Notice of Filings | |
| 80 FR 55649 - Meetings of Humanities Panel | |
| 80 FR 55632 - Syed Huda: Debarment Order | |
| 80 FR 55634 - Proposed Collection; 60-Day Comment Request; Hazardous Waste Worker Training | |
| 80 FR 55639 - Renewal of Information Collection: OMB Control Number 1084-0010, Claim for Relocation Payments-Residential, DI-381 and Claim for Relocation Payments-Nonresidential, DI-382 | |
| 80 FR 55642 - Final Adjusted Aggregate Production Quotas for Schedule I and II Controlled Substances and Assessment of Annual Needs for the List I Chemicals Ephedrine, Pseudoephedrine, and Phenylpropanolamine for 2015 | |
| 80 FR 55565 - Schedules of Controlled Substances: Temporary Placement of the Synthetic Cannabinoid MAB-CHMINACA Into Schedule I | |
| 80 FR 55705 - Surrender of License of Small Business Investment Company | |
| 80 FR 55704 - Louisiana Disaster Number LA-00009 | |
| 80 FR 55709 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Human Response to Aviation Noise in Protected Natural Areas Survey | |
| 80 FR 55711 - Agency Information Collection Activities: Request for Comments; Revision of an Existing Information Collection: Medical Standards and Certification | |
| 80 FR 55709 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Flight Plans | |
| 80 FR 55710 - Office of Hazardous Materials Safety | |
| 80 FR 55550 - List of Nonconforming Vehicles Decided to be Eligible for Importation | |
| 80 FR 55505 - Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards | |
| 80 FR 55654 - Instrumentation and Controls | |
| 80 FR 55650 - Uranerz Energy Corporation; Nichols Ranch In Situ Recovery Project | |
| 80 FR 55656 - Perry Nuclear Power Plant, Unit 1; Consideration of Approval of Transfer of License and Conforming Amendment | |
| 80 FR 55611 - Internal MISO Generation v. Midcontinent Independent System Operator, Inc.; Notice of Complaint | |
| 80 FR 55608 - Combined Notice of Filings #2 | |
| 80 FR 55610 - Combined Notice of Filings #1 | |
| 80 FR 55632 - Submission for OMB Review; Comment Request | |
| 80 FR 55545 - Approval and Promulgation of Air Quality Implementation Plans; State of Missouri; Control of NOX | |
| 80 FR 55586 - Approval and Promulgation of Air Quality Implementation Plans; State of Missouri; Control of NOX | |
| 80 FR 55612 - Draft National Pollutant Discharge Elimination System (NPDES) General Permit for Small Municipal Separate Storm Sewer Systems in New Mexico (NMR040000) | |
| 80 FR 55598 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Wharf Recapitalization Project | |
| 80 FR 55619 - Mobile Smelting Removal Site, Samoa, CA; Notice of Proposed CERCLA Settlement Agreement for Recovery of Past Response Costs | |
| 80 FR 55544 - Copayments for Medications in 2015 | |
| 80 FR 55595 - Large Residential Washers From the Republic of Korea: Final Results of the Antidumping Duty Administrative Review; 2012-2014 | |
| 80 FR 55521 - Airworthiness Directives; The Boeing Company Airplanes | |
| 80 FR 55505 - Airworthiness Directives; The Boeing Company | |
| 80 FR 55512 - Airworthiness Directives; The Boeing Company Airplanes | |
| 80 FR 55527 - Airworthiness Directives; The Boeing Company Airplanes | |
| 80 FR 55593 - Aluminum Extrusions From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Scope Ruling and Notice of Amended Final Scope Ruling Pursuant to Court Decision | |
| 80 FR 55597 - Texas A&M University; Notice of Decision on Application for Duty-Free Entry of Scientific Instruments | |
| 80 FR 55638 - Request for Nominations for the Gateway National Recreation Area Fort Hancock 21st Century Advisory Committee |
Animal and Plant Health Inspection Service
Forest Service
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
Drug Enforcement Administration
National Endowment for the Humanities
Federal Aviation Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
National Endowment for the Humanities, National Foundation on the Arts and the Humanities.
Final rule.
The National Endowment for the Humanities (NEH) has adopted as final its interim final rule outlining uniform administrative requirements, cost principles, and audit requirements for Federal awards.
This rule is effective on September 16, 2015.
Robert Straughter, Director, Office of Grant Management, National Endowment for the Humanities, 400 7th Street SW., Room, 4060, Washington, DC 20506; (202) 606-8237,
On December 19, 2014, the Office of Management and Budget (OMB) published an interim final rule that implemented for all Federal award-making agencies, including NEH, OMB's final guidance on Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 79 FR 75871. OMB published the uniform rules as 2 CFR part 200. As part of that rulemaking, NEH adopted part 200 through an agency-specific addendum at 2 CFR part 3374. NEH removed and reserved its prior regulations about administrative requirements for Federal awards, 45 CFR part 1174, which were rendered obsolete by the new provisions.
NEH received no comments in response to its adoption of the interim final rule. Therefore, 2 CFR part 3374 as described in the interim final rule, is adopted with no changes.
For the regulatory findings regarding this rulemaking, please refer to the analysis prepared by OMB in the interim final rule, which is incorporated herein by reference. 79 FR at 75876.
Accordingly, the interim rule adding 2 CFR part 3374 and amending 45 CFR part 1174, which was published at 79 FR 75871 on December 19, 2014, is adopted as a final rule without change.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 757 airplanes. This AD was prompted by reports of latently failed fuel shutoff valves discovered during fuel filter replacement. This AD requires revising the maintenance or inspection program to include new airworthiness limitations. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine and auxiliary power unit (APU), which could result in the inability to shut off fuel to the engine and APU and, in case of certain fires, an uncontrollable fire that could lead to structural failure.
This AD is effective October 21, 2015.
You may examine the AD docket on the Internet at
Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 757 airplanes. The NPRM published in the
In preparation of AD actions such as NPRMs and immediately adopted rules, it is the practice of the FAA to obtain technical information and information on operational and economic impacts
Throughout the preamble of this final rule, commenters may have used the terms “fuel shutoff valve” and “fuel spar valve” interchangeably. Both terms refer to the same part. In our responses to comments, we have used the term “fuel shutoff valve.” The term “fuel spar valve” is more commonly used in airplane maintenance documentation and, therefore, we have used that term in figure 1 to paragraph (g) of this AD.
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 12431, March 5, 2014) and the FAA's response to each comment.
American Airlines (AA) stated that Boeing's internal review found that the issue addressed by the NPRM (79 FR 12431, March 5, 2014) is not a safety concern, and that Boeing has not recommended any interim action on this issue. In addition, AA stated that Boeing is addressing the issue in the long term with a design change to the motor-operated valve (MOV) actuator of the fuel shutoff valve. AA also noted that in a previous NPRM for Model 757 airplanes, it had submitted data showing the failure of the actuator was unlikely and that coupled with the likelihood of an erroneous indication occurring at the same time, the latent hazard was even more improbable. AA stated the same analysis applies to this NPRM. We infer that AA is requesting the NPRM be withdrawn.
We disagree with AA's request to withdraw the NPRM (79 FR 12431, March 5, 2014). We have determined that an unsafe condition exists that warrants an interim action until the manufacturer finishes developing a modification that will address the identified unsafe condition. Boeing did not formally comment on whether it considers this issue to be an unsafe condition. We have determined that, without the required interim actions, a significant number of flights with a fuel shutoff valve actuator that is failed latently in the open valve position will occur during the affected fleet life. With a failed fuel shutoff valve, if certain fire conditions were to occur, or if extreme engine or APU damage were to occur, or if an engine separation event were to occur during flight, the crew procedures for such an event would not stop the fuel flow to the engine strut and nacelle or APU. The continued flow of fuel could cause an uncontrolled fire or lead to a fuel exhaustion event.
The FAA regulations require all transport airplanes to be fail safe with respect to engine or APU fire events, and the risk due to severe engine or APU damage events be minimized. Therefore, we require, for each flight, sufficiently operative fire safety systems so that fires can be detected and contained, and fuel to the engine strut and nacelle or APU can be shut off in the event of an engine or APU fire or severe damage.
The FAA airworthiness standards require remotely controlled powerplant valves to provide indications that the valves are in the commanded position. These indications allow the prompt detection and correction of valve failures. We do not allow dispatch with a known inoperative fuel shutoff valve. Therefore, we are proceeding with the final rule—not because of the higher-than-typical failure rate of the particular valve actuator involved, but instead because the fuel shutoff valve actuator can fail in a manner that also defeats the required valve position indication feature. That failure can lead to a large number of flights occurring on an airplane with a fuel shutoff valve actuator failed in the open position without the operator being aware of the failure. Airworthiness limitations containing required inspections are intended to limit the number of flights following latent failure of the fuel shutoff valve. Issuance of an AD is the appropriate method to correct the unsafe condition. We have not changed this final rule in this regard.
DHL and United Airlines (UAL) requested that we revise the proposed AD (79 FR 12431, March 5, 2014) to limit the applicability specified in figure 1 and figure 2 to paragraph (g) of the proposed AD to airplanes with fuel shutoff valve actuators on which the identified unsafe condition exists.
DHL stated that the proposed AD (79 FR 12431, March 5, 2014) should make it clear that airworthiness limitations (AWL) numbers 28-AWL-ENG and 28-AWL-APU do not apply to airplanes that are equipped with the actuators made by supplier V35840, having part number (P/N) AV31-1 (Boeing P/N S343T003-111), for the engine fuel shutoff valve and APU fuel shutoff valve. DHL stated that the deficiencies identified in the NPRM are related to potential common mode failures, which affect integral electronic circuit boards that commutate the brushless motor and control the position indicating signals on some actuators made by supplier V73760. DHL also stated that fuel shutoff valve P/N AV31-1 (Boeing P/N S343T003-111) is not susceptible to the type of deficiency described in the NPRM because this valve uses brushes and mechanical switches rather than electronic circuit boards to commutate the motor and to control position indicating signals.
UAL stated that the proposed AD (79 FR 12431, March 5, 2014) did not specify which MOV actuator part number the proposed AD applies to. UAL stated that proposed ADs were issued for Model 737NG, 757, 767, and 777 airplanes to replace the MOV actuator with P/N MA30A1001. UAL also stated there are known issues with this MOV actuator part number, and presumes that the proposed AD is for MOV actuator P/N MA30A1001.
We agree with the commenters' requests to limit the applicability specified in figure 1 and figure 2 to paragraph (g) of this AD to airplanes with the actuators on which the identified unsafe condition exists. Only two fuel shutoff valve actuator designs are susceptible to the identified unsafe condition specified in this final rule, and it would be unnecessarily burdensome to require the inspections on airplanes that do not have any of the susceptible valves installed. We have changed the Applicability column in figure 1 and figure 2 to paragraph (g) of this AD to clarify that the limitations apply to Model 757 airplanes on which fuel shutoff valve actuator P/N MA20A2027 (Boeing P/N S343T003-56) or P/N MA30A1001 (Boeing P/N S343T003-66) is installed at the engine and APU fuel shutoff valve positions.
AA and US Airways requested that the compliance time for the initial accomplishment of the operational
AA requested that the compliance time be revised to 60 days after accomplishing the maintenance or inspection program revision. AA stated that the extended time of 60 days is for publishing the new criteria, for distribution of cards and manuals/checklists, and for the initial compliance time to be taken into account. AA stated that the 7-day compliance time is not justified by the failure rates for this safety concern. AA also stated that the compliance deadline would therefore become unclear.
US Airways requested that the compliance time be extended to 7 days after the 30-day compliance time for the maintenance or inspection program revision. US Airways stated that accomplishing the initial compliance time based on completion of adding to the maintenance program would make the compliance deadline very difficult to track as making program changes is typically not a closely tracked process.
We partially agree with the commenters' requests to extend the initial compliance time for the actions specified in figure 1 to paragraph (g) of this AD. We have changed the initial compliance time for accomplishing the actions specified in figure 1 to paragraph (g) of this AD to 10 days. A compliance time of 10 days is consistent with regulatory actions for other affected airplane models and with the initial compliance time in figure 2 to paragraph (g) of this AD. We have determined that the initial compliance time for the check represents an appropriate time in which the required actions can be performed in a timely manner within the affected fleet, while still maintaining an adequate level of safety.
In developing an appropriate compliance time, we considered the safety implications, parts availability, and normal maintenance schedules for timely accomplishment of the operational checks. The manufacturer does not expect a large number of latently failed fuel shutoff valve actuators to be discovered. Existing parts stores are expected to be sufficient, and parts can be repositioned in time to support the initial checks. However, under the provisions of paragraph (i)(1) of this AD, we might consider requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.
US Airways requested that the compliance time intervals be changed to specify flight cycles. US Airways stated that it has heard of no evidence suggesting the subject condition is a function of time and believes the condition would likely only occur either at engine or APU start or shutdown. US Airways also stated that it and other operators utilize its airplanes on long-haul trips that span many time zones. US Airways stated that, according to a report from the airplane manufacturer during the fourth quarter of 2013, 68 percent of the operators had a daily utilization rate of 3.3 flight cycles, and 95.4 percent had a daily utilization rate of 4.7 flight cycles.
We disagree with the commenter's request. While the failure of the fuel shutoff valve is likely associated with the cycling of the valve, the purpose of the inspections is to minimize the exposure to flights that are initiated with a fuel shutoff valve actuator that is latently failed in the open position. Operators may request approval of an AMOC in accordance with the provisions specified in paragraph (i)(1) of this AD to change the interval to a cycle-based interval, provided it includes at least one check each day for the engine fuel shutoff valves and that the data substantiate that the request would provide an acceptable level of safety. We have not changed this AD in this regard.
AA and UAL requested that the daily repetitive inspection interval for the engine fuel spar valve be extended.
AA requested that we add a choice to the proposed AD (79 FR 12431, March 5, 2014) to allow monitoring the disagreement light in combination with checking the actuator itself every 100 flight hours or 50 flight cycles, whichever occurs later. AA stated that this means to check the indication and physically check the closure of the engine and APU fuel spar valve at 100 flight hours or 50 flight cycles, whichever occurs later, as an alternative maintenance task. AA stated that Model 767-400 series airplanes identified in the NPRM having Directorate Identifier 2013-NM-237-AD (79 FR 12420, March 5, 2014) are allowed 10 days to inspect the spar valve actuator arm when it is fully closed and commanded closed. AA stated that 10 days equates closely to 100 flight hours/50 flight cycles. AA also stated that Model 757 and 767 airplanes have the same actuator valve and indication, except that Model 767-400 series airplanes do not have a disagreement light.
UAL requested that we extend the daily interval for AWL number 28-AWL-ENG to 10 days. UAL stated that Model 757-200 and -300 series airplanes and Model 767-400 series airplanes use the same MOV actuator. UAL stated that the interval for Model 757-200 and -300 series airplanes is daily while the Model 767-400 series airplanes is 10 days.
We disagree with the commenters' requests. For the engine fuel shutoff valve, an interval increase from daily to every 10 days, or to the later of 100 flight hours or 50 flight cycles, would result in at least 10 times as many flights at risk of an uncontrollable engine fire. The daily check has been deemed practical because in practice it likely means the flightcrew will need to watch a light just above the FUEL CONTROL switch as they start or shut down the engine. As AA stated, Model 767-400ER series airplanes do not have the disagreement light, so the inspection is more complex. As a result, we determined it is not practical to require this inspection on a daily basis on Model 767-400ER airplanes. We have not changed the inspection interval for Model 757 airplanes addressed in this AD.
AA requested that any recurring interval include only the days or flight cycles when the airplane is in revenue service, or when an APU is in operational status. AA stated that the proposed AD (79 FR 12431, March 5, 2014) does not account for airplanes in routine maintenance or in an out-of-service condition. AA also proposed that a provision for the APU on the minimum equipment list (MEL) be included in the proposed AD. AA stated that once an APU is returned to service from the MEL, the “10 day or 100 flight hours/50 cycles whichever occurs later” interval would be restarted. AA stated that any task interval in the proposed AD should have the mechanism to exclude the elapsed time when the aircraft or APU is non-operational, since the latent failure finding task is not accumulating time toward a next potential latent failure.
We partially agree with the commenter's request. We agree to limit operational checks to days when the airplane is in revenue service or when an APU is in operational status because it would be unnecessarily burdensome to require the inspections on airplanes that are not in operation. We have
However, we disagree with restarting the 10-day interval once an APU is returned to service. The interval for the operational check of the APU fuel shutoff valve should not be extended simply because the APU was out of service for a time. It is likely that this check will be done as a matter of course whenever an APU is returned to service.
UAL requested that we add a requirement to the proposed AD (79 FR 12431, March 5, 2014) to provide electrical power before performing the operational check required by figure 1 and figure 2 to paragraph (g) of the proposed AD. UAL stated that electrical power is required to perform the check and other maintenance might be underway, which could deactivate required circuits.
We agree with the commenter's request because electrical power is required. In item C.1. of figure 1 and item A.2. of figure 2 to paragraph (g) of this AD, we have added an instruction to supply electrical power to the airplane using standard practices when performing the operational check.
Allegiant Air requested the proposed verbiage that states “(unless checked by the flightcrew in a manner approved by the principle [sic] operations inspector)” be revised to “the operational check can be performed either as a maintenance action or as a flightcrew action.” Allegiant Air stated that the proposed AD (79 FR 12431, March 5, 2014) allows either the flightcrew or maintenance crew to perform the operational check. Allegiant Air stated that section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)) requires the affected operator to accomplish the test provided by the airworthiness limitation. Allegiant Air also stated that FAA Master Minimum Equipment List (MMEL), Policy Letter 25, Revision 16, dated April 2, 2010 (PL-25 is designated as MMEL Global Change GC-164) (
We partially agree with the commenter's request. We agree that the AWL allows either the flightcrew or maintenance crew to perform the operational check. We consider it to be very important that the expectations as to what must be done to check the operation of the fuel shutoff valve, as defined in figures 1 and 2 to paragraph (g) of this AD, be well understood by all parties, and yet we want to provide the maximum flexibility to operators.
If an operator chooses to have the flightcrew accomplish the check, the POI is in the best position to make sure this check is done properly. However, it is also acceptable for an operator to choose to accomplish the check as a maintenance action and record compliance as specified in section 43.11(a) of the Federal Aviation Regulations (14 CFR 43.11(a)) without POI involvement. In addition, affected operators may apply for approval of an AMOC in accordance with the provisions specified in paragraph (i)(1) of this AD by submitting data substantiating that the request would provide an acceptable level of safety. We have not changed the AD in this regard.
US Airways requested clarification on the use of the MEL. US Airways asked if operators may still apply the MEL and be in compliance with the requirements of the proposed AD (79 FR 12431, March 5, 2014) if the SPAR VALVE light becomes inoperative. US Airways stated the maintenance action specified by the MEL should meet the intent of the proposed AD (79 FR 12431, March 5, 2014). US Airways stated that the operational checks in figure 1 to paragraph (g) of the proposed AD are predicated on the SPAR VALVE light being operative. US Airways also stated that MEL 28-40-2 of the FAA Boeing B757 Master Minimum Equipment List (MMEL), Revision 30a, dated June 9, 2014, provides relief should the indication be inoperative, and the proposed AD requirements should provide the same relief.
We disagree with providing MEL relief for an inoperative fuel shutoff valve indication because MEL relief could potentially allow the fuel shutoff valve to be inoperative for up to 10 days of revenue operation. However, we do agree to provide flexibility in regard to verification that the fuel shutoff valve actuator is operational. In figure 1 to paragraph (g) of this AD, we have added item D., “Perform an Inspection to the Fuel Spar Valve MOV Actuator Position,” to verify the valve is closing, which can be used when the fuel shutoff valve indication does not function properly.
US Airways requested that we provide a more complete explanation of the requirements regarding the documentation of accomplishment of the requirements of the proposed AD (79 FR 12431, March 5, 2014). US Airways stated that typically, AD-mandated actions require documentation of accomplishment. US Airways stated that it should be made clear whether logbook entries would be required should the flightcrew perform the required actions in an approved manner, such as part of a procedure checklist.
We agree that clarification is necessary. This AD requires including the information in figure 1 and figure 2 of paragraph (g) of the AD in the maintenance or inspection program. However, the AD does not require accomplishing the actions specified in figure 1 and figure 2 of paragraph (g) of the AD. The actions specified in the figures in this AD are done, and remain enforceable, as part of the airworthiness limitations of the Instructions for Continued Airworthiness. Section 43.11(a) of the Federal Aviation Regulations (14 CFR 43.11(a)) requires maintenance record entries for maintenance actions such as the required checks. If an operator elects to have a flightcrew member do the check in accordance with the applicable airworthiness limitation, that same action would be considered an operational task (not maintenance), and therefore 14 CFR 43.11(a) would not apply. In that case, operators should follow their normal processes for operational activities, including necessary POI involvement. We have not changed this AD in this regard.
UAL requested that we clarify certain requirements of the proposed AD (79 FR 12431, March 5, 2014). UAL stated that, in figure 1 to paragraph (g) of the proposed AD, item C.5.a. and item C.6.a. (item C.6.a. and item C.7.a., respectively, in this AD) instruct to move the left and right FUEL CONTROL switches, respectively, to the RUN position, but do not instruct to monitor the left and right SPAR VALVE disagreement lights, unlike item C.5.c and item C.6.c. of the proposed AD. UAL stated that it presumes it is not required to verify the left and right SPAR VALVE disagreement lights when the left and right FUEL CONTROL switches are moved to the RUN position.
We agree to provide clarification. It is not required to verify the left and right SPAR VALVE disagreement lights when the left and right FUEL CONTROL switches are moved to the RUN position during that portion of the operational check. We have not changed this AD in this regard.
The model designation for The Boeing Company Model 757 airplanes is missing from the
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously, and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (79 FR 12431, March 5, 2014) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 12431, March 5, 2014).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We consider this AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.
We estimate that this AD affects 590 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 21, 2015.
None.
This AD applies to all The Boeing Company Model 757-200, -200PF, -200CB, and -300 series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by reports of latently failed fuel shutoff valves discovered during fuel filter replacement. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine and auxiliary power unit (APU), which could result in the inability to shut off fuel to the engine and APU and, in case of certain fires, an uncontrollable fire that could lead to structural failure.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to add airworthiness limitations Nos. 28-AWL-ENG and 28-AWL-APU, by incorporating the information specified in figure 1 and figure 2 to paragraph (g) of this AD into the Airworthiness Limitations Section of the Instructions for Continued Airworthiness. The initial compliance time for accomplishing the actions specified in figure 1 and figure 2 to paragraph (g) of this AD is within 10 days after accomplishing the maintenance or inspection program revision required by this paragraph.
After accomplishment of the maintenance or inspection program revision required by paragraph (g) of this AD, no alternative actions (
(1) The Manager, Seattle Aircraft Certification Office (ACO) FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 767 airplanes. This AD was prompted by reports of latently failed fuel shutoff valves discovered during fuel filter replacement. This AD requires revising the maintenance or inspection program to include new airworthiness limitations. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine and auxiliary power unit (APU), which
This AD is effective October 21, 2015.
You may examine the AD docket on the Internet at
Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 767 airplanes. The NPRM published in the
In preparation of AD actions such as NPRMs and immediately adopted rules, it is the practice of the FAA to obtain technical information and information on operational and economic impacts from design approval holders and aircraft operators. We discussed certain comments addressed in this final rule in a teleconference with Airlines for America (A4A) and other members of the aviation industry. All of the comments discussed during this teleconference are addressed in this final rule in response to comments submitted by other commenters. A discussion of this contact can be found in the rulemaking docket at
Throughout the preamble of this final rule, commenters may have used the terms “fuel shutoff valve” and “fuel spar valve” interchangeably. Both terms refer to the same part. In our responses to comments, we have used the term “fuel shutoff valve.” The term “fuel spar valve” is more commonly used in airplane maintenance documentation and, therefore, we have used that term in figure 1 and figure 2 to paragraph (g) of this AD.
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 12420, March 5, 2014) and the FAA's response to each comment.
American Airlines (AA) stated that Boeing's internal review found that the issue addressed by the NPRM (79 FR 12420, March 5, 2014) is not a safety concern, and Boeing has not recommended any interim action on this issue. In addition, AA stated that Boeing is addressing the issue in the long term with a design change to the motor-operated valve (MOV) actuator of the fuel shutoff valve.
All Nippon Airways (ANA) stated it agrees with a statement in “767-FTD-28-12003 issued by Boeing” indicating that the combination of the events (engine fire and spar valve failures) is extremely improbable. ANA requested clarification of the rationale for the proposed intervals. ANA stated that it has operated more than 100 Model 767 airplanes for approximately 30 years and has never had such failure with the MOVs.
We infer that AA and ANA requested that the NPRM (79 FR 12420, March 5, 2014) be withdrawn.
We disagree with the commenters' request to withdraw the NPRM (79 FR 12420, March 5, 2014). We have determined that an unsafe condition exists that warrants an interim action until the manufacturer finishes developing a modification that will address the identified unsafe condition. Boeing did not formally comment on whether it considers this issue to be an unsafe condition. We have determined that, without the required interim actions, a significant number of flights with a fuel shutoff valve actuator that is failed latently in the open valve position will occur during the affected fleet life. With a failed fuel shutoff valve, if certain fire conditions were to occur, or if extreme engine or APU damage were to occur, or if an engine separation event were to occur during flight, the crew procedures for such an event would not stop the fuel flow to the engine strut and nacelle or APU. The continued flow of fuel could cause an uncontrolled fire or lead to a fuel exhaustion event.
The FAA regulations require all transport airplanes to be fail safe with respect to engine or APU fire events, and the risk due to severe engine or APU damage events to be minimized. Therefore, we require, for each flight, sufficiently operative fire safety systems so that fires can be detected and contained, and fuel to the engine strut and nacelle or APU can be shut off in the event of an engine or APU fire or severe damage.
The FAA airworthiness standards require remotely controlled powerplant valves to provide indications that the valves are in the commanded position. These indications allow the prompt detection and correction of valve failures. We do not allow dispatch with a known inoperative fuel shutoff valve. Therefore, we are proceeding with the final rule—not because of the higher-than-typical failure rate of the particular valve actuator involved, but instead because the fuel shutoff valve actuator can fail in a manner that also defeats the required valve position indication feature. That failure can lead to a large number of flights occurring on an airplane with a fuel shutoff valve actuator failed in the open position without the operator being aware of the failure. Airworthiness limitations containing required inspections are intended to limit the number of flights following latent failure of the fuel shutoff valve. Issuance of an AD is the appropriate method to correct the unsafe condition. We have not changed this final rule in this regard.
Delta Airlines (DAL) and United Airlines (UAL) requested that we revise the proposed AD (79 FR 12420, March 5, 2014) to limit the applicability specified in figure 1, figure 2, and figure 3 to paragraph (g) of the proposed AD
DAL stated that it would be feasible to implement configuration control to ensure that part number (P/N) MA30A1001 is removed, and does not get installed in the engine or APU fuel shutoff valve positions in the future. DAL stated it would replace any P/N MA30A1001 actuators that are currently in those locations with actuators of a different acceptable part number, which would, in turn, alleviate the unsafe condition given in the NPRM (79 FR 12420, March 5, 2014). DAL stated that if an operator does not have P/N MA30A1001 installed on any engine or APU fuel shutoff valve positions, then that operator would not be required to adhere to airworthiness limitations 28-AWL-ENG, 28-AWL-MOV, or 28-AWL-APU.
UAL stated that the proposed AD (79 FR 12420, March 5, 2014) does not specify which part number of the MOV actuator is applicable to the proposed AD. UAL stated that proposed ADs were issued for Model 737NG, 757, 767, and 777 airplanes to replace the MOV actuator with P/N MA30A1001. UAL also stated that there are issues with the MOV actuator part number, and presumes that the proposed AD is for MOV actuator P/N MA30A1001.
We agree with the commenters' request. Only two fuel shutoff valve actuator designs are susceptible to the unsafe condition specified in this final rule, and it would be unnecessarily burdensome to require the inspections on airplanes that do not have any of the susceptible valves installed. We have changed the Applicability column in figure 1, figure 2, and figure 3 to paragraph (g) of this AD to clarify that the limitations apply to Model 767 airplanes having fuel shutoff valve actuator P/N MA20A2027 (S343T003-56) or P/N MA30A1001 (S343T003-66) installed at the engine or APU fuel shutoff valve position, as appropriate.
AA requested that the compliance time for the initial accomplishment of the actions specified in figure 1, figure 2, and figure 3 to paragraph (g) of the proposed AD (79 FR 12420, March 5, 2014) be extended from 7 days to 60 days. AA stated that more time is needed for publishing the new criteria and for distribution of cards and manuals/checklists. AA stated that the 7-day compliance time is not justified by the failure rates for this safety concern.
We partially agree with the commenter's request. We have changed the initial compliance time to 10 days for accomplishing the actions specified in figure 1, figure 2, and figure 3 to paragraph (g) of this AD. The compliance time of 10 days is consistent with regulatory actions for other affected models. We have determined that the initial compliance time for the inspection represents an appropriate time in which the required actions can be performed in a timely manner within the affected fleet, while still maintaining an adequate level of safety.
In developing an appropriate compliance time, we considered the safety implications, parts availability, and normal maintenance schedules for timely accomplishment of the operational checks. The operational check procedures and the access procedures are simple and already established. The check itself involves a visual inspection of an existing prominent design feature that is intended to indicate the position of the fuel shutoff valve actuator and is described in existing maintenance documentation. The manufacturer does not expect a large number of latently failed valve actuators to be discovered. Existing parts stores are expected to be sufficient, and parts can be repositioned in time to support the initial inspections. However, under the provisions of paragraph (i)(1) of this AD, we might consider requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.
Boeing requested that the proposed requirement to “incorporate the MOV actuator inspection into the Airworthiness Limitations (AWL) Section of the Instructions for Continued Airworthiness of operator's maintenance or inspection programs” be replaced with an AD requirement to perform the MOV inspection per the specific interval in paragraph (g) of the proposed AD (79 FR 12420, March 5, 2014). Boeing stated that the MOV inspection in paragraph (g) of the proposed AD is an interim mitigation until a redesigned MOV can be installed in the spar valve locations. Boeing stated that including the interval requirement as the required AD action would allow installation of the redesigned MOV to be approved as an alternative method of compliance (AMOC) to the AD, and as a terminating action for the repetitive inspections, while avoiding the need for regulatory approval to remove the AWL from each operator's maintenance or inspection program. In addition, Boeing stated the AWLs are permanent actions that affect operators' planning and scheduling, and that incorporating a temporary AWL into the operators' maintenance documents or a Boeing maintenance planning data (MPD) document will cause confusion among operators.
We disagree with the commenter's request. During the development of the NPRM (79 FR 12420, March 5, 2014), we discussed the impact of an AWL revision versus a repetitive inspection requirement with Boeing, who, in turn, discussed it with a sample of operators. At that time, both Boeing and the operators indicated that the addition of an AWL was the preferred solution because it would reduce the record keeping required to document AD compliance. Affected operators who wish to use a repetitive inspection requirement in place of an AWL revision may apply for approval of an AMOC in accordance with the provisions specified in paragraph (i)(1) of this AD by submitting data substantiating that the request would provide an acceptable level of safety. We have not changed this AD in this regard.
UAL asked whether there are any provisions established by the FAA to extend the daily inspection requirement if the reliability data are captured. UAL stated that there is no valid justification for this short time limit that creates a burden on airline operations.
We disagree with the commenter's request. Our unsafe condition determination is primarily driven by the potential for a common-cause failure of the valve and its position indication—and not by a lack of reliability. We are aware that this failure has happened in service, and we expect that tens of thousands of flights will occur with this valve failed in the open position without indicating the failure unless frequent inspections are made. Fortunately, the effort required to check the valve operation is small for most airplanes. For Model 767-200 and -300 series airplanes, we expect that most airlines will have the flightcrew monitor a light near the switch they are using to shut down the engine. The total time needed should be less than a few seconds. In addition, new fuel shutoff valve actuators are being developed that will allow removal of this requirement once they are installed. Therefore, we have no plans to extend the interval
UAL noted there is no provision in the proposed AD (79 FR 12420, March 5, 2014) to allow a waiver of the daily inspection requirements if an airplane is out of service for any reason or in a remote station where the daily inspection cannot be accomplished. Air Do asked if the daily check must be done once a day even if the airplane does not have a flight plan. We infer the commenters are requesting that we revise the proposed AD to allow exceptions to the daily check specified in figure 1 to paragraph (g) of the proposed AD.
AA requested that the proposed AD (79 FR 12420, March 5, 2014) be clarified to specify that daily checks only apply when the airplane is in operational revenue service. AA also stated to restart the interval of 10 days or 100 flight hours/50 cycles, whichever occurs later, once an APU is returned to service from the minimum equipment list.
We partially agree with the commenters' requests. We agree to limit inspections to days when the airplane is in revenue service or when the APU is in operational status because it would be unnecessarily burdensome to require the inspections on airplanes that are not in operation. In figure 1, figure 2, and figure 3 to paragraph (g) of this AD, we have added a note in the Interval column to clarify that the operational check is not required on days when the airplane is not used in revenue service. For figure 1 to paragraph (g) of this AD, we also specify that the check of the engine fuel shutoff valve must be done before further flight once the airplane is returned to revenue service. In figure 2 and figure 3 to paragraph (g) of this AD, we have specified that the check or inspection must be done before further flight if it has been 10 or more calendar days since last check or inspection.
We disagree with restarting the 10-day cycle once an APU is returned to service because the APU fuel shutoff valve check should not be extended because the APU was out of service for a time. For the APU, it is likely that this test will be done as a matter of course whenever it is returned to service.
AA, ANA, DAL, and Japan Airlines (JAL) requested that the repetitive interval be extended for the actions specified in figure 1, figure 2, and figure 3 to paragraph (g) of the proposed AD (79 FR 12420, March 5, 2014).
AA requested that the repetitive inspection interval be extended to “10 days or 100 flight hours/50 flight cycles, whichever occurs later.” AA requested that we revise the proposed AD (79 FR 12420, March 5, 2014) to add the choice of monitoring the disagreement light to check the indication and physically check the closure of the valve at “100 flight hours/50 cycles whichever occurs later” as an alternative maintenance task. AA stated that operators of Model 767-400 series airplanes identified in the NPRM are allowed 10 days to inspect the spar valve actuator arm when it is fully closed and commanded closed. AA stated that the 10 days equates closely to “100 flight hours/50 cycles.” AA also stated that Model 767-200, -300, and -400 series airplanes have the same actuator valve and indication, except that Model 767-400 series airplanes do not have a disagreement light.
ANA stated it has reviewed the NPRM (79 FR 12420, March 5, 2014), and is disappointed with the intervals of the operational checks because the intervals are daily for engine fuel spar valves on Boeing Model 767-200, -300, and -300F series airplanes, and 10 days for APU fuel valves; the proposed intervals will definitely affect its operations. ANA stated that it does not have Model 767-400 airplanes, but that the operational effect is the same. ANA suggested a compliance time of “6,000 flight hours or 22 months whichever comes first” for both engine spar valves and APU fuel valves.
DAL stated that Model 767-300 and -400 series airplanes contain similar systems with respect to engine fuel shutoff. DAL stated that Model 767-300 and -400 series airplanes are also equipped with the same part number for the MOV actuator. DAL stated that, therefore, the failure modes between the two airplane models should be identical. DAL stated that since the FAA considers a 10-day interval sufficient for Model 767-400 series airplanes, and also for the APU fuel shutoff actuator for all Model 767 airplanes, it proposes to change the interval in figure 1 to paragraph (g) of this proposed AD to 10 days.
We disagree with the commenters' requests. Increasing the check interval from daily to every 10 days for the AWL task specified in figure 1 to paragraph (g) of this AD would result in 10 times as many flights at risk of an uncontrollable engine fire; the daily check has been deemed practical because in practice it will mean the flightcrew will need to watch a light just above the FUEL CONTROL switch as they start or shut down the engine. As AA stated, Model 767-400ER series airplanes do not have the disagreement light, so the inspection is more complex. As a result, regardless of how desirable a daily inspection would be, we determined it is not practical to require that inspection on a daily basis on Model 767-400ER series airplanes. We have not changed this AD in this regard.
As we discussed previously, the reason for this final rule is not simply a high valve failure rate in the open position, but rather a design error that allows a single failure within a fuel shutoff valve actuator to affect both the control of the valve and the indication of the valve's position. Currently these failures are only discovered during fuel filter changes, which occur every 6,000 flight hours. ANA's proposal is to check the system every 6,000 flight hours. A dedicated inspection every 6,000 flight hours would have little impact on the number of flights at risk. Indication and control of the fuel shutoff valve are not independent because of the design error in the affected valve actuators. For a failed fuel shutoff valve, the valve indication system erroneously reports that the valve is opening and closing. If no action is taken, we anticipate a significant number of flights to occur with a failed open fuel shutoff valve. Without this AD, our risk assessment and the manufacturer's risk assessment predict that tens of thousands of such flights would occur in the fleet of Model 767 airplanes.
In addition to this fuel shutoff valve design error, the affected valves have a higher-than-typical rate of failure in several failure modes. We have received several reports of valves failed open (discovered only when fuel filters were changed), valves failed closed (preventing engine start), and valves that spontaneously closed in flight (causing an engine shutdown). Boeing's long-term solution, a fuel shutoff valve actuator design change, is intended to address these issues in addition to restoring the independence of the actuator control and indication features. The APU, on the other hand, presents a much lower risk and is needed in flight on a small number of flights. In addition, normal APU starting procedures include this check on every start, so it is likely that this check is already being done on a more frequent basis. We have not changed this AD in this regard.
ANA requested that rationale be provided to justify the proposed inspection interval, including the interval differences between the engine
We agree to provide the requested rationale. While the potential for the problem is the same for Model 767 and Model 777 airplanes, the ability to check the system functionality is different. Both types of airplanes warrant a daily check, but we also consider the practicality of an inspection. On Model 767-200, -300, and -300F series airplanes, the flightcrew will need to watch the disagreement light located just above the FUEL CONTROL switch as they start or shut down the engine. Model 777 airplanes, like Model 767-400ER series airplanes, do not have a disagreement light so the inspection is more time consuming. As a result, regardless of how desirable a daily inspection would be for Model 777 airplanes, we determined it is not practical to require that inspection on a daily basis.
In regard to the APU, it is not run on every flight, so a properly functioning fuel shutoff valve is not needed for every flight. We decided to require the check every 10 days rather than try to monitor APU usage. Also, it should be noted that this check is part of a normal APU start, so it will likely be done on every start; this AD requires that it be done at least every 10 days. We have not changed this AD in this regard.
UAL requested instructions for compliance with the ETOPS requirement that would meet the operational check requirements. UAL requested that we revise the NPRM (79 FR 12420, March 5, 2014) to clarify whether standardized procedures will be established for inspectors to make approvals for all affected operators. UAL stated that since the affected airplanes have ETOPS approval, the NPRM should provide instructions for compliance with the ETOPS requirements. UAL asked that the FAA provide guidance to the principal operations inspector (POI) on required procedures that would meet the operational check requirements.
We agree that clarification is needed. We infer the commenter means that checks of the left and right engine fuel shutoff valves are done by different individuals due to ETOPS maintenance requirements. Since none of the required inspections include actions that could contribute to an engine shutdown, there is no common-cause engine shutdown potential and, therefore, no need for different individuals to perform the inspections on the left and right fuel shutoff valve actuators to meet ETOPS maintenance requirements. No additional guidance to the POIs is necessary.
DAL requested we expand the inspection at the spar for confirmation of functionality on Model 767-300 series airplanes using the same method of inspection and the same auxiliary power unit position as those for the Boeing Model 767-400 series airplanes. DAL stated that a check of the actual valve position every 10 days would be a more effective inspection. DAL stated that “FTD Article 767-FTD-28-12003” (Boeing Fleet Team Digest) states that, “The indication showed the valve had closed when it had failed in the open position.” DAL stated that the flight deck indication may not accurately reflect functionality.
We partially agree with the commenter's request. We agree to add an inspection option for Model 767-300 airplanes that is similar to the inspection for Model 767-400ER series airplanes. Therefore, for Model 767-200, -300, and -300F series airplanes, we have added item D. to figure 1 to paragraph (g) of this AD to specify a fourth option to perform a daily inspection to verify the fuel shutoff valve is closing. However, we disagree with extending the inspection interval to 10 days. As stated previously, increasing the inspection interval from every day to every 10 days for the AWL task specified in figure 1 to paragraph (g) of this AD would result in 10 times as many flights at risk of an uncontrollable engine fire.
UAL requested that we revise the proposed AD (79 FR 12420, March 5, 2014) to add a requirement to provide electrical power before performing the operational check required by figure 3 to paragraph (g) of the proposed AD. UAL stated that electrical power is required to perform the check, and other maintenance may be done that could deactivate required circuits.
We agree with the commenter's request because electrical power is required. In figure 1 and figure 3 to paragraph (g) of this AD, we have added a requirement to supply electrical power to the airplane using standard practices when performing the operational check.
Air Do stated that, if the flightcrew performed the operational check, the maintenance record is usually not created. The commenter questioned whether this is acceptable, or whether the flightcrew should record it in the flight log.
UAL requested clarification on whether the flightcrew will not have to record compliance for one of the checks and that documentation for each inspection on every airplane need not be made if relying on flightcrew compliance with the proposed AD.
JAL requested that the FAA coordinate with Boeing to include an appropriate check procedure in the Normal Procedure (NP) section of the flightcrew operating manual (FCOM).
We find that clarification is necessary. This AD requires including the information specified in figure 1, figure 2, and figure 3 of paragraph (g) of the AD in the maintenance or inspection program; however, the actions specified in the figures in this AD are accomplished, and remain enforceable, as part of the Airworthiness Limitations of the Instructions for Continued Airworthiness. Section 43.11(a) of the Federal Aviation Regulations (14 CFR 43.11(a)) requires maintenance record entries for maintenance actions such as this inspection. If an operator elects to have a flightcrew member do an inspection in accordance with the applicable airworthiness limitation, that same action would be considered an operational task—not maintenance—and therefore 14 CFR 43.11(a) would not apply. Regarding JAL's comment, an FCOM is a Boeing document that we neither approve nor control. We have not changed this AD with regard to these issues.
UAL requested that we clarify the requirements in figure 1 to paragraph (g) of the proposed AD (79 FR 12420, March 5, 2014). UAL stated that items C.6.a. and C.7.a. of figure 1 to paragraph (g) of the proposed AD instruct to move the L and R FUEL CONTROL switches, respectively, to the RUN position, but do not instruct to monitor the left and right SPAR VALVE disagreement lights, unlike item C.6.c. and item C.7.c. UAL stated that it presumes it is not required to verify the left and right SPAR VALVE disagreement lights when the L and R FUEL CONTROL switches are moved to the RUN position.
We agree to provide clarification. It is not required to verify the left and right
First Air requested clarification of the proposed corrective action for an inoperative indication—specifically, whether operators could still apply an MEL maintenance action and meet the intent of the NPRM (79 FR 12420, March 5, 2014). First Air stated that the operational checks in figure 1 to paragraph (g) of the proposed AD for engine spar valves are predicated on the SPAR VALVE light being operative. First Air stated that MEL 28-40-02 provides relief should the indication be inoperative.
We agree that clarification is needed. We disagree with providing MEL relief for an inoperative fuel shutoff valve indication because MEL relief could potentially allow the valve to be inoperative for up to 10 days of revenue operation. However, we do agree to provide flexibility regarding verification that the fuel shutoff valve actuator is operational. We have added item D. to figure 1 to paragraph (g) of this AD to specify a fourth option to perform a daily inspection to verify the fuel shutoff valve is closing, which can be used when the fuel shutoff valve indication does not function properly.
UAL requested that a statement be included in the proposed AD (79 FR 12420, March 5, 2014) to clarify that it is not required to cycle the L and R FUEL CONTROL switches, as specified in Boeing Airplane Maintenance Manual (AMM) 28-22-00, for the ALI task specified in figure 2 to paragraph (g) of the proposed AD.
We agree with the commenter's request. We have added a note in figure 2 to paragraph (g) of this AD stating that it is not necessary to cycle the FUEL CONTROL switch to do the inspection.
UAL requested that a typographical error be corrected in the NPRM (79 FR 12420, March 5, 2014). UAL stated that figure 1 to paragraph (g) of the NPRM states, “Item C.4 instructs to make sure Land R ENG START selector switches on the overhead panel are in the OFF position.” UAL stated that this is a typographical error and the selector switches should be L and R ENG START selector switches.
We agree and have corrected the typographical error in figure 1 to paragraph (g) of this AD accordingly. Paragraph C.4. of figure 1 to paragraph (g) of this AD, as it appeared in the NPRM (79 FR 12420, March 5, 2014), has been re-designated as paragraph C.5. of figure 1 to paragraph (g) of this AD.
In the Description column of figure 2 to paragraph (g) of this AD, we have removed the phrase “refer to Boeing AMM 28-22-00” with regard to performing an inspection of the fuel spar valve MOV actuator position.
In paragraph C.7.a. in the Description column of figure 1 to paragraph (g) of this AD, and in paragraph A.5. in the Description column of figure 3 to paragraph (g) of this AD, we have added wording specifying to wait “approximately” 10 seconds once the FUEL CONTROL switch is in the RUN position or the APU selector switch on the overhead panel is in the ON position.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (79 FR 12420, March 5, 2014) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 12420, March 5, 2014).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We consider this AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we may consider additional rulemaking.
We estimate that this AD affects 450 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 21, 2015.
None.
This AD applies to all The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category.
Joint Aircraft System Component (JASC) Code 28, Fuel.
This AD was prompted by reports of latently failed fuel shutoff valves discovered during fuel filter replacement. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine and auxiliary power unit (APU), which could result in the inability to shut off fuel to the engine and APU and, in case of certain fires, an uncontrollable fire that could lead to structural failure.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to add airworthiness limitation numbers 28-AWL-ENG, 28-AWL-MOV, and 28-AWL-APU, by incorporating the information specified in Figure 1, Figure 2, and Figure 3 to paragraph (g) of this AD into the Airworthiness Limitations Section of the Instructions for Continued Airworthiness. The initial compliance time for accomplishing the actions specified in Figure 1, Figure 2, and Figure 3 to paragraph (g) of this AD is within 10 days after accomplishing the maintenance or inspection program revision required by this paragraph.
After accomplishment of the maintenance or inspection program revision required by paragraph (g) of this AD, no alternative actions (
(1) The Manager, Seattle Aircraft Certification Office (ACO) FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 777 airplanes. This AD was prompted by reports of latently failed fuel shutoff valves discovered during fuel filter replacement. This AD requires revising the maintenance or inspection program to include a new airworthiness limitation. We are issuing this AD to detect and correct latent failures of the
This AD is effective October 21, 2015.
You may examine the AD docket on the Internet at
Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 777 airplanes. The NPRM published in the
In preparation of AD actions such as NPRMs and immediately adopted rules, it is the practice of the FAA to obtain technical information and information on operational and economic impacts from design approval holders and aircraft operators. We discussed certain comments addressed in this final rule in a teleconference with Airlines for America (A4A) and other members of the aviation industry. All of the comments discussed during this teleconference that are relevant to this final rule are addressed in this final rule in response to comments submitted by other commenters. A discussion of this contact can be found in the rulemaking docket at
Throughout the preamble of this final rule, commenters may have used the terms “fuel shutoff valve” and “fuel spar valve” interchangeably. Both terms refer to the same part. In our responses to comments, we have used the term “fuel shutoff valve.” The term “fuel spar valve” is more commonly used in airplane maintenance documentation and, therefore, we have used that term in figure 1 to paragraph (g) of this AD.
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 1772, January 10, 2014) and the FAA's response to each comment.
American Airlines (AA) stated that Boeing's internal review found that the issue addressed by the NPRM (79 FR 1772, January 10, 2014) is not a safety concern, and that Boeing has not recommended any interim action on this issue. In addition, AA stated that Boeing is addressing the issue in the long term with a design change to the motor-operated valve (MOV) actuator. We infer AA is requesting that the NPRM be withdrawn.
We disagree with the commenter's request to withdraw the NPRM (79 FR 1772, January 10, 2014). We have determined that an unsafe condition exists that warrants an interim action until the manufacturer finishes developing a modification that will address the identified unsafe condition. Boeing did not formally comment on whether it considers this issue to be an unsafe condition. We have determined that, without the required interim actions, a significant number of flights with a fuel shutoff valve actuator that is failed latently in the open valve position will occur during the affected fleet life. With a failed fuel shutoff valve, if certain engine fire conditions were to occur, or if extreme engine damage were to occur, or if an engine separation event were to occur during flight, the crew procedures for such an event would not stop the fuel flow to the engine strut and nacelle. The continued flow of fuel could cause an uncontrolled fire or lead to a fuel exhaustion event.
The FAA regulations require all transport airplanes to be fail safe with respect to engine fire events, and the risk due to severe engine damage events be minimized. Therefore, we require, for each flight, sufficiently operative fire safety systems so that fires can be detected and contained, and fuel to the engine strut and nacelle can be shut off in the event of an engine fire or severe damage.
The FAA airworthiness standards require remotely controlled powerplant valves to provide indications that the valves are in the commanded position. These indications allow the prompt detection and correction of valve failures. We do not allow dispatch with a known inoperative fuel shutoff valve. Therefore, we are proceeding with the final rule—not because of the higher-than-typical failure rate of the particular valve actuator involved, but instead because the fuel shutoff valve actuator can fail in a manner that also defeats the required valve position indication feature. That failure can lead to a large number of flights occurring on an airplane with a fuel shutoff valve actuator failed in the open position without the operator being aware of the failure. An airworthiness limitation containing required inspections is intended to limit the number of flights following latent failure of the fuel shutoff valve. Issuance of an AD is the appropriate method to correct the unsafe condition. We have not changed this AD in this regard.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, requested that we revise the NPRM (79 FR 1772, January 10, 2014) to add more details on the frequency of valve failure findings, and the associated root cause driving the proposed weekly inspection interval versus the existing maintenance planning data (MPD) document check interval of 18,000 flight hours.
We agree with EASA's request to provide further clarification. As we mentioned in a previous comment response, the reason for this final rule is not simply a high fuel shutoff valve failure rate, but is rather a design error that allows a single failure within a fuel shutoff valve to affect both the control
The 18,000-hour check in the MPD document was recommended based on the assumption that the indication of the fuel shutoff valve position would not be affected by failures that affect the control of the valve. With the intended design, there was not a potential for a significant number of flights to occur with a fuel shutoff valve failed open (even if the valve was never checked), because the indication system was to provide real-time indication of the valve's response to commands.
With the design error that exists in the affected fuel shutoff valve actuators, indication and control of the valve are not independent, and if no action is taken, we anticipate a significant number of flights to occur with a fuel shutoff valve failed open. Without the issuance of this final rule, our risk assessment and the manufacturer's risk assessment predict that thousands of flights of Model 777 airplanes would be conducted with latent fuel shutoff valve failures.
In addition to the design error described previously, the affected fuel shutoff valves have a higher-than-typical rate of failure in several failure modes. We have received several reports of valves failed open (discovered only when fuel filters were changed), of valves failed closed (preventing engine start), and of valves that spontaneously closed in flight (causing an engine shutdown). Boeing's long-term solution to provide a redesigned MOV actuator is intended to address these issues in addition to restoring the independence of the actuator control and indication features. We have not changed this final rule in this regard.
Singapore Airlines (SIA) requested that the FAA consider delaying the release of the final rule until after the Boeing service information is issued and sufficient model kits are made available. SIA also requested that Boeing provide warranty coverage for the post-modified part replacement and warranty coverage for the man-hours incurred.
We disagree with the commenter's request to postpone releasing the final rule. Because this unsafe condition could exist or develop on Model 777 airplanes, an airworthiness limitation containing repetitive inspections as an interim action is necessary to ensure the safety of the fleet. Issuance of an AD is the appropriate method to correct the unsafe condition.
In addition, the manufacturer does not expect a large number of latently failed valve actuators to be discovered. Existing parts stores are expected to be sufficient, and parts can be repositioned in time to support the initial inspections. A functioning fuel shutoff valve is required at dispatch. This position is consistent with the original determination in developing the master minimum equipment list (MMEL) that dispatch relief is not allowed for fire-safety-related flammable fluid shutoff valves (other than in a locked, closed position for non-required equipment). However, under the provisions of paragraph (i)(1) of this AD, we might consider requests for an adjustment to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety. In regard to providing warranty coverage, we cannot comment on Boeing's behalf on this issue. We have not changed the final rule in this regard.
EASA requested clarification on whether similar designs on other airplanes could exist. EASA stated that this would be the basis for a design review of parts of similar design.
We agree to provide clarification for the commenter. This AD is applicable to certain Model 777 series airplanes only. Similar AD action is planned for Model 737NG, 757, 767, and 787 series airplanes. At this time, our understanding is that no other manufacturer's airplanes are affected by this specific design problem. We have not changed the final rule in this regard.
AA requested that we revise the NPRM (79 FR 1772, January 10, 2014) to include the estimated costs for the repetitive inspections of the MOV actuator of the fuel shutoff valve. AA stated that the cost included in the NPRM does not account for the cost of the ongoing inspections. AA stated that the NPRM reflects only the first inspection. AA also stated that the annual cost of compliance will be 52 times greater, or $839,800, if the inspection is accomplished weekly. AA stated that these costs should be included for operator planning purposes.
We acknowledge the commenter's concern. In this AD, the required action is to revise the maintenance or inspection program, as applicable, to include a new airworthiness limitation. The added airworthiness limitation requires an inspection of the position of the MOV actuator of the fuel shutoff valve every 10 days. However, these repetitive inspections, which are expected to take less than an hour to complete, are required by section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)) once incorporated into the maintenance or inspection program.
The cost analysis in AD rulemaking actions typically includes only the costs associated with complying with an AD. In this AD, the required action is the maintenance or inspection program revision, as applicable, to include the new airworthiness limitation, and accomplishing repetitive actions that are specified in the airworthiness limitation are not directly required by this AD. The FAA, as a matter of practice, does not include a cost estimate for these repetitive actions in an AD because these actions are required as part of the operating rules. Therefore, we have made no change to this final rule in this regard.
Air France, AA, Boeing, and KLM Royal Dutch Airlines (KLM) requested that the proposed applicability be changed to include only Model 777 airplanes having line numbers 1 through 1164 inclusive.
