| Page Range | 61975-62427 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 62111 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of a Currently Approved Collection; Comments Requested Research To Support the National Crime Victimization Survey (NCVS) | |
| 80 FR 62113 - Sunshine Act Meeting | |
| 80 FR 62111 - Government in the Sunshine Act Meeting Notice | |
| 80 FR 62093 - Notice of Inventory Completion: Pima County Office of the Medical Examiner, Tucson, AZ | |
| 80 FR 62094 - Notice of Inventory Completion: University of Michigan, Ann Arbor, MI | |
| 80 FR 62014 - Sunshine Act Meeting | |
| 80 FR 62105 - Notice of Inventory Completion: University of Michigan, Ann Arbor, MI | |
| 80 FR 62099 - Notice of Inventory Completion: University of Michigan, Ann Arbor, MI | |
| 80 FR 62103 - Notice of Inventory Completion: University of Michigan, Ann Arbor, MI | |
| 80 FR 62107 - Notice of Inventory Completion: University of Michigan, Ann Arbor, MI | |
| 80 FR 61985 - Protection of Stratospheric Ozone: The 2016 Critical Use Exemption From the Phaseout of Methyl Bromide | |
| 80 FR 62114 - Records Schedules; Availability and Request for Comments | |
| 80 FR 62069 - Registration Review Interim Decisions; Notice of Availability | |
| 80 FR 61996 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Dedicated Purpose Pool Pumps (DPPP) Working Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy Conservation Standards | |
| 80 FR 62098 - Notice of Intent To Repatriate Cultural Items: Thomas Burke Washington State Museum, University of Washington, Seattle, WA | |
| 80 FR 62102 - Notice of Inventory Completion: University of Michigan, Ann Arbor, MI | |
| 80 FR 62012 - Agency Information Collection Activities: Proposed Collection; Comment Request-Supplemental Nutrition Assistance Program's Quality Control Review Schedule Form FNS 380-1 | |
| 80 FR 62109 - Notice of Inventory Completion: Pejepscot Historical Society, Brunswick, ME | |
| 80 FR 62053 - Applications for New Awards; Personnel Development To Improve Services and Results for Children With Disabilities-Personnel Preparation in Special Education, Early Intervention, and Related Services | |
| 80 FR 62105 - Notice of Intent to Repatriate Cultural Items: City of Bellingham/Whatcom Museum, Bellingham, WA | |
| 80 FR 62013 - Fremont-Winema National Forest; Chiloquin Ranger District; Oregon: Lobert Restoration Project Environmental Impact Statement | |
| 80 FR 62097 - Notice of Inventory Completion: Thomas Burke Memorial Washington State Museum, University of Washington, Seattle, WA | |
| 80 FR 62096 - Notice of Inventory Completion: University of Michigan, Ann Arbor, MI | |
| 80 FR 62100 - Notice of Inventory Completion: University of Michigan, Ann Arbor, MI | |
| 80 FR 62079 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0040 | |
| 80 FR 62111 - Advisory Board on Toxic Substances and Worker Health | |
| 80 FR 62026 - Certain High Pressure Steel Cylinders From the People's Republic of China: Rescission of Countervailing Duty Administrative Review; 2014 | |
| 80 FR 62016 - Citric Acid and Certain Citrate Salts From Canada: Final Results of Antidumping Duty Administrative Review; 2013-2014 | |
| 80 FR 62023 - Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes From the Republic of Turkey: Postponement of Preliminary Determination in the Countervailing Duty Investigation | |
| 80 FR 62086 - Notice of Submission of Proposed Information Collection to OMB; Emergency Comment Request Notice of Emergency Approval of an Information Collection: Connect Home Baseline Survey Data Collection | |
| 80 FR 62027 - Glycine From the People's Republic of China: Final Results of Antidumping Duty Administrative Review and Partial Rescission of Antidumping Duty Administrative Review; 2013-2014 | |
| 80 FR 61975 - Final Primary Category Airworthiness Design Standards; AutoGyro USA, LLC (AutoGyro) Model Calidus Gyroplane | |
| 80 FR 62075 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 62075 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 80 FR 62089 - Endangered Species; Wild Bird Conservation; Marine Mammals; Receipt of Applications for Permit | |
| 80 FR 62018 - Narrow Woven Ribbons With Woven Selvedge From the People's Republic of China: Final Results of Antidumping Duty Administrative Review | |
| 80 FR 62024 - Certain Polyethylene Terephthalate Resin From the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination | |
| 80 FR 62019 - Certain Polyethylene Terephthalate Resin From Canada: Affirmative Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination | |
| 80 FR 62029 - Certain Polyethylene Terephthalate Resin From India: Affirmative Preliminary Determination of Sales at Less Than Fair Value, Affirmative Preliminary Determination of Critical Circumstances, and Postponement of Final Determination | |
| 80 FR 62021 - Certain Polyethylene Terephthalate Resin From the Sultanate of Oman: Affirmative Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination | |
| 80 FR 62028 - Purified Carboxymethylcellulose From the Netherlands: Final Results of Changed Circumstances Review and Revocation of the Antidumping Duty Order | |
| 80 FR 62021 - Silicomanganese from Venezuela: Rescission of Antidumping Duty Administrative Review; 2014-2015 | |
| 80 FR 61993 - NASA Federal Acquisition Regulation Supplement | |
| 80 FR 62171 - Non-VA Care Core Provider Network | |
| 80 FR 62044 - Fisheries of the Northeastern United States; Atlantic Surfclam and Ocean Quahog Fisheries; Notice That Vendor Will Provide 2016 Cage Tags | |
| 80 FR 62074 - Notice of Agreement Filed | |
| 80 FR 61993 - Designation of Health Professional(s) Shortage Areas | |
| 80 FR 62161 - Qualification of Drivers; Exemption Applications; Vision | |
| 80 FR 62171 - Notice of Meeting | |
| 80 FR 62116 - Security Exemptions/License Amendment Requests for Decommissioning Nuclear Power Plants | |
| 80 FR 62077 - Announcement of Solicitation of Written Comments on Modifications of Healthy People 2020 Objectives | |
| 80 FR 62155 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
| 80 FR 62163 - Qualification of Drivers; Exemption Applications; Vision | |
| 80 FR 61981 - Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying Benefits | |
| 80 FR 62091 - Proposed Information Collection; Federal Subsistence Regulations and Associated Forms | |
| 80 FR 62047 - Notice Inviting Postsecondary Educational Institutions To Participate in Experiments Under the Experimental Sites Initiative; Federal Student Financial Assistance Programs Under Title IV of the Higher Education Act of 1965, as Amended | |
| 80 FR 62044 - Pacific Fishery Management Council; Public Meeting | |
| 80 FR 62073 - Agency Information Collection Activities: Submission of Renewals for OMB Review; Comment Request (3064-0090, -0111, -0136, -0138 & -0171) | |
| 80 FR 62076 - Membership of the Gulf Coast Ecosystem Restoration Council Performance Review Board | |
| 80 FR 62071 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Risk Management Program Requirements and Petitions To Modify the List of Regulated Substances (Renewal) | |
| 80 FR 62079 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 61994 - Fisheries of the Northeastern United States; Summer Flounder Fishery; Commercial Quota Available for the Commonwealth of Massachusetts | |
| 80 FR 62032 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Pier Replacement Project | |
| 80 FR 62008 - Finding for a Petition To Exclude Federally-Maintained Dredged Port Channels From New York to Jacksonville From Vessel Speed Restrictions Designed To Reduce Vessel Collisions With North Atlantic Right Whales | |
| 80 FR 62072 - FDIC Advisory Committee on Economic Inclusion (ComE-IN); Notice of Meeting | |
| 80 FR 62046 - Notice of Intent To Grant a Partially Exclusive License; Envoy Flight Systems, Inc. | |
| 80 FR 62046 - Notice of Availability of Government-Owned Inventions; Available for Licensing | |
| 80 FR 62085 - Agency Information Collection Activities: Application for Exportation of Articles Under Special Bond | |
| 80 FR 62082 - Modification of the National Customs Automation Program (NCAP) Test Concerning the Automated Commercial Environment (ACE) Document Image System (DIS) Regarding Future Updates and New Method of Submission of Accepted Documents | |
| 80 FR 62169 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel FREEDOM; Invitation for Public Comments | |
| 80 FR 62167 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel WAVELENGTH; Invitation for Public Comments | |
| 80 FR 62168 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel SUNDOG; Invitation for Public Comments | |
| 80 FR 62166 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel FROG PRINTS; Invitation for Public Comments | |
| 80 FR 62169 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel SURLY MERMAID; Invitation for Public Comments | |
| 80 FR 62167 - Agency Requests for Renewal of a Previously Approved Information Collection(s): Maritime Administration (MARAD) Jones Act Vessel Availability Determinations | |
| 80 FR 62120 - Product Change-Priority Mail Negotiated Service Agreement | |
| 80 FR 62120 - Product Change-Priority Mail Express Negotiated Service Agreement | |
| 80 FR 62012 - Submission for OMB Review; Comment Request | |
| 80 FR 62170 - Advisory Committee to the Internal Revenue Service; Meeting | |
| 80 FR 62170 - Proposed Collection; Comment Request for Regulation Project | |
| 80 FR 62171 - Proposed Collection; Comment Request for Regulation Project | |
| 80 FR 62080 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0108 | |
| 80 FR 61983 - Safety Zone, Atlantic Intracoastal Waterway; Oak Island, NC | |
| 80 FR 62153 - Application From the State of Ohio to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State | |
| 80 FR 62152 - Buy America Waiver Notification | |
| 80 FR 62155 - Buy America Waiver Notification | |
| 80 FR 62154 - Buy America Waiver Notification | |
| 80 FR 62069 - Maritimes & Northeast Pipeline, L.L.C.; Notice of Informal Settlement Conference | |
| 80 FR 62064 - Alaska Gasline Development Corporation; BP Alaska LNG, LLC; Conoco Phillips Alaska LNG Company; ExxonMobil Alaska LNG, LLC; TransCanada Alaska Midstream, LP; Notice of Public Scoping Meetings for the Planned Alaska LNG Project | |
| 80 FR 62068 - PennEast Pipeline Company, LLC; Notice of Application | |
| 80 FR 62065 - Transcontinental Gas Pipe Line Company, LLC; Notice of Intent To Prepare an Environmental Assessment for the Proposed New York Bay Expansion Project and Request for Comments on Environmental Issues | |
| 80 FR 62067 - Twin Lakes Canal Company; Notice of Availability of the Draft Environmental Impact Statement for the Bear River Narrows Hydroelectric Project and Intention To Hold Public Meetings | |
| 80 FR 62065 - PJM Interconnection, L.L.C.; PJM Interconnection, L.L.C.; Potomac Electric Power Company; Notice of Technical Conference | |
| 80 FR 62111 - Notice of Lodging of Proposed Consent Decree Under the Clean Water Act | |
| 80 FR 62074 - Revocation of License No. 017843, Washington Movers, Inc.; Order To Show Cause | |
| 80 FR 62075 - Petition of Crowley Caribbean Services, LLC and Crowley Latin America Services, LLC, for an Exemption From Commission Regulations; Notice of Filing and Request for Comments | |
| 80 FR 62088 - Federal Housing Administration (FHA): Points of Contact To Ensure Payment of Taxes and Homeowners Association Fees and Other Property Charges That Have Not Arisen to Lien Status on FHA Acquired Single Family Properties | |
| 80 FR 62087 - Federal Housing Administration (FHA): Points of Contact for Lienholders To Ensure Payment of Taxes Liens and Other Types of Liens on FHA Acquired Single Family Properties | |
| 80 FR 62088 - Redelegation of Authority Within the Office of General Counsel | |
| 80 FR 62151 - Projects Rescinded for Consumptive Uses of Water | |
| 80 FR 62076 - Peripheral and Central Nervous System Drugs Advisory Committee; Notice of Meeting | |
| 80 FR 62115 - Agency Information Collection Activities: Comment Request | |
| 80 FR 61980 - Federal Housing Administration (FHA): Court of Competent Jurisdiction To Foreclose Liens on FHA-Owned Properties | |
| 80 FR 62137 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change To Amend FINRA Rule 2210 (Communications With the Public) | |
| 80 FR 62125 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Complex Orders | |
| 80 FR 62139 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Delivery of the Regulatory Element of the Exchange's Continuing Education Program | |
| 80 FR 62129 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Concerning the Requirement for Clearing Members To Participate in Operation Testing | |
| 80 FR 62145 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Sections 902.03, 902.04, 902.05 and 902.06 of the Listed Company Manual To Increase Certain of the Fees Set Forth Therein | |
| 80 FR 62120 - Self-Regulatory Organizations; ICE Clear Credit LLC; Order Approving Proposed Rule Change To Provide for the Clearance of Additional Western European Sovereign Single Names | |
| 80 FR 62121 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing of Proposed Rule Change To Permit Trades in Eligible Fixed Income Securities Scheduled To Settle on Day After Trade Date To Be Processed for Settlement at National Securities Clearing Corporation | |
| 80 FR 62142 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt an Issuer Incentive Program Applicable to Securities Listed on BATS Exchange, Inc. | |
| 80 FR 62131 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services | |
| 80 FR 62132 - Self-Regulatory Organizations; BOX Options Exchange, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule on the BOX Market LLC Options Facility | |
| 80 FR 62146 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Order Approving Proposed Rule Change To Adopt a Kill Switch | |
| 80 FR 62123 - Fidelity Management & Research Company and FMR Co., Inc.; Notice of Application | |
| 80 FR 62166 - Railroad Safety Advisory Committee; Notice of Meeting | |
| 80 FR 62166 - Northeast Corridor Safety Advisory Committee; Notice of Meeting | |
| 80 FR 62045 - Submission for OMB Review; Comment Request | |
| 80 FR 62119 - New Postal Product | |
| 80 FR 62118 - New Postal Product | |
| 80 FR 62015 - Submission for OMB Review; Comment Request | |
| 80 FR 62110 - Polyethylene Retail Carrier Bags From China, Indonesia, Malaysia, Taiwan, Thailand, and Vietnam; Scheduling of Full Five-Year Reviews | |
| 80 FR 62079 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
| 80 FR 62078 - National Institute on Drug Abuse; Notice of Closed Meetings | |
| 80 FR 62086 - Notice of Maximum Amount of Assistance Under the Individuals and Households Program | |
| 80 FR 62003 - Approval and Promulgation of Air Quality Implementation Plans; Texas; Infrastructure and Interstate Transport for the 2008 Lead National Ambient Air Quality Standards | |
| 80 FR 62045 - Agency Information Collection Activities: Notice of Intent To Renew Collection: Rules Relating to Review of National Futures Association Decisions in Disciplinary, Membership Denial, Registration, and Member Responsibility Actions | |
| 80 FR 62148 - Agency Information Collection Activities: Proposed Request and Comment Request | |
| 80 FR 61997 - DoD Environmental Laboratory Accreditation Program (ELAP) | |
| 80 FR 62174 - SES Positions That Were Career Reserved During CY 2014 | |
| 80 FR 61978 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 80 FR 61975 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 80 FR 62390 - National Emission Standards for Hazardous Air Pollutants for Primary Aluminum Reduction Plants | |
| 80 FR 62274 - Open-End Fund Liquidity Risk Management Programs; Swing Pricing; Re-Opening of Comment Period for Investment Company Reporting Modernization Release |
Food and Nutrition Service
Forest Service
Office of Advocacy and Outreach
International Trade Administration
National Oceanic and Atmospheric Administration
Navy Department
Federal Energy Regulatory Commission
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
National Park Service
Workers Compensation Programs Office
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Maritime Administration
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.
Federal Aviation Administration (FAA), DOT.
Issuance of final Airworthiness Design Standards.
These airworthiness design standards are issued to AutoGyro for certification of the Model Calidus gyroplane under the regulations for primary category aircraft.
These airworthiness design standards are effective November 16, 2015.
Gary Roach, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy., Fort Worth, Texas 76177; telephone (817) 222-5110; email
Any person may obtain a copy of this information by contacting the person named above under
The “primary” category for aircraft was created specifically for the simple, low performance personal aircraft. Section 21.17(f) provides a means for applicants to propose airworthiness standards for their particular primary category aircraft. The FAA procedure establishing appropriate airworthiness standards includes reviewing and possibly revising the applicant's proposal, publication of the submittal in the
Proposed Primary Category Airworthiness Design Standards; AutoGyro USA, LLC (AutoGyro) Model Calidus Gyroplanes was published in the
These airworthiness design standards under the primary category rule are applicable to the Autogyro Model Calidus gyroplane. Should Autogyro wish to apply these airworthiness design standards to other gyroplane models, Autogyro must submit a new airworthiness design standard application under the primary rule category.
This action affects only certain airworthiness design standards on the Autogyro Model Calidus gyroplane. It is not a standard of general applicability and it affects only the applicant who applied to the FAA for approval of these features on the gyroplane.
The authority citation for these airworthiness standards is as follows:
49 U.S.C. 106(g), 40113 and 44701.
For Aircraft Certification and the Powerplant Installation:
Section T Light Gyroplanes, of the British Civil Airworthiness Requirements (BCAR), Issue 3, dated August 12, 2005.
14 CFR 27.853(a) and (c)(1) Amdt 27-37 Compartment Interior; §§ 23.735(a) through (c) Amdt 23-62 Brakes except that the reference to § 23.75 is replaced with Section T75 of BCAR Section T, Issue 3; §§ 27.735(a) and (c)(1) Amdt 27-21 Brakes; §§ 27.1365(b) and (c) Amdt 27-35 Electrical Cables; and § 27.1561(a) Safety Equipment, as applicable to these aircraft.
For Engine Assembly Certification:
ASTM F2339-06 (2009), “Standard Practice for Design and Manufacture of Reciprocating Spark Ignition Engines for Light Sport Aircraft,” except paragraph A1.1.3.
For Propeller Certification:
Section T Light Gyroplanes, of the BCAR, Issue 3, dated August 12, 2005; ASTM F2506-10 (2009), “Standard Specification for Design and Testing of Fixed-Pitch or Ground Adjustable Light Sport Aircraft Propellers,” paragraph 5.5 Propeller Strength and Endurance and Section 6 Tests and Inspections.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective October 15, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of October 15, 2015.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC, 20590-0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures 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 rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment provides the affected CFRs, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs 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.
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
* * *
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective October 15, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, 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 rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs 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
Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Office of the General Counsel, HUD.
Interpretive rule.
The Federal Housing Administration (FHA) generally acquires title to single family properties when it pays mortgage insurance benefits to approved mortgagees. FHA's activities in managing and marketing the properties it acquires include paying real estate taxes referred to as
Bruce S. Albright, Senior Trial Attorney and Litigation Risk Advisor, Office of Litigation, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10258, Washington, DC 20410-8000; telephone number 202-708-0300 (this is not a toll-free number). Persons with hearing or speech challenges may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.
Under FHA's single family mortgage insurance program, FHA took title to approximately 94,500 properties in Fiscal Year (FY) 2012 by paying insurance claims to approved mortgagees. In recouping its losses to the Mutual Mortgage Insurance Fund (MMIF), FHA manages and markets these properties through contractors.
There is a time lag between a mortgagee initiating and completing the foreclosure of a defaulted insured mortgage and FHA acquiring and managing the property. Taxes or Homeowners Association (HOA) or Condominium Association (CA) fees, or fees for special assessments may come due and payable at the time when the property is being conveyed to FHA (or shortly thereafter) for the insurance benefits. HUD issued Mortgagee Letter 2013-18 on May 31, 2013, addressing unpaid tax and association fees.
If a taxing authority, HOA, CA, or special assessment entity is unable to obtain payment of the amounts due after sending out notices and contacting FHA offices and contractors, its alternative has been to perfect a lien under applicable local law and then attempt to enforce the lien against the HUD owned property by foreclosing the lien on the property. Normally, absent the involvement of a Federal agency, this is accomplished under a state court procedure, which varies greatly from jurisdiction to jurisdiction as to the time period in which to respond to the summons and complaint, as well as upon who service is required to be made. HUD's involvement as a Federal government agency, however, means that the proper venue should be in Federal District Court. On occasion, when actions are brought in state court, the government's interest cannot be determined quickly enough for a U.S. Attorney's Office to timely respond to a complaint that seeks to foreclose FHA's ownership interest in a property. If the property is taken by the taxing authority or other entity, FHA must expend time and resources to recover the property, and may even lose its ability to recoup its insurance losses to the Mutual Mortgage Insurance Fund (MMIF).
This interpretive rule clarifies HUD's longstanding position on the question of what is meant by the term “court of competent jurisdiction” in the “sue and be sued” clause contained in section 1, Title I of the National Housing Act (NHA) (12 U.S.C. 1702). The purpose of this clarification is to assist FHA to efficiently manage its real estate owned (REO) inventory and ensure prompt payment for taxes and other fees and assessments. The purpose is also to protect FHA's MMIF assets, which include acquired single family properties.
Ancillary to the interpretive rule, HUD is providing POCs in each of its four HOCs to receive tax bills and similar billings. Each HOC oversees on average 13 states/jurisdictions for FHA activities and has an REO division that handles the day-to-day oversight of FHA's acquired properties. In most cases, having a known POC to send billings should obviate the need to have to bring suit against HUD to levy on a property.
In the unlikely event it becomes necessary for a taxing authority or HOA, CA or special assessment entity to proceed against HUD's property, this interpretive rule explains the exclusive federal jurisdiction for such an action. Section 1 title I, of the NHA provides a limited waiver of sovereign immunity. Under that provision: “[T]he Secretary shall, in carrying out the functions of this title and titles II, III . . . be authorized, in his official capacity, to sue and be sued
The Supreme Court succinctly explained the lack of jurisdiction in state courts and the exclusivity of federal court jurisdiction in QTA actions in
[T]he intent of Congress seems reasonably clear. The congressional purpose was simply to confine jurisdiction to the federal courts and to exclude the courts of the States, which otherwise might be presumed to have jurisdiction over quiet-title suits against the United States, once its sovereign immunity had been waived. . . . We find, therefore, that section 1346(f), by vesting ‘exclusive original jurisdiction’ of quiet title actions against the United States in the federal district courts did no more than assure that such jurisdiction was not conferred upon the courts of any State.
Federal courts have consistently held that 28 U.S.C. 2409a authorizes owners of an interest in real property in which an agency such as HUD holds an interest, including an ownership interest, to bring suit to foreclose the government's interest in the property. The QTA applies to lawsuits involving interests that could cloud title, not just traditional quiet title actions, as the terminology of the QTA by its terms includes any adjudication of a “disputed title” to real property.
In order to have a uniform process that both the public and HUD can use, and which will ensure that HUD can act in a timely, accurate, and consistent manner to protect properties that are assets of the MMIF, it is HUD's interpretation that the sue and be sued clause in 12 U.S.C. 1702, specifically the words “court of competent jurisdiction” means, for purposes of foreclosing tax, HOA, CA, special assessment (
As the exclusive venue for foreclosing a lien on HUD-owned property is a United States District Court, the Federal Rules of Civil Procedure (FRCP) must be followed. Rule 4(i) sets out the procedures to serve Federal agencies. Under that rule, the head of the agency or his or her designee must be served, as well as the United States Attorney General and the United States Attorney in the applicable district. HUD, by separate notice in today's
Accordingly, HUD interprets the “sue and be sued” clause of section 1 of title 1 of the NHA as requiring suit to be brought exclusively in the Federal District Court where the property is located (or in the Federal District Court for the District of Columbia) if a lienholder wishes to enforce a lien against a single family property owned by HUD as the result of the payment of a mortgage insurance claim.
Pension Benefit Guaranty Corporation.
Final rule.
This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in
Effective November 1, 2015.
Catherine B. Klion (
PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site (
PBGC uses the interest assumptions in appendix B to part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in appendices B and C of the benefit payment regulation are the same.
The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for November 2015.
The November 2015 interest assumptions under the benefit payments regulation will be 1.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for October 2015, these interest assumptions are unchanged.
PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during November 2015, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
In consideration of the foregoing, 29 CFR part 4022 is amended as follows:
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of the Atlantic Intracoastal Waterway near Oak Island, North Carolina. This action is necessary to provide the safety of mariners on navigable waters due to the transfer of power cables across the Atlantic Intracoastal Waterway. Entry into or movement within the safety zone during the enforcement period is prohibited without approval of the Captain of the Port.
This rule is effective without actual notice from October 15, 2015 until October 20, 2015. For the purposes of enforcement, actual notice will be used from October 12, 2015 until October 15, 2015.
Documents mentioned in this preamble are part of docket [USCG-2015-0809]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Derek J. Burrill, Waterways Management Division Chief, Sector North Carolina, Coast Guard; telephone (910) 772-2230, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because final project details were not submitted to the Coast Guard until September 4, 2015. As such, it's impractical to provide a full comment period due to lack of time. Delaying the effective date for comment would be contrary to the public interest, since immediate action is needed to ensure protection of persons and vessels transiting the area.
For similar reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis for this rule is 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; and DHS Delegation No. 0170.1. Under these authorities the Coast Guard may establish a safety zone in defined water areas that are determined to have hazardous conditions and in which vessel traffic can be regulated in the interest of safety.
On October 12, 13, 19, and 20, 2015 Coastal Power will be installing power cables that will run across the Atlantic Intracoastal Waterway at latitude 33°55′11″ N, longitude 078°03′24″ W in Oak Island, North Carolina. To facilitate the safety of mariners and the public, the U.S Coast Guard will require temporary closures of the channel on October 12, 13, 19, 20, 2015.
The Coast Guard is establishing a temporary safety zone on the navigable waters of the Atlantic Intracoastal Waterway within a 100 yard radius of latitude 33°55′11″ N, longitude 078°03′24″ W in Oak Island, North Carolina. This safety zone will be established in the interest of public safety due to the transfer of power cables across the Atlantic Intracoastal Waterway. The regulated area for this safety zone includes all the water of the Atlantic Intracoastal Waterway within a 100 yard radius of latitude 33°55′11″ N, longitude 078°03′24″ W, a position located north of the Oak Island Fixed Bridge in Oak Island, North Carolina. This rule will be enforced on October 12, 13, 19, 20, 2015 during the times of 09:00 a.m. to 12:00 p.m. and 01:00 p.m. to 04:00 p.m. Vessels authorized by the Captain of the Port or his/her Representative to enter or remain in the safety zone during the above listed time frame must have a height clearance of 30 feet and greater and are required to notify on scene Coastal Power and Electric work boats at a minimum of 40 minutes prior to transiting the area on VHF marine radio channels 13 or 16 or via phone at 910-512-1645.
Except for vessels authorized by the Captain of the Port or his/her Representative, no person or vessel may enter or remain in the safety zone during the time frame listed. The Captain of the Port will give notice of the enforcement of the safety zone by all appropriate means to provide the widest dissemination of notice among the affected segments of the public. This will include publication in the Local Notice to Mariners and Marine Information Broadcasts.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of 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
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in waters of the Atlantic Intracoastal Waterway within a 100 yard radius of latitude 33°55′11″ N., longitude 078°03′24″ W. position during the outlined timeframe.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone will only be in place for a limited duration, and (ii) before the enforcement period, maritime advisories will be issued allowing mariners to adjust their plans accordingly.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone to protect life, property and the environment. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) The operator of any vessel in the immediate vicinity of this safety zone shall:
(i) If on scene proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(ii) [Reserved]
(3) The Captain of the Port, North Carolina can be reached through the Sector North Carolina Command Duty Officer at Sector North Carolina in Wilmington, North Carolina at telephone number (910) 343-3882.
(4) The Coast Guard Representatives enforcing the safety zone can be contacted on VHF-FM marine band radio channel 13 (165.65 Mhz) and channel 16 (156.8 Mhz).
(d)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is authorizing uses that qualify for the critical use exemption and the amount of methyl bromide that may be produced or imported for those uses for the 2016 control period. EPA is issuing this action under the authority of the Clean Air Act to reflect consensus decisions of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer at the Twenty-Sixth Meeting of the Parties in November 2014.
This rule is effective on January 1, 2016.
EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2013-0369. All documents in the docket are listed on the
Jeremy Arling, Stratospheric Protection Division, Office of Atmospheric Programs, Mail Code 6205T, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number (202) 343-9055; email address
This rule concerns Clean Air Act (CAA) restrictions on the consumption, production, and use of methyl bromide (a Class I, Group VI controlled substance) for critical uses. Under the Clean Air Act, methyl bromide consumption (consumption is defined under section 601 of the CAA as production plus imports minus exports) and production were phased out on January 1, 2005, apart from allowable exemptions, such as the critical use and the quarantine and preshipment (QPS) exemptions. With this action, EPA is authorizing the uses that will qualify for the critical use exemption as well as specific amounts of methyl bromide that may be produced and imported for those critical uses for 2016.
Entities and categories of entities potentially regulated by this action include producers, importers, and exporters of methyl bromide; applicators and distributors of methyl bromide; and users of methyl bromide that applied for the 2016 critical use exemption including growers of vegetable crops, ornamentals, fruits, and nursery stock, and owners of stored food commodities. This list is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility, company, business, or organization could be regulated by this action, you should carefully examine the regulations promulgated at 40 CFR part 82, subpart A. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section.
Methyl bromide is an odorless, colorless, toxic gas which is used as a broad-spectrum pesticide and is controlled under the CAA as a Class I ozone-depleting substance (ODS). Methyl bromide was once widely used as a fumigant to control a variety of pests such as insects, weeds, rodents, pathogens, and nematodes.
Methyl bromide is also regulated by EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other statutes and regulatory authorities, as well as by States under their own statutes and regulatory authority. Under FIFRA, methyl bromide is a restricted use pesticide. Restricted use pesticides are subject to Federal and State requirements governing their sale, distribution, and use. Nothing in this rule implementing Title VI of the Clean Air Act is intended to derogate from provisions in any other Federal, State, or local laws or regulations governing actions including, but not limited to, the sale, distribution, transfer, and use of methyl bromide. Entities affected by this action must comply with FIFRA and other pertinent statutory and regulatory requirements for pesticides (including, but not limited to, requirements pertaining to restricted use pesticides) when producing, importing, exporting, acquiring, selling, distributing, transferring, or using methyl bromide. The provisions in this action are intended only to implement the CAA restrictions on the production, consumption, and use of methyl bromide for critical uses exempted from the phaseout of methyl bromide.
The regulatory requirements of the stratospheric ozone protection program that limit production and consumption of ozone-depleting substances are in 40 CFR part 82, subpart A. The regulatory program was originally published in the
Methyl bromide was added to the Protocol as an ozone-depleting substance in 1992 through the Copenhagen Amendment to the Protocol. The Parties to the Montreal Protocol (Parties) agreed that each developed country's level of methyl bromide production and consumption in 1991 should be the baseline for establishing a freeze on the level of methyl bromide production and consumption for developed countries. EPA published a rule in the
At the Seventh Meeting of the Parties (MOP) in 1995, the Parties agreed to adjustments to the methyl bromide control measures and agreed to reduction steps and a 2010 phaseout date for developed countries with exemptions permitted for critical uses. At that time, the United States continued to have a 2001 phaseout date in accordance with section 602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties agreed to further adjustments to the phaseout schedule for methyl bromide in developed countries, with reduction steps leading to a 2005 phaseout. The Parties also established a phaseout date of 2015 for countries operating under Article 5 of the Protocol (developing countries).
In October 1998, the U.S. Congress amended the Clean Air Act to prohibit the termination of production of methyl bromide prior to January 1, 2005, to require EPA to align the U.S. phaseout of methyl bromide with the schedule specified under the Protocol, and to authorize EPA to provide certain exemptions. These amendments were contained in section 764 of the 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act (Pub. L. 105-277, October 21, 1998) and were codified in section 604 of the CAA, 42 U.S.C. 7671c. The amendment that specifically addresses the critical use exemption appears at section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout schedule for methyl bromide production and consumption in a rulemaking on November 28, 2000 (65 FR 70795), which allowed for the reduction in methyl bromide consumption specified under the Protocol and extended the phaseout to 2005 while creating a placeholder for critical use exemptions. Through an interim final rule on July 19, 2001 (66 FR 37751), and a final rule on January 2, 2003 (68 FR 238), EPA amended the regulations to allow for an exemption for quarantine and preshipment purposes.
On December 23, 2004 (69 FR 76982), EPA published a rule (the “Framework Rule”) that established the framework for the critical use exemption, set forth a list of approved critical uses for 2005, and specified the amount of methyl bromide that could be supplied in 2005 from stocks, new production, or through imports to meet the needs of approved critical uses. EPA has subsequently published rules applying the critical use exemption framework for each of the annual control periods from 2006 to 2015.
In accordance with Article 2H(5) of the Montreal Protocol, the Parties have issued several Decisions pertaining to the critical use exemption. These include Decisions IX/6 and Ex. I/4, which set forth criteria for review of critical uses. The status of Decisions is addressed in
Under authority of section 604(d)(6) of the CAA, EPA is now listing approved critical uses, as well as authorizing the amount of methyl bromide that may be produced or imported to satisfy those uses during 2016. The critical uses and amounts reflect Decision XXVI/6, taken at the Twenty-Sixth Meeting of the Parties in November 2014.
Article 2H of the Montreal Protocol established the critical use exemption provision. At the Ninth Meeting of the Parties in 1997, the Parties established the criteria for an exemption in Decision IX/6. In that Decision, the Parties agreed that “a use of methyl bromide should qualify as `critical' only if the nominating Party determines that: (i) The specific use is critical because the lack of availability of methyl bromide for that use would result in a significant market disruption; and (ii) There are no technically and economically feasible alternatives or substitutes available to the user that are acceptable from the standpoint of environment and health and are suitable to the crops and circumstances of the nomination.” EPA promulgated these criteria in the definition of “critical use” at 40 CFR 82.3.
In addition, Decision IX/6 provides that production and consumption, if any, of methyl bromide for critical uses should be permitted only if a variety of conditions have been met, including that all technically and economically feasible steps have been taken to minimize the critical use and any associated emission of methyl bromide, that research programs are in place to develop and deploy alternatives and substitutes, and that methyl bromide is not available in sufficient quantity and quality from existing stocks of banked or recycled methyl bromide.
EPA requested critical use exemption applications for 2016 through a
EPA reviews the data submitted by applicants, as well as data from governmental and academic sources, to establish whether there are technically and economically feasible alternatives available for a particular use of methyl bromide, and whether there would be a significant market disruption if no exemption were available. In addition, an interagency workgroup reviews other parameters of the exemption applications such as dosage and emissions minimization techniques and applicants' research or transition plans. As required in section 604(d)(6) of the CAA, for each exemption period, EPA consults with the United States Department of Agriculture (USDA).
On January 22, 2014, the United States submitted the twelfth
The December 23, 2004, Framework Rule established the framework for the critical use exemption program in the United States, including definitions, prohibitions, trading provisions, and recordkeeping and reporting obligations. The preamble to the Framework Rule included EPA's determinations on key issues for the critical use exemption program.
Since publishing the Framework Rule, EPA has annually issued regulations to indicate which uses meet the criteria for the exemption and to exempt specific quantities of production and import of methyl bromide for a particular year.
This action continues the approach established in the 2013 Rule (78 FR 43797, July 22, 2013) for determining the amounts of Critical Use Allowances (CUAs) to be allocated for critical uses. A CUA is the privilege granted through 40 CFR part 82 to produce or import 1 kilogram (kg) of methyl bromide for an approved critical use during the specified control period. A control period is a calendar year. See 40 CFR 82.3. Each year's allowances expire at the end of that control period and, as explained in the Framework Rule, are not bankable from one year to the next.
In Decision XXVI/6, taken in November 2014, the Parties to the Protocol agreed “[t]o permit, for the agreed critical-use categories for 2015 and 2016 set forth in table A of the annex to the present decision for each party, subject to the conditions set forth in the present decision and in decision Ex. I/4 to the extent that those conditions are applicable, the levels of production and consumption for 2015 and 2016 set forth in table B of the annex to the present decision, which are necessary to satisfy critical uses. . . .” Cured pork and strawberry field production are the uses that are set forth in table A of the annex to Decision XXVI/6 for the United States for 2016.
This rule modifies the table in 40 CFR part 82, subpart A, appendix L to reflect the agreed critical use categories. EPA is amending the table of critical uses and critical users based on the uses permitted in Decision XXVI/6 and the technical analyses contained in the 2016 U.S. nomination that assess data submitted by applicants to the CUE program. For reasons discussed below, EPA is removing the time limitation in appendix L for the approval of dry-cured pork products as a critical use to
Specifically, this rule removes the food processing uses that were listed in the joint 2014/2015 CUE rule as critical uses for 2014. The California Date Commission as well as all users under the food processing use (rice millers, pet food manufacturing facilities, and members of the North American Millers' Association) did not submit CUE applications for 2016 and therefore were not included in the 2016 U.S. nomination to the Parties of the Montreal Protocol.
This rule also removes the remaining commodity uses (walnuts, dried plums, figs, and raisins). These sectors applied for a critical use in 2016 but the United States did not nominate them for 2016. In addition, some sectors that were not on the list of critical uses for 2014 or 2015 submitted applications for 2016. These sectors are: Michigan cucurbit, eggplant, pepper, and tomato growers; Florida eggplant, pepper, strawberry, and tomato growers; the California Association of Nursery and Garden Centers; California stone fruit, table and raisin grape, walnut, and almond growers; ornamental growers in California and Florida; and the U.S. Golf Course Superintendents Association. EPA conducted a thorough technical assessment of each application and considered the effects that the loss of methyl bromide would have for each agricultural sector, and whether significant market disruption would occur as a result. Following this technical review, EPA consulted with the USDA and the Department of State. EPA determined that these users did not meet the critical use criteria in Decision IX/6 and the United States did not include them in the 2016 Critical Use Nomination. EPA notified these sectors of their status by letters dated March 28, 2014. For each of these uses, EPA found that there are technically and economically feasible alternatives to methyl bromide. EPA refers readers to the
EPA requested comment on the technical assessments of the applications in the sector summaries found in the docket and the determination that these users did not meet the critical use criteria. EPA also requested any new or additional information that the Agency may consider in preparing future nominations. EPA also sought comment on the technical analyses contained in the U.S. nomination and information regarding any changes to the registration (including cancellations or registrations), use, or efficacy of alternatives that occurred after the nomination was submitted.
As EPA noted in the proposed rule, as the market for alternatives evolves, the thresholds for what constitutes “significant market disruption” or “technical and economic feasibility” may change. Such information has the potential to alter the technical or economic feasibility of an alternative and could thus cause EPA to modify the analysis that underpins EPA's determination as to which uses and what amounts of methyl bromide qualify for the CUE.
EPA received one comment on the proposed rule. This commenter highlighted the chemical and non-chemical alternatives in use in the European Union, including other fumigants, integrated crop management systems, heat treatment, gamma irradiation, cold storage, resistant varieties and cultivars, crop rotation, cover crops, soil solarization, and anaerobic disinfestation. EPA considered these alternatives when developing the nomination for critical uses for 2016, but concluded that additional research on alternatives is still necessary for dry cured ham production, and that additional time to transition to chloropicrin is needed for California strawberries.
The same commenter urged the Agency to announce an end date for all methyl bromide exemptions and, in light of the recent human health incident in the U.S. Virgin Islands, to end the use of all methyl bromide in the United States. Neither the Protocol nor the Clean Air Act establishes a specific end date for the critical use exemption. However, as noted in Decision Ex. I/4, the Parties intended for the critical use exemption to be a limited, temporary derogation from that phaseout. Progress in developing alternatives in key areas of historical methyl bromide use has been significant and has allowed many sectors to successfully transition from methyl bromide over the last decade. Specifically, the number of sectors nominated has declined from seventeen for 2006 to one for 2017.
With respect to the commenter's request that EPA end all use of methyl bromide in the U.S., we note that production for quarantine and preshipment is excluded from the phaseout under the Montreal Protocol and that section 604(d)(5) of the Clean Air Act directs EPA to exempt production for this purpose. EPA continues to support this important exemption to prevent the introduction and spread of quarantine pests while encouraging research into alternatives that meet the rigorous standards for quarantine and preshipment applications.
Table A of the annex to Decision XXVI/6 lists critical uses and amounts agreed by the Parties to the Montreal Protocol for 2016. The maximum amount of new production and import for U.S. critical uses in 2016, specified in Table B of the annex to Decision XXVI/6, is 234.78 MT, minus available stocks. This figure is equivalent to less than 1 percent of the U.S. 1991 methyl bromide consumption baseline of 25,528 MT.
EPA has determined the level of new production and import according to the Framework Rule, as modified by the 2013 Rule. Under this approach, the amount of new production for each control period equals the total amount permitted by the Parties to the Montreal Protocol in their Decisions minus any reductions for available stocks, carryover, and the uptake of alternatives. These terms (available stocks, carryover, and the uptake of alternatives) are discussed in detail below. Applying this approach, EPA is allocating allowances to exempt 140,531 kg of new production and import of methyl bromide for critical uses in 2016, making reductions for available stocks and carryover. This is the same amount EPA proposed to allocate.
The Parties to the Protocol recognized in their Decisions that the level of existing stocks may differ from the level of available stocks. Decision XXVI/6 states that “production and consumption of methyl bromide for critical uses should be permitted only if methyl bromide is not available in sufficient quantity and quality from existing stocks. . . .” In addition, the Decision states that “parties operating under critical-use exemptions should take into account the extent to which methyl bromide is available in sufficient
In the 2013 CUE Rule (78 FR 43797, July 22, 2013), EPA established an approach that considered whether a percentage of the existing inventory was available. In that rule, EPA took comment on whether 0% or 5% of the existing stocks was available. The final rule found 0% was available for critical use in 2013 for a number of reasons including: A pattern of significant underestimation of inventory drawdown; the increasing concentration of critical users in California while inventory remained distributed nationwide; and the recognition that the Agency cannot compel distributors to sell inventory to critical users. For further discussion, see the 2013 CUE Rule (78 FR 43802).
EPA believes that 5% of existing stocks will be available in 2016 for the two critical uses. As a result of the changes to the FIFRA labeling, methyl bromide sold or distributed in 2015 can only be used for approved critical uses or for quarantine and preshipment purposes. Except for sectors with quarantine and preshipment uses, California strawberries is the only pre-plant sector that will be able to use stocks in 2015 or 2016. EPA does not anticipate stocks to be used for quarantine and preshipment uses as there are no production allowances required to manufacture that material and it tends to be less expensive than stocks. Distributors will therefore likely make stocks available to California strawberry growers in 2015 and 2016.
While EPA has not estimated the amount of stocks that will be used in 2015, EPA believes that at least 5% of stocks will be available in 2016. As discussed in the section on carryover below, demand by California strawberry growers in 2014 for critical use methyl bromide was lower than anticipated. For the first time since 2009, not all of the critical use material produced or imported for a control period was sold. Decreased demand for critical use methyl bromide in 2014 means that unsold material already produced will be available in 2015 in addition to stocks.
Furthermore, EPA now knows the national distribution and composition of stocks (
For these reasons, EPA finds that 5% of the existing inventory is available for use in 2016. Existing stocks, as of December 31, 2014, were equal to 158,121 kg. Therefore, EPA is reducing the amount of new production for 2016 by 7,906 kg, as proposed.
EPA specifically invited comment on whether between 0% and 5% of existing inventory will be available to critical users in 2016. EPA did not receive any comments on that specific issue but did receive a comment that it is unclear whether the information received by EPA is an accurate reflection of the existing and available stocks of methyl bromide in the United States. The commenter encouraged improved information gathering to better ensure that these stocks are being used in compliance with the FIFRA labeling and the critical use exemption.
EPA has undertaken two information gathering requests in 2015 under section 114 of the CAA. The first request was discussed in the proposed rule and sought information about the composition (
As a further response, under FIFRA, EPA is also working to implement changes to methyl bromide commodity labels in order to clarify uses and provide additional protections for workers and bystanders. EPA is also looking at how additional reporting could help ensure compliance with label requirements through EPA's Registration Review program, which evaluates pesticides on a regular basis. Information on the review of methyl bromide, along with a schedule of when the next public comment periods are anticipated, can be found on regulations.gov at docket number EPA-HQ-OPP-2013-0269.
In 2015, companies reported that 442,200 kg of methyl bromide was produced or imported for U.S. critical uses in 2014. Companies also reported that 355,857 kg of critical use methyl bromide was sold to end-users in 2014. EPA calculates that the carryover at the end of 2014 was 86,343 kg, which is the difference between the reported amount of critical use methyl bromide produced or imported in 2014 and the reported amount of sales of that material to end users in 2014. EPA's calculation of carryover is consistent with the method used in previous CUE rules, and with the format in Decision XVI/6 for calculating column L of the U.S. Accounting Framework. All U.S. Accounting Frameworks for critical use methyl bromide are available in the public docket for this rulemaking. EPA is therefore reducing the total level of new production and import for critical uses by 86,343 kg to reflect the amount of carryover material available at the end of 2014, in addition to the 7,906 kg reduction for available stocks discussed above.
EPA has considered the possibility that there might be methyl bromide produced in 2015 and 2016 carried over into subsequent years. Any pre-plant critical use methyl bromide carried over from the 2015 control period could not be subtracted in 2017, as would usually be done. That is because critical use material produced for a pre-plant use
EPA believes that not all 2014 carryover produced for post-harvest uses may be used by the end of 2016 given the low volume used by the ham production sector. As discussed above, EPA has accounted for 2014 post-harvest carryover in this rule and has reduced the production of new material. EPA is also working to connect dry cured ham producers with distributors that hold post-harvest carryover to help ensure that it will be used. However, EPA believes that ham producers should be allowed to continue to use carryover post-harvest critical use methyl bromide should any remain after 2016. EPA believes that hams may not have a technically or economically feasible alternative by the end of 2016 and thus will likely continue to meet the critical use criteria beyond 2016. Therefore, to provide certainty to the ham producers and to continue an orderly reduction in methyl bromide produced for critical uses, EPA will allow the continued use of post-harvest carryover for hams beyond 2016. Accordingly, EPA is not specifying a date limitation in appendix L for the approval of dry cured pork products as critical uses.
EPA is not making any other modifications to CUE amounts to account for availability of alternatives. Rates of transition to alternatives have already been applied for permitted 2016 critical use amounts through the nomination and authorization process. EPA continues to gather information about methyl bromide alternatives through the CUE application process, and by other means. EPA also continues to support research and adoption of methyl bromide alternatives, and to request information about the economic and technical feasibility of all existing and potential alternatives.
EPA is assigning the 7,906 kg reduction for available stocks and 86,343 kg reduction for carryover in proportion to the amounts indicated in Table A of the annex to Decision XXVI/6. In other words, both the pre-plant and the post-harvest allocation are reduced by 40%. Specifically, the pre-plant allocation for California strawberry production is 138,592 kg and the post-harvest allocation for dry cured ham is 1,939 kg. Reported data show that the critical use methyl bromide carried over from 2014 and the existing stocks include both pre-plant and post-harvest material.
The proposed Framework Rule contained several options for allocating critical use allowances, including a sector-by-sector approach. The Agency evaluated various options based on their economic, environmental, and practical effects. After receiving comments, EPA determined in the final Framework Rule that a lump-sum, or universal, allocation, modified to include distinct caps for pre-plant and post-harvest uses, was the most efficient and least burdensome approach that would achieve the desired environmental results, and that a sector-by-sector approach would pose significant administrative and practical difficulties. Because there is only one use in the pre-plant sector and one use in the post-harvest sector, this rule follows the breakout of specific uses in Decision XXVI/6.
Decision XXVI/6 calls on Parties to apply the criteria in Decision IX/6, paragraph 1 and the conditions set forth in Decision Ex. I/4 (to the extent applicable) to exempted critical uses for the 2016 control period. The following section provides references to sections of this preamble and other documents where EPA considers the criteria of those two Decisions.
Decision IX/6, paragraph 1 contains the critical use criteria, which are summarized in Section III.A of the preamble. The nomination documents detail how each critical use meets the criteria in Decision IX/6, paragraph 1 including: The lack of available technically and economically feasible alternatives under the circumstance of the nomination; efforts to minimize use and emissions of methyl bromide where technically and economically feasible; and the development of research and transition plans. The nomination documents also address the requests in Decision Ex. I/4 paragraphs 5 and 6 that Parties consider and implement MBTOC recommendations, where feasible, on actions a Party may take to reduce the critical uses of methyl bromide and include information on the methodology they use to determine economic feasibility.
A discussion of the Agency's application of the critical use criteria to the critical uses in this rule appears in Sections III.A., III.C., and III.D. of this preamble. The Agency has previously provided its interpretation of the criterion in Decision IX/6, paragraph (1)(a)(i) regarding the presence of significant market disruption in the absence of an exemption. EPA refers readers to the preamble to the 2006 CUE rule (71 FR 5989, February 6, 2006) as well as to the memo in the docket titled “Development of 2003 Nomination for a Critical Use Exemption for Methyl Bromide for the United States of America” for further elaboration. As explained in those documents, EPA's interpretation of this term has several dimensions, including looking at potential effects on both demand and supply for a commodity, evaluating potential losses at both an individual
The United States also considered the research and adoption of alternatives when developing the National Management Strategy submitted to the Ozone Secretariat in December 2005 and updated in October 2009. The National Management Strategy addresses all of the aims specified in Decision Ex. I/4, paragraph 3 to the extent feasible and is available in the docket for this rulemaking.
Previous Decisions of the Parties have stated that critical users shall employ emissions minimization techniques such as virtually impermeable films, barrier film technologies, deep shank injection and/or other techniques that promote environmental protection, whenever technically and economically feasible. EPA developed a comprehensive strategy for risk mitigation through the 2009 Reregistration Eligibility Decision (RED)
EPA will continue to work with the U.S. Department of Agriculture—Agricultural Research Service (USDA-ARS) and the National Institute for Food and Agriculture (USDA-NIFA) to promote emissions reduction techniques. The Federal government has invested substantial resources into developing and implementing best practices for methyl bromide use, including emissions reduction practices. The Cooperative Extension System, which receives some support from USDA-NIFA, provides locally appropriate and project-focused outreach education regarding methyl bromide transition best practices. Additional information on USDA research on alternatives and emissions reduction can be found at:
Users of methyl bromide should continue to minimize overall emissions of methyl bromide. EPA also encourages researchers and users who are using techniques to minimize emissions of methyl bromide to inform EPA of their experiences and to provide information on such techniques with their critical use applications.
EPA is making minor technical changes to section 82.13(y) and (z) related to recordkeeping and reporting under the quarantine and preshipment exemption. Section 82.13(y) contains a reference to paragraph (aa) where it should reference paragraph (y). Similarly, section 82.13(z) contains a reference to paragraph (bb) where it should reference paragraph (z). This merely corrects a typographical error and is not a substantive change to the recordkeeping requirements or the quarantine and preshipment exemption program.
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0482. The application, recordkeeping, and reporting requirements have already been established under previous critical use exemption rulemakings.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. Since this rule allows the use of methyl bromide for approved critical uses after the phaseout date of January 1, 2005, this action confers a benefit to users of methyl bromide. We have therefore concluded that this action will relieve regulatory burden for all directly regulated small entities.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This action allocates allowances for the production and import of methyl bromide to private entities. This rule also limits the critical uses to geographical areas that reflect the scope of the trade associations that applied for a critical use. This rule does not impose any duties or responsibilities on state governments or allocate any rights to produce or use methyl bromide to a state government.
This action does not have tribal implications as specified in Executive Order 13175. This rule does not significantly or uniquely affect the communities of Indian tribal governments nor does it impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in the Regulatory Impacts
This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This action does not pertain to any segment of the energy production economy nor does it regulate any manner of energy use.
This rulemaking does not involve technical standards.
EPA believes this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it affects the level of environmental protection equally for all affected populations. Any ozone depletion that results from this action will result in impacts that are, in general, equally distributed across geographical regions in the United States. The impacts do not fall disproportionately on minority or low-income populations but instead vary with a wide variety of factors. Populations that work or live near fields or other application sites may benefit from the reduced amount of methyl bromide applied, as compared to amounts allowed under previous critical use exemption rules.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Chemicals, Exports, Imports, Ozone depletion.
For the reasons stated in the preamble, 40 CFR part 82 is amended as follows:
42 U.S.C. 7414, 7601, 7671-7671q.
(c) * * *
(1) * * *
(y) Every distributor of methyl bromide (class I, Group VI controlled substances) who purchases or receives a quantity produced or imported solely for quarantine or preshipment applications under the exemptions in this subpart must comply with recordkeeping and reporting requirements specified in this paragraph (y) of this section.
(z) Every applicator of class I, Group VI controlled substances who purchases or receives a quantity produced or imported solely for quarantine and preshipment applications under the exemptions in this subpart must comply with recordkeeping and reporting requirements specified in this paragraph (z) of this section.
In Title 42 of the Code of Federal Regulations, Parts 1 to 399, revised as of October 1, 2014:
1 On page 70, in Appendix A to Part 5, Part III, paragraph A is removed and Part I, paragraph A is redesignated as Part III, paragraph A; and on page 67, Part I, paragraph A is reinstated to read as follows:
A geographic area will be designated as having a shortage of primary medical care manpower if the following three criteria are met:
1. The area is a rational area for the delivery of primary medical care services.
2. One of the following conditions prevails within the area:
(a) The area has population to full-time-equivalent primary care physician ratio of at least 3,500:1.
(b) The area has a population to full-time-equivalent primary care physician ratio of less than 3,500:1 but greater than 3,000:1 and has usually high needs for primary care services or insufficient capacity of existing primary care providers.
3. Primary medical care manpower in contiguous areas are overutilized, excessively distant, or inaccessible to the population of the area under consideration.
2. On page 74, in Appendix B to Part 5, Part III, paragraph A is removed and Part I, paragraph A is redesignated as Part III, paragraph A; and on page 71, Part I, paragraph A is reinstated to read as follows:
A geographic area will be designated as having a dental manpower shortage if the following three criteria are met:
1. The area is a rational area for the delivery of dental services.
2. One of the following conditions prevails in the area:
(a) The area has a population to full-time-equivalent dentist ratio of less than 5,000:1 or
(b) The area has a population to full-time-equivalent dentist ratio of less than 5,000:1 but greater than 4,000:1 and has unusually high needs for dental services or insufficient capacity of existing dental providers.
3. Dental manpower in contiguous areas are over utilized, excessively distant, or inaccessible to the population of the area under consideration.
3. On page 77, in Appendix C to Part 5, Part III, paragraph A is revised to read as follows:
Medium to maximum security Federal and State correctional institutions and youth detention facilities will be designated as having a shortage of psychiatric manpower if both of the following criteria are met:
(a) The institution has more than 250 inmates, and
(b) The ratio of the number of internees per year to the number of FTE psychiatrists serving the institution is at least 1,000:1.
Here the number of internees is defined as follows:
(i) If the number of new inmates per year and the average length-of-stay are not specified, or if the information provided does not indicate that intake psychiatric examinations are routinely performed upon entry, then—
Number of internees=average number of inmates
(ii) If the average length-of-stay is specified as one year or more, and the intake psychiatric examinations are routinely performed upon entry, then—
Number internees=average number of inmates+number of new inmates per year
(iii) If the average length-of-stay is specified as less than one year, and intake psychiatric examinations are routinely performed upon entry, then—
Number of internees=average number of inmates+
where ALOS=average length-of-stay (in fraction of year) (The number of FTE psychiatrists is computed as in Part I, Section B, paragraph 3 above.)
Designated correctional institutions will be assigned to degree-of-shortage groups, based on the number of inmates and/or the ration (R) of internees to FTE psychiatrists, as follows:
Group 1—Institutions with 500 or more inmates and no psychiatrist.
Group 2—Other institutions with no psychiatrists and institutions with R greater than (or equal to) 3,000:1.
Group 3—Institutions with R greater than (or equal to) 2,000:1 but less than 3,000:1.
National Aeronautics and Space Administration.
Technical amendments.
NASA is making technical amendments to the NASA FAR Supplement (NFS) to provide needed editorial changes.
Manuel Quinones, NASA, Office of Procurement, Contract and Grant Policy
As part NASA's retrospective review of existing regulations pursuant to section 6 of Executive Order 13563, Improving Regulation and Regulatory Review, NASA conducted a comprehensive review of it regulations and published two final rules in the
• Section 1827.409 is revised to reinsert clause prescription paragraphs 1827.409(g), (i), and (k), which were inadvertently omitted from the rule published on March 12, 2015 (80 FR 12935).
• Sections 1852.203-71, 1852.204-76, 1852.215-77, 1852.216-90, 1852.225-8, 1852.227-17, 1852.227-19, 1852.227-88, 1852.237-72, and 1852.237-73 are revised to correct clause dates and/or clause titles.
Government procurement.
Accordingly, 48 CFR parts 1827 and 1852 are amended as follows:
51 U.S.C. 20113(a) and 48 CFR chapter 1.
(g) The contracting officer shall use the clause at 1852.227-86, Commercial Computer Software License, in lieu of FAR 52.227-19, Commercial Computer Software License, when it is considered appropriate for the acquisition of existing computer software.
(i) The contract officer shall modify the clause at FAR 52.227-17, Rights in Data—Special Works by adding paragraph (f) as set forth in 1852.227-17.
(k)(i) The contracting officer shall add paragraph (e) as set forth in 1852.227-19(a) to the clause at FAR 52.227-19, Commercial Computer Software License, when it is contemplated that updates, correction notices, consultation information, and other similar items of information relating to commercial computer software delivered under a purchase order or contract are available and their receipt can be facilitated by signing a vendor supplied agreement, registration forms, or cards and returning them directly to the vendor.
(ii) The contracting officer shall add paragraph (f) as set forth at 1852.227-19(b) to the clause at FAR 52.227-19, Commercial Computer Software License, when portions of a contractor's standard commercial license or lease agreement consistent with the clause, Federal laws, standard industry practices, and the FAR are to be incorporated into the purchase order or contract.
51 U.S.C. 20113(a) and 48 CFR chapter 1.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule.
NMFS announces that the 2015 summer flounder commercial fishery within the Commonwealth of Massachusetts is reopening to allow permitted vessels to fully harvest remaining commercial summer flounder quota as of October 12, 2015.
Effective 0001 hours October 12, 2015, through December 31, 2015.
Reid Lichwell, (978) 281-9112, or
Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.103(b).
The total commercial quota for summer flounder for the 2015 fishing year is 11,069,410 lb (5,020,999 kg) (79 FR 78311, December 30, 2014). The percent allocated to vessels landing summer flounder in Massachusetts is 6.82046 percent, resulting in a commercial quota of 754,985 lb (342,455 kg). The 2015 Massachusetts allocation was adjusted to 760,785 lb (340,165 kg) to reflect the 2014 quota overages and the transfer of quota from other states. On September 17, 2015, NMFS closed the 2015 commercial summer flounder fishery in Massachusetts based on up-to-date catch information. Analysis after the closure indicates that 16,294 lb (7,390 kg) of the760,785 lb (340,165 kg) of Massachusetts commercial summer flounder quota remains unharvested. Therefore, we are reopening the Federal fishery concurrent with the Massachusetts action to open state waters to allow for full utilization of the 2015 Massachusetts commercial summer flounder quota.
The Administrator, Northeast Region, NMFS (Regional Administrator), has determined that there is still commercial summer flounder quota available for harvest in Massachusetts. NMFS is required to publish notification in the
Therefore, effective 0001 hours October 12, 2015, vessels holding summer flounder commercial Federal fisheries permits can again land summer flounder in Massachusetts until the commercial state quota is fully harvested. Effective 0001 hours October 12, 2015, federally permitted dealers can also purchase summer flounder from federally permitted vessels that land in Massachusetts until the commercial state quota is fully harvested.
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. This action reopens the summer flounder fishery for Massachusetts until the state commercial summer flounder quota is fully harvested, under current regulations. If implementation of this reopening were delayed to solicit prior public comment, the quota for this fishing year would not be fully harvested, thereby undermining the conservation objectives of the Summer Flounder Fishery Management Plan. The AA further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reason stated above.
16 U.S.C. 1801
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of public meetings.
The Department of Energy (DOE) announces public meetings and webinars for the DPPP Working Group. The Federal Advisory Committee Act requires that agencies publish notice of an advisory committee meeting in the
See
The meetings will be held at U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW., Washington, DC 20585 unless otherwise stated in the
Individuals will also have the opportunity to participate by webinar. To register for the webinars and receive call-in information, please register at DOE's Web site
DOE will host public meetings and webinars on the below dates. Meetings will be hosted at DOE's Forrestal Building, unless otherwise stated.
Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email
Due to the REAL ID Act implemented by the Department of Homeland Security (DHS) recent changes have been made regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required.
DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, Louisiana, New York, American Samoa, Maine, Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.
Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); A military ID or other Federal government issued Photo-ID card.
This notice is being published less than 15 days prior to the first set of meeting dates due to logistical issues that had to be resolved prior to the meeting date.
Under Secretary of Defense for Acquisition, Technology, and Logistics, DoD.
Proposed rule.
This proposed rule would establish policy, assign responsibilities, and provide procedures to be used by DoD personnel for the operation and management of the DoD ELAP. The DoD ELAP provides a unified DoD program through which commercial environmental laboratories can voluntarily demonstrate competency and document conformance to the international quality systems standards as they are implemented by DoD.
Comments must be received by December 14, 2015.
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) number and title, by any of the following methods:
•
•
Edmund Miller, 571-372-6904.
The purpose of this regulatory action is to document the procedures for the operation and management of the DoD Environmental Laboratory Accreditation Program (ELAP). The legal authority for the regulatory action is Section 515, Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554), which directed the Office of Management and Budget (OMB) to issue government-wide guidelines that “provide policy and procedural guidance to Federal Agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal Agencies.” OMB guidelines, provided by FR Volume 67, Number 36, page 8452 (February 22, 2002) required federal agencies to maintain a basic standard of quality and take appropriate steps to incorporate information quality criteria into DoD public information dissemination practices. The guidance further provided that DoD Components shall adopt standards of quality that are appropriate to the nature and timeliness of the information they disseminate. The DoD ELAP provides the standards for ensuring the quality, objectivity, utility, and integrity of definitive environmental testing data disseminated by DoD for the Defense Environmental Restoration Program (DERP).
This rule includes a general overview of DoD ELAP and establishment of standard operating procedures. It utilizes the baseline quality systems requirements of The NELAC Institute (TNI) and ISO/IEC 17025 standards, but alone neither of these standards meet the testing and analysis needs for DERP. Therefore the DoD Quality Systems Manual (QSM) for environmental laboratories serves as the standard for DoD ELAP accreditation. The QSM contains the minimum requirements DoD considers essential to ensure the generation of definitive environmental data of know quality, appropriate for their intended uses. These minimal needs are not met by TNI or ISO 17025 standards alone. The DoD ELAP includes procedures on how to evaluate and recognize 3rd party accreditation bodies; perform and document government oversight of the DoD ELAP to ensure ongoing compliance with program requirements and to identify opportunities for continual improvement; conduct project-specific laboratory approvals for specific tests not addressed in the DoD ELAP; and handle specific complaints concerning the processes established by the DoD ELAP or the QSM.
Past DoD laboratory assessment programs were specific to each DoD Component and limited to available resources. This created an overlap in assessments and fewer opportunities for laboratories to participate on DoD contracts. This rule proposes to establish a program to allow qualified laboratories to received third-party accreditation and become eligible to provide environmental sampling and testing services for DoD. It will be a voluntary program open to any qualified laboratories wishing to participate, thereby promoting fair and open competition among commercial laboratories.
Since laboratories fund their own participation in the accreditation process, it will allow DoD to focus its resources on providing oversight of laboratory contracts. By proposing to replace separate DoD Component-specific laboratory approval programs, The DoD ELAP will eliminate redundant assessments, promote interoperability across the Department, streamline the process for DoD to identify and procure competent providers of environmental laboratory services, and provide more opportunities for commercial laboratories to participate in DoD environmental sampling and testing contracts.
The scope of accreditation under ELAP includes specific laboratory services such as the test methods used, type of material tested (soil, water, etc.), and type of contaminants measured. The evaluation of a test method also includes the use of internal laboratory standard operating procedures.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” but not an economically significant action because it does not: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section 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
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.
The Department of Defense does not expect this proposed rule would have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601,
It has been certified that 32 CFR part 188 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. The requirements in this rule do not require OMB approval under the Paperwork Reduction Act as the information is collected by the four accreditation bodies and not the Department. These accreditation bodies accredit the laboratories to meet DoD standards for environmental sampling and testing.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This rule will not have a substantial effect on State and local governments.
Environmental Laboratory Accreditation Program, Oversight.
Accordingly, 32 CFR part 188 is proposed to be added to read as follows:
15 U.S.C. 3701, Public Law 106-554.
This part implements policy, assigns responsibilities, and provides procedures to be used by DoD personnel for the operation and management of the DoD ELAP.
This part applies to Office of the Secretary of Defense, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (referred to collectively in this part as the “DoD Components”).
Unless otherwise noted, these terms and their definitions are for the purposes of this part.
It is DoD policy, in accordance with DoD Instruction 4715.15, to implement the DoD ELAP for the collection of definitive data in support of the Defense Environmental Restoration Program (DERP) at all DoD operations, activities, and installations, including government-owned, contractor-operated facilities and formerly used defense sites.
(a)
(1) Provide resources to support project-specific government oversight for the collection of definitive data in support of the DERP.
(2) Provide resources to support project-specific laboratory approvals, if required.
(b)
(a)
(ii) DoD ELAP was developed in compliance with 15 U.S.C. 3701 (also known as the “National Technology Transfer and Advancement Act”). Support and guidance was provided by the National Institute of Standards and Technology, following procedures used to establish similar programs for other areas of testing. The DoD ELAP supports implementation of section 515 of Public Law 106-554, “Treasury and General Government Appropriations Act, 2001” and Office of Management and Budget Guidance, “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies” (67 FR 8452) as implemented by Deputy Secretary of Defense Memorandum, “Ensuring Quality of Information Disseminated to the Public by the Department of Defense.”
(iii) Using third party ABs operating in accordance with the international standard ISO/IEC 17011:2004(E), “Conformity Assessment—General Requirements for Accreditation Bodies Accrediting Conformity Assessment Bodies” (available for purchase at
(A) Promotes interoperability among the DoD Components.
(B) Promotes fair and open competition among commercial laboratories.
(C) Streamlines the process for identifying and procuring competent providers of environmental laboratory services.
(D) Promotes the collection of data of known and documented quality.
(2)
(3)
(ii) The DoD ELAP applies to:
(A) Environmental programs at DoD operations, activities, and installations, including government-owned, contractor-operated facilities and formerly used defense sites.
(B) Permanent, temporary, and mobile laboratories regardless of their size, volume of business, or field of accreditation that generate definitive data.
(iii) Participation in the program is voluntary and open to all laboratories that operate under a quality system conforming to ISO/IEC 17025:2005 and Deputy Under Secretary of Defense for Environmental Security Memorandum, “DoD Quality Systems Manual for Environmental Laboratories.” Laboratories may seek accreditation for any method they perform in accordance with documented procedures, including non-standard methods. Laboratories are free to select any participating AB for accreditation services.
(iv) To participate in DoD ELAP, ABs must be U.S.-based signatories to the ILAC MRA and must operate in accordance with ISO/IEC 17011:2004(E).
(4)
(i) Provides coordinated responses to legislative and regulatory initiatives.
(ii) Responds to requests for DoD Component information.
(iii) Develops and recommends department-wide policy related to sampling, testing, and quality assurance for environmental programs.
(iv) Implements and provides oversight for the DoD ELAP.
(v) Includes technical experts from the Military Services and DLA as well as an EDQW component principal
(vi) Specifies the EDQW Navy principal, Director of Naval Sea Systems Command (NAVSEASYSCOM) 04XQ(LABS), serve as EDQW chair.
(b)
(i) The DoD QSM remains current in accordance with ISO/IEC 17025:2005.
(ii) Minimum essential requirements are met.
(iii) Requirements are clear, concise, and auditable.
(iv) The DoD QSM will efficiently and effectively support the DoD ELAP.
(2)
(ii)
(iii)
(A)
(B)
(C)
(
(
(D)
(
(
(
(
(
(3)
(4)
(c)
(A) Use the procedures in this paragraph to evaluate and recognize third-party ABs in support of the DoD ELAP.
(B) Develop and maintain the application for recognition, the conditions and criteria for recognition and related forms, and review submitted AB applications for completeness and compliance with DoD ELAP requirements.
(ii) The DoD EDQW chair, following consultation with and concurrence by the EDQW component principals, grants or revokes AB recognition in accordance with this paragraph.
(2)
(3)
(i) Upon receipt of an application for recognition, the DoD EDQW will review the application package for completeness. A complete application package must include:
(A) Application for recognition.
(B) Signed acceptance of the conditions and criteria for DoD ELAP recognition.
(C) Electronic copy of the AB's quality systems documentation.
(D) Copy of the most recent ILAC MRA peer evaluation documentation.
(ii) If necessary to complete the review, the DoD EDQW will request additional documentation from the applicant.
(iii) The EDQW component principals will review the application package for compliance with requirements. Prior to granting recognition, the EDQW component principals must unanimously concur that all application requirements have been met.
(iv) Once the EDQW component principals have completed review of the application package, the DoD EDQW chair will notify the AB, either granting recognition or citing specific reasons for not doing so (
(v) Once recognition has been granted, the DoD EDQW chair will post the name and contact information of the AB on DENIX.
(vi) With unanimous concurrence, the EDQW component principals may revoke recognition if the AB:
(A) Violates any of the conditions or criteria for recognition.
(B) Fails to operate in accordance with its documented quality system.
(vii) Should it become necessary to revoke an AB's recognition, the DoD EDQW chair will notify the AB stating specific reasons for the revocation and remove the AB's name from the list of DoD ELAP-recognized ABs.
(viii) If recognition is revoked, the AB must immediately cease to perform all DoD ELAP assessments.
(ix) ABs who have been denied recognition, or ABs whose recognition has been revoked, may appeal that decision.
(A) Within 15 calendar days of its receipt of a notice denying or revoking recognition, the AB must submit to the DoD EDQW chair a written statement with supporting documentation contesting the denial or revocation.
(B) The submission must demonstrate that:
(
(
(x) The DoD EDQW will have up to 30 calendar days to review the appeal and provide written notice to the AB either accepting the appeal and granting, or restoring, recognition, or explaining the basis for denying the appeal.
(4)
(5)
(d)
(2)
(A) Offer specific advice to the laboratory regarding the development or implementation of quality systems or technical procedures;
(B) Offer specific advice or direction to assessors or peer evaluators regarding accreditation processes, assessment procedures, or documentation of findings; or
(C) Impede assessors, peer reviewers, or laboratory personnel in any way during the performance of their work, including technical procedures, document reviews, observations, interviews, and meetings.
(ii) If, during the course of an assessment, questions by laboratory personnel or assessors are directed to DoD personnel, personnel must limit responses to specific text from the DoD QSM or published FAQs. DoD personnel must not render opinions regarding interpretation of the DoD QSM. If there are questions about the DoD QSM that require interpretation, DoD personnel must advise the assessor to contact the AB who may, if necessary, contact the DoD EDQW chair for a coordinated response.
(iii) If DoD personnel observe any evidence of inappropriate practices on the part of assessors or laboratory personnel during the course of the assessment, they must record the observations and notify the DoD EDQW chair immediately (inappropriate practices are identified in the DoD QSM). DoD personnel must not call either the laboratory's or the assessor's attention to the specific practice in question.
(3)
(i) Meet the government chemist or contractor project chemist requirements contained in the USD(AT&L) Memorandum, “Acquisitions Involving Environmental Sampling or Testing Services.”
(ii) Have a working knowledge of the DoD QSM requirements and be familiar with environmental test methods and instrumentation.
(iii) Obey all laboratory instructions regarding health and safety precautions while in the laboratory.
(4)
(ii) Once an assessment or peer review has been scheduled, the EDQW component principals will determine if DoD oversight of the activity will be performed. The goal will be to observe a representative number of activities for each AB.
(iii) The EDQW component principals will provide the DoD EDQW chair the names of personnel from their respective DoD Components who will participate in the oversight.
(iv) The DoD EDQW chair will provide the AB with contact information for the oversight personnel.
(v) If two or more DoD personnel are scheduled to monitor the assessment, the DoD EDQW chair will designate a lead that will be responsible for compiling an oversight report.
(vi) The lead for the oversight activity will request a copy of the assessment plan from the AB's lead assessor and distribute it to other oversight personnel.
(vii) The lead will review the assessment plan to determine the scope of accreditation and ensure that oversight personnel are assigned to monitor a cross-section of the assessment.
(viii) Persons performing oversight will review previous oversight reports, if available, for the particular AB and assessors performing the assessment.
(ix) Observing all health and safety protective measures, oversight personnel must accompany the assessor(s) as they witness procedures and conduct interviews, taking care not to interfere with the assessment.
(5)
(i) The DoD EDQW chair will provide copies of the report to the EDQW component principals for review.