Air France and KLM stated that Boeing Fleet Team Digest 777-FTD-28-12002, dated January 10, 2014, indicated that airplanes delivered December 2013 or later incorporate AIMS-2 BlockPoint (BP) v 17, which has a new function that avoids latently failed fuel shutoff valves.
Boeing stated that, beginning with line number 1165, all new production airplanes will be delivered with AIMS-2 BP v 17 or later software. Boeing also stated that starting with AIMS-2 BP v 17, all AIMS-2 software versions will include changes to ensure that the correct fuel shutoff valve position is displayed in the flight deck, and that the software will monitor both the valve transition and the end state to ensure the correct position indication.
Boeing also requested that the proposed applicability be limited to Model 777 airplanes with part number (P/N) MA20A2027 (S343T003-56) or P/N MA30A1001 (S343T003-66) actuators installed at the “engine fuel spar valve locations.” Boeing stated that the failure mode exists only in actuators having these part numbers. Boeing stated that actuators having P/N MA20A1001-1 (S343T003-39) might be installed in the “fuel spar valve location,” and that actuators having P/N MA20A1001-1 (S343T003-39) are not susceptible to the latent failure addressed by the NPRM (79 FR 1772, January 10, 2014),
We agree that the applicability of this AD should be limited. We have changed paragraph (c) of this AD to include only Model 777 airplanes having line numbers 1 through 1164 inclusive. In addition, in figure 1 to paragraph (g) of this AD, we have changed the Applicability column for Airworthiness Limitation (AWL) 28-AWL-MOV to clarify that the limitation applies to airplanes with the AIMS-1 system having an actuator with P/N MA20A2027 (S343T003-56) or P/N MA30A1001 (S343T003-66) installed at the engine fuel spar valve position; and airplanes with AIMS-2 BP v 16 and earlier software having an actuator with P/N MA20A2027 (S343T003-56) or P/N MA30A1001 (S343T003-66) installed at the engine fuel spar valve position.
AA requested clarification of the proposed terminating action. AA stated the NPRM (79 FR 1772, January 10, 2014) is an interim action, and no information is provided regarding the terminating action. AA stated that, if issued, the final rule should contain sufficient documentation to clearly establish the effectivity of Model 777 airplanes subject to the rule, and to terminate the inspection program on the subject airplanes. AA stated that Boeing Fleet Team Digest 777-FTD-28-12002, dated January 10, 2014, among others, addresses the corrective action plan that is in progress.
We agree to provide clarification regarding the modification referenced in the NPRM (79 FR 1772, January 10, 2014). Since the issuance of the NPRM, the manufacturer has developed a modification that addresses the unsafe condition identified in this final rule. However, the service information is not available at this time. Since we have limited the applicability of this AD to exclude all new production airplanes that are delivered with AIMS-2 BP v 17 or later software, as explained previously, we find that no further change to this AD is necessary in this regard.
For the affected airplanes, there will likely be two possible terminating options—one to replace the fuel shutoff valve actuator, and another to upgrade airplanes with AIMS-2 systems to BP v 17 to address the unsafe condition. Because service information for these modifications is still being developed, we have not changed this final rule in this regard.
Boeing requested that the proposed requirement to incorporate the MOV actuator inspection into the AWL Section of the Instructions for Continued Airworthiness of the operator's maintenance or inspection program be replaced with an AD requirement to “perform the MOV inspection every 10 days.” Boeing stated that the MOV inspection is an interim mitigation and is required only until a redesigned MOV can be installed in the spar valve locations. Boeing stated that including the 10-day test requirement as the required AD action would allow installation of the redesigned MOV to be approved as an alternative method of compliance (AMOC) to the AD, and as a terminating action for the repetitive inspections, while avoiding the need for regulatory approval to remove the AWL from each operator's maintenance or inspection program. In addition, Boeing stated the AWLs are permanent actions that affect operators' planning and scheduling, and that incorporating a temporary AWL into the operators' maintenance documents or a Boeing MPD document will cause confusion among operators.
We disagree with the commenter's request. During the development of the NPRM (79 FR 1772, January 10, 2014), we discussed the impact of an AWL revision versus a repetitive inspection requirement with Boeing, who, in turn, discussed it with a sample of operators. At that time, both Boeing and the operators indicated that the addition of an AWL revision was the preferred solution because it would reduce the record keeping required to document AD compliance. Affected operators who wish to use a repetitive inspection requirement in place of an AWL may apply for approval of an AMOC in accordance with the provisions specified in paragraph (i)(1) of this AD, by submitting data substantiating that the request would provide an acceptable level of safety. We have not changed this AD in this regard.
AA requested that we extend the grace period for performing the initial inspection required by the new AWLs. AA stated that it is a complicated logistical matter to establish a new line maintenance task at stations throughout the world, and that there is a “learning curve to acclimate the line maintenance organizations to the new task.” In addition, AA stated that the existing inventory of actuators at maintenance stations may be insufficient to replace any failed valves discovered through the inspections, resulting in grounded airplanes, and that ordering new valves from the vendor generally takes at least 30 days.
We partially agree with the commenter's request. We retained the 30-day compliance time for revising the maintenance or inspection program, as applicable, to include the new AWL. In addition, we have changed the initial compliance time for accomplishing the actions specified in figure 1 to paragraph (g) of this AD to 10 days. The compliance time of 10 days is consistent with other regulatory actions on other affected airplane models.
We have determined that the initial compliance time for the inspection represents an appropriate time in which the required actions can be performed in a timely manner within the affected fleet, while still maintaining an adequate level of safety. In developing an appropriate compliance time, we considered the safety implications, parts availability, and normal maintenance schedules for timely accomplishment of the checks.
The check itself involves a visual inspection of an existing prominent design feature that is intended to indicate the position of the fuel shutoff valve actuator. This check is also described in existing maintenance documentation. The manufacturer does not expect a large number of latently failed valve actuators to be discovered. Existing parts stores are expected to be sufficient, and we expect that parts can be repositioned in time to support the initial inspections. However, under the provisions of paragraph (i) of this AD, we might consider requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.
Aerologic GmbH, Air France, All Nippon Airways (ANA), AA, Boeing, FedEx, Japan Airlines Company Ltd. (JAL), KLM Royal Dutch Airlines (KLM), Lufthansa Technik AG (LTK), and Lufthansa Cargo AG (LUB) requested that we change the interval for the MOV actuator inspection of the engine fuel shutoff valve.
Aerologic GmbH, Air France, Lufthansa LTK, Lufthansa LUB, and KLM stated that the interval should be 25 flight cycles based on a typical utilization in flight cycles that corresponds to a one-week interval. The operators stated that the actuator failure
AA stated that the “weekly” interval is not defined sufficiently, and that it is not clear whether this means once every seven days, one time each calendar week, or some other interpretation. AA stated that, for its airline and for many other international carriers, this presents a problem when the airplane continually crosses the International Date Line. AA also stated that the interval does not address occurrences where the airplane is out of service for an extended period of time, such as a week or longer. AA stated that it has strong concerns that the proposed interval may impede the airline's ability to function on its current published schedule. AA stated that many established flight routings occur on a four-day cycle, and not all stations can be set up to perform the inspection for logistical, personnel, and contractual reasons; therefore, the weekly interval makes it very difficult to achieve the inspection at available stations. AA stated that the inspection, if mandated, should be on a flight-cycle interval rather than a calendar schedule, and suggested a 25-flight-cycle interval to alleviate the “weekly” term interpretation issue, and to address the adverse impact to airline operations.
JAL and ANA requested that the inspection interval be “25 flight cycles or more, or weekly or more, whichever occurs later.” JAL stated that the FAA-proposed inspection interval of “weekly” is without detailed information such as the number of latently failed fuel shutoff valves, failure rates, and so forth. JAL stated that it understands that it is preferable to control inspection intervals in flight cycles for international flights. JAL and ANA also stated that an average flight cycle for a Model 777 airplane might be 2.5 flight cycles per day, but that their domestic Model 777 flight cycle average is 6 flight cycles per day; therefore, it is a burden to inspect the MOV actuators at per-flight-cycle-related intervals. ANA stated that it prefers a compliance time of 18,000 flight cycles, which is stated in the MPD document. ANA stated that they currently perform the proposed inspection at 2,000-flight-hour intervals, and while it has experienced several fuel valve actuator failures, it has not detected any latently failed open fuel valve actuators.
SIA requested that the proposed inspection interval be extended to 2,000 flight hours. SIA stated that the inspections are disruptive, laborious, and costly to operations, and would require SIA to inspect at least three to four airplanes daily. SIA also stated that frequent opening and closing of panels to inspect the MOV actuator may inadvertently disrupt other airplane systems and result in unintended defects. SIA stated that, if operators are unable to inspect the airplane within the mandated intervals, or if the inspection findings require extensive rectification, Boeing or the FAA should consider granting operators a “no technical objection” or an AMOC to allow the airplane to be released to service for a restricted period of time. SIA also stated that it understands Boeing is working on a modified MOV actuator part number that would resolve the reliability issue associated with it.
Boeing requested that the interval be changed to 10 days. Boeing stated that it understood the term “weekly” to mean 10 days.
We partially agree with the commenters' request. We agree with extending the inspection interval to 10 days. Some operators' route structures and maintenance intervals do not align with a 7-day interval. Also, several of the operators routinely cross the International Date Line, potentially creating confusion over the application of an interval when expressed as “weekly.” The 10-day interval will provide more operational flexibility and will not significantly increase the number of at-risk flights. We have changed paragraph (g) of this AD and figure 1 to paragraph (g) of this AD accordingly.
We also added a note to the Interval column of figure 1 to paragraph (g) of this AD to specify that the inspection is not required on days when the airplane is not used in revenue service, and that the inspection must be done before further flight if it has been 10 or more calendar days since the last inspection.
However, we disagree with changing the interval basis to flight cycles. While the failure of the fuel shutoff valve is likely associated with the cycling of the valve, the purpose of the inspections is to minimize the exposure to flights that are initiated with a valve actuator that is latently failed in the open position.
To determine the appropriate actions and intervals to minimize this exposure, we considered the actions necessary to detect the latent failure on each affected airplane model, and then, based on those identified actions, determined a minimum practical interval for performing the actions.
On other Boeing airplane models with designs that allow a check to be performed using available indications, we determined that a daily check is appropriate. That interval is similar to the check interval required for fire detection systems. For the affected Model 777 airplanes identified in this final rule, the fuel shutoff valve position cannot be checked using available indications, and a physical inspection of the valve actuator itself is necessary to detect the latent failure. Because of the work necessary to perform this inspection, we determined that a daily interval would be overly burdensome and that the 10-day interval would be a more appropriate balance of the risk and the burden of performing the inspection. However, affected operators may apply for approval of an AMOC in accordance with the procedures specified in paragraph (i)(1) of this AD by submitting data substantiating that the request would provide an acceptable level of safety.
We also disagree that the performance of these inspections is likely to cause defects in other systems. While additional defects due to unrelated causes might be discovered during the visual inspection, the opening of the access door and visual inspection of the fuel shutoff valve position is not expected to cause other system failures.
FedEx requested that a provision be added to the proposed AD (79 FR 1772, January 10, 2014) to allow the removal of a working MOV actuator from a less critical fuel system valve location and installation in the engine fuel shutoff valve. FedEx stated that this will reduce the immediate impact of any actuator failures discovered by the required inspection.
We disagree with the request. This situation is not unique to the MOV actuator of the fuel shutoff valve. It is not our intent in this AD to change operational practices used in performing maintenance and alterations, or to change relief provided by the minimum equipment list (MEL). The removal of a fully functional part from a less critical location and its replacement with a non-functioning part is considered an alteration and, as such, must meet the airworthiness regulations, which is not possible in this case. However, if a failure occurs at a less critical location, operation in the same exact configuration may be allowed for a limited time under the MEL. The decision to allow this type of maintenance action remains with the local Flight Standards organization. Also, it should be noted that the installation of certain MOV actuators is prohibited by FAA AD 2013-05-03, Amendment 39-17375 (78 FR 17290, March 21, 2013). We have not changed this AD in this regard.
In the “Description” column of figure 1 to paragraph (g) of this AD, we have removed the phrase “refer to Boeing AMM 28-22-00” for performing an inspection of the MOV actuator of the fuel spar valve (
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously, and minor editorial changes. We have determined that these minor changes:
• Αre consistent with the intent that was proposed in the NPRM (79 FR 1772, January 10, 2014) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 1772, January 10, 2014).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We consider this AD interim action. The manufacturer has developed a modification that addresses the unsafe condition for some of the airplanes identified in this AD. Once the service information for the modification is developed, approved, and available, we might consider additional rulemaking.
We estimate that this AD affects 190 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 21, 2015.
None.
This AD applies to The Boeing Company Model 777-200, -200LR, -300, -300ER, and 777F series airplanes, certificated in any category, line numbers 1 through 1164 inclusive.
Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by reports of latently failed fuel shutoff valves discovered during fuel filter replacement. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine, which could result in the inability to shut off fuel to the engine and, in case of certain engine fires, an uncontrollable fire that could lead to wing failure.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to add Airworthiness Limitation (AWL) 28-AWL-MOV by incorporating the information specified in figure 1 to paragraph (g) of this AD into the Airworthiness Limitations Section of the Instructions for Continued Airworthiness. The initial compliance time for accomplishing the actions specified in figure 1 to paragraph (g) of this AD is within 10 days after accomplishing the maintenance or inspection program revision required by this paragraph.
After accomplishing the maintenance or inspection program revision required by paragraph (g) of this AD, no alternative actions (
(1) The Manager, Seattle Aircraft Certification Office (ACO) FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. This AD was prompted by reports of latently failed fuel shutoff valves discovered during fuel filter replacement. This AD requires revising the maintenance or inspection program to include new airworthiness limitations. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine, which
This AD is effective October 21, 2015.
You may examine the AD docket on the Internet at
Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. The NPRM published in the
In preparation of AD actions such as NPRMs and immediately adopted rules, it is the practice of the FAA to obtain technical information and information on operational and economic impacts from design approval holders and aircraft operators. We discussed certain comments addressed in this final rule in a teleconference with Airlines for America (A4A) and other members of the aviation industry. All of the comments discussed during this teleconference are addressed in this final rule in response to comments submitted by other commenters. A discussion of this contact can be found in the rulemaking docket at
Throughout the preamble of this final rule, commenters may have used the terms “fuel shutoff valve” and “fuel spar valve” interchangeably. Both terms refer to the same part. In our responses to comments, we have used the term “fuel shutoff valve.” The term “fuel spar valve” is more commonly used in airplane maintenance documentation and, therefore, we have used that term in figure 1 to paragraph (g) of this AD.
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 20834, April 14, 2014) and the FAA's response to each comment.
American Airlines (AA) requested that no further regulatory action be taken. AA stated that it has experienced only a small number of fuel shutoff valve actuator failures. AA stated that the combination of failures necessary to produce the catastrophic event described in the NPRM (79 FR 20834, April 14, 2014) includes fuel shutoff valve actuator failure, an erroneous position indication, and a fire in the engine compartment. AA also stated that risk analysis shows the probability of this combination occurring is in the improbable range of “10E-11 to 10E-16.”
We disagree with commenter's request. We have determined that an unsafe condition exists that warrants an interim action until the manufacturer finishes developing a modification that will address the identified unsafe condition. We have determined that, without the required interim action, a significant number of flights with a fuel shutoff valve actuator that is failed in the open valve position will occur during the affected fleet life. If certain engine fire conditions were to occur, or if extreme engine damage were to occur, or if an engine separation event were to occur during flight, the crew procedures for such an event would not stop the fuel flow to the engine strut and nacelle. The continued flow of fuel could cause an uncontrolled fire or lead to a fuel exhaustion event.
The FAA regulations require all transport airplanes to be fail safe with respect to engine fire events, and the risk due to severe engine damage events to be minimized. Therefore, we require, for each flight, sufficiently operative fire safety systems so that fires can be detected and contained, and that fuel to the engine strut and nacelle can be shut off in the event of an engine fire or severe damage.
The FAA airworthiness standards require remotely controlled powerplant valves to provide indications that the valves are in the commanded position. These indications allow the prompt detection and correction of valve failures. We do not allow dispatch with a known inoperative fuel shutoff valve. Therefore, we are proceeding with this final rule—not because of the higher-than-typical failure rate of the particular valve actuator involved, but instead because the fuel shutoff valve actuator can fail in a manner that also defeats the required valve position indication feature. That failure can lead to a large number of flights occurring on an airplane with a fuel shutoff valve actuator failed in the open position without the operator being aware of the failure. An airworthiness limitation containing required inspections is intended to limit the number of flights following latent failure of the fuel shutoff valve. We have not changed this AD in this regard.
AirDo, AA, All Nippon Airlines (ANA), Delta Airlines (DAL), Southwest Airlines (SWA), Transavia, and United Airlines (UAL) requested clarification of the daily check requirement. The commenters stated that the check applies to airplanes that are in operational revenue status. The commenters stated that the proposed AD (79 FR 20834, April 14, 2014) does not account for airplanes in routine maintenance or for an out-of-service condition.
We infer the commenters are requesting inspection relief for airplanes that are not in service. We agree with the commenters' request. It would be unnecessarily burdensome to require the inspections on airplanes that are not being used. We agree with limiting inspections to days when the airplane is in revenue service. In the Interval column of figure 1 to paragraph (g) of this AD, we have added a note to clarify that the operational check is not
UAL requested that we revise the proposed AD (79 FR 20834, April 14, 2014) to limit the applicability specified in figure 1 to paragraph (g) of the proposed AD to airplanes with the valve actuators that have the identified unsafe condition. UAL stated the applicability applies to valve actuators having part number (P/N) MA30A1001. UAL stated that the problem does not apply to other existing actuator designs, and will not apply to future designs.
We agree with the commenter's request. It would be unnecessarily burdensome to require the inspections on airplanes that do not have any of the susceptible valves installed. We have added a note to the Applicability column in figure 1 to paragraph (g) of this AD to clarify that the limitations apply to Model 737-600, -700, -700C, -800, -900, and -900ER airplanes having actuator P/N MA20A2027 (Boeing P/N S343T003-56) or P/N MA30A1001 (Boeing P/N S343T003-66) installed at the engine fuel spar valve positions.
AA and Qantas Airways stated that if the master minimum equipment list (MMEL) is being used, then the daily check should be not required.
AA stated that the Boeing Model 737 MMEL item 28-22, “Fuel/Spar Valve Closed Lights,” allows for the lights to be inoperative, provided the associated valve is verified to operate normally and the crossfeed VALVE OPEN light operates normally. AA stated that this item allows the lights to be inoperative for up to 10 days, and it requested that a provision be added to state that if this MMEL is being used, the daily check is not required.
Qantas Airways stated that if an airplane is dispatched under the MMEL for inoperative SPAR VALVE CLOSED light(s), then it is not possible to accomplish the proposed checks.
We partially agree with the commenters' request. We disagree with providing MMEL relief for an inoperative fuel shutoff valve indication because such relief could potentially allow the fuel shutoff valve to be inoperative for up to 10 days of revenue operation. However, we do agree to provide flexibility regarding verification that the fuel shutoff valve is operational. We have added item D. to figure 1 to paragraph (g) of this AD to specify a fourth option to perform daily inspections to verify that the fuel shutoff valve is closing.
Air Do, Ryanair, SWA, Transavia, UAL, and Darryl Voss requested that the FAA provide a more complete explanation of the requirements with regard to recording compliance.
Air Do stated that if the flightcrew performed the operational check, a maintenance record is usually not created. The commenter questioned whether this is acceptable, or whether the flightcrew should record it in the flight log.
Ryanair requested that the FAA explicitly state in the AD that the proposed actions may be performed by maintenance and/or flight operations checklists, and that the AD will not require the retention of maintenance or flight operations records to show compliance. Ryanair stated that due to the high frequency of the actions in the NPRM (79 FR 20834, April 14, 2014) and the large number of affected airplanes in its fleet (approximately 300), the creation, retention, and reforecasting of individual records for this activity is not practical.
Because of the high frequency of checks resulting from the proposed AD (79 FR 20834, April 14, 2014), compounded with the creation, distribution, and retention of the documentation of the checks, SWA requested that the FAA specifically state in the AD that when the daily check is performed successfully by flightcrews, no documentation is required. SWA also requested that the FAA specifically state in the AD that documentation (
Transavia requested that, if the daily check remains, we revise the proposed AD (79 FR 20834, April 14, 2014) to state that the inclusion of the daily check requirement into a checklist is sufficient to show AD compliance and prevent unwanted paperwork, and that the daily check can be performed by either maintenance personnel or the flightcrew.
UAL asked whether the flightcrews will be required to record compliance of the operational checks and document each inspection. Darryl Voss requested that we revise the proposed AD (79 FR 20834, April 14, 2014) to remove the option to allow flightcrews to perform operational checks for maintenance. Mr. Voss stated that showing compliance with ADs is almost exclusively a maintenance function and should remain a maintenance function to provide compliance continuity.
We agree that clarification is necessary. This AD requires including the information in figure 1 of paragraph (g) of this AD in the maintenance or inspection program. However, this AD does not require accomplishing the actions specified in figure 1 of paragraph (g) of this AD. The actions specified in the figure in this AD are done, and remain enforceable, as part of the airworthiness limitations of the instructions for continued airworthiness (ICA). Section 14 CFR 43.11(a) of the Federal Aviation Regulations (14 CFR 43.11(a)) requires maintenance record entries for maintenance actions such as the required checks. If an operator elects to have a flightcrew member do the check in accordance with the applicable airworthiness limitation, that same action would be considered an operational task (not maintenance), and therefore 14 CFR 43.11(a) would not apply. In that case, operators should follow their normal processes for operational activities, including necessary Principal Operations Inspector (POI) involvement. We have not changed this AD in this regard.
Boeing requested to add a flightcrew inspection procedure during engine start and engine shutdown. Boeing stated that this will provide common flight procedures and eliminate each operator creating its own test.
DAL requested that the preamble of the NPRM (79 FR 20834, April 14, 2014) be revised to match the rest of the requirements in the NPRM. DAL stated that if POI approval is required for flightcrews to accomplish operational checks, then the preamble should identify that flightcrews can only accomplish operational checks approved by the inspector. DAL stated that the preamble should not associate the operational check without engine start to only maintenance crews, and the operational checks while starting the engine or shutting down the engine to only flightcrews.
UAL requested that standardized procedures be established by the FAA aircraft certification office for the POI to approve on behalf of all affected operators.
We disagree with the commenter's request to add to this AD a method describing how maintenance actions and operations actions should be
DAL requested that the proposed AD (79 FR 20834, April 14, 2014) be revised to provide an option for revising the Boeing Model 737 “Airplane Normal Checklist” to specify accomplishment of one of the required operational checks (operational check during engine start, operational check during engine shutdown, or operational check without engine operations) as a “FIRST FLIGHT OF THE DAY” requirement as an alternative to the maintenance or inspection program revision specified in paragraph (g) of the proposed rule. DAL stated that this option would ensure that operational aircraft are inspected daily, provide clear responsibility to the flightcrew to accomplish the operational checks, and remove concern for accomplishing the actions during times when the airplane is not in service. DAL stated that incorporating this change to the “Airplane Normal Checklist” will simplify compliance procedures while satisfying the requirements of the proposed rule.
JAL requested that the FAA coordinate with Boeing to revise the flightcrew operations manual (FCOM) to provide the check of the fuel spar valve as a normal procedure. JAL stated that if an operational check by the flightcrew is allowed, the FCOM should be revised to provide the normal procedure to perform the fuel spar valve check during engine start or shutdown.
Qantas Airways suggested that a revision to the Boeing Model 737 Airplane Flight Manual (AFM), Section 1 “Certificate Limitations,” or Section 3 “Normal Procedures,” might be a more appropriate location to allow the flightcrew to monitor valve operations during engine start and/or engine shutdown.
We find that clarification is necessary. Changing these documents presupposes that every operator will have flightcrews perform this task. It is not our intention to require flightcrews to perform this task. Individual operators can modify their normal operating procedures to add this requirement.
Qantas stated that it does not believe that paragraph B. of the Description column of figure 1 to paragraph (g) of the proposed AD (79 FR 20834, April 14, 2014), which specifies to do an operational check during engine start, achieves the desired failure detection. Qantas stated that if the test fails (
We infer that Qantas is requesting we clarify the operational check during engine start. We find that clarification is necessary. The check procedure is designed to make sure the fuel shutoff valve actuator moves to the open position from the closed position. However, if the fuel shutoff valve actuator had previously failed open, the actuator would not move the valve and this check would fail. If this check fails, the fuel shutoff valve actuator is either failed in the closed position or has failed previously in the open position. Either way, the failed fuel shutoff valve actuator must be replaced. We have not changed this AD in this regard.
UAL requested we add a requirement to provide electrical power before accomplishment of the maintenance check specified by the proposed AD (79 FR 20834, April 14, 2014).
We agree with the commenter's request because electrical power is required. In item C.1. of figure 1 to paragraph (g) of this AD, we have added an instruction to supply electrical power to the airplane using standard practices when performing the operational check.
Boeing requested that figure 1 to paragraph (g) of the proposed AD (79 FR 20834, April 14, 2014) be revised in order to reference the Fault Isolation Manual (FIM), instead of the Boeing Model 737 Aircraft Maintenance Manual (AMM), should the operational check fail. Boeing stated that the faults are isolated to failed components using the FIM. The AMM provides instructions for removing and replacing identified failed components. Boeing stated that the light could fail to illuminate for reasons other than actuator failure.
We disagree with the commenter's request to reference the FIM instead of the AMM. If an operational check fails, the failed component must be replaced. As Boeing stated, the AMM provides instructions for replacing failed components. The FIM also refers to the AMM for replacement of the fuel shutoff valve actuator after doing some preliminary testing. Operators may consult the FIM for guidance in troubleshooting other reasons the light could fail to illuminate. We have not changed this AD in this regard.
ANA requested that the repetitive interval be revised from daily to 15,000 flight hours or 6,000 flight hours, or a weekly interval. ANA stated that Boeing has included these repetitive intervals in certain maintenance documents. ANA commented that it has 38 airplanes in operation and it has never experienced a latent failure of the MOV actuator. ANA also stated that the possibility of the unsafe condition happening is very low. ANA stated that a daily interval is a burden to operators.
DAL requested that the operational checks be required at intervals not to exceed 90 days or 1,400 flight cycles or 1,800 flight hours; DAL stated that this is similar to what is proposed by the original equipment manufacturer. DAL stated that Airworthiness Limitation Task 28-AWL-MOV, “Engine Fuel Shut-Off Valve (Fuel Spar Valve) Position Indication Operational Check,” which was introduced by the proposed AD (79 FR 20834, April 14, 2014), would require daily operational checks of the engine fuel shutoff valve. DAL stated that it finds this will be an onerous operational requirement as it does not have maintenance personnel in all locations where the affected airplanes are operated. DAL stated that for this reason, it will be necessary for its flightcrews to accomplish the operational checks in order to comply with the daily requirement specified by the proposed AD.
DAL also stated that the proposed AD (79 FR 20834, April 14, 2014) does not provide significant information as to how the daily check requirement was determined or why it differs so significantly from the compliance recommendation established by Boeing. DAL stated that lacking specific details of the methodology used by the FAA and the assumptions made to arrive at a daily check interval hinders the operator's ability to provide comments on the appropriateness of this interval. DAL stated that Boeing has indicated that its numeric safety analysis supports
JAL requested that the FAA extend the inspection interval to a heavy maintenance opportunity. For Model 737-800 airplanes, JAL stated to set the heavy maintenance opportunity (such as “C-Check” and “K-Check”) at approximately 2-year intervals to efficiently accomplish the maintenance program.
Qantas Airways requested an interval that can be effectively scheduled in aircraft maintenance control programs, such as a 7-day interval.
Jim Way requested a monthly interval for the operational checks. Mr. Way stated that a daily check is too restrictive.
Bradley Most requested that the daily inspection interval be revised to every 2 calendar days to accommodate “international operations, out of station, overnight, etc.” Mr. Most stated that the interval of daily lacks a clear definition.
We disagree with the requests to extend the inspection interval. An increase in the inspection interval from daily to every other day, to weekly, or to 90 days, would result in 2, 7, or 90 times as many flights at risk in the event of an engine fire. The daily inspection has been deemed practical because, in practice, it will mean the flightcrew will need to watch a light as they start or shut down the engine using normal procedures. An increased interval to 6,000 flight hours would have no real effect on the unsafe condition since the fuel filter replacement currently detects the problem every 6,000 flight hours. In addition, an increased interval of 15,000 flight hours, or 24 months, would similarly not improve safety. We have not changed this AD in this regard.
Mr. Most requested that the compliance time to revise the maintenance or inspection program be changed to 120 days after the effective date of this AD. Mr. Most stated that FAA offices are typically requesting 60 days to review an airplane maintenance or inspection program revision that is submitted for approval and, in many cases, are taking longer. Mr. Most stated that the current inspection interval would not allow operators enough time to revise the airplane maintenance or inspection program, submit it to FAA for approval, and implement the revised airplane maintenance or inspection program within 30 days of the effective date.
Jim Way requested that operators be given 90 days after the effective date of the proposed AD (79 FR 20834, April 14, 2014) to incorporate the actions specified in figure 1 to paragraph (g) of the proposed AD into the maintenance program. Mr. Way stated that single aircraft operators use a vendor to provide support for the inspection program revisions. Mr. Way stated that a 30-day compliance time after the effective date of the proposed AD is not enough time to properly make and submit the changes to the FAA's principal maintenance inspector for approval and implementation.
We do not agree to revise the compliance time for revising the maintenance or inspection program beyond 30 days. The 30-day compliance time specified in paragraph (g) of this AD is consistent with other regulatory actions for other affected models in similar ADs. However, under the provisions of paragraph (i)(1) of this AD, we might consider requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.
AA requested that 30 days be provided for the initial operational check after the airworthiness limitation (AWL) has been incorporated into its maintenance program. AA stated that this will allow for publishing the new criteria.
We partially agree with AA's request concerning the compliance time for the initial operational check. We have changed the initial compliance time specified in paragraph (g) of this AD for accomplishing the actions specified in figure 1 to paragraph (g) of this AD from 7 to 10 days. The compliance time of 10 days is consistent with other regulatory actions for other affected models in similar ADs. We have determined that 10 days for the initial inspection represents an appropriate time in which the required actions can be performed in a timely manner within the affected fleet, while still maintaining an adequate level of safety.
DAL requested that paragraph (g) of the proposed AD (79 FR 20834, April 14, 2014) be revised because it is not clear who must accomplish the action in this paragraph. DAL stated that operators do not control the AWL section of the ICA and, therefore, could not comply with the requirement. DAL stated that on Boeing Model 737NG airplanes, the AWLs are incorporated into Section 9 of the Maintenance Planning Document (MPD) by Boeing. DAL stated that the action in the NPRM would be one for the original equipment manufacturer to accomplish with a revision to the MPD, which would then be incorporated by the operators. DAL also stated that operators have control of their continuous airworthiness maintenance program (CAMP). DAL stated that in the NPRM, it is the intent of the operators to incorporate the AWL into their CAMP.
We find that clarification is necessary. The requirement in paragraph (g) of this AD is to change the Airworthiness Limitations of the ICA for each affected airplane. Once that change is complete, operators will be compelled to change their maintenance program to include the new requirements of the revised Airworthiness Limitations. For Part 121 operators, changes to the CAMP will become necessary; but for other operators, the maintenance program may take a different form. We have not changed the AD in this regard.
DAL requested that certain language be removed from the proposed AD (79 FR 20834, April 14, 2014) because it is redundant. DAL stated that paragraph (h) of the proposed AD can be excluded because it states that no alternative actions or intervals can be used unless approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (i)(1) of the proposed AD. (Paragraph (i) of the proposed AD specifies the procedures and requirements for an AMOC.)
We disagree with the commenter's request. It is necessary to include paragraph (h) of this AD (“No Alternative Actions or Intervals”) because it ensures that changes made after accomplishment of the maintenance or inspection program revision,
DAL stated that the cost estimate provided in the NPRM (79 FR 20834, April 14, 2014) is inaccurate. DAL
We infer that DAL is requesting we revise the Costs of Compliance paragraph. We acknowledge the commenter's concern. In this AD, the required action is to revise the maintenance or inspection program, as applicable, to include a new airworthiness limitation. The added airworthiness limitation requires an inspection of the position of the MOV actuator daily. However, these repetitive inspections, which are expected to take a few seconds to complete, are required by section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)) once incorporated into the maintenance or inspection program.
The cost analysis in AD rulemaking actions typically includes only the costs associated with complying with the AD. In this AD, the required action is the maintenance or inspection program revision, as applicable, to include the new airworthiness limitation. Accomplishing repetitive actions that are specified in the airworthiness limitation are not directly required by this AD. The FAA, as a matter of practice, does not include a cost estimate for these repetitive actions in an AD because these actions are required as part of the operating rules. Therefore, we have made no change to this AD in this regard.
UAL requested we revise the wording of the operational check without engine operation. UAL stated that in item C.3.a. and item C.4.a. in the Description column of figure 1 to paragraph (g) of this AD, either a tolerance should be added to the wording, or the word “approximately” should be added before the phrase “10 seconds.”
We agree with the commenter's request. In item C.4.a. and item C.5.a. (which correspond to items C.3.a. and C.4.a. of the NPRM (79 FR 20834, April 14, 2014)) in the Description column of figure 1 to paragraph (g) of this AD, we have added wording that indicates to wait “approximately” 10 seconds after moving the ENG 1 and ENG 2 START LEVER on the CONTROL STAND to the IDLE position. We find that this change will allow flexibility during the operational check, while still maintaining an adequate level of safety.
Boeing and DAL requested that we correct a typographical error in the proposed AD (79 FR 20834, April 14, 2014). Boeing and DAL stated that item A.1. in the Description column of figure 1 to paragraph (g) of the proposed AD, which states to “do all operational checks . . .,” the word “all” should be removed because the operational check is a singular check.
We agree with the commenters' request. We have revised item A.1. in the Description column of figure 1 to paragraph (g) of this AD accordingly.
Boeing also requested that certain other typographical errors in the proposed AD (79 FR 20834, April 14, 2014) be corrected to reduce the possibility of confusion regarding the requirements. Boeing stated that the Description column in figure 1 to paragraph (g) of the proposed AD should be revised as follows:
• Step B.2. has been skipped, and needs to be renumbered.
• In step B.1.a., the text “START LEVEL STAND” should be changed to “START LEVER ON CONTROL STAND.”
• Steps C.2. and C.3. should be combined and renumbered.
• In step C.5.a., the text “ENG @” should be changed to “ENG 2.”
We disagree with the comment. The stated typographical errors for step B.1.a., step B.2., and step C.5.a., do not exist in the regulatory text of the NPRM (79 FR 20834, April 14, 2014), as published. We disagree with combining steps C.2. and C.3 because the engine fire switches represent separate actions for the aft electronic panel and the forward overhead panel. We have not changed this AD in this regard.
Aviation Partners Boeing stated that the installation of winglets per Supplemental Type Certificate (STC) ST00830SE (
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (79 FR 20834, April 14, 2014) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 20834, April 14, 2014).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We consider this AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.
We estimate that this AD affects 1,244 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 21, 2015.
None.
This AD applies to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category.
Joint Aircraft System Component (JASC) Code 2823, Fuel Selector/Shutoff Valve.
This AD was prompted by reports of latently failed fuel shutoff valves discovered during fuel filter replacement. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine, which could result in the inability to shut off fuel to the engine and, in case of certain engine fires, an uncontrollable fire that could lead to wing failure.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to add airworthiness limitation number 28-AWL-MOV, “Engine Fuel Shutoff Valve (Fuel Spar Valve) Position Indication Operational Check,” by incorporating the information specified in figure 1 to paragraph (g) of this AD into the Airworthiness Limitations Section of the Instructions for Continued Airworthiness. The initial compliance time for accomplishing the actions specified in 28-AWL-MOV is within 10 days after accomplishing the maintenance or inspection program revision required by this paragraph.
After accomplishment of the maintenance or inspection program revision required by paragraph (g) of this AD, no alternative actions (
(1) The Manager, Seattle Aircraft Certification Office (ACO) FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
None.
Federal Aviation Administration (FAA), DOT.
Final rule
This amendment adopts miscellaneous amendments to the required IFR (instrument flight rules) altitudes and changeover points for certain Federal airways, jet routes, or direct routes for which a minimum or maximum en route authorized IFR altitude is prescribed. This regulatory action is needed because of changes occurring in the National Airspace System. These changes are designed to
Effective 0901 UTC, October 15, 2015.
Richard A. Dunham, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.
The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Navigation (air).
Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, October 15, 2015.
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44719, 44721.
Internal Revenue Service (IRS), Treasury.
Final and temporary regulations.
This document contains temporary regulations that clarify the coordination of the application of the arm's length standard and the best method rule under section 482 of the Internal Revenue Code (Code) in conjunction with other provisions of the Code. The text of the temporary regulations also serves in part as the text of the proposed regulations (REG-139483-13) published in the Proposed Rules section of this issue of the
Frank W. Dunham III, (202) 317-6939 (not a toll-free call).
Regulations under section 482 published in the
Section 482 authorizes the Secretary, and the regulations under section 482 authorize the IRS, to adjust the results of controlled transactions to clearly reflect the income of commonly controlled taxpayers in accordance with the arm's length standard and, in the case of the transfer of intangible property (within the meaning of section 936(h)(3)(B)), so as to be commensurate with the income attributable to the intangible. While the determination of arm's length prices for controlled transactions is governed by section 482, the tax treatment of controlled transactions is also governed by other Code and regulatory rules applicable to both controlled and uncontrolled transactions. Controlled transactions always remain subject to section 482 in addition to these generally applicable provisions. These temporary regulations clarify the coordination of section 482 and the regulations thereunder with such other Code and regulatory provisions.
The coordination rules in these temporary regulations apply to controlled transactions, including controlled transactions that are subject in whole or part to both sections 367 and 482. Transfers of property subject to section 367 that occur between controlled taxpayers require a consistent and coordinated application of sections 367 and 482 to the controlled transfer of property and any related transactions between controlled taxpayers. The controlled transactions may include transfers of property subject to section 367(a) or (e), transfers of intangible property subject to section 367(d) or (e), and the provision of services that contribute significantly to maintaining, exploiting, or further developing the transferred properties. All of the transactions (and any elements thereof) must be analyzed and valued on a consistent basis under section 482 in order to achieve the intended purposes of sections 367 and 482.
The consistent analysis and valuation of transactions subject to multiple Code and regulatory provisions is required under the best method rule described in § 1.482-1(c). A best method analysis under section 482 begins with a consideration of the facts and circumstances related to the functions performed, the resources employed, and the risks assumed in the actual transaction or transactions among the controlled taxpayers, as well as in any uncontrolled transactions used as comparables. See § 1.482-1(c)(2)(i) and (d)(3). For example, if consideration of the facts and circumstances reveals synergies among interrelated transactions, an aggregate evaluation under section 482 may provide a more reliable measure of an arm's length result than a separate evaluation of the transactions. In contrast, an inconsistent or uncoordinated application of section 482 to interrelated controlled transactions that are subject to tax under different Code and regulatory provisions may lead to inappropriate conclusions.
The best method rule requires a determination of the arm's length result of controlled transactions under the method, and particular application of that method, that provides the most reliable measure of an arm's length result. Under the regulations, the reliability of the measure depends on the economics of the controlled transactions, not their formal character. See,
Based upon taxpayer positions that the IRS has encountered in examinations and controversy, the Treasury Department and the IRS are concerned that certain results reported by taxpayers reflect an asserted form or character of the parties' arrangement that involves an incomplete assessment of relevant functions, resources, and risks and an inappropriately narrow analysis of the scope of the transfer pricing rules. In particular, the Treasury Department and the IRS are concerned about situations in which controlled groups evaluate economically integrated transactions involving economically integrated contributions, synergies, and interrelated value on a separate basis in a manner that results in a misapplication of the best method rule and fails to reflect an arm's length result. Taxpayers may assert that, for purposes of section 482, separately evaluating interrelated transactions is appropriate simply because different statutes or regulations apply to the transactions (for example, where section 367 and the regulations thereunder apply to one transaction and the general recognition rules of the Code apply to another related transaction). These positions are often combined with inappropriately narrow interpretations of § 1.482-4(b)(6), which provides guidance on when an item is considered similar to the other items identified as constituting intangibles for purposes of section 482. The interpretations purport to have the effect, contrary to the arm's length standard, of requiring no compensation for certain value provided in controlled transactions despite the fact that compensation would be paid if the same value were provided in uncontrolled transactions.
As discussed in the following portion of this preamble, these temporary regulations address the aforementioned concerns by clarifying the coordination of the application of section 482 in conjunction with other Code and regulatory provisions in determining the proper tax treatment of controlled transactions.
New § 1.482-1T(f)(2)(i)(A) provides that arm's length compensation must be consistent with, and must account for all of, the value provided between the parties in a controlled transaction, without regard to the form or character of the transaction. For this purpose, it is necessary to consider the entire arrangement between the parties, as determined by the contractual terms, whether written or imputed in accordance with the economic substance of the arrangement, in light of the actual conduct of the parties. This requirement is consistent with the principles underlying the arm's length standard, which require arm's length compensation in controlled transactions equal to the compensation that would have occurred if a similar transaction
Section 1.482-1T(f)(2)(i)(B) clarifies § 1.482-1(f)(2)(i)(A), which provided that the combined effect of two or more separate transactions (whether before, during, or after the year under review) may be considered if such transactions, taken as a whole, are so interrelated that an aggregate analysis of such transactions provides the most reliable measure of an arm's length result determined under the best method rule of § 1.482-1(c). Specifically, a new clause is added to clarify that this aggregation principle also applies for purposes of an analysis under multiple provisions of the Code or regulations. In addition, a new sentence elaborates on the aggregation principle by noting that consideration of the combined effect of two or more transactions may be appropriate to determine whether the overall compensation is consistent with the value provided, including any synergies among items and services provided. Finally, § 1.482-1T(f)(2)(i)(B) does not retain the statement in § 1.482-1(f)(2)(i)(A) that transactions generally will be aggregated only when they involve “related products or services, as defined in § 1.6038A-3(c)(7)(vii).” The eliminated sentence had the unintended potential to be misconstrued by taxpayers as limiting the aggregation analysis pursuant to the best method rule.
Section 1.482-1T(f)(2)(i)(C) provides that, for one or more controlled transactions governed by more than one provision of the Code and regulations, a coordinated best method analysis and evaluation of the transactions may be necessary to ensure that the overall value provided (including any synergies) is properly taken into account. A coordinated best method analysis of the transactions includes a consistent consideration of the facts and circumstances of the functions performed, resources employed, and risks assumed, and a consistent measure of the arm's length results, for purposes of all relevant Code and regulatory provisions. For example, situations in which a coordinated best method analysis and evaluation may be necessary include (1) two or more interrelated transactions when either all such transactions are governed by one regulation under section 482 or all such transactions are governed by one subsection of section 367, (2) two or more interrelated transactions governed by two or more regulations under section 482, (3) a transfer of property subject to section 367(a) and an interrelated transfer of property subject to section 367(d), (4) two or more interrelated transactions where section 367 applies to one transaction and the general recognition rules of the Code apply to another interrelated transaction, and (5) other circumstances in which controlled transactions require analysis under multiple Code and regulatory provisions.
Section 1.482-1T(f)(2)(i)(D) provides that it may be necessary to allocate the arm's length result that was properly determined under a coordinated best method analysis described in § 1.482-1T(f)(2)(i)(C) among the interrelated transactions. Any such allocation must be made using the method that, under the facts and circumstances, provides the most reliable measure of an arm's length result for each allocated amount.
Section 1.482-1T(f)(2)(i)(E) provides eleven examples to illustrate the guidance in § 1.482-1T(f)(2)(i)(A) through (D).
Section 1.482-1T(f)(2)(ii)(B) replaces § 1.482-1(f)(2)(ii)(B). The
No inference is intended as to the application of the provisions amended by these temporary regulations under current law. The IRS may, where appropriate, challenge transactions, including those described in these temporary regulations and this preamble, under currently applicable Code or regulatory provisions or judicial doctrines.
These regulations apply to taxable years ending on or after September 14, 2015.
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation. For applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the cross-referenced notice of proposed rulemaking published elsewhere in this issue of the
The principal author of these regulations is Frank W. Dunham III of the Office of the Associate Chief Counsel (International). However, other personnel from the Treasury Department and the IRS participated in the development of the regulations.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
Sections 1.482-1 and 1.482-1T are also issued under 26 U.S.C. 482. * * *
(f) * * *
(2) * * *
(i) [Reserved]
(ii) * * *
(B) [Reserved]
(f) * * *
(2) * * *
(i)(A) through (E) [Reserved]. For further guidance see § 1.482-1T(f)(2)(i)(A) through (E).
(ii) * * *
(B) [Reserved]. For further guidance see § 1.482-1T(f)(2)(ii)(B).
(j) * * *
(7) [Reserved]. For further guidance see § 1.482-1T(j)(7).
(a) through (f)(2) [Reserved]. For further guidance see § 1.482-1(a) through (f)(2).
(i)
(B)
(C)
(D)
(E)
(ii) On Date X, Year 1, P contributes the foreign rights to conduct Business, including the foreign rights to the IP, to newly incorporated S1. S1, utilizing the IP of which it is now the owner, commences foreign operations consisting of local marketing, manufacturing, and back office activities in order to conduct and expand Business in the foreign market.
(iii) Later, on Date Y, Year 1, P and S1 enter into a cost sharing arrangement (“CSA”) to develop and exploit the rights to conduct the Business. Under the CSA, P is entitled to the U.S. rights to conduct the Business, and S1 is entitled to the rest-of-the-world (“ROW”) rights to conduct the Business. P continues after Date Y to perform the Support, employing resources, capabilities, and rights that as a factual matter were not contributed to S1 in the Date X transaction, for the benefit of the Business worldwide. Pursuant to the CSA, P and S1 share the costs of P's Support in proportion to their reasonably anticipated benefit shares from their respective rights to the Business.
(iv) P treats the Date X transaction as a transfer described in section 351 that is subject to 367 and treats the Date Y transaction as the commencement of a CSA subject to section 482 and § 1.482-7. P takes the position that the only platform contribution transactions (“PCTs”) in connection with the Date Y CSA consist of P's contribution of the U.S. Business IP rights and S1's contribution of the ROW Business IP rights of which S1 had become the owner on account of the prior Date X transaction.
(v) Pursuant to paragraph (f)(2)(i)(A) of this section, in determining whether an allocation of income is appropriate in Year 1 or subsequent years, the Commissioner may consider the economic substance of the entire arrangement between P and S1, including the parties' actual conduct throughout their relationship, regardless of the form or character of the contractual arrangement the parties have expressly adopted. The Commissioner determines that the parties' formal arrangement fails to reflect the full scope of the value provided between the parties in accordance with the economic substance of their arrangement. Therefore, the Commissioner may impute one or more agreements between P and S1, consistent with the economic substance of their arrangement, that fully reflect their respective reasonably anticipated commitments in terms of functions performed, resources employed, and risks assumed over time. For example, because P continues after Date Y to perform the Support, employing resources, capabilities, and rights not contributed to S1, for the benefit of the Business worldwide, the Commissioner may impute another PCT on Date Y pursuant to which P commits to so continuing the Support. See § 1.482-7(b)(1)(ii). The taxpayer may present additional facts that could indicate whether this or another alternative agreement best reflects the economic substance of the underlying transactions and course of conduct, provided that the taxpayer's position fully reflects the value of the entire arrangement consistent with the realistic alternatives principle.
(ii) Under paragraphs (f)(2)(i)(A) and (C) of this section, any part of the value in Portion 2 that is not taken into account in an exchange under section 367 must nonetheless be evaluated under section 482 and the regulations thereunder to determine arm's length compensation for any value provided to S1. Accordingly, even if P's assertion that certain items were either not property or not capable of being transferred were correct, arm's length compensation is nonetheless required for all of the value associated with P's contributions under the section 482 regulations. Alternatively, the Commissioner may determine under all the facts and circumstances that P's assertion is incorrect and that the transaction in fact constitutes an exchange of property subject to, and therefore to be taken into account under, section 367. Thus, whether any item that P identifies as being within Portion 2 is properly characterized as property under section 367 (transferable or otherwise) is irrelevant because any value in Portion 2 that is provided to S1 must be compensated by S1 in a manner consistent with the $1000x to $1100x interquartile range of the overall value.
(ii) P arranges for the R&D Team to provide research and development services to create a new line of products, building on the Product X platform, to be owned and exploited by S1 in the overseas market. P asserts that the arm's length charge for the services is only reimbursement to P of its associated R&D Team compensation costs.
(iii) Even though P did not transfer the platform or the R&D Team to S1, P is providing value associated with the use of the platform, along with the value associated with the use of the knowhow, to S1 by way of the services performed by the R&D Team for S1 using the platform and the knowhow. The R&D Team's use of intangible property, and any other valuable resources, in P's provision of services (regardless of whether the service effects a transfer of intangible property or valuable resources and regardless of whether the property is relatively high or low value) must be evaluated under the section 482 regulations, including the regulations specifically applicable to controlled services transactions in § 1.482-9, to ensure that P receives arm's length compensation for any value (attributable to such property or services) provided to S1 in a controlled transaction. See §§ 1.482-4 and 1.482-9(m). Under paragraph (f)(2)(i)(A) of this section, the arm's length compensation for the services performed by the R&D Team for S1 must be consistent with the value provided to S1, including the value of the knowhow and any synergies with the platform. Under paragraphs (f)(2)(i)(B) and (C) of this section, the best method analysis may determine that the compensation is most reliably determined on an aggregate basis reflecting the interrelated value of the services and embedded value of the platform and knowhow.
(iv) In the alternative, the facts are the same as above, except that P assigns to S1 all or a pertinent portion of the R&D Team and the relevant rights in the platform. P takes the position that, although the transferred platform rights must be compensated, the knowhow does not have substantial value independent of the services of any individual on the R&D Team and therefore is not an intangible within the meaning of § 1.482-4(b). In P's view, S1 owes no compensation to P on account of the R&D Team, as S1 will directly bear the cost of the relevant R&D Team compensation. However, in assembling and arranging to assign the relevant R&D Team, and thereby making available the value of the knowhow to S1, rather than other employees without the knowhow, P is performing services for S1 under imputed contractual terms based on the parties' course of conduct. Therefore, even if P's position were correct that the knowhow is not an intangible under § 1.482-4(b), a position that the Commissioner may challenge, arm's length compensation is required for all of the value that P provides to S1 through the interrelated provision of platform rights, knowhow, and services under paragraphs (f)(2)(i)(A), (B), and (C) of this section.
(ii) Under paragraph (f)(2)(i)(B) of this section, if an aggregate analysis of the service and license transactions provides the most reliable measure of an arm's length result, then an aggregate analysis must be performed. Under paragraph (f)(2)(i)(D) of this section, if an allocation of the value that results from such an aggregate analysis is necessary, for example, for purposes of sourcing the services income that P receives from S1 or determining deductible expenses incurred by S1, then the value determined under the aggregate analysis must be allocated using the method that provides the most reliable measure of the services income and deductible expenses.
(ii)(A) [Reserved]. For further guidance see § 1.482-1(f)(2)(ii)(A).
(B)
P and S are controlled taxpayers. P licenses a proprietary process to S for S's use in manufacturing product X. Using its sales and marketing employees, S sells product X to related and unrelated customers outside the United States. If the license between P and S has economic substance, the Commissioner ordinarily will not restructure the taxpayer's transaction to treat P as if it had elected to exploit directly the manufacturing process. However, because P could have directly exploited the manufacturing process and manufactured product X itself, this realistic alternative may be taken into account under § 1.482-4(d) in determining the arm's length consideration for the controlled transaction. For examples of such an analysis, see
(iii) through (j)(6) [Reserved]. For further guidance see § 1.482-1(f)(2)(iii) through (j)(6).
(7)
(ii)
In document 2015-19846, appearing on pages 48249 through 48251 in the issue of Wednesday, August 12, 2015, make the following correction:
On page 48249, in the first column, on the eighth line from the bottom, under the heading “
Department of Veterans Affairs.
Final rule.
This document adopts as a final rule, with changes, an interim final rule amending the Department of Veterans Affairs (VA) medical regulations to freeze the copayments required for certain medications provided by VA until December 31, 2015. Under that interim final rule, copayment amounts were maintained at the same rates as they were in 2014 (which were $8 for veterans in priority groups 2-6 and $9 for veterans in priority groups 7 and 8), and would have increased based on the prescription drug component of the Medical Consumer Price Index (CPI-P) on January 1, 2016. This final rule extends the current freeze for copayments through December 31, 2016.
Kristin Cunningham, Director, Business Policy, Chief Business Office (10NB), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 382-2508. (This is not a toll-free number.)
An interim final rule amending VA's medical regulations concerning the copayment required for certain medications was published in the
VA invited interested persons to submit comments on the interim final rule on or before December 26, 2014, and we received four comments. All four commenters supported the interim final rule, which maintained copayment rates for medications at their current levels throughout 2015. One commenter disagreed with part of the rationale for the rule. VA explained in the interim final rule that part of the rationale for the rule is to reduce the incentive for veterans to seek care from other health care providers and plans, as fragmentation of care can increase the risk of adverse interactions and harm to the patient because it is more difficult for each provider to assess if the patient is taking any other medications.
The commenter further recommended that VA should ensure the ability of non-VA providers to easily communicate with VA to treat patients, monitor prescriptions, and reduce wait times. Normally when VA authorizes care from a non-VA health care provider, we require the provider to submit medical record information to VA so that we have a complete account of what care and treatment was provided to a veteran. Many veterans receive care and services from other providers that are not authorized by VA, and in these situations, our health care providers may not have a complete account of the veteran's care. To the extent that non-VA providers can and do share information with VA, the risk of an adverse event declines, and VA fully supports such efforts. However, since the effect of the rulemaking is to temporarily freeze certain copayments and not establish monitoring or communication standards, VA does not make any changes to this rulemaking.
The commenter also urged VA to allow veterans to fill prescriptions written by civilian family physicians at VA pharmacies to reduce significant financial challenges for veterans and to maintain consistency with the delivery of pharmaceutical benefits to veterans. However, this recommendation is outside the scope of this rulemaking, which deals only with establishing copayment rates for medications prescribed by and filled by VA. Therefore, VA is not making any changes based on this comment.
One commenter suggested extending the freeze for at least an additional two to three years, to alleviate what the commenter deemed an “undue hardship” on veterans caused by increased pharmacy copayments. To the extent that increased pharmacy copayments have been shown to reduce utilization of VA pharmacy benefits (as stated in the interim final rule), we agree with the commenter that extending the freeze for at least one additional year is in the best interest of veterans. We would therefore extend the freeze in this final rule to be effective through December 31, 2016. This extended timeframe would permit the freeze to be in effect all of calendar year 2016 for the continued benefit of veterans, and would allow VA to continue to develop and publish proposed and final rules to implement a tiered copayment structure for medication copayments, which will further align VA's medication copayment structure with other Federal agencies and the commercial sector. Therefore, VA is extending the copay freeze in this final rule to be effective through December 31, 2016.
VA is adding an applicability date paragraph to the preamble to clarify that the amendments made by this rulemaking applied to the copayments discussed herein as of January 1, 2015. This is a clarifying, non-substantive change.
Based on the rationale set out here and in the interim final rule, VA is adopting the provisions of the interim final rule as a final rule with the change to extend the freeze as described above.
Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.
This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will temporarily freeze the copayments that certain veterans are required to pay for prescription drugs furnished by VA. This final rule directly affects only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the final regulatory flexibility analysis requirements of 5 U.S.C. 604.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits,
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined that it is a significant regulatory action under Executive Order 12866 because it is likely to result in a regulatory action that may have an annual effect on the economy of $100 million or more. VA's impact analysis can be found as a supporting document at
VA has determined that this regulatory action is considered a major rule under the Congressional Review Act, 5 U.S.C. 801-08, because it may result in an annual effect on the economy of $100 million or more. In the preamble to the interim final rule (79 FR 63819, 63821), we stated that although this regulatory action may constitute a major rule within the meaning of the Congressional Review Act, 5 U.S.C. 804(2), it was not subject to the 60-day delay in effective date applicable to major rules under 5 U.S.C. 801(a)(3) because the Secretary found that good cause existed under 5 U.S.C. 808(2) and made this regulatory action effective on January 1, 2015, consistent with the reasons given for the publication of this regulatory action as an interim final rule. Increasing the copayment amount on January 1, 2015, might have caused a significant financial hardship for some veterans and may have decreased patient adherence to medical plans, and could have had other unpredictable negative health effects. VA anticipates the same risk for financial hardship and decreased patient adherence if copayments were increased in calendar year 2016, and has therefore extended the freeze through December 31, 2016. Accordingly, the Secretary found that additional advance notice and public procedure thereon were impractical, unnecessary, and contrary to the public interest. In accordance with 5 U.S.C. 801(a)(1), VA submitted to the Comptroller General and to Congress a copy of this regulatory action and VA's Regulatory Impact Analysis.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are as follows: 64.005, Grants to States for Construction of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on May 5, 2015, for publication.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs-health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.
For the reasons set out in the preamble, VA amends 38 CFR part 17 as follows:
38 U.S.C. 501, and as noted in specific sections.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State Implementation Plan (SIP) for the State of Missouri submitted on October 17, 2013. These revisions remove
This direct final rule will be effective November 16, 2015, without further notice, unless EPA receives adverse comment by October 16, 2015. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0520, by one of the following methods:
1.
2.
3.
Lachala Kemp, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7214 or by email at
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:
EPA is taking direct final action to approve SIP revisions submitted by the state of Missouri for 10 CSR 10-6.390, “Control of NO
The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
We are publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of the
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 Missouri's rule 10 C.S.R. 10-6.390 described in the direct final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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).
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
A major rule cannot take effect until 60 days after it is published in the
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 16, 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 the
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the state plan for designated facilities and pollutants developed under sections 111(d) and 129 of the Clean Air Act for the State of Missouri. This direct final action will amend the state plan to include a new plan and associated rule implementing emission guidelines for Sewage Sludge Incinerators published in the
This direct final rule will be effective November 16, 2015, without further notice, unless EPA receives adverse comment by October 16, 2015. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0543, by one of the following methods:
1.
2.
3.
Paula Higbee, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7028 or by email at
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:
The Clean Air Act (CAA) requires that state regulatory agencies implement the emission guidelines and compliance times using a state plan developed under sections 111(d) and 129 of the CAA. Section 111(d) establishes general requirements and procedures on state plan submittals for the control of designated pollutants. Section 129 requires emission guidelines to be promulgated for all categories of sewage sludge incineration units, including sewage sludge incineration (SSI) units. Section 129 mandates that all plan requirements be at least as protective and restrictive as the promulgated emission guidelines. This includes fixed final compliance dates, fixed compliance schedules, and Title V permitting requirements for all affected sources. Section 129 also requires that state plans be submitted to EPA within one year after EPA's promulgation of the
On March 21, 2011, the EPA established emission guidelines and compliance times for existing SSI units. The emission guidelines and compliance times are codified at 40 CFR 60, Subpart MMMM.
The state is issuing a new rule, 10 CSR 10-6.191 for SSI to meet its obligation for this Federal rule. The new rule incorporates by reference the Federal rule. The revised state plan is being issued concurrently with this new rulemaking.
The state originally submitted the adopted plan and corresponding state rule to EPA on April 29, 2013. After submission to EPA, Missouri became aware of errors in the state plan and resubmitted a corrected version of the plan which EPA received on September 20, 2013. EPA has analyzed the corrected version.
The emission guidelines and compliance times are codified in 40 CFR 60, subpart MMMM. State plans must contain specific information and the legal mechanisms necessary to implement the emission guidelines and compliance times. The requirements are as follows:
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The Missouri plan includes documentation that all of these requirements have been met. The emission limits, testing, monitoring, reporting and recordkeeping requirements, and other aspects of the Federal rule have been adopted by reference. Missouri rule 10 CSR 10-6.191 contains the applicable requirements for SSI units. The state provided documentation that it complied with the public notice and comment requirements of 40 CFR part 60 Subpart MMMM.
Based on the rationale discussed above, EPA is approving Missouri's 111(d) plan for Sewage Sludge Incinerators received on September 20, 2013. We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this
If EPA receives adverse comment, we will publish a timely withdrawal in the
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
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).
This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus Executive Order 13132 does not apply to this action. This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rulemaking also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it approves a state rule implementing a Federal standard.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44
The Congressional Review Act, 5 U.S.C. 801
A major rule cannot take effect until 60 days after it is published in the
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 16, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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, Administrative practice and procedure, Intergovernmental relations, Reporting and recordkeeping requirements, Sewage sludge incinerators.
For the reasons stated in the preamble, EPA amends 40 CFR part 62 as set forth below:
42 U.S.C. 7401
(a) On September 20, 2013, EPA received the Missouri Department of Natural Resources (MDNR) section 111(d)/129 plan for implementation and enforcement of 40 CFR part 60, subpart MMMM, Emission Guidelines and Compliance Times for Existing Sewage Sludge Incineration Units.
(b) Identification of sources: The plan applies to existing sewage sludge incineration (SSI) units that:
(1) Commenced construction on or before October 14, 2010, or
(2) Commenced a modification on or before September 21, 2011, primarily to comply with Missouri's plan, and
(3) Meets the definition of a SSI unit defined in MDNR's plan
(c) The effective date of the plan for existing sewage sludge incineration units is February 5, 2013.
(1) A revision to Missouri's 111(d) plan to incorporate state regulation 10 CSR 10-6.191 Sewage Sludge Incinerators was state effective May 30, 2013. The effective date of the amended plan is November 16, 2015.
(2) [Reserved]
National Highway Traffic Safety Administration (NHTSA), DOT.
Final rule.
This document revises the list of vehicles not originally manufactured to conform to the Federal Motor Vehicle Safety Standards (FMVSS) that NHTSA has decided to be eligible for importation. This list is published in an appendix to the agency's regulations that prescribe procedures for import eligibility decisions. The list has been revised to add all vehicles that NHTSA has decided to be eligible for importation since October 1, 2014, and to remove all previously listed vehicles that are now more than 25 years old and need no longer comply with all applicable FMVSS to be lawfully imported. NHTSA is required by statute to publish this list annually in the
The revised list of import eligible vehicles is effective on September 16, 2015.
George Stevens, Office of Vehicle Safety Compliance, NHTSA, (202) 366-5308.
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS. Where there is no substantially similar U.S.-certified motor vehicle, 49 U.S.C. 30141(a)(1)(B) permits a nonconforming motor vehicle to be admitted into the United States if its safety features comply with, or are capable of being altered to comply with, all applicable FMVSS based on destructive test data or such other evidence as the Secretary of Transportation decides to be adequate.
Under 49 U.S.C. 30141(a)(1), import eligibility decisions may be made “on the initiative of the Secretary of Transportation or on petition of a manufacturer or importer registered under [49 U.S.C. 30141(c)].” The Secretary's authority to make these decisions has been delegated to NHTSA. The agency publishes notices of eligibility decisions as they are made.
Under 49 U.S.C. 30141(b)(2), a list of all vehicles for which import eligibility decisions have been made must be published annually in the
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations about whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affects in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This rule will not have any of these effects and was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. The effect of this rule is not to impose new requirements. Instead it provides a summary compilation of decisions on import eligibility that have already been made and does not involve new decisions. This rule will not impose any additional burden on any person. Accordingly, the agency believes that the preparation of a regulatory evaluation is not warranted for this rule.
We have not conducted an evaluation of the impacts of this rule under the National Environmental Policy Act. This rule does not impose any change that would result in any impacts to the quality of the human environment. Accordingly, no environmental assessment is required.
Pursuant to the Regulatory Flexibility Act, we have considered the impacts of this rule on small entities (5 U.S.C. Sec. 601
Executive Order 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” Executive Order 13132 defines the term “Policies that have federalism implications” to include regulations that 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.” Under Executive Order 13132, NHTSA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the regulation.
This rule will have no 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 as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. This rule will not result in additional expenditures by State, local or tribal governments or by any members of the private sector. Therefore, the agency has not prepared an economic assessment pursuant to the Unfunded Mandates Reform Act.
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Pursuant to Executive Order 12988, “Civil Justice Reform,” we have considered whether this rule has any retroactive effect. We conclude that it will not have such an effect.
Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
If you wish to do so, please comment on the extent to which this final rule effectively uses plain language principles.
Under the National Technology and Transfer and Advancement Act of 1995
This rule does not require the use of any technical standards.
Anyone is able to search the electronic form of all 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 DOT's complete Privacy Act Statement in the
This rule is not subject to Executive Order 13045 because it is not “economically significant” as defined under Executive Order 12866, and does not concern an environmental, health, or safety risk that NHTSA has reason to believe may have a disproportionate effect on children.
NHTSA finds that prior notice and opportunity for comment are unnecessary under 5 U.S.C. 553(b)(3)(B) because this action does not impose any regulatory requirements. This rule merely revises the list of vehicles not originally manufactured to conform to the FMVSS that NHTSA has decided to be eligible for importation into the United States since the last list was published in September, 2014.
In addition, so that the list of vehicles for which import eligibility decisions have been made may be included in the next edition of 49 CFR parts 572 to 999, which is due for revision on October 1, 2015, good cause exists to dispense with the requirement in 5 U.S.C. 553(d) for the effective date of the rule to be delayed for at least 30 days following its publication.
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, Part 593 of Title 49 of the Code of Federal Regulations,
49 U.S.C. 322 and 30141(b); delegation of authority at 49 CFR 1.95.
(a) Each vehicle on the following list is preceded by a vehicle eligibility number. The importer of a vehicle admissible under any eligibility decision must enter that number on the HS-7 Declaration Form accompanying entry to indicate that the vehicle is eligible for importation.
(1) “VSA” eligibility numbers are assigned to all vehicles that are decided to be eligible for importation on the initiative of the Administrator under Sec. 593.8.
(2) “VSP” eligibility numbers are assigned to vehicles that are decided to be eligible under Sec. 593.7(f), based on a petition from a manufacturer or registered importer submitted under Sec. 593.5(a)(1), which establishes that a substantially similar U.S.-certified vehicle exists.
(3) “VCP” eligibility numbers are assigned to vehicles that are decided to be eligible under Sec. 593.7(f), based on a petition from a manufacturer or registered importer submitted under Sec. 593.5(a)(2), which establishes that the vehicle has safety features that comply with, or are capable of being altered to comply with, all applicable FMVSS.
(b) Vehicles for which eligibility decisions have been made are listed alphabetically, first by make, then by model, then by model year.
(c) All hyphens used in the Model Year column mean “through” (for example, “1995-1999” means “1995 through 1999”).
(d) The initials “MC” used in the Make column mean “Motorcycle.”
(e) The initials “SWB” used in the Model Type column mean “Short Wheel Base.”
(f) The initials “LWB” used in the Model Type column mean “Long Wheel Base.”
(g) For vehicles with a European country of origin, the term “Model Year” ordinarily means calendar year in which the vehicle was produced.
(h) All vehicles are left-hand-drive (LHD) vehicles unless noted as RHD. The initials “RHD” used in the Model Type column mean “right-hand-drive.”
(i) For vehicle models that have been determined to be eligible for importation based on a petition submitted under Sec. 593.5(a)(1), which establishes that a substantially similar U.S.-certified vehicle exists, and no specific body style(s) are listed, only the body style(s) of that vehicle model that were U.S.-certified by the original manufacturer are eligible for importation. For example, if the original manufacturer manufactured both sedan and wagon body styles for the described model, but only certified the sedan for the U.S. market, the wagon body style would not be eligible for importation under that determination.
49 U.S.C. 30141(b); 49 CFR 593.9; delegations of authority at 49 CFR 1.95 and 501.8.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason adjustment.
This action increases the trip limit for Gulf of Maine cod for Northeast multispecies common pool vessels for the remainder of the 2015 fishing year. The regulations authorize the Regional Administrator to adjust the trip limits for common pool vessels in order to facilitate harvest of, or prevent exceeding, the pertinent common pool quotas during the fishing year. Increasing the trip limit is intended to provide additional fishing opportunities and help allow the common pool fishery to catch its allowable quota for this stock.
The trip limit increase is effective September 16, 2015, through April 30, 2016.
Liz Sullivan, Fishery Management Specialist, 978-282-8493.
The regulations at § 648.86(o) authorize the Regional Administrator (RA) to adjust the possession limits for common pool vessels in order to prevent the
As of August 25, 2015, the common pool had caught approximately 31 percent of its sub-annual catch limit (ACL) of GOM cod. To allow the common pool fishery to catch more of its quota for this stock, effective September 16, 2015, the trip limit of GOM cod for all common pool vessels is increased from 0 lb per trip, to 25 lb (11.3 kg) per trip. Allowing landings of incidentally caught GOM cod up to 25 lb (11.3 kg) is projected to prevent overharvest while reducing discards.
Weekly quota monitoring reports for the common pool fishery can be found on our Web site at:
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the 30-day delayed effectiveness period because it would be impracticable and contrary to the public interest.
The regulations at § 648.86(o) authorize the RA to adjust the Northeast multispecies possession and trip limits for common pool vessels in order to prevent the overharvest or underharvest of the pertinent common pool sub-ACLs. The catch data used to justify increasing the possession and trip limit for GOM cod only recently became available. The possession and trip limit increase implemented through this action allows for increased harvest of GOM cod, to help ensure that the fishery may achieve the optimum yield (OY) for this stock. As a result, the time necessary to provide for prior notice and comment, and a 30-day delay in effectiveness, would prevent us from increasing the possession and trip limit for GOM cod in a timely manner, which could prevent the fishery from achieving the OY. This would undermine management objectives of the Northeast Multispecies Fishery Management Plan and cause unnecessary negative economic impacts to the common pool fishery. There is additional good cause to waive the delayed effective period because this action relieves restrictions on fishing vessels by increasing a trip limit.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is exchanging unused Community Development Quota (CDQ) for CDQ acceptable biological catch (ABC) reserves. This action is necessary to allow the 2015 total allowable catch of flathead sole, rock sole, and yellowfin sole in the Bering Sea and Aleutian Islands management area to be harvested.
Effective September 16, 2015 through 2400 hours, A.l.t., December 31, 2015.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2015 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 2,420 metric tons (mt), 7,535 mt, and 15,993 mt as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and following revisions (80 FR 38017, July 2, 2015 and 80 FR 52673, September 1, 2015). The 2015 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 4,656 mt, 11,907 mt, and 10,629 mt as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and following revisions (80 FR 38017, July 2, 2015 and 80 FR 52673, September 1, 2015).
The Aleutian Pribilof Islands Community Development Association has requested that NMFS exchange 100 mt of flathead sole and 450 mt of rock sole CDQ reserves for 550 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 100 mt of flathead sole and 450 mt of rock sole CDQ reserves for 550 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and following revisions (80 FR 38017, July 2, 2015 and 80 FR 52673, September 1, 2015) are further revised as follows:
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Aleutian Pribilof Islands Community Development Association in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 8, 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
Food and Drug Administration, HHS.
Notification of availability.
The Food and Drug Administration (FDA or we) is announcing the availability of a draft guidance for industry entitled “A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II (Menu Labeling Requirements in Accordance with 21 CFR 101.11); Draft Guidance for Industry.” The draft guidance, when finalized, will help certain restaurants and similar retail food establishments comply with the menu labeling requirements, including the requirements to provide calorie and other nutrition information for standard menu items, including food on display and self-service food.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that we consider your comment on the draft guidance before we begin work on the final version of the guidance, submit either electronic or written comments on the draft guidance by November 2, 2015.
Submit written requests for single copies of the draft guidance to the Office of Nutrition, Labeling, and Dietary Supplements (HFS-820), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740. Send two self-addressed adhesive labels to assist that office in processing your request. See the
Submit electronic comments on the draft guidance to
Lynn Szybist, Center for Food Safety and Applied Nutrition (HFS-820), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-2371.
We are announcing the availability of a draft guidance for industry entitled “A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II (Menu Labeling Requirements in Accordance with 21 CFR 101.11); Draft Guidance for Industry.” We are issuing the draft guidance consistent with our good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent our current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. You can use an alternate approach if it satisfies the requirements of the applicable statutes and regulations.
In the
This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in § 101.11(d), (c)(3), and (b)(2) have been approved under OMB Control No. 0910-0783.
Interested persons may submit either electronic comments regarding the draft guidance to
Persons with access to the Internet may obtain the draft guidance document at
Drug Enforcement Administration, Department of Justice.
Notice of intent.
The Administrator of the Drug Enforcement Administration is issuing this notice of intent to temporarily schedule the synthetic cannabinoid
September 16, 2015.
John R. Scherbenske, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.
Any final order will be published in the
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. 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. The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while ensuring an adequate supply is available for the legitimate medical, scientific, research, and industrial needs of the United States. Controlled substances have the potential for abuse and dependence and are controlled to protect the public health and safety.
Under the CSA, every 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 drug or other 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 all scheduled substances is published at 21 CFR part 1308.
Section 201 of the CSA, 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance into schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if she finds that such action is necessary to avoid imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling for up to one year. 21 U.S.C. 811(h)(2).
Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 811(h)(1). The Attorney General has delegated her scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100.
Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of the Administrator's intention to temporarily place a substance into schedule I of the CSA.
To find that placing a substance temporarily into schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in section 201(c) of the CSA, 21 U.S.C. 811(c): the substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).
A substance meeting the statutory requirements for temporary scheduling may only be placed in schedule I. 21 U.S.C. 811(h)(1). Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1).
Available data and information for MAB-CHMINACA, summarized below,
Synthetic cannabinoids are substances synthesized in laboratories that mimic the biological effects of delta-9-tetrahydrocannabinol (THC), the main psychoactive ingredient in marijuana. It is believed SCs were first introduced on the designer drug market in several European countries as “herbal incense” before the initial encounter in the United States by U.S. Customs and Border Protection (CBP) in November 2008. From 2009 to present, misuse of SCs has increased in the United States with law enforcement encounters describing plant material laced with SCs intended for human consumption. It has been demonstrated that the substances and the associated designer products are abused for their psychoactive properties. With many generations of SCs being encountered since 2009, MAB-CHMINACA is one of the latest, and based upon reports from public health and law enforcement, the misuse and abuse of this substance is negatively impacting the public health and communities.
The designer drug products laced with SCs, including MAB-CHMINACA, are often sold under the guise of “herbal incense” or “potpourri,” use various product names, and are routinely labeled “not for human consumption.” Additionally, these products are marketed as a “legal high” or “legal alternative to marijuana” and are readily available over the Internet, in head shops, or sold in convenience stores. There is an incorrect assumption that these products are safe, and that labeling these products as “not for human consumption” is a legal defense to criminal prosecution.
MAB-CHMINACA is a SC that has pharmacological effects similar to the schedule I hallucinogen THC and other temporarily and permanently controlled schedule I substances. MAB-CHMINACA has been shown to cause severe toxicity and adverse health effects following ingestion, including seizures, excited delirium, cardiotoxicity and death. With no approved medical use and limited safety or toxicological information, MAB-CHMINACA has emerged on the illicit drug market and is being abused for its psychoactive properties.
SCs have been developed over the last 30 years as tools for investigating the cannabinoid system. SCs were first encountered by CBP within the United States in November 2008. Since then, the popularity of SCs and their associated products has increased steadily as evidenced by law enforcement seizures, public health information, and media reports. Amidst multiple administrative and legislative actions to place SCs found on the illicit market into schedule I of the CSA, new versions of SCs intended to circumvent current law continue to be encountered. MAB-CHMINACA is a SC that was encountered following the hospitalization of 125 individuals around the Baton Rouge, Louisiana area in October 2014 (
On April 29, 2015, the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) reported multiple outbreaks of intoxications within the United States resulting from the ingestion of products believed to contain SCs. EMCDDA further reported that MAB-CHMINACA had been implicated in at least some of those cases. EMCDDA also reported on two deaths involving MAB-CHMINACA, one in Hungary and the other in Japan.
A major concern, as reiterated by public health officials and medical professionals, remains the targeting and direct marketing of SCs and SC-containing products to adolescents and youth. This is supported by law enforcement encounters and reports from emergency departments: however, all age groups have been reported by the media as abusing these substances and related products. Individuals, including minors, are purchasing SCs from the Internet, gas stations, convenience stores, and head shops.
Smoking mixtures of these substances for the purpose of achieving intoxication have resulted in numerous emergency department visits and calls to poison control centers. As reported by the American Association of Poison Control Centers (AAPCC), adverse effects including severe agitation, anxiety, racing heartbeat, high blood pressure, nausea, vomiting, seizures, tremors, intense hallucinations, psychotic episodes, suicide, and other harmful thoughts and/or actions can occur following ingestion of SCs. Presentations at emergency departments directly linked to the abuse of MAB-CHMINACA have resulted in similar symptoms, including severe agitation, seizures and/or death (
As discussed previously, it is believed most abusers of SCs or SC-related products smoke the product following application to plant material. Until recently, this was the preferred route of administration. Law enforcement has also begun to encounter new variations of SCs in liquid form. It is believed abusers have been applying the liquid to hookahs or “e-cigarettes,” which allows the user to administer a vaporized liquid that can be inhaled.
Following multiple scheduling actions designed to safeguard the public from the adverse effects and safety issues associated with SCs, encounters by law enforcement and health care professionals indicate the continued abuse of these substances and their associated products. With each action to control SCs, drug manufacturers and suppliers are adapting at an alarmingly quick pace to design new SCs that circumvent regulatory controls. Even before DEA temporarily controlled the latest group of SCs, AB-CHMINACA, AB-PINACA, and THJ-2201, on January 30, 2015, MAB-CHMINACA was already available on the illicit market and responsible for overdoses and deaths (
On October 29, 2014, the State of Louisiana issued an emergency rule adding N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-indazole-3-carboxamide (MAB-
Poison control centers continue to report the abuse of SCs and their associated products. These substances remain a threat to both the short- and long-term public health and safety. Exposures to SCs were first reported to the AAPCC in 2011. The most alarming report via the AAPCC was published on April 23, 2015. The AAPCC reported a dramatic spike in poison center exposure calls throughout the United States in 2015. The AAPCC reported 1,512 exposure calls in April 2015, representing an almost three-fold increase in exposures to SCs as compared to the previous largest monthly tally (657 exposures in January 2012) since reporting began in 2011. It is likely that many of the calls are directly attributable to the abuse of MAB-CHMINACA based on its high prevalence in drug seizure reports and specimen test reports (
The following information regarding MAB-CHMINACA was obtained through NFLIS
MAB-CHMINACA: NFLIS-451 reports; first encountered in September 2014; locations include Arkansas, Indiana, Kansas, Louisiana, Missouri, Oklahoma, Texas, Virginia, and Wisconsin.
MAB-CHMINACA was identified in a cluster of 125 subjects that presented to emergency facilities within the Baton Rouge and Shreveport, Louisiana areas in October 2014. On October 29, 2014, the Louisiana Secretary of the Department of Health and Hospitals announced the addition of MAB-CHMINACA into schedule I of the Controlled Dangerous Substances section of the Louisiana Administrative Code (La. Admin. Code tit. 46, section 2704 (2014)). From October 2014 to the present, multiple clusters of overdoses involving MAB-CHMINACA and at least four deaths attributed to the misuse and abuse of MAB-CHMINACA have been reported. (
Since abusers obtain these drugs through unknown sources, the identity, purity, and quantity of these substances is uncertain and inconsistent, thus posing significant adverse health risks to users. The SCs encountered on the illicit drug market have no accepted medical use within the United States. Regardless, SC products continue to be easily available and abused by diverse populations. Unknown factors including detailed product analysis and dosage variations between various packages and batches present a significant danger to an abusing individual. Designer drug products have been found to vary in the amount and type of SC that plant material is laced with, which could be one explanation for the numerous emergency department admissions that have been connected to these substances. Similar to previous SCs, MAB-CHMINACA has been found on plant material.
Based on the data and information summarized above, the continued uncontrolled manufacture, distribution, importation, exportation, and abuse of MAB-CHMINACA poses an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for MAB-CHMINACA in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in schedule I. Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for MAB-CHMINACA indicate that this substance has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the DEA, through a letter dated May 14, 2015, notified the Assistant Secretary of the DEA's intention to temporarily this substance in schedule I.
This notice of intent initiates an expedited temporary scheduling action and provides the 30-day notice pursuant to section 201(h) of the CSA, 21 U.S.C. 811(h). In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Administrator considered available data and information, herein set forth the grounds for his determination that it is necessary to temporarily schedule MAB-CHMINACA in schedule I of the CSA, and finds that placement of this SC into schedule I of the CSA is necessary to avoid an imminent hazard to the public safety.
Because the Administrator hereby finds that it is necessary to temporarily place this SC into schedule I to avoid an imminent hazard to the public safety, any subsequent final order temporarily scheduling these substances will be effective on the date of publication in the
The CSA sets forth specific criteria for scheduling a drug or other substance. Regular scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The regular scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the regular scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary
Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for an expedited temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the
Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the DEA believes that the notice and comment requirements of the Administrative Procedure Act (APA) at 5 U.S.C. 553, do not apply to this notice of intent. In the alternative, even assuming that this notice of intent might be subject to section 5 U.S.C. 553, the Administrator finds that there is good cause to forgo the notice and comment requirements of section 553, as any further delays in the process for issuance of temporary scheduling orders would be impracticable and contrary to the public interest in view of the manifest urgency to avoid an imminent hazard to the public safety.
Although the DEA believes this notice of intent to issue a temporary scheduling order is not subject to the notice and comment requirements of the APA, the DEA notes that in accordance with 21 U.S.C. 811(h)(4), the Administrator will take into consideration any comments submitted by the Assistant Secretary with regard to the proposed temporary scheduling order.
Further, the DEA believes that this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act. The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by the APA or any other law to publish a general notice of proposed rulemaking.
Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget.
This action 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. Therefore, in accordance with Executive Order 13132 (Federalism), it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.
For the reasons set out above, the DEA proposes to amend 21 CFR part 1308 as follows:
21 U.S.C. 811, 812, 871(b), unless otherwise noted.
(h) * * *
(25)
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking; notice of proposed rulemaking by cross-reference to temporary regulation.
This document contains proposed regulations relating to certain transfers of property by United States persons to foreign corporations. The proposed regulations affect United States persons that transfer certain property, including foreign goodwill and going concern value, to foreign corporations in nonrecognition transactions described in section 367 of the Internal Revenue Code (Code). The proposed regulations also combine portions of the existing regulations under section 367(a) into a single regulation. In addition, in the Rules and Regulations section of this issue of the
Written or electronic comments and requests for a public hearing must be received by December 15, 2015.
Send submissions to: CC:PA:LPD:PR (REG-139483-13), Internal Revenue Service, Room 5203, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-139483-13), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224; or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Ryan A. Bowen, (202) 317-6937; concerning submissions of comments or requests for a public hearing, Regina Johnson, (202) 317-6901 (not toll-free numbers).
The collections of information contained in the regulations have been submitted for review and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507 (d)) under control number 1545-0026.
The collections of information are in § 1.6038B-1(c)(4) and (d)(1). The collections of information are mandatory. The likely respondents are domestic corporations. Burdens associated with these requirements will
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number.
Books and records relating to a collection of information must be retained as long as their contents might become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Section 367(a)(1) provides that if, in connection with any exchange described in section 332, 351, 354, 356, or 361, a United States person (U.S. transferor) transfers property to a foreign corporation (outbound transfer), the transferee foreign corporation will not, for purposes of determining the extent to which gain shall be recognized on such transfer, be considered to be a corporation. As a result, under section 367(a)(1), the U.S. transferor recognizes any gain (but not loss) on the outbound transfer of the property. Section 367(a)(2) provides an exception to the application of section 367(a)(1) for certain transfers of stock or securities, and section 367(a)(3) provides an exception for transfers of certain property used in a trade or business.
Specifically, section 367(a)(3)(A) provides that, except as provided in regulations prescribed by the Secretary, the general rule of section 367(a)(1) will not apply to any property transferred to a foreign corporation for use by such foreign corporation in the active conduct of a trade or business outside of the United States (ATB exception). Section 367(a)(3)(B) provides that, except as provided in regulations prescribed by the Secretary, certain property is not eligible for the ATB exception. The statute describes five categories of property that are not eligible for the ATB exception: (i) Property described in paragraph (1) or (3) of section 1221(a) (relating to inventory and copyrights, etc.); (ii) installment obligations, accounts receivable, or similar property; (iii) foreign currency or other property denominated in foreign currency; (iv) intangible property within the meaning of section 936(h)(3)(B); and (v) property with respect to which the U.S. transferor is a lessor at the time of the transfer, unless the foreign corporation was the lessee.
Section 367(a)(3)(C) provides that, except as provided in regulations prescribed by the Secretary, the ATB exception will not apply to gain realized on an outbound transfer of the assets of a foreign branch to the extent that previously deducted losses of the branch exceed the taxable income earned by the branch after the losses were incurred (branch loss recapture rule). However, any realized gain in the property transferred that exceeds the branch losses that must be recaptured under this rule may qualify for the ATB exception.
Section 367(a)(6) provides that section 367(a)(1) will not apply to an outbound transfer of any property that the Secretary, in order to carry out the purposes of section 367(a), designates by regulation.
Sections 1.367(a)-2 and 1.367(a)-2T provide general rules for determining whether property is transferred for use by a transferee foreign corporation in the active conduct of a trade or business outside of the United States for purposes of the ATB exception.
Sections 1.367(a)-4 and 1.367(a)-4T provide special rules for determining whether certain property satisfies the ATB exception, including rules that apply to (i) property to be leased by the transferee foreign corporation, (ii) oil and gas working interests, (iii) compulsory transfers of property, and (iv) property to be sold by the foreign corporation. Section 1.367(a)-4T also provides special rules requiring the recapture of depreciation upon an outbound transfer of U.S. depreciated property and exempting outbound transfers of property to a FSC (within the meaning of section 922(a)) from the application of paragraphs (a) and (d) of section 367.
Sections 1.367(a)-5 and 1.367(a)-5T address the five categories of property ineligible for the ATB exception that are described in section 367(a)(3)(B) and provide narrow exceptions to certain of those categories. Section 1.367(a)-5T(d) (which addresses foreign currency and other property denominated in a foreign currency) allows certain property denominated in the foreign currency of the country in which the foreign corporation is organized to qualify under the ATB exception if that property was acquired in the ordinary course of the business of the U.S. transferor that will be carried on by the foreign corporation. Section 1.367(a)-5T(e) (which addresses intangible property) contains a deadwood reference to the application of section 367(a)(1) to a transfer of intangible property pursuant to section 332. In this regard, see § 1.367(e)-2(a)(2), providing that section 367(a) does not apply to a liquidation described in section 332 of a U.S. subsidiary into a foreign parent corporation. Section 1.367(a)-5T(e) also provides a cross reference to section 367(d) for transfers of intangible property described in section 351 or 361.
Sections 1.367(a)-6 and 1.367(a)-6T provide rules for applying the branch loss recapture rule of section 367(a)(3)(C).
Section 367(d) provides rules for certain outbound transfers of intangible property. Section 367(d)(1) provides that, except as provided in regulations, if a U.S. transferor transfers any intangible property, within the meaning of section 936(h)(3)(B), to a foreign corporation in an exchange described in section 351 or 361, section 367(d) (and not section 367(a)) applies to such transfer.
Section 936(h)(3)(B) defines intangible property broadly to mean any:
(i) patent, invention, formula, process, design, pattern, or know-how;
(ii) copyright, literary, musical, or artistic composition;
(iii) trademark, trade name, or brand name;
(iv) franchise, license, or contract;
(v) method, program, system, procedure, campaign, survey, study, forecast, estimate, customer list, or technical data; or
(vi) any similar item, which has substantial value independent of the services of any individual (section 936(h)(3)(B) intangible property).
Section 367(d)(2)(A) provides that a U.S. transferor that transfers intangible property subject to section 367(d) is treated as having sold the property in exchange for payments that are contingent upon the productivity, use, or disposition of the property. Specifically, the U.S. transferor is treated as receiving amounts that reasonably reflect the amounts that would have been received annually in the form of such payments over the useful life of such property (section 367(d)(2)(A)(ii)(I)), or in the case of a disposition of the intangible property following such transfer (whether direct or indirect), at the time of the disposition (section 367(d)(2)(A)(ii)(II)). The amounts taken into account under section 367(d)(2)(A)(ii) must be commensurate with the income attributable to the intangible. Section 367(d)(2)(A) (flush language).
Section 1.367(d)-1T(b) generally provides that section 367(d) and § 1.367(d)-1T apply to the transfer of any intangible property, but not to the transfer of foreign goodwill or going concern value, as defined in § 1.367(a)-1T(d)(5)(iii) (foreign goodwill exception). Section 1.367(a)-1T(d)(5)(i) generally defines “intangible property,” for purposes of section 367, as knowledge, rights, documents, and any other intangible item within the meaning of section 936(h)(3)(B) that constitutes property for purposes of section 332, 351, 354, 355, 356, or 361, as applicable. The regulation further provides that a working interest in oil and gas property will not be considered to be intangible property for purposes of section 367 and the regulations thereunder.
Section 1.367(a)-1T(d)(5)(iii) defines “foreign goodwill or going concern value” as the residual value of a business operation conducted outside of the United States after all other tangible and intangible assets have been identified and valued. Section 1.367(a)-1T(d)(5)(iii) also provides that, for purposes of section 367 and the regulations thereunder, the value of a right to use a corporate name in a foreign country is treated as foreign goodwill or going concern value.
In addition to providing the foreign goodwill exception, § 1.367(d)-1T(b) also excepts from section 367(d) property that is described in § 1.367(a)-5T(b)(2), which, in general, consists of copyrights and other items described in section 1221(a)(3). Those items, however, are not eligible for the ATB exception by reason of § 1.367(a)-5T.
For purposes of § 1.367(d)-1T, the useful life of intangible property is limited to 20 years under § 1.367(d)-1T(c)(3).
Congress amended section 367 in 1984 to create objective statutory rules because, among other reasons, the IRS was experiencing challenges administering the prior version of the statute. The prior version provided that certain outbound transfers of property qualified for tax-free treatment only if the U.S. transferor established that the outbound transfer was “not in pursuance of a plan having as one its principal purposes the avoidance of Federal income taxes.”
In amending section 367, Congress also noted that “specific and unique problems exist” with respect to outbound transfers of intangible property and enacted section 367(d) in substantially its present form to address these transfers. S. Rep. No 169, 98th Cong., 2d Sess., at 360 (1984); H.R. Rep. No. 432, 98th Cong., 2d Sess., at 1315 (1984). Congress identified problems as arising when “transferor U.S. companies hope to reduce their U.S. taxable income by deducting substantial research and experimentation expenses associated with the development of the transferred intangible and, by transferring the intangible to a foreign corporation at the point of profitability, to ensure deferral of U.S. tax on the profits generated by the intangible.”
The favorable treatment of foreign goodwill and going concern value available under existing law is premised on statements in the legislative history of section 367(d). “The committee contemplates that, ordinarily, no gain will be recognized on the transfer of goodwill or going concern value for use in an active trade or business.” S. Rep. No. 169, 98th Cong., 2d Sess., at 364; H.R. Rep. No. 432, 98th Cong., 2d Sess., at 1319. The Senate Finance Committee and the House Committee on Ways and Means each noted, without explanation, that it “does not anticipate that the transfer of goodwill or going concern value developed by a foreign branch to a newly organized foreign corporation will result in abuse of the U.S. tax system.” S. Rep. No. 169, 98th Cong., 2d Sess., at 362; H.R. Rep. No. 432, 98th Cong., 2d Sess., at 1317. However, neither section 367 nor its legislative history defines goodwill or going concern value of a foreign branch or discusses how goodwill or going concern value is attributed to a foreign branch.
In general, taxpayers interpret section 367 and the regulations under section 367(a) and (d) in one of two alternative ways when claiming favorable treatment for foreign goodwill and going concern value.
Under one interpretation, taxpayers take the position that goodwill and going concern value are not section 936(h)(3)(B) intangible property and therefore are not subject to section 367(d) because section 367(d) applies only to section 936(h)(3)(B) intangible property. Under this interpretation, taxpayers assert that the foreign goodwill exception has no application. Furthermore, these taxpayers assert that gain realized with respect to the outbound transfer of goodwill or going concern value is not recognized under the general rule of section 367(a)(1) because the goodwill or going concern value is eligible for, and satisfies, the ATB exception under section 367(a)(3)(A).
Under a second interpretation, taxpayers take the position that, although goodwill and going concern value are section 936(h)(3)(B) intangible property, the foreign goodwill exception applies. These taxpayers also assert that section 367(a)(1) does not apply to foreign goodwill or going concern value, either because of section 367(d)(1)(A) (providing that, except as provided in regulations, section 367(d) and not section 367(a) applies to section 936(h)(3)(B) intangible property) or because of the ATB exception.
The Treasury Department and the IRS are aware that, in the context of outbound transfers, certain taxpayers attempt to avoid recognizing gain or income attributable to high-value intangible property by asserting that an inappropriately large share (in many cases, the majority) of the value of the property transferred is foreign goodwill or going concern value that is eligible for favorable treatment under section 367.
Specifically, the Treasury Department and the IRS are aware that some taxpayers value the property transferred in a manner contrary to section 482 in order to minimize the value of the property transferred that they identify as section 936(h)(3)(B) intangible property for which a deemed income inclusion is required under section 367(d) and to maximize the value of the property transferred that they identify as exempt from current tax. For example, some taxpayers (i) use valuation methods that value items of intangible property on an item-by-item basis, when valuing the items on an aggregate basis would achieve a more reliable result under the arm's length standard of the section 482 regulations, or (ii) do not properly perform a full factual and functional analysis of the business in which the intangible property is employed.
The Treasury Department and the IRS also are aware that some taxpayers broadly interpret the meaning of foreign goodwill and going concern value for purposes of section 367. Specifically, although the existing regulations under section 367 define foreign goodwill or going concern value by reference to a business operation conducted outside of the United States, some taxpayers have asserted that they have transferred significant foreign goodwill or going concern value when a large share of that value was associated with a business operated primarily by employees in the United States, where the business simply earned income remotely from
The Treasury Department and the IRS have concluded that the taxpayer positions and interpretations described in this section of the preamble raise significant policy concerns and are inconsistent with the expectation, expressed in legislative history, that the transfer of foreign goodwill or going concern value developed by a foreign branch to a foreign corporation was unlikely to result in abuse of the U.S. tax system.
For the reasons discussed in this section of the preamble, the Treasury Department and the IRS have determined that allowing intangible property to be transferred outbound in a tax-free manner is inconsistent with the policies of section 367 and sound tax administration and therefore will amend the regulations under section 367 as described in the Explanation of Provisions section of this preamble.
The temporary regulations under section 482 published in the Rules and Regulations section of this issue of the
The proposed regulations eliminate the foreign goodwill exception under § 1.367(d)-1T and limit the scope of property that is eligible for the ATB exception generally to certain tangible property and financial assets. Accordingly, under the proposed regulations, upon an outbound transfer of foreign goodwill or going concern value, a U.S. transferor will be subject to either current gain recognition under section 367(a)(1) or the tax treatment provided under section 367(d).
Proposed § 1.367(d)-1(b) provides that section 367(d) and § 1.367(d)-1 apply to an outbound transfer of intangible property, as defined in proposed § 1.367(a)-1(d)(5). Proposed § 1.367(d)-1(b) does not provide an exception for any intangible property. Rather, as described in part II. of the Explanation of Provisions section of this preamble, proposed § 1.367(a)-1(d)(5) modifies the definition of intangible property that applies for purposes of section 367(a) and (d). The modified definition facilitates both the elimination of the foreign goodwill exception as well as the addition of a rule under which U.S. transferors may apply section 367(d) with respect to certain outbound transfers of property that otherwise would be subject to section 367(a) under the U.S. transferor's interpretation of section 936(h)(3)(B). The proposed regulations make certain coordinating changes to § 1.367(d)-1T to take into account the elimination of the foreign goodwill exception and the revised definition of intangible property. The proposed regulations also eliminate the definition of foreign goodwill and going concern value under existing § 1.367(a)-1T(d)(5)(iii) because it is no longer needed.
In addition, the proposed regulations eliminate the existing rule under § 1.367(d)-1T(c)(3) that limits the useful life of intangible property to 20 years. When the useful life of the intangible property transferred exceeds 20 years, the limitation might result in less than all of the income attributable to the property being taken into account by the U.S. transferor. Accordingly, proposed § 1.367(d)-1(c)(3) provides that the useful life of intangible property is the entire period during which the exploitation of the intangible property is reasonably anticipated to occur, as of the time of transfer. For this purpose, exploitation includes use of the intangible property in research and development. Consistent with the guidance for cost sharing arrangements in § 1.482-7(g)(2)(ii)(A), if the intangible property is reasonably anticipated to contribute to its own further development or to developing other intangibles, then the period includes the period, reasonably anticipated at the time of the transfer, of exploiting (including use in research and development) such further development. Consequently, depending on the facts, the cessation of exploitation activity after a specific period of time may or may not be reasonably anticipated.
The rules for determining whether property is eligible for the ATB exception and whether the property satisfies the ATB exception currently are found in numerous regulations, namely §§ 1.367(a)-2, 1.367(a)-2T, 1.367(a)-4, 1.367(a)-4T, 1.367(a)-5, and 1.367(a)-5T (collectively, the ATB regulations). To make the regulations more accessible, the proposed regulations combine the ATB regulations, other than the depreciation recapture rule, into a single regulation under proposed § 1.367(a)-2. The proposed regulations retain a coordination rule pursuant to which a transfer of stock or securities in an exchange subject to § 1.367(a)-3 is not subject to § 1.367(a)-2.
Under existing regulations, all property is eligible for the ATB exception, unless the property is specifically excluded. Under this structure, taxpayers have an incentive to take the position that certain intangible property is not described in section 936(h)(3)(B) and therefore not subject to section 367(d) and is instead subject to section 367(a) but eligible for the ATB exception because the intangible property is not specifically excluded from the ATB exception. The Treasury Department and the IRS have concluded that providing an exclusive list of property eligible for the ATB exception will reduce the incentives for taxpayers to undervalue intangible property subject to section 367(d).
Thus, the proposed regulations provide that only certain types of property (as described in the next paragraph) are eligible for the ATB exception. However, in order for eligible property to satisfy the ATB exception, that property must also be considered transferred for use in the active conduct of a trade or business outside of the United States. Specifically, proposed § 1.367(a)-2(a)(2) provides the general rule that an outbound transfer of property satisfies the ATB exception if (i) the property constitutes eligible property, (ii) the property is transferred for use by the foreign corporation in the active conduct of a trade or business outside of the United States, and (iii) certain reporting requirements under section 6038B are satisfied.
Under proposed § 1.367(a)-2(b), eligible property is tangible property, working interests in oil and gas property, and certain financial assets, unless the property is also described in one of four categories of ineligible property. Proposed § 1.367(a)-2(c) lists four categories of property not eligible for the ATB exception, which, in general, are (i) inventory or similar property; (ii) installment obligations, accounts receivable, or similar property; (iii) foreign currency or certain other property denominated in foreign currency; and (iv) certain leased tangible property. These four categories of property not eligible for the ATB exception include four of the five categories described in existing regulations under §§ 1.367(a)-5 and 1.367-5T. The category for intangible property is not retained because it is not relevant: Intangible property transferred to a foreign corporation pursuant to section 351 or 361 is not eligible property under proposed § 1.367(a)-2(b) without regard to the application of proposed § 1.367(a)-2(c).
The proposed regulations also eliminate the exception in existing § 1.367(a)-5T(d)(2) that allows certain property denominated in the foreign currency of the country in which the foreign corporation is organized to qualify under the ATB exception if that property was acquired in the ordinary course of the business of the U.S. transferor that will be carried on by the foreign corporation. The Treasury Department and the IRS have determined that removing the exception is consistent with the general policy of section 367(a)(3)(B)(iii) to require gain to be recognized on an outbound transfer of foreign currency denominated property. Removing the exception will preserve the character, source, and amount of gain attributable to section 988 transactions that otherwise could be lost or changed if such gain were not immediately recognized but instead were reflected only in the U.S. transferor's basis in the stock of the foreign corporation.
The general rules for determining whether eligible property is transferred for use in the active conduct of a trade or business outside of the United States are described in proposed § 1.367(a)-2(d). Also, paragraphs (e) through (h) of proposed § 1.367(a)-2 provide special rules for certain property to be leased after the transfer, a working interest in oil and gas property, property that is re-transferred by the transferee foreign corporation to another person, and certain compulsory transfers of property, respectively. The proposed regulations also combine existing § 1.367(a)-2T(c) (relating to property that is re-transferred by the foreign corporation) and a portion of § 1.367(a)-4T(d) (relating to property to be sold by the foreign corporation) into proposed § 1.367(a)-2(g), because both of these existing provisions relate to subsequent transfers of property by the foreign corporation.
The proposed regulations modify the scope of the term U.S. depreciated property for purposes of the depreciation recapture rule to include section 126 property (as defined in section 1255(a)(2)).
The proposed regulations eliminate the special rules for outbound transfers of property to a FSC, because the FSC provisions have been repealed. Tax Increase Prevention and Reconciliation Act of 2005, Pub L. 109-222, § 513, 120 Stat. 366 (2006); FSC Repeal and Extraterritorial Income Exclusion Act of 2000, Pub. L. 106-519, § 2, 114 Stat. 2423 (2000).
Finally, the proposed regulations make conforming changes to the reporting requirements under § 1.6038B-1(c)(4) to take into account the proposed regulations under § 1.367(a)-2. The proposed regulations retain a rule providing relief for certain failures to comply with the reporting requirements of section 6038B and the regulations thereunder for qualification under the ATB exception, but that rule is moved to proposed § 1.367(a)-2(j).
Taxpayers take different positions as to whether goodwill and going concern value are section 936(h)(3)(B) intangible property, as discussed in part I.D. of the Background section of this preamble. The proposed regulations do not address this issue. However, the proposed regulations under § 1.367(a)-1(b)(5) provide that a U.S. transferor may apply section 367(d) to a transfer of property, other than certain property described below, that otherwise would be subject to section 367(a) under the U.S. transferor's interpretation of section 936(h)(3)(B). Under this rule, a U.S. transferor that takes the position that goodwill and going concern value are not section 936(h)(3)(B) intangible property may nonetheless apply section 367(d) to goodwill and going concern value. This rule furthers sound tax administration by reducing the consequences of uncertainty as to whether value is attributable to property subject to section 367(a) or property subject to section 367(d). The application of section 367(d) in lieu of
To implement this new rule under proposed § 1.367(a)-1(b)(5) and the removal of the foreign goodwill exception, the proposed regulations revise the definition of “intangible property” that applies for purposes of sections 367(a) and (d). As revised, the term means either property described in section 936(h)(3)(B) or property to which a U.S. transferor applies section 367(d) (in lieu of applying section 367(a)). However, for this purpose and consistent with existing regulations, intangible property does not include property described in section 1221(a)(3) (generally relating to certain copyrights) or a working interest in oil and gas property.
The regulations under § 1.367(a)-7 (concerning outbound transfers of property subject to section 367(a) in certain asset reorganizations) use the term “section 367(d) property” to describe property that is not subject to section 367(a) and is therefore not subject to § 1.367(a)-7. The proposed regulations modify the definition of section 367(d) property in § 1.367(a)-7(f)(11) (which currently defines section 367(d) property as property described in section 936(h)(3)(B)) by reference to the new definition of “intangible property” under the proposed regulations. When the Treasury Department and the IRS issue regulations to implement the guidance described in Notice 2012-39 (IRB 2012-31) (announcing regulations to be issued addressing outbound transfers of intangible property subject to section 367(d) in certain asset reorganizations), the definition of “section 367(d) property” provided in section 4.05(3) of the notice will be similarly modified.
Section 1.482-1T(f)(2)(i) of the temporary regulations published elsewhere in the Rules and Regulations section of this issue of the
First, § 1.367(a)-1T(b)(3)(i) provides that “the gain required to be recognized . . . shall in no event exceed the gain that would have been recognized on a taxable sale of those items of property
Second, § 1.367(a)-1T(b)(3)(ii) provides that no loss may be recognized by reason of section 367. That rule duplicates a loss disallowance rule in § 1.367(a)-1T(b)(1), which provides that section 367(a)(1) denies nonrecognition only to transfers of items of property on which gain is realized and that losses do not affect the amount of the gain recognized because of section 367(a)(1).
Third, § 1.367(a)-1T(b)(3)(iii) provides a rule to address a scenario in which ordinary income and capital gain could exceed the amount described in § 1.367(a)-1T(b)(3)(i). Because these regulations replace § 1.367(a)-1T(b)(3)(i), § 1.367(a)-1T(b)(3)(iii) is no longer necessary.
The proposed regulations are proposed to apply to transfers occurring on or after September 14, 2015 and to transfers occurring before September 14, 2015 resulting from entity classification elections made under § 301.7701-3 that are filed on or after September 14, 2015. However, the removal of the exception currently provided in § 1.367(a)-5T(d)(2) will apply to transfers occurring on or after the date that the rules proposed in this section are adopted as final regulations in a Treasury decision published in the
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It has been determined that section 553(b) and (d) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collection of information contained in this regulation will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. This certification is based on the fact that the proposed regulations under section 367(a) and (d) simplify existing regulations, and the regulations under section 6038B make relatively minor changes to existing information reporting requirements. Moreover, these regulations primarily will affect large domestic corporations filing consolidated returns. In addition, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply to the regulations under section 482 that are proposed herein, and published as temporary regulations in the Rules and Regulations section of this issue of the
Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the
The principal author of these proposed regulations is Ryan Bowen, Office of Associate Chief Counsel (International). However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Sections 1.367(a)-1 through 1.367(a)-7 also issued under 26 U.S.C. 367(a). * * *
Section 1.367(d)-1 also issued under 26 U.S.C. 367(d). * * *
Section 1.482-1 also issued under 26 U.S.C. 482.
Section 1.6038B-1 also issued under 26 U.S.C. 6038B. * * *
This section lists the paragraphs contained in §§ 1.367(a)-1 through 1.367(a)-8.
(a) Scope.
(b) General rules.
(1) Foreign corporation not considered a corporation for purposes of certain transfers.
(2) Cases in which foreign corporate status is not disregarded.
(3) Determination of value.
(b)(4)(i)(A) [Reserved].
(b)(4)(ii) [Reserved].
(5) Treatment of certain property as subject to section 367(d).
(c) [Reserved].
(d) Definitions.
(d)(1) through (d)(2) [Reserved].
(3) Transfer.
(d)(4) [Reserved].
(5) Intangible property.
(6) Operating intangibles.
(e) Close of taxable year in certain section 368(a)(1)(F) reorganizations.
(f) Exchanges under sections 354(a) and 361(a) in certain section 368(a)(1)(F) reorganizations.
(1) Rule
(2) Rule applies regardless of whether a continuance under applicable law.
(g) Effective date of certain sections.
(1) In general.
(g)(2) through (3) [Reserved].
(4)
(5) Effective/applicability dates.
(a) Scope and general rule.
(1) Scope.
(2) General rule.
(b) Eligible property.
(c) Exception for certain property.
(1) Inventory.
(2) Installment obligations, etc.
(3) Foreign currency, etc.
(4) Certain leased tangible property.
(d) Active conduct of a trade or business outside the United States.
(1) In general.
(2) Trade or business.
(3) Active conduct.
(4) Outside of the United States.
(5) Use in the trade or business.
(6) Active leasing and licensing.
(e) Special rules for certain property to be leased.
(1) Leasing business of the foreign corporation.
(2) De minimis leasing by the foreign corporation.
(3) Aircraft and vessels leased in foreign commerce.
(f) Special rules for oil and gas working interests.
(1) In general.
(2) Active use of working interest.
(3) Start-up operations.
(4) Other applicable rules.
(g) Property retransferred by the foreign corporation.
(1) General rule.
(2) Exception.
(h) Compulsory transfers of property.
(i) [Reserved].
(j) Failure to comply with reporting requirements of section 6038B.
(1) Failure to comply.
(2) Relief for certain failures to comply that are not willful.
(k) Effective/applicability dates.
(1) In general.
(2) Foreign currency exception.