(ii) After review by the EDQW component principals, the DoD EDQW chair will provide a summary of the oversight report to the AB performing the assessment.
(6)
(i) In the event the laboratory and the AB are unable to resolve a disagreement concerning the interpretation of the DoD QSM, either the laboratory or the AB may request the DoD EDQW provide an interpretation of the DoD QSM. The DoD EDQW chair will provide a written response to the laboratory and the AB providing the DoD authoritative interpretation of the DoD QSM. No review of this interpretation will be available to the laboratory or the AB.
(ii) The DoD EDQW will not consider or take a position on requests by either a laboratory or an AB on a dispute concerning accreditation of the laboratory.
(7)
(i) Review the ABs' assessment reports and the DoD oversight reports to evaluate the thoroughness, consistency, objectivity, and impartiality of the DoD ELAP assessments.
(ii) Compare assessment reports across laboratories, ABs, and assessors.
(iii) Compare DoD ELAP findings to findings from previous assessments.
(iv) Identify opportunities for continual improvement of the DoD ELAP.
(v) Meet with ABs on an annual basis to review lessons learned and identify additional opportunities for continual improvement of the DoD ELAP.
(8)
(e)
(i) The required method, matrix, or analyte is not included in the scope of accreditation for any existing DoD ELAP-accredited laboratories.
(ii) The required method, matrix, and analyte combination is included in the scope of accreditation for an existing accredited laboratory; however, the laboratory is unable to meet one or more of the project-specific measurement performance criteria.
(2)
(ii) The DoD EDQW will not perform project-specific laboratory approvals in cases where one or more DoD ELAP-accredited laboratories capable of meeting project-specific requirements are available.
(iii) The project-specific laboratory approval is a one-time approval, the specific terms of which will be outlined in the approval notice issued by the DoD EDQW.
(3)
(4)
(ii) If, after review of the QAPP, the DoD EDQW determines that an existing DoD ELAP-accredited laboratory is available to provide the required services, the laboratory contact information will be provided to the project manager requesting assistance.
(iii) If, after review of the QAPP, the DoD EDQW determines that no existing DoD ELAP-accredited laboratory is available to provide the required services, the DoD EDQW will:
(A) Work with the project team to determine whether the use of alternative procedures by an existing DoD ELAP-accredited laboratory is feasible;
(B) Determine if the required services can be added to the scope of accreditation of an existing DoD ELAP-accredited laboratory; or
(C) Work with the project team to identify a candidate laboratory for project-specific laboratory approval.
(iv) If a project-specific approval is needed, the DoD EDQW will:
(A) Determine the type of assessment required (on-site, document review, etc.).
(B) Determine if additional funding is required to support the assessment. If additional funding is required, the DoD EDQW will provide a cost estimate and work with the project manager to establish funding.
(v) If the DoD EDQW determines that a project-specific laboratory approval is warranted and resources (including funding and technical expertise) are available to support the assessment, the DoD EDQW chair will coordinate with the EDQW component principals to appoint an assessment team with appropriate technical backgrounds.
(vi) The DoD EDQW chair will designate an assessment team leader. The assessment team leader will:
(A) Request the documentation needed to perform the assessment.
(B) Assign responsibilities for individual members of the assessment team, if appropriate.
(C) Coordinate the document reviews.
(D) Lead the assessment team in the performance of the on-site assessment, if required.
(E) Provide a report to the DoD EDQW chair. The report will identify whether:
(
(
(
(vii) The DoD EDQW chair, with concurrence by the EDQW component principals, will issue a report to the project manager and laboratory detailing the results of the assessment and any deficiencies that must be corrected prior to granting a project-specific laboratory approval.
(viii) Upon receipt of the laboratory's corrective action response, if required, the assessment team will:
(A) Review the laboratory's corrective action response for resolving the deficiencies.
(B) Provide the EDQW component principals with a final report describing the resolution of findings and containing recommendations on whether to grant the project-specific laboratory approval.
(ix) The DoD EDQW chair, with concurrence by the EDQW component principals, will prepare a report for the DoD project manager describing the results of the assessment and the status and terms of the project-specific laboratory approval. Information about project-specific laboratory approvals will not be posted on Web sites listing DoD ELAP-accredited laboratories.
(5)
(6)
(f)
(i) Complaints by any party against an accredited laboratory.
(ii) Complaints by any party against an AB.
(iii) Complaints by any party concerning any assessor acting on behalf of the AB.
(iv) Complaints by any party against the DoD ELAP itself.
(2)
(i) Do not address appeals by laboratories regarding accreditation decisions by ABs. Appeals to decisions made by ABs regarding the accreditation status of any laboratory must be filed directly with the AB in accordance with agreements in place between the laboratory and the AB.
(ii) Are not designed to handle allegations of unethical or illegal actions as described in paragraph (d)(2)(iii) of this section.
(iii) Do not address complaints involving contractual requirements between a laboratory and its client. All contracting issues must be resolved with the contracting officer.
(3)
(ii) Upon receipt of the complaint, the DoD EDQW chair will assign a unique identifier to the complaint, send a notice of acknowledgement to the complainant, and forward a copy of the complaint to the EDQW component principals.
(iii) In consultation with the EDQW component principals, the DoD EDQW chair will make a preliminary determination of the validity of the complaint. Following preliminary review, the actions available to the DoD EDQW chair include:
(A) If the DoD EDQW chair determines the complaint should be handled directly between the complainant and the subject of the complaint, the DoD EDQW will refer the complaint to the laboratory, or AB, as appropriate. The DoD EDQW will notify the complainant of the referral, but will take no further action with respect to investigation of the compliant. The subject of the complaint will be expected to respond to the complainant in accordance with their established procedures and timelines. A copy of the response will be provided to the DoD EDQW.
(B) If insufficient information has been provided to determine whether the complaint has merit, the DoD EDQW will return the complaint to the complainant with a request for additional supporting documentation.
(C) If the complaint appears to have merit and the parties to the complaint have been unable to resolve it, the DoD EDQW will investigate the complaint and recommend actions for its resolution.
(D) If available information does not support the complaint, the DoD EDQW may reject the complaint.
(E) If the complaint alleges inappropriate laboratory practices or other misconduct, the DoD EDQW chair will consult legal counsel to determine the recommended course of action.
(iv) In all cases, the DoD EDQW will notify the complainant and any other entity involved in the complaint and explain the response of the EDQW to the complaint.
(4)
(5)
Environmental Protection Agency (EPA).
Proposed rule.
Under the Federal Clean Air Act (CAA) the Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) submission from the State of Texas for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS). The submittal addresses how the existing SIP provides for implementation, maintenance, and enforcement of the 2008 Pb NAAQS (infrastructure SIP or i-SIP). This i-SIP ensures that the State's SIP is adequate to meet the state's responsibilities under the CAA, including the four CAA requirements for interstate transport of Pb emissions.
Written comments must be received on or before November 16, 2015.
Submit your comments, identified by Docket ID Number EPA-R06-OAR-2011-0864, by one of the following methods:
•
•
•
Tracie Donaldson, telephone 214-665-6633,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
On October 5, 1978, we published the first NAAQS for lead (Pb) (43 FR 46246). Both the primary and secondary standards were set at 1.5 micrograms per cubic meter (µg/m
Each state must submit an i-SIP within three years after the promulgation of a new or revised NAAQS. Section 110(a)(2) of the CAA includes a list of specific elements the i-SIP must meet. On October 14, 2011, the EPA issued guidance addressing the i-SIP elements for NAAQS.
EPA is proposing approval of the Texas i-SIP submittals for the 2008 Pb NAAQS
The TCEQ submittals on September 14, 2011 and October 14, 2011 provided a demonstration of how the existing Texas SIP met all the requirements of the 2008 Pb NAAQS. These SIP submittals became complete by operation of law on March 14, 2012, and April 14, 2012, respectively pursuant to CAA section 110(k)(1)(B). Below is a summary of EPA's evaluation of the Texas i-SIP for each applicable element of CAA 110(a)(2) A-M.
The Texas Clean Air Act (TCAA) provides the TCEQ, its Chairman, and its Executive Director with broad legal authority. They can adopt emission standards and compliance schedules applicable to regulated entities; emission standards and limitations and any other measures necessary for attainment and maintenance of national standards; enforce applicable laws, regulations, standards and compliance schedules; and seek injunctive relief. This authority has been employed in the past to adopt and submit multiple revisions to the Texas State Implementation Plan. The approved SIP for Texas is documented at 40 CFR part 52.1620, Subpart SS.
The TCAA provides the authority allowing the TCEQ to collect air monitoring data, quality-assure the results, and report the data. TCEQ maintains and operates a Pb-monitoring network to measure ambient levels of Pb in accordance with EPA regulations which specify siting and monitoring requirements. All monitoring data is measured using EPA approved methods and subject to the EPA quality assurance requirements. TCEQ submits all required data to EPA, following the EPA regulations. The Texas statewide monitoring network was initially approved into the SIP (37 FR 10842, 10895), was revised on March 7, 1978 (43 FR 9275), and it undergoes annual
With respect to significant contribution to nonattainment or interference with maintenance of the Pb NAAQS, the physical properties of Pb, which is a metal and very dense, prevent Pb emissions from experiencing a significant degree of travel in the ambient air. No complex chemistry is needed to form Pb or Pb compounds in the ambient air; therefore, ambient concentrations of Pb are typically highest near Pb sources. More specifically, there is a sharp decrease in ambient Pb concentrations as the distance from the source increases. According to EPA's report entitled
Texas submitted a separate SIP submission addressing the interstate transport provisions of subsection (2)(D)(i)(I), in which air dispersion modeling was conducted for seven operational sources in the state of Texas with the highest reported emissions of Pb in calendar year 2008: Fort Hood near Killeen; Oxbow Carbon in Port Arthur; ASARCO Refining near Amarillo; ECS Refining in Terrell; Exide Technologies in Frisco; Coleto Creek Power Station near Fannin; and the San Miguel Electric Cooperative near Christine. Two of these sources, Coleto Creek and San Miguel, reported emissions of Pb between 0.5 and 1.0 tons in 2008, and the remaining five sources reported emissions equal to or exceeding 1.0 ton. The modeled lead emissions from Coleto Creek and San Miguel each result in ambient concentrations of less than 1% of the level of the 2008 Pb NAAQS and indicate that there will be no impact on surrounding states. The Fort Hood and Oxbow model results predict levels of less than 15% of the NAAQS. For Exide Technologies, ECS Refining, and ASARCO Refining, the predicted concentrations dropped to below half the level of the NAAQS within 2 kilometers of the property line. For more detailed information on these modeling results, see the TSD and the Interstate Transport SIP submission in the docket for this rulemaking.
The Frisco Texas area is the one area within the state of Texas that is designated as nonattainment with respect to the 2008 Pb NAAQS. Exide Technologies battery recycling center was the sole contributing source responsible for the ambient Pb concentrations that led to the nonattainment designation. However, the source has been permanently shut down. During calendar year 2011 there were eight significant sources of Pb emissions within Texas that reported Pb emissions in amounts approximately equal to or exceeding 0.5 tons per year, including the aforementioned Exide Technologies in Frisco; however, none of these sources of Pb emissions are located within two miles of a neighboring state line. Total reported Pb emissions within Texas in 2011 were 31.2 tons,
The necessary provisions under section 110(a)(2)(D)(i)(II) are contained in the PSD portion of the SIP, as discussed with respect to element (C) above. With regard to the applicable requirements for visibility protection of visibility under subsection (2)(D)(i)(II), significant impacts from Pb emissions from stationary sources are expected to be limited to short distances from emitting sources and most, if not all, stationary sources of Pb emissions are located at sufficient distances from Class I areas such that visibility impacts would be negligible. Although Pb can be a component of coarse and fine particles, Pb generally comprises only a small fraction these particles. A recent EPA study conducted to evaluate the extent that Pb could impact visibility concluded that Pb-related visibility impacts at Class I areas were found to be insignificant (
The Texas SIP includes provisions that satisfy the CAA interstate pollution abatement requirements of 110(a)(2)(D)(i)(II). There are no findings by EPA that air emissions originating in Texas affect other countries. Therefore, we propose to approve the portion of the Texas SO
Both elements A and E address the requirement that there is adequate authority to implement and enforce the SIP and that there are no legal impediments.
This i-SIP submission for the 2008 Pb NAAQS describes the SIP regulations governing the various functions of personnel within the TCEQ, including the administrative, technical support, planning, enforcement, and permitting functions of the program.
With respect to funding, the TCAA requires TCEQ to establish an emissions fee schedule for sources in order to fund the reasonable costs of administering various air pollution control programs and authorizes TCEQ to collect additional fees necessary to cover reasonable costs associated with processing of air permit applications. EPA conducts periodic program reviews to ensure that the state has adequate resources and funding to, among other things, implement and enforce the SIP.
As required by the CAA, the Texas statutes and the SIP stipulate that any board or body, which approves permits or enforcement orders, must have at least a majority of members who represent the public interest and do not derive any “significant portion” of their income from persons subject to permits and enforcement orders or who appear before the board on issues related to the Federal CAA or the TCAA. The members of the board or body, or the head of an agency with similar powers, are required to adequately disclose any potential conflicts of interest.
With respect to assurances that the State has responsibility to implement the SIP adequately when it authorizes local or other agencies to carry out portions of the plan, the Texas statutes and the SIP designate the TCEQ as the primary air pollution control agency and TCEQ maintains authority to ensure implementation of any applicable plan portion.
The TCAA authorizes the TCEQ to require persons engaged in operations which result in air pollution to monitor or test emissions and to file reports containing information relating to the nature and amount of emissions. There also are SIP-approved state regulations pertaining to sampling and testing and requirements for reporting of emissions inventories. In addition, SIP-approved rules establish general requirements for maintaining records and reporting emissions.
The TCEQ uses this information, in addition to information obtained from other sources, to track progress towards maintaining the NAAQS, developing control and maintenance strategies, identifying sources and general emission levels, and determining compliance with SIP-approved regulations and additional EPA requirements. The SIP requires this information be made available to the public. Provisions concerning the handling of confidential data and proprietary business information are included in the SIP-approved regulations. These rules specifically exclude from confidential treatment any records concerning the nature and amount of emissions reported by sources.
The TCAA provides TCEQ with authority to address environmental emergencies, and TCEQ has contingency plans to implement emergency episode provisions. Upon a finding that any owner/operator is unreasonably affecting the public health, safety or welfare, or the health of animal or plant life, or property, the TCAA and 30 TAC chapters 35 and 118 authorize TCEQ to, after a reasonable attempt to give notice, declare a state of emergency and issue without hearing an emergency special order directing the owner/operator to cease such pollution immediately.
The “Texas Air Quality Control Contingency Plan for Prevention of Air Pollution Episodes” is part of the Texas SIP. However, because of the low levels of Pb emissions emitted and monitored statewide, Texas is not required to have contingency plans for the 2008 Pb NAAQS. However, to provide additional protection, the State has general emergency powers to address any possible dangerous Pb-related air pollution episode if necessary to protect the environment and public health.
The TCAA authorizes the TCEQ to revise the Texas SIP, as necessary, to account for revisions of an existing NAAQS, establishment of a new NAAQS, to attain and maintain a NAAQS, to abate air pollution, to adopt more effective methods of attaining a NAAQS, and to respond to EPA SIP calls concerning NAAQS adoption or implementation.
Texas currently has one nonattainment area for the 2008 Pb NAAQS, located in the city of Frisco in Collin County. For more information on the Frisco nonattainment area and past nonattainment areas under the 1978 Pb NAAQS, please refer to the TSD for this rulemaking.
As noted earlier, EPA does not expect infrastructure SIP submissions to address subsection (I). The specific SIP submissions for designated nonattainment areas, as required under CAA title I, part D, are subject to different submission schedules than those for section 110 infrastructure elements. Instead, EPA will take action on part D attainment plan SIP submissions, including the attainment plan submission for the Frisco nonattainment area, through a separate rulemaking process governed by the requirements for nonattainment areas, as described in part D.
(1)
(2)
(3)
The TCEQ has the authority and duty under the TCAA to investigate and develop facts providing for the functions of environmental air quality assessments. Past modeling and emissions reductions measures have been submitted by the State and approved into the SIP. Additionally, TCEQ has the ability to perform modeling for the primary and secondary Pb standards and other criteria pollutant NAAQS on a case-by-case permit basis consistent with their SIP-approved PSD rules and EPA guidance. As discussed with regard to element (D) above, TCEQ has conducted air quality dispersion modeling on the emissions of Pb from numerous stationary sources to determine the impact of such emissions on air quality in neighboring states. TCEQ has also conducted extensive modeling on the emissions of Pb from the former Exide Technologies facility located in the Frisco nonattainment area and has prepared and submitted an attainment demonstration with a control strategy based on the results of this modeling to the EPA.
The TCAA authorizes and requires TCEQ to cooperate with the federal government and local authorities concerning matters of common interest in the field of air quality control, thereby allowing the agency to make such submissions to the EPA.
See the discussion for element (E) above for the description of the mandatory collection of permitting fees outlined in the SIP.
See the discussion for element (J)(1) and (2) above for a description of the
EPA is proposing to approve the October 14, 2011 infrastructure SIP and the September 14, 2011 interstate transport submissions from Texas, which address the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2008 Pb NAAQS. Specifically, EPA is proposing to approve the following infrastructure elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). EPA is not acting on the submittal pertaining to CAA section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions because EPA believes these need not be addressed in the i-SIP. Based upon review of the state's infrastructure and interstate transport SIP submissions, in light of the relevant statutory and regulatory authorities and provisions referenced in these submissions or referenced in the Texas SIP, EPA believes that Texas has the infrastructure in place to address all applicable required elements of sections 110(a)(1) and (2) (except otherwise noted) to ensure that the 2008 Pb NAAQS are implemented in the state. We also are proposing to approve the State's demonstration that it meets the four statutory requirements for interstate transport of Pb emissions.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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).
EPA is not proposing to approve this infrastructure SIP certification 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, this proposed approval of an infrastructure SIP certification does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead (Pb), Reporting and recordkeeping requirements.
42 U.S.C. 7401
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Petition finding.
NMFS received a petition to exclude federally-maintained dredged channels and pilot boarding areas (and the immediately adjacent waters) for ports from New York to Jacksonville from the vessel speed restrictions that were established to reduce the threat of vessel collisions with North Atlantic right whales. After reviewing the information in the petition and public comments thereon, NMFS finds that the petition does not present substantial information indicating that that exclusion of these areas is necessary to address the concerns, and denies the petition. NMFS will review and revise our existing compliance guide to provide clarifying information about the navigational safety exception (
October 15, 2015.
Notice of receipt of the petition, information related to the previous request for public comment, and related information is available at:
Gregory Silber, Office of Protected Resources, Silver Spring, MD (301) 427-8402.
On October 10, 2008, NMFS published a final rule (73 FR 60173) that established a 10-knot vessel speed restriction for vessels 65 feet or greater in length in certain locations and at certain times of the year along the east coast of the United States to reduce the likelihood of deaths and serious injuries to endangered North Atlantic right whales from collisions with vessels. Of note here, the 2008 final speed regulation included a provision allowing for deviation from the speed restriction if weather and/or sea conditions severely restrict the vessel's maneuverability, operating at a higher speed is necessary to maintain safe maneuvering speed, and the need to operate at a higher speed is confirmed by the pilot or, if there is no pilot on board, by the master of the vessel. The 2008 regulation also contained a December 9, 2013, expiration or “sunset” date.
On June 6, 2013, NMFS published a proposed rule to eliminate the rule's sunset provision (78 FR 34024). Following a notice and public comment period, on December 9, 2013, NMFS published a final rule (78 FR 73726) that removed the sunset provision. All other aspects of the regulation remained the same, including the navigational safety exception referenced above.
During the public comment period on the June 2013 proposed rule to remove the sunset provision, some commenters expressed their continuing concern that the speed regulation, notwithstanding the navigational safety exception noted above, compromised navigational safety through reduced vessel maneuverability in some circumstances. In particular, the American Pilots' Association indicated that safe navigation is hindered by operating at or below ten knots in specific areas and recommended that NMFS “exclude federally-maintained dredged channels and pilot boarding areas (and the immediately adjacent waters) for ports from New York to Jacksonville”—which they stated is an approximate aggregate area of 15 square miles—from the vessel speed restrictions.
NMFS elected to treat the American Pilots' Association's recommendation to exclude vessels using federally-maintained dredged port entrance channels from the speed restrictions as a petition for rulemaking under the Administrative Procedure Act. Accordingly, we issued a Notice in the
Based on consideration of information in the petition, public comments thereon, and related information, NMFS finds that the petitioned action is not necessary to address the concerns. The petitioner and commenters in favor of the petitioned action maintained that vessels navigating federally-maintained port entrance channels are faced with hazardous conditions unique to those channels. Commenters, including the U.S. Army Corps of Engineers (ACOE) identified incidents where vessels lost propulsion and, had the vessel not been travelling in excess of 10 knots, it could have created a considerable safety risk. ACOE submitted a study that found the speed limit increases the likelihood of pilot error. Concerns were also raised that communication barriers among foreign vessel masters, owners, and pilots, coupled with the need to sometimes make speed adjustments on short time frames, can place the vessel in jeopardy.
The speed regulation, including the navigational safety exception provision, has been in effect for over 6 years, and in that time there have been no specific reports of navigational safety issues or related problems that were not addressed by the existing exception. Recent studies indicate that the vessel speed restriction appears to be achieving the objective of reducing fatal collisions with North Atlantic right whales. NMFS believes that it does not need to exclude federally-dredged and maintained navigation channels from the speed restrictions in order to effectively address the concerns.
NMFS will review and revise our existing compliance guide for the speed restrictions to provide clarifying information about the deviation provision. For these reasons and as further explained in the responses to comments, NMFS denies the petition.
NMFS received over 32,000 public comments in response to the January 30, 2014,
All of the signed form letters, and 39 of the commenters that provided information beyond a signed form letter, opposed the petitioned action. A total of 46 commenting organizations or individuals favored the petitioned action. Several comments were ambiguous or offered no specific opinion about the petition. Summaries of key points in the substantive comments and responses to these comments are included below.
As a result, in the 2008 final rule, NMFS instituted a navigational safety exception to account for severe wind and sea conditions (73 FR 60173, 60178; October 10, 2008). Vessels may operate at a speed greater than 10 knots when oceanographic, hydrographic or meteorological conditions restrict the maneuverability of the vessel to the point that increased speed is necessary to ensure the safe operation of the vessel, as confirmed by the pilot or master. Any deviation from the speed restriction must be entered into the logbook, including the specific conditions necessitating the deviation, time and duration of deviation, location (latitude/longitude) where the deviation began and ended, and speed at which vessel was operated. The master of the vessel must sign and date the logbook
OLE/GC has also changed the way in which violations are investigated. Current procedures now include an opportunity, prior to a NOVA being issued, for vessel operators to provide log entries documenting their need to deviate from the speed restrictions for incidents under investigation.
5 U.S.C. 551
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This is a revision of a currently approved collection for OMB No. 0584-0299.
Written comments must be received on or before December 14, 2015.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to: Stephanie Proska, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 822, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Stephanie Proska at 703-305-0928 or via email to
All responses to this notice will be summarized and included in the request for Office of Management and Budget
Requests for additional information or copies of this information collection should be directed to Stephanie Proska at 703-305-2437.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Forest Service will prepare an Environmental Impact Statement (EIS) to disclose the environmental effects of commercial and non-commercial vegetation management activities, prescribed burning, road activities, recreation opportunity improvements, and other restoration activities. Other design criteria are included to protect resources and facilitate management activities. The project is located on the Chiloquin Ranger District, Fremont-Winema National Forest, Klamath County, Oregon.
Comments concerning the scope of the analysis must be received by November 16, 2015. The draft environmental impact statement is expected September 2016 and the final environmental impact statement is expected December 2016.
Send written comments to Constance Cummins, Forest Supervisor, Fremont-Winema National Forest, c/o Kelly Ware, 38500 Highway 97 North, Chiloquin, OR 97624. Comments may also be sent via email to
Kelly Ware, NEPA Planner, Chiloquin Ranger District, 38500 Highway 97 North, Chiloquin, OR 97624. Phone: 541-783-4039. Email:
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The Lobert project area encompasses approximately 97,500 acres of National Forest System lands and is located within the Klamath Tribes' former 1954 reservation. The project lies within portions of the Sprague River, Hog Creek-Williamson River, Swan Lake Valley, Long Lake Valley-Upper Klamath Lake, Yonna Valley-Lost River, and Wood River watersheds. The project area is in Klamath County, generally located between the communities of Fort Klamath and Chiloquin, south to Hagelstein Park, and east to Swan Lake Point and Saddle Mountain. The legal description for the project planning area includes Townships 33, 34, 35, 36, 37 South, and Ranges 07, 08, 09, 10 East, Willamette Meridian, Klamath County, Oregon.
The purpose and need for the Lobert Restoration Project was developed by comparing the management objectives and desired conditions of the Winema Forest Plan to the existing conditions in the project planning area related to watershed and forest resiliency and function. Where plan information was not explicit, best available science and local research, including the Klamath Tribes' Management Plan, were utilized. Comparison of the existing and desired condition indicates the specific needs to: (1) Restore forest structure, composition, and density toward more resistance and resilient vegetative conditions given the historic fire regime by reducing the horizontal and vertical connectivity and density of standing
The Forest proposed action includes restoration activities for the following resources: Vegetation management, aquatic restoration, recreation interpretive site improvement, and associated road management activities to address the purpose and need. These activities would occur over approximately the next 10 years.
Vegetation management will include a mix of commercial thinning, small tree thinning, prescribed fire, and other fuels treatments. The use of different methods would be determined by site conditions, accessibility and specific resource protection needs. The proposal includes 9 different restoration treatments: (1) Dry ponderosa pine restoration; (2) dry mixed conifer restoration; (3) moist mixed conifer restoration; (4) xeric ponderosa pine restoration; (5) dispersal habitat for northern spotted owl (NSO); (6) foraging habitat (NSO); (7) wildland urban interface fuels reduction; (8) riparian restoration; (9) endemic plant enhancement.
The proposed action will include large wood and spawning gravel placement in six stream reaches that are deficient in wood, riparian hardwood species planting, headcut repair, and spring enhancement. Spring enhancement may include: (1) Removal or repair of spring boxes or other spring development equipment; (2) installation of protective fencing; (3) vegetation treatments to improve hydrologic conditions (4) planting/sowing riparian species.
Approximately 13.2 miles of roads are proposed to be closed post-implementation, 162 miles of roads are proposed for decommissioning, and 4.5 miles of roads would have their operational maintenance levels upgraded.
Recreation activities proposed include removal of three flush facilities from the Spring Creek Campground and picnic area and installation of one vault toilet. Two vault toilets that no longer meet water quality standards would be removed from the Oux Kanee Overlook; one would be replaced with a vault toilet that meets current standards.
The Lobert Restoration Project will also include a variety of project design criteria that serve to mitigate impacts of activities to forest resources, including wildlife, soils, watershed condition, aquatic species, riparian habitat conservation areas, heritage resources, visuals, rangeland, botanical resources, and invasive plants. The proposed action may also include amendments to the Winema National Forest Land and Resource Management Plan, as amended.
The Forest Service will consider a range of alternatives. One of these will be the “no action” alternative in which none of the proposed action would be implemented. Additional alternatives may be included in response to issues raised by the public during the scoping process or due to additional concerns for resource values identified by the interdisciplinary team.
The Forest Supervisor of the Fremont-Winema National Forest, 1301 South G Street, Lakeview, OR 97630, is the Responsible Official. As the Responsible Official, I will decide if the proposed action will be implemented. I will document the decision and rationale for the decision in the Record of Decision. I have delegated the responsibility for preparing the draft EIS and final EIS to the District Ranger, Chiloquin Ranger District.
Based on the purpose and need, the Responsible Official reviews the proposed action, the other alternatives, the environmental consequences, and public comments on the analysis in order to make the following decision: (1) Whether to implement timber harvest and associated fuels treatments, prescribed burning, and watershed work, including the design features and potential mitigation measures to protect resources; and if so, how much and at what specific locations; (2) What, if any, specific project monitoring requirements are needed to assure design features and potential mitigation measures are implemented and effective, and to evaluate the success of the project objectives. A project specific monitoring plan will be developed.
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. The interdisciplinary team will continue to seek information, comments, and assistance from Federal, State, and local agencies, Tribal governments, and other individuals or organizations that may be interested in, or affected by, the proposed action.
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 names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered.
October 21, 2015, 1 p.m. EDT.
Palomar Hotel, 2121 P St. NW., Phillips Ballroom, Washington, DC 20037.
Open to the public.
The Chemical Safety and Hazard Investigation Board (CSB) will convene a public meeting on October 21, 2015, starting at 1 p.m. EDT in Washington, DC at the Palomar Hotel, 2121 P St. NW., in the Phillips Ballroom. The Board will discuss the final report and recommendations on the Caribbean Petroleum incident. The Board may then vote on the Caribbean Petroleum
The meeting is free and open to the public. If you require a translator or interpreter, please notify the individual listed below as the “Contact Person for Further Information,” at least three business days prior to the meeting.
This meeting will be webcast for those who cannot attend in person. Please visit
The CSB is an independent federal agency charged with investigating accidents and hazards that result, or may result, in the catastrophic release of extremely hazardous substances. The agency's Board Members are appointed by the President and confirmed by the Senate. CSB investigations look into all aspects of chemical accidents and hazards, including physical causes such as equipment failure as well as inadequacies in regulations, industry standards, and safety management systems.
The time provided for public statements will depend upon the number of people who wish to speak. Speakers should assume that their presentations will be limited to three minutes or less, but commenters may submit written statements for the record.
Shauna Lawhorne, Public Affairs Specialist,
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).
Block Boundary Suggestion Project (BBSP) Annotation: 124 hours.
BBSP Verification: 62 hours.
Voting District Project (VTDP) Delineation: 248 hours.
VTDP Verification: 124 hours.
115th Congressional Districts (CDs) & State Legislative Districts (SLDs) Collection: 2 hours.
115th CDs & SLDs Verification: 2 hours.
116th CDs & SLDs Collection: 2 hours.
116th CDs & SLDs Verification: 2 hours.
FY 2016 Burden Hours: 6,656.
FY 2017 Burden Hours: 3,224.
FY 2018 Burden Hours: 13,104.
FY 2019 Burden Hours: 6,448.
BBSP Annotation (FY 2016): 6,448 hours.
BBSP Verification (FY 2017): 3,224 hours.
Phase 1 Total Burden Hours: 9,672 hours.
VTD Delineation (FY 2018): 12,896 hours.
VTD Verification (FY 2019): 6,448 hours.
115th CDs & SLDs Collection (FY 2016): 104 hours.
115th CDs & SLDs Verification (FY 2016): 104 hours.
116th CDs & SLDs Collection (FY 2018): 104 hours.
116th CDs & SLDs Verification (FY 2018): 104 hours.
The Census Bureau is requesting a new collection to cover the five phases of the Redistricting Data Program (RDP) that was originally part of the Geographic Partnership Programs (GPPs) generic clearance. The Census Bureau requests a three-year clearance and a project specific OMB Control Number for RDP. GEO is creating a separate clearance for this critical program. A project specific clearance allows the Census Bureau to provide RDP specific materials, burden hours, and procedures. The need to only provide RDP materials ensures the program phases are uninterrupted by other program clearances unrelated to RDP. The RDP specific clearance provides flexibility in the timing, allowing the program to establish the schedule for RDP clearance needs and renewal.
Under the provisions of Title 13, Section 141(c) of the United States Code (U.S.C.), the Secretary of Commerce (Secretary) is required to provide the “officers or public bodies having initial responsibility for the legislative apportionment or districting of each state . . .” with the opportunity to specify geographic areas (
By April 1 of the year following the Decennial Census, the Secretary is required to furnish the state officials or their designees with population counts for American Indian areas (AIAs), counties, cities, census blocks, and state-specified congressional, legislative, and voting districts.
The Census Bureau has issued an invitation to the officers or public bodies having initial responsibility for legislative reapportionment and redistricting, through the Census Redistricting and Voting Rights Data Office (CRVRDO), inviting states to identify a non-partisan liaison that will work directly with the Census Bureau on the 2020 Census RDP.
Since the 1990 Census, participation in the Census RDP BBSP and VTDP, 2020 Census RDP Phases 1 and 2 under
The RDP invites respondent participation in the following phases of the program:
The purpose of the BBSP is to afford states the opportunity to identify non-standard Features often used as electoral boundaries (such as a power line or stream, rather than a street centerline, which might divide voters on different sides of a street into two districts) as Census block boundaries. The BBSP option affords the state liaison the opportunity to provide suggestions for 2020 Census tabulation block boundaries, resulting in more meaningful block data for the state. Liaisons are able to work with local officials including county election officers and others to ensure local geography is represented in the 2020 Census tabulation block inventory. In addition, the liaison, on behalf of the state, will make suggestions for features not desirable as census tabulation blocks. By identifying undesirable features, the liaison may assist the Census Bureau in reducing the overall number of census tabulation blocks from the 2010 inventory. Beginning in late fall of 2015, states that choose to participate in Phase 1 will begin receiving guidelines and training for providing their suggestions for the 2020 Census tabulation blocks, as well as their suggestions for exclusion of line segments, for consideration in the final 2020 Census tabulation block inventory. For the first time, states will have the opportunity to review legal limits, such as county and incorporated place boundaries, as reported through the Boundary and Annexation Survey (BAS). The Census Bureau conducts the BAS annually to update information about the legal boundaries and names of all governmental units. The alignment of the BAS with the BBSP will facilitate the cooperation between state and local government. A verification phase will occur in early 2017.
The VTDP will provide the state liaison, on behalf of the state, to submit the voting Districts (a generic term used to represent areas that administer elections such as precincts, election districts, wards, etc.) to the Census Bureau for representation in the 2020 Census Public Law 94-171 products (data and geographic products). Beginning in late 2017, states that choose to participate in VTDP will receive on a flow basis, geographic products that allow them the opportunity to update the Voting Districts (VTDs) for inclusion in the 2020 Census tabulation geography. State liaisons will continue to align their effort with updates from state and local government officials participating in the BAS. The VTD/BAS update and alignment will continue through spring of 2018. A verification phase will occur in early 2019 for states that participated in VTDP.
By April 1, 2021, the Director of the Census Bureau will, in accordance with Title 13, U.S.C., furnish the Governor and state legislative leaders, both the majority and minority, with 2020 Census population counts for standard census tabulation areas (
The Census Bureau requests from every state, the newly drawn Legislative and Congressional district plans and prepares appropriate data sets based on new districts. Between the 2010 Census and the 2020 Census, the effort began in 2011 using the 2010 Census as a baseline. Beginning in 2021, the Census Bureau will use the 2020 Census as a baseline. This effort will occur every two years in advance of the next Census in order to update these boundaries with new or changed plans. A verification phase will occur with each update.
As the final phase of the 2020 Census RDP, the Census Bureau will work with the states to conduct a thorough review of the RDP. The intent of this review, and the final report that results, is to provide guidance to the Secretary and the Census Bureau Director in planning the 2030 Census RDP.
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
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On June 8, 2015, the Department of Commerce (the Department) published the preliminary results of the fifth administrative review of the antidumping duty order on citric acid and certain citrate salts (citric acid) from Canada.
Based on our analysis of the comments received, we made changes to our margin calculations. The final weighted-average dumping margin for JBL Canada is listed below in the “Final Results of the Review” section of this notice.
Effective Date: October 15, 2015.
Rebecca Trainor or Kate Johnson, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution
On June 8, 2015, the Department published the
The merchandise covered by this order is citric acid and certain citrate salts from Canada. The product is currently classified under subheadings 2918.14.0000, 2918.15.1000, 2918.15.5000, and 3824.90.9290 of the Harmonized Tariff System of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of merchandise subject to the scope is dispositive.
The POR is May 1, 2013, through April 30, 2014.
All issues raised by parties in the case and rebuttal briefs are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached to this notice as Appendix I. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on a review of the record and comments received from interested parties regarding our
We determine that a weighted-average dumping margin of 0.00 percent exists for entries of subject merchandise that were produced and/or exported by JBL Canada and that entered, or were withdrawn from warehouse, for consumption during the POR.
The Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212(b). The Department intends to issue appropriate assessment instructions to CBP 41 days after publication of these final results of review. Because we have calculated a zero margin for JBL Canada in the final results of this review, we will instruct CBP to liquidate the appropriate entries without regard to antidumping duties.
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for JBL Canada will be that established in the final results of this review, (2) for previously reviewed or investigated companies not participating in this review, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a previous review, or the original less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 23.21 percent, the all-others rate made effective by 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 duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
In accordance with 19 CFR 351.305(a)(3), 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, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This administrative review and notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On June 9, 2015, the Department of Commerce (the “Department”) published in the
The Department invited interested parties to comment on the
Karine Gziryan and Robert Bolling, AD/CVD Operations, Office 4, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4081 and (202) 482-3434, respectively.
On June 16, 2015, the Department published the
The products covered by the order are narrow woven ribbons with woven selvedge. The merchandise subject to the order is classifiable under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings 5806.32.1020; 5806.32.1030; 5806.32.1050 and 5806.32.1060. Subject merchandise also may enter under HTSUS subheadings 5806.31.00; 5806.32.20; 5806.39.20; 5806.39.30; 5808.90.00; 5810.91.00; 5810.99.90; 5903.90.10; 5903.90.25; 5907.00.60; and 5907.00.80 and under statistical categories 5806.32.1080; 5810.92.9080; 5903.90.3090; and 6307.90.9889. Although the HTSUS subheadings are provided for convenience and customs purposes, the written product description in the
The Department has conducted this review in accordance with section 751(a)(1)(B) of the Act. For a full description of the methodology underlying our conclusions,
The period of review is September 1, 2013, through August 31, 2014.
As noted the in
The Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to the 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 notification of the 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.
We are issuing and publishing these results and this notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Effective Date: October 15, 2015.
The Department of Commerce (“Department”) preliminarily determines that certain polyethylene terephthalate resin (“PET resin”) from Canada is being, or is likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733(b) of the Tariff Act of 1930, as amended (the “Act”). The period of investigation is January 1, 2014, through December 31, 2014. The estimated weighted-average dumping margins are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.
Karine Gziryan, Cara Lofaro, or Krisha Hill, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4081, (202) 482-5720, or (202) 482-4037, respectively.
The Department published the notice of initiation of this investigation on April 6, 2015.
The merchandise covered by this investigation is polyethylene terephthalate (PET) resin. The merchandise subject to this investigation is properly classified under subheading 3907.60.00.30 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive.
For a full description of the scope of this investigation,
The
The Department is conducting this investigation in accordance with section 731 of the Act. Export price (“EP”) is calculated in accordance with section 772 of the Act. Normal value (“NV”) has been calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions,
Section 735(c)(5)(A) of the Act provides that the estimated “all others” rate shall be an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
The Department preliminarily determines that the following weighted-average dumping margins exist during the period January 1, 2014, through December 31, 2014:
In accordance with section 733(d)(2) of the Act, the Department will direct U.S. Customs and Border Protection (“CBP”) to suspend liquidation of all entries of PET resin from Canada as described in the “Scope of the Investigation” section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
We intend to disclose the calculations performed to parties in this proceeding within five days of any public announcement of this notice in accordance with 19 CFR 351.224(b). Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding, and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for submitting case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically using ACCESS. All documents must be filed electronically using ACCESS. An electronically filed request must be received successfully in its entirety by ACCESS, by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.
As provided in section 782(i)(1) of the Act, the Department intends to verify the information submitted by Selenis Canada prior to making a final determination in this investigation.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
Selenis Canada requested that, contingent upon an affirmative preliminary determination of sales at LTFV for Selenis Canada, the Department postpone its final determination pursuant to section 735(a)(2) of the Act.
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii) and (e)(2), because: (1) Our preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
In accordance with section 733(f) of the Act, we will notify the ITC of our preliminary affirmative determination of sales at LTFV. Because the preliminary determination in this proceeding is affirmative, section 735(b)(2) of the Act requires that the ITC make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of PET resin from Canada before the later of 120 days after the date of this preliminary determination or 45 days after our final determination. Because we are postponing the deadline for our final determination to 135 days from the date of publication of this preliminary determination, as discussed above, the ITC will make its final determination no later than 45 days after our final determination.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is rescinding the administrative review of the antidumping duty order on silicomanganese from Venezuela for the period May 1, 2014, through April 30, 2015.
Effective Date: October 15, 2015.
Scott Hoefke or Robert James, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4947 and (202) 482-0649, respectively.
On July 1, 2015, based on a timely request for review by Eramet Marietta, Inc. (Eramet) and Felman Production, LLC (Felman) (collectively, Petitioners), the Department published in the
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the publication of the notice of initiation of the requested review. In this case, Petitioners timely withdrew its review request by the 90-day deadline, and no other party requested an administrative review of the antidumping duty order. As a result, we are rescinding the administrative review of silicomanganese from Venezuela for the period May 1, 2014, through April 30, 2015.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Because the Department is rescinding this administrative review in its entirety, the entries to which this administrative review pertained shall be assessed antidumping duties at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after the publication of this notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Effective Date: October 15, 2015.
The Department of Commerce (“Department”) preliminarily determines that certain polyethylene terephthalate resin (“PET resin”) from the Sultanate of Oman (“Oman”) is being, or is likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733(b) of the Tariff Act of 1930, as amended (the “Act”). The period of investigation is January 1, 2014, through December 31, 2014. The estimated weighted-average dumping margins are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.
Jonathan Hill, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3518.
The Department published the notice of initiation of this investigation on April 6, 2015.
The merchandise covered by this investigation is polyethylene terephthalate (“PET”) resin. The merchandise subject to this investigation is properly classified under subheading 3907.60.00.30 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive.
For a full description of the scope of this investigation,
The
The Department is conducting this investigation in accordance with section 731 of the Act. Export prices (“EP”) and constructed export prices (“CEP”) have been calculated in accordance with section 772 of the Act. Normal value (“NV”) has been calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions,
Section 735(c)(5)(A) of the Act provides that the estimated “all others” rate shall be an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
The Department preliminarily determines that the following weighted-average dumping margins exist during the period January 1, 2014, through December 31, 2014:
In accordance with section 733(d)(2) of the Act, the Department will direct U.S. Customs and Border Protection (“CBP”) to suspend liquidation of all entries of PET resin from Oman, as described in the “Scope of the Investigation” section, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
We intend to disclose the calculations performed to parties in this proceeding within five days after public announcement of the preliminary determination in accordance with 19 CFR 351.224(b). Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for submitting case briefs.
Interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically using ACCESS. All documents must be filed electronically using ACCESS. An electronically filed hearing request must be received successfully in its entirety by ACCESS, by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.
As provided in section 782(i)(1) of the Act, the Department intends to verify the information submitted by OCTAL and its affiliates prior to making a final determination in this investigation.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
OCTAL requested that, contingent upon an affirmative preliminary determination of sales at LTFV for OCTAL, the Department postpone its final determination pursuant to 19 CFR 351.210(e)(2).
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii) and (e)(2), because: (1) Our preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
In accordance with section 733(f) of the Act, we will notify the ITC of our preliminary affirmative determination of sales at LTFV. Because the preliminary determination in this proceeding is affirmative, section 735(b)(2) of the Act requires that the ITC make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of PET resin from Oman before the later of 120 days after the date of this preliminary determination or 45 days after our final determination. Because we are postponing the deadline for our final determination to 135 days from the date of publication of this preliminary determination, as discussed above, the ITC will make its final determination no later than 45 days after our final determination.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Reza Karamloo at (202) 482-4470 or Rebecca Trainor at (202) 482-4007, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On August 10, 2015, the Department of Commerce (the Department) initiated the countervailing duty (CVD) investigation of heavy walled rectangular welded carbon steel pipes and tubes from the Republic of Turkey.
Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue the preliminary determination in a CVD investigation within 65 days after the date on which the Department initiated the investigation. However, if the Department concludes that the parties concerned are cooperating, and that the case is extraordinarily complicated such that additional time is necessary to make the preliminary determination, section 703(c)(1)(B) of the Act allows the Department to postpone making the preliminary determination until no later than 130 days after the date on which the administering authority initiated the investigation. We have concluded that the parties concerned are cooperating and that the case is extraordinarily complicated, such that we need more time to make the preliminary determination. Specifically, the analysis will involve not only the usual consideration of financial contribution and specificity for numerous programs,
We also note that, on September 30, 2015, the petitioners
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(l).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that certain polyethylene terephthalate resin (PET resin) from the People's Republic of China (PRC) is being, or is likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733 of the Tariff Act of 1930, as amended (the Act). The period of investigation (POI) is July 1, 2014, through December 31, 2014. The estimated margins of sales at LTFV are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.
Steve Bezirganian or Tyler Weinhold, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1131 or (202) 482-1121, respectively.
The Department published the notice of initiation of this investigation on April 6, 2015.
The merchandise covered by this investigation is polyethylene terephthalate (PET) resin. The merchandise subject to this investigation is properly classified under subheading 3907.60.00.30 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive.
For a full description of the scope of this investigation,
The
The Department is conducting this investigation in accordance with section 731 of the Act. We calculated export prices and constructed export prices in accordance with section 772 of the Act. Because the PRC is a non-market economy within the meaning of section 771(18) of the Act, normal value (NV) was calculated in accordance with section 773(c) of the Act. For a full description of the methodology underlying our conclusions,
In the
The Department preliminarily determines that the following weighted-average dumping margins exist during the period July 1, 2014, through December 31, 2014:
We intend to disclose the calculations performed to parties in this proceeding within five days after public announcement of the preliminary determination in accordance with 19 CFR 351.224(b). Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically using ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, ACCESS, by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.
In accordance with section 733(d)(2) of the Act, the Department will instruct U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of PET resin from the PRC, as described in the “Scope of the Investigation” section, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Pursuant to 19 CFR 351.205(d), the Department will instruct CBP to require a cash deposit
As stated previously, we will adjust cash deposit rates by the amount of export subsidies, where appropriate. In the companion CVD investigation, Jiangyin Xingyu New Material Co., Ltd., Jiangsu Xingye Plastic Co., Ltd., Jiangyin Xingjia Plastic Co., Ltd., Jiangyin Xingtai New Material Co., Ltd., and Jiangsu Xingye Polytech Co., Ltd. (collectively “Xingyu Group”) received a calculated export subsidy rate of 0.80 percent, and, thus, we will offset the calculated rate for the Xingyu Group by 0.80 percent. Far Eastern Industries (Shanghai) Ltd. and Oriental Industries (Suzhou) Limited (collectively “FEIS Group”) was not a mandatory respondent in the companion CVD investigation, so we will offset the calculated rate for the FEIS Group by 1.83 percent, the average of the export subsidy rates for the two mandatory respondents in the companion CVD investigation. Dragon Special Resin (XIAMEN) Co., Ltd., one of the separate rate companies, was a mandatory respondent in the companion CVD investigation and received a calculated export subsidy rate of 2.85 percent, and, thus, we will offset the calculated rate for Dragon by 2.85 percent. The other separate rate companies were not mandatory respondents in the companion CVD investigation, so we will offset the calculated rate for each of them by 1.83 percent, the average of the export subsidy rates for the two mandatory respondents in the companion CVD investigation. Finally, we are adjusting the cash deposit rate for the PRC-wide entity by 0.80 percent,
Pursuant to 777A(f) of the Act, we are also adjusting preliminary cash deposit rates for estimated domestic subsidy pass-through, where appropriate. We will adjust the Xingyu Group's by 0.91 percent, but we are not adjusting the rate for the FEIS Group because it failed to justify such an adjustment. We are adjusting the rates for each of the other separate rate companies by 1.83 percent. Finally, we are not adjusting the PRC-wide entity's rate for estimated domestic subsidy pass-through.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination by the Department, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination by the Department, a request for such postponement is made by the petitioner. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
In a joint letter dated September 30, 2015, Xingyu, Xingye, Dragon, Hainan Yisheng Petrochemical Co., Ltd., Zhejiang Wankai New Materials Co., Ltd., and Shanghai Hengyi Polyester Fiber Co., Ltd. requested that, in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination by 60 days (
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii) and (e)(2), because (1) our preliminary determination is affirmative; (2) the requesting exporters account for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
In accordance with section 733(f) of the Act, we will notify the ITC of our affirmative preliminary determination of sales at LTFV. Because the preliminary determination in this proceeding is affirmative, section 735(b)(2) of the Act requires that the ITC make its final determination whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of PET resin from the PRC before the later of 120 days after the date of this preliminary determination or 45 days after our final determination. Because we are postponing the deadline for our final determination to 135 days from the date of publication of this preliminary determination, as discussed above, the ITC will make its final determination no later than 45 days after our final determination.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
List of Topics Discussed in the Preliminary Decision Memorandum:
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is rescinding the administrative review of the countervailing duty (CVD) order on certain high pressure steel cylinders (HPSC) from the People's Republic of China (PRC) for the period of review (POR) January 1, 2014, through December 31, 2014, based on the timely withdrawal of the request for review.
Mark Kennedy, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-7883.
On June 1, 2015, the Department published the notice of opportunity to request an administrative review of the order on HPSC from PRC for the period of review January 1, 2014, through December 31, 2014.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if the party or parties that requested a review withdraws the request within 90 days of the publication date of the notice of initiation of the requested review. As noted above, both Norris and BTIC withdrew their requests, and they did so within 90 days of the publication date of the notice of initiation. No other parties requested an administrative review of the order. Therefore, in accordance with 19 CFR 351.213(d)(1), we are rescinding this review in its entirety.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries of HPSC from PRC. CVDs shall be assessed at rates equal to the cash deposit of estimated CVDs required at the time of entry, or withdrawal from warehouse, for consumption in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after the date of publication of this notice of rescission of administrative review.
This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under an APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On April 8, 2015, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on glycine from the People's Republic of China (PRC).
Dena Crossland or Angelica Townshend, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3362 or (202) 482-3019, respectively.
On April 8, 2015, the Department published the
In our
The period of review (POR) is March 1, 2013, through February 28, 2014.
The product covered by this antidumping duty order is glycine, which is a free-flowing crystalline material, like salt or sugar. Glycine is currently classified under subheading 2922.49.4020 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise under the order is dispositive.
All issues raised in the case and rebuttal briefs by parties to this review
Based on our review and analysis of the comments received from parties, we made certain changes to Baoding Mantong's margin calculation since the
The Department determines that the following estimated weighted-average dumping margin exists for the period March 1, 2013, through February 28, 2014:
The Department determined, and the 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 following cash-deposit requirements will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of this notice of final results of the administrative review, as provided by section 751(a)(2)(C) of the Tariff Act of 1930, as amended: (1) For any previously investigated or reviewed PRC and non-PRC exporters which are not under review in this segment of the proceeding that received a separate rate in a previous segment of this proceeding, the cash-deposit rate will continue to be the exporter-specific rate published for the most recently-completed period; (2) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, including Evonik, the cash-deposit rate will be that for the PRC-wide entity (
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this period of review. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these final results and this notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On August 31, 2015, the Department of Commerce (the Department) published its initiation and preliminary results
John Drury, or Angelica Townsend, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0195 or (202) 482-3019, respectively.
On July 8, 2015, in accordance with sections 751(b) and 751(d)(1) of the Tariff Act of 1930, as amended (the Act), 19 CFR 351.216(b); 351.222(g)(1), and 351.221(c)(3)(ii), Ashland Specialty
We received no comments from interested parties on the
The merchandise covered by this order is all purified CMC, sometimes also referred to as purified sodium CMC, polyanionic cellulose, or cellulose gum, which is a white to off-white, non-toxic, odorless, biodegradable powder, comprising sodium CMC that has been refined and purified to a minimum assay of 90 percent. Purified CMC does not include unpurified or crude CMC, CMC Fluidized Polymer Suspensions, and CMC that is cross-linked through heat treatment. Purified CMC is CMC that has undergone one or more purification operations which, at a minimum, reduce the remaining salt and other by-product portion of the product to less than ten percent.
The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States at subheading 3912.31.00. This tariff classification is provided for convenience and customs purposes; however, the written description of the scope of the order is dispositive.
Section 782(h)(2) of the Act and 19 CFR 351.222(g)(1)(i), provide that the Department may revoke an order (in whole or in part) if it determines that producers accounting for substantially all of the production of the domestic like product have no further interest in the order, in whole or in part. In accordance with 19 CFR 351.222(g)(1), we find that the petitioner's affirmative statement of no interest constitutes good cause to conduct this review. Ashland stated that, as the sole U.S. producer of CMC, it accounts for substantially all of the production of the domestic like product. Ashland also stated that it has no interest in the continuation of the
Because we determine that there are changed circumstances that warrant the revocation of the
This notice serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these final results and notice in accordance with sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR 351.216, 351.221(b)(5), and 351.222(g)(1)(i) and (g)(3)(vii).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that certain polyethylene terephthalate resin (PET resin) products from India are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The period of investigation is January 1, 2014, through December 31, 2014. The estimated weighted-average dumping margins are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.
Fred Baker or Robert James, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-2924 or (202) 482-0649.
The Department published the notice of initiation of this investigation on April 6, 2015.
The merchandise covered by these investigations is polyethylene terephthalate (PET) resin
The merchandise subject to these investigations is properly classified
For a full description of the scope of the investigation,
The
The Department is conducting this investigation in accordance with section 731 of the Act. Export price (EP) has been calculated in accordance with section 772 of the Act. Normal value (NV) has been calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying our conclusions,
On July 16, 2015, petitioners filed a timely critical circumstances allegation, pursuant to section 773(e)(1) of the Act and 19 CFR 351.206(c)(1), alleging that critical circumstances exist with respect to imports of the merchandise under consideration.
Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters and producers individually investigated excluding any zero or
The Department preliminarily determines that the following weighted-average dumping margins exist during the period January 1, 2014, through December 31, 2014:
We intend to disclose the calculations performed to parties in this proceeding within five days after public announcement of the preliminary determination in accordance with 19 CFR 351.224(b). Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for submitting case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically using ACCESS. All documents must be filed electronically using ACCESS. An electronically filed request must be received successfully in its entirety by ACCESS, by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.
As provided in section 782(i)(1) of the Act, the Department intends to verify
In accordance with section 733(d)(2) of the Act, the Department will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of PET resin from India as described in the “Scope of the Investigation” section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), we will instruct CBP to require a cash deposit
Section 733(e)(2) of the Act provides that, given an affirmative determination of critical circumstances, any suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the later of (a) the date which is 90 days before the date on which the suspension of liquidation was first ordered, or (b) the date on which notice of initiation of the investigation was published. As described above, we preliminarily find that critical circumstances exist for imports produced or exported by all Indian exporters. Therefore, in accordance with section 733(e)(2)(A) of the Act, the suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the publication of this notice.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
Reliance requested that, in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination by 60 days (
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii) and (e)(2), because (1) our preliminary determination is affirmative; (2) the requesting exporters account for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
In accordance with section 733(f) of the Act, we will notify the ITC of our preliminary affirmative determination of sales at LTFV. Because the preliminary determination in this proceeding is affirmative, section 735(b)(2) of the Act requires that the ITC make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of PET resin from India before the later of 120 days after the date of this preliminary determination or 45 days after our final determination. Because we are postponing the deadline for our final determination to 135 days from the date of publication of this preliminary determination, as discussed above, the ITC will make its final determination no later than 45 days after our final determination.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to the U.S. Navy (Navy) to incidentally harass, by Level B harassment only, marine mammals during construction activities associated with a pier replacement project at Naval Base Point Loma, San Diego, CA.
This authorization is effective from October 8, 2015, through October 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
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
On June 12, 2015, we received a request from the Navy for authorization to take marine mammals incidental to pile installation and removal associated with a pier replacement project in San Diego Bay at Naval Base Point Loma in San Diego, CA (NBPL). The Navy also submitted a separate monitoring plan and draft monitoring report pursuant to requirements of the previous IHA. The Navy submitted revised versions of the request on July 3 and July 26, 2015, a revised version of the monitoring plan on July 21, 2015, and a revised monitoring report on July 29, 2015. These documents were deemed adequate and complete. The pier replacement project is planned to occur over four years; this IHA covers only the third year of work and is valid for a period of one year, from October 8, 2015, through October 7, 2016. Hereafter, use of the generic term “pile driving” may refer to both pile installation and removal unless otherwise noted.
The use of both vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in behavioral harassment of marine mammals. Species with the expected potential to be present during all or a portion of the in-water work window include the California sea lion (
This is the third such IHA, following the IHAs issued effective from September 1, 2013, through August 31, 2014 (78 FR 44539) and from October 8, 2014, through October 7, 2015 (79 FR 65378). Monitoring reports are available on the Internet at
NBPL provides berthing and support services for Navy submarines and other fleet assets. The existing fuel pier serves as a fuel depot for loading and unloading tankers and Navy underway replenishment vessels that refuel ships at sea (“oilers”), as well as transferring fuel to local replenishment vessels and other small craft operating in San Diego Bay, and is the only active Navy fueling facility in southern California. Portions of the pier are over one hundred years old, while the newer segment was constructed in 1942. The pier as a whole is significantly past its design service life and does not meet current construction standards.
Over the course of four years, the Navy plans to demolish and remove the existing pier and associated pipelines and appurtenances while simultaneously replacing it with a generally similar structure that meets relevant standards for seismic strength and is designed to better accommodate modern Navy ships. Demolition and construction are planned to occur in two phases to maintain the fueling capabilities of the existing pier while the new pier is being constructed. During the third year of construction (the specified activity considered under this proposed IHA), approximately 226 piles will be installed (including six 30-in steel pipe piles, 88 30 x 24-in concrete piles, and 132 16-in concrete-filled fiberglass piles). Demolition of the existing pier will continue concurrently, including the removal of approximately one hundred steel and concrete piles and twenty concrete-filled steel caissons. Removals may occur by multiple means, including vibratory removal, pile cutter, dead pull, and diamond belt saw, as determined to be most effective. Construction work under this IHA is anticipated to require a total of 115 days of in-water work. All steel piles will be driven with a vibratory hammer for their initial embedment depths and finished with an impact hammer, as necessary.
The planned actions with the potential to incidentally harass marine mammals within the waters adjacent to NBPL are vibratory and impact pile installation and removal of piles via pile cutter. Vibratory pile removal is not planned but could occur if deemed the most effective technique to remove a given pile; because this technique is not expected to occur we do not consider it separately in this document from vibratory pile driving. Concurrent use of multiple pile driving rigs is not planned; however, pile removal conducted as part of demolition activities (which could occur via a number of techniques) may occur concurrently with pile installation conducted as part of construction activities.
The entire project is scheduled to occur from 2013-17; the planned activities that are planned to occur during the period of validity for this IHA, during the third year of work, would occur for one year. Under the terms of a memorandum of understanding (MOU) between the Navy and the U.S. Fish and Wildlife Service (FWS), all noise- and turbidity-producing in-water activities in designated least tern foraging habitat are to be avoided during the period when least terns are present and engaged in nesting and foraging (a window from approximately May 1 through September 15). However, it is possible that in-water work, as described below, could occur at any time during the period of validity of this IHA. The conduct of any such work would be subject to approval from FWS under the terms of the MOU. We expect that in-water work will primarily occur from October through April. In-water pile driving and removal work using pile cutters or vibratory drivers is limited to 115 days in total under this IHA. Pile driving will occur during normal working hours (approximately 7 a.m. to 6 p.m.).
NBPL is located on the peninsula of Point Loma near the mouth and along the northern edge of San Diego Bay (see Figures 1-1 and 1-2 in the Navy's application). San Diego Bay is a narrow, crescent-shaped natural embayment oriented northwest-southeast with an approximate length of 24 km and a total area of roughly 4,500 ha. The width of the bay ranges from 0.3 to 5.8 km, and depths range from 23 m mean lower low water (MLLW) near the tip of Ballast Point to less than 2 m at the southern end (see Figure 2-1 of the Navy's application). San Diego Bay is a heavily urbanized area with a mix of industrial, military, and recreational uses. The northern and central portions of the bay have been shaped by historic dredging to support large ship navigation. Dredging occurs as necessary to maintain constant depth within the navigation channel. Outside the navigation channel, the bay floor consists of platforms at depths that vary slightly. Sediments in northern San Diego Bay are relatively sandy as tidal currents tend to keep the finer silt and clay fractions in suspension, except in harbors and elsewhere in the lee of structures where water movement is diminished. Much of the shoreline consists of riprap and manmade structures. San Diego Bay is heavily used by commercial, recreational, and military vessels, with an average of over 80,000 vessel movements (in or out of the bay) per year (not including recreational boating within the Bay) (see Table 2-2 of the Navy's application). For more information about the specific geographic region, please see section 2.3 of the Navy's application.
In order to provide context, we described the entire project in our
During the first in-water work season, two primary activities were conducted: relocation of the Marine Mammal Program and the Indicator Pile Program (IPP). During the second in-water work season, the IPP was concluded and simultaneous construction of the new pier and demolition of the old pier begun. These activities were detailed in our
We published a notice of receipt of the Navy's application and proposed IHA in the
We do not believe that the authorization of Level A harassment is warranted in this case. These four observations, within the relevant zone for impact driving of 30- and 36-in steel pipe piles, occurred over one hundred days of such activity and 238 driven piles. This gives a rate of 0.02 animals observed within the actual Level A zone per driven pile. While this rate would likely be highly variable, it does give an indication of the rarity of the event (
We agree with the Commission's recommendation that we consider the need for authorization of Level A harassment consistently, but disagree that our decision here displays an inconsistent approach. We consider the need for authorization of Level A harassment on a case-by-case basis. Consistency does not demand that we reach the same outcome in all cases, but merely that we consider like factors consistently across actions.
There are four marine mammal species which are either resident or have known seasonal occurrence in the vicinity of San Diego Bay, including the California sea lion, harbor seal, bottlenose dolphin, and gray whale (see Figures 3-1 through 3-4 and 4-1 in the Navy's application). In addition, common dolphins (see Figure 3-4 in the Navy's application), the Pacific white-sided dolphin, Risso's dolphin, and northern elephant seals are known to occur in deeper waters in the vicinity of San Diego Bay and/or have been recently observed within the bay. Although the latter three species of cetacean would not generally be expected to occur within the project area, the potential for changes in occurrence patterns due to developing El Niño conditions in conjunction with recent observations leads us to believe that authorization of incidental take is warranted. Common dolphins have been documented regularly at the Navy's nearby Silver Strand Training Complex, and were observed in the project area during both previous years of project activity. The Pacific white-sided dolphin has been sighted along a previously used transect on the opposite side of the Point Loma peninsula (Merkel and Associates, 2008) and there were several observations of Pacific white-sided dolphins during Year 2 monitoring. Risso's dolphin is fairly common in southern California coastal waters (
Note that common dolphins could be either short-beaked (
In addition, other species that occur in the Southern California Bight may have the potential for isolated occurrence within San Diego Bay or just offshore. In particular, a short-finned pilot whale (
We have reviewed the Navy's detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Sections 3 and 4 of the Navy's application instead of reprinting the information here. Please also refer to NMFS' Web site (
Table 3 lists the marine mammal species with expected potential for occurrence in the vicinity of NBPL during the project timeframe and summarizes key information regarding stock status and abundance. See also Figures 3-1 through 3-5 of the Navy's application for observed occurrence of marine mammals in the project area. Taxonomically, we follow Committee on Taxonomy (2014). Please see NMFS' Stock Assessment Reports (SAR), available at
We provided discussion of the potential effects of the specified activity on marine mammals and their habitat in our
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
The mitigation strategies described below largely follow those required and successfully implemented under the first- and second-year IHAs. For this IHA, data from acoustic monitoring conducted during the first two years of work was used to estimate zones of influence (ZOIs; see “Estimated Take by Incidental Harassment”); these values were used to develop mitigation measures for pile driving activities at NBPL. The ZOIs effectively represent the mitigation zone that would be established around each pile to prevent Level A harassment to marine mammals, while providing estimates of the areas within which Level B harassment might occur. In addition, the Navy has defined buffers to the estimated Level A harassment zones to further reduce the potential for Level A harassment. In addition to the measures described later in this section, the Navy would conduct briefings between construction supervisors and crews, marine mammal monitoring team, acoustic monitoring team, and Navy staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
The following measures apply to the Navy's mitigation through shutdown and disturbance zones:
In order to document observed incidents of harassment, monitors record all marine mammal observations, regardless of location. The observer's location, as well as the location of the pile being driven, is known from a GPS. The location of the animal is estimated as a distance from the observer, which is then compared to the location from the pile. If acoustic monitoring is being conducted for that pile, a received SPL may be estimated, or the received level may be estimated on the basis of past or subsequent acoustic monitoring. It may then be determined whether the animal was exposed to sound levels constituting incidental harassment in post-processing of observational and acoustic data, and a precise accounting of observed incidences of harassment created. Therefore, although the predicted distances to behavioral harassment thresholds are useful for estimating incidental harassment for purposes of authorizing levels of incidental take, actual take may be determined in part through the use of empirical data.
Acoustic measurements will continue during the third year of project activity and zones would be adjusted as indicated by empirical data. Please see the Navy's Acoustic and Marine Species Monitoring Plan (Monitoring Plan; available at
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 (as defined in the Monitoring Plan) to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Qualified observers are trained biologists, with the following minimum qualifications:
• Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
• Advanced education in biological science or related field (undergraduate degree or higher 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.
(2) Prior to the start of pile driving activity, the shutdown zone will be monitored for fifteen minutes to ensure that it is clear of marine mammals. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals; animals will be allowed to remain in the shutdown zone (
(3) If a marine mammal approaches or enters the shutdown zone during the course of pile driving operations, activity will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal. Monitoring will be conducted throughout the time required to drive a pile and for thirty minutes following the conclusion of pile driving.
In-order to avoid impacts to least tern populations when they are most likely to be foraging and nesting, in-water work will be concentrated from October 1-April 1 or, depending on circumstances, to April 30. However, this limitation is in accordance with agreements between the Navy and FWS, and is not a requirement of this IHA. All in-water construction activities will occur only during daylight hours (sunrise to sunset).
The use of a soft start procedure is believed to provide additional protection to marine mammals by warning or providing a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers and, for impact hammers, the actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in “bouncing” of the hammer as it strikes the pile, resulting in multiple “strikes.” The project will utilize soft start techniques for both impact and vibratory pile driving of steel piles. We require the Navy to initiate sound from vibratory hammers for fifteen seconds at reduced energy followed by a thirty-second waiting period, with the procedure repeated two additional times. For impact driving, we require an initial set of three strikes from the impact hammer at reduced energy, followed by a thirty-second waiting period, then two subsequent three strike sets. Soft start will be required at the beginning of each day's pile driving work and at any time following a cessation of pile driving of thirty minutes or longer; these requirements are specific to both vibratory and impact driving and the requirement. For example, the requirement to implement soft start for impact driving is independent of whether vibratory driving has occurred within the past thirty minutes.
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.
Please see the Monitoring Plan (available at
• Monitor in-water construction activities, including the implementation of in-situ acoustic monitoring efforts to continue to measure SPLs from in-water construction and demolition activities not previously monitored or validated during the previous IHAs. At minimum, acoustic sound levels would be collected and evaluated acoustic for five
• Monitor marine mammal occurrence and behavior during in-water construction activities to minimize marine mammal impacts and effectively document marine mammals occurring within ZOI boundaries.
• Continue the collection of ambient underwater sound measurements in the absence of project activities to develop a rigorous baseline for the project area.
The primary purpose of acoustic monitoring is to empirically verify modeled injury and behavioral disturbance zones (defined at radial distances to NMFS-specified thresholds of 160-, 180-, and 190-dB (rms) for underwater sound (where applicable) and 90- and 100-dB (unweighted) for airborne sound; see “Estimated Take by Incidental Harassment” below). For non-pulsed sound, distances will continue to be evaluated for attenuation to the point at which sound becomes indistinguishable from background levels. Empirical acoustic monitoring data will be used to document transmission loss values determined from measurements collected during the IPP and to examine site-specific differences in SPL and affected ZOIs on an as needed basis.
Should monitoring results indicate it is appropriate to do so, marine mammal mitigation zones would be revised as necessary to encompass actual ZOIs in subsequent years of the fuel pier replacement project. Acoustic monitoring will be conducted as specified in the approved Monitoring Plan. Please see Table 2-2 of the Plan for a list of equipment to be used during acoustic monitoring. Monitoring locations will be determined based on results of previous acoustic monitoring effort and the best professional judgment of acoustic technicians.
Some details of the methodology include:
• No acoustic data to be collected for 30-in steel piles as sufficient data has been collected for 36-in steel piles during previous two years. One airborne sound monitoring station will be maintained.
• Hydroacoustic monitoring to be conducted at source for impact driving of a minimum of five of each type of fender pile in order to document SPLs.
• Sound level meters to be deployed to continue validation of source SPLs and 160/120 dB ZOIs as documented from previous acoustic monitoring efforts.
• Source SPLs for all construction or demolition activities will be measured for the first five events of each size or type of pile or activity if not sufficiently measured and/or validated previously; Navy would conduct additional monitoring if source unexpectedly exceeds any assumed values.
• For underwater recordings, sound level meter systems will follow methods in accordance with NMFS' 2012 guidance for the collection of source levels.
• For airborne recordings, to the extent that logistics and security allow, reference recordings will be collected at approximately 15 m from the source via a sound meter with integrated microphone. Other distances may also be utilized to obtain better data if the signal cannot be isolated clearly due to other sound sources (
• Ambient conditions will be measured at the project site in the absence of construction activities to determine background sound levels. Ambient levels will be recorded over the frequency range from 7 Hz to 20 kHz. Ambient conditions will be recorded at least three times during the IHA period consistent with NMFS' 2012 guidance for the measurement of ambient sound. Each time, data will be collected for eight-hour periods for three days during typical working hours (7 a.m. to 6 p.m., Monday through Saturday) in the absence of in-water construction activities. The three recording periods will be spaced to adequately capture variation across the notional work window (October-March).
• Environmental data would be collected including but not limited to: wind speed and direction, air temperature, humidity, surface water temperature, water depth, wave height, weather conditions and other factors that could contribute to influencing the airborne and underwater sound levels (
• From all the strikes associated with each pile occurring during the Level 4 (highest energy) phase these measures will be made:
○ Mean, minimum, and maximum rms pressure level in dB.
○ Mean duration of a pile strike (based on the ninety percent energy criterion).
○ Number of hammer strikes.
○ Mean, minimum, and maximum single strike SEL in dB re μPa
○ Cumulative SEL as defined by the mean single strike SEL + 10*log (# hammer strikes) in dB re μPa
○ A frequency spectrum (pressure spectral density) in [dB re μPa
Full details of acoustic monitoring requirements may be found in section 3.2 of the Navy's approved Monitoring Plan and in section 13 of the Navy's application.
The Navy will collect sighting data and behavioral responses to construction for marine mammal species observed in the region of activity during the period of activity. All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. The Navy will monitor the shutdown zone and disturbance zone before, during, and after pile driving as described under “Mitigation” and in the Monitoring Plan, with observers located at the best practicable vantage points. Notional monitoring locations are shown in Figures 3-1 and 3-2 of the Navy's Plan. Please see that plan, available at
• MMOs would 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 would 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.
One MMO will be placed on the active construction/demolition platform in order to observe the respective shutdown zones for vibratory and impact pile driving or for applicable demolition activities. Monitoring will be primarily dedicated to observing the shutdown zone; however, MMOs would record all marine mammal sightings beyond these distances provided it did not interfere with their effectiveness at carrying out the shutdown procedures.
Because there are different threshold distances for different types of marine mammals (pinniped and cetacean), the observation platform at the shutdown zone will concentrate on the 190 dB rms and 180 dB rms isopleths locations and station the observers and vessels accordingly. The MMOs associated with these platforms will record all visible marine mammal sightings. Confirmed takes will be registered once the sightings data has been overlaid with the isopleths identified in Table 4 and visualized (for steel piles) in Figure 6-2 of the Navy's application, or based on refined acoustic data, if amendments to the ZOIs are needed. The acousticians on board will be noting SPLs in real-time, but, to avoid biasing the observations, will not communicate that information directly to the MMOs. These platforms may move closer to, or farther from, the source depending on whether received SPLs are less than or greater than the regulatory threshold values. All MMOs will be in radio communication with each other so that the MMOs will know when to anticipate incoming marine mammal species and when they are tracking the same animals observed elsewhere.
If any species for which take is not authorized is observed by a MMO during applicable construction or demolition activities, all construction will be stopped immediately. If a boat is available, MMOs will follow the animal(s) at a minimum distance of 100 m until the animal has left the Level B ZOI. Pile driving will commence if the animal has not been seen inside the Level B ZOI for at least one hour of observation. If the animal is resighted again, pile driving will be stopped and a boat-based MMO (if available) will follow the animal until it has left the Level B ZOI.