(a) In general.
(1) Overview.
(2) Exceptions for certain exchanges of stock or securities.
(3) Cross-references.
(b) Transfers of stock or securities of foreign corporations.
(1) General rule.
(2) Certain transfers subject to sections 367(a) and (b).
(c) Transfers of stock or securities of domestic corporations.
(1) General rule.
(2) Ownership presumption.
(3) Active trade or business test.
(4) Special rules.
(5) Definitions.
(6) Reporting requirements of U.S. target company.
(7) Ownership statements.
(8) Certain transfers in connection with performance of services.
(9) Private letter ruling option.
(10) Examples.
(11) Effective date.
(d) Indirect stock transfers in certain nonrecognition transfers.
(1) In general.
(2) Special rules for indirect transfers.
(3) Examples.
(e) [Reserved].
(f) Failure to file statements.
(1) Failure to file.
(2) Relief for certain failures to file that are not willful.
(g) Effective/applicability dates.
(1) Rules of applicability.
(2) Election.
(h) Former 10-year gain recognition agreements.
(i) [Reserved].
(j) Transition rules regarding certain transfers of domestic or foreign stock or securities after December 16, 1987, and prior to July 20, 1998.
(1) Scope.
(2) Transfers of domestic or foreign stock or securities: Additional substantive rules.
(k) [Reserved].
(a) Depreciated property used in the United States.
(1) In general.
(2) U.S. depreciated property.
(3) Property used within and without the United States.
(b) Effective/applicability dates.
(a) through (b)(1) [Reserved].
(2) No active conduct exception.
(c)(1) [Reserved].
(2) Gain limitation.
(3) [Reserved].
(c)(4) through (j) [Reserved].
(k) Effective/applicability dates.
(a) Scope and purpose.
(b) General rule.
(1) Nonrecognition exchanges enumerated in section 367(a)(1).
(2) Nonrecognition exchanges not enumerated in section 367(a)(1).
(c) Elective exception.
(1) Control.
(2) Gain recognition.
(3) Basis adjustments required for control group members.
(4) Agreement to amend or file a U.S. income tax return.
(5) Election and reporting requirements.
(d) Section 361 exchange followed by successive distributions to which section 355 applies.
(e) Other rules.
(1) Section 367(a) property with respect to which gain is recognized.
(2) Relief for certain failures to comply that are not willful.
(3) Anti-abuse rule.
(4) Certain income inclusions under § 1.367(b)-4.
(5) Certain gain under § 1.367(a)-6.
(f) Definitions.
(g) Examples.
(h) Applicable cross-references.
(i) [Reserved].
(j) Effective/applicability dates.
(1) In general.
(2) Section 367(d) property.
(a) Scope.
(b) Definitions and special rules.
(1) Definitions.
(2) Special rules.
(c) Gain recognition agreement.
(1) Terms of agreement.
(2) Content of gain recognition agreement.
(3) Description of transferred stock or securities and other information.
(4) Basis adjustments for gain recognized.
(5) Terms and conditions of a new gain recognition agreement.
(6) Cross-reference.
(d) Filing requirements.
(1) General rule.
(2) Special requirements.
(3) Common parent as agent for U.S. transferor.
(e) Signatory.
(1) General rule.
(2) Signature requirement.
(f) Extension of period of limitations on assessments of tax.
(1) General rule.
(2) New gain recognition agreement.
(g) Annual certification.
(h) Use of security.
(i) [Reserved].
(j) Triggering events.
(1) Disposition of transferred stock or securities.
(2) Disposition of substantially all of the assets of the transferred corporation.
(3) Disposition of certain partnership interests.
(4) Disposition of stock of the transferee foreign corporation.
(5) Deconsolidation.
(6) Consolidation.
(7) Death of an individual; trust or estate ceases to exist.
(8) Failure to comply.
(9) Gain recognition agreement filed in connection with indirect stock transfers and certain triangular asset reorganizations.
(10) Gain recognition agreement filed pursuant to paragraph (k)(14) of this section.
(k) Triggering event exceptions.
(1) Transfers of stock of the transferee foreign corporation to a corporation or partnership.
(2) Complete liquidation of U.S. transferor under sections 332 and 337.
(3) Transfers of transferred stock or securities to a corporation or partnership.
(4) Transfers of substantially all of the assets of the transferred corporation.
(5) Recapitalizations and section 1036 exchanges.
(6) Certain asset reorganizations.
(7) Certain triangular reorganizations.
(8) Complete liquidation of transferred corporation.
(9) Death of U.S. transferor.
(10) Deconsolidation.
(11) Consolidation.
(12) Intercompany transactions.
(13) Deemed asset sales pursuant to section 338(g) elections.
(14) Other dispositions or events.
(l) [Reserved].
(m) Receipt of boot in nonrecognition transactions.
(1) Dispositions of transferred stock or securities.
(2) Dispositions of assets of transferred corporation.
(n) Special rules for distributions with respect to stock.
(1) Certain dividend equivalent redemptions treated as dispositions.
(2) Gain recognized under section 301(c)(3).
(o) Dispositions or other events that terminate or reduce the amount of gain subject to the gain recognition agreement.
(1) Taxable disposition of stock of the transferee foreign corporation.
(2) Gain recognized in connection with certain nonrecognition transactions.
(3) Gain recognized under section 301(c)(3).
(4) Dispositions of substantially all of the assets of a domestic transferred corporation.
(5) Certain distributions or transfers of transferred stock or securities to U.S. persons.
(6) Dispositions or other event following certain intercompany transactions.
(7) Expropriations under foreign law.
(p) Relief for certain failures to file or failures to comply that are not willful.
(1) In general.
(2) Procedures for establishing that a failure to file or failure to comply was not willful.
(3) Examples.
(q) Examples.
(1) Presumed facts and references.
(2) Examples.
(r) Effective/applicability date.
(1) General rule.
(2) Applicability to transfers occurring before March 13, 2009.
(3) Applicability to requests for relief submitted before November 19, 2014.
(a)
(b)
(2)
(3)
(4)(i)(A) [Reserved]. For further guidance, see § 1.367(a)-1T(b)(4)(i)(A).
(B) Appropriate adjustments to earnings and profits, basis, and other affected items will be made according to otherwise applicable rules, taking into account the gain recognized under section 367(a)(1). For purposes of applying section 362, the foreign corporation's basis in the property received is increased by the amount of gain recognized by the U.S. transferor under section 367(a) and the regulations issued pursuant to that section. To the extent the regulations provide that the U.S. transferor recognizes gain with respect to a particular item of property, the foreign corporation increases its basis in that item of property by the amount of such gain recognized. For example, §§ 1.367(a)-2, 1.367(a)-3, and 1.367(a)-4, provide that gain is recognized with respect to particular items of property. To the extent the regulations do not provide that gain recognized by the U.S. transferor is with respect to a particular item of property, such gain is treated as recognized with respect to items of property subject to section 367(a) in proportion to the U.S. transferor's gain realized in such property, after taking into account gain recognized with respect to particular items of property transferred under any other provision of section 367(a). For example, § 1.367(a)-6 provides that branch losses must be recaptured by the recognition of gain realized on the transfer but does not associate the gain with particular items of property. See also § 1.367(a)-1(c)(3) for rules concerning transfers by partnerships or of partnership interests.
(b)(4)(ii) [Reserved]. For further guidance, see § 1.367(a)-1T(b)(4)(ii).
(5)
(c)(1) through (3)(i) [Reserved]. For further guidance, see § 1.367(a)-1T(c)(1) through (3)(i).
(c)(3)(ii)
(c)(3)(ii)(B) through (7) [Reserved]. For further guidance, see § 1.367(a)-1T(c)(3)(ii)(B) through (7).
(d)
(1) and (2) [Reserved]. For further guidance, see § 1.367(a)-1T(d)(1) and (2).
(4) [Reserved]. For further guidance, see § 1.367(a)-1T(d)(4).
(5)
(6)
(g)
(2) and (3) [Reserved]. For further guidance, see § 1.367(a)-1T(g)(2) and (3).
(5)
The revisions and additions read as follows:
(a)
(2)
(i) The property constitutes eligible property;
(ii) The property is transferred for use by the foreign corporation in the active conduct of a trade or business outside of the United States, as determined under paragraph (d), (e), (f), (g), or (h) of this section, as applicable; and
(iii) The U.S. transferor complies with the reporting requirements of section 6038B and the regulations thereunder.
(b)
(1) Tangible property;
(2) A working interest in oil and gas property; and
(3) A financial asset. For purposes of this section, a financial asset is—
(i) a cash equivalent;
(ii) a security within the meaning of section 475(c)(2), without regard to the last sentence of section 475(c)(2) (referencing section 1256) and without regard to section 475(c)(4), but excluding an interest in a partnership;
(iii) a commodities position described in section 475(e)(2)(B), 475(e)(2)(C), or 475(e)(2)(D); and
(iv) a notional principal contract described in § 1.446-3(c)(1).
(c)
(1)
(2)
(3)
(ii)
(4)
(d)
(i) What is the trade or business of the foreign corporation (see paragraph (d)(2) of this section);
(ii) Do the activities of the foreign corporation constitute the active conduct of that trade or business (see paragraph (d)(3) of this section);
(iii) Is the trade or business conducted outside of the United States (see paragraph (d)(4) of this section); and
(iv) Is the transferred property used or held for use in the trade or business (see paragraph (d)(5) of this section)?
(2)
(i) Any activity giving rise to expenses that would be deductible only under section 212 if the activities were carried on by an individual; or
(ii) The holding for one's own account of investments in stock, securities, land, or other property, including casual sales thereof.
(3)
X, a domestic corporation, and Y, a foreign corporation not related to X, transfer property to Z, a newly formed foreign corporation organized for the purpose of combining the research activities of X and Y.
(4)
(5)
(i) Held for the principal purpose of promoting the present conduct of the trade or business;
(ii) Acquired and held in the ordinary course of the trade or business; or
(iii) Otherwise held in a direct relationship to the trade or business. Property is considered held in a direct relationship to a trade or business if it is held to meet the present needs of that trade or business and not its anticipated future needs. Thus, property will not be considered to be held in a direct relationship to a trade or business if it is held for the purpose of providing for future diversification into a new trade or business, future expansion of trade or business activities, future plant replacement, or future business contingencies.
(6)
(e)
(i) The foreign corporation's leasing of the property constitutes the active conduct of a leasing business, as determined under paragraph (d)(6) of this section;
(ii) The lessee of the property is not expected to, and does not, use the property in the United States; and
(iii) The foreign corporation has a need for substantial investment in assets of the type transferred.
(2)
(i) The property transferred will be used by the foreign corporation in the active conduct of a trade or business but will be leased during occasional brief periods when the property would otherwise be idle, such as an airplane leased during periods of excess capacity; or
(ii) The property transferred is real property located outside the United States and—
(A) The property will be used primarily in the active conduct of a trade or business of the foreign corporation; and
(B) Not more than ten percent of the square footage of the property will be leased to others.
(3)
(i) The employees of the foreign corporation perform substantial managerial and operational activities of leasing aircraft or vessels outside the United States; and
(ii) The leased property is predominantly used outside the United States, as determined under § 1.954-2(c)(2)(v).
(f)
(i) The transfer satisfies the conditions of paragraph (f)(2) or (f)(3) of this section;
(ii) At the time of the transfer, the foreign corporation has no intention to farm out or otherwise transfer any part of the transferred working interest; and
(iii) During the first three years after the transfer there are no farmouts or other transfers of any part of the transferred working interest as a result of which the foreign corporation retains less than a 50-percent share of the transferred working interest.
(2)
(i) The U.S. transferor is regularly and substantially engaged in exploration for and extraction of minerals, either directly or through working interests in joint ventures, other than by reason of the property that is transferred;
(ii) The terms of the working interest transferred were actively negotiated among the joint venturers;
(iii) The working interest transferred constitutes at least a five percent working interest;
(iv) Before and at the time of the transfer, through its own employees or officers, the U.S. transferor was regularly and actively engaged in—
(A) Operating the working interest, or
(B) Analyzing technical data relating to the activities of the venture;
(v) Before and at the time of the transfer, through its own employees or officers, the U.S. transferor was regularly and actively involved in decision making with respect to the operations of the venture, including decisions relating to exploration, development, production, and marketing; and
(vi) After the transfer, the foreign corporation will for the foreseeable future satisfy the requirements of subparagraphs (iv) and (v) of this paragraph (f)(2).
(3)
(i) The working interest was acquired by the U.S. transferor immediately before the transfer and for the specific purpose of transferring it to the foreign corporation;
(ii) The requirements of paragraphs (f)(2)(ii) and (iii) of this section are satisfied; and
(iii) The foreign corporation will for the foreseeable future satisfy the requirements of paragraph (f)(2)(iv) and (v) of this section.
(4)
(g)
(i) At the time of the transfer, it is reasonable to believe that, in the reasonably foreseeable future, the foreign corporation will sell or otherwise dispose of any material portion of the property other than in the ordinary course of business; or
(ii) Except as provided in paragraph (g)(2) of this section, the foreign corporation receives the property in an exchange described in section 367(a)(1), and, as part of the same transaction, transfers the property to another person. For purposes of the preceding sentence, a subsequent transfer within six months of the initial transfer will be considered to be part of the same transaction, and a subsequent transfer more than six months after the initial transfer may be considered to be part of the same transaction under step-transaction principles.
(2)
(i) The initial transfer to the foreign corporation is followed by one or more subsequent transfers described in section 351 or 721; and
(ii) Each subsequent transferee is either a partnership in which the preceding transferor is a general partner or a corporation in which the preceding transferor owns common stock; and
(iii) The ultimate transferee is considered to use the property in the active conduct of a trade or business outside of the United States, as determined by applying paragraph (d), (e), or (f) of this section, as applicable, with respect to the ultimate transferee rather than the foreign corporation.
(h)
(1) The property was previously in use in the country in which the foreign corporation is organized; and
(2) The transfer is either:
(i) Legally required by the foreign government as a necessary condition of doing business; or
(ii) Compelled by a genuine threat of immediate expropriation by the foreign government.
(i) [Reserved].
(j)
(2)
(ii) * * *
(B)
(3) For illustrations of the application of the willfulness standard of this paragraph (j), see the examples in § 1.367(a)-8(p)(3).
(4) Paragraph (j) applies to requests for relief submitted on or after November 19, 2014.
(k)
(2)
(a)
(2)
(i) Is either mining property (as defined in section 617(f)(2)), section 1245 property (as defined in section 1245(a)(3)), section 1250 property (as defined in section 1250(c)), farm land (as defined in section 1252(a)(2)), section 1254 property (as defined in section 1254(a)(3)), or section 126 property (as defined in section 1255(a)(2)); and
(ii) Has been used in the United States or has been described in section 168(g)(4) before its transfer.
(3)
(ii) For purposes of the fraction in paragraph (a)(3)(i) of this section, the “full recapture amount” is the amount that would otherwise be included in the transferor's income under paragraph (a)(1) of this section. “U.S. use” is the number of months that the property either was used within the United States or qualified as section 38 property by virtue of section 48(a)(2)(B), and was subject to depreciation by the transferor or a related person. “Total use” is the total number of months that the property was used (or available for use), and subject to depreciation, by the transferor or a related person. For purposes of this paragraph (a)(3), property is not considered to have been in use outside of the United States during any period in which such property was, for purposes of section 48 or 168, treated as property not used predominantly outside the United States pursuant to the provisions of section 48(a)(2)(B). For purposes of this paragraph (b)(3) the term “related person” has the meaning set forth in § 1.367(d)-1(h).
(b)
(a) through (b)(1) [Reserved]. For further guidance, see § 1.367(a)-6T(a) through (b)(1).
(b)(2)
(c)(1) [Reserved]. For further guidance, see § 1.367(a)-6T(c)(1).
(2)
(3) [Reserved].
(c)(4)
(d) through (j) [Reserved]. For further guidance, see § 1.367(a)-6T(d) through (j).
(k)
The revision and addition read as follows:
(f) * * *
(11) Section 367(d) property is intangible property as defined in § 1.367(a)-1(d)(5).
(j)
(2)
(a) [Reserved]. For further guidance, see § 1.367(d)-1T(a).
(b)
(c)(1) and (2) [Reserved]. For further guidance, see § 1.367(d)-1T(c)(1) and (2).
(3)
(c)(4) through (g)(2) [Reserved]. For further guidance, see § 1.367(d)-1T(c)(4) through (g)(2).
(g)(2)(i) The intangible property transferred constitutes an operating intangible, as defined in § 1.367(a)-1(d)(6).
(g)(2)(ii) through (iii)(D) [Reserved]. For further guidance, see § 1.367(d)-1T(g)(2)(ii) through (iii)(D).
(E) The transferred intangible property will be used in the active conduct of a trade or business outside of the United States within the meaning of § 1.367(a)-2 and will not be used in connection with the manufacture or sale of products in or for use or consumption in the United States.
(3)
(ii) For purposes of the formula in paragraph (g)(3)(i) of this section, the “loss recapture income” is the total amount required to be recognized by the U.S. transferor pursuant to section 904(f)(3) or § 1.367(a)-6. The “gain from intangible property” is the total amount of gain realized by the U.S. transferor pursuant to section 904(f)(3) and § 1.367(a)-6 upon the transfer of items of property that are subject to section 367(d). “Gain from intangible property” does not include gain realized with respect to intangible property by reason of an election under paragraph (g)(2) of this section. The “gain from all branch assets” is the total amount of gain realized by the transferor upon the transfer of items of property of the branch for which gain is realized.
(g)(4) through (i) [Reserved]. For further guidance, see § 1.367(d)-1T(g)(4) through (i).
(j)
(b) * * *
(3) * * *
(iii)
[The text of the proposed amendments to § 1.482-1 is the same as the text of § 1.482-1T(f)(2)(i), (f)(2)(ii)(B), and (j)(7) published elsewhere in this issue of the
The additions and revision read as follows:
(c) * * *
(1) through (4) [Reserved]. For further guidance, see § 1.6038B-1T(c)(1) through (4).
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(A)
(B)
(C)
(D)
(vii)
(c)(4)(viii) [Reserved]. For further guidance, see § 1.6038B-1T(c)(4)(viii).
(5)
(i) through (iv) [Reserved]. For further information, see § 1.6038B-1T(c)(5)(i) through (iv).
(d)(1) through (1)(iii) [Reserved]. For further guidance, see § 1.6038B-1T(d)(1) through (1)(iii).
(iv)
(d)(1)(v) through (d)(1)(vi) [Reserved]. For further guidance, see § 1.6038B-1T(d)(1)(v) through (1)(vi).
(d)(1)(vii)
(d)(1)(viii) through (d)(2) [Reserved]. For further guidance, see § 1.6038B-1T(d)(1)(viii) through (2).
(g)
(7) Paragraphs (c)(4)(i) through (vii), (c)(5), and (d)(1)(iv) and (vii) of this section apply to transfers occurring on or after September 14, 2015, and to transfers occurring before September 14, 2015, resulting from entity classification elections made under § 301.7701-3 that are filed on or after September 14, 2015. For guidance with respect to paragraphs (c)(4), (c)(5), and (d)(1) of this section before this section is applicable, see §§ 1.6038B-1 and 1.6038B-1T as contained in 26 CFR part 1 revised as of April 1, 2015.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish two temporary safety zones from Mile Marker (MM) 95.7 to MM 96.7 above Head of Passes (AHP) on the Lower Mississippi River (LMR) on two different dates. These safety zones are necessary to protect persons and vessels from potential safety hazards associated with fireworks displays on or over navigable waterways. Entry into these zones is prohibited unless specifically authorized by the Captain of the Port New Orleans or a designated representative.
Comments and related material must be received by the Coast Guard on or before October 1, 2015.
You may submit comments identified by docket number using any one of the following methods:
(1)
(2)
(3)
If you have questions on this rule, call or email Lieutenant Commander (LCDR) James Gatz, Sector New Orleans, at (504) 365-2281 or
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, using one of the methods specified under
There is no regulatory history or information related to this newly proposed temporary safety zone.
The legal basis for this proposed rule is 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1; 6.04-1, 6.04-6, and 160.5; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define safety zones.
AFX Pro, a company specializing in firework displays, informed the Coast Guard of two fireworks displays planned for October 2015. Mardi Gras World is hosting a private wedding with a fireworks display on October 10, 2015, and the Bridgestone Tire Company is sponsoring a fireworks display on October 22, 2015. The fireworks displays on both dates will be launched from a barge positioned in the waterway adjacent to Mardi Gras World, an event venue located at MM 96.2 AHP on the Lower Mississippi River, in a high commercial traffic area near a tight river bend. Therefore, the Coast Guard has determined that a safety zone is needed to ensure safe navigation for all those in the vicinity of these fireworks displays. These safety zones are proposed to protect the public, mariners, and vessels from the hazards associated with a barge-based fireworks display on and over the waterway.
The Coast Guard proposes two temporary safety zones on the Lower Mississippi River, for a duration of one hour each during the evenings of October 10 and 22, 2015. The safety zones will include the entire width of the Lower Mississippi River in New Orleans, LA from mile marker 95.7 to mile marker 96.7 AHP. Entry into this zone is prohibited unless permission has been granted by the COTP New Orleans, or a designated representative.
The COTP New Orleans will inform the public through BNMs of the enforcement period for the safety zone as well as any changes in the planned schedule. Mariners and other members of the public may also contact Coast Guard Sector New Orleans Command Center to inquire about the status of the safety zone, at (504) 365-2200.
We developed this proposed 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 proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of 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 safety zone will only restrict navigation on the Lower Mississippi River from MM 95.7 to MM 96.7 AHP, for approximately one hour on October 10, 2015 and one hour on October 22, 2015. Due to the limited scope and short duration of the safety zones, the impacts on routine navigation are expected to be minimal.
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
This rule may affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit the safety zone area during the periods of enforcement. The safety zones will not have a significant economic impact on a substantial number of small entities because they are limited in scope and will be in effect for a short period of time. Before the enforcement periods, the Coast Guard COTP will issue maritime advisories widely available to waterway users. Deviation from the safety zone established through this rulemaking may be requested from the appropriate COTP and requests will be considered on a case-by-case basis.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rulemaking does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves establishing a temporary safety zone for all waters of the Lower Mississippi River from MM 95.7 to MM 96.7 AHP. This proposed rule is categorically excluded under section 2.B.2, figure 2-1, paragraph (34)(g) of the Instruction because it involves establishment of safety zones. An Environmental analysis and a categorical exclusion determination will be made available in the docket as indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Vessels requiring deviation from this rule must request permission from the COTP New Orleans or a COTP New Orleans designated representative. They may be contacted on VHF-FM Channel 16 or 67, or through Vessel Traffic Service Lower Mississippi River at 504-365-2415.
(3) Persons and vessels permitted to deviate from this safety zone regulation and enter the restricted area must transit at the slowest safe speed and comply with all lawful directions issued by the COTP New Orleans or the designated representative.
(d)
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) for the State of Missouri submitted on October 17, 2013. These revisions remove definitions that were in this rule but have been moved to the state's general definitions rule. The revisions also add text and corrects a wording error found in the rule. EPA's approval of these rule revisions is being done in accordance with the requirements of the Clean Air Act (CAA).
Comments on this proposed action must be received in writing by October 16, 2015.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0520, by mail to Lachala Kemp, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
Lachala Kemp, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7214 or by email at
In the final rules section of this
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to approve revisions to the state plan for designated facilities and pollutants developed under sections 111(d) and 129 of the Clean Air Act for the State of Missouri. This proposed rule will amend the state plan to include a new plan and associated rule implementing emission guidelines for Sewage Sludge Incinerators published in the
Comments on this proposed action must be received in writing by October 16, 2015.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0543, by mail to Paula Higbee, Environmental Protection Agency, Air Planning and Development
Paula Higbee, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7028 or by email at
In the final rules section of this
Environmental protection, Air pollution control, Administrative practice and procedure, Intergovernmental relations, Reporting and recordkeeping requirements, Sewage sludge incinerators.
Animal and Plant Health Inspection Service, USDA.
Notice of a proposed new system of records.
The Animal and Plant Health Inspection Service proposes to add a system of records to its inventory of records systems subject to the Privacy Act of 1974, as amended. The system of records is the Animal Disease Traceability Information System, USDA-APHIS-16. This notice is necessary to meet the requirements of the Privacy Act to publish in the
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Mr. Neil Hammerschmidt, Program Manager, Animal Disease Traceability, VS, APHIS, 4700 River Road Unit 46, Riverdale, MD 20737-1231; (240) 463-0098.
The Privacy Act of 1974, as amended (5 U.S.C. 552a), requires agencies to publish in the
The Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA) is proposing to add a new system of records, entitled Animal Disease Traceability Information System (ADTIS), to maintain records of activities conducted pursuant to APHIS' mission and responsibilities authorized by the Animal Health Protection Act (7 U.S.C. 8301
APHIS, in cooperation with States, Tribes, and producers, safeguards U.S. animal health through a variety of activities, including disease control. One important part of disease control is locating animals that may be infected with or exposed to disease. Animal traceability efforts typically rely on identification of animals and identification of locations where animals are managed. While APHIS has some animal traceability requirements for livestock moved interstate, States and Tribes may have their own methods or systems for tracing animals moved into, within, or from their respective jurisdictions.
The ADTIS is an information management system that APHIS utilizes to maintain records of official identification devices and other information associated with official identification numbers of animals. The system contains several modules or components that maintain information to support APHIS' ability to respond to animal health events. One component pertains to the location where livestock are raised or maintained. This component, the Standardized Premises Identification System (SPIS), is made available by APHIS at no cost to States and Tribes that wish to use it to manage information about livestock and locations where livestock are kept as part of their own animal disease traceability programs. The SPIS maintains the address of each location that was issued a premises identification number (PIN) to help avoid the issuance of multiple PINs to the same location. Other modules of the ADTIS maintain records of approved manufacturers of official identification devices and their distribution to premises.
APHIS will maintain the information system. Premises data in the SPIS will be segregated by State or Tribe and managed by each State or Tribe that elects to use the system. States and Tribes will collect the information from the individuals, or the individuals, if authorized users of the system, could enter the information directly.
Data may include personally identifiable information on individuals associated with a particular location where animals are managed (
APHIS may routinely share records with Federal, State, and Tribal animal health officials to contain and respond
A report on the new system of records, required by 5 U.S.C. 552a(r), as implemented by Office of Management and Budget Circular A-130, was sent to the Chairman, Committee on Homeland Security and Governmental Affairs, United States Senate; the Chairman, Committee on Oversight and Government Reform, House of Representatives; and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget.
Animal Disease Traceability Information System (ADTIS), USDA-APHIS-16.
None.
All components of the ADTIS are hosted and operated at two U.S. Department of Agriculture (USDA) Enterprise Data Centers, the National Information Technology Centers in Kansas City, MO, and Beltsville, MD.
Individuals who are the contact persons for locations where animals are managed (
Records may include some or all of the following information: Name; street address of premises or business, including city, State, and postal code; latitude/longitude coordinates or global positioning system coordinates of the premises; telephone number(s); email address; type of operation (
The authority for maintenance of this system is the Animal Health Protection Act (7 U.S.C. 8301
The ADTIS is an information management system that the Animal and Plant Health Inspection Service (APHIS) utilizes to maintain records of official identification devices and other events associated with official identification numbers of animals. The premises identification component is made available at no cost to States and Tribes that wish to use it to manage information about locations where livestock are managed as part of their own animal disease traceability programs. States and Tribes will collect the information from the individuals, or the individuals, if authorized users of the system, may enter the information directly. States and Tribes will only have access to premises information associated with their States or Tribes.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, records maintained in the system may be disclosed outside USDA as follows:
(1) As authorized by 7 U.S.C. 8791 and any amendments thereto, to Federal, State, local, and Tribal government animal health officials and to veterinarians accredited by APHIS to perform work for the agency;
(2) To the extent that disclosure will not violate 7 U.S.C. 8791 and any amendments thereto, to appropriate agencies, entities, and persons when the agency suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; the agency has determined that as a result of the suspected or confirmed compromise, there is a risk of harm to economic or property interests, a risk of identity theft or fraud, or a risk of harm to the security of integrity of this system or other systems or programs (whether maintained by the agency or another agency or entity) that rely upon the compromised information; and the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the agency's efforts to respond to the suspect, or confirmed, compromise and prevent, minimize, or remedy such harm;
(3) To the appropriate agency, whether Federal, State, local, Tribal, or foreign, charged with responsibility of investigating or prosecuting a violation of law or of enforcing, implementing, or complying with a statute, rule, regulation, or order issued pursuant thereto, of any record within this system when information available indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and either arising by general statute or particular program statute, or by rule, regulation, or court order issued pursuant thereto;
(4) To the Department of Justice when the agency, or any component thereof, or any employee of the agency in his or her official capacity, or any employee of the agency in his or her individual capacity where the Department of Justice has agreed to represent the employee, or the United States, in litigation, where the agency determines that litigation is likely to affect the agency or any of its components, is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice is deemed by the agency to be relevant and necessary to the litigation; provided, however, that in each case, the agency determines that disclosure of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which the records were collected;
(5) For use in a proceeding before a court or adjudicative body before which the agency is authorized to appear, when the agency, or any component thereof, or any employee of the agency in his or her official capacity, or any employee of the agency in his or her individual capacity where the agency has agreed to represent the employee, or the United States, where the agency determines that litigation is likely to affect the agency or any of its components, is a party to litigation or has an interest in such litigation, and the agency determines that use of such records is relevant and necessary to the litigation; provided, however, that in each case, the agency determines that disclosure of the records to the court is a use of the information contained in
(6) To USDA contractors, partner agency employees or contractors, or private industry employed to identify patterns, trends, or anomalies indicative of fraud, waste, or abuse. Such contractors and other parties are bound by the nondisclosure provisions of the Privacy Act; and
(7) To the National Archives and Records Administration or to the General Services Administration for records management inspections conducted under 44 U.S.C. 2904 and 2906.
None.
The electronic master data for the ADTIS are stored on USDA servers in secure facilities at two separate locations. This redundancy ensures around-the-clock operations. All servers for the ADTIS are backed up nightly. Backup media is taken weekly to an offsite storage facility and stored on tape.
Data can be retrieved by identification number assigned to premises, premises address, and name of contact person for the premises if provided by the State or Tribe, name of non-producer participant, non-producer participant number, and official animal identification numbers.
The electronic master data for the ADTIS is stored on USDA servers in secure facilities. The computer room has safeguards that limit physical access. Access to data is limited to users who have Level 2 eAuthentication credentials and/or database authentication. User roles further limit access to data, and the application contains security measures to prevent access to unauthorized information. USDA monitors eAuthentication access to ensure authorized and appropriate use of data.
APHIS will maintain records in the system indefinitely while the records schedule is awaiting approval. The qualifier is supported under 36 CFR 120.18.
Program Manager, Animal Disease Traceability, VS, APHIS, 4700 River Road Unit 46, Riverdale, MD 20737-1231; (301) 851-3539.
Any individual may request general information regarding this system of records or information as to whether the system contains records pertaining to him/her from the system manager at the address above. All inquiries pertaining to this system should be in writing, must name the system of records as set forth in the system notice, and must contain the individual's name, telephone number, address, and email address.
Any individual may obtain information from a record in the system that pertains to him or her. Requests for hard copies of records should be in writing, and the request must contain the requesting individual's name, address, name of the system of records, timeframe for the records in question, any other pertinent information to help identify the file, and a copy of his/her photo identification containing a current address for verification of identification. All inquiries should be addressed to the Freedom of Information and Privacy Act Staff, Legislative and Public Affairs, APHIS, 4700 River Road Unit 50, Riverdale, MD 20737-1232.
Any individual may contest information contained within a record in the system that pertains to him/her by submitting a written request to the system manager at the address above. Include the reason for contesting the record and the proposed amendment to the information with supporting documentation to show how the record is inaccurate.
Information in the ADTIS comes from members of the public, either individuals or businesses, involved in or supporting the production, management, or holding of livestock or poultry.
None.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Sequoia National Forest (SQF) is planning to prepare an environmental impact statement (EIS) to document and publicly disclose the environmental effects of implementing a fuels reduction and forest health project within a 10,600 acre project analysis area. The Summit Fuels Reduction and Forest Health Project (Summit Project) will encourage a healthy and diverse forest ecosystem that is more resilient to the effects of wildfire, drought, disease, and other disturbances. The Summit Project is located in the wildland-urban intermix (WUI) of the Greenhorn Mountains on the Kern River Ranger District of Sequoia National Forest, surrounding the Alta Sierra community in Kern County, California. The Summit Project is located in Township 25 South, Ranges 31 and 32 East, Mount Diablo Base and Meridian.
Comments concerning the scope of the analysis must be received by September 16, 2015. The draft environmental impact statement is expected January 2016 and the final environmental impact statement is expected June 2016.
Send written comments to Kern River Ranger District, Attention: Summit Comments, P.O. Box 9, Kernville, CA 93238. Comments may also be sent via email to
Steve Anderson, Kern River Ranger District, P.O. Box 9 (105 Whitney Road), Kernville, CA 93238 at 760-376-3781.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Rely Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m. Eastern Time, Monday through Friday.
The purpose of the project is to provide defensible space around the community of Alta Sierra and nearby structures, improve forest health and provide for ecological restoration. There is a need to reduce fuels to protect the private properties of the Alta Sierra community and adjacent forest special
The proposed action will create defensible space near communities in the WUI defense zones; establish and maintain a pattern of area treatments that can be effective in modifying wild fire behavior in the WUI threat zones; and result in economically efficient treatments to reduce hazardous fuels.
The Summit Project proposes a combination of prescribed fire, hand or mechanical thinning to reduce ladder fuels and the potential for crown fire while increasing forest resilience. Thinning may include commercial timber harvest within the 2,500 acre proposed treatment areas. It is expected that the timber sale volume would be less than 5,000 CCF. The proposed treatment areas include salvage harvest of hazard trees of any size as well as dead and dying trees; commercial harvest, using ground skidding, skyline or helicopter yarding of trees smaller than 30 inches diameter at breast height (dbh); and hand thinning, mastication, chipping or other fuels treatments. Treatments will vary based on slopes, ground conditions, access and other factors. Prescribed fire would be introduced within the project analysis area to reduce surface fuels and promote natural regeneration. Areas selected for thinning or mastication would favor Jeffrey and sugar pines, oak, and other shade intolerant, fire and drought tolerant species, to restore the historic species composition. Large snags and woody debris would be strategically retained for wildlife habitat. Riparian areas and meadows would be protected. Implementation would begin after completion of the environmental review process, estimated in 2016, and would be completed over a 5-10 year period.
In addition to the proposed action, the EIS will evaluate a no action alternative. An alternative will be developed that applies only non-commercial treatments to achieve the purpose and need. The
The responsible official is Alfred W. Watson, District Ranger, Sequoia National Forest, P.O. Box 9, Kernville, CA 93238.
The responsible official will decide whether to adopt and implement the proposed action, an alternative to the proposed action, or take no action with respect to the Summit Fuels Reduction and Forest Health Project.
This Notice of Intent initiates the scoping process which guides the development of the EIS. A public scoping meeting will be held on Saturday, October 3, 2015 starting at 10 a.m. at Greenhorn Mountains County Park on Old State Road in Alta Sierra. Detailed information on the meeting and proposed action, including maps, are available on the forest Web site at:
This project will follow the objection procedures as directed by 36 CFR 218 (A) and (B). The objection process provides an opportunity for members of the public who have commented during opportunities for public participation to have any unresolved concerns receive an independent review by the Forest Service prior to a final decision being made by the responsible official. Only those who provided specific written comments during opportunities for public comment are eligible to file an objection.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including the names and addresses of those who comment, will be part of the public record on this proposed action. Comments submitted anonymously will be accepted and considered, however anonymous comments will not provide the Agency with the ability to provide the respondent with subsequent environmental documents.
Forest Service, USDA.
Notice of meeting.
The Shasta County Resource Advisory Committee (RAC) will meet in Redding, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
The meeting will be held from 9:00 a.m. to 3:00 p.m. on October 16, 2015.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at USDA Service Center, Shasta-Trinity National Forest Headquarters, 3644 Avtech Parkway, Redding, California.
Written comments may be submitted as described under
Lesley Yen, Designated Federal Officer, by phone at 530-275-1587 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
1. Review proposals for Secure Rural Schools Title II funding, and
2. Vote on proposals to recommend to the Shasta-Trinity National Forest Supervisor for approval.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by October 15, 2015, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Lesley Yen, Designated Federal Officer, 14225 Holiday Road, Redding, California 96003; by email to
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Mississippi Advisory Committee (Committee) will hold a meeting on Thursday, October 8, 2015, at 3:00 p.m. CDT for the purpose of discussing and voting on an advisory memorandum on the civil rights concerns relating to potential disparities in the distribution of federal child care subsidies in Mississippi on the basis of race or color. The committee previously gathered testimony on this topic on April 29, 2015, and May 13, 2015. The Committee will also discuss and vote on whether to pursue a project on race and prosecutorial discretion in Mississippi.
This meeting is to serve as a rescheduling of the September 8, 2015 meeting of the committee, which was canceled. Members of the public may listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-427-9376, conference ID: 3969602. Any interested member of the public may call this number and listen to the meeting. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.
Member of the public are also invited and welcomed to make statements at the end of the conference call. In addition, members of the public may submit written comments; the comments must be received in the regional office by November 9, 2015. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Administrative Assistant, Carolyn Allen at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
The meeting will be held on Thursday, October 8, 2015, at 3:00 p.m. CDT.
Melissa Mojnaroski, DFO, at 312-353-8311 or
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that an orientation and planning meeting of the South Dakota Advisory Committee to the Commission will convene at 10:00 a.m. (CDT) on Monday, October 5, 2015, via teleconference. The purpose of the orientation meeting is to inform the newly appointed members about the rules of operation for the advisory committee. The purpose of the planning meeting is to discuss the draft report, Civil Rights Issues in South Dakota: The Administration of Justice in Rapid City.
Members of the public may listen to the discussion by dialing the following Conference Call Toll-Free Number: 1-888-539-3612; Conference ID: 3235417. Please be advised that before being placed into the conference call, the operator will ask callers to provide their names, their organizational affiliations (if any), and an email address (if available) prior to placing callers into the conference room. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free phone number.
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service (FRS) at 1-800-977-8339 and provide the FRS operator with the Conference Call Toll-Free Number: 1-888-539-3612, Conference ID: 3235417. Members of the public are invited to make statements at the end of the conference call. In addition, members of the public may submit written comments; the comments must be received in the regional office by Thursday, November 5, 2015. Written comments may be mailed to the Rocky Mountain Regional Office, U.S. Commission on Civil Rights, 1961 Stout Street, Suite 13-201, Denver, CO 80294, faxed to (303) 866-1050, or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available at
• Welcome and Introductions: Richard Braunstein, Chair, South Dakota Advisory Committee: Malee V. Craft, Regional Director, Rocky Mountain Regional Office (RMRO)
• Orientation and Administrative Matters: Malee V. Craft, Designated Federal Official (DFO) and Regional Director, RMRO
• Discussion of Draft Report: Civil Rights Issues in South Dakota: The Administration of Justice in Rapid City
• Next Steps
• Other Civil Rights Issues
Monday, October 5, 2015, at 10:00 a.m. (CDT)
To be held via teleconference: Conference Call Toll-Free Number: 1-888-539-3612, Conference ID: 3235417. TDD: Dial Federal Relay Service 1-800-977-8339 and give the operator the above conference call number and conference ID.
Malee V. Craft, DFO,
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On August 27, 2015, the United States Court of International Trade (“CIT” or “Court”) sustained the Department of Commerce's (the “Department”) final results of redetermination,
Consistent with the decision of the United States Court of Appeals for the Federal Circuit (“CAFC”) in
Brendan Quinn, AD/CVD Operations, Office III, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-5848.
On August 31, 2012, the Department received a scope ruling request from ASC to determine whether its aluminum boat and dock ladders and strip door mounting brackets are subject to the
The scope also excludes finished goods containing aluminum extrusions that are entered
In its Remand Order, the Court remanded the underlying scope ruling and directed the Department to “clarify or reconsider, as appropriate, its inclusion of the ASE, ASH, and DJX3-W dock ladder kit models within the scope of the
In the Remand Redetermination, the Department reconsidered the record evidence provided by ASC and found that certain components in the three dock ladder kits at issue (
In its decision in
Because there is now a final court decision with respect to the dock ladder kits at issue, the Department amends its Final Scope Ruling. The Department finds that the scope of the
This notice is issued and published in accordance with section 516A(c)(1) of the Act.
Notice of Application to Amend the Export Trade Certificate of Review Issued to California Almond Export Association, LLC (“CAEA”), Application No. (99-10A005).
The Office of Trade and Economic Analysis (“OTEA”) of the International Trade Administration, Department of Commerce, has received an application to amend an Export Trade Certificate of Review (“Certificate”). This notice summarizes the proposed amendment and requests comments relevant to whether the amended Certificate should be issued.
Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) (“the Act”) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325 (2015). Section 302(b)(1) of the Export Trade Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the
Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked as privileged or confidential business information will be deemed to be nonconfidential.
An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Export Trading Company Affairs, International Trade Administration, U.S. Department of Commerce, Room 21028, Washington, DC 20230.
Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On March 9, 2015, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty (AD) order on large residential washers (LRWs) from the Republic of Korea (Korea).
David Goldberger or Reza Karamloo, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4136 or (202) 482-4470, respectively.
For a complete description of the events that following the publication of the
The Department conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The products covered by the order are all large residential washers and certain subassemblies thereof from Korea. The products are currently classifiable under subheadings 8450.20.0040 and 8450.20.0080 of the Harmonized Tariff System of the United States (HTSUS). Products subject to this order may also enter under HTSUS subheadings 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this scope is dispositive.
All issues raised in the case and rebuttal briefs are addressed in the Issues and Decision Memorandum. A list of the issues which parties raised and to which we respond in the Issues and Decision Memorandum is attached to this notice as Appendix I.
Based on our analysis of the comments received, we made changes to the weighted-average dumping margin calculation for LGE. No party submitted comments on the Department's preliminary decision to assign Daewoo and Samsung a margin based on adverse facts available (AFA) for their failure to respond to our request for information.
We intend to disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).
Pursuant to section 751(a)(2)(C) of the Act, and 19 CFR 351.212(b)(1), the Department determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of this administrative review.
For those sales where LGE reported the entered value of its U.S. sales, we calculated importer-specific
For Daewoo's and Samsung's U.S. sales, we based the assessment rate assigned to the corresponding entries on the weighted-average dumping margins listed above.
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for Daewoo, LGE, and Samsung will be equal to the weighted-average dumping margins established in the final results of this administrative review, as shown above; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently-completed segment; (3) if the exporter is not a firm covered in this review, a prior review, or the original LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently-completed segment of this proceeding for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 11.80 percent, the all-others rate determined in the LTFV investigation.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is published in accordance with section 751(a)(1) and 777(i)(1) of the Act.
This is a decision pursuant to Section 6(c) of the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301). Related records can be viewed between 8:30 a.m. and 5:00 p.m. in Room 3720, U.S. Department of Commerce, 14th and Constitution Ave. NW., Washington, DC.
Docket Number: 14-035. Applicant: Texas A&M University, 200 Seawolf Parkway, Galveston, TX 77553. Instrument: Wartsila, W8L20 Generator set and special purpose tools. Manufacturer: Wartsila Ship Power, Finland. Intended use of instrument:
Comments: No comments have been received with respect to this application.
Decision: Application denied.
Reasons: To qualify for duty-free entry under item 851.60, an applicant must show that no instrument or apparatus of equivalent scientific value for the purposes for which the instrument or apparatus is intended to be used is being manufactured in the United States.
The Applicant states that no domestically produced engine was offered as a donation, but this is not a pertinent specification, as defined in 15 CFR 301.2(s). Section 301.2(s) provides that pertinent specifications are those “necessary for the accomplishment of the specific scientific research or science-related education purposes described by the applicant,” while “specifications of features (even if guaranteed) which afford greater convenience, satisfy personal preferences, accommodate institutional commitments or limitations, or assure lower costs of acquisition, installation, operation, servicing or maintenance are not pertinent.”
Accordingly, the applicant has failed to establish that domestic instruments of equivalent scientific value to the foreign instruments for the intended purposes are not available. Therefore, the application is denied.
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 NOAA Restoration Center (NOAA RC) provides technical and financial assistance to identify, develop, implement, and evaluate community-driven habitat restoration projects. Awards are made as grants or cooperative agreements under the authority of the Magnuson-Stevens Fishery Conservation and Management Act of 2006, 16 U.S.C. 1891a and the Fish and Wildlife Coordination Act, 16 U.S.C. 661, as amended by the Reorganization Plan No. 4 of 1970.
The NOAA RC requires specific information on habitat restoration projects that we fund, as part of routine progress reporting. Recipients of NOAA RC funds submit information such as project location, restoration techniques used, species benefited, acres restored, stream miles opened to access for diadromous fish, volunteer participation, and other parameters.
The required information enables NOAA to track, evaluate and report on coastal and marine habitat restoration and demonstrate accountability for federal funds. This information is used to populate a database of NOAA RC-funded habitat restoration. The database, with its robust querying capabilities, is instrumental to provide accurate and timely responses to NOAA, Department of Commerce, Congressional and constituent inquiries. It also facilitates reporting by NOAA on the Government Performance and Results Act “acres restored” performance measure. Grant recipients are required by the NOAA Grants Management Division to submit periodic performance reports and a final report for each award; this collection stipulates the information to be provided in these reports.
Since the last extension of this collection approved by OMB, the database used to track and report on restoration projects has been updated and redesigned. The NOAA RC is revising and streamlining the progress report form to ensure it aligns with the updated database and collects only the information we need to effectively track, evaluate, and report on restoration projects completed with federal funds. The NOAA RC has also divided the information collected into two forms for simplicity. The Performance Report Form focuses on tracking project implementation, milestones, performance measures, monitoring, and expenditures. The Administrative Form only applies to recipients with an award that will implement multiple projects. It collects information on the administration of the award, the number of projects supported by the award, and award expenditures.
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; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to the U.S. Navy (Navy) to incidentally harass marine mammals during construction activities associated with a wharf recapitalization project at Naval Station Mayport, FL.
This authorization is effective from September 8, 2015, through September 7, 2016.
Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.
An electronic copy of the Navy's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
The incidental taking of small numbers of marine mammals may be allowed only if NMFS (through authority delegated by the Secretary) finds that the total taking by the specified activity during the specified time period will (i) have a negligible impact on the species or stock(s) and (ii) not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). Further, the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking must be set forth, either in specific regulations or in an authorization.
The allowance of such incidental taking under section 101(a)(5)(A), by harassment, serious injury, death, or a combination thereof, requires that regulations be established. Subsequently, a Letter of Authorization may be issued pursuant to the prescriptions established in such regulations, providing that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations. Under section 101(a)(5)(D), NMFS may authorize such incidental taking by harassment only, for periods of not more than one year, pursuant to requirements and conditions contained within an IHA. The establishment of prescriptions through either specific regulations or an authorization requires notice and opportunity for public comment.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
On January 28, 2015, we received a request from the Navy for authorization to take marine mammals incidental to pile driving in association with the Wharf C-2 recapitalization project at Naval Station Mayport, Florida (NSM). That request was modified on April 17 and the Navy submitted a revised version of the request on July 24, 2015, which we deemed adequate and complete. In-water work associated with the project is expected to be completed within the one-year timeframe of the IHA.
The use of both vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in behavioral harassment of marine mammals. Two species of marine mammal have the potential to be affected by the specified activities: Bottlenose dolphin (
This is expected to be the second and final year of in-water work associated with the Wharf C-2 project. This is the second such IHA, following the IHA issued effective from September 1, 2014, through August 31, 2015 (78 FR 71566; November 29, 2013). Please note that the previous IHA was initially issued with effective dates from December 1, 2013, through November 30, 2014. However, no work was conducted during this period and the effective dates were changed to those stated above (79 FR 27863; May 15, 2014).
Wharf C-2 is a single level, general purpose berthing wharf constructed in 1960. The wharf is one of NSM's two primary deep-draft berths and is one of the primary ordnance handling wharfs. The wharf is a diaphragm steel sheet pile cell structure with a concrete apron, partial concrete encasement of the piling and an asphalt paved deck. The wharf is currently in poor condition due to advanced deterioration of the steel
The total project was expected to require a maximum of fifty days of in-water vibratory pile driving work over a twelve-month period, with an additional twenty days of impact pile driving included in the specified activity as a contingency for a total of seventy days in-water pile driving. Based on work completed to date and in consideration of the number of piles yet to be driven and pile production rates to date, the Navy estimates that remaining work may require 47 days in total.
NSM is located in northeastern Florida, at the mouth of the St. Johns River and adjacent to the Atlantic Ocean (see Figures 2-1 and 2-2 of the Navy's application). The St. Johns River is the longest river in Florida, with the final 35 mi flowing through the city of Jacksonville. This portion of the river is significant for commercial shipping and military use. At the mouth of the river, near the action area, the Atlantic Ocean is the dominant influence and typical salinities are above 30 ppm. Outside the river mouth, in nearshore waters, moderate oceanic currents tend to flow southward parallel to the coast. Sea surface temperatures range from around 16 °C in winter to 28 °C in summer.
The specific action area consists of the NSM turning basin, an area of approximately 2,000 by 3,000 ft containing ship berthing facilities at sixteen locations along wharves around the basin perimeter. The basin was constructed during the early 1940s by dredging the eastern part of Ribault Bay (at the mouth of the St. Johns River), with dredge material from the basin used to fill parts of the bay and other low-lying areas in order to elevate the land surface. The basin is currently maintained through regular dredging at a depth of 50 ft, with depths at the berths ranging from 30-50 ft. The turning basin, connected to the St. Johns River by a 500-ft-wide entrance channel, will largely contain sound produced by project activities, with the exception of sound propagating east into nearshore Atlantic waters through the entrance channel (see Figure 2-2 of the Navy's application). Wharf C-2 is located in the northeastern corner of the Mayport turning basin.
In order to rehabilitate Wharf C-2, the Navy plans to install a new steel king pile/sheet pile (SSP) bulkhead, consisting of large vertical king piles with paired steel sheet piles driven between and connected to the ends of the king piles. Over the course of the entire project, the Navy will install approximately 120 single sheet piles and 119 king piles (all steel) to support the bulkhead wall, as well as fifty polymeric (plastic) fender piles. The SSP wall is anchored at the top and filled behind the wall before a concrete cap is formed along the top and outside face to tie the entire structure together and provide a berthing surface for vessels. The new bulkhead will be designed for a fifty-year service life.
The most recent project update indicated that installation of approximately seventy percent of steel piles (84 of 120 sheet piles and 81 of 119 king piles) has been completed. We include here as a contingency the installation of 25 percent of steel piles. All fifty plastic fender piles will be installed during the period of validity of the IHA.
All piles will be driven by vibratory hammer, although impact pile driving may be used as a contingency in cases when vibratory driving is not sufficient to reach the necessary depth. In the unlikely event that impact driving is required, either impact or vibratory driving could occur on a given day, but concurrent use of vibratory and impact drivers will not occur. Including the installation of 25 percent of steel piles as a contingency, the Navy estimates that 47 in-water work days may be required to complete pile driving activity, including ten days for vibratory driving of plastic piles, seventeen days for contingency vibratory driving of steel piles, and twenty days for contingency impact driving, if necessary.
We published a notice of receipt of the Navy's application and proposed IHA in the
Both NMFS and the Navy place great value on site-specific acoustic measurements to facilitate more accurate analyses of future projects. However, the Navy's allocated funds for acoustic measurements at Wharf C2 were necessarily spent in fulfillment of obligations under the Year 1 IHA. As described, all pile driving (including polymeric piles) was intended to be accomplished during one year, but delays have resulted in the extension of the project timeline. It is the Navy's intention to gather acoustic measurements during polymeric pile driving for this project and acoustic measurements of polymeric pile driving in Year 2 will be accomplished as circumstances permit. However, due to the aforementioned funding limitations, we cannot include this as an IHA requirement.
There are four marine mammal species which may inhabit or transit through the waters nearby NSM at the mouth of the St. Johns River and in nearby nearshore Atlantic waters. These include the bottlenose dolphin, Atlantic spotted dolphin, North Atlantic right whale (
Our
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
Measurements from similar pile driving events were coupled with practical spreading loss to estimate zones of influence (ZOI; see Estimated Take by Incidental Harassment); these
The following measures will apply to the Navy's mitigation through shutdown and disturbance zones:
In order to document observed incidents of harassment, monitors record all marine mammal observations, regardless of location. The observer's location, as well as the location of the pile being driven, is known from a GPS. The location of the animal is estimated as a distance from the observer, which is then compared to the location from the pile. It may then be estimated whether the animal was exposed to sound levels constituting incidental harassment on the basis of predicted distances to relevant thresholds in post-processing of observational and acoustic data, and a precise accounting of observed incidences of harassment created. This information may then be used to extrapolate observed takes to reach an approximate understanding of actual total takes.
The following additional measures apply to visual monitoring:
(1) Monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Qualified observers are typically trained biologists, with the following minimum qualifications:
• Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
• Advanced education in biological science, wildlife management, mammalogy, or related fields (bachelor's degree or higher is required);
• Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);
• Experience or training in the field identification of marine mammals, including the identification of behaviors;
• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and
• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
For this project, we waive the requirement for advanced education, as the observers will be personnel hired by the engineering contractor that may not have backgrounds in biological science or related fields. These observers will be required to watch the Navy's Marine Species Awareness Training video and shall receive training sufficient to achieve all other qualifications listed above (where relevant).
(2) Prior to the start of pile driving activity, the shutdown zone will be
(3) If a marine mammal approaches or enters the shutdown zone during the course of pile driving operations, activity will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal. Monitoring will be conducted throughout the time required to drive a pile.
The use of a soft start procedure is believed to provide additional protection to marine mammals by warning or providing a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers and, for impact hammers, the actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in “bouncing” of the hammer as it strikes the pile, resulting in multiple “strikes.” For impact driving, we require an initial set of three strikes from the impact hammer at reduced energy, followed by a thirty-second waiting period, then two subsequent three strike sets. Soft start will be required at the beginning of each day's impact pile driving work and at any time following a cessation of impact pile driving of thirty minutes or longer.