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 incidents of take. We require that, at a minimum, the following information be collected on the sighting forms:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Weather parameters (
• Water conditions (
• Species, numbers, and, if possible, sex and age class of marine mammals;
• Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity, and if possible, the correlation to measured 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.
In addition, photographs would be taken of any gray whales observed. These photographs would be submitted to NMFS' West Coast Regional Office for comparison with photo-identification catalogs to determine whether the whale is a member of the WNP population.
A draft report will be submitted to NMFS within 45 calendar days of the completion of marine mammal monitoring, or sixty days prior to the issuance of any subsequent IHA for this project, whichever comes first. The report will include marine mammal observations pre-activity, during-activity, and post-activity during pile driving days, and will also provide descriptions of any behavioral responses to construction activities by marine mammals and a complete description of all mitigation shutdowns and the results of those actions. A final report will be prepared and submitted within thirty days following resolution of comments on the draft report. Required contents of the monitoring reports are described in more detail in the Navy's Acoustic and Marine Species Monitoring Plan.
The Navy complied with the mitigation and monitoring required under the previous authorizations for this project. Acoustic and marine mammal monitoring was implemented as required, with marine mammal monitoring occurring before, during, and after each pile driving event. During the course of Year 2 activities, the Navy did not exceed the take levels authorized under the IHA. However, the Navy did record four observations of California sea lions within the defined 190-dB shutdown zone. Previous acoustic and marine mammal monitoring results were detailed in our
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 or demolition and involving temporary changes in behavior. The planned mitigation and monitoring measures (
If a marine mammal responds to a stimulus by changing its behavior (
The project area is not believed to be particularly important habitat for marine mammals, nor is it considered an area frequented by marine mammals (with the exception of California sea lions, which are attracted to nearby haul-out opportunities). Sightings of other species are relatively rare. Therefore, behavioral disturbances that could result from anthropogenic sound associated with these activities are expected to affect only a relatively small number of individual marine mammals, although those effects could be recurring over the life of the project if the same individuals remain in the project vicinity.
The Navy requested authorization for the potential taking of small numbers of California sea lions, harbor seals, bottlenose dolphins, common dolphins, Pacific white-sided dolphins, Risso's dolphins, northern elephant seals, and gray whales in San Diego Bay and nearby waters that may result from pile driving during construction activities associated with the fuel pier replacement project described previously in this document. In order to estimate the potential incidents of take that may occur incidental to the specified activity, we typically first estimate the extent of the sound field that may be produced by the activity and then consider in combination with information about marine mammal density or abundance in the project area.
We provided detailed information on applicable sound thresholds for determining effects to marine mammals and described the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating potential incidents of take, in our
The following assumptions are made when estimating potential incidences 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;
• The assumed ZOIs and days of activity are as shown in Table 5; and,
• 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:
The ZOI impact area is estimated using the relevant distances in Table 4, assuming that sound radiates from a central point in the water column slightly offshore of the existing pier and taking into consideration the possible affected area due to topographical constraints of the action area (
Where appropriate, we use average daily number of individuals observed within the project area during Navy marine mammal surveys converted to a density value by using the largest ZOI as the effective observation area. It is the opinion of the professional biologists who conducted these surveys that detectability of animals during these surveys, at slow speeds and under calm weather and excellent viewing conditions, approached one hundred percent.
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 (aside from the contingency correction discussed above). 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 period of validity, 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. See Table 6 for total estimated incidents of take.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Pile driving activities associated with the pier replacement project have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from underwater sounds generated from pile driving. Potential takes could occur if individuals of these species are present in the ensonified zone when pile driving is happening.
No injury, serious injury, or mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for these outcomes is minimized through the construction method and the implementation of the planned mitigation measures. For example, use of vibratory hammers does not have significant potential to cause injury to marine mammals due to the relatively low source levels produced (site-specific acoustic monitoring data show no source level measurements above 180 dB rms) and the lack of potentially injurious source characteristics. Impact pile driving produces short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks. When impact driving is necessary, required measures (implementation of buffered shutdown zones) significantly reduce any possibility of injury. Given sufficient “notice” through use of soft start (for impact driving), marine mammals are
Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from past years of this project and 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 rookeries, significant haul-outs, or known areas or features of special significance for foraging or reproduction; (4) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable impact. In addition, these stocks are not listed under the ESA or considered depleted under the MMPA. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals. The specified activity is not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, we find that the total marine mammal take from Navy's pier replacement activities will have a negligible impact on the affected marine mammal species or stocks.
The number of incidents of take authorized for these stocks, with the exception of the coastal bottlenose dolphin (see below), would be considered small relative to the relevant stocks or populations (see Table 6) even if each estimated taking occurred to a new individual. This is an extremely unlikely scenario as, for pinnipeds occurring at the NBPL waterfront, there will almost certainly be some overlap in individuals present day-to-day and in general, there is likely to be some overlap in individuals present day-to-day for animals in estuarine/inland waters.
The numbers of authorized take for bottlenose dolphins are higher relative to the total stock abundance estimate and would not represent small numbers if a significant portion of the take was for a new individual. However, these numbers represent the estimated incidents of take, not the number of individuals taken. That is, it is likely that a relatively small subset of California coastal bottlenose dolphins would be incidentally harassed by project activities. California coastal bottlenose dolphins range from San Francisco Bay to San Diego (and south into Mexico) and the specified activity would be stationary within an enclosed water body that is not recognized as an area of any special significance for coastal bottlenose dolphins (and is therefore not an area of dolphin aggregation, as evident in Navy observational records). We therefore believe that the estimated numbers of takes, were they to occur, likely represent repeated exposures of a much smaller number of bottlenose dolphins and that, based on the limited region of exposure in comparison with the known distribution of the coastal bottlenose dolphin, these estimated incidents of take represent small numbers of bottlenose dolphins.
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.
The Navy initiated informal consultation under section 7 of the ESA with NMFS Southwest Regional Office (now West Coast Regional Office) on March 5, 2013. NMFS concluded on May 16, 2013, that the proposed action may affect, but is not likely to adversely affect, WNP gray whales. The Navy has not requested authorization of the incidental take of WNP gray whales and no such authorization was proposed, and there are no other ESA-listed marine mammals found in the action area. Therefore, no consultation under the ESA is 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 the 2014-15 monitoring report. Based on that review, we have determined that the proposed action is very similar to that considered in the previous IHAs. 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 pier replacement activities in San Diego Bay, from October 8, 2015 through October 7, 2016, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting (webinar).
The Pacific Fishery Management Council (Pacific Council) will convene a webinar meeting of its Coastal Pelagic Species Management Team (CPSMT). The meeting is open to the public.
The webinar will be held Tuesday, October 27, 2015, from 3 p.m. to 4:30 p.m. Pacific Daylight Time.
To attend the webinar, visit:
Kerry Griffin, Staff Officer; telephone: (503) 820-2409.
The primary purpose of the meeting is to discuss agenda items on the November 2015 Pacific Council meeting agenda. Topics may include the Pacific sardine distribution workshop report, anchovy general status, data-limited stock assessments for CPS, and/or methodology review topic selection.
Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the CPSMT's intent to take final action to address the emergency.
The public listening station is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (503) 820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of vendor to provide fishing year 2016 cage tags.
NMFS informs surfclam and ocean quahog individual transferable quota (ITQ) allocation holders that they will be required to purchase their fishing year 2016 (January 1, 2016-December 31, 2016) cage tags from the National Band and Tag Company. The intent of this notice is to comply with regulations for the Atlantic surfclam and ocean quahog fisheries and to promote efficient distribution of cage tags.
Anna Macan, Fishery Management Specialist, (978) 281-9165; fax (978) 281-9161.
The Federal Atlantic surfclam and ocean quahog fishery regulations at 50 CFR 648.77(b) authorize the Regional Administrator of the Greater Atlantic Region, NMFS, to specify in the
16 U.S.C. 1801
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).
NOAA Fisheries, Southeast Fisheries Science Center, annually collects socioeconomic data from commercial fishermen in the Gulf of Mexico and South Atlantic shrimp fisheries who hold one or more permits for harvesting shrimp from federal waters (U.S. Exclusive Economic Zone). Information about revenues, variable and fixed costs, capital investment and other socioeconomic information is collected from a random sample of permit holders. Additionally, we will pilot a short demographic/socioeconomic survey of shrimp vessel crews. Next to nothing is known about the 4-5 thousand individuals crewing federally permitted shrimp vessels. These data are needed to conduct socioeconomic analyses in support of management of the shrimp fishery and to satisfy legal requirements. The data will be used to assess how fishermen will be impacted by and respond to federal regulation likely to be considered by fishery managers.
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
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“CFTC”) is announcing an opportunity for public comment on the renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before December 14, 2015.
You may submit comments, identified by “OMB Control No. 3038-0043” by any of the following methods:
• The Agency's Web site, at
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Please submit your comments using only one method.
Melissa Chiang, Counsel, Office of General Counsel, Commodity Futures Trading Commission, (202) 418-5578; email:
Under the PRA, Federal agencies must obtain approval from the Office of Management and Budget (“OMB”) for each collection of information they conduct or sponsor. “Collection of Information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3 and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice 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 OMB control number. The OMB control numbers for the CFTC's regulations were published on December 30, 1981.
With respect to the collection of information, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of 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;
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
There are no capital costs or operating and maintenance costs associated with this collection.
Department of the Navy, DoD.
Notice.
The Department of the Navy hereby gives notice of its intent to grant to Envoy Flight Systems, Inc. located at 201 Ruthar Drive, Suite 3, Newark, Delaware 19711, a revocable, nonassignable, partially exclusive license throughout the United States (U.S.) in the fields of use for Portable Firefighting Systems, Portable Cleaning Systems and Water Desalination in the Government-Owned inventions described in U.S. Patent number 5,520,331 issued on May 28, 1996 entitled “Liquid Atomizing Nozzle” and U.S. Patent number 7,523,876 B2 issued on April 28, 2009 entitled “Adjustable Liquid Atomization Nozzle”.
Written objections are to be filed with the Naval Air Warfare Center Aircraft Division, Technology Transfer Office, Attention Michelle Miedzinski, Code 5.0H, 22347 Cedar Point Road, Building 2185, Room 2160, Patuxent River, Maryland 20670.
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, within fifteen (15) days of the date of this published notice.
Michelle Miedzinski, 301-342-1133, Naval Air Warfare Center Aircraft Division, 22347 Cedar Point Road, Building 2185, Room 2160, Patuxent River, Maryland 20670.
35 U.S.C. 207, 37 CFR part 404.
Department of the Navy.
Notice.
The invention listed below is assigned to the United States Government as represented by the Secretary of the Navy and is available for domestic and foreign licensing by the Department of the Navy.
The following patent is available for licensing: U.S. Provisional Patent No. 62/038569: SPINDLE LOCATOR TOOL
Requests for a copy of the invention cited should be directed to NAVFAC Engineering & Expeditionary Warfare Center, RDT&E C19, 1100 23rd Avenue, Port Hueneme, CA 93043-4370.
Victor Cai, Technology Transfer Office, NAVFAC-EXWC RDT&E C19, 1100 23rd Avenue, Port Hueneme, CA 93043-4370 telephone 805-982-3009, FAX 805-982-1253, email:
The Spindle Locator Tool enables identification of proper and improper placement of a spindle in a locking mechanism. Specifically, it will be used for the X-10 electromechanical lock which has experienced a spindle and cam interface issue that can result in lockouts requiring neutralization.
Office of Postsecondary Education, Department of Education.
Notice.
The Secretary invites postsecondary educational institutions (institutions) that participate in the student financial assistance programs authorized under title IV of the Higher Education Act of 1965, as amended (HEA), to apply to participate in a new institutionally based experiment under the Experimental Sites Initiative (ESI). Under the ESI, the Secretary has authority to grant waivers from certain title IV, HEA statutory or regulatory requirements to allow a limited number of institutions to participate in experiments to test alternative methods for administering the title IV, HEA programs. The alternative methods of title IV, HEA program administration that the Secretary is permitting under the ESI are designed to facilitate efforts by institutions to test certain innovative practices aimed at improving student outcomes and the delivery of services.
The Educational Quality through Innovative Partnerships (EQUIP) experiment is intended to encourage increased innovation in higher education through partnerships between the participating institutions and non-traditional providers in order to learn whether those partnerships increase access to innovative and effective educational programs, particularly for students from low-income backgrounds; assess quality assurance processes appropriate for non-traditional providers and programs; and identify ways to protect students and taxpayers from risk in this emerging area of post-secondary education. Under this experiment, participating title IV-eligible postsecondary institutions will be provided a waiver to allow them to provide some types of Federal student aid under the title IV, HEA programs (title IV aid) to otherwise eligible students who are pursuing a program of study offered by the institution where 50 percent or more of the educational program is provided by one or more entities that are not traditionally eligible to participate in the title IV programs (non-traditional providers), through a contractual agreement with the participating institution. A requirement of these partnerships between the participating institution and the non-traditional provider is that the educational program must have been approved by a quality assurance entity (QAE), engaged by the institution, that has expertise and capacity as described in this notice.
Letters of interest to participate in the proposed experiment described in this notice must be received by the Department no later than December 14, 2015 in order for an institution to ensure that it is considered for participation in the experiment. Institutions submitting letters that are received after December 14, 2015 may still be considered for participation, at the discretion of the Secretary.
Letters of interest must be submitted by electronic mail to the following email address:
Warren Farr, U.S. Department of Education, Federal Student Aid, 830 First Street NE., Washington, DC 20002. Telephone: (202) 377-4380 or by email at:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Instructions for Submitting Letters of Interest: Letters of interest must be submitted as a PDF attachment to an email message sent to the email address provided in the
The letter of interest must include the institution's official name and Department of Education Office of Postsecondary Education Identification (OPEID) number, as well as the name, mailing address, email address, FAX number, and telephone number of a contact person at the institution. Additional details on the application process requirements are provided in the “Application and Selection” section in this notice.
The letter of interest should be on institutional letterhead and should be signed by at least two officials of the institution. One of these officials should be the institution's financial aid administrator, and the other should be an academic official of the institution.
Content of the Letter of Interest: The letter of interest should include a brief description of the educational program or programs that the institution is considering for inclusion in this experiment. For each of those programs, we are interested in information such as the name(s) of the non-traditional provider(s) with whom the institution intends to partner, an estimate of the number of title IV-eligible students who will be enrolled in the program, and the name of the QAE to be engaged, if known. The letter should indicate which of the following two title IV student aid program options the institution will choose (in all cases providing title IV aid only to otherwise eligible students): (1) Allowing students to be eligible for Pell Grants only; or (2) allowing students to be eligible for Pell Grants, undergraduate Direct Subsidized Loans and Direct Unsubsidized Loans, and the Campus-Based Programs. Direct PLUS Loans for parents and graduate students and Direct Unsubsidized Loans for graduate students are not included in this experiment. See “Application for Pell Grants Alone or for Pell Grants and Certain Other Title IV Aid” below for further information. The Department understands that the specific components of the actual programs developed may vary from the information submitted in the letter of interest.
Background: The landscape for learning in postsecondary education is undergoing tremendous development. Innovations in technology, pedagogy, and business models are driving rapid change. While much of this development has been led by traditional postsecondary institutions, there are also significant educational changes occurring outside of the traditional educational sector. Non-traditional providers have begun to offer educational opportunities to students in new ways, such as through intensive short-term programs, online or blended approaches, or personalized/adaptive learning. These opportunities have the potential to advance goals such as increased equity and access, more flexible and personalized learning, high-quality student outcomes, and reduced costs.
Although some of these educational opportunities show promise in advancing these priorities, they remain out of reach for many students, particularly those from low-income backgrounds, in part because they generally do not provide students with
Moreover, many of these non-traditional providers and educational opportunities are not subject to review by the traditional postsecondary accrediting agencies that historically have held the primary responsibility for ensuring academic quality in higher education. Since the purview of those accrediting agencies typically does not extend to non-traditional providers, these new providers lack the broadly recognized mechanisms for ensuring quality that are required for the Department to make title IV aid available. The lack of those structures may also reduce opportunities for external review and sharing of best practices in general that traditional accreditation can offer.
In general, under the Department's regulations, an eligible institution may enter into a contractual agreement with an institution or organization that is not eligible to participate in the title IV programs, under which the ineligible institution or organization provides part of an educational program of study. However, the regulations provide that the ineligible institution or organization cannot provide 50 percent or more of the title IV eligible educational program. The experiment outlined in this notice will allow participating institutions to provide title IV aid to otherwise eligible students pursuing a program of study for which 50 percent or more of the content and instruction is provided by one or more title IV-ineligible organizations (non-traditional providers). As part of the experiment, the Secretary will provide participating institutions with certain statutory and regulatory waivers, which are listed in the section of this notice titled “Waivers.”
The experiment is intended to encourage increased innovation in higher education through partnerships between the participating institutions and non-traditional providers. In doing so, the Department hopes to:
• Learn whether permitting partnerships between institutions and non-traditional providers increases equity by providing access to innovative educational programs for students from diverse backgrounds, particularly those from low-income backgrounds;
• Examine student outcomes to evaluate the effectiveness of these non-traditional providers;
• Assess quality-assurance processes that are appropriate for non-traditional providers and the programs they offer; and
• Identify ways to protect students and taxpayers from risks in an innovative and emerging area of postsecondary education.
The experiment is intended to focus predominantly on low-cost, short-term programs serving students who do not yet have an undergraduate degree.
Title I, part A of the HEA and federal regulations describe other conditions for an institution and its educational programs to be eligible for title IV aid. In general, for an educational program to be title IV-eligible, it must be included in the accreditation of the institution by the institution's recognized accrediting agency and in the institution's legal authorization to provide an educational program beyond secondary education in the State in which the institution is located. In addition, the program must prepare students for gainful employment in a recognized occupation as described in Department regulations, except if it is offered by a public or non-profit institution and either leads to a degree or is at least a two-year program acceptable at the institution for full credit towards a degree. In general, under section 481(b)(1)(A) of the HEA and 34 CFR 668.8(d), title IV-eligible programs must be at least 15 weeks in duration and provide at least 600 clock hours, 16 semester or trimester hours, or 24 quarter hours of academic credit. These statutes and regulations play a critical role in protecting students and taxpayers from abuse by low-quality higher education programs.
Under current regulations, institutions are prevented from building partnerships to create programs of study comprised of content and instruction provided largely by one or more non-traditional providers. In some cases, an institution may believe it has identified a non-traditional provider whose expertise or approach complements that of the institution and could work effectively with particular student populations or toward desired student outcomes. These limitations on partnerships could constrain innovation and make high-quality educational opportunities offered by non-traditional providers accessible only to students who do not need title IV aid.
In accordance with the waiver authority granted to the Secretary under section 487A(b) of the HEA, the Secretary will waive for this experiment the restriction on providing title IV aid to students enrolled in programs that an eligible institution offers through partnerships with title IV-ineligible entities (non-traditional providers) that, with oversight, are delivered to students primarily by those non-traditional providers. Through this and other waivers described in this notice, this experiment will examine whether extending eligibility for title IV aid to non-traditional postsecondary programs offered through these partnerships increases access to high-quality academic programs for students from a diversity of backgrounds, particularly students from low-income backgrounds. In addition, the experiment will examine student outcomes at these promising non-traditional providers to determine whether they are effective. The experiment will also examine whether the waivers create any challenges or obstacles to an institution's administration of the title IV, HEA programs.
In order for an institution to provide title IV aid to students in a program that is provided primarily by one or more non-traditional providers under the experiment, the Department will require that, in addition to being included in the institution's recognized accreditation, the program must be reviewed, approved, and monitored by an independent quality assurance entity (QAE) that is appropriately qualified to review and monitor such programs. These requirements are further described later in this notice.
The Secretary will also waive or modify the following statutory and regulatory provisions that might otherwise limit participation in flexible, high-quality programs of study offered through contractual agreements between postsecondary institutions and non-traditional providers. To participate in the experiment, an applicant institution must use at least one of the waivers in this experiment but need not use all of them.
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Additionally, under this experiment, if the institution accepts any transfer credit to meet the requirements of a student's program, it may, but is not required to, prorate the student's maximum timeframe based on the remaining amount of the program after the transfer credit has been applied.
Application for Pell Grants Alone or for Pell Grants and Certain Other Title IV Aid: The costs of postsecondary programs where all or a portion of the program is provided by non-traditional providers vary widely; for some programs, Pell Grants alone might cover direct costs (tuition, fees, books, and supplies), while others may require a combination of Pell Grants and loans to cover those costs. Some programs may wish to focus solely on Pell Grant-eligible students. While this experiment aims to focus primarily on low-cost programs, it may also seek to learn from programs that may have a range of costs. Institutions must choose one of two title IV student aid program options: (1) Allowing students to be eligible for Pell Grants only, or (2) allowing students to be eligible for Pell Grants, undergraduate Direct Subsidized Loans and Direct Unsubsidized Loans, and the Campus-Based Programs. Direct PLUS Loans for parents and graduate students and Direct Unsubsidized Loans for graduate students are not included in this experiment. Existing statutory and regulatory awarding requirements for the Campus-Based Programs are not changed under this experiment. For an institution choosing to provide only Pell Grants, any title IV aid recipients enrolled in the program must be Pell-grant eligible and be advised before enrollment that their title IV aid awards will be limited to Pell Grants. Similarly, for an institution choosing to provide Pell and the other title IV aid available in this experiment, any title IV aid recipients enrolled in the program must be otherwise eligible for that title IV aid and must be advised before enrollment of the limitations on their title IV aid eligibility for the program. Additional requirements for student protections will also be in place for institutions choosing to utilize title IV aid in addition to Pell Grants in the experiment (see “Requirements for Participation”).
Requirements for Participation: The Department intends to select a limited number of institutions to participate in this experiment. Each institution will curate a program of study comprised of educational programming that may be provided by one or more non-traditional providers. The Department intends to select some institutions that will make only Pell Grant funding available to otherwise eligible students enrolled in the program, and some institutions that will make Pell Grant funding and certain other types of title IV aid program funding available to otherwise eligible students enrolled in the program as described elsewhere in this notice.
An institution participating in this experiment will be required to do the following:
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The Department will monitor programs based on regular reports from the institution and the QAE, along with any data available to the Secretary, including information provided by the accreditor, students, or others regarding the performance of the participating entities, student enrollment, and student outcomes. Based on this information, the Department may take a number of actions, including removal of the institution from the experiment and any enforcement actions authorized by the HEA.
As part of this experiment, the Department is interested in understanding how a QAE will determine the quality of a program of study through a set of largely outcome-based questions, rigorous and timely monitoring, and accountability processes.
While the Department continues to refine this set of quality assurance questions, participating institutions must ensure that the QAE in this experiment has established a thorough quality assurance process that defines and monitors outcome-based standards for the numbered questions below. Draft questions are included here to provide an overview; the final set of questions will be provided to applicants in Phase Two of the application process.
1. What measurable claims is the institution making about the learning outcomes of students participating in the program? For example:
• What is the evidence that the learning claims are commensurate with postsecondary- or post-baccalaureate-level work?
• Do the institution's statements about student outcomes capture requisite knowledge and skills? How?
2. How are the value and relevance of those claims established? For example, what external stakeholders have been consulted to verify the value and relevance of the claims?
3. How will the claims be measured?
4. How will institutions be held accountable for meeting those claims?
5. How do all the claims for learning come together into a meaningful and coherent set of overall program outcomes and goals?
1. How does the institution assess whether students enrolled in the program can meet the claims outlined in Section A? For example:
• How are assessments aligned with the specific tasks, expectations, and contexts for which programs claim to be preparing students?
• Beyond one-time assessments, is student work reviewed as part of the assessment of student learning and program outcomes? Do external stakeholders review students' work? How are examples of student work made available to outside parties (with appropriate privacy and other protections)?
2. How has the reliability of these assessments been established?
3. How has the validity of these assessments been established, for example, in terms of the following?
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4. How and how often does the QAE review these assessments?
1. How are students performing on program assessments?
2. How are students progressing through the program? For example:
• Retention rate?
• Withdrawal rate?
• Average time to completion?
• Completion rate (within 100 percent and 150 percent of expected time)?
3. What are the actual program outcomes for students (
• Employment outcomes, for all programs that have a stated mission focused on employment (include method for how these outcomes are measured):
• Job placement rates in field of study?
• Average length of time between completion of program and employment in field of study?
• Job retention rates?
• Median starting salaries?
• Transfer rates to other academic or vocational programs, where applicable.
• Certifications and licensure exam passage rates, where applicable.
4. What are the following ratios for the program, where relevant?
• Published tuition and fees versus earnings.
• Average net price versus earnings.
• Median student debt versus earnings.
5. How does the program rate on measures of student satisfaction? For example, how does the program rate in the following:
• Comments from students about what made them successful or unsuccessful in the program?
• A rigorous and transparent methodology for gathering and synthesizing customer satisfaction measures?
1. How has the stability of the non-traditional provider(s) been evaluated (
2. How are privacy, security, and student authentication managed?
3. Are activities related to student recruitment appropriate and transparent?
4. How is pricing made transparent?
5. Are all materials accessible to learners with disabilities?
6. What is the process for continuous improvement of all aspects of the learning experience (content, platform, student support, faculty engagement, etc.)?
Based on the standards developed by the QAE, the QAE must establish a rigorous and timely process to assess the program before students are enrolled, monitor and report on an approved program's performance, and take action based on the program's performance. The institution must require the QAE to perform the following functions:
• Develop a process to review the proposed program, including its components and providers, based on clear, specific, and measurable standards consistent with the questions listed above, among others.
• Monitor the proposed program, including its components and providers, to confirm the program is being implemented and assessed as proposed, and to confirm the achievement of provider claims for learning and student outcomes; and have a written policy that outlines timely and significant consequences for lack of performance. If groups of students enroll in a program at distinct and regularly scheduled points in time, monitoring must be conducted, at a minimum, at four points in time: An early stage in the program to identify early warning signs of issues related to implementation, quality, or management; the midpoint of a program in order to have sufficient time to correct potential problems that have been identified; at the completion of a program; and at a pre-determined time period after completion of the program (
• Report on the performance of the non-traditional providers to the institution, accreditor, and the Department every six months, as well as at any time the QAE identifies program quality concerns or determines that the program is at risk of or subject to any adverse action.
This notice refers to a single QAE for each participating institution because the Department believes it is important to have a single organization ultimately responsible for affirming the quality of a program and taking action based on its assessment. However, given the range and depth of expertise and knowledge required for the quality assurance process, we expect that some applicants may wish to have two or more organizations working together to fulfill the requirements of this role. Subcontracts for specific portions of the role would be acceptable as long as one organization is clearly designated as having the lead role and final responsibility for quality determination and consequences, and the respective roles and responsibilities of the organizations are clearly delineated along with the means of coordination among all the partners. QAEs could be any of a number of kinds of organizations, including employer associations, new entities created for this specific purpose, existing accreditors (as long as the proposed quality assurance process is new, meets the stated requirements, and does not create conflicts of interest), accounting firms, or others.
To participate in the experiment, an applicant institution must use at least one of the waivers in this experiment but need not use all of them.
• 34 CFR 668.8(a), to the extent that the regulation requires that an eligible program be provided by the participating institution.
• 34 CFR 668.5(c)(3), to the extent that the regulation restricts the amount of an eligible program that may be provided by an ineligible institution or organization. Notwithstanding this waiver, the eligible institution must provide documentation from its accrediting agency confirming that the accrediting agency considers the program within its accreditation of the eligible institution. The waiver does not apply to the prohibition on the eligible institution and the ineligible institution or organization (non-traditional provider) being owned or controlled by the same individual, partnership, or corporation.
• Section 481(b)(1)(A) of the HEA and 34 CFR 668.8(d)(1)(i) and (ii), which establish minimum timeframes for non-degree programs and programs offered by proprietary and postsecondary vocational institutions. Under the experiment the program may be no less than 12 semester or trimester credit hours, 18 quarter hours, or 450 clock hours, all offered over a minimum of eight weeks.
• Section 484(c) of the HEA and 34 CFR 668.34(a)(3)(ii), (a)(5)(ii), and (b), to the extent these provisions relate to the timeframe when the institution must determine whether a student is making satisfactory academic progress and to the method by which an institution must calculate the pace of a student's academic progression.
All other provisions and regulations of the title IV, HEA programs will apply to institutions participating in this experiment.
Institutions that are selected for participation in the experiment will likely be required to provide the Department with identifying information for students who have enrolled in one of the programs included in the experiment and who submitted a Free Application for Federal Student Aid (FAFSA). Additional information may also be required about students who could serve as a comparison group for benchmarking purposes, for example, similar students not enrolled in programs included in the experiment.
In addition, participating institutions will be required to submit reports and/or participate in surveys, interviews, or site visits to provide information about the implementation of the experiment. Institutions will likely be asked to provide information on courses and programs offered, numbers and types of degrees and/or certificates awarded, numbers and types of students served, their experiences in the program, their outcomes after leaving the program (such as employment status, earnings, credits transferred), provider expenditures per student, and information on the cost of the programs and the amounts borrowed by students attending the programs. Institutions will also be required to provide information on how they partnered with the non-traditional providers and the QAEs, the quality assurance process, and any challenges experienced and how those challenges were addressed.
The specific evaluation and reporting requirements will be finalized prior to the start of this experiment.
(1) The extent to which the proposed activities are innovative and will produce high-quality programs likely to lead to positive student learning and employment outcomes, and for programs focused on student learning outcomes, the Department will give preference to programs that either lead to a degree or demonstrate evidence of transferability of academic credit;
(2) The extent to which programs will provide equitable access to innovative postsecondary education programs, particularly for students from low-income backgrounds;
(3) The extent to which the proposed quality assurance processes have the potential to address the types of quality assurance questions outlined in this notice;
(4) The extent to which the programs are affordable; and
(5) For programs in which students will have access to Federal student loans, the strength of proposed student and taxpayer protections.
The Secretary will also consider institutional diversity in, among other characteristics, institutional type and control, geographic location, enrollment size, and title IV, HEA program participation levels.
Institutions selected to participate in the experiment must have a strong track record with regard to student outcomes, especially in serving students from low-income backgrounds. When selecting institutions, the Secretary will consider not only the information in the institution's application, including the information provided about the QAEs and non-traditional providers that would provide the program in whole or in part, but any additional information available to the Department including, but not limited to, evidence of title IV, HEA program compliance, student completion rates, cohort default rates, financial responsibility ratios, gainful employment data, and, for for-profit institutions, “90/10” funding levels. The institution's recognized accrediting agency will also need to provide a notice of inclusion of the program in the applicant institution's accreditation by Phase Three in the application and selection process (described below).
The application and selection process will entail three phases:
Full applications will be reviewed based on the stated criteria, including the preferences described in this notice. On this basis, the Secretary will select the institutions to be invited to participate and provide those institutions an amendment to the program participation agreement (PPA) that must be signed by the institution's authorized official and returned to the Department. PPA amendments will reflect the specific statutory or regulatory provisions that the Secretary has waived or modified for the experiment. The institution must acknowledge its commitment to properly administer the experiment by establishing any necessary procedures and by coordinating with other institutional offices and staff. The PPA amendments will also document the agreement between the Secretary and the institution about how the experiment will be conducted, including, for institutions intending to disburse title IV, HEA aid other than Pell Grants, additional student and taxpayer protections.
You may also access documents of the Department published in the
20 U.S.C. 1094a(b).
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
Personnel Development to Improve Services and Results for Children with Disabilities—Personnel Preparation in Special Education, Early Intervention, and Related Services
Notice inviting applications for new awards for fiscal year (FY) 2016.
Applications Available: October 15, 2015.
Deadline for Transmittal of Applications: December 14, 2015.
Deadline for Intergovernmental Review: February 12, 2016.
This priority is:
The purpose of the Personnel Preparation in Special Education, Early Intervention, and Related Services priority is to improve the quality and increase the number of personnel who are fully credentialed to serve children, including infants and toddlers, with disabilities—especially in areas of chronic personnel shortage—by supporting projects that prepare special education, early intervention, and related services personnel at the baccalaureate, master's, and specialist levels. State demand for fully credentialed special education, early intervention, and related services personnel to serve infants, toddlers, and children with disabilities exceeds the available supply (Bruder, 2004a; Bruder, 2004b; McLeskey & Billingsley, 2008; McLeskey, Tyler, & Flippin, 2004). These shortages of fully credentialed personnel can negatively affect the quality of services provided to infants, toddlers, and children with disabilities and their families (McLeskey et al., 2004).
Personnel preparation programs that prepare personnel to enter the fields of special education, early intervention, and related services as fully credentialed personnel who are well qualified, have the necessary competencies, and effectively use evidence-based practices to improve outcomes for children with disabilities are critical to overcoming the personnel shortages in these fields. Federal support of these personnel preparation programs is needed to increase the supply of personnel with the necessary competencies to effectively serve infants, toddlers, and children with disabilities and their families, and to make sure students with disabilities have access to and meet college- and career-ready standards.
Consistent with the Ready to Work Initiative: Job-Driven Training and American Opportunity,
Except as provided for Focus Area D projects that allow a one-year planning period, to meet this priority, an applicant must propose a project associated with a pre-existing baccalaureate, master's, or specialist degree personnel preparation program that will prepare and support scholars
To be considered for funding under the Personnel Preparation in Special Education, Early Intervention, and Related Services absolute priority, all program applicants must meet the application requirements contained in the priority. All projects funded under this absolute priority also must meet the programmatic and administrative requirements specified in the priority.
The requirements of this priority are as follows:
(a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how—
(1) The project addresses national, State, regional, or district shortages of personnel who are fully qualified to serve children with disabilities, ages birth through 21, including high-need children with disabilities,
(i) Present appropriate and applicable national, State, regional, or district data demonstrating the need for the personnel the applicant proposes to prepare; and
(ii) Present data on the effectiveness of the personnel preparation program to date in areas such as: The average amount of time it takes for program participants to complete the program; the percentage of program graduates finding employment related to their preparation within one year of graduation; the effectiveness of program graduates in providing special education, early intervention, or related services, which could include data on the learning and developmental outcomes of children with disabilities they serve; and the percentage of program graduates who maintain employment for three or more years in the area for which they were prepared and who are fully qualified under IDEA.
(2) The project will increase the number of personnel who demonstrate the competencies needed to provide high-quality instruction, evidence-based interventions, and services for children with disabilities, ages birth through 21, including high-need children with disabilities, that result in improvements in learning and developmental outcomes (
(i) Identify the competencies
(ii) Demonstrate that the identified competencies are supported by evidence of promise
(i) There is at least one study that is a—
(A) Correlational study with statistical controls for selection bias;
(B) Quasi-experimental design study that meets the What Works Clearinghouse Evidence Standards with reservations; or
(C) Randomized controlled trial that meets the What Works Clearinghouse Evidence Standards with or without reservations.
(ii) The study referenced in paragraph (i) of this definition found a statistically significant or substantively important (defined as a difference of 0.25 standard deviations or larger) favorable association between at least one critical component and one relevant outcome presented in the logic model for the proposed process, product, strategy, or practice.
(iii) Provide the conceptual framework of the personnel preparation program, including any empirical support, that will promote the acquisition of the identified competencies (see paragraph (a)(2)(i) of this priority) needed by special education, early intervention, or related services personnel, and how these competencies relate to the proposed project.
(b) Demonstrate, in the narrative section of the application under “Quality of Project Services,” how—
(1) The project will recruit and retain high-quality scholars and ensure equal access and treatment for eligible project participants who are members of groups who have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. To meet this requirement, the applicant must—
(i) Describe the selection criteria the applicant will use to identify high-quality applicants for admission in the program;
(ii) Describe the recruitment strategies the applicant will use to attract high-quality applicants and any specific recruitment strategies targeting high-quality applicants from traditionally underrepresented groups, including individuals with disabilities;
(iii) Describe strategies the applicant would use to recruit and retain working professionals, people with child care considerations, career switchers, or people living in geographically isolated areas to more easily participate in the proposed personnel preparation program, using the Job-Driven Checklist
(iv) Describe the approach, including mentoring, monitoring, and accommodations, the applicant will use to support scholars to complete the personnel preparation program.
(2) The project reflects current research and evidence-based practices, and is designed to prepare scholars in the identified competencies. To address this requirement, the applicant must—
(i) Describe how the project will incorporate current research and evidence-based practices that improve outcomes (
(ii) Describe how the project will use current research and evidence-based professional development practices for adult learners to instruct scholars.