We have carefully evaluated the Navy's proposed mitigation measures and considered their effectiveness in past implementation to determine whether they are likely to effect the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.
Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
(1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
(2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only).
(5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of habitat during a biologically important time.
(6) For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of the Navy's proposed measures, as well as any other potential measures that may be relevant to the specified activity, we have determined that the planned mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.
Any monitoring requirement we prescribe should improve our understanding of one or more of the following:
• Occurrence of marine mammal species in action area (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological).
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) Population, species, or stock.
• Effects on marine mammal habitat and resultant impacts to marine mammals.
• Mitigation and monitoring effectiveness.
The Navy's planned monitoring and reporting is also described in their Marine Mammal Monitoring Plan, on the Internet at
The Navy will collect sighting data and behavioral responses to construction for marine mammal species observed in the region of activity during the period of activity. All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. The Navy will monitor the shutdown zone and disturbance zone before, during, and
• MMOs will be located at the best vantage point(s) in order to properly see the entire shutdown zone and as much of the disturbance zone as possible.
• During all observation periods, observers will use binoculars and the naked eye to search continuously for marine mammals.
• If the shutdown zones are obscured by fog or poor lighting conditions, pile driving at that location will not be initiated until that zone is visible. Should such conditions arise while impact driving is underway, the activity will be halted.
• The shutdown and disturbance zones around the pile will be monitored for the presence of marine mammals before, during, and after any pile driving or removal activity.
Individuals implementing the monitoring protocol will assess its effectiveness using an adaptive approach. Monitoring biologists will use their best professional judgment throughout implementation and seek improvements to these methods when deemed appropriate. Any modifications to protocol will be coordinated between NMFS and the Navy.
We require that observers use approved data forms. Among other pieces of information, the Navy will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, the Navy will attempt to distinguish between the number of individual animals taken and the number of incidences of take. We require that, at a minimum, the following information be collected on the sighting forms:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Weather parameters (
• Water conditions (
• Species, numbers, and, if possible, sex and age class of marine mammals;
• Description of any observable marine mammal behavior patterns, including bearing and direction of travel, and if possible, the correlation to SPLs;
• Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
• Description of implementation of mitigation measures (
• Locations of all marine mammal observations; and
• Other human activity in the area.
A draft report will be submitted to NMFS within ninety days of the completion of marine mammal monitoring, or sixty days prior to the requested date of issuance of any future IHA for projects at the same location, whichever comes first. The report will include marine mammal observations pre-activity, during-activity, and post-activity during pile driving days, and will also provide descriptions of any behavioral responses to construction activities by marine mammals and a complete description of all mitigation shutdowns and the results of those actions and an extrapolated total take estimate based on the number of marine mammals observed during the course of construction. A final report must be submitted within thirty days following resolution of comments on the draft report.
The Navy complied with the mitigation and monitoring required under the previous authorization for the Wharf C-2 project. Marine mammal monitoring occurred before, during, and after each pile driving event. During the course of these activities, the Navy did not exceed the take levels authorized under the IHA. The Navy has summarized monitoring results to date in their application, and the required monitoring report is available to the public on the Internet at
Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . .any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
All anticipated takes would be by Level B harassment resulting from vibratory and impact pile driving and involving temporary changes in behavior. The planned mitigation and monitoring measures are expected to minimize the possibility of injurious or lethal takes such that take by Level A harassment, serious injury, or mortality is considered discountable. However, it is unlikely that injurious or lethal takes would occur even in the absence of the planned mitigation and monitoring measures.
If a marine mammal responds to a stimulus by changing its behavior (
The turning basin is not important habitat for marine mammals, as it is a man-made, semi-enclosed basin with frequent industrial activity and regular maintenance dredging. The small area of ensonification extending out of the turning basin into nearshore waters is also not believed to be of any particular importance, nor is it considered an area frequented by marine mammals.
In order to estimate the potential incidents of take that may occur incidental to the specified activity, we must first estimate the extent of the sound field that may be produced by the activity and then consider in combination with information about marine mammal density or abundance in the project area. We described applicable sound thresholds for determining effects to marine mammals before describing the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating potential incidents of take in detail in our
The Mayport turning basin does not represent open water, or free field, conditions. Therefore, sounds would attenuate as per the confines of the basin, and may only reach the full estimated distances to the harassment thresholds via the narrow, east-facing entrance channel. Distances shown in Table 2 are estimated for free-field conditions, but areas are calculated per the actual conditions of the action area. See Figures 6-1 through 6-3 of the Navy's application for a depiction of areas in which each underwater sound threshold is predicted to occur at the project area due to pile driving.
For all species, the best scientific information available was considered for use in the marine mammal take assessment calculations. Density value for the Atlantic spotted dolphin is from recent density estimates produced by Roberts
The following assumptions are made when estimating potential incidents of take:
• All marine mammal individuals potentially available are assumed to be present within the relevant area, and thus incidentally taken;
• An individual can only be taken once during a 24-h period; and,
• There will be 27 total days of vibratory driving (seventeen days for steel piles and ten days for plastic piles) and twenty days of impact pile driving.
• Exposures to sound levels at or above the relevant thresholds equate to take, as defined by the MMPA.
The estimation of marine mammal takes typically uses the following calculation:
Exposure estimate = (n * ZOI) * days of total activity
n * ZOI produces an estimate of the abundance of animals that could be present in the area for exposure, and is rounded to the nearest whole number before multiplying by days of total activity.
The ZOI impact area is estimated using the relevant distances in Table 2, taking into consideration the possible affected area with attenuation due to the constraints of the basin. Because the basin restricts sound from propagating outward, with the exception of the east-facing entrance channel, the radial distances to thresholds are not generally reached.
There are a number of reasons why estimates of potential incidents of take may be conservative, assuming that available density or abundance estimates and estimated ZOI areas are accurate. We assume, in the absence of information supporting a more refined conclusion, that the output of the calculation represents the number of individuals that may be taken by the specified activity. In fact, in the context of stationary activities such as pile driving and in areas where resident animals may be present, this number more realistically represents the number of incidents of take that may accrue to a smaller number of individuals. While pile driving can occur any day throughout the in-water work window, and the analysis is conducted on a per day basis, only a fraction of that time (typically a matter of hours on any given day) is actually spent pile driving. The potential effectiveness of mitigation measures in reducing the number of takes is typically not quantified in the take estimation process. For these reasons, these take estimates may be conservative.
The quantitative exercise described above indicates that no incidents of Level A harassment would be expected, independent of the implementation of required mitigation measures. The
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Pile driving activities associated with the wharf construction project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from underwater sounds generated from pile driving. Potential takes could occur if individuals of these species are present in the ensonified zone when pile driving is happening.
No injury, serious injury, or mortality is anticipated given the nature of the activities and measures designed to minimize the possibility of injury to marine mammals. The potential for these outcomes is minimized through the construction method and the implementation of the planned mitigation measures. Specifically, vibratory hammers will be the primary method of installation (impact driving is included only as a contingency and is not expected to be required), and this activity does not have the potential to cause injury to marine mammals due to the relatively low source levels produced (less than 180 dB) and the lack of potentially injurious source characteristics. Impact pile driving produces short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks. If impact driving is necessary, implementation of soft start and shutdown zones significantly reduces any possibility of injury. Given sufficient “notice” through use of soft start (for impact driving), marine mammals are expected to move away from a sound source that is annoying prior to its becoming potentially injurious. Environmental conditions in the confined and protected Mayport turning basin mean that marine mammal detection ability by trained observers is high, enabling a high rate of success in implementation of shutdowns to avoid injury.
Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of injury, serious injury, or mortality may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior; (3) the absence of any significant habitat within the project area, including known areas or features of special significance for foraging or reproduction; (4) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable impact. In addition, these stocks are not listed under the ESA, although coastal bottlenose dolphins are designated as depleted under the MMPA. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals. The specified activity is not expected to
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the planned monitoring and mitigation measures, we find that the total marine mammal take from the Navy's wharf construction activities will have a negligible impact on the affected marine mammal species or stocks.
As described previously, of the 304 incidents of behavioral harassment predicted to occur for bottlenose dolphin, we have no information allowing us to parse those predicted incidents amongst the three stocks of bottlenose dolphin that may occur in the project area. Therefore, we assessed the total number of predicted incidents of take against the best abundance estimate for each stock, as though the total would occur for the stock in question. For two of the bottlenose dolphin stocks, the total predicted number of incidents of take authorized would be considered small—approximately three percent for the southern migratory stock and less than 25 percent for the northern Florida coastal stock—even if each estimated taking occurred to a new individual. This is an extremely unlikely scenario as, for bottlenose dolphins in estuarine and nearshore waters, there is likely to be some overlap in individuals present day-to-day.
The total number of authorized takes for bottlenose dolphins, if assumed to accrue solely to new individuals of the JES stock, is higher relative to the total stock abundance, which is currently considered unknown. However, these numbers represent the estimated incidents of take, not the number of individuals taken. That is, it is highly likely that a relatively small subset of JES bottlenose dolphins would be harassed by project activities. JES bottlenose dolphins range from Cumberland Sound at the Georgia-Florida border south to approximately Palm Coast, Florida, an area spanning over 120 linear km of coastline and including habitat consisting of complex inshore and estuarine waterways. JES dolphins, divided by Caldwell (2001) into Northern and Southern groups, show strong site fidelity and, although members of both groups have been observed outside their preferred areas, it is likely that the majority of JES dolphins would not occur within waters ensonified by project activities. Further, although the largest area of ensonification is predicted to extend up to 7.5 km offshore from NSM, estuarine dolphins are generally considered as restricted to inshore waters and only 1-2 km offshore. In summary, JES dolphins are (1) known to form two groups and exhibit strong site fidelity (
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, we have determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
No marine mammal species listed under the ESA are expected to be affected by these activities. Therefore, we have determined that section 7 consultation under the ESA are not required.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
We have reviewed the Navy's application for a renewed IHA for ongoing construction activities for 2015-16 and results of required marine mammal monitoring. Based on that review, we have determined that the proposed action is very similar to that considered in the previous IHA. In addition, no significant new circumstances or information relevant to environmental concerns have been identified. Thus, we have determined that the preparation of a new or supplemental NEPA document is not necessary, and, after review of public comments, reaffirm our 2013 FONSI. The 2013 NEPA documents are available for review at
As a result of these determinations, we have issued an IHA to the Navy for conducting the described construction activities in Mayport, FL, for one year from the date of issuance, provided the previously described mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Pacific Fishery Management Council's (Pacific Council) Groundfish Management Team (GMT) will hold a work session that is open to the public.
The GMT meeting will be held Monday, October 5, 2015, at 1 p.m. until business for the day is completed. The GMT meeting will reconvene Tuesday, October 6 through Friday, October 9, 2015, from 8:30 a.m. until business for each day has been completed.
The meeting will be held at the Pacific Council Office, Large Conference Room, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384, telephone: (503) 820-2280.
Ms. Kelly Ames, Pacific Council; telephone: (503) 820-2426.
The primary purpose of the GMT meeting will be to develop recommendations for consideration by the Pacific Council at its November 13-19, 2015 meeting in Garden Grove, CA. Specific agenda topics include the development of the 2017-18 harvest specifications and management measures including stock assessments and rebuilding analyses. The GMT may also address other groundfish agenda items scheduled for the November Council meeting. No management actions will be decided by the GMT. Public comment will be accommodated if time allows, at the discretion of the GMT Chair.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document 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.
The meetings are 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.
United States Patent and Trademark Office, Commerce.
Notice and request for nominations for the National Medal of Technology and Innovation Nomination Evaluation Committee.
The Department of Commerce (United States Patent and Trademark Office) is requesting nominations of individuals to serve on the National Medal of Technology and Innovation Nomination Evaluation Committee. The United States Patent and Trademark Office will consider all timely nominations received in response to this notice as well as from other sources.
To ensure full consideration, nominations must be postmarked, faxed or electronically transmitted no later than October 16, 2015.
Nominations must be submitted to, Program Manager, National Medal of Technology and Innovation Program, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313-1450. Nominations also may be submitted via fax: (571) 273-9821 or by electronic mail to:
John Palafoutas, Program Manager, National Medal of Technology and Innovation Program, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313-1450, telephone (571) 272-9821, or electronic mail:
The National Medal of Technology and Innovation Nomination Evaluation Committee was established in accordance with the Federal Advisory Committee Act (FACA) (Title 5, United States Code, Appendix 2). The following provides information about the committee and membership:
• Committee members are appointed by and serve at the discretion of the Secretary of Commerce. The committee provides advice to the Secretary on the implementation of Section 12 of the Stevenson-Wydler Technology Innovation Act of 1980, Public Law 96-480 (15 U.S.C. 3711), as amended by Public Law 110-69, Title I, § 1003, August 9, 2007.
• The committee functions solely as an advisory body under the FACA. Members are appointed to the approximately 12-member committee for a term of three years. At the conclusion of the three-year term, a member may be eligible for appointment to one additional term, pending advisory committee needs. Selection of membership is made in accordance with applicable Department of Commerce guidelines.
• Members are responsible for reviewing nominations and making recommendations for the Nation's highest honor for technological innovation, awarded periodically by the President of the United States. Members of the committee must have an understanding of, and experience in, developing and utilizing technological innovation and/or be familiar with the education, training, employment and management of technological manpower.
• The Department is seeking additional nominations of candidates from small, medium-sized, and large businesses and academia, with expertise in sub-sectors of the technology enterprise, including: Medical Innovations/Bioengineering and Biomedical Technology; Technology Management/Computing/IT/Manufacturing Innovation; Technological Manpower/Workforce Training/Education. Under the FACA, membership on a committee must be balanced in background and expertise. In order to maximize the balance of background and expertise on the current committee, nominations of individuals with backgrounds in the following areas are particularly sought: Computer science, information technology, and medicine.
• Committee members generally are Chief Executive Officers or former Chief Executive Officers; former winners of the National Medal of Technology and Innovation; presidents or distinguished faculty of universities; or senior executives of non-profit organizations. As such, they not only offer the stature of their positions but also possess intimate knowledge of the forces determining future directions for their organizations and industries. The committee as a whole is balanced in representing geographical, professional, and diverse interests.
• Nominees must be United States citizens, must be able to fully participate in meetings pertaining to the review and selection of finalists for the National Medal of Technology and Innovation, and must uphold the
• The United States Patent and Trademark Office is committed to equal opportunity in the workplace and seeks a broad-based and diverse committee membership.
• Committee members are Special Government Employees within the meaning of Section 202 of Title 18, United States Code. Each member will be required to file a confidential financial disclosure form within thirty (30) days of appointment. 5 CFR 2634.201(b).
Bureau of Consumer Financial Protection.
Notice of public meeting.
This notice sets forth the announcement of a public meeting of the Community Bank Advisory Council (CBAC or Council) of the Consumer Financial Protection Bureau (Bureau). The notice also describes the functions of the Council. Notice of the meeting is permitted by Section 9 of the CBAC Charter and is intended to notify the public of this meeting. Specifically, Section 9(d) of the CBAC Charter states:
(1) Each meeting of the Council shall be open to public observation, to the extent that a facility is available to accommodate the public, unless the Bureau, in accordance with paragraph (4) of this section, determines that the meeting shall be closed. The Bureau also will make reasonable efforts to make the meetings available to the public through live recording. (2) Notice of the time, place and purpose of each meeting, as well as a summary of the proposed agenda, shall be published in the
The meeting date is Wednesday, September 30, 3 p.m. to 4:30 p.m. Eastern Daylight Time.
The meeting location is Consumer Financial Protection Bureau, 1275 First Street NE., Washington, DC 20002.
Crystal Dully, Consumer Advisory Board & Councils, External Affairs, 1275 First Street NE., Washington, DC 20002; telephone: 202-435-9588;
Section 1014(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (
(a) The purpose of the Council is outlined in Section 1014(a) of the Dodd-Frank Act (
The Community Bank Advisory Council will discuss consumer challenges in payments.
Persons who need a reasonable accommodation to participate should contact
Individuals who wish to attend the Community Bank Advisory Council meeting must RSVP to
The Council's agenda will be made available to the public on Monday, September 14, 2015, via
A recording and transcript of this meeting will be available after the meeting on the CFPB's Web site
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The following notice of meeting is published pursuant to section 3(a) of the government in the Sunshine Act (Pub. L. 94-409), 5 U.S.C. 552b:
Federal Energy Regulatory Commission.
September 17, 2015 10:00 a.m.
Room 2C, 888 First Street NE., Washington, DC 20426.
Open.
Agenda.
Kimberly D. Bose, Secretary, Telephone (202) 502-8400.
For a recorded message listing items struck from or added to the meeting, call (202) 502-8627.
This is a list of matters to be considered by the Commission. It does not include a listing of all documents relevant to the items on the agenda. All public documents, however, may be viewed on line at the Commission's Web site at
A free webcast of this event is available through
Immediately following the conclusion of the Commission Meeting, a press briefing will be held in the Commission Meeting Room. Members of the public may view this briefing in the designated overflow room. This statement is intended to notify the public that the press briefings that follow Commission meetings may now be viewed remotely at Commission headquarters, but will not be telecast through the Capitol Connection service.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR § 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on September 4, 2015, pursuant to sections 206 and 306 of the Federal Power Act (FPA), 16 U.S.C. 824(e) and 825(e) and Rules 206 and 212 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedures, 18 CFR 385.206, and 18 CFR 385.212 (2015), Internal MISO Generation (Complainant)
Complainant certifies that a copy of the complaint and motion has been served on the contacts for the MISO as listed on the Commission's list of Corporate Officials on its Web site.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Environmental Protection Agency (EPA).
Notice of extension of public comment period and rescheduling of public meetings.
On July 30, 2015, the Environmental Protection Agency (EPA) Region 6 published a request for comments on a draft National Pollutant Discharge Elimination System (NPDES) general permit for storm water discharges from small municipal separate storm sewer systems (MS4s) located within the State of New Mexico except MS4s located in Indian lands, Los Alamos County, the Middle Rio Grande Sub-Watersheds described in Appendix A of the NPDES permit No. NMR04A000, or within the area of another MS4 permit. This proposed permit offers discharge authorization to regulated small MS4s within the boundaries of the Bureau of the Census-designated 2000 and 2010 Farmington, Santa Fe, Los Lunas, Las Cruces and El Paso Urbanized Areas and any other small MS4s in the State of New Mexico designated by the Director as needing a MS4 permit, other than those primarily located in Los Alamos. This permit is intended to replace the expired general permit NMR040000. In the July 30, 2015,
Written comments must now be submitted in writing to EPA on or before December 18, 2015.
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Ms. Evelyn Rosborough, U.S. Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733. Telephone: (214) 655-7515. Email address:
Environmental Protection Agency (EPA).
Notice.
EPA is required under the Toxic Substances Control Act (TSCA) to publish in the
Comments identified by the specific PMN number or TME number, must be received on or before October 16, 2015.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2015-0502, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the PMNs addressed in this action.
1.
2.
This document provides receipt and status reports, which cover the period from July 1, 2015 to July 30, 2015, and consists of the PMNs and TMEs both pending and/or expired, and the NOCs to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
Under TSCA, 15 U.S.C. 2601
Anyone who plans to manufacture or import a new chemical substance for a non-exempt commercial purpose is required by TSCA section 5 to provide EPA with a PMN, before initiating the activity. Section 5(h)(1) of TSCA authorizes EPA to allow persons, upon application, to manufacture (includes import) or process a new chemical substance, or a chemical substance subject to a significant new use rule (SNUR) issued under TSCA section 5(a), for “test marketing” purposes, which is referred to as a test marketing exemption, or TME. For more information about the requirements applicable to a new chemical go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
For the PMNs received by EPA during this period, Table 1 provides the following information (to the extent that such information is not claimed as CBI): The EPA case number assigned to the PMN; the date the PMN was received by EPA; the projected end date for EPA's review of the PMN; the submitting
For the NOCs received by EPA during this period, Table 2 provides the following information (to the extent that such information is not claimed as CBI): The EPA case number assigned to the NOC; the date the NOC was received by EPA; the commencement date provided by the submitter in the NOC; and the chemical identity. As used in the table, (S) is used to indicate that the information provided in the table is the specific information provided by the submitter, and (G) is used to indicate that the information provided in the table is generic information because the specific information provided by the submitter was claimed as CBI.
15 U.S.C. 2601
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), Standardized Permit for RCRA Hazardous Waste Management Facilities (EPA ICR No. 1935.05, OMB Control No. 2050-0182) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before November 16, 2015.
Submit your comments, referencing by Docket ID No. EPA-HQ-RCRA-2015-0605, 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.
Jeff Gaines, Office of Resource Conservation and Recovery, (5303P), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 703-308-8655; fax number: 703-308-8617; email address:
Supporting documents which explain in detail the information the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
Environmental Protection Agency (EPA).
Notice; request for comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement with nine settling parties for recovery of response costs concerning the Mobile Smelting Removal Site in Mojave, California. The settlement is entered into pursuant to Section 122(h)(1) of CERCLA, 42 U.S.C. 9622(h)(1), and it requires the settling parties to reimburse EPA $72,830.77 in response costs that EPA incurred at the site. The settlement includes a covenant not to sue the settling parties pursuant to Sections 106 or 107(a) of CERCLA, 42 U.S.C. 9606 or 9607(a). For thirty (30) days following the date of publication of this Notice in the
Pursuant to Section 122(i) of CERCLA, EPA will receive written comments relating to this proposed settlement until October 16, 2015.
The proposed settlement is available for public inspection at EPA Region IX, 75 Hawthorne Street, San Francisco, California. A copy of the proposed settlement may be obtained from J. Andrew Helmlinger, EPA Region IX, 75 Hawthorne Street, ORC-3, San Francisco, CA 94105, telephone number 415-972-3904. Comments should reference the Mobile Smelting Removal Site, Mojave, California and should be addressed to Mr. Helmlinger at the above address.
J. Andrew Helmlinger, Assistant Regional Counsel (ORC-3), Office of Regional Counsel, U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105; phone: (415) 972-3904; fax: (417) 947-3570; email:
Federal Communications Commission.
Notice.
In this document, the Commission released a public notice announcing the meeting and agenda of the North American Numbering Council (NANC). The intended effect of this action is to make the public aware of the NANC's next meeting and agenda.
Wednesday, September 30, 2015, 10:00 a.m.
Requests to make an oral statement or provide written comments to the NANC should be sent to Carmell Weathers, Competition Policy Division, Wireline Competition Bureau, Federal Communications Commission, Portals II, 445 12th Street SW., Room 5-C162, Washington, DC 20554.
Carmell Weathers at (202) 418-2325 or
This is a summary of the Commission's document in CC Docket No. 92-237; DA 15-995, released September 2, 2015. The complete text in this document is available for public inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It is available on the Commission's Web site at
1. Announcements and Recent News
2. Approval of Transcript—June 4, 2015
3. Report of the North American Numbering Plan Administrator (NANPA)
4. Report of the National Thousands Block Pooling Administrator (PA)
5. Report of the Numbering Oversight Working Group (NOWG)
6. Report of the North American Numbering Plan Billing and Collection (NANP B&C) Agent
7. Report of the Billing and Collection Working Group (B&C WG)
8. Report of the North American Portability Management LLC (NAPM LLC)
9. Report of the Local Number Portability Administration Working Group (LNPA WG)
10. Report of the Future of Numbering Working Group (FoN WG)
11. Status of the Industry Numbering Committee (INC) activities
12. Status of the ATIS All-IP Transititon Initiatives
13. Report of the Internet Protocol Issue Management Group (IP IMG)
14. Summary of Action Items
15. Public Comments and Participation (maximum 5 minutes per speaker)
16. Other Business
Adjourn no later than 2:00 p.m.
*The Agenda may be modified at the discretion of the NANC Chairman with the approval of the DFO.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before November 16, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
This collection will be submitted as an extension (no change in reporting or recordkeeping requirements) after this 60-day comment period to Office of Management and Budget (OMB) in order to obtain the full three year clearance.
An International Signaling Point Code (ISPC) is a unique, seven-digit code synonymously used to identify the signaling network of each international carrier. The ISPC has a unique format that is used at the international level for signaling message routing and identification of signaling points. The Commission receives ISPC applications from international carriers on the electronic, Internet-based International Bureau Filing System (IBFS). After receipt of the ISPC application, the Commission assigns the ISPC code to each applicant (international carrier) free of charge on a first-come, first-served basis. The collection of this information is required to assign a unique identification code to each international carrier and to facilitate
Board of Governors of the Federal Reserve System.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board of Governors of the Federal Reserve System (Board) its approval authority under the Paperwork Reduction Act (PRA), to approve of and assign OMB numbers to collection of information requests and requirements conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the PRA Submission, supporting statements and approved collection of information instruments 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 number.
Comments must be submitted on or before November 16, 2015.
You may submit comments, identified by
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All public comments are available from the Board's Web site at
Additionally, commenters may send a copy of their comments to the 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 or by fax to (202) 395-6974.
A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Federal Reserve Board's public Web site at:
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) 452-3884. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
The following information collection, which is being handled under this delegated authority, has received initial Board approval and is hereby published for comment. At the end of the comment period, the proposed information collection, along with an analysis of comments and recommendations received, will be submitted to the Board for final approval under OMB delegated authority. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;
b. The accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
As these data are collected as part of the supervisory process, they are subject to confidential treatment under exemption 8 of the Freedom of Information Act (FOIA) (5 U.S.C. 552(b)(8)). In addition, commercial and financial information contained in these information collections may be exempt from disclosure under exemption 4 of FOIA (5 U.S.C. 552(b)(4)), if disclosure would likely have the effect of (1) impairing the government's ability to obtain the necessary information in the future, or (2) causing substantial harm to the competitive position of the respondent. Such exemptions would be made on a case-by-case basis.
Though the Federal Reserve intends to share the information collected under the FR Y-14 with the Department of Treasury's Office of Financial Research, such sharing shall not be deemed a waiver of any privilege applicable to such information, including but not limited to any confidential status (12 U.S.C. 1821(t); 12 U.S.C. 1828(x)).
The Capital Assessments and Stress Testing information collection consists of the FR Y-14A, Q, and M reports. The semi-annual FR Y-14A collects information on the stress tests conducted by BHCs, including quantitative projections of balance sheet, income, losses, and capital across a range of macroeconomic scenarios, and qualitative information on methodologies used to develop internal projections of capital across scenarios.
The proposal would add an attestation requirement for Large Institution Supervision Coordinating Committee (LISCC) respondents, revise the reports to reflect recent changes to the regulatory capital rules and to the capital plan rule, and modify other elements of the FR Y-14A/Q/M reports to improve consistency of reported data across firms, address industry concerns, and improve supervisory modeling.
The proposal also provides notice to the public that the Office of Financial Research (OFR) of the Department of Treasury has requested access to the FR Y-14A/Q/M reports for use in connection with its statutory mandate “to evaluate and report on stress tests,” and that the Board plans to share the FR Y-14A/Q/M reports with the OFR in light of the assurances of confidentiality from the OFR.
The Federal Reserve proposes to add an attestation requirement for the FR Y-14A/Q/M reports for all LISCC respondents. As proposed, the attestation would be effective beginning June 30, 2016.
The Federal Reserve relies on BHCs to report accurate data on the FR Y-14A/Q/M reports. The FR Y-14A/Q/M reports are integral to the Federal Reserve's supervisory stress tests, as the Federal Reserve uses financial data reported by a BHC to assess whether the BHC has the capital necessary to absorb losses under stress. In previous CCAR and DFAST (Dodd-Frank Act Stress Test) cycles, the Federal Reserve has found that, while respondents generally report in accordance with the instructions, material inaccuracies have been identified in reported information.
Material inaccuracies in reported information indicate deficiencies in a BHCs' internal control environment. Deficiencies in a BHC's internal control environment affect not only the accuracy of a BHC's reported data, but also the strength and credibility of the BHC's capital planning process. Under the Federal Reserve's capital plan and stress test rules, a BHC is required to estimate projected revenues, losses, reserves, and pro forma capital levels under expected and stressed conditions. An effective internal control environment enables a BHC to measure, monitor, and aggregate its risks, and
The Federal Reserve proposes to require the chief financial officer (CFO) or an equivalent senior officer
The Federal Reserve has described its supervisory expectations for internal controls in several publications. For instance, as described in the August 2013 paper
The attestation would include two parts. First, for projected data reported on the FR Y-14A/Q and for actual data reported on the FR Y-14A/Q/M reports, the CFO (or equivalent senior officer) of a LISCC respondent would be required to attest that the reports have been prepared in conformance with the instructions issued by the Federal Reserve System.
Second, for actual data, the CFO (or equivalent senior officer) of a LISCC respondent would be required to attest that he or she is responsible for the internal controls over the reporting of these data, and that the data reported are materially correct to the best of his or her knowledge. The CFO would also be required to attest that the controls are effective and include those practices necessary to provide reasonable assurance as to the accuracy of these data. The CFO would be required to attest that the controls are audited annually by internal audit or compliance staff, and are assessed regularly by management of the named institution. Last, the CFO would be required to agree to report material weaknesses in these internal controls and any material errors or omissions in the data submitted to the Federal Reserve promptly as they are identified.
The proposed attestation requires the CFO (or equivalent senior officer) to attest that the controls are effective. The Committee of Sponsoring Organizations (COSO) of the Treadway Commission, a joint initiative of five private sector organizations representing executives within accounting, internal audit and finance,
The proposed attestation also would require the CFO (or equivalent officer) of a LISCC respondent to attest that internal controls are audited annually by internal audit or compliance staff and are assessed regularly by management. The proposed requirement for an annual internal audit aligns with the annual nature of the CCAR cycle and the expectations for an annual audit of internal controls over financial reporting in the context of annual financial statements. Through an audit of internal controls over the Y-14 series, internal audit or compliance function would provide reliable assurance regarding the effectiveness of internal controls. The proposed requirement for regular assessments by management is consistent with the Federal Reserve's expectations for all firms.
Last, the proposed attestation would require the CFO (or equivalent officer) of a LISCC respondent to attest that, to the best of his or her knowledge the data reported are materially accurate, and to promptly report any material weaknesses in internal controls and any material errors or omissions in the submitted data. Material weaknesses are those weaknesses which would result in a material misstatement of the FR Y-14A/Q/M data.
BHCs should have a policy in place for determining materiality in the context of management's attestation that data is materially accurate and management's attestation that internal controls over the FR Y-14A/Q/M reports are effective. This policy should include a robust analysis of all relevant quantitative and qualitative considerations, including, but not limited to, the size and effect of the omission or misstatement on firms' projected regulatory capital ratios in stressed scenarios. Qualitative factors may result in a conclusion that a small change in regulatory capital ratios is considered material. Those circumstances might include the repeat occurrence of errors and omissions, the proximity of a firm's regulatory capital ratios to minimum capital requirements, and whether errors and omissions could change a knowledgeable person's view of the adequacy of internal controls over the capital adequacy process.
The LISCC respondents may be required to enhance certain systems and processes in order to meet the attestation requirement, such as enhancing information technology infrastructure and adding or modifying internal control frameworks and data governance committees to include accountability and escalation processes, as well as to increase the frequency of audits of internal controls over the FR Y-14A/Q/M reports. The Federal Reserve believes such enhancements are essential for a BHC's own risk aggregation and risk management. In order to allow sufficient time for such modifications, the attestation would be effective June 30, 2016. This effective date is consistent with the six month period previously requested by industry participants to implement changes to information infrastructure processes.
An estimate of the associated increase in burden is reflected in the updated burden estimates. This estimate accounts for the burden associated with the initial implementation of modifications to existing systems and processes prior to the effective date as well as burden associated with ongoing requirements, particularly the annual audit, and is an average across applicable respondents. However, the Federal Reserve requests feedback from the industry regarding the specific burden increases necessary to meet the attestation requirement.
The Federal Reserve invited comment on a proposal to add an attestation to the FR Y-14 submission in July 2012, but did not finalize an attestation requirement in light of concerns expressed by commenters.
The Federal Reserve has considered these comments in developing the attestation included in this proposal. First, the FR Y-14 reports are sufficiently mature to support the attestation. Since the initial proposal of attestation to the FR Y-14 in July 2012, BHCs have completed the FR Y-14A/Q/M reports for over two years, and have generally been able to report the requested information in accordance with the instructions. Further, the scale and pace of the revisions to the reports have slowed, and more time is provided between finalization of proposed changes to the FR Y-14 and the effective date of those changes.
The Federal Reserve considered comments regarding the appropriateness of an attestation regarding projected data, and whether the CRO should be the correct person to attest. Given that the projected data are estimates of future values under different stressed scenarios, the proposed attestation would not require a BHC to attest to the accuracy of projected data. Instead, it would require the BHC to attest that it has prepared the FR Y-14A/Q/M in conformance with the instructions. In addition, the Federal Reserve considered whether to permit the CRO to provide the proposed attestation, instead of the CFO or equivalent officer, but determined that the CRO would not be the appropriate signatory. Under industry standards, the CRO does not have primary business line responsibility for internal controls and is therefore not an appropriate individual to be a signatory of the attestation.
The proposed revisions to the FR Y-14A consist of clarifying instructions, adding and removing schedules, adding, deleting, and modifying existing data items, and altering the as-of dates. These proposed changes would (1) increase consistency between the FR Y-14A and FR Y-9C, FFIEC 101, and FFIEC 102; (2) adjust the collection in accordance with revisions to the capital plan and stress test rules recently proposed by the Federal Reserve, which among other modifications would remove the requirement to calculate tier 1 common capital and the tier 1 common ratio; (3) shift the as-of dates by one quarter in accordance with the modifications to the capital plan and stress test rules that were finalized October 27, 2014 (79 FR 64026); and (4) modify and expand the supporting documentation requirements.
As with the changes to Schedule A.1.c.2, the Federal Reserve proposes modifying this schedule in accordance with FFIEC 102 and FR Y-9C Schedule HC-R. These changes would be effective December 31, 2015. Additionally, the Federal Reserve proposes removing projected year six from the projection period in accordance with the shift in the CCAR as-of date.
The Federal Reserve proposes adding a schedule that collects the effects of an intended business plan change on a respondent's asset, liability, and capital projections. This information has been collected in previous CCAR cycles on an ad-hoc basis, and this proposal is intended to formalize the collection. This schedule would be effective December 31, 2015.
The Federal Reserve proposes modifying the supporting documentation requirements to align with the documentation expectations outlined in the CCAR 2015 Summary Instructions and Guidance. Specifically, the appendix would be revised to require BHCs to provide the following supporting documentation: Policies and procedures (including a model risk management policy), mapping of estimation methodologies to FR Y-14A line items, model inventory, and methodology documentation. Required methodology documentation will include: Methodology and process overview; model technical documents; model validation documents; audit reports; documentation describing the review, challenge, aggregation, and finalization of results; and documentation describing the methodology for developing the consolidated pro forma financials. The Federal Reserve proposes to maintain the more specific documentation requirements on categories of exposures and risk areas in other sections of the appendix without change. The appendix would also note that the Federal Reserve expects to provide additional detail relating to these requirements, and as well as suggested organization and metadata tags, through the CCAR instructions.
The proposed revisions to the FR Y-14Q consist of clarifying instructions, adding a schedule, and adding, deleting and redefining existing data items. These proposed changes would provide additional information to enhance supervisory models, be responsive to industry comments, and shift the special as-of dates for Schedules F and L by one quarter in accordance with the modifications to the capital plan and stress test rules that were finalized October 27, 2014 (79 FR 64026). The Federal Reserve has conducted a thorough review of proposed changes and believes that because the proposed item additions and modifications to the FR Y-14Q request information are currently collected by respondents in their regular course of business reporting burden will be minimized. A summary of the proposed changes by schedule is provided below.
The Federal Reserve proposes restricting the loan population of this schedule to accrual loans, which would accurately reflect the intention of the schedule and be responsive to industry comments. These changes would be effective December 31, 2015.
The Federal Reserve proposes excluding non‐purpose loans and loans for purchasing and carrying securities from this schedule. This change, along with accompanying changes to FR Y‐14Q Schedules H.1 and M, would ensure that non‐purpose commercial loans and loans for purchasing or carrying securities are treated consistently across institutions. These changes would be effective December 31, 2015.
For schedule B.1 (Securities 1) the Federal Reserve proposes (1) requiring information to be reported in the Security Description 2 or Security Description 3 items in cases where an internal identifier is reported for a security or where the security type Other is assigned in order to increase consistency across institutions; (2) add “Appropriation-Backed” to the list of options for the Municipal Bond security type in order to capture the unique characteristics of this bond type; and (3) remove debt issued by the Student Loan Marketing Association as a U.S. Government or Agency debt organization in accordance with recent developments in the student loan financing market. Additionally, the Federal Reserve proposes removing schedule B.2 in order to reduce reporting burden. These changes would be effective December 31, 2015.
All of the proposed changes to this schedule are only applicable to subordinated debt instruments.
The Federal Reserve proposes (1) adding an item that collects the currency in which the instrument is denominated to be able to account for changes in exchange rates; (2) adding options to the Index item for Canadian Dealer's Offer Rate, Australian Bill Bank Swap, and UK Libor as well as 1M, 3M, and 6M maturities for all reference rates as well as require respondents to specify the index used when Other is reported in order to accurately calculate contractual expenses; (3) restrict the
Additionally, the Federal Reserve proposes adding items to collect details on swaps that are matched to subordinated debt instruments in order to capture the effect of these swaps on subordinated debt interest expenses. Specifically, the Federal Reserve proposes (1) adding items to capture the details of interest rate swaps matched to subordinated debt—issue date, maturity date, notional amount, fixed payment rate, payment index, and payment spread over index; (2) adding items to capture the details of foreign exchange swaps matched to subordinated debt—currency denomination of the instrument, currency of the payment, notional amount, and exchange rate; and (3) adding items that collect the unamortized discounts, premiums and fees, the fair value of the swap, and the carrying value of the swap as well as an item that reconciles the carrying value to the FR Y-9C. These changes would be effective June 30, 2016, and would require a separate one-time submission of all subordinated debt instruments for the effective date in order to ensure the proposed information is accurately captured for the associated subordinated debt instrument.
As with the changes to FR Y-14A Schedule A.1.c.2, the Federal Reserve proposes modifying this schedule in accordance with FFIEC 102 and FR Y-9C Schedule HC-R. These changes would be effective December 31, 2015.
The Federal Reserve proposes eliminating the deposit funding threshold and requiring submissions from all respondents. Currently nearly all respondents are required to submit this schedule, and this modification would create consistency in analysis and supervisory modeling across respondents.
The Federal Reserve proposes (1) expanding the loan population to include loans that were disposed during the reporting period as well as adding the item Disposition Flag that collects the disposition method in order to capture the difference in loan characteristics; (2) expanding the options of the Participation Flag item for agent, participant, and inclusion in the Shared National Credit report in order to effectively identify syndicated loans; (3) adding the item Leveraged Loan Flag that identifies leveraged loans across all wholesale loans, not only loans reported through the Shared National Credit Program report, for a more accurate reflection of the associated risk characteristics of such loans; and (4) adding the item Participation Interest that captures the percent of the commitment held by the respondent for participated or syndicated loans to help match loans across institutions. The latter three items along with clarifications to the SNC Internal Credit ID would allow the Federal Reserve to better match loans between FR Y-14Q Schedule H and the Shared National Credit report and to explore methods to utilize both reports. These changes would be effective March 31, 2016.
The Federal Reserve proposes (1) eliminating the restriction to the loan population of legally binding commitments, which would align the schedule with the FR Y-9C definition of corporate loans; (2) adding five categories to the Credit Facility Purpose item to capture non-purpose margin loans, non-purpose loans collateralized by securities for other purposes, dealer floorplan, equipment leasing, and bridge financing in order to more accurately require such loans to be reported as wholesale loans; (3) adding two categories to the Credit Facility Type item to identify fronting exposures and swinglines to appropriately capture their unique characteristics in supervisory modeling; and (4) adding two items—Syndicated Loan Flag and Target Hold—that capture the status of the credit and the share of the credit that the respondent intends to retain upon clearing of the deal in order to assign credit risk throughout the syndication process. These changes would be effective March 31, 2016. Additionally, effective December 31, 2015, the Federal Reserve proposes (5) expanding the loan population to include non-purpose loans that are not graded to accurately reflect the intention of the schedule and be responsive to industry comments, which is in conjunction with proposed changes to FR Y-14Q Schedules A.8, A.9, and M.
The Federal Reserve proposes (1) adding the item Stressed Discount Factor to Schedule L.2 in order to consistently capture this information as incorporated into respondents expected exposure profiles; (2) changing the counterparties that are reported on Schedule L.4 from the top 10 by credit valuation adjustment (CVA) to the top 10 by sensitivity to the risk factor in each section of the schedule as well as add several risk factors to this schedule, which would provide more material information for the same estimated ongoing burden; (3) modifying the reporting requirements for Schedules L.5 and L.6 so that the top 25 counterparties are reported by exposure amount for the CCAR as of quarter, which would create consistency in the reporting of counterparties across quarters, and replacing L.5.1.a, L.5.2.a, L.6.1.a, and L.6.2.a with a requirement for separate submissions and an item identifying the submission; (4) on Schedule L.4 combining the counterparty and reference spread portions as well as the CCC and below rating categories of the Credit Spreads section in an effort to reduce reporting burden; (5) adding an item to Schedules L.1 through L.4 that requires the reporting of a Legal Entity Identifier for each counterparty, as available, in order to more accurately identify and match counterparties throughout Schedule L; and (6) changing or adding the Industry item on Schedules L.1 through L.6 to require respondents to report a North American Industry Classification System code to more accurately identify the industry of the counterparty. These changes would be effective December 31, 2015.
Along with proposed changes to FR Y-14Q Schedules A.8, A.9, and H.1, the Federal Reserve proposes modifying items such that non-purpose commercial loans and loans for purchasing or carrying securities are reported in the commercial loan line items, regardless of whether they are graded or scored. This change would be effective December 31, 2015.
The Federal Reserve proposes (1) adding two items—Serviced by Others Flag and Reporting As of Month—in an
The Federal Reserve proposes (1) adding two items—Serviced by Others Flag and Reporting As of Month—in an effort to be responsive to industry comments regarding the delayed reporting of loans that are serviced-by-others; and (2) adding the item Payment Type at the End of Draw Period and an option to the Modification Type item to capture the differing risk characteristics based on payment type set on the loan after the draw period has ended. These changes would be effective December 31, 2015.
The Office of Financial Research (OFR) of the Department of Treasury has requested access to the FR Y-14A/Q/M reports for use in connection with its statutory mandate “to evaluate and report on stress tests.” The current FR Y-14 collections indicate that the collected data will be kept confidential. Through this proposal, the Board is providing notice that OFR will have access to the FR Y-14A/Q/M reports. The OFR has provided assurances that it will maintain the confidentiality of this information, including that it would limit access to the data to authorized staff and that any publication by the OFR using the reports would not contain confidential information.
Respondents have previously expressed concern, either through industry groups or the Federal Reserve's Frequently Asked Questions process, regarding the cost and burden of collecting the information related to the Performance of First Lien item of FR Y-14M Schedule B. As such, respondents either have been unable to report this information or have been doing so inconsistently. During the 60 day public comment period, the Federal Reserve is requesting industry feedback on the item below. If respondents are concerned about providing this information in a public comment letter, the Federal Reserve recommends that responses be submitted anonymously.
What is the most efficient and cost-effective manner to collect the information related to the performance of a first lien that is related to a junior lien reported on FR Y-14M Schedule B? What standards could be established that would make this item easier to report (
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 1, 2015.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309:
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The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 13, 2015.
A. Federal Reserve Bank of Philadelphia (William Lang, Senior Vice President) 100 North 6th Street, Philadelphia, Pennsylvania 19105-1521:
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B. Federal Reserve Bank of St. Louis (Yvonne Sparks, Community Development Officer) P.O. Box 442, St. Louis, Missouri 63166-2034:
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World War One Centennial Commission.
Meeting notice.
Notice of this meeting is being provided according to the requirements of the Federal Advisory Committee Act, 5 U.S.C. App. 10(a)(2). This notice provides the schedule and agenda for the October 14, 2015 meeting of the World War One Centennial Commission (the Commission). The meeting will be held via teleconference.
Meeting Date and Location: The meeting will be held on Wednesday, October 14, 2015 starting at 10:00 a.m. Eastern Daylight Time (EDT), and ending no later than 12:00 p.m., (EDT). The meeting will be held via teleconference, which will originate at the office of the Commission at 1776 G Street NW., Suite 107, Washington, DC 20006.
Access to this location is via entrance to the right of the entrance to 1777 F Street NW., Washington, DC. This location is handicapped accessible. The meeting will be open to the public and will also be available telephonically. Persons attending in person are requested to refrain from using perfume, cologne, and other fragrances (see
Daniel S. Dayton, Designated Federal Officer, World War 1 Centennial Commission, 701 Pennsylvania Avenue NW., 123, Washington, DC 20004-2608, telephone number 202-380-0725 (note: this is not a toll-free number).
Written Comments may be submitted to the Commission and will be made part of the permanent record of the Commission. Comments must be received by 5:00 p.m., (EDT), Friday, October 9, 2015 and may be provided by email to
Requests to comment at the meeting must be received by 5:00 p.m. (EDT), Friday, October 9, 2015. Written comments may be provided to Mr. Dayton at
The World War One Centennial Commission was established by Public Law 112-272, as a commission to ensure a suitable observance of the centennial of World War I, to provide for the designation of memorials to the service of members of the United States Armed Forces in World War I, and for other purposes.
Under this authority, the Committee will plan, develop, and execute programs, projects, and activities to commemorate the centennial of World War I, encourage private organizations and State and local governments to organize and participate in activities commemorating the centennial of World War I, facilitate and coordinate activities throughout the United States relating to the centennial of World War I, serve as a clearinghouse for the collection and dissemination of information about events and plans for the centennial of World War I, and develop recommendations for Congress and the President for commemorating the centennial of World War I. The Commission does not have an appropriation and operated solely on donated funds.
Contact Daniel S. Dayton at
Old Business:
• Approval of minutes of previous meetings
• Public Comment Period
New Business:
• Approval of Budget Request for CY 2016
• Discussion of recommendations to be made to the Congress and the President
• World War 1 Washington Memorial Report
• Fund Raising Report
• Education Report
• Set next meeting
GSA IT, Digital Services Division, General Services Administration (GSA).
Notice.
The purpose of this notice is to announce a software programming and data innovation competition hosted by GSA IT's Digital Services Division that will be held on Friday, October 16, 2015. The competition details can be viewed at
Registration for this event will close Tuesday, October 13, 2015, at 11:59 p.m. Eastern Standard Time (EST). The competition will be open on Friday, October 16, 2015, from 9:00 a.m. until 4:30 p.m. Eastern Standard Time (EST), on-site registration at GSA will begin at 8:30 a.m. (EST).
Ms. Cindy A. Smith at
The solution should be a data-driven solution to provide meaningful insights that can help drive smarter decisions by federal employees. The ultimate goal is to help federal agencies use data to its fullest, share data with all agencies, and become more transparent to the American public.
The solution should accomplish two tasks:
1. Visually display or transmit data in a way that will enhance the way GSA works; and
2. Through analysis of the data, identify relationships, if they exist, and provide valuable insights that could be gained through improved data collection efforts.
Coders, designers, engineers, data scientists, SMEs from industry, and academia are all invited! Pre-determined teams are welcome to include a stand-alone or mix of private industry, non-profit, and academia. Modification to team make-up may occur based on team skill make-up at the direction of the competition host. Cash prizes will be awarded to the best projects.
• Green House Gas (GHG) Reduction Visualization—The Office of Governmentwide Policy (OGP) has been working to create an analytical framework and tool to support agencies in meeting the goals outlined in a recent Executive Order 13693 ‘Planning for Federal Sustainability in the Next Decade’, regarding greenhouse gas emission reductions. The model currently uses several variables to help agencies examine how increasing their use of E-85 capable vehicles and replacing gas-powered vehicles with E-85 capable vehicles would affect their total greenhouse gas emissions. Skills desired include database coding ability (
• Data Center Consolidation Mashup and Tool—Multiple stakeholders including the White House, Congress, and government agencies share a common interest in better utilizing government data centers. This has led to multiple report generation from multiple sources to better understand power consumption and data center utilization and efficiency. The purpose of this challenge is to mashup different datasets into visualization and application for all stakeholders to utilize. Skills desired include web and application developers, user experience (UX) designers, data scientists, and data center SMEs.
• Travel Challenge 2.0 App Development—As a continuation of a Travel Challenge held in 2014, GSA is looking for developers to take the Travel Application to the next level. Developed in Python code, this tool is close to production quality and needs some finishing code and design ideas. Skills desired include Python developers and UX designers.
1. That have registered to participate in the competition and complied with the rules of the competition as explained in this posting; and
2. That have been incorporated in and maintain a primary place of business in the United States, and in the case of an individual, whether participating singly or in a group, the participant must be a citizen or permanent resident of the United States.
Participants may not be a Federal entity or Federal employee acting within the scope of employment. However, an individual or entity shall not be deemed ineligible to win prize money because the individual or entity used Federal facilities or consulted with Federal employees during a competition if the facilities and employees are made available to all individuals and entities participating in the competition on an equitable basis.
Pre-determined teams of up to 5 members are welcome to include a stand-alone or mix of private industry, non-profit, and academia. Modification to team make-up may occur based on team skill make-up at the direction of the competition host.
Participants agree to assume any and all risks and waive claims against the federal government and its related entities, except in the case of willful misconduct, for any injury, death, damage, or loss of property, revenue, or profits, whether direct, indirect, or consequential, arising from participation in this competition, whether the injury, death, damage, or loss arose through negligence or otherwise. Participants also agree to obtain liability insurance or demonstrate financial responsibility, to cover a third party for death, bodily injury, property damage, or loss resulting from an activity carried out in connection with participation in this competition, with the Federal Government named as an additional insured under the registered participant's insurance policy and registered participants agreeing to indemnify the Federal Government against third party claims for damages arising from or related to the competition activities, and the Federal Government for damage or loss to Government property resulting from such an activity.
As GSA is under a strict duty not to give preferential treatment to any private organization or individual, participants must agree to take diligent care to avoid the appearance of Government endorsement of competition participation and submission. Participants must agree not to refer to GSA's use of your submission (be it product or service) in any commercial advertising or similar promotions in a manner that could reasonably imply (in the judgment of a reasonable person) that the GSA or the federal government endorses, prefers, sponsors, or has an affiliation with participants' products or services. Participants agree that GSA's
Participants can win no more than $1,000 per person. Funding for this GSA Digital Innovation Hackathon Fall 2015 edition award will come from GSA. Prizes will be awarded to the winner(s) of the competition via Electronic Funds Transfer (EFT), within 60 days of announcement of the winner(s).
1. The author or holder of the license of the source code cannot collect royalties on the distribution of the program;
2. The distributed program must make the source code accessible to the user;
3. The author must allow modifications and derivations of the work under the program's original name;
4. No person, group, or field of endeavor can be denied access to the program;
5. The rights attached to the program must not depend on the program being part of a particular software distribution;
6. The licensed software cannot place restrictions on other software that is distributed with it;
7. The solution must be an online, interactive solution that meets the goals and objectives provided in this document;
8. The solution must include documentation of all data sources used;
9. The solution must include a description of how the solution can be updated with additional data from other agencies; and
10. The solver must provide recommendations to enhance Government insights through improvements in data collection.
The winner(s) of the competition will, in consideration of the prize(s) to be awarded, grant to GSA a perpetual, non-exclusive, royalty-free license to use any and all intellectual property to the winning entry for any governmental purpose, including the right to permit such use by any other agency or agencies of the Federal Government. All other rights of the winning entrant will be retained by the winner of the competition.
Submissions will be judged based on the following metrics:
Description—The solution addresses the primary goals of the Hackathon. It is a finished product that can provide insightful analysis and show GSA how to enhance/improve existing functions, share data across GSA and more efficiently utilize existing applications.
Description—The solution displays in a way that is easy to understand, visually appealing, and will help drive understanding of current trends as well as recommendations.
Description—The solution exceeds any internal capability that GSA has for analysis of data through its incorporation of creative design elements and innovative capabilities.
Description—The solver provides recommendations for additional data elements to be collected by the government. The solver identifies gaps in the data and utilizes external data sources and research to aid the government in setting future data collection policies.
Objectives:
—Utilize GSA data to create an application, API, and/or data mashup.
—Provide GSA a better understanding of use and needs of current and future data assets.
—Post all open source solutions on the GSA open source code site for future use by the government developer community and GSA.
All participants are required to check in with Security upon arriving at the GSA Central Office Building, 1800 F Street NW., Washington, DC 20405. A government- issued ID is required to gain access into the building. All participants must enter through the main entrance located on 18th Street.
Proceed through Security and follow the posted signs to the Conference Center, Rooms 1459, 1460, and 1461.
Check in at the registration table on Friday, October 16, 2015, begins at 8:30 a.m., Eastern Standard Time (EST). All participants must stop here to sign the required form shown below:
• Gratuitous Service Agreement.
The Centers for Disease Control and Prevention (CDC) has submitted 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. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) 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,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
CDC Burden of Canine Brucellosis Information Collection—New—National Center for Emerging and Zoonotic Infectious Diseases, Centers for Disease Control and Prevention (CDC).
Canine brucellosis is a bacterial infection caused by the organism
Unlike
Additionally, canine infections with other
There has been interest in human brucellosis caused by
The purpose of this information collection request is to estimate the burden of canine brucellosis in the United States, which will aid in the determination of the level of public health importance of human
Veterinary diagnostic laboratories throughout the United States will be solicited to provide information on the quantity of test requests and positive results for
The laboratories were identified through multiple sources: A review of the Animal and Plant Health Inspection Service-approved
The outcomes of this information collection are to assess the burden of disease in the animal host (dogs, in this case), as well as evaluate the knowledge and practices of occupational exposures to the organism. The information collected will be used to guide a longer term strategy for identification of human cases, understanding risk factors and activities associated with zoonotic transmission, and eventually validation of a human diagnostic assay. These strategies will be implemented using other mechanisms.
The total annual burden is 139 hours.
Office of Management and Budget, Paperwork Reduction Project, Fax: 202-395-7285, Email:
Food and Drug Administration, HHS.
Notice.
The U.S. Food and Drug Administration (FDA or Agency) is issuing an order under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) permanently debarring Syed Huda from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Mr. Huda was convicted of two felonies under Federal law for conduct relating to the regulation of a drug product. Mr. Huda was given notice of the proposed permanent debarment and an opportunity to request a hearing within the timeframe prescribed by regulation. Mr. Huda failed to respond. Mr. Huda's failure to respond constitutes a waiver of his right to a hearing concerning this action.
This order is effective September 16, 2015.
Submit applications for special termination of debarment to the Division of Dockets Management (HFA-
Kenny Shade (ELEM-4144) Division of Enforcement, Office of Enforcement and Import Operations, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 301-796-4640.
Section 306(a)(2)(B) of the FD&C Act (21 U.S.C. 335a(a)(2)(B)) requires debarment of an individual if FDA finds that the individual has been convicted of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act.
On May 16, 2014, the U.S. District Court for the Eastern District of Virginia entered judgment against Mr. Huda for one count of importation contrary to law, in violation of 18 U.S.C. 545 and 2, one count of introducing misbranded drugs into interstate commerce, in violation of 21 U.S.C. 331(a), 333(a)(2), and 18 U.S.C. 2, one count of unlicensed wholesale distribution of prescription drugs, in violation of 21 U.S.C. 331(t), 333(b)(1)(D), 353(e)(2)(A), and 18 U.S.C. 2, and one count of wire fraud, in violation of 18 U.S.C. 1343.
FDA's finding that debarment is appropriate is based on the felony convictions referenced herein. The factual basis for this conviction is as follows: Mr. Huda was a cofounder and co-owner of Gallant Pharma International Inc. (Gallant Pharma), between August 2009 and August 2013. Gallant was a company dedicated to the illegal importation and sale of misbranded and non-FDA approved chemotherapy drugs and injectable cosmetic drugs and devices in the United States.
As cofounder and co-owner of Gallant Pharma, Mr. Huda was primarily responsible for the United States based portion of the conspiracy, including: (1) Identifying a drop shipper willing to accept illegal importations of behalf of Gallant Pharma, (2) locating space for Gallant Pharma to store misbranded and non-FDA approved drugs and devices, (3) establishing relationships with customers in the Washington, DC metropolitan area, (4) interviewing and hiring sales representatives in other parts of the United States, and (5) establishing merchant accounts with credit card processors, for receipt of illegal proceeds via wire transfer into Canadian bank accounts. Gallant Pharma was not licensed as a prescription drug wholesaler by the Commonwealth of Virginia. Some of the drugs and devices that Mr. Huda acquired were not approved by the FDA for use on patients in the United States. Mr. Huda admitted that the drugs sold by Gallant Pharma were prescription only; and were misbranded in that, among other things, they did not bear adequate directions for use and were not subject to an exemption from that requirement; and they were accompanied by non-FDA approved packaging and inserts. The drugs Gallant Pharma sold also lacked the FDA-required pedigree, which protects patient health by tracking each sale, purchase, or trade of a drug from the time of manufacturing to delivery to the patient.
Immediately after establishing Gallant Pharma's presence in the Eastern District of Virginia, on or about September 25, 2009, Mr. Huda received a cease and desist letter from a law firm on behalf of Medicis, the exclusive authorized marketer of RESTYLANE and PERLANE in the United States and Canada. The letter informed Gallant Pharma that its marketing of these drugs violated the FD&C Act and could subject Gallant Pharma to substantial criminal and civil penalties. The letter included Gallant Pharma's marketing materials, which falsely claimed that Gallant Pharma had been “strictly working with the current FDA rules and regulations for almost 10 years.”
Mr. Huda personally solicited orders on behalf of Gallant Pharma, and on or about October 19, 2010, he sold 10 vials of misbranded TAXOTERE to a physician in Oceanside, CA, in exchange for $2450, thereby causing misbranded drugs to travel in interstate commerce from the Eastern District of Virginia. Mr. Huda was aware of several occasions in which physicians complained after receiving drugs with packaging and inserts written in language other than English, and he authorized a price reduction upon receiving such complaints.
Between August 2009 and August 2013, Gallant Pharma received illegal proceeds of at least $12,400,000 from the sale of misbranded and non-FDA approved drugs and devices in the United States. Mr. Huda admitted that he was an organizer or leader of this criminal activity and that his actions were in all respects knowing, voluntary, and intentional, and did not occur by accident, mistake, or for another innocent reason.
As a result of his conviction, on May 20, 2015, FDA sent Mr. Huda a notice by certified mail proposing to permanently debar him from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on the finding, under section 306(a)(2)(B) of the FD&C Act, that Mr. Huda was convicted of felonies under Federal law for conduct related to the regulation of a drug product. The proposal also offered Mr. Huda an opportunity to request a hearing, providing him 30 days from the date of receipt of the letter in which to file the request, and advised him that failure to request a hearing constituted a waiver of the opportunity for a hearing and of any contentions concerning this action. The proposal was received on May 26, 2015. Mr. Huda failed to respond within the timeframe prescribed by regulation and has, therefore, waived his opportunity for a hearing and has waived any contentions concerning his debarment (21 CFR part 12).
Therefore, the Director, Office of Enforcement and Import Operations, Office of Regulatory Affairs, under section 306(a)(2)(B) of the FD&C Act, under authority delegated to him (Staff Manual Guide 1410.35), finds that Syed Huda has been convicted of felonies under Federal law for conduct relating to the regulation of a drug product.
As a result of the foregoing finding, Syed Huda is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application under sections 505, 512, or 802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 of the Public Health Service Act (42 U.S.C. 262), effective (see DATES)(see section 201(dd), 306(c)(1)(B), and 306(c)(2)(A)(ii) of the FD&C Act (21 U.S.C. 321(dd), 335a(c)(1)(B), and 335a(c)(2)(A)(ii)). Any person with an approved or pending drug product application who knowingly employs or retains as a consultant or contractor, or otherwise uses the services of Syed Huda, in any capacity during his debarment, will be subject to civil money penalties (section 307(a)(6) of the FD&C Act (21 U.S.C. 335b(a)(6))). If Mr. Huda provides services in any capacity to a person with an approved or pending drug product application during his period of debarment he will be subject to civil money penalties (section 307(a)(7) of the FD&C Act. In addition, FDA will not accept or review any abbreviated new drug applications from Syed Huda during his period of debarment (section 306(c)(1)(B) of the FD&C Act.
Any application by Mr. Huda for special termination of debarment under section 306(d)(4) of the FD&C Act should be identified with Docket No.
Publicly available submissions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the (NIEHS), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
Written comments and/or suggestions from the public and affected agencies are invited to address one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) The quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection are best assured of having their full effect if received within 60 days of the date of this publication.
To obtain a copy of the data collection plans and instruments, submit comments in writing, or request more information on the proposed project, contact: Joseph T. Hughes, Jr., Director, Worker Training Program, Division of Extramural Research and Training, NIEHS, P.O. Box 12233, Research Triangle Park, NC 27709 or call non-toll-free number (919) 541-0217 or Email your request, including your address to:
This request for OMB review and approval of the information collection is required by regulation 42 CFR part 65(a)(6). The National Institute of Environmental Health Sciences (NIEHS) was given major responsibility for initiating a worker safety and health training program under Section 126 of the Superfund Amendments and Reauthorization Act of 1986 (SARA) for hazardous waste workers and emergency responders. A network of non-profit organizations that are committed to protecting workers and their communities by delivering high-quality, peer-reviewed safety and health curricula to target populations of hazardous waste workers and emergency responders has been developed. In twenty-eight years (FY 1987-2015), the NIEHS Worker Training program has successfully supported 20 primary grantees that have trained more than 3.3 million workers across the country and presented over 194,000 classroom and hands-on training courses,which have accounted for nearly 39 million contact hours of actual training. Generally, the grant will initially be for one year, and subsequent continuation awards are also for one year at a time. Grantees must submit a separate application to have the support continued for each subsequent year. Grantees are to provide information in accordance with S65.4 (a), (b), (c) and 65.6(a) on the nature, duration, and purpose of the training, selection criteria for trainees' qualifications and competency of the project director and staff, cooperative agreements in the case of joint applications, the adequacy of training plans and resources, including budget and curriculum, and response to meeting training criteria in OSHA's Hazardous Waste Operations and Emergency Response Regulations (29 CFR 1910.120). As a cooperative agreement, there are additional requirements for the progress report section of the application. Grantees are to provide their information in hard copy as well as enter information into the WTP Grantee Data Management System. The information collected is used by the Director through officers, employees, experts, and consultants to evaluate applications based on technical merit to determine whether to make awards.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 560.
Notice is hereby given of a change in the meeting of the National Advisory Council for Complementary and Integrative Health, October 2, 2015, 8:30 a.m. to October 2, 2015, 03:35 p.m., National Institutes of Health, Building 31, 31 Center Drive, Conference Room 10, Bethesda, MD 20892 which was published in the
This meeting notice is amended to change the time of the OPEN SESSION from 10 a.m. to 9:30 a.m. (ET). The meeting is partially Closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following 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.
Fish and Wildlife Service, Interior.
Notice of availability; request for public comments.
We, the U.S. Fish and Wildlife Service (Service), make available the draft Environmental Assessment (dEA) for the Paso Robles Phase II draft Habitat Conservation Plan (dHCP). Carma Paso Robles, LLC (applicant), has applied to the Service for an incidental take permit (ITP; TE-60266B-0) under the Endangered Species Act of 1973, as amended (Act). The requested permit would authorize incidental take of the federally listed golden-cheeked warbler as a result of activities associated with the applicant's proposed clearing and construction of a residential development (covered activities).
To ensure consideration, written comments must be received or postmarked on or before November 16, 2015. Comments submitted electronically using the Federal eRulemaking Portal (see
The ITP application is available by mail from the Regional Director, U.S. Fish and Wildlife Service, P.O. Box 1306, Room 6034, Albuquerque, NM 87103.
• U.S. Fish and Wildlife Service, 500 Gold Avenue SW., Room 6034, Albuquerque, NM 87102.
• U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, TX 78758.
•
•
We request that you send comments by only the methods described above. We will post all information received on
Adam Zerrenner, Field Supervisor, by U.S. mail at U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, TX 78758 or by phone at (512) 490-0057.
We make available the dEA for the Paso Robles Phase II dHCP. Carma Paso Robles, LLC (applicant), has applied to the Service for an incidental take permit (ITP; TE-60266B-0) under the Endangered Species Act (Act) of 1973, as amended. The requested permit, which would be in effect for a period of 10 years, if granted, would authorize incidental take of the federally listed golden-cheeked warbler (
In accordance with the requirements of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
1. We have gathered the information necessary to determine impacts and formulate alternatives for the dEA related to potential issuance of an ITP to the applicant; and
2. The applicant has developed a dHCP as part of the application for an ITP, which describes the measures the applicant has agreed to take to minimize and mitigate the effects of incidental take of GCWAs to the maximum extent practicable pursuant to section 10(a)(1)(B) of the Act.
The dEA considers the direct, indirect, and cumulative effects of implementation of the dHCP, including the measures that will be implemented to minimize and mitigate, to the maximum extent practicable, the impacts of the incidental take of the covered species.
The proposed action is the issuance of an ITP by the Service for the covered activities in the permit area, pursuant to section 10(a)(1)(B) of the Act for a period of 10 years. The ITP would cover “take” of the covered species associated with the clearing and construction of a residential development within the permit area.
To meet the requirements of a section 10(a)(1)(B) ITP, the applicant has developed and proposes to implement its dHCP, which describes the conservation measures the applicant has agreed to undertake to minimize and mitigate for the impacts of the proposed incidental take of the covered species to the maximum extent practicable, and ensures that incidental take will not appreciably reduce the likelihood of the survival and recovery of these species in the wild.
The applicant proposes to mitigate with the purchase of 114.4 acres of high-quality habitat, likely from a Service-approved habitat conservation bank.
We considered two alternatives to the proposed action:
1. No Action—No ITP would be issued. Therefore, the applicant would not implement the conservation measures described in the HCP.
2. Higher Mitigation Alternative—This alternative is similar to the Proposed Action in that the Service would issue an ITP for the proposed project. However, the HCP under this alternative would be modified to increase the number of GCWA habitat conservation credits the applicant would purchase to 359.6 acres. All other aspects of the proposed project and the HCP would remain the same.
Written comments we receive become part of the public record associated with this action. 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 request in your comment that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to
We provide this notice under section 10(c) of the Act and its implementing regulations (50 CFR 17.22 and 17.32) and NEPA and its implementing regulations (40 CFR 1506.6).
Bureau of Indian Affairs, Interior.
Notice of submission to OMB.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Indian Affairs (BIA) is submitting to the Office of Management and Budget (OMB) a request for approval for the collection of information titled “Reindeer in Alaska.” This information collection is currently authorized by OMB Control Number 1076-0047, which expires September 30, 2015.
Interested persons are invited to submit comments on or before October 16, 2015.
You may submit comments on the information collection to the Desk Officer for the Department of the Interior at the Office of Management and Budget, by facsimile to (202) 395-5806 or you may send an email to:
Mr. Keith Kahklen, phone: (907) 586-7618. You may review the information collection request online at
The Bureau of Indian Affairs (BIA) is seeking renewal of the approval for the information collection conducted under 25 CFR part 243, Reindeer in Alaska, which is used to monitor and regulate the possession and use of Alaskan reindeer by non-Natives in Alaska. The information to be provided includes an applicant's name and address, and where an applicant will keep the reindeer. The applicant must fill out an application for a permit to get a reindeer for any purpose, and is required to report on the status of reindeer annually or when a change occurs, including changes prior to the date of the annual report. This information collection utilizes four forms. A response is required to obtain and/or retain a benefit.
On June 30, 2015, BIA published a notice announcing the renewal of this information collection and provided a 60-day comment period in the
The BIA requests your comments on this collection concerning: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) The accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) Ways we could enhance the quality, utility, and clarity of the information to be collected; and (d) Ways we could minimize the burden of the collection of the information on the respondents.
Please note that an agency may not conduct or sponsor, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
National Park Service, Interior.
Request for nominations.
The National Park Service, U.S. Department of the Interior, is seeking nominations for individuals to be considered for appointment to the Gateway National Recreation Area Fort Hancock 21st Century Advisory Committee. The purpose of the
Written nominations must be received by October 16, 2015.
Send nominations to: Gateway National Recreation Area, Office of the Superintendent, 210 New York Avenue, Staten Island, New York 10305, or email at
John Warren, External Affairs Officer, Gateway National Recreation Area, Sandy Hook Unit, 26 Hudson Road, Highlands, New Jersey 07732, or email at
The Gateway National Recreation Area Fort Hancock Historic Landmark District is established by authority of the Secretary of the Interior under 16 U.S.C. 1a-2(c), and in accordance with the Federal Advisory Committee Act (5 U.S.C. Appendix 2).
The Committee provides advice on the development of a specific reuse plan and on matters relating to the future uses of the Fort Hancock Historic Landmark District within the Sandy Hook Unit of Gateway National Recreation Area. The Committee provides advice to the National Park Service on developing a plan for the reuse of more than 30 historic buildings that the NPS has determined are excess to its needs and eligible for lease under 16 U.S.C. 1
The Committee consists of representatives from among, but not limited to, the following interest groups to represent a range of interests concerned with the management of Fort Hancock Park and its impact on the local area: The natural resource community, the business community, the cultural resource community, the real estate community, the recreation community, the education community, the scientific community, and hospitality organizations. The Committee will also include representatives from the following municipalities: Borough of Highlands, Borough of Sea Bright, Middletown Township, Borough of Rumson, and Monmouth County Freeholders.
The National Park Service is now seeking nominations from members representing the following categories or municipalities: The natural resource community, the real estate community, the education community, the scientific community, the historic preservation community, the Borough of Highlands, the Borough of Sea Bright, the Borough of Rumson, and the Monmouth County Freeholders.
Members are appointed to 3-year terms, and will serve without compensation. The Committee expects to meet approximately 4 to 6 times a year. Members are expected to make every effort to attend all meetings. Members may not appoint deputies or alternates.
All those interested in membership, including current members whose terms are expiring, must follow the same nomination process. Nominations should describe and document the proposed member's qualifications for membership to the Committee, and should include his or her name, title, address, telephone, email, and fax number.
Committee members will be selected based on the following criteria: (1) Ability to collaborate, (2) ability to understand NPS management and policy, and (3) connection with local communities.
Individuals who are federally registered lobbyists are ineligible to serve on FACA and non-FACA boards, committees, or councils in an individual capacity. The term “individual capacity” refers to individuals who are appointed to exercise their own individual best judgement on behalf of the government, such as when they are designated Special Government Employees, rather than being appointed to represent a particular interest.
Office of Acquisition and Property Management, Office of the Secretary, Department of the Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Acquisition and Property Management has submitted a request for renewal of approval of this information collection to the Office of Management and Budget (OMB), and requests public comments on this submission.
OMB has up to 60 days to approve or disapprove the information collection request, but may respond after 30 days; therefore, public comments should be submitted to OMB by October 16, 2015, in order to be assured of consideration.
Send your written comments by facsimile (202) 395-5806 or email (
Requests for additional information on this proposed information collection or its Relocation Forms should be directed to the contact information provided in the
This notice is for renewal of an existing information collection.
Public law 91-646, Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, requires each Federal agency acquiring real estate interests to provide
As required under 5 CFR 1320.8(d), a
The Department of the Interior invites comments on:
(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 the burden of the collection and the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other collection techniques or other forms of information technology.
“Burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
All written comments, with names and addresses, will be available for public inspection. If you wish us to withhold your personal information, you must prominently state at the beginning of your comment what personal information you want us to withhold. We will honor your request to the extent allowable by law. If you wish to view any comments received, you may do so by scheduling an appointment with the Office of Acquisition and Property Management at the contact information provided in the
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 Office of Management and Budget control number.
Bureau of Land Management, Interior.
60-Day Notice and request for comments.
In compliance with the Paperwork Reduction Act, the Bureau of Land Management (BLM) is announcing its intention to request approval to continue the collection of information regarding leases of solid minerals other than coal and oil shale. The Office of Management and Budget (OMB) has assigned control number 1004-0121 to this information collection.
Please submit comments on the proposed information collection by November 16, 2015.
Comments may be submitted by mail, fax, or electronic mail.
Please indicate “Attn: 1004-0121” regardless of the form of your comments.
Vince Vogt, at 202-912-7125. Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, to leave a message for Mr. Vogt.
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501-3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d) and 1320.12(a)). This notice identifies an information collection that the BLM plans to submit to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.
The BLM will request a 3-year term of approval for this information collection
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.
The following information is provided for the information collection:
• Determine if applicants, permittees, and lessees meet qualification criteria;
• Assure compliance with various other legal requirements relating to the leasing of solid minerals other than coal or oil shale;
• Gather data needed to determine the environmental impacts of developing solid leasable minerals other than coal or oil shale;
• Maintain accurate leasing records; and
• Oversee and manage the leasing of solid minerals other than coal or oil shale.
• Prospecting permits;
• Exploration licenses;
• Leases; and
• Use permits.
The following table itemizes the estimated burden hours:
Drug Enforcement Administration, Department of Justice.
Final order.
This final order establishes the final adjusted 2015 aggregate production quotas for controlled substances in schedules I and II of the Controlled Substances Act and the assessment of annual needs for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine.
This order is effective September 16, 2015.
John R. Scherbenske, Office of Diversion Control, Drug Enforcement Administration, 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 purposes of this action. The DEA publishes the implementing regulations for these statutes in title 21 of the Code of Federal Regulations (CFR), chapter II. The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while providing for the legitimate medical, scientific, research, and industrial needs of the United States. Controlled substances have the potential for abuse and dependence and are controlled to protect the public health and safety.
Section 306 of the CSA (21 U.S.C. 826) requires the Attorney General to establish aggregate production quotas for each basic class of controlled substance listed in schedules I and II and for ephedrine, pseudoephedrine, and phenylpropanolamine. This responsibility has been delegated to the Administrator of the DEA. 28 CFR 0.100(b).
The DEA established the initial 2015 aggregate production quotas for controlled substances in schedules I and II and the assessment of annual needs for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine on September 8, 2014. 79 FR 53216. That notice stated that the DEA could adjust, as needed, the established aggregate production quotas and assessment of annual needs in accordance with 21 CFR 1303.13 and 21 CFR 1315.13. The proposed adjusted 2015 aggregate production quotas for controlled substances in schedules I and II and assessment of annual needs for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine were subsequently published in the
Consideration has been given to the criteria outlined in the July 8, 2015, notice of proposed adjusted aggregate production quotas and assessment of annual needs, 80 FR 39156, in accordance with 21 CFR 1303.13 and 21 CFR 1315.13. Five companies submitted timely comments regarding twelve schedule I and II controlled substances. These comments suggested that the proposed adjusted aggregate production quotas for codeine (for sale), fentanyl, gamma hydroxybutric acid, hydrocodone (for sale), methadone, methadone intermediate, methylphenidate, morphine (for conversion), oripavine, oxycodone (for sale), oxymorphone (for conversion), and oxymorphone (for sale) were insufficient to provide for the estimated medical, scientific, research, and industrial needs of the United States, for export requirements, and for the establishment and maintenance of reserve stocks. The DEA did not receive any comments related to the proposal not to adjust the 2015 assessment of annual needs for ephedrine, pseudoephedrine, and phenylpropanolamine.
In accordance with 21 CFR 1303.13, the DEA has taken into consideration the above comments along with the relevant 2014 year-end inventories, initial 2015 manufacturing and import quotas, 2015 export requirements, actual and projected 2015 sales, research and product development requirements, and the additional quota applications received. Upon consideration of the above, the Administrator determined that the proposed adjusted 2015 aggregate production quotas for dihydroetorphine, ethylmorphine, etorphine HCl, racemethorphan, racemorphan, methylphenidate, and oxycodone (for sale) required additional consideration and hereby further adjusts the proposed 2015 aggregate production quotas for these substances. Regarding codeine (for sale), fentanyl, gamma hydroxybutric acid, hydrocodone (for sale), methadone, methadone intermediate, morphine (for conversion), oripavine, oxymorphone (for conversion), and oxymorphone (for sale) the Administrator hereby determines that the proposed adjusted 2015 aggregate production quotas for these substances as published in the
As described in the previously published notice establishing the 2015 aggregate production quotas and assessment of annual needs, the DEA has specifically considered that inventory allowances granted to individual manufacturers may not always result in the availability of sufficient quantities to maintain an adequate reserve stock pursuant to 21 U.S.C. 826(a), as intended.
Pursuant to the above, the Administrator hereby finalizes the 2015 aggregate production quotas for the following schedule I and II controlled substances and the 2015 assessment of annual needs for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine, expressed in grams of anhydrous acid or base, as follows:
Aggregate production quotas for all other schedule I and II controlled substances included in 21 CFR 1308.11 and 1308.12 remain at zero.
Wage and Hour Division, Department of Labor.
Notice.
The Wage and Hour Division (WHD) of the U.S. Department of Labor (the Department) is issuing this notice to announce the applicable minimum wage rate to be paid to workers performing work on or in connection with Federal contracts covered by Executive Order 13658, beginning January 1, 2016.
Executive Order 13658, Establishing a Minimum Wage for Contractors (the Executive Order or the Order), was signed by President Barack Obama on February 12, 2014, and raised the hourly minimum wage paid by contractors to workers performing work on covered Federal contracts to: $10.10 per hour, beginning January 1, 2015; and beginning January 1, 2016, and annually thereafter, an amount determined by the Secretary of Labor (the Secretary) in accordance with the methodology set forth in the Order.
Pursuant to Executive Order 13658 and its implementing regulations at 29 CFR part 10, notice is hereby given that beginning January 1, 2016, the Executive Order minimum wage rate that generally must be paid to workers performing work on or in connection with covered contracts is $10.15 per hour. Notice is also hereby given that, beginning January 1, 2016, the required minimum cash wage that generally must be paid to tipped employees performing work on or in connection with covered contracts is $5.85 per hour.
This notice is effective on September 16, 2015.
Robert Waterman, Acting Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of this notice may be obtained in alternative formats (Large Print, Braille, Audio Tape, or Disc), upon request, by calling (202) 693-0023 (not a toll-free number). TTY/TTD callers may dial toll-free (877) 889-5627 to obtain information or request materials in alternative formats.
Executive Order 13658 was signed by President Barack Obama on February 12, 2014, and raised the hourly minimum wage paid by contractors to workers performing work on or in connection with covered Federal contracts to $10.10 per hour, beginning January 1, 2015; and beginning January 1, 2016, and annually thereafter, an amount determined by the Secretary pursuant to the Order.
The Executive Order and its implementing regulations require the Secretary to determine the applicable minimum wage rate to be paid to workers performing work on or in connection with covered contracts on an annual basis, beginning January 1, 2016.
(i) Not less than the amount in effect on the date of such determination;
(ii) Increased from such amount by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) (United States city average, all items, not seasonally adjusted), or its successor publication, as determined by the Bureau of Labor Statistics (BLS); and
(iii) Rounded to the nearest multiple of $0.05.
Section 2(b) of the Executive Order further provides that, in calculating the annual percentage increase in the CPI for purposes of determining the new minimum wage rate, the Secretary shall compare such CPI for the most recent month, quarter, or year available (as selected by the Secretary prior to the first year for which a minimum wage is in effect) with the CPI for the same month in the preceding year, the same quarter in the preceding year, or the preceding year, respectively.
Once a determination has been made with respect to the new minimum wage rate to be paid to workers performing work on or in connection with covered contracts, the Executive Order and its implementing regulations require the Secretary to notify the public of the applicable minimum wage rate on an annual basis at least 90 days before any new minimum wage is to take effect.
Section 3 of the Executive Order requires contractors to pay tipped employees covered by the Order performing on or in connection with covered contracts an hourly cash wage of at least $4.90, beginning on January 1, 2015, provided the employees receive sufficient tips to equal the Executive Order minimum wage rate under section 2 of the Order when combined with the cash wage.
In accordance with the methodology set forth in the Executive Order and summarized above, the Department must first determine the annual percentage increase in the CPI-W (United States city average, all items, not seasonally adjusted) as published by BLS in order to determine the new Executive Order minimum wage rate. In calculating the annual percentage increase in the CPI, the Department must compare the CPI-W for the most recent year available with the CPI-W for the preceding year. The Department therefore compares the percentage change in the CPI-W between the most recent year (
In order to determine the Executive Order minimum wage rate beginning January 1, 2016, the Department therefore calculated the CPI-W for the most recent year by averaging the CPI-W for the four most recent quarters, which consist of the first two quarters of 2015 and the last two quarters of 2014 (
As noted above, section 3 of the Executive Order requires contractors to pay tipped employees covered by the Order performing on or in connection with covered contracts an hourly cash wage of at least $4.90, beginning January 1, 2015, provided the employees receive sufficient tips to equal the Executive Order minimum wage rate under section 2 of the Order when combined with the cash wage.
In order to determine the minimum hourly cash wage that must be paid to tipped employees performing on or in connection with covered contracts beginning January 1, 2016, the Department first calculated that 70 percent of the new Executive Order minimum wage rate of $10.15 is $7.11. The Executive Order provides that the current minimum hourly cash wage of $4.90 must increase by the lesser of $0.95 or the amount necessary for the hourly cash wage to equal 70 percent of the applicable Executive Order minimum wage. Because $0.95 is less than $2.21 (the amount necessary for the hourly cash wage to reach 70 percent of $10.15), the hourly cash wage must increase by $0.95.
The new minimum hourly cash wage that must generally be paid to tipped workers performing on or in connection with covered contracts beginning January 1, 2016 is therefore $5.85 per hour.
Appendix A to this notice provides a comprehensive chart of the CPI-W data published by BLS that the Department utilized to calculate the new Executive Order minimum wage rate based on the methodology explained herein. Appendix B to this notice sets forth an updated version of the Executive Order 13658 poster that the Department
Executive Office of the President, Office of Management and Budget.
Notice.
By virtue of the authority vested in the President by Section 2(a) of Pub. B. 87-603 (76 Stat. 593; 42 U.S.C. 2652), and delegated to the Director of the Office of Management and Budget (OMB) by the President through Executive Order No. 11541 of July 1, 1970, the rates referenced below are hereby established. These rates are for use in connection with the recovery from tortiously liable third persons for the cost of inpatient medical services furnished by military treatment facilities through the Department of Defense. They are the same rates as the Adjusted Standardized Amounts inpatient third party reimbursement rates that became effective October 1, 2014, for billing medical insurers, but require a different approval authority for the purpose of billing for tort liability. The rates have been established in accordance with the requirements of OMB Circular A-25, requiring reimbursement of the full cost of all services provided. The
National Archives and Records Administration (NARA)
Notice of new General Records Schedule (GRS) Transmittal 25
NARA is issuing a new General Records Schedule (GRS) via GRS Transmittal 25. The GRS provides agencies with mandatory disposition instructions for administrative records common to several or all Federal agencies. Transmittal 25 announces changes we have made to the GRS since we published Transmittal 24 in August 2015. We are concurrently disseminating Transmittal 25 (the memo and the accompanying records schedule and FAQ document) directly to each agency's records management official and have posted it on NARA's Web site.
This transmittal is effective the date it publishes in the
You can find this transmittal on NARA's Web site at
For more information about this notice or to obtain paper copies of the GRS, contact Kimberly Keravuori, External Policy Program Manager, at
You may contact NARA's GRS Team (within Records Management Services in the National Records Management Program, Office of the Chief Records Officer) with general questions about the GRS at
Your agency's records officer may contact the NARA appraiser or records analyst with whom your agency normally works for support in carrying out this transmittal and the revised portions of the GRS. We have posted a list of the appraisal and scheduling work group and regional contacts on our Web site at
GRS Transmittal 25 is the issuing memo for newly-revised portions of the General Records Schedule (GRS). We are completely rewriting the GRS over the course of a five-year project. We published the master plan for that project in 2013 under records management memo AC 02.2013 (
GRS Transmittal 25 contains one new schedule: GRS 6.1, Email Managed under a Capstone Approach, and an accompanying frequently-asked-questions (FAQ) document. Transmittal 25 does not supersede GRS Transmittal 24; you should use it in concert with Transmittal 24, which publishes all other GRSs.
We issued Transmittal 24 just a few weeks ago, on August 18, 2015. Because that transmittal superseded a considerable number of old GRS items, we permitted agencies six months in which to take certain actions required to update their manuals. Transmittal 24 needs to remain a separate publication until that six months has elapsed so that agencies can be clear on the responsibilities arising from that document. We will incorporate the new schedule from Transmittal 25, along with the schedules contained in
None. Transmittal 25 covers records never before scheduled by the GRS.
When you send records to a Federal Records Center for storage, you should cite the records' legal authority—the “DAA” number—in the “Disposition Authority” column of the table. For other references, use the schedule and item number. For example, cite “DAA-GRS-2014-0001-0001 (GRS 6.1, item 010).”
If your agency has chosen to use the Capstone approach to managing email, you may use GRS 6.1 provided your agency submits NA-1005 for NARA review. An agency may not implement GRS 6.1 until NARA reviews and approves the agency's NA-1005 submission. Submit form NA-1005 to
NARA regulations (36 CFR 1226.12(a)) require agencies to disseminate GRS changes within six months of receipt.
If you do not have an already existing agency-specific disposition authority but wish to apply a retention period that differs from that specified in the GRS, you must create a records schedule in the Electronic Records Archives and submit it to NARA for approval.
National Endowment for the Humanities.
Notice of meetings.
The National Endowment for the Humanities will hold seventeen meetings of the Humanities Panel, a federal advisory committee, during October, 2015. The purpose of the meetings is for panel review, discussion, evaluation, and recommendation of applications for financial assistance under the National Foundation on the Arts and Humanities Act of 1965.
See
The meetings will be held at Constitution Center at 400 7th Street SW., Washington, DC 20506. See
Lisette Voyatzis, Committee Management Officer, 400 7th Street SW., Room 4060, Washington, DC 20506; (202) 606-8322;
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.), notice is hereby given of the following meetings:
1.
This meeting will discuss applications on the subject of U.S. History and Culture: Social History, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
2.
This meeting will discuss applications for the Humanities Initiatives at Community Colleges grant program, submitted to the Division of Education Programs.
3.
This meeting will discuss applications on the subject of U.S. History and Culture: Colonial Era to Early 1900s, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
4.
This meeting will discuss applications for the Humanities Initiatives at Community Colleges grant program, submitted to the Division of Education Programs.
5.
This meeting will discuss applications on the subject of Literature, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
6.
This meeting will discuss applications for the Humanities Initiatives at Community Colleges grant program, submitted to the Division of Education Programs.
7.
This meeting will discuss applications for the Humanities Initiatives at Community Colleges grant program, submitted to the Division of Education Programs.
8.
This meeting will discuss applications on the subjects of American Studies: Folkways and Popular Culture, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
9.
This meeting will discuss applications on the subjects of New World Archeology and Cultures, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
10.
This meeting will discuss applications on the subjects of Arts and Culture for Media Projects: Production Grants, submitted to the Division of Public Programs.
11.
This meeting will discuss applications on the subject of U.S. History and Culture: African American Studies, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
12.
This meeting will discuss applications for Enduring Questions: Pilot Course Grants, submitted to the Division of Education Programs.
13.
This meeting will discuss applications on the subjects of World Arts and Culture, for Museums, Libraries, and Cultural Organizations: Implementation Grants, submitted to the Division of Public Programs.
14.
This meeting will discuss applications on the subject of American Studies: Media Studies, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
15.
This meeting will discuss applications on the subject of History, for Media Projects: Production Grants, submitted to the Division of Public Programs.
16.
This meeting will discuss applications on the subject of Linguistics, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
17.
This meeting will discuss applications on the subject History, for Media Projects: Production Grants, submitted to the Division of Public Programs. Because these meetings will include review of personal and/or proprietary financial and commercial information given in confidence to the agency by grant applicants, the meetings will be closed to the public pursuant to sections 552b(c)(4) and 552b(c)(6) of Title 5, U.S.C., as amended. I have made this determination pursuant to the authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee Meetings dated July 19, 1993.
Nuclear Regulatory Commission.
License amendment application; opportunity to request a hearing and to petition for leave to intervene; order.
The U.S. Nuclear Regulatory Commission (NRC) has received an application from Uranerz Energy Corporation (Uranerz) for amendment of Source Materials License SUA-1597 for the Nichols Ranch Uranium Project. The amendment would authorize the recovery of uranium by in situ leach (ISL) extraction techniques from the Jane Dough Unit. The amendment request contains sensitive unclassified non-safeguards information (SUNSI).
A request for a hearing or petition for leave to intervene must be filed by November 16, 2015. Any potential party as defined in § 2.4 of Title 10 of the
Please refer to Docket ID NRC-2015-0199 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
David D. Brown, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7677; email:
The NRC has received, by letter dated May 8, 2014 (Package ADAMS Accession No. ML14164A274), an application to amend Uranerz's Source Materials License SUA-1597 for the Nichols Ranch Uranium Project in Campbell and Johnson Counties, Wyoming. The proposed amendment would authorize the recovery of uranium by ISL extraction techniques from the Jane Dough Unit. This application contains Sensitive Unclassified Non-Safeguards Information (SUNSI). Uranerz revised its May 8, 2014, application on October 29, 2014 (ADAMS Accession No. ML14309A118); April 13, 2015 (ADAMS Accession No. ML15118A063); and June 26, 2015 (ADAMS Accession No. ML15182A013).
An NRC administrative review found the application acceptable for a technical review (ADAMS Accession No. ML15189A458). Prior to approving the amendment request, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations. The NRC's findings will be documented in a safety evaluation report and an environmental assessment. The environmental assessment will be the subject of a subsequent notice in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the NRC's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth, with particularity, the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding. The petition must specifically explain the reasons why intervention should be permitted, with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also include the specific contentions that the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion that support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with NRC regulations, policies, and procedures. The Atomic Safety and Licensing Board will set the time and place for any prehearing conferences and evidentiary hearings, and the appropriate notices will be provided.
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i)-(iii).
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by November 16, 2015. The petition must be filed in accordance with the filing instructions in the “Electronic Submission (E-Filing)” section of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may also have the opportunity to participate under 10 CFR 2.315(c).
If a hearing is granted, any person who does not wish, or is not qualified, to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Persons desiring to make a limited appearance are requested to inform the Secretary of the Commission by November 16, 2015.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing SUNSI.
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication of this notice will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly-available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline. This provision does not extend the time for filing a request for a hearing and petition to intervene, which must comply with the requirements of 10 CFR 2.309.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and need for access, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) officer if that officer has been designated to rule on information access issues.
H. Review of Grants of Access. A party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
It is so ordered.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Standard review plan-draft section revision; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is soliciting public comments on proposed changes to the “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR Edition,” (NUREG-0800) for changes to 33 individual sections of Chapter 7, “Instrumentation and Controls,” as listed in the table in Section IV of this notice entitled, Availability of Documents.
Comments must be filed no later than November 16, 2015. Comments received after this date will be considered, if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
• Federal Rulemaking Web site: Go to
• Mail comments to: Cindy Bladey, Office of Administration, Mail Stop: OWFN-12-H8, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
For additional direction on accessing information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Michael S. Jones, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-0189, email:
Please refer to Docket ID NRC-2015-0211 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this action by the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Please include Docket ID NRC-2015-0211 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC seeks public comment on the proposed draft revisions of Standard Review Plan (SRP) sections of Chapter 7 listed above. These sections have been developed to assist the NRC staff review the design of instrumentation and controls and auxiliary systems under parts 50 and 52 of Title 10 of the
Following the NRC staff's evaluation of public comments, the NRC intends to finalize the proposed revisions of the subject SRP Sections in ADAMS and post them on the NRC's public Web site at
Issuance of these draft SRP sections, if finalized, would not constitute backfitting as defined in 10 CFR 50.109 (the Backfit Rule) or otherwise be inconsistent with the issue finality provisions in 10 CFR part 52. The NRC's position is based upon the following considerations:
1.
The SRP provides internal guidance to the NRC staff on how to review an application for NRC regulatory approval in the form of licensing. Changes in internal staff guidance are not matters for which either nuclear power plant applicants or licensees are protected under either the Backfit Rule or the issue finality provisions of 10 CFR part 52.
2.
The NRC staff does not intend to impose or apply the positions described in the draft SRP to existing licenses and regulatory approvals. Hence, the issuance of a final SRP—even if considered guidance within the purview of the issue finality provisions in 10 CFR part 52—would not need to be evaluated as if it were a backfit or as being inconsistent with issue finality provisions. If, in the future, the NRC staff seeks to impose a position in the SRP on holders of already issued licenses in a manner that does not provide issue finality as described in the applicable issue finality provision, then the staff must make the showing as set forth in the Backfit Rule or address the criteria for avoiding issue finality as described in the applicable issue finality provision.
3.
Applicants and potential applicants are not, with certain exceptions, protected by either the Backfit Rule or any issue finality provisions under 10 CFR part 52. Neither the Backfit Rule nor the issue finality provisions under 10 CFR part 52—with certain exclusions—were intended to apply to every NRC action that substantially changes the expectations of current and future applicants. The exceptions to the general principle are applicable whenever an applicant references a 10 CFR part 52 license (
The documents identified in Table 1 below are available to interested persons through one or more of the following methods, as indicated.
The NRC may post materials related to these documents, including public comments, on the Federal rulemaking Web site at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Application for direct transfer of license; opportunity to comment, request a hearing, and petition for leave to intervene; order.
The U.S. Nuclear Regulatory Commission (NRC) received and is considering approval of an application filed by FirstEnergy Nuclear Operating Company (FENOC) on June 30, 2015. The application seeks NRC approval of the direct transfer of the leased interests in NPF-58 for Perry Nuclear Power Plant, Unit 1, from the current holder, the Ohio Edison Company (OE), to FirstEnergy Nuclear Generation, LLC (FENGen). The NRC is also considering amending the facility operating license for administrative purposes to reflect the proposed transfer. The application contains sensitive unclassified non-safeguards information (SUNSI).
Comments must be filed by October 16, 2015. A request for a hearing must be filed by October 6, 2015. Any potential party as defined in § 2.4 of Title 10 of the
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
• Federal Rulemaking Web site: Go to
• Email comments to:
• Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301-415-1101.
• Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
• Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal workdays; telephone: 301-415-1677.
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Kimberly Green, Office of Nuclear Reactor Regulation, telephone: 301-415-1627, email:
Please refer to Docket ID NRC-2015-0212 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
• Federal rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Please include Docket ID NRC-2015-0212, facility name, unit number, application date, and subject in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The NRC is considering the issuance of an order under 10 CFR 50.80 approving the direct transfer of Perry Nuclear Power Plant, Unit 1, NPF-58, to the extent currently held by OE. The transfer would be to FENGen. The NRC is also considering amending the facility operating license for administrative purposes to reflect the proposed transfer.
Following approval of the proposed direct transfer of control of the license, FENGen would acquire 12.58 percent of OE's ownership interest in the facility.
No physical changes to the Perry Nuclear Power Plant, Unit 1, or operational changes are being proposed in the application.
The NRC's regulations at 10 CFR 50.80 state that no license, or any right thereunder, shall be transferred, directly or indirectly, through transfer of control of the license, unless the Commission gives its consent in writing. The Commission will approve an application for the direct transfer of a license if the Commission determines that the proposed transferee is qualified to hold the license, and that the transfer is otherwise consistent with applicable provisions of law, regulations, and orders issued by the Commission.
Before issuance of the proposed conforming license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations.
As provided in 10 CFR 2.1315, unless otherwise determined by the Commission with regard to a specific application, the Commission has determined that any amendment to the license of a utilization facility, which does no more than conform the license to reflect the transfer action involves no significant hazards consideration. No contrary determination has been made with respect to this specific license amendment application. In light of the generic determination reflected in 10 CFR 2.1315, no public comments with respect to significant hazards considerations are being solicited, notwithstanding the general comment procedures contained in 10 CFR 50.91.
Within 30 days from the date of publication of this notice, persons may submit written comments regarding the license transfer application, as provided for in 10 CFR 2.1305. The Commission will consider and, if appropriate, respond to these comments, but such comments will not otherwise constitute part of the decisional record. Comments should be submitted as described in the
Within 20 days from the date of publication of this notice, any person(s) whose interest may be affected by the Commission's action on the application may request a hearing and intervention via electronic submission through the NRC's E-filing system. Requests for a hearing and petitions for leave to intervene should be filed in accordance with the Commission's rules of practice set forth in Subpart C “Rules of General Applicability: Hearing Requests, Petitions to Intervene, Availability of Documents, Selection of Specific Hearing Procedures, Presiding Officer Powers, and General Hearing Management for NRC Adjudicatory Hearings,” of 10 CFR part 2. In particular, such requests and petitions must comply with the requirements set forth in 10 CFR 2.309, which is available at the NRC's PDR, located at O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC regulations are accessible electronically from the NRC Library on the NRC's public Web site at
As required by 10 CFR 2.309, a request for hearing or petition for leave to intervene must set forth with particularity the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding. The hearing request or petition must specifically explain the reasons why intervention should be permitted, with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor
For each contention, the requestor/petitioner must provide a specific statement of the issue of law or fact to be raised or controverted, as well as a brief explanation of the basis for the contention. Additionally, the requestor/petitioner must demonstrate that the issue raised by each contention is within the scope of the proceeding and is material to the findings that the NRC must make to support the granting of a license amendment in response to the application. The hearing request or petition must also include a concise statement of the alleged facts or expert opinion that support the contention and on which the requestor/petitioner intends to rely at the hearing, together with references to those specific sources and documents. The hearing request or petition must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact, including references to specific portions of the application for amendment that the petitioner disputes and the supporting reasons for each dispute. If the requestor/petitioner believes that the application for amendment fails to contain information on a relevant matter as required by law, the requestor/petitioner must identify each failure and the supporting reasons for the requestor's/petitioner's belief. Each contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who does not satisfy these requirements for at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with NRC regulations, policies, and procedures. The Atomic Safety and Licensing Board will set the time and place for any prehearing conferences and evidentiary hearings, and the appropriate notices will be provided.
Requests for hearing, petitions for leave to intervene, and motions for leave to file contentions after the deadline in 10 CFR 2.309(b) will not be entertained absent a determination by the presiding officer that the new or amended filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1).
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by October 6, 2015. The petition must be filed in accordance with the filing instructions in Section IV of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that under § 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may also have the opportunity to participate under 10 CFR 2.315(c).
If a hearing is granted, any person who does not wish, or is not qualified, to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Persons desiring to make a limited appearance are requested to inform the Secretary of the Commission by November 16, 2015.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
The Commission will issue a notice or order granting or denying a hearing request or intervention petition, designating the issues for any hearing that will be held and designating the Presiding Officer. A notice granting a hearing will be published in the
For further details with respect to this application, see the application dated June 30, 2015.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing SUNSI.
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication of this notice will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly-available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2)
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline. This provision does not extend the time for filing a request for a hearing and petition to intervene, which must comply with the requirements of 10 CFR 2.309.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and need for access, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) officer if that officer has been designated to rule on information access issues.
H. Review of Grants of Access. A party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
September 17, 2015, at 11:45 a.m.
Washington, DC.
Closed.
The General Counsel of the United States Postal Service has certified that the meeting may be closed under the Government in the Sunshine Act.
Requests for information about the meeting should be addressed to the Secretary of the Board, Julie S. Moore, at 202-268-4800.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
Nasdaq is proposing to amend Nasdaq Rule 7014, concerning the Exchange's Market Quality Incentive Programs, and Nasdaq Rule 7018, governing fees and credits assessed for execution and routing of securities.
The text of the proposed rule change is available at
In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
Nasdaq is proposing to amend Rule 7014 to increase a rebate it provides under the NBBO Program. Currently, the Exchange provides a rebate per share executed with respect to all other displayed orders (other than Designated Retail Orders, as defined in Rule 7018) in securities priced at $1 or more per share that provide liquidity and establish the NBBO. The rebate is in addition to any rebate or credit payable under Rule 7018(a) and the ISP and QMM Program under Rule 7014. To qualify for a $0.0004 per share executed rebate in New York Stock Exchange (“NYSE”)-listed securities (“Tape A”) or a $0.0002 per share executed rebate in Nasdaq-listed securities (“Tape C”) and in securities listed on exchanges other than Nasdaq and NYSE (“Tape B”) (collectively, the “Tapes”), a member firm must either (1) execute shares of liquidity provided in all securities through one or more of its Nasdaq Market Center MPIDs that represents 0.5% or more of Consolidated Volume
Nasdaq also proposes to amend Rule 7018 to add a new credit tier for certain displayed quotes and orders, modify qualification criteria that a member firm must meet to receive certain credits under the rule, eliminate a credit provided for displayed Designated Retail Orders (“DRO”),
The Exchange is proposing to add a new credit of $0.0030 per share executed for displayed quotes and orders (other than Supplemental Orders or Designated Retail Orders) that provide liquidity under Rules 7018(a)(1), (2) and (3). To qualify for the credit, a member firm must have shares of liquidity provided in all securities through one or more of its Nasdaq Market Center MPIDs that represent 0.575% or more of Consolidated Volume during the month, including shares of liquidity provided with respect to securities that are listed on exchanges other than Nasdaq or NYSE that represent 0.15% or more of Consolidated Volume.
The Exchange is proposing to modify the criteria required to receive a credit for non-displayed orders (other than Supplemental Orders) that provide liquidity. Currently, the Exchange provides a $0.0025 per share executed credit for midpoint orders if the member firm provides an average daily volume of 5 million or more shares through midpoint orders during the month and either adds Customer
The Exchange is also proposing to eliminate the $0.0033 per share executed credit provided to member firms for displayed DROs for each of the Tapes under Rules 7018(a)(1)-(3). In a related change, the Exchange is eliminating the criteria a member firm must satisfy to receive a $0.0034 per share executed credit provided to member firms for displayed DROs in securities of each of the Tapes under Rules 7018(a)(1)-(3). Currently, to receive the $0.0034 per share executed credit a member firm must add Customer and/or Professional liquidity in Penny Pilot Options and/or Non- Penny Pilot Options of 1.40% or more of national customer volume in multiply-listed equity and ETF options classes in a month as pursuant to Chapter XV, Section 2 of the Nasdaq Options Market rules. As a consequence of the two proposed changes to these credits, a member firm that would have qualified for the $0.0033 per share executed credit will now instead qualify for a higher per share executed credit.
The Exchange is proposing to eliminate certain fee caps under Rule 7018 as well. Currently, under Rule 7018(a)(2) the Exchange assesses a charge of $0.0015 per share executed for DOT or LIST Orders in Tape A securities that execute in the NYSE opening or re-opening process, but limits the charge assessed member firms to no more than $5,000 per month when combined with the LIST orders that execute in the NYSEArca and NYSEAmex opening or re-opening process if member adds Customer and/or Professional liquidity in Penny Pilot Options and/or Non-Penny Pilot Options of 1.40% or more of national customer volume in multiply-listed equity and ETF options classes in a month as pursuant to Chapter XV, Section 2 of the Nasdaq Options Market Rules. The Exchange is eliminating the language concerning the cap and the criteria required to qualify for the fee cap.
The Exchange is also proposing to eliminate the fee caps applied to charges for LIST Orders in Tape B securities that execute in the NYSEArca and NYSEAmex opening or re-opening processes under Rule 7018(a)(3). Under the rule, such orders are assessed a charge of $0.0005 per share executed. Currently, the Exchange limits the total charges assessed a member firm for all LIST Orders that execute in the NYSEArca opening or re-opening process, to no more than $10,000 per month. The Exchange is proposing to eliminate this fee cap. In addition, the Exchange provides a second fee cap under the rule. This fee cap limits the total charges assessed for LIST Orders in Tape B securities that execute in the NYSEArca and NYSEAmex opening or re-opening processes when combined with DOT or LIST orders that execute in the NYSE opening process or reopening process to no more than $5,000 per month. To be eligible for this fee cap, a member firm must add Customer and/or Professional liquidity in Penny Pilot Options and/or Non-Penny Pilot Options of 1.40% or more of national customer volume in multiply-listed equity and ETF options classes in a month as pursuant to Chapter XV,
Lastly, the Exchange is proposing to decrease a charge assessed for LIST Orders that executes in the NYSEArca closing process. Currently, Nasdaq assesses a charge of $0.0010 per share executed for a LIST Order that executes in the NYSEArca closing process. The Exchange is proposing to reduce the charge from $0.0010 per share executed to $0.0005 per share executed.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that the proposed change to amend Rule 7014(g) is reasonable because it provides an opportunity for members that qualify to receive a higher per share executed rebate for all other displayed orders (other than Designated Retail Orders, as defined in Rule 7018) in Tape B securities priced at $1 or more per share that provide liquidity and establish the NBBO. Thus the rebate provides incentive to members to provide aggressively priced orders in Tape B securities that improve the market by setting the NBBO. Increasing the Tape B rebate is reflective of the Exchange's desire to improve the market on Nasdaq in Tape B securities in terms of setting the NBBO, which is currently not as robust as price setting in non-Tape B securities. Nasdaq believes the proposed change is equitable and not unfairly discriminatory because the $0.0004 per share executed rebate under the NBBO Program is available to all members on an equal basis and provides a rebate for activity that improves the Exchange's market quality through increased activity and by encouraging the setting of the NBBO. In this regard, the NBBO Program encourages higher levels of liquidity provision into the price discovery process and is consistent with the overall goals of enhancing market quality.
Nasdaq believes that the proposed new credit of $0.0030 per share executed provided to a member firm for displayed quotes and orders (other than Supplemental Orders or Designated Retail Orders) is reasonable because it provides incentive to member firms to improve the market for all participants by requiring certain levels of monthly Consolidated Volume in shares of liquidity provided in all securities through one or more of its Nasdaq Market Center MPIDs. A significant level of the required Consolidated Volume must be in shares of liquidity provided with respect to securities that are listed on exchanges other than Nasdaq or NYSE. As a consequence, the Exchange is both providing an incentive to member firms to improve the market in terms of liquidity in securities of all Tapes with an additional requirement that a certain amount of that liquidity be in Tape B securities, the levels of which Nasdaq has determined to increase relative to securities of the other Tapes on Nasdaq. Such improvement liquidity generally benefits the investing public. Nasdaq believes that the proposed change is consistent with an equitable allocation of fees and is not unfairly discriminatory because the Exchange will provide the credit to any member firm that qualifies under the criteria. In addition, the Exchange notes that the proposed change is consistent with the Exchange's approach of providing credits in return for certain market-improving activity that benefits all market participants.
Nasdaq believes that the proposed changes to the criteria required to receive a $0.0025 per share executed credit for midpoint orders under Nasdaq Rules 7018(a)(1)-(3) are reasonable because the Exchange has determined that removing the criteria may better promote the use of midpoint and non-displayed orders on the Exchange, which provide market-improving liquidity to all market participants. The Exchange believes that the removal of the rule text referencing RPI Orders is reasonable because there is no longer an RPI program on Nasdaq. Consequently, removing the text will help avoid any market participant confusion created by referencing a now-defunct program. The Exchange also believes that these proposed changes are equitable and not unfairly discriminatory because they will be applied uniformly to all market participants and to securities of all three Tapes. As such, all member firms transacting in midpoint orders will have the opportunity to receive the credit, regardless of their participation on NOM.
The Exchange believes the proposed changes to the credits provided for displayed DROs under Rules 7018(a)(1)-(3) are reasonable because they eliminate a lower credit, which did not have qualification criteria, and eliminate the criteria needed to qualify for a higher credit. As such, the proposed changes have the effect of increasing the credit provided to a member firm entering displayed DROs that would not have qualified under the deleted qualification criteria. Making the higher credit available to all market participants may encourage more activity in DROs, thus increasing the level of retail order liquidity available in Nasdaq. Retail orders are likely to reflect long-term investment intentions and therefore promote price discovery and dampen volatility to the benefit of all market participants. The change is consistent with an equitable allocation of fees and is not unfairly discriminatory because it broadens the availability of credit used as a means to encourage greater retail participation in Nasdaq. Because the presence of retail orders in the Nasdaq market has the potential to benefit all market participants, it is therefore equitable and not unfairly discriminatory to provide financial incentives with respect to such orders. Lastly, the Exchange believes that these proposed changes are equitable and not unfairly discriminatory because all members that add displayed DROs will receive a higher credit than under the current rule, which was previously only available if a member firm also provided certain levels of volume on NOM.