(3) The project is of sufficient quality, intensity, and duration to prepare scholars in the identified competencies. To address this requirement, the applicant must describe how—
(i) The components of the proposed project (
(ii) The components of the proposed project (
(iii) The proposed project will provide ongoing induction opportunities and support to program graduates after completion of the personnel preparation program.
(4) The project will collaborate with appropriate partners, including—
(i) High-need LEAs;
(a)(1) Any Title I school in improvement, corrective action, or restructuring that—
(i) Is among the lowest-achieving five percent of Title I schools in improvement, corrective action, or restructuring or the lowest-achieving five Title I schools in improvement, corrective action, or restructuring in the State, whichever number of schools is greater; or
(ii) Is a high school that has had a graduation rate as defined in 34 CFR 200.19(b) that is less than 60 percent over a number of years; and
(2) Any secondary school that is eligible for, but does not receive, Title I funds that—
(i) Is among the lowest-achieving five percent of secondary schools or the lowest-achieving five secondary schools in the State that are eligible for, but do not receive, Title I funds, whichever number of schools is greater; or
(ii) Is a high school that has had a graduation rate as defined in 34 CFR 200.19(b) that is less than 60 percent over a number of years.
(b) To identify the lowest-achieving schools, a State must take into account both—
(i) The academic achievement of the “all students” group in a school in terms of proficiency on the State's assessments under section 1111(b)(3) of the ESEA in reading/language arts and mathematics combined; and
(ii) The school's lack of progress on those assessments over a number of years in the “all students” group.
For the purposes of this priority, the Department considers schools that are identified as Tier I or Tier II schools under the School Improvement Grants Program (see 75 FR 66363 [October 28, 2010]) as part of a State's approved application to be persistently lowest-achieving schools. A list of these Tier I and Tier II schools can be found on the Department's Web site at
(ii) Other programs on campus or at partnering universities for the purpose of sharing resources, supporting program development and delivery, and addressing personnel shortages.
(5) The project will use technology, as appropriate, to promote scholar learning, enhance the efficiency of the project, collaborate with partners, and facilitate ongoing mentoring and support for scholars.
(6) The project will align with and use resources, as appropriate, available through technical assistance centers, which may include centers funded by the Department.
(c) Demonstrate, in the narrative section of the application under “Quality of Project Evaluation,” how—
(1) The applicant will use comprehensive and appropriate methodologies to evaluate the effectiveness of the project, including the effectiveness of project processes and outcomes.
(2) The applicant will collect, analyze, and use data related to specific and measurable goals, objectives, and outcomes of the project. To address this requirement, the applicant must describe—
(i) How scholar competencies and other project processes and outcomes will be measured for formative evaluation purposes, including proposed instruments, data collection methods, and possible analyses; and
(ii) How data on the quality of services provided by proposed project graduates, including data on the learning and developmental outcomes (
(3) The methods of evaluation will produce quantitative and qualitative data for objective performance measures that are related to the outcomes of the proposed project.
(4) The methods of evaluation will provide performance feedback and allow for periodic assessment of progress towards meeting the project outcomes. To address this requirement, the applicant must describe how—
(i) Results of the evaluation will be used as a basis for improving the proposed project to prepare special education, early intervention, or related services personnel to provide high-quality interventions and services to improve outcomes of children with disabilities; and
(ii) The grantee will report the evaluation results to the Office of Special Education Programs (OSEP) in its annual and final performance reports.
(d) Demonstrate, in the narrative under “Project Assurances,” or appendices, as applicable, that the following program requirements are met. The applicant must—
(1) Include, in the application as Appendix B, syllabi for all required coursework of the proposed project, including syllabi for new or proposed courses.
(2) Ensure that the proposed number of scholars to be recruited into the program can graduate from the program by the end of the grant's project period. The described scholar recruitment strategies, including recruitment of individuals with disabilities, the program components and their sequence, and proposed budget must be consistent with this project requirement.
(3) Ensure scholars will not be selected based on race or national origin/ethnicity. Per the Supreme Court's decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the Department does not allow the selection of individuals on the basis of race or national origin/ethnicity. For this reason, grantees must ensure that any discussion of the recruitment of scholars based on race or national origin/ethnicity distinguishes between increasing the pool of applicants and actually selecting scholars.
(4) Ensure that the project will meet the requirements in 34 CFR 304.23, particularly those related to informing all scholarship recipients of their service obligation commitment. Failure by a grantee to properly meet these requirements would be a violation of the grant award that could result in sanctions, including the grantee being liable for returning any misused funds to the Department. Specifically, the grantee must prepare, and ensure that each scholarship recipient signs, the following two documents:
(i) A Pre-Scholarship Agreement prior to the scholar receiving a scholarship for an eligible program (Office of Management and Budget (OMB) Control Number 1820-0686); and
(ii) An Exit Certification immediately upon the scholar leaving, completing, or otherwise exiting that program (OMB Control Number 1820-0686).
(5) Ensure that prior approval from the OSEP project officer will be obtained before admitting additional scholars beyond the number of scholars proposed in the application and before transferring a scholar to another OSEP-funded grant.
(6) Ensure that the project will meet the statutory requirements in section 662(e) through 662(h) of IDEA.
(7) Ensure that at least 65 percent of the total requested budget over the five years will be used for scholar support.
(8) Ensure that the institution of higher education (IHE) will not require scholars enrolled in the program to work (
(9) Ensure that the budget includes attendance of the project director at a three-day project directors' meeting in Washington, DC, during each year of the project.
(10) Ensure that if the project maintains a Web site, relevant information and documents are in a format that meets government or industry-recognized standards for accessibility.
(11) Ensure that annual data will be submitted on each scholar who receives grant support (OMB Control Number 1820-0686). The primary purposes of the data collection are to track the service obligation fulfillment of scholars who receive funds from OSEP grants and to collect data for program performance measure reporting under the Government Performance and Results Act of 1993 (GPRA). Applicants are encouraged to visit the Personnel Development Program Data Collection System (DCS) Web site at
Within this absolute priority, the Secretary intends to support projects under the following four focus areas: (A) Preparing Personnel to Serve Infants, Toddlers, and Preschool-Age Children with Disabilities; (B) Preparing Personnel to Serve School-Age Children with Low Incidence Disabilities; (C) Preparing Personnel to Provide Related Services to Children, Including Infants and Toddlers, with Disabilities; and (D) Preparing Personnel in Minority Institutions of Higher Education to Serve Children, Including Infants and Toddlers, with Disabilities. Interdisciplinary projects are encouraged to apply under Focus Area A, B, C, or D. Interdisciplinary projects are projects that deliver core content through coursework and clinical experiences shared across disciplines.
(1) A project that is proposing to develop and deliver a newly established baccalaureate, master's, and specialist level personnel preparation program or add a new area of emphasis may request up to a year of funding for program development (
(2) A project that is proposing to expand or enhance an existing program may request funding for capacity building (
20 U.S.C. 1462 and 1481.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2017 from the list of unfunded applications from this competition.
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(b) The grantee may award subgrants to entities it has identified in an approved application.
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(b) Each applicant for, and recipient of, funding under this program must involve individuals with disabilities, or parents of individuals with disabilities ages birth through 26, in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of IDEA).
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You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this competition as follows: CFDA number 84.325K.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. You must limit Part III to no more than 50 pages, using the following standards:
• A “page” is 8.5″ × 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, reference citations, and captions, as well as all text in charts, tables, figures, graphs, and screen shots.
• Use a font that is 12 point or larger.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit and double-spacing requirements do not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the abstract (follow the guidance provided in the application package for completing the abstract), the table of contents, the list of priority requirements, the resumes, the reference list, the letters of support, or the appendices. However, the page limit and double-spacing requirements do apply to all of Part III, the application narrative, including all text in charts, tables, figures, graphs, and screen shots.
We will reject your application if you exceed the page limit in the application narrative section or if you apply standards other than those specified in the application package.
3.
Applications Available: October 15, 2015.
Deadline for Transmittal of Applications: December 14, 2015.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review: February 12, 2016.
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a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet at the following Web site:
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the Personnel Preparation in Special Education, Early Intervention, and Related Services competition, CFDA number 84.325K, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the Personnel Preparation in Special Education, Early Intervention, and Related Services competition at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov. In addition, for specific guidance and procedures for submitting an application through Grants.gov, please refer to the Grants.gov Web site at:
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a read-only, non-modifiable Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF (
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. This notification indicates receipt by Grants.gov only, not receipt by the Department. Grants.gov will also notify you automatically by email if your application met all the Grants.gov validation requirements or if there were any errors (such as submission of your application by someone other than a registered Authorized Organization Representative, or inclusion of an attachment with a file name that contains special characters). You will be given an opportunity to correct any errors and resubmit, but you must still meet the deadline for submission of applications.
Once your application is successfully validated by Grants.gov, the Department will retrieve your application from
These emails do not mean that your application is without any disqualifying errors. While your application may have been successfully validated by Grants.gov, it must also meet the Department's application requirements as specified in this notice and in the application instructions. Disqualifying errors could include, for instance, failure to upload attachments in a read-only, non-modifiable PDF; failure to submit a required part of the application; or failure to meet applicant eligibility requirements. It is your responsibility to ensure that your submitted application has met all of the Department's requirements.
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.325K), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
We will not consider applications postmarked after the application deadline date.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.325K), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
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In addition, in making a competitive grant award, the Secretary requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
4.
In addition, the Department will gather information on the following outcome measures: (1) The number and percentage of degree/certification recipients who are employed in high-need schools; (2) the number and percentage of degree/certification recipients who are employed in a school for at least two years; and (3) the number and percentage of degree/certification recipients who are rated as effective by their employers.
Grantees may be asked to participate in assessing and providing information on these aspects of program quality.
5.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable
See chart in the
If you use a TDD or a TTY, call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will conduct public scoping meetings as part of their preparation of an environmental impact statement (EIS) for the Alaska LNG Project involving construction and operation of facilities by Alaska Gasline Development Corporation; BP Alaska LNG, LLC; Conoco Phillips Alaska LNG Company; ExxonMobil Alaska LNG, LLC; and TransCanada Alaska Midstream, LP (Applicants) in Alaska.
More information about the Commission's EIS and the Alaska LNG Project is available in
Additional information about the project is available from FERC's Office of External Affairs at (866) 208-FERC (3372) or on the FERC Web site (
The meetings will be recorded by a court reporter to ensure comments are accurately depicted on the public record. The Commission invites you to attend one of the following public scoping meetings in the project area.
AK LNG representatives will be present one hour before the scoping meeting at all locations except Barrow, Alaska with maps depicting the project and to answer questions. In Barrow, AK LNG representatives will be present one hour after the scoping meeting. The meetings will end once all speakers have provided their comments or at 9 p.m., whichever comes first.
Additional meetings at other locations are being scheduled. A supplemental notice will be issued, announcing the dates and times for these additional meetings.
By order dated September 15, 2015,
Take notice that such conference will be held on November 12, 2015, at the Commission's headquarters at 888 First Street NE., Washington, DC 20426 between 10:00 a.m. and 4:00 p.m. (Eastern Time) in Hearing Room 7. Additional information regarding the conference program will be provided in a subsequent supplemental notice of technical conference.
The technical conference will be led by Commission staff. The conference is open to the public. Pre-registration through the Commission's Web site (
The technical conference will not be transcribed. However, there will be a free audio cast of the conference. Anyone wishing to listen to the meeting should send an email to Sarah McKinley at
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to
For more information about this technical conference, please contact Katherine Scott, 202-502-6495,
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the New York Bay Expansion Project involving construction and operation of facilities by Transcontinental Gas Pipe Line Company, LLC (Transco) in Chester, Pennsylvania; Essex and Middlesex, New Jersey; and Richmond, New York. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before November 8, 2015.
If you sent comments on this project to the Commission before the opening of this docket on July 8, 2015, you will need to file those comments in Docket No. CP15-527 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
Transco provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP15-527-000) with your submission:
Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Transco proposes the New York Bay Expansion Project to modify existing facilities and replace existing pipeline to provide an additional 115,000 dekatherms per day of firm transportation service to National Grid New York to meet 2017-2018 winter heating season needs. The project would involve the following activities at existing aboveground facilities in the specified towns and municipalities:
• Uprate Compressor Station 200 from 30,860 horsepower (hp) to 33,000 hp (East Whiteland Township, Chester, Pennsylvania);
• uprate a unit of Compressor Station 303 from 25,000 hp to 27,500 hp (Roseland Borough, Essex, New Jersey);
• add 11,000 hp of electric-driven compression to Compressor Station 207 (Old Bridge Township, Middlesex, New Jersey); and
• install various appurtenances and modifications at three meter and regulation stations in East Brandywine Township (Chester, Pennsylvania), Sayreville Borough (Middlesex, New Jersey), and Staten Island Borough (Richmond, New York).
In addition, Transco proposes to replace three segments of its 42-inch-diameter Lower New York Bay Lateral pipeline, totaling 0.25 mile, and uprate the lateral pipeline's operating pressure from 960 to 1000 pounds per square inch in Middlesex County, NJ.
The general location of the project facilities is shown in appendix 1.
Construction of the project would disturb about 56.70 acres of land for the aboveground facilities and 14.05 acres of land for the pipe replacement; these acres would be restored by Transco and revert to former uses. The permanent footprint for Compressor Stations 200 and 303 would remain unchanged. The permanent footprint of Compressor Station 207 would expand by 0.59 acre, and the three existing meter and regulation stations would expand by combined total of 0.8 acre. No new acreage would be required for the replacement pipe as Transco would replace the pipeline in the same permanent right-of-way.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• vegetation and wildlife;
• air quality and noise;
• endangered and threatened species;
• public safety; and
• cumulative impacts
We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Offices (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes: Federal, state, and local government representatives and agencies; elected officials; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the “Document-less Intervention Guide” under the “e-filing” link on the Commission's Web site. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission (Commission or FERC) regulations contained in the Code of Federal Regulations (CFR) (18 CFR part 380 [FERC Order No. 486, 52 FR 47897]), the Office of Energy Projects has reviewed the application for license for the Bear River Narrows Hydroelectric Project (FERC No. 12486) and prepared a draft environmental impact statement (EIS) for the project.
The proposed project would be located on the Bear River, near the city of Preston, in Franklin County, Idaho. The project would occupy 243 acres of federal land managed by the Bureau of Land Management.
The draft EIS contains staff's analysis of the applicant's proposal and the alternatives for licensing the Bear River Narrows Project. The draft EIS documents the views of governmental agencies, non-governmental organizations, affected Indian tribes, the public, the license applicant, and Commission staff.
A copy of the draft EIS is available for review at the Commission or may be viewed on the Commission's Web site at
You may also register online at
All comments must be filed by Monday, November 30, 2015, and should reference Project No. 12486-008. The Commission strongly encourages electronic filing. Please file comments using the Commission's efiling system at
Anyone may intervene in this proceeding based on this draft EIS (18 CFR 380.10). You must file your request to intervene as specified above. You do not need intervenor status to have your comments considered.
In addition to or in lieu of sending written comments, you are invited to attend public meetings that will be held to receive comments on the draft EIS. The agency scoping meeting will focus on resource agency and non-governmental organization input, while the public scoping meeting is primarily for public input. All interested
At these meetings, resource agency personnel and other interested persons will have the opportunity to provide oral and written comments and recommendations regarding the draft EIS. The meetings will be recorded by a court reporter, and all statements (verbal and written) will become part of the Commission's public record for the project. These meetings are posted on the Commission's calendar located at
For further information, please contact Shana Murray at (202) 502-8333 or at
Take notice that on September 24, 2015, PennEast Pipeline Company, LLC (PennEast), One Meridian Boulevard, Suite 2C01, Wyomissing, Pennsylvania 19610, filed with the Federal Energy Regulatory Commission (Commission) in Docket No. CP15-558-000 an application pursuant section 7(c) of the Natural Gas Act (NGA), as amended, and Parts 157 and 284 of the Commission's regulations, requesting authorization to construct and operate a new natural gas pipeline system, including pipeline facilities, a compressor station, metering and regulating stations and appurtenant facilities in Pennsylvania and New Jersey, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at
Any questions concerning this application may be directed to Anthony C. Cox, Project Manager, PennEast Pipeline Company, LLC, One Meridian Boulevard, Suite 2C01, Wyomissing, Pennsylvania 19610. Phone (610) 406-4322, email
PennEast seeks authorization to construct, own and operate a new pipeline system comprising 114 miles of 36-inch diameter mainline transmission pipeline from Luzerne County, Pennsylvania to Mercer County, New Jersey; a 2.1 mile, 24-inch lateral in Northhampton County, Pennsylvania; a 0.6 mile, 12-inch diameter lateral in Huntedon County, New Jersey; a 1.4 mile, 36-inch diameter lateral in Hunterdon County, New Jersey; a 47,700 horsepower compressor station in Carbon County, Pennsylvania; and various aboveground facilities, including interconnects, launchers, receivers and mainline block valves.
PennEast further requests blanket certificates pursuant to Part 157, Subpart F, and Part 284, Subpart G of the Commission's regulations; approval of PennEast's
On October 10, 2014, the Commission staff granted PennEast's request to use the pre-filing process and assigned Docket No. PF15-1-000 for this proceeding during the pre-filing review of the project. Now, as of the filing of the application on September 24, 2015, the pre-filing process for this project has ended. From this time forward, PennEast's proceeding will be conducted in Docket No. CP15-558-000, as noted in the caption of this Notice.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit seven copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that an informal settlement conference will be convened in this proceeding commencing at 10:00 a.m. on October 20, 2015 at the offices of the Federal Energy Regulatory Commission (Commission), 888 First Street NE., Washington, DC 20426, for the purpose of exploring settlement of the above-referenced docket.
Any party, as defined by 18 CFR 385.102(c), or any participant as defined by 18 CFR 385.102(b), is invited to attend. Persons wishing to become a party must move to intervene and receive intervenor status pursuant to the Commission's regulations under 18 CFR 385.214.
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to
For additional information, please contact John Perkins (202-502-6591) or Frank Kelly (202-502-8185).
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's interim registration review decisions for the pesticides listed in Unit II of this notice. Registration review is EPA's periodic review of pesticide registrations to ensure that each pesticide continues to satisfy the statutory standard for registration, that is, that the pesticide can perform its intended function without causing unreasonable adverse effects on human health or the environment. Through this program, EPA is ensuring that each pesticide's registration is based on current scientific and other knowledge, including its effects on human health and the environment. This document also announces the Agency's closure of the registration review docket for flufenpyr-ethyl. All pesticide products containing flufenpyr-ethyl have been cancelled.
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, farm worker, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the pesticide specific contact person listed under
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0393, is available at
Pursuant to 40 CFR 155.58(c), this notice announces the availability of EPA's interim registration review decision or case closure document for the pesticides in the following table:
The registration review final decisions for these cases are dependent on the assessments of threatened and endangered (listed) species under the Endangered Species Act (ESA), determinations on the potential for endocrine disruption, and/or pollinator risk assessments.
The Agency relied on a previous human health risk assessment in making its registration review decisions and determined that no human health risks of concern exist for these compounds. The Agency conducted a new ecological risk assessment for the gas cartridges for registration review. The risk assessment did find the potential for adverse effects to a number of listed species from gas cartridge use. EPA developed mitigation to address the risk to a number of listed species. In most cases, the mitigation involves the use of Endangered Species Protection Bulletins. Because the gas cartridges may contain up to three different active ingredients compounds, these Bulletins are available in the Inorganic Nitrate—Nitrite, Carbon and Carbon Dioxide, and Sulfur Registration Review dockets (EPA-HQ-OPP-2007-1118, EPA-HQ-OPP-2007-0705, and EPA-HQ-OPP-2008-0176, respectively). Although implementation of these Bulletins will address risk to some listed species from gas cartridge use, risk to a number of other listed species remains. Additionally, potassium and sodium nitrate, carbon and carbon dioxide, and sulfur have not been evaluated under the Endocrine Disruptor Screening Program (EDSP). Therefore, the Agency's final registration review decisions are dependent upon the result of ESA Section 7 consultation with the U.S. Fish and Wildlife Service (USFWS) and the evaluation of potential endocrine disruptor risk.
Pursuant to 40 CFR 155.57, a registration review decision is the Agency's determination whether a pesticide meets, or does not meet, the standard for registration in FIFRA. EPA has considered the pesticides listed in light of the FIFRA standard for registration. The interim decision documents in the dockets describe the Agency's rationale for issuing registration review interim decisions for these pesticides.
In addition to the interim registration review decision documents, the registration review docket for these pesticides also includes other relevant documents related to the registration review of these cases. The proposed interim registration review decisions were previously posted to each docket and the public was invited to submit any comments or new information.
EPA has addressed the substantive comments or information received during the 60-day comment period in the interim decision document for each pesticide listed in this document.
Pursuant to 40 CFR 155.58(c), the registration review case docket for each pesticide discussed in this notice will remain open until all actions required in the interim decisions have been completed.
Background on the registration review program is provided at:
7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “Risk Management Program Requirements and Petitions to Modify the List of Regulated Substances under section 112(r) of the Clean Air Act (CAA)” (EPA ICR No. 1656.15, OMB Control No. 2050-0144) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before November 16, 2015.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2003-0052, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
James Belke, Office of Emergency Management, Mail Code 5104A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202-564-8023; fax number: 202-564-2625; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Other than the costs for gathering information and filling out the on-line RMP form, the regulations require sources to maintain on-site documentation, perform a compliance audit every three years, provide refresher training to employees, perform a hazard analysis at least every five years, etc. Some of these activities are expected to occur annually or are on-going. Some are required every three years or every five years, unless there are changes at the facility. Therefore, the burden and costs incurred by sources vary from ICR to ICR. The five-year resubmission deadline set by the regulations or assigned by EPA based on the latest RMP resubmission also will cause the burden to vary from ICR to ICR.
Federal Deposit Insurance Corporation (FDIC).
Notice of open meeting.
In accordance with the Federal Advisory Committee Act, notice is hereby given of a meeting of the FDIC Advisory Committee on Economic Inclusion, which will be held in Washington, DC. The Advisory Committee will provide advice and recommendations on initiatives to expand access to banking services by underserved populations.
Friday, October 30, 2015, from 9 a.m. to 3:30 p.m.
The meeting will be held in the FDIC Board Room on the sixth floor of the FDIC Building located at 550 17th Street NW., Washington, DC.
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Committee Management Officer of the FDIC, at (202) 898-7043.
Federal Deposit Insurance Corporation.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of existing information collections, as required by the Paperwork Reduction Act of 1995. On July 10, 2015, (80 FR 39777), the FDIC requested comment for 60 days on a proposal to renew the information collections listed below. No comments were received. The FDIC hereby gives notice of its plan to submit to OMB a request to approve the renewal of these information collections, and again invites comment on these renewals.
Comments must be submitted on or before November 16, 2015.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Gary A. Kuiper at
Proposal to renew the following currently-approved collections of information:
1.
2.
3.
4.
5.
Comments are invited on: (a) Whether the collections of information are necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the collections of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Federal Maritime Commission.
The Order to Show Cause was served October 8, 2015.
Notice of Order to show cause.
46 U.S.C. 41312 & 40903.
On October 8, the Commission issued an Order to Washington Movers, Inc. to show cause why its ocean transportation intermediary license, FMC No. 017843, should not be revoked as a result of the felony convictions of its owner, President and Qualifying Individual, the failure to report material changes in fact, and the failure to obtain prior approval for a change in corporate name, rendering such licensee no longer qualified to provide ocean transportation intermediary services.
The Order may be viewed in its entirety at
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may submit comments on the agreement to the Secretary, Federal Maritime Commission,
By Order of the Federal Maritime Commission.
This is to provide notice of filing and to invite comments on or before October 23, 2015, regarding the Petition described below.
Crowley Caribbean Services, LLC and Crowley Latin America Services, LLC (Petitioners), have petitioned the Commission pursuant to 46 CFR 502.76 of the Commission's Rules of Practice and Procedure, for an exemption from the Commission's rules requiring individual service contract amendments, 46 CFR 530.10. Specifically, Petitioners explain that on or about October 31, 2015, Crowley will acquire the assets of ocean common carrier Seafreight Line, Ltd. (“Seafreight”), including Seafreight's service contracts and, as such, request that the Commission permit the submission of a “universal notice to the Commission and to all affected service contract parties in lieu of requiring individual filings reflecting amendment by mutual agreement.” In addition, because existing tariffs must be renumbered and republished due to this acquisition, instead of amending each individual contract, Petitioners also seek a waiver to permit insertion of notices in existing Seafreight tariffs and in new “Crowley d/b/a Seafreight” tariffs. Petitioners separately commit to provide each service contract shipper counter-party with electronic notice of this corporate change.
The Petition in its entirety is posted on the Commission's Web site at
In order for the Commission to make a thorough evaluation of the Petition, interested persons are requested to submit views or arguments in reply to the Petition no later than October 23, 2015. Commenters must send an original and 5 copies to the Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001, and be served on Petitioners' counsel, Wayne R. Rohde, Cozen O'Connor, 1200 19th Street NW., Washington, DC 20036. A text-searchable PDF copy of the reply must also be sent as an email attachment to
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 November 9, 2015.
A. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
1. Pacific Premier Bancorp, Inc., Irvine, California, to merge with Security California Bancorp, and thereby indirectly acquire Security Bank of California, both of Riverside, California.
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
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
B. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
1.
Gulf Coast Ecosystem Restoration Council.
Notice of Membership on the Gulf Coast Ecosystem Restoration Council's Performance Review Board Membership.
In accordance with 5 U.S.C. 4314(c)(4), the Gulf Coast Ecosystem Restoration Council (GCERC), announce the appointment of those individuals who have been selected to serve as members of GCERC's Performance Review Board. The Performance Review Board is responsible for reviewing performance appraisals and rating of Senior Executive Service (SES) members and making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.
The period of appointment for those individuals selected for GCERC's Performance Review Board begins on October 15, 2015.
Jennifer Munz, Department of Commerce, Office of Human Resources Management, Office of Executive Resources, 14th and Constitution Avenue NW., Room 51010, Washington, DC 20230, at (202) 482-4051.
In accordance with 5 U.S.C. § 4314(c)(4), the Gulf Coast Ecosystem Restoration Council (GCERC), announce the appointment of those individuals who have been selected to serve as members of GCERC's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.
The period of appointment for those individuals selected for GCERC's Performance Review Board begins on October 15, 2015. The name, position title, and type of appointment of each member of GCERC's Performance Review Board are set forth below by organization:
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Philip Bautista at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Office of Disease Prevention and Health Promotion, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
The U.S. Department of Health and Human Services solicits written comments regarding new objectives proposed to be added to Healthy People 2020 since the fall 2014 public comment period, as well as written comments proposing new objectives to be included within existing Healthy People 2020 topic areas. Public participation helps shape Healthy People 2020, its framework, objectives, organization, and targets. Healthy People 2020 will provide opportunities for public input periodically throughout the decade to ensure that Healthy People 2020 reflects current public health priorities and public input. The updated set of Healthy People 2020 objectives will be incorporated on
Written comments will be accepted until 5:00 p.m. ET on November 16, 2015.
Written comments will be accepted via an online public comment database at
Caitie Blood, MPH, Office of Disease Prevention and Health Promotion, U.S. Department of Health and Human Services, 1101 Wootton Parkway, Room LL-100, Rockville, MD 20852,
For three decades, Healthy People has provided a comprehensive set of national 10-year health promotion and disease prevention objectives aimed at improving the health of all Americans. Healthy People 2020 objectives provide a framework by presenting a comprehensive picture of the nation's health at the beginning of the decade, establishing national goals and targets to be achieved by the year 2020, and monitoring progress over time. The U.S. Department of Health and Human Services is soliciting the submission of written comments regarding new objectives proposed to be added to Healthy People 2020 since the fall 2014 public comment period.
Healthy People 2020 is the product of an extensive collaborative process that relies on input from a diverse array of individuals and organizations, both within and outside the federal government, with a common interest in improving the nation's health. Public comments were a cornerstone of Healthy People 2020's development. During the first phase of planning for Healthy People 2020, HHS asked for the public's comments on the vision, mission, and implementation of Healthy People 2020. Those comments helped set the framework for Healthy People 2020. The public was also invited to submit comments on proposed Healthy People 2020 objectives, which helped shape the final set of Healthy People 2020 objectives.
The public is now invited to comment on new objectives proposed to be added to Healthy People 2020. These new objectives were developed by topic area workgroups led by various agencies within the federal government. They have been reviewed by the Federal Interagency Workgroup on Healthy People 2020 and are presented now for the public's review and comment. The public is also invited to suggest additional objectives for consideration that address critical public health issues within existing Healthy People 2020 topic areas. Any proposed new objective must meet all of the objective selection criteria (see below).
Written comments will be accepted at
The following nine criteria should be taken into consideration when commenting on the proposed new objectives or suggesting additional objectives.
1. The result to be achieved should be important and understandable to a broad audience and support the Healthy People 2020 goals.
2. Objectives should be prevention oriented and should address health improvements that can be achieved through population-based and individual actions, and systems-based, environmental, health-service, or policy interventions.
3. Objectives should drive actions that will work toward the achievement of the proposed targets (defined as quantitative values to be achieved by the year 2020).
4. Objectives should be useful and reflect issues of national importance. Federal agencies, states, localities, non-governmental organizations, and the public and private sectors should be able to use objectives to target efforts in schools, communities, work sites, health practices, and other environments.
5. Objectives should be measurable and should address a range of issues, such as: Behavior and health outcomes; availability of, access to, and content of behavioral and health service interventions; socio-environmental conditions; and community capacity—directed toward improving health outcomes and quality of life across the life span. (Community capacity is defined as the ability of a community to plan, implement, and evaluate health strategies.)
6. Continuity and comparability of measured phenomena from year to year are important, thus, when appropriate, retention of objectives from previous Healthy People iterations is encouraged. However, in instances where objectives and/or measures have proven ill-suited to the purpose or are inadequate, new improved objectives should be developed. Whether or not an objective has met its target in a previous Healthy People iteration should not be the sole basis for retaining or archiving an objective.
7. The objectives should be supported by the best available scientific evidence. The objective selection and review processes should be flexible enough to allow revisions to objectives in order to reflect major updates or new knowledge.
8. Objectives should address population disparities. These include populations categorized by race/ethnicity, socioeconomic status, gender, disability status, sexual orientation, and geographic location. For particular health issues, additional special populations should be addressed, based on an examination of the available evidence on vulnerability, health status, and disparate care.
9. Healthy People 2020, like past versions, is heavily data driven. Valid, reliable, nationally representative data and data systems should be used for Healthy People 2020 objectives. Each objective must have (1) a data source, or potential data source, identified, (2) baseline data and (3) assurance of at least one additional data point throughout the decade.
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 materials, 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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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.
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0040, Application for Merchant Mariner Credential (MMC), Application for Merchant Mariner Medical Certificate, Application for Merchant Mariner Medical Certificate for Entry Level Ratings, Small Vessel Sea Service Form, DOT/USCG Periodic Drug Testing Form, Disclosure Statement for Narcotics, DWI/DUI, and/or Other Convictions, Merchant Mariner Medical Certificate, Recognition of Foreign Certificate. Our ICR describes the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before December 14, 2015.
You may submit comments identified by Coast Guard docket number [USCG-2015-0694] to the Coast Guard using the Federal eRulemaking Portal at
A copy of the ICR is available through the docket on the Internet at
Contact Mr. Anthony Smith, Office of Information Management, telephone 202-475-3532, or fax 202-372-8405, for questions on these documents.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise this ICR or decide not to seek an extension of approval for the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2015-0694], and must be received by December 14, 2015.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
The Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended.
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0108, Standard Numbering System for Undocumented Vessels. Our ICR describe the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before December 14, 2015.
You may submit comments identified by Coast Guard docket number [USCG-2015-0637] to the Coast Guard using the Federal eRulemaking Portal at
A copy of the ICR is available through the docket on the Internet at
Mr. Anthony Smith, Office of Information Management, telephone 202-475-3532, or fax 202-372-8405, for questions on these documents.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise this ICR or decide not to seek an extension of approval for the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2015-0637], and must be received by December 14, 2015.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
In States that do not have an approved system, the Federal Government (U.S. Coast Guard) must administer the vessel numbering system. Currently, all 56 States and Territories have approved numbering systems. The approximate number of undocumented vessels registered by the States in 2014 was nearly 12 million.
The SNS collects information on undocumented vessels and vessel owners. States submit reports annually to the Coast Guard on the number, size, construction, etc., of vessels they have numbered. That information is used by the Coast Guard in (1) publication of an annual “Boating Statistics” report required by 46 U.S.C. 6102(b), and (2) for allocation of Federal funds to assist States in carrying out the Recreational Boating Safety (RBS) Program established by 46 U.S.C. chapter 131.
On a daily basis or as warranted, Federal, State, and local law enforcement personnel use SNS information from the States' numbering systems for enforcement of boating laws or theft and fraud investigations. In addition, when encountering a vessel suspected of illegal activity, information from the SNS increases officer safety by assisting boarding officers in determining how best to approach a vessel. Since the September 11, 2001 terrorist attacks on the United States, the need has increased for identification of undocumented vessels and their owners for port security and other missions to safeguard the homeland, although the statutory requirement for numbering of vessels dates back to 1918.
The Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended.
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces U.S. Customs and Border Protection's (CBP's) plan to modify the National Customs Automation Program (NCAP) test concerning document imaging, known as the Document Image System (DIS) test. The DIS test allows Automated Commercial Environment (ACE) participants to submit electronic images of a specific set of CBP and Partner Government Agency (PGA) forms, documents, and supporting information to CBP via a CBP-approved Electronic Data Interchange (EDI).
This notice announces several changes to the DIS test. First, eligibility to participate in the test is being expanded to include anyone transmitting cargo release or entry summary information to ACE. Second, CBP has added forms to the list of forms and documents supported by the DIS test. Third, the list of eligible forms and documents will now be maintained on the CBP Web site. Fourth, all future additions and changes to the list of eligible forms and documents will be announced on the CBP Web site, rather than by
The modifications of the DIS test made by this notice are effective on October 15, 2015. The test will continue until concluded by way of announcement in the
Comments concerning this notice and any aspect of the test may be submitted at any time during the test via email to Monica Crockett at
For policy-related questions, contact Monica Crockett at
The National Customs Automation Program (NCAP) was established in Subtitle B of Title VI—Customs Modernization, in the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057, 2170, December 8, 1993) (Customs Modernization Act) (19 U.S.C. 1411-14). Through NCAP, the initial thrust of customs modernization was on trade compliance and the development of the Automated Commercial Environment (ACE), the planned successor to the Automated Commercial System (ACS). ACE is an automated and electronic system for commercial trade processing which is intended to streamline business processes, facilitate growth in trade, ensure cargo security, and foster participation in global commerce, while ensuring compliance with U.S. laws and regulations and reducing costs for U.S. Customs and Border Protection (CBP) and all of its communities of interest.
The ability to meet these objectives depends on successfully modernizing CBP's business functions and the information technology that supports those functions. CBP's modernization efforts are accomplished through phased releases of ACE component functionality designed to introduce new functionality or to replace a specific legacy ACS function. Each release will begin with a test and will end with mandatory compliance with the new ACE feature and the retirement of the legacy ACS function. Each release builds on previous releases and sets the foundation for subsequent releases.
On April 6, 2012, CBP published a notice in the
On July 23, 2013, CBP published a subsequent notice in the
On June 25, 2014, CBP published a notice in the
For the convenience of the public, a chronological listing of
The procedures, terms, conditions and rules set forth in the previous DIS notices remain in effect unless otherwise explicitly changed by this or subsequent notices published in the
The Customs Modernization Act authorizes the Commissioner of CBP to conduct limited test programs or procedures designed to evaluate planned components of the NCAP. This test is authorized pursuant to section 101.9(b) of the CBP Regulations (19 CFR 101.9(b)) which provides for the testing of NCAP programs or procedures.
This notice announces Phase IV of the DIS test. Under the DIS test, parties who file entry or entry summaries in ACE are allowed to submit specified CBP and PGA forms and documents via a CBP-approved EDI. DIS capabilities will continue to be delivered in multiple phases. As PGA Message Sets are programmed into ACE, CBP envisions that the documentation filed in DIS will be significantly reduced to only those documents that continue to be paper based (
The first phase of the DIS test enabled participating importers and brokers to transmit images of specified CBP and PGA forms and documents with supporting information via a CBP-approved EDI in an Extensible Markup Language (XML) format, in lieu of conventional paper methods.