The Exchange believes that the proposed elimination of the fee caps applicable to DOT and LIST Orders participating in the opening or re-opening processes of the exchanges under Rules 7018(a)(2)-(3) are reasonable because Nasdaq has determined that restricting fee liability for DOT and LIST orders is not warranted at this time. The Exchange notes that it incurs fees in routing DOT and LIST orders for execution and,
The Exchange believes the proposed reduction in the charge assessed for LIST Orders that execute in the NYSEArca closing process is reasonable because the Exchange has determined to provide an additional incentive, in the form of a reduced charge, to member firms to enter LIST Orders on the Exchange that receive execution in the NYSEArca closing process. The Exchange also believes that the proposed reduction in the charge assessed for LIST Orders that execute in the NYSEArca closing process is equitable and not unfairly discriminatory because all members that enter LIST Orders NYSEArca-listed securities that are executed in the NYSEArca closing process will receive the lower charge. The Exchange notes that, although it currently charges a higher rate for LIST Orders in NYSEAmex securities that execute in the NYSEAmex closing process, it believes the proposed fee does not discriminate unfairly because the Exchange is providing incentive to market participants to improve the market on Nasdaq in LIST Orders in NYSEArca securities. The Exchange notes that LIST orders may provide liquidity to Nasdaq prior to executing in the closing cross of another exchange, thereby improving liquidity on Nasdaq.
Finally, Nasdaq notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, Nasdaq must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Nasdaq believes that the proposed rule change reflects this competitive environment because it is designed, in part, to increase credits and reduce charges for members that enhance the quality of Nasdaq's market.
Nasdaq does not believe that the proposed rule changes will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
With regard to the proposed changes, the Exchange is increasing a rebate in an effort to improve market quality. Similarly, the Exchange is providing a new credit to incentivize member firms to add liquidity in the market. Such changes may foster competition among exchanges and other market venues to provide similar incentives, which would benefit all market participants. The Exchange notes that it is eliminating fee caps, which the Exchange has determined is not economically warranted at this juncture. As a consequence, member firms will pay for all executed shares under the respective charges and not for a limited number. The Exchange is also effectively reducing requirements to receive certain credits and reduced fees in an effort to make such reduced fees and credits more attainable, which in turn would improve the market to the extent more member firms meet the remaining criteria required to receive such reduced fees and credits. The Exchange must weigh the costs of offering incentives to market participants against the desired benefit the Exchange seeks to achieve. To the extent these incentives achieve these goals, the Exchange may from time to time adjust the level of incentive to pare back the level of incentive. Conversely, to the extent the incentive is not effective, the Exchange may increase the incentive or adopt an alternative incentive. Such changes are reflective of robust competition among exchanges and other market venues. In sum, if the changes proposed herein are unattractive to market participants it is likely that Nasdaq will lose market share as a result. As such, the Exchange does not believe the proposed changes will place a burden on competition.
Written comments were neither solicited nor received.
The foregoing change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2015-105. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Options Fee Schedule (“Fee Schedule”). The Exchange proposes to implement the fee change effective September 1, 2015. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this filing is to modify the criteria used for Lead Market Makers and Market Makers (collectively, “Market Makers”) to qualify for the Monthly Posting Credit Tiers For Executions in Penny Pilot Issues and SPY (the “Posting Tiers”). The Exchange proposes to implement the fee change effective September 1, 2015.
Currently, Market Makers qualify for the Posting Tiers by achieving certain volume-based criteria based on average electronic executions per day.
• Select Tier: a Market Maker must meet an Average Daily Volume (“ADV”) of 30,000 contracts from Market Maker Posted Orders in both Penny Pilot and non-Penny Pilot issues;
• Super Tier: a Market Maker must meet either (i) an ADV of 80,000 contracts from Market Maker Posted Orders in both Penny Pilot and non-Penny Pilot issues or (ii) an ADV of 200,000 contracts combined from all orders in Penny Pilot Issues,
• Super Tier II: a Market Maker must meet an ADV of 200,000 contracts from Market Maker orders in all issues, and at least 110,000 of those contracts have to be from Posted Orders from both Penny Pilot and non-Penny Pilot issues.
The Exchange is proposing to replace the existing thresholds that are based on static ADV of contracts traded with market share criteria, specifically percentages of total industry customer equity and exchange traded fund (“ETF”) option ADV.
• Select Tier: a Market Maker would have to achieve at least 0.25% of Total Industry Customer Equity and ETF option ADV from Market Maker Posted Orders in both Penny Pilot and non-Penny Pilot issues;
• Super Tier: a Market Maker would have to achieve either (i) at least 0.65% of Total Industry Customer Equity and ETF option ADV from Market Maker Posted Orders in both Penny Pilot and non-Penny Pilot issues or (ii) at least 1.60% of Total Industry Customer Equity and ETF option ADV from all orders in Penny Pilot Issues, all account types, with at least 0.80% of Total Industry Customer Equity and ETF option ADV from Posted Orders in Penny Pilot Issues;
• Super Tier II: a Market Maker must achieve at least 1.60% of Total Industry Customer Equity and ETF option ADV
The Exchange is not proposing any changes to the amount of the Posting Credits for any of the tiers.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that modifying the qualification criteria for Market Maker Posting Credit Tiers is reasonable, equitable, and not unfairly discriminatory because it makes the Posting Tiers more consistently achievable as the Tiers will be less dependent on fluctuations in overall industry volume. The Exchange believes modifying the Posting Tiers based on achieving percentages of market share is also not unfairly discriminatory as it is based on the amount of business conducted on the Exchange and therefore rewards similar efforts month-to-month, while not resulting in windfalls during periods of heavy volumes, or penalizing firms focused on trading at NYSE Arca during months of overall lower volumes.
The Exchange believes modifying the Posting Tiers based on achieving percentages of market share is reasonable, equitable, and not unfairly discriminatory because the Exchange utilizes this criterion as a basis for determining posting credits to other market participants and this criterion is commonly used for this purpose by competing exchanges.
The Exchange also believes that the proposed change to the qualification criteria is reasonable, equitable, and not unfairly discriminatory, as the Posting Credits are intended to encourage quoting at the National Best Bid and Offer (“NBBO”) which in turn benefits both Customers and non-Customers by having narrower spreads available for execution.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
Moreover, because the proposed change continues to base the Posting Tiers on the amount of business conducted on the Exchange, it would apply equally to similarly-situated Marker Makers and would not impose a disparate burden on competition either among or between classes of market participants.
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act,”)
The Exchange proposes to amend the Exchange's Pricing Schedule under Section VIII, entitled “NASDAQ OMX PSX FEES,” with respect to execution and routing of orders in securities priced at $1 or more per share.
While the changes proposed herein are effective upon filing, the Exchange has designated that the amendments be operative on September 1, 2015.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend a charge and certain credits for order execution and routing applicable to the use of the order execution and routing services of the NASDAQ OMX PSX System (“PSX”) by member organizations for all securities traded at $1 or more per share.
The Exchange proposes to slightly decrease the charge to a member organization entering an order that executes in PSX from $0.0027 to $0.0026 per share executed in securities on exchanges other than Nasdaq and NYSE.
Phlx also proposes to increase the credit for non-displayed orders from $0.0020 to $0.0023 per share executed for all orders with midpoint pegging that provide liquidity, but simultaneously decrease the credit from $0.0005 to $0.0000 per share executed for other non-displayed orders that provide liquidity.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The proposed changes to the charge and credits in the fee schedule under the Exchange's Pricing Schedule under Section VIII are reflective of the Exchange's ongoing efforts to use pricing incentive programs to attract order flow to the Exchange and improve market quality. The goal of these pricing incentives is to provide meaningful incentives for members to increase their participation on the Exchange.
The Exchange believes that the slight decrease in the charge to a member organization entering an order that executes in PSX from $0.0027 to $0.0026 per share executed in securities on exchanges other than Nasdaq and NYSE is reasonable because it provides such member organizations with a modest benefit of entering orders on the PSX System of securities listed on exchanges other than Nasdaq and NYSE and should incentivize more participants in the market.
Phlx also believes that this proposed rule changes is consistent with an equitable allocation of fees and are not unfairly discriminatory because it is uniformly available to all members entering order that execute on PSX for securities listed on exchanges other than Nasdaq and NYSE and affects all such members equally and in the same way.
The Exchange is also proposing to increase the non-displayed order credit for non-displayed orders from $0.0020 to $0.0023 per share executed for all orders with midpoint pegging that provide liquidity, but simultaneously decrease the credit from $0.0005 to $0.0000 per share executed for other non-displayed orders that provide liquidity. The Exchange believes the proposed change to increase the credit for all non-displayed orders with midpoint pegging that provide liquidity is reasonable because it provides
The Exchange believes that the proposed rule changes to non-displayed order credits are consistent with an equitable allocation of fees and are not unfairly discriminatory because they are uniformly available to all members and affect all members equally and in the same way.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
In this instance, the slight decrease to the charge to member organizations entering orders in the PSX System and to credits for non-displayed orders with midpoint pegging that provide liquidity and for other non-displayed orders that provide liquidity do not impose a burden on competition because Exchange membership is optional and is the subject of competition from other exchanges. These adjustments are reflective of the intent to increase the order flow on the Exchange. For these reasons, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets. Moreover, because there are numerous competitive alternatives to the use of the Exchange, it is likely that the Exchange will lose market share as a result of the changes if they are unattractive to market participants.
Accordingly, Phlx does not believe that the proposed rule changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
This matter comes before the Commission on the Options Clearing Corporation's (“OCC”) motion to lift the
BATS Global Markets, Inc. (“BATS”), BOX Options Exchange LLC (“BOX”), KCG Holdings, Inc. (“KCG”), Miami International Securities Exchange, LLC (“MIAX”), and Susquehanna International Group, LLP (“SIG”) (collectively “Petitioners”) each filed petitions for review of the Approval Order, challenging the action taken by delegated authority. The filing of the petitions automatically stayed the Approval Order pursuant to Commission Rule of Practice 431(e).
In response to the automatic stay imposed by the filing of the petitions to review the Approval Order, OCC filed a Motion to Lift the Stay on April 2, 2015, citing the public policy reasons for implementing the Capital Plan. The Petitioners responded, arguing that continuing the automatic stay is appropriate in light of the important policy and competition issues raised by the Approval Order.
The Commission finds that it is in the public interest to lift the stay during the pendency of the Commission's review. Under the circumstances of this case, the Commission believes, on balance, that strengthening the capitalization of a systemically important clearing agency, such as OCC, is a compelling public interest. The Commission also believes that the concerns raised by the Petitioners regarding potential monetary and competitive harm do not currently justify maintaining the stay during the pendency of the Commission's review. Nor does the Commission believe that lifting the stay precludes meaningful review of the Approval Order.
For the reasons stated above, it is hereby:
The order approving such proposed rule change shall remain in effect.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE proposes to amend its Schedule of Fees to extend its Managed Data Access Service program for the sale of a number of real-time market data products. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
On June 6, 2013 the ISE implemented a temporary Managed Data Access Service program that established a new pricing and distribution model for the sale of a number of real-time market data products.
The current fees for the Managed Data Access Service are as follows:
The Exchange charges a fee to each Managed Data Access Distributor of $2,500 per month for the Depth Feed, $1,500 for each of the Top Quote Feed and Spread Feed, and $1,000 per month for the Order Feed. The Exchange also charges a fee for each IP address at Managed Data Access Recipients that receive market data redistributed by a Managed Data Access Distributor, which is $750 per month for the Depth Feed, $500 per month for each of the Top Quote Feed and Spread Feed, and $350 per month for the Order Feed.
The Exchange is not proposing to make any changes to the fees currently charged under the Managed Data Access Service program.
The Exchange believes that the proposed rule change is consistent with the requirements of the Securities Exchange Act of 1934 (the “Act”),
In accordance with Section 6(b)(8) of the Act,
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of
The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Exchange stated that waiver of the operative delay will permit the Exchange to continue to provide access to subscribers interested in the Managed Data Access Service program. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. Therefore, the Commission hereby waives the operative delay and designates the proposed rule change operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 20, 2015, Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and issues raised in the comment letters. Accordingly, the Commission, pursuant to Section
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 28, 2015, ICE Clear Credit LLC (“ICC”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
In the Initial Rule Filing, ICC proposed changes to the ICC Risk Management Framework to incorporate risk model enhancements related to the General Wrong Way Risk (“GWWR”) methodology. More specifically, ICC proposed changing the ICC Risk Management Framework to extend the GWWR framework to the portfolio level. Currently, there exists no Clearing Participant-level cumulative GWWR requirement incorporated in the Jump-to-Default calculations. The uncollateralized WWR exposure of a Risk Factor needs to exceed its corresponding WWR threshold in order to trigger WWR collateralization. According to ICC, the proposed enhancement is introduced to account for the potential accumulation of portfolio WWR through Risk Factor specific WWR exposures. ICC asserts that under the proposed approach, if the cumulative uncollateralized exposure exceeds a pre-determined portfolio GWWR threshold, the amount above the threshold is collateralized.
On September 1, 2015, ICC filed Amendment No. 1 to the proposed rule change. ICC stated that the purpose of the amendment was to provide further clarity regarding the risk enhancements described in the Initial Rule Filing. ICC proposed to revise its Risk Management Framework to include specific language regarding the pre-determined portfolio GWWR threshold. Specifically, ICC added clarifying language setting the minimum and maximum value of the parameter. According to ICC, the value of the parameter must be greater than, or equal to, the value of the greatest Risk Factor specific WWR threshold level. ICC stated that the parameter is further constrained not to exceed the sum of the minimum value and the value of the average of all Risk Factor-specific WWR thresholds (excluding the greatest Risk Factor specific WWR threshold). ICC proposes to set the initial GWWR global parameter equal to the minimum value, the greatest Risk Factor specific WWR threshold, and will not increase the parameter value prior to March 31, 2016.
Additionally, in Amendment No. 1, ICC added clarifying language regarding how the Risk Factor specific WWR loss thresholds are determined. The proposed revisions clarify that the risk enhancements described in the Initial Rule Filing will apply to all products cleared by ICC within the Sovereign and Banking
On September 8, 2015, ICC filed Amendment No. 2 to the proposed rule change. ICC stated that the purpose of the amendment was to provide further clarity regarding the risk enhancements described in the Initial Rule Filing. In Amendment No. 2, ICC revised its Risk Management Framework to include specific language regarding the jump-to-default requirement related to the exposure to single name (“SN”) risk factors (“RFs”), which reflect outright and index-derived single name positions. Additionally, ICC added language clarifying that the GWWR analysis is applied to all cleared SN RFs within the Sovereign and Banking sectors, is applicable to post index-decomposition positions and reflects the combined exposure resulting from outright and index-derived SN positions. ICC also added language regarding the determination of correlation parameters needed for GWWR computations, specifically the quantification of loss-given-default resulting from correlated defaults. Finally, ICC updated its Stress Testing Framework to include additional analysis related to GWWR exposures for Clearing Participants' portfolios. As further described in the Stress Testing Framework, a portfolio of highly correlated RFs is created and is further subjected to additional stress testing analyses to uncover pockets of increased risk due to adverse market realizations for the highly correlated factors. ICC has also represented that it intends to submit a separate filing regarding its Stress Testing Framework, which contains the aforementioned enhanced stress testing analyses.
Section 19(b)(2)(C) of the Act
The Commission finds that ICC's proposed revisions to its Risk Management Framework are consistent with the requirements of Section 17A of the Act
As discussed above, Amendments No. 1 and 2 are intended to provide further clarity and specificity regarding the proposed rule change. Specifically, the amendments provide further details regarding how ICC determines certain relevant parameters in its GWWR framework and describe enhancements to ICC's stress testing to monitor GWWR exposures. The Commission therefore believes that the modifications by Amendments No. 1 and 2 to the Initial Rule Filing are designed to promote the prompt and accurate clearance and settlement of securities transactions and derivative agreements, contracts and transactions cleared by ICC and, in general, to protect investors and the public interest, consist with Section 17A(b)(3)(F) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ICC-2015-009 and should be submitted on or before October 7, 2015.
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
Pursuant to section 19(b)(1)
The Exchange proposes to list and trade shares of the Global Currency Gold Fund under NYSE Arca Equities Rule 8.201. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade (“Shares”) of the Global Currency Gold Fund (the “Fund”), a series of the Global Gold Currency Trust (Trust”), under NYSE Arca Equities Rule 8.201.
The Fund will not be registered as an investment company under the Investment Company Act of 1940
The Sponsor of the Fund and the Trust will be WGC USA Asset Management Company, LLC (the “Sponsor”).
The Commission has previously approved listing on the Exchange under NYSE Arca Equities Rules 5.2(j)(5) and 8.201 of other precious metals and gold-based commodity trusts, including the Merk Gold Trust;
Gold bullion typically is priced and traded throughout the world in U.S. dollars. The Fund has been established as an alternative to traditional dollar-based gold investing. Although investors will purchase shares of the Fund with U.S. dollars, the Fund is designed to provide investors with the economic effect of holding gold in terms of a specific basket of major, non-U.S. currencies, such as the euro, Japanese yen and British pound (each, a “Reference Currency”), rather than the U.S. dollar. Specifically, the Fund will seek to track the performance of the Global Gold Index (ex-USD), less Fund expenses. The Global Gold Index (ex-USD), or the “Index”, represents the daily performance of a long position in physical gold and a short position in each of the Reference Currencies.
The U.S. dollar value of an investment in Shares of the Fund would therefore be expected to increase when both the price of Gold goes up and the value of the U.S. dollar increases against the value of the Reference Currencies (as weighted in the Index). Conversely, the U.S. dollar value of an investment would be expected to decrease when the price of Gold goes down and the value of the U.S. dollar decreases against the value of the Reference Currencies (as weighted in the Index). If Gold increases and the value of the U.S. dollar decreases against the value of the Reference Currencies, or vice versa, the net impact of these changes will determine the value of the Shares of the Fund on a daily basis.
The Fund is a passive investment vehicle and is designed to track the performance of the Index regardless of: (i) The value of Gold or any Reference Currency; (ii) market conditions; and (iii) whether the Index is increasing or decreasing in value. The Fund's holdings generally will consist entirely of Gold. Substantially all of the Fund's Gold holdings will be delivered by Authorized Participants (defined below) in exchange for Fund Shares. The Fund will not hold any of the Reference Currencies. The Fund generally will not hold U.S. dollars (except from time to time in very limited amounts to pay expenses). The Fund's Gold holdings will not be managed and the Fund will not have any investment discretion.
The Fund's net asset value (“NAV”) will go up or down each Business Day based primarily on two factors.
Because the Fund generally will hold only Gold bullion (and not U.S. dollars or the Reference Currencies), the economic impact of changes to the value of the Reference Currencies against the U.S. dollar from day to day is reflected in the Fund by moving an amount of Gold ounces of equivalent value in or out of the Fund. Therefore, the Fund will seek to track the performance of the Index by entering into a transaction each Business Day with the Gold Delivery Provider pursuant to which Gold is moved in or out of the Fund.
The Fund does not intend to enter into any other Gold transactions other than with the Gold Delivery Provider as described in the Gold Delivery Agreement (except that the Fund may sell Gold to cover Fund expenses), and the Fund does not intend to hold any Reference Currency or enter into any currency transactions.
The Index is maintained and calculated by a major third-party data and index provider (the “Index Provider”). The Index Provider has licensed the Index to the Sponsor for use in connection with the Trust and the Fund. The Index Provider will not be affiliated with the Fund's trust, the Fund, the Sponsor, the trustee for the Fund's trust, the Administrator, the Transfer Agent, the Custodian or Gold Delivery Provider. The Index Provider is not affiliated with a broker-dealer. The Index Provider has adopted policies and procedures designed to prevent the spread of material non-public information about the Index and maintains “fire walls” around the personnel who have access to information concerning changes and adjustments to the Index.
The description of the strategy and methodology underlying the Index, which will be identified and described in the Registration Statement, is based on rules formulated by the Index Provider (the “Index Rules”). The Index Rules, which will be described in the Registration Statement, will govern the calculation and constitution of the Index and other decisions and actions related to its maintenance. The Index is described as a “notional” or “synthetic” portfolio or strategy because there is no actual portfolio of assets to which any person is entitled or in which any person has any ownership interest. The Index references certain assets (
The Index values Gold on a daily basis using the “Gold Price.” The Gold Price generally is the LBMA Gold Price PM (though other sources may be used if the LBMA Gold Price PM is delayed or unavailable). The “LBMA Gold Price” means the price per troy ounce of Gold stated in U.S. dollars as set via an electronic auction process run twice daily at 10:30 a.m. and 3:00 p.m., London time each Business Day as calculated and administered by ICE Benchmark Administration Limited (“IBA”) and published by LBMA on its Web site. The “LBMA Gold Price PM” is the 3:00 p.m. LBMA Gold Price. IBA, an independent specialist benchmark administrator, provides the price platform, methodology and the overall administration and governance for the LBMA Gold Price.
As noted herein, the term “Reference Currencies” refers to the major, non-U.S. currencies referenced by the Index. Each Reference Currency is expressed in terms of a number of foreign currency units relative to one U.S. dollar (
The Index weights its exposure to each Reference Currency based on the Triennial Central Bank Survey of foreign exchange turnover (the “FX Liquidity Survey”) as conducted by the Monetary and Economic Department of the Bank of International Settlements (“BIS”). Every three years, the BIS reviews turnover in the foreign exchange markets and publishes its preliminary results in September and final results in December. The BIS last published its FX Liquidity Survey in September 2013. The Index references the summary results of the most recent FX Liquidity Survey to determine which currencies are Reference Currencies and the weight of those Reference Currencies in the Index. The most liquid Reference Currencies are more heavily weighted in the Index.
The Index currently references European Union euro (“euro” or “EUR”), the Japanese yen (“JPY” or yen”), the British pound (“GBP”), the Australian dollar (“AUD”), the Swiss franc (“CHF”), the Canadian dollar (“CAD”) and the New Zealand dollar (“NZD”) (each of which is measured against U.S. dollars). The three most heavily weighted currencies referenced in the Index and their respective weights as of April 20, 2015 were the euro (approximately 38%), yen (approximately 26%) and GBP (approximately 13%).
Index values generally are calculated using the published WMR Spot Rate (“Spot Rate”) as of 4:00 p.m., London time associated with each Reference Currency, subject to adjustments as described below (though other rates may be used if the Spot Rate is delayed or unavailable). The “Spot Rate” is the rate at which a Reference Currency can be exchanged for U.S. dollars on an immediate basis, subject to the applicable settlement cycle. Thus, if an investor wanted to convert U.S. dollars into euros, the investor could enter into a spot transaction at the Spot Rate (subject to the bid/ask) and would receive euros in a number of days, depending on the settlement cycle of that currency. Generally, the settlement of a “spot” transaction is two currency business days (except in the case of Canadian dollars, which settle on the next business day). The following table sets forth the Reference Currencies (each of which is measured against U.S. dollars), the applicable “Reuters Page” for each Spot Rate referenced by the Index and the market convention for quoting such currency.
Settlement
In general, the Index is calculated by the Index Provider each Business Day, unless there is a “Market Disruption Event” or “Extraordinary Event” as described below.
The Fund has entered into a written contract with the Gold Delivery Provider. Subject to the terms of the Gold Delivery Agreement, on a daily basis, the Gold Delivery Provider will (i)
The starting point for the calculation of the Gold Delivery Amount is the daily change in the exchange rate of the Reference Currencies, in their respective Index weights, against the U.S. dollar. The Gold Delivery Amount is calculated, in simplest terms, by applying this rate to the dollar value of Gold bullion held by the Fund. The result of this calculation is an amount in U.S. dollars which reflects how the Fund's Gold holdings would have performed if such holdings had been denominated in the Reference Currencies instead of the U.S. dollar. This dollar amount is converted into a number of ounces of Gold based on the published price of Gold, which amount is the Gold Delivery Amount for the Fund.
Specifically, the Gold Delivery Provider will determine the effect of changes in the daily value of the Reference Currencies against the U.S. dollar by calculating the change in the Spot Rate of the Reference Currencies in their respective Index weights against the U.S. dollar from the prior Business Day. The Gold Delivery Provider may use other rates if the Spot Rate is delayed or unavailable as set forth in the Gold Delivery Agreement. The resultant U.S. dollar amount is referred to as the “FX PnL per Ounce.” The Gold Delivery Provider generally will make this calculation shortly after the Reference Currency prices are published at the “WMR FX Fixing Time,” which is generally at 4:00 p.m., London Time.
The FX PnL per Ounce is then multiplied by the number of Shares outstanding on such Business Day (without giving effect to any creation or redemption orders accepted for such Business Day) and the amount of Gold (in ounces) associated with each Share. For these purposes Gold is valued at the Gold Price (
The Net FX PnL Amount is converted into a number of ounces of Gold based on the next available Gold Price and is adjusted downward by a small amount to reflect the market cost to the Gold Delivery Provider of effectuating the transactions that allow it to provide the Fund with the Gold Delivery Amount (which amount is based on each Business Day's changing size of the Fund's Gold holdings, changing gold prices, and changing prices of the Reference Currencies). The resultant total is the Gold Delivery Amount.
If the Gold Delivery Amount is a positive number (meaning that the Fund has experienced a currency gain on the notional currency short positions), the Gold Delivery Provider will transfer to the Fund's custody account an amount of Gold (in ounces) equal to the U.S. dollar value of the Gold Delivery Amount. If the Gold Delivery Amount is a negative number (meaning that the Fund has experienced a currency loss on the notional currency short positions), the Fund will transfer to the Gold Delivery Provider's custody account an amount of Gold (in ounces) equal to the U.S. dollar value of the Gold Delivery Amount.
The Gold Delivery Agreement also specifies how the amount of Gold representing a Creation Unit
From time to time, unexpected events may cause the calculation of the Index and/or the operation of the Fund to be disrupted. These events are expected to be relatively rare. Though expected to be rare, there can be no guarantee these events will not occur. These events are referred to as either “Market Disruption Events” or “Extraordinary Events” depending largely on their significance and potential impact to the Index and Fund. Market Disruption Events and Extraordinary Events include disruptions in the trading of Gold or the Reference Currencies, delays or disruptions in the publication of the LBMA Gold Price or the Spot Rate and unusual market or other events. For example, market conditions or other events which result in a material limitation in, or a suspension of, the trading of physical Gold generally would be considered Market Disruption Events, as would material disruptions or delays in the determination or publication of the LBMA Gold Price PM. Similarly, market conditions which prevent, restrict or delay the Gold Delivery Provider's ability to convert a Reference Currency to U.S. dollars or deliver a Reference Currency through customary channels generally would be considered Market Disruption Events, as would material disruptions or delays in the determination or publication of the Spot Rate. The occurrence of a Market Disruption Event for five consecutive Business Days generally would be considered an Extraordinary Event for the Index and Fund.
On any Business Day in which a Market Disruption Event or Extraordinary Event has occurred or is continuing, the Index Provider generally will not calculate the Index and the Gold Delivery Provider generally will not calculate the Net FX PnL of the Fund or the Gold Delivery Amount. As a result, on these days the Fund may temporarily suspend the acceptance of orders to create or redeem Creation Units of Fund Shares and the Gold Delivery Provider generally will not deliver Gold ounces equal in value to the Gold Delivery Amount to or from the Fund. In addition, the Fund may use alternate pricing sources to calculate NAV during the occurrence of any Market Disruption or Extraordinary event.
Although the market for physical gold is global, most over-the-counter, or “OTC”, trades are cleared through London. In addition to coordinating market activities, the LBMA acts as the principal point of contact between the market and its regulators. A primary function of the LBMA is its involvement in the promotion of refining standards by maintenance of the “London Good Delivery Lists,” which are the lists of LBMA accredited melters and assayers of gold. The LBMA also coordinates market clearing and vaulting, promotes good trading practices and develops standard documentation.
The term “loco London” refers to gold bars physically held in London that
The unit of trade in London is the troy ounce, whose conversion between grams is: 1,000 grams = 32.1507465 troy ounces and 1 troy ounce = 31.1034768 grams. A London Good Delivery Bar is acceptable for delivery in settlement of a transaction on the OTC market. Typically referred to as 400-ounce bars, a London Good Delivery Bar must contain between 350 and 430 fine troy ounces of gold, with a minimum fineness (or purity) of 995 parts per 1,000 (99.5%), be of good appearance and be easy to handle and stack. The fine gold content of a gold bar is calculated by multiplying the gross weight of the bar (expressed in units of 0.025 troy ounces) by the fineness of the bar.
IBA hosts a physically settled, electronic and tradeable auction process that provides a market-based platform for buyers and sellers to trade physical spot Gold. The final auction price is used and published to the market as the “LBMA Gold Price benchmark.” The LBMA Gold Price is set twice daily at 10:30 a.m., London time and 3:00 p.m., London time in three currencies: U.S. dollars, euro and British pounds. The LBMA Gold Price is a widely used benchmark for the physical spot price of Gold and is quoted by various financial information sources.
Participants in the IBA auction process submit anonymous bids and offers which are published on screen and in real-time. Throughout the auction process, aggregated Gold bids and offers are updated in real-time with the imbalance calculated and the price updated every 45 seconds until the buy and sell orders are matched. When the net volume of all participants falls within a pre-determined tolerance the auction is deemed complete and the applicable LBMA Gold Price is published. Information about the auction process (such as aggregated bid and offer volumes) will be immediately available after the auction on the IBA's Web site.
The LBMA Gold Price replaced the widely used “London Gold Fix” as of March 20, 2015.
Although the Fund will not invest in gold futures information about the gold futures market is relevant as such markets contribute to, and provide evidence of, the liquidity of the overall market for Gold.
The most significant gold futures exchange is COMEX, part of the CME Group, Inc., which began to offer trading in gold futures contracts in 1974. TOCOM (Tokyo Commodity Exchange) is another significant futures exchange and has been trading gold since 1982. Trading on these exchanges is based on fixed delivery dates and transaction sizes for the futures and options contracts traded. Trading costs are negotiable. As a matter of practice, only a small percentage of the futures market turnover ever comes to physical delivery of the gold represented by the contracts traded. Both exchanges permit trading on margin. Both COMEX and TOCOM operate through a central clearance system and in each case, the clearing organization acts as a counterparty for each member for clearing purposes. Gold futures contracts also are traded on the Shanghai Gold Exchange and the Shanghai Futures Exchange.
The global gold markets are overseen and regulated by both governmental and self-regulatory organizations. In addition, certain trade associations have established rules and protocols for market practices and participants.
The Administrator will determine the NAV of Shares of the Fund each Business Day, unless there is a Market Disruption Event or Extraordinary Event. The NAV of Shares of the Fund is the aggregate value of the Fund's assets (which include gold payable, but not yet delivered, to the Fund) less its liabilities (which include accrued but unpaid fees and expenses). The NAV of the Fund will be calculated based on the price of Gold per ounce applied against the number of ounces of Gold owned by the Fund. The number of ounces of Gold held by the Fund is adjusted up or down on a daily basis to reflect the U.S. dollar value of currency gains or losses based on changes in the value of the Reference Currencies against the U.S. dollar. The number of ounces of Gold held by the Fund also reflects the amount of Gold delivered into (or out of) the Fund on a daily basis by Authorized Participants (as described below) creating and redeeming Shares. In determining the Fund's NAV, the Administrator generally will value the Gold held by the Fund based on the LBMA Gold Price PM for an ounce of Gold (though other sources may be used if the LBMA Gold Price PM is delayed or unavailable). Although the Fund will not hold the Reference Currencies, the Gold Delivery Provider generally will value the Reference Currencies based on the rates in effect as of the WMR FX Fixing Time, which is generally at 4:00 p.m., London Time (though other prices may be used if the 4:00 p.m. rate is delayed or unavailable). The Administrator will also determine the NAV per Share, which equals the NAV of the Fund, divided by the number of outstanding Shares. Unless there is a Market Disruption Event or Extraordinary Event, NAV generally will be calculated as of 4:00 p.m., London time.
The Fund expects to create and redeem Shares but only in Creation Units (a Creation Unit equals a block of 25,000 Shares or more). The creation and redemption of Creation Units requires the delivery to the Fund (or the distribution by the Fund in the case of redemptions) of the amount of Gold and any cash, if any, represented by the Creation Units being created or redeemed. The total amount of Gold and cash, if any, required for the creation of Creation Units will be based on the combined NAV of the number of Creation Units being created or redeemed. The initial amount of Gold required for deposit with the Fund to create Shares is 10,000 ounces per Creation Unit. The number of ounces of Gold required to create a Creation Unit or to be delivered upon redemption of a Creation Unit will gradually decrease over time. This is because the Shares comprising a Creation Unit will represent a decreasing amount of Gold due to the sale of the Fund's Gold to pay the expenses. Creation Units may be created or redeemed only by “Authorized Participants” (as described below), who may be required to pay a transaction fee for each order to create or redeem Creation Units as will be set forth in the Registration Statement. Authorized Participants may sell to other investors all or part of the Shares included in the Creation Units they purchase from the Fund.
Authorized Participants are the only persons that may place orders to create
On any Business Day, an Authorized Participant may place an order with the Fund to create one or more Creation Units. Purchase orders must be placed by 10:00 a.m., Eastern time (“E.T.”) or the close of regular trading on NYSE Arca, whichever is earlier. The day on which the Fund receives a valid purchase order is the purchase order date. By placing a purchase order, an Authorized Participant agrees to deposit Gold with the Fund, or a combination of Gold and cash, if any, as described below.
The total deposit of Gold (and cash, if any) required to create each Creation Unit is referred to as the “Creation Unit Gold Delivery Amount.” The Creation Unit Gold Delivery Amount is the number of ounces of Gold required to be delivered to the Fund by an Authorized Participant in connection with a creation order for a single Creation Unit.
An Authorized Participant who places a purchase order is responsible for crediting its Authorized Participant Unallocated Account with the required Gold deposit amount by the end of the second Business Day in London following the purchase order date. Upon receipt of the Gold deposit amount, the Custodian, after receiving appropriate instructions from the Authorized Participant and the Fund, will transfer on the third Business Day following the purchase order date the Gold deposit amount from the Authorized Participant Unallocated Account to the Fund Unallocated Account and the Administrator will direct the Depository Trust Company (“DTC”) to credit the number of Creation Units ordered to the Authorized Participant's DTC account. The expense and risk of delivery, ownership and safekeeping of Gold until such Gold has been received by the Fund will be borne solely by the Authorized Participant. If Gold is to be delivered other than as described above, the Sponsor is authorized to establish such procedures and to appoint such custodians and establish such custody accounts as the Sponsor determines to be desirable.
Acting on standing instructions given by the Fund, the Custodian will transfer the Gold deposit amount from the Fund Unallocated Account to the Fund's allocated account by allocating to the allocated account specific bars of Gold from unallocated bars which the Custodian holds or instructing a subcustodian to allocate specific bars of Gold from unallocated bars held by or for the subcustodian. The Gold bars in an allocated Gold account are specific to that account and are identified by a list which shows, for each Gold bar, the refiner, assay or fineness, serial number and gross and fine weight. Gold held in the Fund's allocated account is the property of the Fund and is not traded, leased or loaned under any circumstances.
The Custodian will use commercially reasonable efforts to complete the transfer of Gold to the Fund's allocated account prior to the time by which the Administrator is to credit the Creation Unit to the Authorized Participant's DTC account; if, however, such transfers have not been completed by such time, the number of Creation Units ordered will be delivered against receipt of the Gold deposit amount in the Fund's unallocated account, and all Shareholders will be exposed to the risks of unallocated Gold to the extent of that Gold deposit amount until the Custodian completes the allocation process.
The procedures by which an Authorized Participant can redeem one or more Creation Units mirror the procedures for the creation of Creation Units. On any Business Day, an Authorized Participant may place an order with the Fund to redeem one or more Creation Units. Redemption orders must be placed by 10:00 a.m. or the close of regular trading on NYSE Arca, whichever is earlier. A redemption order so received is effective on the date it is received in satisfactory form by the Fund. An Authorized Participant may be required to pay a transaction fee per order to create or redeem Creation Units as will be set forth in the Registration Statement.
The redemption distribution from the Fund consists of a credit in the amount of the Creation Unit Gold Delivery Amount to the Authorized Participant Unallocated Account of the redeeming Authorized Participant. The Creation Unit Delivery Amount for redemptions is the number of ounces of Gold held by the Fund associated with the Shares being redeemed plus, or minus, the cash redemption amount (if any). The Sponsor anticipates that in the ordinary course of the Fund's operations there will be no cash distributions made to Authorized Participants upon redemptions. In addition, because the Gold to be paid out in connection with the redemption order will decrease the amount of Gold subject to the Gold Delivery Agreement, the Creation Unit Gold Delivery Amount reflects the cost to the Gold Delivery Provider of resizing (
The redemption distribution due from the Fund is delivered to the Authorized Participant on the third Business Day following the redemption order date if,
The Custodian transfers the redemption Gold amount from the Fund's allocated account to the Fund's unallocated account and, thereafter, to the redeeming Authorized Participant's Authorized Participant Unallocated Account.
The Fund may, in its discretion, suspend the right of redemption, or postpone the redemption settlement date for: (1) Any period during which NYSE Arca is closed other than customary weekend or holiday closings, or trading on NYSE Arca is suspended or restricted; (2) any period during which an emergency exists as a result of which delivery, disposal or evaluation of Gold is not reasonably practicable; or (3) such other period as the Fund or Sponsor determines to be necessary for the protection of the Shareholders.
The Fund will reject a redemption order if (i) the order is not in proper form as described in the Participant Agreement, (ii) the fulfillment of the order, in the opinion of its counsel, might be unlawful, (iii) the order would have adverse tax consequences to the Fund or its Shareholders or (iv) circumstances outside the control of the Administrator, the Sponsor or the Custodian make the redemption, for all practical purposes, not feasible to process.
While the Fund's investment objective is for the Shares to reflect the performance of Gold bullion in terms of the Reference Currencies reflected in the Index, less the expenses of the Fund, the Shares may trade in the secondary market at prices that are lower or higher relative to their NAV per Share. The amount of the discount or premium in the trading price relative to the NAV per Share may be influenced by non-concurrent trading hours between the NYSE Arca and the COMEX, London, Zurich and Singapore. While the Shares will trade on NYSE Arca until 8:00 p.m., E.T., liquidity in the global gold market will be reduced after the close of the COMEX at 1:30 p.m., E.T. As a result, during this time, trading spreads, and the resulting premium or discount, on the Shares may widen.
The Sponsor will receive an annual fee equal to 0.50% of the daily NAV of the Fund. In return the Sponsor will be responsible for the payment of the ordinary fees and expenses of the Fund, including the Administrator's fee, the Custodian's fee, the Gold Delivery Provider's fee, and the Index Provider's fee. This will be the case regardless of whether the ordinary expenses of the Fund exceed 0.50% of the daily NAV of the Fund. The Sponsor's fee is expected to be the only ordinary recurring expense of the Fund.
Currently, the Consolidated Tape Plan does not provide for dissemination of the spot price of a commodity, such as gold, or the spot price of the Reference Currencies, over the Consolidated Tape. However, there will be disseminated over the Consolidated Tape the last sale price for the Shares, as is the case for all equity securities traded on the Exchange (including exchange-traded funds). In addition, there is a considerable amount of information about gold and currency prices and gold and currency markets available on public Web sites and through professional and subscription services.
Investors may obtain on a 24-hour basis gold pricing information based on the spot price for an ounce of Gold and pricing information for the Reference Currencies from various financial information service providers, such as Reuters and Bloomberg.
Reuters and Bloomberg, for example, provide at no charge on their Web sites delayed information regarding the spot price of Gold and last sale prices of Gold futures, as well as information about news and developments in the gold market. Reuters and Bloomberg also offer a professional service to subscribers for a fee that provides information on Gold prices directly from market participants. Complete real-time data for Gold futures and options prices traded on the COMEX are available by subscription from Reuters and Bloomberg. There are a variety of other public Web sites providing information on gold, ranging from those specializing in precious metals to sites maintained by major newspapers. In addition, the LBMA Gold Price is publicly available at no charge at
In addition, Reuters and Bloomberg, for example, provide at no charge on their Web sites delayed information regarding the spot price of each Reference Currency, as well as information about news and developments in the currency markets. Reuters and Bloomberg also offer a professional service to subscribers for a fee that provides information on currency transactions directly from market participants. Complete real-time data for currency transactions are available by subscription from Reuters and Bloomberg. There are a variety of other public Web sites providing information about the Reference Currencies and currency transactions, ranging from those specializing in currency trading to sites maintained by major newspapers.
The Fund Web site will provide an intraday indicative value (“IIV”) per share for the Shares updated every 15 seconds, as calculated by the Exchange or a third party financial data provider during the Exchange's Core Trading Session (9:30 a.m. to 4:00 p.m., E.T. The IIV will be calculated based on the amount of Gold required for creations and redemptions and (i) a price of Gold derived from updated bids and offers indicative of the spot price of Gold, and (ii) intra-day exchange rates for each Reference Currency against the U.S. dollar.
In addition, the Web site for the Fund will contain the following information, on a per Share basis, for the Fund: (a)
The Fund will be subject to the criteria in NYSE Arca Equities Rule 8.201(e) for initial and continued listing of the Shares.
A minimum of 100,000 Shares will be required to be outstanding at the start of trading. The minimum number of shares required to be outstanding is comparable to requirements that have been applied to previously listed shares of the Sprott Physical Gold Trust, ETFS Trusts, streetTRACKS Gold Trust, the iShares COMEX Gold Trust, and the iShares Silver Trust. The Exchange believes that the anticipated minimum number of Shares outstanding at the start of trading is sufficient to provide adequate market liquidity.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Fund subject to the Exchange's existing rules governing the trading of equity securities. Trading in the Shares on the Exchange will occur in accordance with NYSE Arca Equities Rule 7.34(a). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
Further, NYSE Arca Equities Rule 8.201 sets forth certain restrictions on ETP Holders acting as registered Market Makers in the Shares to facilitate surveillance. Pursuant to NYSE Arca Equities Rule 8.201(g), an ETP Holder acting as a registered Market Maker in the Shares is required to provide the Exchange with information relating to its trading in the underlying gold, related futures or options on futures, or any other related derivatives. Commentary .04 of NYSE Arca Equities Rule 6.3 requires an ETP Holder acting as a registered Market Maker, and its affiliates, in the Shares to establish, maintain and enforce written policies and procedures reasonably designed to prevent the misuse of any material nonpublic information with respect to such products, any components of the related products, any physical asset or commodity underlying the product, applicable currencies, underlying indexes, related futures or options on futures, and any related derivative instruments (including the Shares).
As a general matter, the Exchange has regulatory jurisdiction over its ETP Holders and their associated persons, which include any person or entity controlling an ETP Holder. A subsidiary or affiliate of an ETP Holder that does business only in commodities or futures contracts would not be subject to Exchange jurisdiction, but the Exchange could obtain information regarding the activities of such subsidiary or affiliate through surveillance sharing agreements with regulatory organizations of which such subsidiary or affiliate is a member.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares. Trading on the Exchange in the Shares may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which conditions in the underlying gold market have caused disruptions and/or lack of trading, or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. In addition, trading in Shares will be subject to trading halts caused by extraordinary market volatility pursuant to the Exchange's “circuit breaker” rule.
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares with other markets and other entities that are members of the ISG, and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Shares from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
Also, pursuant to NYSE Arca Equities Rule 8.201(g), the Exchange is able to obtain information regarding trading in the Shares and the underlying gold, gold futures contracts, options on gold futures, or any other gold derivative, through ETP Holders acting as
Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Baskets (including noting that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) how information regarding the IIV is disseminated; (4) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; (5) the possibility that trading spreads and the resulting premium or discount on the Shares may widen as a result of reduced liquidity of gold trading during the Core and Late Trading Sessions after the close of the major world gold markets; and (6) trading information. For example, the Information Bulletin will advise ETP Holders, prior to the commencement of trading, of the prospectus delivery requirements applicable to the Fund. The Exchange notes that investors purchasing Shares directly from the Fund (by delivery of the Creation Basket Deposit) will receive a prospectus. ETP Holders purchasing Shares from the Fund for resale to investors will deliver a prospectus to such investors.
In addition, the Information Bulletin will reference that the Fund is subject to various fees and expenses as will be described in the Registration Statement. The Information Bulletin will also reference the fact that there is no regulated source of last sale information regarding physical gold, that the Commission has no jurisdiction over the trading of gold as a physical commodity, and that the CFTC has regulatory jurisdiction over the trading of gold futures contracts and options on gold futures contracts.
The Information Bulletin will also discuss any relief, if granted, by the Commission or the staff from any rules under the Act.
The basis under the Act for this proposed rule change is the requirement under section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.201. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that there is a considerable amount of gold price and gold market information available on public Web sites and through professional and subscription services. Investors may obtain on a 24-hour basis gold pricing information based on the spot price for an ounce of gold from various financial information service providers. Investors may obtain gold pricing information based on the spot price for an ounce of gold from various financial information service providers. Current spot prices also are generally available with bid/ask spreads from gold bullion dealers. In addition, the Fund's Web site will provide pricing information for gold spot prices and the Shares. Market prices for the Shares will be available from a variety of sources including brokerage firms, information Web sites and other information service providers. The NAV of the Fund will be published by the Sponsor on each day that the NYSE Arca is open for regular trading and will be posted on the Fund's Web site. The IIV relating to the Shares will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session. In addition, the LBMA Gold Price is publicly available at no charge at
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding gold pricing.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposed rule change will enhance competition by accommodating Exchange trading of an additional exchange-traded product relating to physical gold.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) for an exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act.
Summary of Application: Applicants request an order that would permit (a) series of certain open-end management investment companies to issue shares (“Shares”) redeemable in large aggregations only (“Creation Units”); (b) secondary market transactions in Shares to occur at negotiated market prices rather than at net asset value (“NAV”); (c) certain series to pay redemption proceeds, under certain circumstances, more than seven days after the tender of Shares for redemption; (d) certain affiliated persons of the series to deposit securities into, and receive securities from, the series in connection with the purchase and redemption of Creation Units; and (e) certain registered management investment companies and unit investment trusts outside of the same group of investment companies as the series to acquire Shares.
Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants: AlphaClone, One Market Street, Steuart Towar, Suite 1208, San Francisco, California 94105; The Trust and Quasar, 615 East Michigan Street, 4th Floor, Milwaukee, Wisconsin 53202.
James D. McGinnis, Attorney/Advisor, at (202) 551-3025, or Melissa R. Harke, Branch Chief, at (202) 551-6722 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Trust is a Delaware statutory trust and is registered under the Act as an open-end management investment company with multiple series. Each series will operate as an exchange traded fund (“ETF”).
2. AlphaClone will be the investment adviser to the new series of the Trust (“Initial Fund”). Each Adviser (as defined below) will be registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”). The Adviser may enter into sub-advisory agreements with one or more investment advisers to act as sub-advisers to particular Funds (each, a “Sub-Adviser”). Any Sub-Adviser will either be registered under the Advisers Act or will not be required to register thereunder.
3. The Trust will enter into a distribution agreement with one or more distributors. Each distributor for a Fund will be a broker-dealer (“Broker”) registered under the Securities
4. Applicants request that the order apply to the Initial Fund and any additional series of the Trust, and any other open-end management investment company or series thereof, that may be created in the future (“Future Funds” and together with the Initial Fund, “Funds”), each of which will operate as an ETF and will track a specified index comprised of domestic or foreign equity and/or fixed income securities (each, an “Underlying Index”). Any Future Fund will (a) be advised by AlphaClone or an entity controlling, controlled by, or under common control with AlphaClone (each, an “Adviser”) and (b) comply with the terms and conditions of the application.
5. Each Fund will hold certain securities, currencies, other assets, and other investment positions (“Portfolio Holdings”) selected to correspond generally to the performance of its Underlying Index. The Underlying Indexes will be comprised solely of equity and/or fixed income securities issued by one or more of the following categories of issuers: (i) Domestic issuers and (ii) non-domestic issuers meeting the requirements for trading in U.S. markets. Other Funds will be based on Underlying Indexes that will be comprised solely of foreign and domestic, or solely foreign, equity and/or fixed income securities (“Foreign Funds”).
6. Applicants represent that each Fund will invest at least 80% of its assets (excluding securities lending collateral) in the component securities of its respective Underlying Index (“Component Securities”) and TBA Transactions,
7. Each Trust may issue Funds that seek to track Underlying Indexes constructed using 130/30 investment strategies (“130/30 Funds”) or other long/short investment strategies (“Long/Short Funds”). Each Long/Short Fund will establish (i) exposures equal to approximately 100% of the long positions specified by the Long/Short Index
8. A Fund will utilize either a replication or representative sampling strategy to track its Underlying Index. A Fund using a replication strategy will invest in the Component Securities of its Underlying Index in the same approximate proportions as in such Underlying Index. A Fund using a representative sampling strategy will hold some, but not necessarily all of the Component Securities of its Underlying Index. Applicants state that a Fund using a representative sampling strategy will not be expected to track the performance of its Underlying Index with the same degree of accuracy as would an investment vehicle that invested in every Component Security of the Underlying Index with the same weighting as the Underlying Index. Applicants expect that each Fund will have an annual tracking error relative to the performance of its Underlying Index of less than 5%.
9. Each Fund will be entitled to use its Underlying Index pursuant to either a licensing agreement with the entity that compiles, creates, sponsors or maintains the Underlying Index (each, an “Index Provider”) or a sub-licensing arrangement with the Adviser, which will have a licensing agreement with such Index Provider.
10. Applicants recognize that Self-Indexing Funds could raise concerns regarding the ability of the Affiliated Index Provider to manipulate the Underlying Index to the benefit or detriment of the Self-Indexing Fund. Applicants further recognize the potential for conflicts that may arise with respect to the personal trading activity of personnel of the Affiliated Index Provider who have knowledge of changes to an Underlying Index prior to the time that information is publicly disseminated.
11. Applicants propose that each Self-Indexing Fund will post on its Web site, on each day the Fund is open, including any day when it satisfies redemption requests as required by Section 22(e) of the Act (a “Business Day”), before commencement of trading of Shares on the Listing Exchange, the identities and quantities of the Portfolio Holdings that will form the basis for the Fund's calculation of its NAV at the end of the Business Day. Applicants believe that requiring Self-Indexing Funds to maintain full portfolio transparency will also provide an additional mechanism for addressing any such potential conflicts of interest.
12. In addition, Applicants do not believe the potential for conflicts of interest raised by the Adviser's use of the Underlying Indexes in connection with the management of the Self Indexing Funds and the Affiliated Accounts will be substantially different from the potential conflicts presented by an adviser managing two or more registered funds. Both the Act and the Advisers Act contain various protections to address conflicts of interest where an adviser is managing two or more registered funds and these protections will also help address these conflicts with respect to the Self-Indexing Funds.
13. Each Adviser and any Sub-Adviser has adopted or will adopt, pursuant to Rule 206(4)-7 under the Advisers Act, written policies and procedures designed to prevent violations of the Advisers Act and the rules thereunder. These include policies and procedures designed to minimize potential conflicts of interest among the Self-Indexing Funds and the Affiliated Accounts, such as cross trading policies, as well as those designed to ensure the equitable allocation of portfolio transactions and brokerage commissions. In addition, AlphaClone will adopt policies and procedures as required under section 204A of the Advisers Act, which are reasonably designed in light of the nature of its business to prevent the misuse, in violation of the Advisers Act or the Exchange Act or the rules thereunder, of material non-public information by the ETS Securities or an associated person (“Inside Information Policy”). Any other Adviser or Sub-Adviser will be required to adopt and maintain a similar Inside Information Policy. In accordance with the Code of Ethics
14. To the extent the Self-Indexing Funds transact with an Affiliated Person of the Adviser or Sub-Adviser, such transactions will comply with the Act, the rules thereunder and the terms and conditions of the requested order. In this regard, each Self-Indexing Fund's board of directors or trustees (“Board”) will periodically review the Self-Indexing Fund's use of an Affiliated Index Provider. Subject to the approval of the Self-Indexing Fund's Board, the Adviser, Affiliated Persons of the Adviser (“Adviser Affiliates”) and Affiliated Persons of any Sub-Adviser (“Sub-Adviser Affiliates”) may be authorized to provide custody, fund accounting and administration and transfer agency services to the Self-Indexing Funds. Any services provided by the Adviser, Adviser Affiliates, Sub-Adviser and Sub-Adviser Affiliates will be performed in accordance with the provisions of the Act, the rules under the Act and any relevant guidelines from the staff of the Commission. Applications for prior orders granted to Self-Indexing Funds have received relief to operate such funds on the basis discussed above.
15. The Shares of each Fund will be purchased and redeemed in Creation Units and generally on an in-kind basis. Except where the purchase or redemption will include cash under the limited circumstances specified below, purchasers will be required to purchase Creation Units by making an in-kind deposit of specified instruments (“Deposit Instruments”), and shareholders redeeming their Shares will receive an in-kind transfer of specified instruments (“Redemption Instruments”).
16. Purchases and redemptions of Creation Units may be made in whole or in part on a cash basis, rather than in kind, solely under the following circumstances: (a) To the extent there is a Cash Amount; (b) if, on a given Business Day, the Fund announces before the open of trading that all purchases, all redemptions or all purchases and redemptions on that day will be made entirely in cash; (c) if, upon receiving a purchase or redemption order from an Authorized Participant, the Fund determines to require the purchase or redemption, as applicable, to be made entirely in cash;
17. Creation Units will consist of specified large aggregations of Shares (
18. Each Business Day, before the open of trading on the Exchange on which Shares are primarily listed (“Listing Exchange”), each Fund will cause to be published through the NSCC the names and quantities of the instruments comprising the Deposit Instruments and the Redemption Instruments, as well as the estimated Cash Amount (if any), for that day. The list of Deposit Instruments and Redemption Instruments will apply until a new list is announced on the following Business Day, and there will be no intra-day changes to the list except to correct errors in the published list. Each Listing Exchange will disseminate, every 15 seconds during regular Exchange trading hours, through the facilities of the Consolidated Tape Association, an amount for each Fund stated on a per individual Share basis representing the sum of (i) the estimated Cash Amount and (ii) the current value of the Deposit Instruments.
19. Transaction expenses, including operational processing and brokerage costs, will be incurred by a Fund when investors purchase or redeem Creation Units in-kind and such costs have the potential to dilute the interests of the Fund's existing shareholders. Each Fund will impose purchase or redemption transaction fees (“Transaction Fees”) in connection with effecting such purchases or redemptions of Creation Units. In all cases, such Transaction Fees will be limited in accordance with requirements of the Commission applicable to management investment companies offering redeemable securities. Since the Transaction Fees are intended to defray the transaction expenses as well as to prevent possible shareholder dilution resulting from the purchase or redemption of Creation Units, the Transaction Fees will be borne only by such purchasers or redeemers.
20. Shares of each Fund will be listed and traded individually on an Exchange. It is expected that one or more member firms of an Exchange will be designated to act as a market maker (each, a “Market Maker”) and maintain a market for Shares trading on the Exchange. Prices of Shares trading on an Exchange will be based on the current bid/offer market. Transactions involving the sale of Shares on an Exchange will be subject to customary brokerage commissions and charges.
21. Applicants expect that purchasers of Creation Units will include institutional investors and arbitrageurs. Market Makers, acting in their roles to provide a fair and orderly secondary market for the Shares, may from time to time find it appropriate to purchase or redeem Creation Units. Applicants expect that secondary market purchasers of Shares will include both institutional and retail investors.
22. Shares will not be individually redeemable, and owners of Shares may acquire those Shares from the Fund, or tender such Shares for redemption to the Fund, in Creation Units only. To redeem, an investor must accumulate enough Shares to constitute a Creation Unit. Redemption requests must be placed through an Authorized Participant. A redeeming investor may pay a Transaction Fee, calculated in the same manner as a Transaction Fee payable in connection with purchases of Creation Units.
23. Neither the Trust nor any Fund will be advertised or marketed or otherwise held out as a traditional open-end investment company or a “mutual fund.” Instead, each such Fund will be marketed as an “ETF.” All marketing materials that describe the features or method of obtaining, buying or selling Creation Units, or Shares traded on an Exchange, or refer to redeemability, will prominently disclose that Shares are not individually redeemable and will disclose that the owners of Shares may acquire those Shares from the Fund or tender such Shares for redemption to the Fund in Creation Units only. The Funds will provide copies of their annual and semi-annual shareholder reports to DTC Participants for distribution to beneficial owners of Shares.
1. Applicants request an order under section 6(c) of the Act for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act, under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act, and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act.
2. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or transactions, from any provision of the Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provisions of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors.
3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the owner, upon its presentation to the issuer, is entitled to receive approximately a proportionate share of the issuer's current net assets, or the cash equivalent. Because Shares will not be individually redeemable, applicants request an order that would permit the Funds to register as open-end management investment companies and issue Shares that are redeemable in Creation Units only. Applicants state that investors may purchase Shares in Creation Units and redeem Creation Units from each Fund. Applicants further state that because Creation Units may always be purchased and redeemed at NAV, the price of Shares on the secondary market should not vary materially from NAV.
4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security that is currently being offered to the public by or through an underwriter, except at a current public offering price described in the prospectus. Rule 22c-1 under the Act generally requires that a dealer selling, redeeming or repurchasing a redeemable security do so only at a price based on its NAV. Applicants state that secondary market trading in Shares will take place at negotiated prices, not at a current offering price described in a Fund's prospectus, and not at a price based on NAV. Thus, purchases and sales of Shares in the secondary market will not comply with section 22(d) of the Act and rule 22c-1 under the Act. Applicants request an exemption under section 6(c) from these provisions.
5. Applicants assert that the concerns sought to be addressed by section 22(d) of the Act and rule 22c-1 under the Act with respect to pricing are equally satisfied by the proposed method of pricing Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c-1, appear to have been designed to (a) prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, (b) prevent unjust discrimination or preferential treatment among buyers, and (c) ensure an orderly distribution of investment company shares by eliminating price competition from dealers offering shares at less than the published sales price and repurchasing shares at more than the published redemption price.
6. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Applicants state that (a) secondary market trading in Shares does not involve a Fund as a party and will not result in dilution of an investment in Shares, and (b) to the extent different prices exist during a given trading day,
7. Section 22(e) of the Act generally prohibits a registered investment company from suspending the right of redemption or postponing the date of payment of redemption proceeds for more than seven days after the tender of a security for redemption. Applicants state that settlement of redemptions for Foreign Funds will be contingent not only on the settlement cycle of the United States market, but also on current delivery cycles in local markets for underlying foreign securities held by a Foreign Fund. Applicants state that the delivery cycles currently practicable for transferring Redemption Instruments to redeeming investors, coupled with local market holiday schedules, may require a delivery process of up to fourteen (14) calendar days. Accordingly, with respect to Foreign Funds only, applicants hereby request relief under section 6(c) from the requirement imposed by section 22(e) to allow Foreign Funds to pay redemption proceeds within fourteen calendar days following the tender of Creation Units for redemption.
8. Applicants believe that Congress adopted section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds. Applicants propose that allowing redemption payments for Creation Units of a Foreign Fund to be made within fourteen calendar days would not be inconsistent with the spirit and intent of section 22(e). Applicants suggest that a redemption payment occurring within fourteen calendar days following a redemption request would adequately afford investor protection.
9. Applicants are not seeking relief from section 22(e) with respect to Foreign Funds that do not effect creations and redemptions of Creation Units in-kind.
10. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring securities of an investment company if such securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter and any other broker-dealer from knowingly selling the investment company's shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally.
11. Applicants request an exemption to permit registered management investment companies and unit investment trusts (“UITs”) that are not advised or sponsored by the Adviser, and not part of the same “group of investment companies,” as defined in section 12(d)(1)(G)(ii) of the Act as the Funds (such management investment companies are referred to as “Investing Management Companies,” such UITs are referred to as “Investing Trusts,” and Investing Management Companies and Investing Trusts are collectively referred to as “Funds of Funds”), to acquire Shares beyond the limits of section 12(d)(1)(A) of the Act; and the Funds, and any principal underwriter for the Funds, and/or any Broker registered under the Exchange Act, to sell Shares to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act.
12. Each Investing Management Company will be advised by an investment adviser within the meaning of section 2(a)(20)(A) of the Act (the “Fund of Funds Adviser”) and may be sub-advised by investment advisers within the meaning of section 2(a)(20)(B) of the Act (each, a “Fund of Funds Sub-Adviser”). Any investment adviser to an Investing Management Company will be registered under the Advisers Act. Each Investing Trust will be sponsored by a sponsor (“Sponsor”).
13. Applicants submit that the proposed conditions to the requested relief adequately address the concerns underlying the limits in sections 12(d)(1)(A) and (B), which include concerns about undue influence by a fund of funds over underlying funds, excessive layering of fees and overly complex fund structures. Applicants believe that the requested exemption is consistent with the public interest and the protection of investors.
14. Applicants believe that neither a Fund of Funds nor a Fund of Funds Affiliate would be able to exert undue influence over a Fund.
15. Applicants propose other conditions to limit the potential for undue influence over the Funds, including that no Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security in an offering of securities during the existence of an underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate (“Affiliated Underwriting”). An “Underwriting Affiliate” is a principal underwriter in any underwriting or
16. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. The board of directors or trustees of any Investing Management Company, including a majority of the directors or trustees who are not “interested persons” within the meaning of section 2(a)(19) of the Act (“disinterested directors or trustees”), will find that the advisory fees charged under the contract are based on services provided that will be in addition to, rather than duplicative of, services provided under the advisory contract of any Fund in which the Investing Management Company may invest. In addition, under condition B.5., a Fund of Funds Adviser, or a Fund of Funds' trustee or Sponsor, as applicable, will waive fees otherwise payable to it by the Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b-1 under the Act) received from a Fund by the Fund of Funds Adviser, trustee or Sponsor or an affiliated person of the Fund of Funds Adviser, trustee or Sponsor, other than any advisory fees paid to the Fund of Funds Adviser, trustee or Sponsor or its affiliated person by a Fund, in connection with the investment by the Fund of Funds in the Fund. Applicants state that any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830.
17. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that no Fund will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by exemptive relief from the Commission permitting the Fund to purchase shares of other investment companies for short-term cash management purposes. To ensure a Fund of Funds is aware of the terms and conditions of the requested order, the Fund of Funds will enter into an agreement with the Fund (“FOF Participation Agreement”). The FOF Participation Agreement will include an acknowledgement from the Fund of Funds that it may rely on the order only to invest in the Funds and not in any other investment company.
18. Applicants also note that a Fund may choose to reject a direct purchase of Shares in Creation Units by a Fund of Funds. To the extent that a Fund of Funds purchases Shares in the secondary market, a Fund would still retain its ability to reject any initial investment by a Fund of Funds in excess of the limits of section 12(d)(1)(A) by declining to enter into a FOF Participation Agreement with the Fund of Funds.
19. Sections 17(a)(1) and (2) of the Act generally prohibit an affiliated person of a registered investment company, or an affiliated person of such a person, from selling any security to or purchasing any security from the company. Section 2(a)(3) of the Act defines “affiliated person” of another person to include (a) any person directly or indirectly owning, controlling or holding with power to vote 5% or more of the outstanding voting securities of the other person, (b) any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with the power to vote by the other person, and (c) any person directly or indirectly controlling, controlled by or under common control with the other person. Section 2(a)(9) of the Act defines “control” as the power to exercise a controlling influence over the management or policies of a company, and provides that a control relationship will be presumed where one person owns more than 25% of a company's voting securities. The Funds may be deemed to be controlled by the Adviser or an entity controlling, controlled by or under common control with the Adviser and hence affiliated persons of each other. In addition, the Funds may be deemed to be under common control with any other registered investment company (or series thereof) advised by an Adviser or an entity controlling, controlled by or under common control with an Adviser (an “Affiliated Fund”). Any investor, including Market Makers, owning 5% or holding in excess of 25% of the Trust or such Funds, may be deemed affiliated persons of the Trust or such Funds. In addition, an investor could own 5% or more, or in excess of 25% of the outstanding shares of one or more Affiliated Funds making that investor a Second-Tier Affiliate of the Funds.
20. Applicants request an exemption from sections 17(a)(1) and 17(a)(2) of the Act pursuant to sections 6(c) and 17(b) of the Act to permit persons that are Affiliated Persons of the Funds, or Second-Tier Affiliates of the Funds, solely by virtue of one or more of the following: (a) holding 5% or more, or in excess of 25%, of the outstanding Shares of one or more Funds; (b) an affiliation with a person with an ownership interest described in (a); or (c) holding 5% or more, or more than 25%, of the shares of one or more Affiliated Funds, to effectuate purchases and redemptions “in-kind.”
21. Applicants assert that no useful purpose would be served by prohibiting such affiliated persons from making “in-kind” purchases or “in-kind” redemptions of Shares of a Fund in Creation Units. Both the deposit procedures for “in-kind” purchases of Creation Units and the redemption procedures for “in-kind” redemptions of Creation Units will be effected in exactly the same manner for all purchases and redemptions, regardless of size or number. There will be no discrimination between purchasers or redeemers. Deposit Instruments and Redemption Instruments for each Fund will be valued in the identical manner as those Portfolio Holdings currently held by such Fund and the valuation of the Deposit Instruments and Redemption Instruments will be made in an identical manner regardless of the identity of the purchaser or redeemer. Applicants do not believe that “in-kind” purchases and redemptions will result in abusive self-dealing or overreaching, but rather assert that such procedures will be implemented consistently with each Fund's objectives and with the general purposes of the Act. Applicants believe that “in-kind” purchases and redemptions will be made on terms reasonable to Applicants and any affiliated persons because they will be valued pursuant to verifiable objective standards. The method of valuing Portfolio Holdings held by a Fund is identical to that used for calculating “in-kind” purchase or redemption values and therefore creates no opportunity for affiliated persons or Second-Tier Affiliates of applicants to effect a transaction detrimental to the other holders of Shares of that Fund. Similarly, applicants submit that, by using the same standards for valuing Portfolio Holdings held by a Fund as are used for calculating “in-kind” redemptions or purchases, the Fund
22. Applicants also seek relief under sections 6(c) and 17(b) from section 17(a) to permit a Fund that is an affiliated person, or an affiliated person of an affiliated person, of a Fund of Funds to sell its Shares to and redeem its Shares from a Fund of Funds, and to engage in the accompanying in-kind transactions with the Fund of Funds.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. The requested relief to permit ETF operations will expire on the effective date of any Commission rule under the Act that provides relief permitting the operation of index-based ETFs.
2. As long as a Fund operates in reliance on the requested order, the Shares of such Fund will be listed on an Exchange.
3. Neither the Trust nor any Fund will be advertised or marketed as an open-end investment company or a mutual fund. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that Shares are not individually redeemable and that owners of Shares may acquire those Shares from the Fund and tender those Shares for redemption to a Fund in Creation Units only.
4. The Web site, which is and will be publicly accessible at no charge, will contain, on a per Share basis for each Fund, the prior Business Day's NAV and the market closing price or the midpoint of the bid/ask spread at the time of the calculation of such NAV (“Bid/Ask Price”), and a calculation of the premium or discount of the market closing price or Bid/Ask Price against such NAV.
5. Each Self-Indexing Fund, Long/Short Fund and 130/30 Fund will post on the Web site on each Business Day, before commencement of trading of Shares on the Exchange, the Fund's Portfolio Holdings.
6. No Adviser or any Sub-Adviser to a Self-Indexing Fund, directly or indirectly, will cause any Authorized Participant (or any investor on whose behalf an Authorized Participant may transact with the Self-Indexing Fund) to acquire any Deposit Instrument for the Self-Indexing Fund through a transaction in which the Self-Indexing Fund could not engage directly.
1. The members of a Fund of Funds' Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. The members of a Fund of Funds' Sub-Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of a Fund, the Fund of Funds' Advisory Group or the Fund of Funds' Sub-Advisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of a Fund, it will vote its Shares of the Fund in the same proportion as the vote of all other holders of the Fund's Shares. This condition does not apply to the Fund of Funds' Sub-Advisory Group with respect to a Fund for which the Fund of Funds' Sub-Adviser or a person controlling, controlled by or under common control with the Fund of Funds' Sub-Adviser acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act.
2. No Fund of Funds or Fund of Funds Affiliate will cause any existing or potential investment by the Fund of Funds in a Fund to influence the terms of any services or transactions between the Fund of Funds or Fund of Funds Affiliate and the Fund or a Fund Affiliate.
3. The board of directors or trustees of an Investing Management Company, including a majority of the disinterested directors or trustees, will adopt procedures reasonably designed to ensure that the Fund of Funds Adviser and Fund of Funds Sub-Adviser are conducting the investment program of the Investing Management Company without taking into account any consideration received by the Investing Management Company or a Fund of Funds Affiliate from a Fund or Fund Affiliate in connection with any services or transactions.
4. Once an investment by a Fund of Funds in the securities of a Fund exceeds the limits in section 12(d)(1)(A)(i) of the Act, the Board of the Fund, including a majority of the directors or trustees who are not “interested persons” within the meaning of Section 2(a)(19) of the Act (“non-interested Board members”), will determine that any consideration paid by the Fund to the Fund of Funds or a Fund of Funds Affiliate in connection with any services or transactions: (i) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Fund; (ii) is within the range of consideration that the Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (iii) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between a Fund and its investment adviser(s), or any person controlling, controlled by or under common control with such investment adviser(s).
5. The Fund of Funds Adviser, or trustee or Sponsor of an Investing Trust, as applicable, will waive fees otherwise payable to it by the Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b-l under the Act) received from a Fund by the Fund of Funds Adviser, or trustee or Sponsor of the Investing Trust, or an affiliated person of the Fund of Funds Adviser, or trustee or Sponsor of the Investing Trust, other than any advisory fees paid to the Fund of Funds Adviser, or trustee or Sponsor of an Investing Trust, or its affiliated person by the Fund, in connection with the investment by the Fund of Funds in the Fund. Any Fund of Funds Sub-Adviser will waive fees otherwise payable to the Fund of Funds Sub-Adviser, directly or indirectly, by the Investing Management Company in an amount at least equal to any compensation received from a Fund by the Fund of Funds Sub-Adviser, or an affiliated person of the Fund of Funds Sub-Adviser, other than any advisory fees paid to the Fund of Funds Sub-Adviser or its affiliated person by the Fund, in connection with the investment by the Investing Management Company in the Fund made at the direction of the Fund of Funds Sub-Adviser. In the event that the Fund of Funds Sub-Adviser waives fees, the benefit of the waiver will be passed through to the Investing Management Company.
6. No Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security in any Affiliated Underwriting.
7. The Board of a Fund, including a majority of the non-interested Board members, will adopt procedures reasonably designed to monitor any purchases of securities by the Fund in an Affiliated Underwriting, once an investment by a Fund of Funds in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Fund of Funds in the Fund. The Board will consider, among other things: (i) Whether the purchases were consistent with the investment objectives and policies of the Fund; (ii) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (iii) whether the amount of securities purchased by the Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to ensure that purchases of securities in Affiliated Underwritings are in the best interest of shareholders of the Fund.
8. Each Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by a Fund of Funds in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the Board's determinations were made.
9. Before investing in a Fund in excess of the limit in section 12(d)(1)(A), a Fund of Funds and the applicable Trust will execute a FOF Participation Agreement stating, without limitation, that their respective boards of directors or trustees and their investment advisers, or trustee and Sponsor, as applicable, understand the terms and conditions of the order, and agree to fulfill their responsibilities under the order. At the time of its investment in Shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), a Fund of Funds will notify the Fund of the investment. At such time, the Fund of Funds will also transmit to the Fund a list of the names of each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of Funds will notify the Fund of any changes to the list of the names as soon as reasonably practicable after a change occurs. The Fund and the Fund of Funds will maintain and preserve a copy of the order, the FOF Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
10. Before approving any advisory contract under section 15 of the Act, the board of directors or trustees of each Investing Management Company including a majority of the disinterested directors or trustees, will find that the advisory fees charged under such contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Fund in which the Investing Management Company may invest. These findings and their basis will be fully recorded in the minute books of the appropriate Investing Management Company.
11. Any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830.
12. No Fund will acquire securities of an investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent the Fund acquires securities of another investment company pursuant to exemptive relief from the Commission permitting the Fund to acquire securities of one or more investment companies for short-term cash management purposes.
For the Commission, by the Division of Investment Management, under delegated authority.
On September 29, 2014, ISE Mercury, LLC (“ISE Mercury” or “Applicant”) submitted to the Securities and Exchange Commission (“Commission”) a Form 1 application under the Securities Exchange Act of 1934 (“Exchange Act”), seeking registration as a national securities exchange under Section 6 of the Exchange Act.
The Commission is publishing this notice to solicit comments on ISE Mercury's Form 1 application, as amended. The Commission will take any comments it receives into consideration in making its determination about whether to grant ISE Mercury's request to be registered as a national securities exchange. The Commission will grant the registration if it finds that the requirements of the Exchange Act and the rules and regulations thereunder with respect to ISE Mercury are satisfied.
The Applicant's Form 1 application, as amended, provides detailed information on how ISE Mercury proposes to satisfy the requirements of the Exchange Act. The Form 1 application also provides that ISE Mercury would operate a fully automated electronic trading platform for the trading of listed options and would not maintain a physical trading floor. It also provides that liquidity would be derived from orders to buy and orders to sell submitted to ISE Mercury electronically by its registered broker-dealer members, as well as from quotes submitted electronically by market makers. Further, the Form 1 application states that ISE Mercury would be wholly-owned by its parent company, International Securities Exchange Holdings, Inc. (“ISE Holdings”), which also is the parent company of two existing national securities exchanges, ISE and ISE Gemini, LLC.
A more detailed description of the manner of operation of ISE Mercury's proposed system can be found in Exhibit E to ISE Mercury's Form 1 application. The proposed rulebook for the proposed exchange can be found in Exhibit B to ISE Mercury's Form 1 application, and the governing documents for both ISE Mercury and ISE Holdings can be found in Exhibit A and Exhibit C to ISE Mercury's Form 1 application, respectively. A listing of the officers and directors of ISE Mercury can be found in Exhibit J to ISE Mercury's Form 1 application.
ISE Mercury's Form 1 application, including all of the Exhibits referenced above, is available online at
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Chapter VIII of NASDAQ OMX PSX Fees, entitled PSX Last Sale Data Feeds and NASDAQ Last Sale Plus Data Feeds (“PSX Chapter VIII”), with language indicating the fees for NASDAQ Last Sale Plus (“NLS Plus”), a comprehensive data feed offered by NASDAQ OMX Information LLC.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposal is to amend PSX Chapter VIII(b) with language indicating the fees for NLS Plus. NLS Plus allows data distributors to access the three last sale products offered by each of NASDAQ OMX's three U.S. equity markets.
NLS Plus, which is codified in NASDAQ Rule 7039(d) and PSX Chapter VIII(b), has been offered since 2010 via NASDAQ OMX Information LLC. NLS Plus is described online at
NLS Plus allows data distributors to access last sale products offered by each of NASDAQ OMX's three equity exchanges. NLS Plus includes all transactions from all of NASDAQ OMX's equity markets, as well as FINRA/NASDAQ TRF data that is included in the current NLS product. In addition, NLS Plus features total cross-market volume information at the issue level, thereby providing redistribution of consolidated volume information (“consolidated volume”) from the securities information processors (“SIPs”) for Tape A, B, and C securities.
NLS Plus is currently codified in NASDAQ Rule 7039(d) and PSX Chapter VIII(b),
The Exchange believes that market data distributors may use the NLS Plus data feed to feed stock tickers, portfolio trackers, trade alert programs, time and sale graphs, and other display systems. The contents of NLS Plus are set forth in PSX Chapter VIII(b).
Firms that receive an NLS Plus feed today are liable for annual administration fees for applicable NASDAQ equity exchanges: $1,000 for NASDAQ, $1,000 for BX, and $1,000 for PSX.
Accordingly, proposed PSX Chapter VIII states the following at sections (b)(1) through (b)(3):
(1) Firms that receive NLS Plus shall pay the annual administration fees for NLS, BX Last Sale, and PSX Last Sale, and a data consolidation fee of $350 per month.
(2) Firms that receive NLS Plus would either be liable for NLS fees or NASDAQ Basic fees.
(3) In the event that NASDAQ OMX BX and/or NASDAQ OMX PHLX adopt user fees for BX Last Sale and/or PSX Last Sale, firms that receive NLS Plus would also be liable for such fees.
The Exchange notes that the proposed fee structure is designed to ensure that vendors could compete with the Exchange by creating a product similar to NLS Plus.
The proposed fee structure is reasonable and proper. First, the proposed administration fee is essentially a codification of the current administration fee vis a vis NASDAQ, BX and PSX. Second, NLS Plus recipients would also be liable for fees if the Exchange adopts user fees for BX Last Sale and/or PSX Last Sale. To that end, the Exchange notes that it has filed separate proposals to adopt NLS Plus in the BX Last Sale and PSX Last Sale provisions,
The Exchange believes that the proposed NLS Plus fee is a simple codification of the existing NLS PLS [sic] fee into PSX Chapter VIII, as discussed, with the addition of a monthly data consolidation fee, and as such meets the requirements of the Act.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that the proposed fees offered to firms that elect to receive NLS Plus are reasonable, equitable and not unfairly discriminatory. These fees are reasonable because they are, as discussed, simply a codification of the existing fee structure, with an addition of the above-discussed consolidation fee, into existing PSX Chapter VIII. The proposed fee structure would apply equally to all firms that choose to avail themselves of the NLS Plus data feed, and no firm is required to use NLS Plus. Moreover, the Exchange believes that the consolidation fee, while in addition to the current NLS Plus fee, would not be material to firms. The consolidation fee would, however, enable the Exchange to recoup the monthly consolidation cost emanating from the aggregation and consolidation of the data and data streams that make up the NLS Plus data feed. Such consolidated costs include, for example, the monthly costs of combining the feeds, adding the Bloomberg ID, and creating the consolidated sale info. The proposed fee structure would be equitable and not unfairly discriminatory because it would apply equally to all firms that choose to use NLS Plus.
The Exchange believes that the proposed fees are also consistent with the investor protection objectives of Section 6(b)(5) of the Act
The Exchange notes that the Commission has recently approved data products on several exchanges that are similar to NLS Plus, and specifically determined that the fee-liable approved data products were consistent with the Act.
In adopting Regulation NMS, the Commission granted SROs and broker-dealers (“BDs”) increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. The Exchange believes that the NLS Plus market data product is precisely the sort of market data product that the Commission envisioned when it adopted Regulation NMS. The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
The decision of the United States Court of Appeals for the District of Columbia Circuit in
The Court in
Moreover, fee liable data products such as NLS Plus are a means by which exchanges compete to attract order flow, and this proposal simply codifies the relevant fee structure into an Exchange rule. To the extent that exchanges are successful in such competition, they earn trading revenues and also enhance the value of their data products by increasing the amount of data they are able to provide. Conversely, to the extent that exchanges are unsuccessful, the inputs needed to add value to data products are diminished. Accordingly, the need to compete for order flow places substantial pressure upon exchanges to keep their fees for both executions and data reasonable.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed fee structure is designed to ensure a fair and reasonable use of Exchange resources by allowing the Exchange to recoup costs while continuing to offer its data products at competitive rates to firms.
The market for data products is extremely competitive and firms may freely choose alternative venues and data vendors based on the aggregate fees assessed, the data offered, and the value provided. This rule proposal does not burden competition, which continues to offer alternative data products and, like the Exchange, set fees,
NLS Plus joins the existing market for proprietary last sale data products that is currently competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market. Similarly, with respect to the FINRA/NASDAQ TRF data that is a component of NLS and NLS Plus, allowing exchanges to operate TRFs has permitted them to earn revenues by providing technology and data in support of the non-exchange segment of the market. This revenue opportunity has also resulted in fierce competition between the two current TRF operators, with both TRFs charging extremely low trade reporting fees and rebating the majority of the revenues they receive from core market data to the parties reporting trades.
Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price, and distribution of its data products. Without trade executions, exchange data products cannot exist. Moreover, data products are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, the operation of the exchange is characterized by high fixed costs and low marginal costs. This cost structure is common in content and content distribution industries such as software, where developing new software typically requires a large initial investment (and continuing large investments to upgrade the software), but once the software is developed, the incremental cost of providing that software to an additional user is typically small, or even zero (
An exchange's BD customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A BD will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the BD chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the BD will choose not to buy it. Moreover, as a BD chooses to direct fewer orders to a particular exchange, the value of the product to that BD decreases, for two reasons. First, the product will contain less information, because executions of the BD's trading activity will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that BD because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the BD is directing orders will become correspondingly more valuable.
Similarly, in the case of products such as NLS Plus that are distributed through market data vendors, the vendors provide price discipline for proprietary data products because they control the primary means of access to end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail BDs, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: They can simply refuse to purchase any proprietary data product that fails to provide sufficient value. Exchanges, TRFs, and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully. Moreover, the Exchange believes that products such as NLS Plus can enhance order flow by providing more widespread distribution of information about transactions in real time, thereby encouraging wider participation in the market by investors with access to the internet or television. Conversely, the value of such products to distributors and investors decreases if order flow falls, because the products contain less content.
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but
In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering. Such regulation is unnecessary because an “excessive” price for one of the joint products will ultimately have to be reflected in lower prices for other products sold by the firm, or otherwise the firm will experience a loss in the volume of its sales that will be adverse to its overall profitability. In other words, an increase in the price of data will ultimately have to be accompanied by a decrease in the cost of executions, or the volume of both data and executions will fall.
The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including eleven SRO markets, as well as internalizing BDs and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated TRFs compete to attract internalized transaction reports. It is common for BDs to further and exploit this competition by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products.
The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including NASDAQ, NYSE, NYSE MKT, NYSE Arca, and BATS/Direct Edge.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple BDs' production of proprietary data products. The potential sources of proprietary products are virtually limitless. Notably, the potential sources of data include the BDs that submit trade reports to TRFs and that have the ability to consolidate and distribute their data without the involvement of FINRA or an exchange-operated TRF.
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and NYSE Arca did before registering as exchanges by publishing proprietary book data on the internet. Second, because a single order or transaction report can appear in a core data product, an SRO proprietary product, and/or a non-SRO proprietary product, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace. Indeed, in the case of NLS Plus, the data provided through that product appears both in (i) real-time core data products offered by the SIPs for a fee, (ii) free SIP data products with a 15-minute time delay, and (iii) individual exchange data products, and finds a close substitute in last-sale products of competing venues.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TracECN, BATS Trading and BATS/Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While BDs have previously published their proprietary data individually, Regulation NMS encourages market data vendors and BDs to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg and Thomson Reuters. In Europe, Cinnober aggregates and disseminates data from over 40 brokers and multilateral trading facilities.
In the case of TRFs, the rapid entry of several exchanges into this space in 2006-2007 following the development and Commission approval of the TRF structure demonstrates the contestability of this aspect of the market.
Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products that are a subset of the consolidated data stream. First, the consolidated data is widely available in real-time at $1 per month for non-professional users. Second, consolidated data is also available at no cost with a 15- or 20-minute delay. Because consolidated data contains marketwide information, it effectively places a cap on the fees assessed for proprietary data (such as last sale data) that is simply a subset of the consolidated data. The mere availability of low-cost or free consolidated data provides a powerful form of pricing discipline for proprietary data products that contain data elements that are a subset of the consolidated data, by highlighting the optional nature of proprietary products.
In this environment, a super-competitive increase in the fees charged for either transactions or data has the
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Phlx-2015-76 and should be submitted on or before October 7, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to reduce the fee charged for FIX Trading Ports under Rule 7015(b) and certain other ports under Rule 7015(g) in light of the Exchange removing recently-upgraded hardware supporting the ports, which was the basis for an increased fee. The Exchange will implement the proposed new fees on September 1, 2015.
The text of the proposed rule change is below; proposed new language is underlined; proposed deletions are in brackets.
The following charges are assessed by Nasdaq for connectivity to systems operated by NASDAQ, including the Nasdaq Market Center, the FINRA/NASDAQ Trade Reporting Facility, and FINRA's OTCBB Service. The following fees are not applicable to the NASDAQ Options Market LLC. For related options fees for Access Services refer to Chapter XV, Section 3 of the Options Rules.
(a) No change.
(b) Financial Information Exchange (FIX)
(c)—(f) No change.
(g) Other Port Fees
The following port fees shall apply in connection with the use of other trading telecommunication protocols:
• $5
• An additional $200 per month for each port used for entering orders or quotes over the Internet.
• An additional $600 per month for each port used for market data delivery over the Internet.
The Dedicated OUCH Port Infrastructure subscription allows a member firm to assign up to 30 of its OUCH ports to a dedicated server infrastructure for its exclusive use. A Dedicated OUCH Port Infrastructure subscription is available to a member firm for a fee of $5,000 per month, which is in addition to the standard fees assessed for each OUCH port. A one-time installation fee of $5,000 is assessed subscribers for each Dedicated OUCH Port Server subscription.
(h)—(i) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ is proposing to amend NASDAQ Rules 7015(b) and (g) to modify the monthly fee it charges for ports used to enter orders in the NASDAQ Market Center for the trading of equities, in connection with the use of FIX and other trading telecommunication protocols.
NASDAQ recently completed internal testing of future functionality related to the trading systems and through this testing identified a potential unforeseen risk, which could cause a disruption to trading with the FPGA updated ports. As a consequence, the Exchange has determined that the risk associated with keeping the FPGA technology in terms of potential disruption to trading outweighs the benefit provided in terms of increased performance. Additionally, NASDAQ would like to conduct additional testing and further review of the implementation before reintroducing the offering. Accordingly, the Exchange is reverting the affected ports back to the hardware used prior to the FPGA hardware as a precautionary measure and concurrently reducing the monthly fees for those ports to their pre-upgrade levels.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes the proposed rule change is consistent with Section
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. The Exchange believes that the proposal is irrelevant to competition because it is not driven by, and will have no impact on, competition. Specifically, the Exchange is reverting fees to their prior, lower levels in light of the Exchange removing upgraded hardware that was the basis for the fee increase. Reverting the fees to their lower levels will keep the fees assessed in line with the Exchange's expenditures at this juncture associated with offering the ports. As such, the Exchange does not believe the proposed change will have any impact on competition, as market participants will be assessed the same fee for their ports with the same hardware that was in place prior to the fee increase.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
This matter comes before the Commission on petition to review the approval, through delegated authority, of the Options Clearing Corporation's (“OCC”) plan for raising additional capital (“Capital Plan”) to support its function as a systemically important financial market utility. On January 26, 2015, the Commission issued a notice of filing of the proposed rule change regarding the Capital Plan.
BATS Global Markets, Inc. (“BATS”), BOX Options Exchange LLC (“BOX”), KCG Holdings, Inc. (“KCG”), Miami International Securities Exchange, LLC (“MIAX”), and Susquehanna International Group, LLP (“SIG”) (collectively “Petitioners”) each filed petitions for review of the Approval Order, challenging the action taken by delegated authority.
The Commission finds that the Petitioners are aggrieved by the Approval Order and pursuant to Rule 431 of the Rules of Practice, the Petitioners' petitions for review of the Approval Order are granted. Further, the Commission hereby establishes that any party or other person may file a written statement in support of or in opposition to the Approval Order on or before October 7, 2015. This will provide an opportunity for the Commission to receive additional comment and information to help it more fully assess the issues raised. The Commission has issued a separate order addressing the automatic stay.
For the reasons stated above, it is hereby:
The order approving such proposed rule change shall remain in effect.
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to reflect a change to the reference index relating to the Market Vectors Short High Yield Municipal Index ETF. Shares of the Fund are currently listed and traded on the Exchange under NYSE Arca Equities Rule 5.2(j)(3). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Commission has approved listing and trading on the Exchange of shares (“Shares”) of the Market Vectors Short High Yield Municipal Index ETF (“Fund”) under NYSE Arca Equities Rule 5.2(j)(3), which governs the listing and trading of Investment Company Units (“Units”).
The Fund is a series of the Market Vectors ETF Trust. Van Eck Associates Corporation is the investment adviser (“Adviser”) for the Fund. Van Eck Securities Corporation is the Fund's distributor (“Distributor”). Van Eck Associates Corporation also is the administrator for the Fund (the “Administrator”). The Bank of New York Mellon is the custodian of the Fund's assets and provides transfer agency and fund accounting services to the Fund.
As described in the Release, the investment objective of the Fund is to seek to replicate as closely as possible, before fees and expenses, the price and yield performance of the Barclays Municipal High Yield Short Duration Index (the “Short High Yield Index” or “Index”).
The Index Provider is proposing to slightly revise the Index methodology as described in the Release as follows. The revised Short High-Yield Index (“Revised Index”) will have a targeted 40% weight in the Muni High Yield/$100 Million Deal Size Index (reduced from 50% weight). In addition, the Revised Index will have a 10% weight in the Muni A-Rated Index, which is comprised of investment grade components, as described below. The Revised Index will continue to have a 25% weight in the Muni High Yield/Under $100 Million Deal Size Index and a 25% weight in the Muni Baa-Rated/$100 Million Deal Size Index, as described in the Release.
The Revised Index will be comprised of four total return, market size weighted benchmark indexes with target weights as follows:
• 40% weight in Muni High Yield/$100 Million Deal Size Index. To be included in the Muni High Yield/$100 Million Deal Size Index, bonds must be unrated or rated Ba1/BB+ or lower by at least two of the following rating agencies if all three rate the bond: Moody's Investors Service, Inc. (“Moody's”), Standard & Poor's, Inc. (“S&P”) and Fitch, Inc. (“Fitch”). If only two of the three agencies rate the security, the lower rating is used to determine index eligibility. If only one of the three agencies rates a security, the rating must be Ba1/BB+ or lower. Bonds in the Muni High Yield/$100 Million Deal Size Index must have an outstanding par value of at least $3 million and be issued as part of a transaction of at least $100 million.
• 25% weight in Muni High Yield/Under $100 Million Deal Size Index. To be included in the Muni High Yield/Under $100 Million Deal Size Index, bonds must be unrated or rated Ba1/BB+ or lower by at least two of the following rating agencies if all three rate the bond: Moody's, S&P and Fitch. If only two of the three agencies rate the security, the lower rating is used to determine index eligibility. If only one of the three agencies rates a security, the rating must be Ba1/BB+ or lower. Bonds in the Muni High Yield/Under $100 Million Deal Size Index must have an outstanding par value of at least $3 million and be issued as part of a transaction of under $100 million but over $20 million.
• 25% weight in Muni Baa-Rated/$100 Million Deal Size Index. To be included in the Muni Baa-Rated/$100 Million Deal Size Index, bonds must have a Barclays credit quality classification between Baa1/BBB+ and Baa3/BBB-. Barclays credit quality classification is based on the three rating agencies, Moody's, S&P and Fitch. If two of the three agencies rate the bond equivalently, then that rating is used. If all three rate the bond differently, the middle rating is used. If only two of the three agencies rate the security, the lower rating is used to determine index eligibility. If only one of the three agencies rates a security, the rating must be Baa1/BBB+, Baa2/BBB, or Baa3/BBB-. The bonds must have an outstanding par value of at least $7 million and be issued as part of a transaction of at least $100 million.
• 10% weight in Muni A-Rated Index. To be included in the Muni A-Rated Index, bonds must have a Barclays credit quality classification between A1/A+ and A3/A-. The Barclays credit quality classification is based on the three rating agencies, Moody's, S&P and Fitch. If two of the three agencies rate the bond equivalently, then that rating is used. If all three rate the bond differently, the middle rating is used. If only two of the three agencies rate the security, the lower rating is used to determine index eligibility. If only one of the three agencies rates a security, the rating must be A1/A+, A2/A, or A3/A−. The bonds must have an outstanding par value of at least $7 million and be issued as part of a transaction of at least $75 million.
Remarketed issues are not allowed in the benchmark. All bonds must have a fixed rate, a dated-date (
The composition of the Revised Index will be rebalanced monthly. Interest and principal payments earned by the component securities will be held in the Revised Index without a reinvestment return until month end when they are removed from the Revised Index.
Total returns will be calculated based on the sum of price changes, gain/loss on repayments of principal, and coupons received or accrued, expressed as a percentage of beginning market value. The Revised Index will be calculated and will be available once a day.
The Exchange is submitting this proposed rule change because the Revised Index does not meet all of the “generic” listing requirements of Commentary .02(a) to NYSE Arca Equities Rule 5.2(j)(3) applicable to the listing of Units based on fixed income securities indexes. The Revised Index meets all such requirements except for those set forth in Commentary .02(a)(2).
As of June 30, 2015, 69.73% of the weight of the Revised Index components was composed of individual maturities that were part of an entire municipal bond offering with a minimum original principal amount outstanding of $100 million or more for all maturities of the offering. In addition, the total dollar amount outstanding of issues in the Revised Index was approximately $224.6 billion and the average dollar amount outstanding of issues in the Index was approximately $23.7 million. Further, the most heavily weighted component represents 2.44% of the weight of the Revised Index and the five most heavily weighted components represent 9.47% of the weight of the Revised Index.
In addition, the average daily notional trading volume for Revised Index components for the period from June 30, 2014 to June 30, 2015 was approximately $323.6 million and the sum of the notional trading volumes for the same period was $82.2 billion.
The Revised Index value, calculated and disseminated at least once daily, as well as the components of the Revised Index and their percentage weighting, will be available from major market data vendors. In addition, the portfolio of securities held by the Fund will be disclosed daily on the Fund's Web site at
The Exchange represents that: (1) except for Commentary .02(a)(2) to NYSE Arca Equities Rule 5.2(j)(3), the Shares of the Fund currently satisfy all of the generic listing standards under NYSE Arca Equities Rule 5.2(j)(3); (2) the continued listing standards under NYSE Arca Equities Rules 5.2(j)(3) and 5.5(g)(2) applicable to Units shall apply to the Shares; and (3) the Trust is required to comply with Rule 10A-3 under the Act
The current value of the Revised Index will be widely disseminated by one or more major market data vendors at least once per day, as required by NYSE Arca Equities Rule 5.2(j)(3), Commentary .02 (b)(ii). The IIV for Shares of the Fund will be disseminated by one or more major market data vendors, updated at least every 15 seconds during the Exchange's Core Trading Session, as required by NYSE Arca Equities Rule 5.2(j)(3), Commentary .02 (c).
The Adviser represents that there is no change to the Fund's investment objective. The Fund will continue to comply with all initial and continued listing requirements under NYSE Arca Equities Rule 5.2(j)(3).
Except for the changes noted above, all other facts presented and representations made in the Release remain unchanged.
All terms referenced but not defined herein are defined in the Release.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices, and is designed to promote just and equitable principles of trade and to protect investors and the public interest, in that the Adviser represents that there is no change to the Fund's investment objective. Under the revised Index methodology, there will be a 40% weight in the Muni High Yield/$100 Million Deal Size Index (reduced from 50% weight). In addition, the Revised Index will have a 10% weight in the Muni A-Rated Index, which is comprised of investment grade components. The Revised Index will continue to have a 25% weight in the Muni High Yield/Under $100 Million Deal Size Index and a 25% weight in the Muni Baa-Rated/$100 Million Deal Size Index, as described in the Release. Therefore, the benchmark indexes would include a higher overall percentage in investment grade and, specifically, higher rated investment grade municipal issues, than under the current Index methodology. The Exchange believes that, as with the current Index, the Revised Index will be sufficiently broad-based to deter potential manipulation, and the Revised Index components will be sufficiently liquid to deter potential manipulation in that a substantial portion (69.73%) of the Revised Index weight will be composed of maturities that are part of a minimum original principal amount outstanding of $100 million or more. In addition, because 90% of the Revised Index weight will consist of the same benchmark index weightings as described in the Release, there will continue to be substantial total dollar amount outstanding and average dollar amount outstanding of Revised Index issues. As with the current Index, the Revised Index value, calculated and disseminated at least once daily, as well as the components of the Revised Index and their respective percentage weightings, will be available from major market data vendors. In addition, the portfolio of securities held by the Fund will be disclosed on the Fund's Web site. The IIV for Shares of the Fund will be disseminated by one or more major market data vendors, updated at least every 15 seconds during the Exchange's Core Trading Session.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that the Fund will continue to comply with all initial and continued listing requirements under NYSE Arca Equities Rule 5.2(j)(3). As noted above, the Revised Index meets all such requirements except for those set forth in Commentary .02(a)(2).
In addition, the average daily notional trading volume for Revised Index components for the period from June 30, 2014 to June 30, 2015 was approximately $323.6 million and the sum of the notional trading volumes for the same period was $82.2 billion.
The Revised Index value, calculated and disseminated at least once daily, as well as the components of the Revised Index and their percentage weighting, will be available from major market data vendors. In addition, the portfolio of securities held by the Fund will be disclosed daily on the Fund's Web site at
The Adviser represents that there is no change to the Fund's investment objective. Except for the changes noted above, all other representations made in the Release remain unchanged.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed changes will accommodate continued listing and trading of an issue of Managed Fund Shares that holds municipal securities.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of LOUISIANA (FEMA-4228-DR), dated 07/13/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of
All other information in the original declaration remains unchanged.
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, under Section 309 of the Act and Section 107.1900 of the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small business Investment Company License No. 09/79-0454 issued to Emergence Capital Partners SBIC, L.P., said license is hereby declared null and void.
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, under Section 309 of the Act and Section 107.1900 of the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small business Investment Company License No. 02/02-5495 issued to Jardine Capital Corporation., said license is hereby declared null and void.
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, under Section 309 of the Act and Section 107.1900 of the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small business Investment Company License No. 10/10-0192 issued to Tamarack Mezzanine Partners, L.P., said license is hereby declared null and void.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions and extensions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
Office of Management and Budget, Attn: Desk Officer for SSA, Fax: 202-395-6974, Email address:
Social Security Administration, OLCA, Attn: Reports Clearance Director, 3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax: 410-966-2830, Email address:
Or you may submit your comments online through
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than November 16, 2015. Individuals can obtain copies of the collection instruments by writing to the above email address.
1. Farm Self-Employment Questionnaire—20 CFR 404.1082(c) & 404.1095—0960-0061. SSA collects the information on Form SSA-7156 on a voluntary and as-needed basis to determine the existence of an agriculture trade or business, which may affect the monthly benefit, or insured status of the applicant. SSA requires the existence of a trade or business before determining if an individual or partnership may have net earnings from self-employment. When an applicant indicates self-employment as a farmer, SSA uses the SSA-7165 to obtain the information we need to determine the existence of an agricultural trade or business, and subsequent covered earnings for Social Security entitlement purposes. As part of the application process, we conduct a personal interview, either face-to-face or via telephone, and document the interview using Form SSA-7165. The respondents are applicants for Social Security benefits, whose entitlement depends on workers having covered earnings from self-employment as farmers.
Type of Request: Revision of an OMB-approved information collection.
2. Pain Report Child—20 CFR 404.1512 and 416.912—0960-0540. Before SSA can make a disability determination for a child, we require evidence from Supplemental Security Income (SSI) applicants or claimants to prove their disability. Form SSA-3371-BK provides disability interviewers, and SSI applicants or claimants in self-help situations, with a convenient way to record information regarding claimants' pain or other symptoms. The State disability determination services adjudicators and administrative law judges use the information from Form SSA-3371-BK to assess the effects of symptoms on claimants' ability to function, for purposes of determining disability under the Act. The respondents are applicants for, or claimants of, SSI payments.
Type of Request: Revision of an OMB-approved information collection.
3. Internet Request for Replacement of Forms SSA-1099/SSA-1042S—20 CFR 401.45—0960-0583. Title II beneficiaries use Forms SSA-1099 and SSA-1042S, Social Security Benefit Statement, to determine (1) if their Social Security benefits are taxable, and (2) the amount they need to report to the Internal Revenue Service. In cases where the original forms are unavailable (
Type of Request: Revision of an OMB-approved information collection.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding the information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than October 16, 2015. Individuals can obtain copies of the OMB clearance packages by writing to
1. Employment Relationship Questionnaire—20 CFR 404.1007—0960-0040. When SSA needs information to determine a worker's employment status for the purpose of maintaining a worker's earning records, the agency uses Form SSA-7160-F4 to determine the existence of an employer-employee relationship. We use the information to develop the employment relationship; specifically to determine whether a beneficiary is self-employed or an employee. The respondents are individuals seeking to establish their status as employees, and their alleged employers.
Note: This is a correction notice. SSA published this information collection as a revision on July 17, 2015, at 80 FR 42600. Since we are not revising the Privacy Act Statement, this is now an extension of an OMB-approved information collection.
Type of Request: Extension of an OMB-approved information collection.
2. Testimony by Employees and the Production of Records and Information in Legal Proceedings—20 CFR 403.100-403.155—0960-0619. Regulations at 20 CFR 403.100-403.155 of the Code of Federal Regulations establish SSA's policies and procedures for an individual, organization, or government entity to request official agency information, records, or testimony of an agency employee in a legal proceeding when the agency is not a party. The request, which respondents submit in writing to the Commissioner, must (1) fully set out the nature and relevance of the sought testimony; (2) explain why the information is not available by other means; (3) explain why it is in SSA's interest to provide the testimony; and (4) provide the date, time, and place for the testimony. Respondents are individuals or entities who request testimony from SSA employees in connection with a legal proceeding.
Type of Request: Extension of an OMB-approved information collection.
3. Notification of a Social Security Number (SSN) To An Employer for Wage Reporting—20 CFR 422.103(a)—0960-0778. Individuals applying for employment must provide a Social Security Number, or indicate they have applied for one. However, when an individual applies for an initial SSN, there is a delay between the assignment of the number and the delivery of the SSN card. At an individual's request, SSA uses Form SSA-132 to send the individual's SSN to an employer. Mailing this information to the employer: (1) Ensures the employer has the correct SSN for the individual; (2) allows SSA to receive correct earnings information for wage reporting purposes; and (3) reduces the delay in the initial SSN assignment and delivery of the SSN information directly to the employer. It also enables SSA to verify the employer as a safeguard for the applicant's personally identifiable information. The majority of individuals who take advantage of this option are in the United States with exchange visitor and student visas; however, we allow any applicant for an SSN to use the SSA-132. The respondents are individuals applying for an initial SSN who ask SSA to mail confirmation of their application or the SSN to their employers.
Type of Request: Revision of an OMB-approved information collection.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to November 16, 2015.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Kaye Shaw, Bureau of Consular Affairs, Overseas Citizens Services (CA/OCS/PMO), U.S. Department of State, SA-17, 10th Floor, Washington, DC 20036 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the requests for information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by October 16, 2015.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Public Comments Invited: You are asked to comment on any aspect of this information collection, including (a) Whether the proposed collection of information is necessary for FAA's performance; (b) the accuracy of the estimated burden; (c) ways for FAA to enhance the quality, utility and clarity of the information collection; and (d) ways that the burden could be minimized without reducing the quality of the collected information. The agency will summarize and/or include your comments in the request for OMB's clearance of this information collection.
Ronda Thompson at (202) 267-1416, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our
Written comments should be submitted by October 16, 2015.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Public Comments Invited: You are asked to comment on any aspect of this information collection, including (a) Whether the proposed collection of information is necessary for FAA's performance; (b) the accuracy of the estimated burden; (c) ways for FAA to enhance the quality, utility and clarity of the information collection; and (d) ways that the burden could be minimized without reducing the quality of the collected information. The agency will summarize and/or include your comments in the request for OMB's clearance of this information collection.
Ronda Thompson at (202) 267-1416, or by email at:
Federal Aviation Administration, DOT.
Notice of public meeting.
In preparation for the International Civil Aviation Organization's (ICAO) Dangerous Goods Panel (DGP) meeting to be held October 19-October 30, 2015, in Montreal, Canada, the Federal Aviation Administration's (FAA) Office of Hazardous Materials Safety and the Pipeline and Hazardous Materials Safety Administration's (PHMSA) Office of Hazardous Materials Safety announce a public meeting.
The public meeting will be held on Thursday, October 8, 2015 from 9 a.m. until 12 p.m.
The public meeting will be held at FAA Headquarters (FOB 10A), 8th Floor Conference Rooms (8A, 8B, & 8C), 800 Independence Avenue SW., Washington, DC 20591.
Questions regarding the meeting can be directed to Ms. Janet McLaughlin, Director, Office of Hazardous Materials Safety, ADG-1, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-9432, Email:
Participants are requested to register by using the following email address:
We are committed to providing equal access to this meeting for all participants. If you need alternative formats or other reasonable accommodations, please call (202) 267-9432 or email
Information and viewpoints provided by stakeholders are requested as the United States delegation prepares for the International Civil Aviation Organization's Dangerous Goods Panel meeting to be held October 19-October 30, 2015, in Montreal, Canada.
Papers relevant to this ICAO DGP meeting can be viewed at the following Web page:
A panel of representatives from the FAA and PHMSA will be present. The meetings are intended to be informal, non-adversarial, and to facilitate the public comment process. No individual will be subject to questioning by any other participant. Government representatives on the panel may ask questions to clarify statements. Unless otherwise stated, any statement made during the meetings by a panel member should not be construed as an official position of the US government.
The meeting will be open to all persons, subject to the capacity of the meeting room and phone lines available for those participating via conference call. Every effort will be made to accommodate all persons wishing to attend. The FAA and PHMSA will try to accommodate all speakers, subject to time constraints.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, the FAA invites public comments about our intention to request OMB approval to revise an existing information collection. The
Comments should be submitted by October 16, 2015.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
The FAA is seeking comments only with regard to the burden associated with the information collection activity under OMB Control Number 2120-0034. As such, any comments received that cite this notice but are outside of the scope of the collection activity under OMB Control Number 2120-0034 will not be addressed.
Ronda Thompson at (202) 267-1416, or by email at:
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice and Request for Comments.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the renewal Information Collection Requests (ICRs) abstracted below are being forwarded to the Office of Management and Budget (OMB) for review and comment. The ICRs describes the nature of the information collection and its expected burden. The
Comments must be submitted on or before October 16, 2015.
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 25, Washington, DC 20590 (Telephone: (202) 493-6292), or Ms. Kimberly Toone, Office of Information Technology, RAD-20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590 (Telephone: (202) 493-6132). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, sec. 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), and 1320.12. On June 22, 2015, FRA published a 60-day notice in the
Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30 day notice is published. 44 U.S.C. 3507 (b)-(c); 5 CFR 1320.12(d);
The summary below describes the nature of the information collection requests (ICRs) and the expected burden. The revised request is being submitted for clearance by OMB as required by the PRA.
A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this notice in the
44 U.S.C. 3501-3520.
Surface Transportation Board, DOT.
Notice of Rail Energy Transportation Advisory Committee meeting.
Notice is hereby given of a meeting of the Rail Energy Transportation Advisory Committee (RETAC), pursuant to the Federal Advisory Committee Act (FACA), 5 U.S.C. app. 2 § 10(a)(2).
The meeting will be held on Thursday, October 1, 2015, at 9:00 a.m. E.D.T.
The meeting will be held in the Hearing Room on the first floor of the Board's headquarters at 395 E Street SW., Washington, DC 20423.
Michael Higgins (202) 245-0284;
RETAC was formed in 2007 to provide advice and guidance to the Board and to serve as a forum for discussion of emerging issues related to the transportation of energy resources by rail, including coal, ethanol, and other biofuels.
The meeting, which is open to the public, will be conducted in accordance with the Federal Advisory Committee Act, 5 U.S.C. app. 2; Federal Advisory Committee Management regulations, 41 CFR pt. 102-3; RETAC's charter; and Board procedures. Further communications about this meeting may be announced through the Board's Web site at
49 U.S.C. 721; 49 U.S.C. 11101; 49 U.S.C. 11121.
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Western Washington Railroad, LLC (WWRR) has filed a verified notice of exemption under 49 CFR 1150.41 to operate, pursuant to a sublicense agreement dated May 6, 2014,
WWRR states that neither the sublicense agreement between WWRR and CCRM nor the license agreement between CCRM and the Port contain any provision that prohibits WWRR from interchanging traffic with a third party or that limits WWRR's ability to interchange with a third party. WWRR also states that the Port has provided its consent to the sublicense agreement.
The parties may consummate the transaction on or after September 30, 2015, the effective date of this exemption (30 days after the verified notice was filed).
WWRR certifies that the projected annual revenues as a result of this transaction will not result in WWRR's becoming a Class I or Class II rail carrier and will not exceed $5 million.
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 35922, 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 applicant's representative, W. Karl Hansen, Stinson Leonard Street LLP, 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before October 16, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by email at
| 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 |