This notice announces Phase IV of the DIS test. In Phase IV, the eligibility requirements are modified to permit any filer transmitting cargo release or entry summary data, information, forms, or documents to use DIS. Phase IV also expands the list of documents eligible for submission under the DIS test. Because CBP frequently updates the list of forms and documents eligible to be transmitted using DIS, the complete list will be maintained on the CBP Web site, at the following address:
As announced in this notice, Phase IV of the DIS test alters the eligibility requirements for participation in the DIS test. Now, any filer transmitting cargo release or entry summary data, information, forms or documents to ACE pursuant to the Cargo Release (80 FR 16414), or Entry Summary, Accounts and Revenue (76 FR 37136) tests is eligible to use DIS. Such filers must use a software program that has completed ACE certification testing. Additionally, CBP is expanding the list of CBP- and PGA-approved forms and documents that may be submitted as part of the DIS test. All other eligibility criteria as specified in prior DIS test notices remain the same, to the extent they are not inconsistent with this notice.
The following rules apply to all participants involved in the DIS testing process:
• In Phase II of the DIS test, CBP indicated two categories of documents which could be transmitted through DIS: (1) Documents that require a request from CBP or a PGA prior to transmission; and (2) documents that may be transmitted without a prior request. Beginning with Phase III, the rules for submitting images through DIS were updated as follows: (1) If the document transmitted is required to obtain the release of merchandise, including a release certified from ACE entry summary, the document may be transmitted without a prior request from CBP or the PGA; and (2) if the document is transmitted in support of entry summary pursuant to a request from CBP or the PGA, the document may be transmitted. Only eligible documents and forms required for the release of merchandise or requested by CBP should be transmitted using DIS. ACE will acknowledge every successful DIS transmission. Any form or document submitted via DIS is an electronic copy of an original document or form and both the original and the imaged copy are subject to the recordkeeping requirements of 19 CFR part 163 and any applicable PGA recordkeeping requirements.
• Test participants may only transmit forms and documents that CBP has permitted to be transmitted under this test.
• Every form or document transmitted through DIS must be legible and must be a complete, accurate, and unaltered copy of the original document.
The forms and documents listed in the first, second and third phases of the DIS test may continue to be transmitted using DIS. Upon the effective date of this notice, CBP is permitting additional forms and documents to be transmitted using DIS. For a complete list of forms and documents that may be submitted using DIS, please go to the Document Image System tab at:
Any form or document submitted via DIS is an electronic copy of an original document or form and both the original and the imaged copy are subject to the recordkeeping requirements of 19 CFR part 163 and any applicable PGA recordkeeping requirements. Original documents transmitted via this test must be retained under the general CBP recordkeeping requirements in 19 CFR part 163, and any PGA's recordkeeping requirements, and made available upon request by CBP or a PGA.
In Phase II, the DIS test reduced the number of metadata elements required for each document to only those necessary to identify the transmitter, the document preparer, the CBP request (if applicable), the document and description, and the associated transaction. Documents submitted in an XML format must be sent via secure File Transfer Protocol (FTP), Secure Web Services, or existing EDI Message Queue (MQ) interfaces. All responses back to test participants who submit using this format will also be sent in the form of an XML message. For additional information pertaining to technical specifications, please see the DIS Implementation Guidelines which can be accessed on CBP.gov at the following link:
This notice also announces that, in addition to the manner of transmission authorized in previous DIS test notices, test participants may send DIS authorized forms and documents as an attachment to an email. Test participants may, at their option, transmit any authorized forms and documents in XML format, as specified in prior DIS test notices, or as an attachment to an email, pursuant to this notice. Emails should be submitted as follows:
• Submit to
• The subject line should begin with CAT=GEN and be followed by either: The bill of lading number, the SCAC code, and the action requested (add, delete or replace), separated by semi-colons; or the entry number, the filer code, and the action requested (add, delete or replace), separated by semi-colons.
• The body of the email should contain the following information, separated by semi-colons: A point of contact and submitter email address, and the agency or agencies that should receive or review the information submitted.
• The name of the attachment should begin with an alphanumeric Document Code (Documents Codes may be found in the DIS Implementation Guidelines) and may be followed by whatever name the submitter wishes to use.
CBP prefers that attachments to emails use the Portable Document Format (PDF) file format; however, the following file formats are also allowed: Joint Photographic Experts Group (JPEG), Graphics Interchange Format (GIF), MS Word Documents and MS Excel Spreadsheets. The Tagged Image Format (TIF) file format is
A chronological listing of
• ACE Portal Accounts and Subsequent Revision Notices: 67 FR 21800 (May 1, 2002); 69 FR 5360 and 69 FR 5362 (February 4, 2004); 69 FR 54302 (September 8, 2004); 70 FR 5199 (February 1, 2005).
• ACE System of Records Notice: 71 FR 3109 (January 19, 2006).
• Terms/Conditions for Access to the ACE Portal and Subsequent Revisions: 72 FR 27632 (May 16, 2007); 73 FR 38464 (July 7, 2008).
• ACE Non-Portal Accounts and Related Notice: 70 FR 61466 (October 24, 2005); 71 FR 15756 (March 29, 2006).
• ACE Entry Summary, Accounts and Revenue (ESAR I) Capabilities: 72 FR 59105 (October 18, 2007).
• ACE Entry Summary, Accounts and Revenue (ESAR II) Capabilities: 73 FR 50337 (August 26, 2008); 74 FR 9826 (March 6, 2009).
• ACE Entry Summary, Accounts and Revenue (ESAR III) Capabilities: 74 FR 69129 (December 30, 2009).
• ACE Entry Summary, Accounts and Revenue (ESAR IV) Capabilities: 76 FR 37136 (June 24, 2011).
• Post-Entry Amendment (PEA) Processing Test: 76 FR 37136 (June 24, 2011).
• ACE Announcement of a New Start Date for the National Customs Automation Program Test of Automated Manifest Capabilities for Ocean and Rail Carriers: 76 FR 42721 (July 19, 2011).
• ACE Simplified Entry: 76 FR 69755 (November 9, 2011).
• National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Document Image System (DIS): 77 FR 20835 (April 6, 2012).
• National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Simplified Entry: Modification of Participant Selection Criteria and Application Process: 77 FR 48527 (August 14, 2012).
• Modification of NCAP Test Regarding Reconciliation for Filing Certain Post-Importation Preferential Tariff Treatment Claims under Certain FTAs: 78 FR 27984 (May 13, 2013).
• Modification of Two National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Document Image System (DIS) and Simplified Entry (SE): 78 FR 44142 (July 23, 2013).
• Modification of Two National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Document Image System (DIS) and Simplified Entry (SE); Correction: 78 FR 53466 (August 29, 2013).
• Modification of NCAP Test Concerning Automated Commercial Environment (ACE) Cargo Release (formerly known as Simplified Entry): 78 FR 66039 (November 4, 2013).
• Post-Summary Corrections to Entry Summaries Filed in ACE Pursuant to the ESAR IV Test: Modifications and Clarifications: 78 FR 69434 (November 19, 2013).
• National Customs Automation Program (NCAP) Test Concerning the Submission of Certain Data Required by the Environmental Protection Agency and the Food Safety and Inspection
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Cargo Release for Ocean and Rail Carriers: 79 FR 6210 (February 3, 2014).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Cargo Release to Allow Importers and Brokers to Certify From ACE Entry Summary: 79 FR 24744 (May 1, 2014).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Cargo Release for Truck Carriers: 79 FR 25142 (May 2, 2014).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Document Image System: 79 FR 36083 (June 25, 2014).
• Announcement of eBond Test: 79 FR 70881 (November 28, 2014).
• eBond Test Modifications and Clarifications: Continuous Bond Executed Prior to or Outside the eBond Test May Be Converted to an eBond by the Surety and Principal, Termination of an eBond by Filing Identification Number, and Email Address Correction: 80 FR 899 (January 7, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Document Image System Relating to Animal and Plant Health Inspection Service (APHIS) Document Submissions: 80 FR 5126 (January 30, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning the use of Partner Government Agency Message Set through the Automated Commercial Environment (ACE) for the Submission of Certain Data Required by the Environmental Protection Agency (EPA): 80 FR 6098 (February 4, 2015).
• Announcement of Modification of ACE Cargo Release Test to Permit the Combined Filing of Cargo Release and Importer Security Filing (ISF) Data: 80 FR 7487 (February 10, 2015).
• Modification of NCAP Test Concerning ACE Cargo Release for Type 03 Entries and Advanced Capabilities for Truck Carriers: 80 FR 16414 (March 27, 2015).
• Automated Commercial Environment (ACE) Export Manifest for Air Cargo Test: 80 FR 39790 (July 10, 2015).
• National Customs Automation Program (NCAP) Concerning Remote Location Filing Entry Procedures in the Automated Commercial Environment (ACE) and the Use of the Document Image System for the Submission of Invoices and the Use of eBonds for the Transmission of Single Transaction Bonds: 80 FR 40079 (July 13, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning the Automated Commercial Environment (ACE) Partner Government Agency (PGA) Message Set Regarding Types of Transportation Modes and Certain Data Required by the National Highway Traffic Safety Administration (NHTSA): 80 FR 47938 (August 10, 2015).
• Automated Commercial Environment (ACE) Export Manifest for Vessel Cargo Test: 80 FR 50644 (August 20, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning the Submission of Certain Data Required by the Food and Drug Administration (FDA) Using the Partner Government Agency Message Set through the Automated Commercial Environment (ACE): 80 FR 52051 (August 27, 2015).
U.S. Customs and Border Protection, Department of Homeland Security.
60-Day Notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Application for Exportation of Articles under Special Bond (CBP Form 3495). CBP is proposing that this information collection be extended with no change to the burden hours or Information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before December 14, 2015 to be assured of consideration.
Written comments may be mailed to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Public Law 104-13). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual cost burden to respondents or record keepers from the collection of information (total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for OMB approval. All comments will become a matter of public record. In this document, CBP is soliciting comments concerning the following information collection:
Federal Emergency Management Agency, DHS.
Notice.
FEMA gives notice of the maximum amount for assistance under the Individuals and Households Program for emergencies and major disasters declared on or after October 1, 2015.
Christopher B. Smith, Recovery Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 212-1000.
Section 408 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act), 42 U.S.C. 5174, prescribes that FEMA must annually adjust the maximum amount for assistance provided under the Individuals and Households Program (IHP). FEMA gives notice that the maximum amount of IHP financial assistance provided to an individual or household under section 408 of the Stafford Act with respect to any single emergency or major disaster is $33,000. The increase in award amount as stated above is for any single emergency or major disaster declared on or after October 1, 2015. In addition, in accordance with 44 CFR 61.17(c), this adjustment includes the maximum amount of available coverage under any Group Flood Insurance Policy (GFIP) issued.
FEMA bases the adjustment on an increase in the Consumer Price Index for All Urban Consumers of 0.2 percent for the 12-month period, which ended in August 2015. The Bureau of Labor Statistics of the U.S. Department of Labor released the information on September 16, 2015.
Office of the Chief Information Officer, HUD.
Notice.
In accordance with the Paperwork Reduction Act of 1995, HUD has requested from the Office of Management and Budget (OMB) emergency approval of the information collection described in this notice.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Anna Guido at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in section A.
The baseline survey will provide HUD with baseline measures of in-home high-speed internet access, barriers to access among those without access, and types of devices used to access the internet. Upon establishing baseline measures, HUD's ConnectHome team will use this information to support local efforts in closing the digital divide.
Preparer of this notice may substitute the chart for everything beginning with estimated number of respondents above:
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of the Assistant Secretary for Housing-FHA Commissioner, HUD.
Notice of FHA points of contact for payment.
This Notice proactively provides lienholders of single family properties acquired by FHA in payment of mortgage insurance claims with FHA points of contact to ensure payment of tax liens and other types of liens on these single family properties. FHA uses contractors to manage these properties and make property charge payments. Inadvertently at times, these payments remain unpaid. This Notice provides direction for taxing authorities and similarly situated entities such as homeowners associations owed money for finding the proper point of contact at HUD for payment. As litigation to enforce liens should be a last resort, HUD is providing these specific points of contact that lienholders can use to obtain payment and avoid litigation. Through a related notice published elsewhere in today's
Ivery Himes, Director, Office of Single Family Asset Management, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 9172, Washington, DC 20410-8000, telephone number 202-708-1672. (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.
This Notice provides lienholders on single family properties acquired by FHA in payment of mortgage insurance claims with a Point of Contact in each of the four Homeownership Centers (HOCs). Each one of the four HOCs contains in its organizational structure the FHA operations staff who oversee much of the day-to-day work regarding FHA programs. Each HOC oversees on average 13 states/jurisdictions for FHA activities and has a Real Estate Owned (REO) division that handles the day-to-day oversight of FHA's acquired properties so they are (1) protected from vandalism and deterioration and (2) aggressively marketed for as high a price as possible. This Notice provides that the HUD offices that manage these properties are the proper recipients for tax bills and billings of a similar nature. In most cases, having a known point of contact to send billings should obviate the need to have to bring suit against HUD to levy on a property.
HUD's FHA single family REO properties are managed and marketed out of four HOCs that are located in Philadelphia, Pennsylvania; Atlanta, Georgia; Denver, Colorado; and Santa Ana, California (with counsel for Santa Ana being located in San Francisco).
Tax bills, condominium and homeowner association fee billings, and billings for special assessments on properties owned by FHA that have arisen to lien status are to be sent to the attention of the director of the FHA REO Divisions in the HOC which has jurisdiction over the property that is subject to the taxes and/or fees. These bills should be sent in a timely manner to the appropriate HOC so that the HOC can remit payment promptly to avoid need for litigation to enforce any liens associated with such billings.
Philadelphia HOC—has jurisdiction over properties located in Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, District of Columbia, Virginia, West Virginia, Pennsylvania, Ohio and Michigan.
The Philadelphia REO Director is the point of contact and can be reached by calling 1-800-CALLFHA (1-800-225-5342) or by writing to: Attention: Single Family HOC-REO Division, U.S.
Atlanta HOC—has jurisdiction over properties located in Illinois, Indiana, Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Alabama, Mississippi, Virgin Islands, Puerto Rico, and Florida.
The Atlanta REO Director is the point of contact and can be reached by calling 1-800-CALLFHA (1-800-225-5342) or by writing to: Attention: Single Family HOC-REO Division, U.S. Department of Housing and Urban Development, Five Points Plaza, 40 Marietta Street, Atlanta, GA 30303-2806.
Denver HOC—has jurisdiction over properties located in the Montana, North Dakota, South Dakota, Minnesota, Wisconsin, Wyoming, Iowa, Nebraska, Colorado, Utah, Kansas, Missouri, New Mexico, Oklahoma, Texas, Arkansas and Louisiana.
The Denver REO Director is the point of contact and can be reached by calling 1-800-CALLFHA (1-800-225-5342) or by writing to: Attention: Single Family HOC-REO Division, U.S. Department of Housing and Urban Development, UMB Plaza, 1670 Broadway, Denver, Colorado 80202-4801.
Santa Ana HOC—has jurisdiction over properties located in Alaska, Hawaii, Washington, Oregon, Idaho, Nevada, California, Guam and Arizona.
The Santa Ana REO Director is the point of contact and can be reached by calling 1-800-CALLFHA (1-800-225-5342) or by writing to: Attention: Single Family HOC-REO Division, U.S. Department of Housing and Urban Development, Santa Ana Federal Building, 34 Civic Center Plaza, Room 7015, Santa Ana, CA 92701-4003.
If the addresses of the HOCs and POCs change over time, HUD will inform the public of such changes as promptly as possible by
Office of the Assistant Secretary for Housing-FHA Commissioner, HUD.
Notice of FHA points of contact for payment.
This Notice proactively provides taxing authorities and others that are owed money on HUD-owned single family properties acquired by payment of FHA mortgage insurance claims, points of contact to ensure payment of taxes, homeowners association fees and other property charges that have not risen to lien status under state law on these properties. FHA uses contractors to manage these properties and make property charge payments. Inadvertently at times, these payments may remain unpaid. This Notice provides direction for taxing authorities and associations owed money (where there is no lien) for finding the appropriate proper point of contact for payment. Through a related notice published elsewhere in today's
Ivery Himes, Director, Office of Single Family Asset Management, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 9172, Washington, DC 20410-8000, telephone number 202-708-1672 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.
HUD contracts with private Management and Marketing (M&M) contractors to handle the sale of its inventory of single family acquired properties. HUD published a delegation of authority, authorizing its M&M contractor to act on behalf of HUD in matters regarding the management and sale of residential property acquired by HUD, including the direct payment of association fees, taxes and other property charges that have not risen to lien status due to nonpayment of these charges on its real estate owned (REO) inventory.
In most cases, having a known point of contact for payment of billings should expedite the payment of taxes, association fees and other property charges that have not risen to lien status under state law on HUD-owned single family properties acquired by payment of FHA mortgage insurance claims. HUD requests that all invoices or inquiries pertaining to such unpaid property charges be remitted to the appropriate geographical M&M contractor. In order to assist taxing authorities and homeowner associations, or other municipal entities, identify the appropriate M&M contractor to remit invoices, HUD has provided the following link that will identify by the state or portion of a state in which a specific property is located, the contact information for the geographically responsible M&M contractor as follows:
For further information or for additional assistance in identifying the appropriate M&M contractor to contact, place contact the FHA Resource Center at 1-800-CALLFHA (800-225-5342).
Office of General Counsel, HUD.
Notice of redelegation of authority.
Through this notice, the General Counsel authorizes Office of General Counsel (OGC) Regional Counsel to redelegate to staff within their operating jurisdictions the authority to accept service of summonses, subpoenas and other judicial process for the foreclosure of tax and other liens on HUD-owned single family properties that HUD acquires through the payment of mortgage insurance claims.
John B. Shumway, Assistant General Counsel, Administrative Law Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 9262, telephone number 202-402-5190. (This is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling 1-800-877-8339.
Elsewhere in today's
On July 18, 2011 at 76 FR 42463, HUD published a Consolidated Redelegation of Authority to the Office of General Counsel. Section B.1. of the redelegation delegates to the Associate General Counsel for Litigation in Headquarters and to the ten Regional Counsel the authority to accept service of all summonses, subpoenas, and other judicial, administrative, or legislative processes directed to the Secretary or an employee of HUD Headquarters in an official capacity. This section also authorized the Associate General Counsel for Litigation to redelegate this authority within the Office of Litigation and the Regional Counsel to redelegate this authority to the Associate Regional Counsel for Housing Finance and Programs in their jurisdictions. The July 18, 2011, Redelegation, however, prohibited this authority from being further redelegated.
To effectuate this interpretive rule, however, the General Counsel has determined to revise Section B.1. of the Consolidated Redelegation of Authority to the Office of General Counsel. Specifically, the General Counsel has determined that authority to accept service of summonses, subpoenas, and other judicial, administrative, or legislative processes should be expanded to ensure a timely response to litigation to enforce liens on REO properties to protect and secure HUD's interest in the property. To this end, this Redelegation of Authority authorizes Regional Counsel to redelegate authority to accept service of all summonses, subpoenas, and other judicial, administrative, or legislative processes directed to the Secretary in an official capacity to staff within their operating jurisdictions.
As a result, today's Redelegation of Authority revises Section B.1. of the July 18, 2011, Consolidated Redelegation of Authority to the Office of General Counsel, to read as follows:
1. To the Associate General Counsel for Litigation and to Regional Counsel, the authority to accept, on behalf of the Secretary, service of all summonses, subpoenas, and other judicial, administrative, or legislative processes directed to HUD or the Secretary or to a HUD employee in an official capacity. The Associate General Counsel for Litigation may redelegate this authority within the Office of Litigation and the Regional Counsel may redelegate this authority within their operating jurisdictions.
With the exception of the revisions to Section B.1., this redelegation of authority does not revoke or supersede any previous redelegations of authority included in the July 18, 2011, Consolidated Redelegation of Authority to the Office of General Counsel.
Section 7(d) Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species, marine mammals, or both. With some exceptions, the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities. The public is also invited to comment on the following applications for approval to conduct certain activities with bird species covered under the Wild Bird Conservation Act of 1992, which was enacted to ensure that exotic bird species are not harmed by international trade and to encourage wild bird conservation programs in countries of origin.
We must receive comments or requests for documents on or before November 16, 2015. We must receive requests for marine mammal permit public hearings, in writing, at the address shown in the
•
•
We will post all comments on
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import seven captive-bred tigers (
On July 23, 2015, we published a
The applicant requests renewal of a permit to import live Mexican or lobo wolves (
The applicant requests a permit to export one captive-bred maned wolf (
The applicant requests a permit to export 10 male captive-born ring-tailed lemurs (
The applicant requests a permit to export two male and six female captive-bred chimpanzees (
The applicant requests a permit to import biological samples from wild African wild dog (
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
The applicant wishes to establish a cooperative breeding program for the following: Grey-headed lovebird (
If approved, the program will be overseen by the South Florida Lovebird Breeders Association, affiliated with Agapornis Breeders & Exhibitors, Plano, Texas.
The applicant requests a permit to photograph northern sea otters (
The applicant requests an amendment of the permit to take southern sea otter (
The applicant requests an amendment of the permit to take up to 6 wild, captive-held southern sea otter (
Concurrent with publishing this notice in the
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (U.S. Fish and Wildlife Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. This IC is scheduled to expire on February 29, 2016. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
To ensure that we are able to consider your comments on this IC, we must receive them by December 14, 2015.
Send your comments on the IC to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or
To request additional information about this IC, contact Hope Grey at
The Alaska National Interest Lands Conservation Act (ANILCA) and regulations in the Code of Federal Regulations (CFR) at 50 CFR 100 and 36 CFR 242 require that persons engaged in taking fish, shellfish, and wildlife on public lands in Alaska for subsistence uses must apply for and obtain a permit to do so and comply with reporting provisions of that permit. We use the following forms to collect information from qualified rural residents for subsistence harvest:
(1) FWS Form 3-2326 (Federal Subsistence Hunt Application, Permit, and Report).
(2) FWS Form 3-2327 (Designated Hunter Permit Application, Permit, and Report).
(3) FWS Form 3-2328 (Federal Subsistence Fishing Application, Permit, and Report).
(4) FWS Form 3-2378 (Designated Fishing Permit Application, Permit, and Report).
(5) FWS Form 3-2379 (Federal Subsistence Customary Trade Recordkeeping Form).
We use the information collected to evaluate:
• Eligibility of applicant.
• Subsistence harvest success.
• Effectiveness of season lengths, harvest quotas, and harvest restrictions.
• Hunting patterns and practices.
• Hunter use.
The Federal Subsistence Board uses the harvest data, along with other information, to set future season dates and harvest limits for Federal subsistence resource users. These seasons and harvest limits are set to meet the needs of subsistence users without adversely impacting the health of existing animal populations.
Also included in this ICR are three forms associated with recruitment and selection of members for regional advisory councils.
(1) FWS Form 3-2321 (Federal Subsistence Regional Advisory Council Membership Application/Nomination).
(2) FWS Form 3-2322 (Regional Advisory Council Candidate Interview).
(3) FWS Form 3-2323 (Regional Advisory Council Reference/Key Contact Interview).
The member selection process begins with the information that we collect on the application. Ten interagency review panels interview applicants and nominees, their references, and regional key contacts. These contacts are all based on the information that the applicant provides on the application form. The information that we collect through the application form and subsequent interviews is the basis of the Federal Subsistence Board's recommendations to the Secretaries of the Interior and Agriculture for appointment and reappointment of council members.
In addition to the above forms, regulations at 50 CFR 100 and 36 CFR 242 contain requirements for the collection of information. We collect nonform information on:
(1) Repeal of Federal subsistence rules and regulations (50 CFR 100.14 and 36 CFR 242.14).
(2) Proposed changes to Federal subsistence regulations (50 CFR 100.18 and 36 CFR 242.18).
(3) Special action requests (50 CFR 100.19 and 36 CFR 242.19).
(4) Requests for reconsideration (50 CFR 100.20 and 36 CFR 242.20).
(5) Requests for permits and reports, such as traditional religious/cultural/educational permits, fishwheel permits, fyke net permits, and under-ice permits (50 CFR 100.25-27 and 36 CFR 242.25-27).
We invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this IC. 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.
National Park Service, Interior.
Notice.
The Pima County Office of the Medical Examiner (PCOME) has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the PCOME. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the PCOME at the address in this notice by November 16, 2015.
Dr. Bruce Anderson, Forensic Anthropologist, Pima County Office of the Medical Examiner, 2825 E District Street, Tucson, AZ 85714, telephone (520) 724-8600, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the PCOME, Tucson, AZ. The human remains were removed from an unknown location within Navajo County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the PCOME professional staff, in consultation with representatives of Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Fort McDowell Yavapai Nation, Arizona; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Navajo Nation, Arizona, New Mexico & Utah; Pascua Yaqui Tribe of Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tohono O'odham Nation of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; and the Zuni Tribe of the Zuni Reservation, New Mexico.
In 1989, human remains representing, at minimum, one individual were removed from an unknown location in Navajo County, AZ. The human remains were found by hikers and were recovered by the Navajo Department of Public Safety (which is analogous to the current Navajo Police Department), on an unknown date. On October 17, 1989, the human remains were transferred to the PCOME, which were then analyzed by Dr. Walter H. Birkby, a forensic anthropologist at the PCOME. The human remains were designated Forensic Anthropology case FA#89-038, which also indicates that the medical examiners at the PCOME had no involvement in this particular case. According to Dr. Birkby, the human remains were of an adult female of Native American ancestry and likely historic or prehistoric. The human remains have since resided within the PCOME as an unidentified case, and were rediscovered by Dr. Bruce Anderson, the current forensic anthropologist at the PCOME, in 2012. In 2012, an inventory was made but no analysis was done. No known individuals were identified and no associated funerary objects are present.
Officials of the PCOME have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice may be Native American based on possible prehistoric condition.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• Pursuant to 25 U.S.C. 3001(15), the land from which the Native American human remains were removed is the tribal land of Navajo Nation, Arizona, New Mexico & Utah.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of Hopi Tribe of Arizona; Navajo Nation of Arizona, New Mexico & Utah; and Zuni Tribe of the Zuni Reservation, New Mexico.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of Hopi Tribe of Arizona; Navajo Nation of Arizona, New Mexico & Utah; and Zuni Tribe of the Zuni Reservation, New Mexico.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to Hopi Tribe of Arizona; Navajo Nation, Arizona, New Mexico & Utah; and Zuni Tribe of the Zuni Reservation, New Mexico.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Dr. Bruce Anderson, Forensic Anthropologist, Pima County Office of the Medical Examiner, 2825 E District Street, Tucson, AZ 85714, telephone (520) 724-8600, email
The PCOME is responsible for notifying Hopi Tribe of Arizona; Navajo Nation, Arizona, New Mexico & Utah; and Zuni Tribe of the Zuni Reservation, New Mexico, that this notice has been published.
National Park Service, Interior.
Notice.
The University of Michigan has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the University of Michigan. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the University of Michigan at the address in this notice by November 16, 2015.
Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the University of Michigan, Ann Arbor, MI. The human remains and associated funerary objects were removed from Leelanau, Missaukee, Montcalm, Muskegon, Newaygo, Oceana, and Otsego Counties, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary objects was made by the University of Michigan Museum of Anthropological Archaeology (UMMAA) professional staff in consultation with representatives of the Bay Mills Indian Community, Michigan; Chippewa Cree Indians of the Rocky Boy's Reservation, Montana; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Saginaw Chippewa Indian Tribe of Michigan; and the Sault Ste. Marie Tribe of Chippewa Indians, Michigan.
Additional requests for consultation were sent to the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Bois Forte Band (Nett Lake) of the Minnesota Chippewa Tribe, Minnesota; Fond du Lac Band of the Minnesota Chippewa Tribe, Minnesota; Grand Portage Band of the Minnesota Chippewa Tribe, Minnesota; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Leech Lake Band of the Minnesota Chippewa Tribe, Minnesota; Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota; Ottawa Tribe of Oklahoma; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Sokaogon Chippewa Community, Wisconsin; St. Croix Chippewa Indians of Wisconsin; Turtle Mountain Band of Chippewa Indians of North Dakota; and the White Earth Band of the Minnesota Chippewa Tribe, Minnesota.
Hereafter, all tribes listed in this section are referred to as “The Invited and Consulted Tribes.”
On an unknown date in 1969, human remains representing, at minimum, five individuals were removed from the Sheridan site (20LU23) in Leelanau County, MI. A construction crew unearthed remains and objects while working near Sleeping Bear Bay. They contacted archeologists from the UMMAA who conducted a salvage excavation and collected human remains and objects from the site. The remains are from 1 child, 1 adolescent, 1 young adult male, and 2 adult males. No date or time period could be established for the site. No known individuals were identified. The 3 associated funerary objects present are 2 lots of soil and 1 oxidized metal nail fragment.
In the summer of 1925, human remains representing, at minimum, one individual were removed from the Aetna Mound 1 site (20MA33) in Missaukee County, MI. UMMAA archeologists excavated the smaller of two burial mounds located on a nature preserve owned by the University of Michigan. They collected the human remains of an adult male buried in a tightly flexed position from the center of the mound. Charcoal was found near the human remains and two stones had been placed on the individual's chest. (To date, the stones have not been located.) The human remains are dated to the Woodland Period (850 B.C.-A.D. 1400) based on mortuary treatment. No known individuals were identified. No associated funerary objects are present.
In the summer of 1925, human remains representing, at minimum, one individual were removed from the Aetna Mound 2 site (20MA10) in Missaukee County, MI. UMMAA archeologists excavated the larger of two burial mounds located on a nature preserve owned by the University of Michigan. They collected a small amount of cremated human remains of an adult of indeterminate sex with several other objects from the center of the mound. The human remains are dated to the Woodland Period (850 B.C.-A.D. 1400) based on mortuary treatment. No known individuals were identified. The 6 associated funerary objects present are 2 worked animal bone fragments, 1 chert flake, 1 chert fragment, 1 small stone gorget, and 1 copper axe.
On an unknown date in 1960, human remains representing, at minimum, three individuals were removed from the Rossman site (20ML4) in Montcalm County, MI. State highway workers reported human remains had surfaced in a borrow pit they were using. The workers collected the human remains, along with multiple objects, and donated them to the UMMAA. UMMAA archeologists visited the site, but only found two fire pits in the area. The human remains are from 1 juvenile, 1 adult female, and 1 adult possible male. The human remains have been dated to the Late Woodland Period (A.D. 500-1400) based on a ceramic sherd collected from the site; however, a
On an unknown date in 1959, human remains representing, at minimum, one individual were removed from the Haieght Mound site (20MU20) in Muskegon County, MI. With construction activities posing an imminent threat to the mound, UMMAA archeologists and members of the Wright L. Coffinberry Society conducted a salvage excavation of the site. They collected the remains of a young adult female buried in a flexed position from the center of the mound and donated the remains to the UMMAA in 1964. The remains are dated to the Woodland Period (850 B.C.-A.D. 1400) based on mortuary treatment. No known individuals were identified. No associated funerary objects are present.
On an unknown date in 1954, human remains representing, at minimum, two individuals were removed from the Parson's Mound site (20NE100) in Newaygo County, MI. Members of the Wright L. Coffinberry Society excavated this site that consists of 5 mounds of varying heights and sizes. Human remains were collected from 3 of the 5 mounds. Human remains from 1 of these 3 mounds were donated to the UMMAA in 1964. It is not known who possesses the human remains collected from the other 2 mounds. The human remains in the UMMAA's possession are of an adult male and an adult of indeterminate sex. No objects were found in the 3 mounds that contained human remains. The human remains are dated to the Middle Woodland Period (300 B.C.-A.D. 500) based on mortuary treatment. No known individuals were identified. No associated funerary objects are present.
In May 1965, human remains representing, at minimum, one individual were removed from the Brunett Mound site (20NE104) in Newaygo County, MI. UMMAA archeologists excavated this site that consists of a single mound with a circular burial pit at its center. The pit contained a bundle burial of a young adult female, accompanied by multiple objects. Among the objects were 2 ceramic vessels containing deer and fish bones. The human remains are dated to the Early Late Woodland Period (A.D. 500-700) based on diagnostic artifacts from the site. No known individuals were identified. The 25 associated funerary objects present are 1 ceramic Wayne ware vessel, 1 lot ceramic sherds, 1 biface, 1 scraper, 10 turtle shell fragments, 1 lot of fish bones, 1 lot of animal bones and shell fragments, 8 chert fragments, and 1 lot of clay with animal bone fragments.
In May 1966, human remains representing, at minimum, five individuals were removed from the Carrigan Mound B site (20NE111) in Newaygo County, MI. Carrigan Mound B is 1 mound in a 5-mound group collectively referred to as the Carrigan-Croton Dam Mound Complex. UMMAA archeologists and students excavated this mound that contained a burial pit near its center. A charred log was found at the top of the burial pit. The bottom of the burial pit contained cremated and non-cremated human remains within an area of burnt red sand. The human remains are from 1 cremated juvenile, 3 cremated adults of indeterminate sex, and 1 non-cremated adult of indeterminate sex. The human remains are dated to the Early Woodland Period (850-300 B.C.) based on Carbon 14 dating of the charred log. No known individuals were identified. No associated funerary objects are present.
In 1965, human remains representing, at minimum, one individual were removed from the Croton Dam Mound A site (20NE105) in Newaygo County, MI. A UMMAA archeologist and students excavated this mound that contained an irregular oval fire pit feature with cremated remains of an adult of indeterminate sex. The human remains are dated to the Early Woodland Period (850-300 B.C.) based on dating for the Carrigan Mound B site (20NE111), which is part of the same mound complex. No known individuals were identified. The 124 associated funerary objects present are 1 lithic blade, 86 lithic bifaces, 10 ovate lithic bifaces, 3 lithic scrapers, 5 lithic preforms, 18 lithic debitage fragments, and 1 copper needle.
Between May 12 and 15, 1966, human remains representing, at minimum, two individuals were removed from the Croton Dam Mound B site (20NE112) in Newaygo County, MI. Members of the Newaygo County Chapter of the Michigan Archaeological Society, under the direction of UMMAA archeologists, excavated a central burial pit in this mound. Soil and cremated human remains of 2 adults of indeterminate sex were distributed evenly through the burial pit, commingled with small fragments of cremated faunal bone. The base of a stemmed projectile point was collected from the bottom of the burial pit. The human remains are dated to the Early Woodland Period (850-300 B.C.) based on dating for the Carrigan Mound B site (20NE111), which is part of the same mound complex. No known individuals were identified. The 1 associated funerary object present is a projectile point base.
In 1966, human remains representing, at minimum, one individual were removed from the Croton Dam Mound C site (20NE116) in Newaygo County, MI. Members of the Newaygo County Chapter of the Michigan Archaeological Society, under the direction of a UMMAA archeologist, excavated this mound that was the smallest of those that comprised the Carrigan-Croton Dam Mound Complex. Croton Dam Mound C contained a round burial pit near its center, capped with a layer of clay. A rolled copper bead was located on top of the clay cap. Cremated bone fragments of an adult of indeterminate sex, commingled cremated faunal bone, and heavily ochred sand were located under the clay cap. The human remains are dated to the Early Woodland Period (850-300 B.C.) based on dating for the Carrigan Mound B site (20NE111), which is part of the same mound complex. No known individuals were identified. The 3 associated funerary objects present are 1 copper tube bead and 2 worked deer phalanges (possibly awls).
On an unknown date prior to 1924, human remains representing, at minimum, one individual were removed from the Cobmoosa Lake East site (20OA3) in Oceana County, MI. An amateur collector excavated one mound of a 3-mound group located near Cobmoosa Lake. He collected the human remains of a child, along with some objects, and sent them to the UMMAA in 1923. The human remains are dated to the Middle to Early Late Woodland Period (300 B.C.-A.D. 500) based on diagnostic artifacts collected from the site. No known individuals were
In April 1937, human remains representing, at minimum, one individual were removed from the Ditchdiggers site (20OE22) in Otsego County, MI. Workers for the City of Gaylord unearthed the human remains while installing sewer lines. They contacted the Otsego County Sherriff. The Sherriff collected the human remains of a young adult female who had been buried, lying on her side, in an extended position. No date or time period could be established for the remains. No known individuals were identified. The 1 associated funerary object present is a worked faunal bone.
Officials of the University of Michigan have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on cranial morphology, dental traits, archeological context, and accession documentation.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 25 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 175 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of The Invited and Consulted Tribes.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of The Invited and Consulted Tribes.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to The Invited and Consulted Tribes.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
The University of Michigan is responsible for notifying The Invited and Consulted Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Michigan has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the University of Michigan. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the University of Michigan at the address in this notice by November 16, 2015.
Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the University of Michigan, Ann Arbor, MI. The human remains were removed from Clinton County, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University of Michigan Museum of Anthropological Archaeology (UMMAA) professional staff in consultation with representatives of the Bay Mills Indian Community, Michigan; Chippewa Cree Indians of the Rocky Boy's Reservation, Montana; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Saginaw Chippewa Indian Tribe of Michigan; and the Sault Ste. Marie Tribe of Chippewa Indians, Michigan.
Additional requests for consultation were sent to the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Bois Forte Band (Nett Lake) of the Minnesota Chippewa Tribe, Minnesota; Fond du Lac Band of the Minnesota Chippewa Tribe, Minnesota; Grand Portage Band of the Minnesota Chippewa Tribe, Minnesota; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Leech Lake Band of the Minnesota Chippewa Tribe, Minnesota; Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Sokaogon Chippewa Community, Wisconsin; St. Croix Chippewa Indians of Wisconsin;
Hereafter, all tribes listed in this section are referred to as “The Invited and Consulted Tribes.”
In April 1951, human remains representing, at minimum, four individuals were removed from the Steinbower site (20CL04) in Clinton County, MI. Workers unearthed human remains at the site while conducting gravel removal operations. They contacted the Clinton County Sherriff who collected the human remains and donated them to the UMMAA on April 24, 1951. The human remains are from 1 juvenile, 1 young adult, and 2 adults. The human remains are dated to the Glacial Kame Period, or Late Archaic to Early Woodland Periods (1000-500 B.C.), based on a conch shell collected from the site, although the shell was not donated to the UMMAA. No known individuals were identified. No associated funerary objects are present.
Officials of the University of Michigan have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on cranial morphology, dental traits, archeological context, and accession documentation.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of four individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of the Saginaw Chippewa Indian Tribe of Michigan.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of The Invited and Consulted Tribes.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to The Invited and Consulted Tribes.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
The University of Michigan is responsible for notifying The Invited and Consulted Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Thomas Burke Memorial Washington State Museum, University of Washington (Burke Museum) has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Burke Museum. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Burke Museum at the address in this notice by November 16, 2015.
Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849 x2, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Burke Museum, University of Washington, Seattle, WA. The human remains were removed from Pacific County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Burke Museum professional staff in consultation with representatives of the Confederated Tribes of the Chehalis Reservation, Washington and Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington), Washington.
In the late 19th or early 20th century, human remains representing, at minimum, one individual, were removed from near the mouth of the Columbia River in the vicinity of sites 45-PC-25/45-PC-4, a known Chinook village and cemetery in Pacific County, WA. The human remains were removed by the property owner and donated to the University of Washington Anthropology Department in 1959, and subsequently accessioned by the Burke Museum in 1964 (Accn. #1964-146). No known individuals were identified. No associated funerary objects are present.
In 1959 and 1976, human remains representing a minimum of one individual were removed from the Martin Site (45-PC-7), in Pacific County, WA. The human remains excavated in 1959 were removed as part of a University of Washington field school excavation conducted by Robert
All of the human remains are from sites located in the southwestern part of Pacific County, WA. According to historical and anthropological sources (Kidd, 1967; Mooney, 1896; Ray, 1938; Ruby 1986; Spier, 1936; Suttles 1990), as well as information provided during consultation, this area is within the traditional aboriginal territory of the Lower Chinook people, which included the northern bank of the Columbia River mouth, and lands north along the shore and into Willapa Bay. The people of this area spoke the same Chinook dialect and were linguistically separate from other Chinook who lived farther up the Columbia River (Suttles, 1990). The human remains have been determined to be Native American based on archaeological, geographical and osteological evidence. Sites 45-PC-25/45-PC-4 were identified as a village site and cemetery with pre-historic and historic cultural components by Hudziak and Smith in 1948, and by Robert Cook in 1955. Site 45-PC-7 is a large site dating from 700-1800 years ago. All of these sites exhibit material culture consistent with Chinook culture. Today the Chinook people are members of the Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington), and the Chinook Indian Tribe, a nonfederally recognized Indian group represented by the Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington).
Officials of the Burke Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington).
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849 x2, email
The Burke Museum is responsible for notifying the Confederated Tribes of the Chehalis Reservation, Washington and Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington), Washington that this notice has been published.
National Park Service, Interior.
Notice.
The Thomas Burke Memorial Washington State Museum, University of Washington (Burke Museum), in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Burke Museum. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Burke Museum at the address in this notice by November 16, 2015.
Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849 x2, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Burke Museum, University of Washington, Seattle, WA, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In the late 19th or early 20th century, three cultural objects were removed from near the mouth of the Columbia River in the vicinity of sites 45-PC-25/45-PC-4, a known Chinook village and cemetery in Pacific County, WA. The objects were removed by the property owner and donated to the University of Washington Anthropology Department in 1959, and subsequently accessioned by the Burke Museum in 1964 (Accn. #1964-146). The three unassociated funerary objects include one lot of glass and shell beads and two copper rod bracelets. Sites 45-PC-25/45-PC-4 were identified as a village site and cemetery by Hudziak and Smith in 1948, and by Robert Cook in 1955. Cook documented these objects being in the possession of
Sites 45-PC-25 and 45-PC-4 are located on the north bank of the Columbia River near the mouth of the river, in Pacific County, WA. Site 45-PC-25 is a village site and site 45-PC-4 is an adjacent burial ground. The objects documented from site 45-PC-4 include beads. Funerary objects found in burials at a nearby site include copper metal bracelets and blue and white glass trade beads that are similar to the objects listed above. Additionally, information provided during consultation indicates that these objects are consistent with funerary objects typically found in Chinook territory. Sites 45-PC-25 and 45-PC-4 are within an area of a known historic Chinook village, in the traditional aboriginal territory of the Lower Chinook people. According to historical and anthropological sources (Kidd, 1967; Mooney, 1896; Ray, 1938; Ruby 1986; Spier, 1936; Suttles 1990), as well as information provided during consultation, the aboriginal territory of the Lower Chinook people included the northern bank of the Columbia River mouth and lands north along the shore and into Willapa Bay. The people of this area spoke a Chinook dialect and were linguistically separate from other Chinook who lived farther up the Columbia River (Suttles, 1990). Today the Chinook people are members of the Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington), and the Chinook Indian Tribe, a non-federally recognized Indian group represented by the Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington).
Officials of the Burke Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the three cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington).
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849 x2, email
The Burke Museum is responsible for notifying the Confederated Tribes of the Chehalis Reservation, Washington and Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington), that this notice has been published.
National Park Service, Interior.
Notice.
The University of Michigan has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the University of Michigan. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the University of Michigan at the address in this notice by November 16, 2015.
Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the University of Michigan, Ann Arbor, MI. The human remains were removed from Ionia and Van Buren Counties, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University of Michigan Museum of Anthropological Archaeology (UMMAA) professional staff in consultation with representatives of the Bay Mills Indian Community, Michigan; Chippewa Cree Indians of the Rocky Boy's Reservation, Montana; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.); Pokagon Band of Potawatomi Indians, Michigan and Indiana; Saginaw Chippewa Indian Tribe of Michigan; and the Sault Ste.
Additional requests for consultation were sent to the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Bois Forte Band (Nett Lake) of the Minnesota Chippewa Tribe, Minnesota; Citizen Potawatomi Nation, Oklahoma; Fond du Lac Band of the Minnesota Chippewa Tribe, Minnesota; Forest County Potawatomi Community, Wisconsin; Grand Portage Band of the Minnesota Chippewa Tribe, Minnesota; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Leech Lake Band of the Minnesota Chippewa Tribe, Minnesota; Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota; Ottawa Tribe of Oklahoma; Prairie Band Potawatomi Nation (previously listed as the Prairie Band of Potawatomi Nation, Kansas); Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Sokaogon Chippewa Community, Wisconsin; St. Croix Chippewa Indians of Wisconsin; Turtle Mountain Band of Chippewa Indians of North Dakota; and the White Earth Band of the Minnesota Chippewa Tribe, Minnesota.
Hereafter, all tribes listed in this section are referred to as “The Invited and Consulted Tribes.”
In 1956, human remains representing, at minimum, two individuals were removed from the Lyons Prairie site (20IA51) in Ionia County, MI. An amateur archeologist collected the human remains in 1956 and donated them to the UMMAA in 1964. The human remains are from an adolescent and an adult. It is uncertain how the site was identified or excavated. However, records at the UMMAA indicated there were 3 mounds that had been leveled off, located on a “prairie” between Lyons and Muir, south of the Grand River. The human remains are dated to the Woodland Period (850 B.C.-A.D. 1400) based on the presumption that they were removed from one of the burial mounds noted in the UMMAA's records. No known individuals were identified. No associated funerary objects are present.
On an unknown date between 1939 and 1940, human remains representing, at minimum, one individual were removed from the Ament Village site (20VA01) in Van Buren County, MI. Amateur collectors found scattered objects that had emerged from 16 blowholes on the bank of School Section Lake. They reported that weathered bone was found near one of the blowholes. The collections were sent to the UMMAA on March 13, 1941, for identification. On December 9, 1941, museum experts determined some of the bone fragments collected from the site to possibly be human. In 2012, UMMAA staff conducting re-inventory work located a box containing the cremated human remains of an adult that were noted as coming from the Ament Village site. These human remains are calcined, highly weathered, sun-bleached, and show horizontal cracking. No date or time period could be established for the human remains. No known individuals were identified. No associated funerary objects are present.
Officials of the University of Michigan have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on cranial morphology, dental traits, archeological context, and accession documentation.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of three individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of The Invited and Consulted Tribes.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of The Invited and Consulted Tribes.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to The Invited and Consuled Tribes.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
The University of Michigan is responsible for notifying The Invited and Consulted Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Michigan has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the University of Michigan. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the University of Michigan at the address in this notice by November 16, 2015.
Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the University of Michigan, Ann Arbor, MI. The human remains and associated funerary objects were removed from sites in Genesee and Tuscola Counties, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary objects was made by the University of Michigan Museum of Anthropological Archaeology (UMMAA) professional staff, in consultation with representatives of the Bay Mills Indian Community, Michigan; Chippewa Cree Indians of the Rocky Boy's Reservation, Montana; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians of Michigan; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.); Pokagon Band of Potawatomi Indians, Michigan and Indiana; Saginaw Chippewa Indian Tribe of Michigan; Sault Ste. Marie Tribe of Chippewa Indians, Michigan; and the Wyandotte Nation, Oklahoma.
Additional requests for consultation were sent to the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Bois Forte Band (Nett Lake) of the Minnesota Chippewa Tribe, Minnesota; Citizen Potawatomi Nation, Oklahoma; Fond du Lac Band of the Minnesota Chippewa Tribe, Minnesota; Forest County Potawatomi Community, Wisconsin; Grand Portage Band of the Minnesota Chippewa Tribe, Minnesota; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Leech Lake Band of the Minnesota Chippewa Tribe, Minnesota; Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota; Ottawa Tribe of Oklahoma; Prairie Band Potawatomi Nation, Kansas (previously listed as the Prairie Band of Potawatomi Nation, Kansas); Quechan Tribe of the Fort Yuma Indian Reservation, California and Arizona; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Sokaogon Chippewa Community, Wisconsin; St. Croix Chippewa Indians of Wisconsin; Turtle Mountain Band of Chippewa Indians of North Dakota; and the White Earth Band of the Minnesota Chippewa Tribe, Minnesota.
Hereafter, all tribes listed in this section are referred to as “The Consulted and Invited Tribes.”
On June 25, 1972, human remains representing, at minimum, seven individuals were removed from the Budd site (20GS26) in Genesee County, MI. Individuals walking along the Flint River noticed human remains eroding out of the riverbank. They collected the human remains, along with objects, which the landowner later donated to the UMMAA, on June 29, 1979. The human remains are from one child, one adult male, two adult females, and three adults of indeterminate sex. At least three of the individuals were noted as having been interred in a flexed position. The human remains are dated to the Middle Late Woodland Period (A.D. 900-1200), based on diagnostic artifacts collected from the site. No known individuals were identified. The 2 associated funerary objects present are 1 ceramic elbow pipe with a collared rim and 1 awl made from a turkey bone.
In June 1959, human remains representing, at minimum, two individuals were removed from the Ray Bradshaw Farm site (20TU1) in Tuscola County, MI. Workers excavating gravel inadvertently dug into a burial mound and unearthed commingled human remains and objects. The landowner collected the human remains and objects, and donated them to the UMMAA in July 1959. The human remains are from two adults. The human remains are dated to the Pre-Contact Period, based on diagnostic artifacts collected from the site. No known individuals were identified. The 10 associated funerary objects present are 6 antler tines and 4 pieces of chipped stone.
In 1988, human remains representing, at minimum, six individuals were removed from the Hancock I site (20TU147) in Tuscola County, MI. The landowners were excavating sediment from what they thought was a natural knoll on their property. While depositing the sediment elsewhere on their property, the landowners noticed human remains and red ochre mixed in with the soil. They contacted archeologists at Saginaw Valley State University and Alma College for assistance. Although the human remains had been relocated away from the knoll where they were buried, the archeologists, their students, and members of the Michigan Archaeological Society carried out a survey and salvage excavation effort.
The collections were donated to the UMMAA in 1990. The human remains are from one juvenile, one adolescent, three adults of indeterminate sex, and one cremated adult of indeterminate sex. The cremated human remains were found commingled with the non-cremated remains of an adult. Although the human remains were highly fragmentary, one individual was noted as possibly cremated in a flexed position. The human remains are dated to the Late Archaic to Early Woodland Periods (3500-500 B.C.), based on mortuary treatment. No known individuals were identified. No associated funerary objects are present.
Officials of the University of Michigan have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on cranial morphology, dental traits, mortuary treatment, archeological context, and accession documentation.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 15 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), there are 12 objects described in this notice reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court
• Treaties, Acts of Congress, or Executive Orders indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of The Invited and Consulted Tribes.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to The Invited and Consulted Tribes.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
The University of Michigan is responsible for notifying The Invited and Consulted Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Michigan has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the University of Michigan. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the University of Michigan at the address in this notice by November 16, 2015.
Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the University of Michigan, Ann Arbor, MI. The human remains and associated funerary objects were removed from Bay and Saginaw Counties, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary objects was made by the University of Michigan Museum of Anthropological Archaeology (UMMAA) professional staff in consultation with representatives of the Bay Mills Indian Community, Michigan; Chippewa Cree Indians of the Rocky Boy's Reservation, Montana; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Saginaw Chippewa Indian Tribe of Michigan; and the Sault Ste. Marie Tribe of Chippewa Indians, Michigan.
Additional requests for consultation were sent to the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Bois Forte Band (Nett Lake) of the Minnesota Chippewa Tribe, Minnesota; Fond du Lac Band of the Minnesota Chippewa Tribe, Minnesota; Grand Portage Band of the Minnesota Chippewa Tribe, Minnesota; Kickapoo Traditional Tribe of Texas; Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Kickapoo Tribe of Oklahoma; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Leech Lake Band of the Minnesota Chippewa Tribe, Minnesota; Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Sac & Fox Nation of Missouri in Kansas and Nebraska; Sac & Fox Nation, Oklahoma; Sac & Fox Tribe of the Mississippi in Iowa; Sokaogon Chippewa Community, Wisconsin; St. Croix Chippewa Indians of Wisconsin; Turtle Mountain Band of Chippewa Indians of North Dakota; and the White Earth Band of the Minnesota Chippewa Tribe, Minnesota.
Hereafter, all tribes listed in this section are referred to as “The Invited and Consulted Tribes.”
In July 1965, human remains representing, at minimum, one individual were removed from the Butterfield site (20BY29) in Bay County, MI. UMMAA archeologists conducted a test excavation of the site. They collected a single juvenile tooth cap from a fire pit that also contained fire cracked rock and lithics. The human remains were dated to the Late Woodland Period (A.D. 500-1400) based on diagnostic artifacts from other areas of the site. No known individuals were identified. No associated funerary objects are present.
From June 20-28, 1966, human remains representing, at minimum, one individual were removed from the Kantzler site (20BY30) in Bay County, MI. Members of the Saginaw Valley Chapter of the Michigan Archaeological Society originally excavated the site in 1965. They noted multiple archeological components and evidence of occupation from the Archaic to Post-Contact
In 1923, human remains representing, at minimum, four individuals were removed from the Schmidt 2-4 site (20BY1) in Bay County, MI. A landowner donated these human remains and objects to the UMMAA on an unknown date. The human remains are of 1 child, 1 adolescent possibly male, 1 young adult female, and 1 adult male. No date or time period could be established for the human remains. No known individuals were identified. The 1 associated funerary object present is 1 lot of unworked stones, fossil coral, and animal bone.
In the summer of 1963, human remains representing, at minimum, two individuals were removed from the Mahoney Property site (20SA193) in Saginaw County, MI. UMMAA archeologists collected the human remains as part of a survey project conducted in the area. The human remains are sun-bleached and highly weathered, and are from 1 adult and 1 cremated adult. No date or time period could be established for the human remains. No known individuals were identified. No associated funerary objects are present.
Officials of the University of Michigan have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on cranial morphology, dental traits, archeological context, and accession documentation.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of eight individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 2 objects described in this notice is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Saginaw Chippewa Indian Tribe of Michigan.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of The Invited and Consulted Tribes.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to The Invited and Consulted Tribes.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
The University of Michigan is responsible for notifying The Invited and Consulted Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Michigan has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the University of Michigan. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the University of Michigan at the address in this notice by November 16, 2015.
Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the University of Michigan, Ann Arbor, MI. The human remains were removed from St. Clair County, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University of Michigan Museum of Anthropological Archaeology (UMMAA) professional staff in consultation with representatives of the Bay Mills Indian Community, Michigan; Chippewa Cree Indians of the Rocky Boy's Reservation, Montana; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-
Additional requests for consultation were sent to the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Bois Forte Band (Nett Lake) of the Minnesota Chippewa Tribe, Minnesota; Citizen Potawatomi Nation, Oklahoma; Fond du Lac Band of the Minnesota Chippewa Tribe, Minnesota; Forest County Potawatomi Community, Wisconsin; Grand Portage Band of the Minnesota Chippewa Tribe, Minnesota; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Leech Lake Band of the Minnesota Chippewa Tribe, Minnesota; Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota; Ottawa Tribe of Oklahoma; Prairie Band Potawatomi Nation (previously listed as the Prairie Band of Potawatomi Nation, Kansas); Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Seneca Nation of Indians (previously listed as the Seneca Nation of New York); Seneca-Cayuga Tribe of Oklahoma; Sokaogon Chippewa Community, Wisconsin; St. Croix Chippewa Indians of Wisconsin; Tonawanda Band of Seneca (previously listed as the Tonawanda Band of Seneca Indians of New York); Turtle Mountain Band of Chippewa Indians of North Dakota; and the White Earth Band of the Minnesota Chippewa Tribe, Minnesota.
Hereafter, all tribes listed in this section are referred to as “The Invited and Consulted Tribes.”
In 1958, human remains representing, at minimum, one individual were removed from the GL-1279 site (20SC7) in St. Clair County, MI. An amateur collector removed the human remains of a child from an area near Gratiot Avenue, along Lake Huron, near the start of the St. Clair River. The collections were later donated to the UMMAA on January 19, 1959. UMMAA records note that the GL-1279 (20SC7) site is part of the northern edge of the 20SC8 site, which consists of 21 mounds that populate a 2-mile area along the St. Clair River. The 20SC8 site has been dated to the Woodland Period (850 B.C.-A.D. 1400). Given the association between the 20SC7 and 20SC8 sites, the remains from the GL-1279 site have been dated to the Woodland Period. No known individuals were identified. No associated funerary objects are present.
Officials of the University of Michigan have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on cranial morphology, dental traits, and accession documentation.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Bay Mills Indian Community, Michigan; Bois Forte Band (Nett Lake) of the Minnesota Chippewa Tribe, Minnesota; Chippewa Cree Indians of the Rocky Boy's Reservation, Montana; Citizen Potawatomi Nation, Oklahoma; Fond du Lac Band of the Minnesota Chippewa Tribe, Minnesota; Forest County Potawatomi Community, Wisconsin; Grand Portage Band of the Minnesota Chippewa Tribe, Minnesota; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Leech Lake Band of the Minnesota Chippewa Tribe, Minnesota; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota; Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.); Ottawa Tribe of Oklahoma; Pokagon Band of Potawatomi Indians, Michigan and Indiana; Prairie Band Potawatomi Nation (previously listed as the Prairie Band of Potawatomi Nation, Kansas); Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Saginaw Chippewa Indian Tribe of Michigan; Sault Ste. Marie Tribe of Chippewa Indians, Michigan; Sokaogon Chippewa Community, Wisconsin; St. Croix Chippewa Indians of Wisconsin; Turtle Mountain Band of Chippewa Indians of North Dakota; and the White Earth Band of the Minnesota Chippewa Tribe, Minnesota.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of The Invited and Consulted Tribes.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to The Invited and Consulted Tribes.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
The University of Michigan is responsible for notifying The Invited and Consulted Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The City of Bellingham/Whatcom Museum (Whatcom Museum), in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural item listed in this notice meets the definitions of object of cultural patrimony and sacred object. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request to Whatcom Museum. If no additional claimants come forward, transfer of control of the cultural item to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request with information in support of the claim to Whatcom Museum at the address in this notice by November 16, 2015.
Rebecca L. Hutchins, Curator of Collections, Whatcom Museum, 121 Prospect Street, Bellingham, WA 98225, telephone (360) 778-8955, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate a cultural item under the control of Whatcom Museum, Bellingham, WA, that meets the definition of an object of cultural patrimony and sacred object under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
On November 15, 1975, Whatcom Museum entered into a purchase agreement with the Michael R. Johnson Gallery in Seattle, WA, and took possession of a Tlingit Chilkat blanket (1975.117.1). Accompanying documents indicate that the blanket, described as “bear and abs (sic) design” was collected at Yakatat, AK in 1974, by a private collector based out of Tacoma, WA. A photocopy enclosed with the purchase agreement shows an image of the blanket hanging as a backdrop to a group of people in ceremonial regalia. Accompanying notes indicate this image was taken between 1935 and 1940, and was obtained from the Alaska State Library in Juneau, AK.
Based on consultation with the Central Council of the Tlingit & Haida Indian Tribes, Whatcom Museum reasonably believes this cultural item is culturally affiliated with the Tlingit and Haida Indian Tribes. Furthermore, the museum was also informed during consultation that the object is considered to be both a sacred object and an object of cultural patrimony.
Officials of Whatcom Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(C), the one cultural item described above is a specific ceremonial object needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(3)(D), the one cultural item described above has ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred object/object of cultural patrimony and the Central Council of the Tlingit & Haida Indian Tribes.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Rebecca L. Hutchins, Curator of Collections, Whatcom Museum, 121 Prospect Street, Bellingham, WA 98225, telephone (360) 778-8955, email
Whatcom Museum is responsible for notifying the Central Council of the Tlingit & Haida Indian Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Michigan has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the University of Michigan. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the University of Michigan at the address in this notice by November 16, 2015.
Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the University of Michigan, Ann Arbor, MI. The human remains and associated funerary objects were removed from the State of Michigan, but the specific counties are unknown.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary objects was made by the University of Michigan Museum of Anthropological Archaeology (UMMAA) professional staff in consultation with representatives of the Bay Mills Indian Community, Michigan; Chippewa Cree Indians of the Rocky Boy's Reservation, Montana; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians of Michigan; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as Huron Potawatomi, Inc.); Pokagon Band of Potawatomi Indians, Michigan and Indiana; Saginaw Chippewa Indian Tribe of Michigan; Sault Ste. Marie Tribe of Chippewa Indians, Michigan; and the Wyandotte Nation, Oklahoma.
Additional requests for consultation were sent to the Absentee Shawnee Tribe of Indians of Oklahoma; Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Bois Forte Band (Nett Lake) of the Minnesota Chippewa Tribe, Minnesota; Citizen Potawatomi Nation, Oklahoma; Delaware Nation, Oklahoma; Delaware Tribe of Indians, Kansas; Eastern Shawnee Tribe of Oklahoma; Fond du Lac Band of the Minnesota Chippewa Tribe, Minnesota; Forest County Potawatomi Community, Wisconsin; Grand Portage Band of the Minnesota Chippewa Tribe, Minnesota; Kickapoo Traditional Tribe of Texas; Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Kickapoo Tribe of Oklahoma; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Leech Lake Band of the Minnesota Chippewa Tribe, Minnesota; Miami Tribe of Oklahoma; Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota; Ottawa Tribe of Oklahoma; Peoria Tribe of Indians of Oklahoma; Prairie Band Potawatomi Nation, Kansas (previously listed as the Prairie Band of Potawatomi Nation, Kansas); Quechan Tribe of the Fort Yuma Indian Reservation, California and Arizona; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Sac and Fox Nation of Missouri in Kansas and Nebraska; Sac and Fox Nation, Oklahoma; Sac and Fox Tribe of the Mississippi in Iowa; Seneca Nation of Indians (previously listed as Seneca Nation of New York Seneca Nation of Indians); Seneca-Cayuga Nation (previously listed as the Seneca-Cayuga Tribe of Oklahoma); Shawnee Tribe, Oklahoma; Sokaogon Chippewa Community, Wisconsin; St. Croix Chippewa Indians of Wisconsin; Tonawanda Band of Seneca (previously listed as the Tonawanda Band of Seneca Indians of New York); Turtle Mountain Band of Chippewa Indians of North Dakota; and the White Earth Band of the Minnesota Chippewa Tribe, Minnesota.
Hereafter, all tribes listed in this section are referred to as “The Invited and Consulted Tribes.”
On an unknown date in the late-1950s or early-1960s, human remains representing, at minimum, one individual were removed from an unknown location in the State of Michigan, recorded as the Marion's Sister's Find site. The human remains, along with objects, were discovered during road construction activities in northern Michigan and removed from the site by a University of Michigan archeology class. On September 9, 1991, the collections were donated from an estate to the Royal British Columbia Museum (RBCM) in Vancouver, British Columbia, Canada. The RBCM subsequently contacted the UMMAA and arranged a transfer. In November of 1991, the UMMAA accessioned the collections. The human remains are from an adult male. It is not known if the objects were associated with the human remains, or if they were recovered from the same site. However, they have been reported as associated funerary objects. The human remains are dated to the Middle Woodland Period (300 B.C—A.D. 500) based on the projectile points being reported as associated funerary objects. No known individuals were identified. The 4 associated funerary objects are 1 triangular-shaped stone celt and 3 corner-notched projectile points.
On an unknown date prior to 1935, human remains representing, at minimum, one individual were removed from an unknown location in the State of Michigan, recorded as the GL-2048 site. The cranium of an adult female bearing the note “Indian of Michigan, Dr. S. Lathrop” was identified in the holdings of the University of Michigan Department of Anatomy and transferred to the UMMAA in 1935. There are no records indicating how the UM Department of Anatomy acquired the cranium. The cranium has evidence of post-mortem modification, with two holes drilled on the vault, on the left and right parietals respectively, near Bregma. These post-mortem modifications are consistent with those found at the Younge (20LP1), Riviere aux Vase (20MB3), and Farmington I (20OK2) sites in Michigan. No date or time period for the human remains could be established. No known individuals were identified. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, two individuals were removed from an unknown location in the State of Michigan, recorded as the GL-2053 site. During the 1930s, the UMMAA accessioned the fragmentary cranium and mandible fragment of a child. In September of 2014, UMMAA staff identified additional human remains from an adult that were also part of this accession. No further information is available. No date or time period for the human remains could be established. No known individuals were identified. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, two individuals were removed from an unknown location in the State of Michigan, recorded as the GL-2091 site. The UMMAA collectively accessioned the fragmentary human remains of an adult male and a child. It is unknown whether these individuals were removed from the same location. No further information is available. No date
On an unknown date, human remains representing, at minimum, one individual were removed from an unknown location in the State of Michigan, recorded as the Unknown Mich. H site. While completing the re-inventory of an unprovenienced box of site collections, UMMAA staff separated out the uncataloged human remains of an adult labeled “Mich.” and “H.” No further information is available. No date or time period for the human remains could be established. No known individuals were identified. No associated funerary objects are present.
Officials of the University of Michigan have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on cranial morphology, dental traits, post-mortem modifications, and accession documentation.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of seven individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 4 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of The Invited and Consulted Tribes.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of The Invited and Consulted Tribes.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to The Invited and Consulted Tribes.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
The University of Michigan is responsible for notifying The Invited and Consulted Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Michigan has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the University of Michigan. If no additional requestors come forward, transfer of control of the human remains and associated funerary object to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of the human remains and associated funerary objects should submit a written request with information in support of the request to the University of Michigan at the address in this notice by November 16, 2015.
Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary object under the control of the University of Michigan, Ann Arbor, MI. The human remains and associated funerary object were removed from Macomb County, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary object. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary object was made by the University of Michigan Museum of Anthropological Archaeology (UMMAA) professional staff in consultation with representatives of the Bay Mills Indian Community, Michigan; Chippewa Cree Indians of the Rocky Boy's Reservation, Montana; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.); Pokagon Band of Potawatomi Indians, Michigan and Indiana; Saginaw Chippewa Indian Tribe of Michigan; Sault Ste. Marie Tribe of Chippewa Indians, Michigan; and the Wyandotte Nation, Oklahoma.
Additional requests for consultation were sent to the Absentee-Shawnee Tribe of Indians of Oklahoma; Bad River Band of the Lake Superior Tribe of
Hereafter, all tribes listed in this section are referred to as “The Invited and Consulted Tribes.”
In 1962, human remains representing, at minimum, one individual were removed from the Verchave #2 site (20MB181) in Macomb County, MI. Archeologists from the UMMAA excavated the site, placing three 5x10 foot trenches across the western edge of a sand knoll. They found various components at the site including a burial pit dating to the Woodland Period. The human remains are of an older adult male. A single projectile point fragment was found associated with the remains. Archeologists speculated in their notes that the projectile point fragment may have caused the individual's death. The point fragment is being included as an associated funerary object. The human remains are dated to the Middle Late Woodland (A.D. 900-1200) based on Carbon 14 dating performed on material collected from the site that was contemporary to the burial. No known individuals were identified. The one associated funerary object present is a projectile point fragment.
Officials of the University of Michigan have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on cranial morphology, dental traits, accession documentation, and archeological context.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the one object described in this notice is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary object and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains and associated funerary object were removed is the aboriginal land of the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Bay Mills Indian Community, Michigan; Bois Forte Band (Nett Lake) of the Minnesota Chippewa Tribe, Minnesota; Chippewa Cree Indians of the Rocky Boy's Reservation, Montana; Citizen Potawatomi Nation, Oklahoma; Delaware Nation, Oklahoma; Delaware Tribe of Indians, Kansas; Fond du Lac Band of the Minnesota Chippewa Tribe, Minnesota; Forest County Potawatomi Community, Wisconsin; Grand Portage Band of the Minnesota Chippewa Tribe, Minnesota; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Leech Lake Band of the Minnesota Chippewa Tribe, Minnesota; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota; Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.); Ottawa Tribe of Oklahoma; Pokagon Band of Potawatomi Indians, Michigan and Indiana; Prairie Band Potawatomi Nation (previously listed as the Prairie Band of Potawatomi Nation, Kansas); Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Saginaw Chippewa Indian Tribe of Michigan; Sault Ste. Marie Tribe of Chippewa Indians, Michigan; Sokaogon Chippewa Community, Wisconsin; St. Croix Chippewa Indians of Wisconsin; Turtle Mountain Band of Chippewa Indians of North Dakota; and the White Earth Band of the Minnesota Chippewa Tribe, Minnesota.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary object were removed is the aboriginal land of The Invited and Consulted Tribes.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary object may be to The Invited and Consulted Tribes.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and the associated funerary object should submit a written request with information in support of the request to Dr. Ben Secunda, NAGPRA Project Manager, University of Michigan Office of Research, 4080 Fleming Building, 503 S. Thompson Street, Ann Arbor, MI 48109-1340, telephone (734) 647-9085, email
The University of Michigan is responsible for notifying The Invited
National Park Service, Interior.
Notice.
The Pejepscot Historical Society has completed an inventory of human remains in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Pejepscot Historical Society. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Pejepscot Historical Society at the address in this notice by November 16, 2015.
Jennifer Blanchard, Executive Director, Pejepscot Historical Society, 159 Park Row, Brunswick, ME 04011, telephone (207) 729-6606, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Pejepscot Historical Society. The human remains are anecdotally reported to have been removed from Camp Apache in Arizona.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made in 1995 by the Pejepscot Historical Society professional staff who invited consultation from representatives of the Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; and the following non-federally recognized Indian groups: Apache Business Committee, Anadarko, OK; Fort Sill, Apache Business Committee, Apache, OK; Mojave Apache Community Council, Fountain Hills, AZ; Yazapai-Apache Community Council, Camp Verdi, AZ.
On an unknown date, human remains of, at minimum, 2 individuals, were removed from an unknown location. Anecdotal evidence suggests that these remains were Apache, taken by an “Indian scout” from Camp Apache in 1879. No proof of this evidence exists beyond an exhibit label. No known individuals were identified. No associated funerary objects are present.
The entirety of our evidence is an unsubstantiated exhibit label that reads: “Taken from the scalp of an Apache Indian who was killed and scalped July 30, 1879 by Indian scouts about 20 miles from Camp Apache.” The items are catalogued as “on hand,” meaning they were found in the society's collections when it began formal cataloguing of its collection.
Officials of the Pejepscot Historical Society have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 2 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that could be potentially traced between the Native American human remains and the Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; and the following non-federally recognized Indian groups: Apache Business Committee, Anadarko, OK; Fort Sill, Apache Business Committee, Apache, OK; Mojave Apache Community Council, Fountain Hills, AZ; Yazapai-Apache Community Council, Camp Verdi, AZ.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Jennifer Blanchard, Executive Director, Pejepscot Historical Society, 159 Park Row, Brunswick, ME 04011, telephone (207) 729-6606, email
The Pejepscot Historical Society is responsible for notifying the Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; and the following non-federally recognized Indian groups: Apache Business Committee, Anadarko, OK; Fort Sill, Apache Business Committee, Apache, OK; Mojave Apache Community Council, Fountain Hills, AZ; Yazapai-Apache Community Council, Camp Verdi, AZ that this notice has been published.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of full reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the countervailing duty order on polyethylene retail carrier bags from Vietnam and revocation of the antidumping duty orders on polyethylene retail carrier bags from China, Indonesia, Malaysia, Taiwan, Thailand, and Vietnam would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. The Commission has determined to exercise its authority to extend the review period by up to 90 days.
Keysha Martinez (202-205-2136), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
October 20, 2015 at 11 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
On October 8, 2015, the Department of Justice lodged a proposed consent decree with the United States District Court for the Northern District of Illinois in the lawsuit entitled
The United States and the State of Illinois filed this lawsuit under the Clean Water Act and the Illinois Environmental Protection Act. The Plaintiffs' complaint seeks injunctive relief and civil penalties for Rockford's violations of the terms and conditions of its National Pollutant Discharge Elimination System permit for stormwater discharges from its municipal separate storm sewer system. The consent decree requires the defendant to perform injunctive relief and pay a $329,395.00 civil penalty.
The publication of this notice opens a period for public comment on the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $118.50 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits, the cost is $11.00.
In notice document 2015-19907, appearing on page 48567 in the issue of Thursday, August 13, 2015, make the following correction:
On page 48567, in the
Notice of Comment Period: List of Candidates for the Advisory Board on Toxic Substances and Worker Health for Part E of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).
The Secretary of Labor (Secretary) previously invited interested parties to submit nominations for individuals to serve on the Advisory Board on Toxic Substances and Worker Health for Part E of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). The nomination period was open from July 21, 2015 to September 4, 2015. The Secretary now invites interested parties to submit comments regarding the qualifications of potential candidates
The Department of Labor is committed to equal opportunity in the workplace and seeks broad-based and diverse Advisory Board membership. Comments should not exceed one page and will be protected to the extent permitted by law, including the Freedom of Information Act.
Public comments must be submitted (postmarked, if sending by mail; submitted electronically; or received, if hand delivered) within 14 days of the date of this notice.
Comments may be submitted, including attachments, by any of the following methods:
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For questions, contact the Advisory Board's Designated Federal Official, Sam Shellenberger, Office of Workers' Compensation Programs, at
The Advisory Board on Toxic Substances and Worker Health (the Board) is mandated by Section 3687 of EEOICPA. The Secretary of Labor established the Board under this authority and Executive Order 13699 (June 26, 2015) and in accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. 2. The purpose of the Board is to advise the Secretary with respect to: (1) The Site Exposure Matrices (SEM) of the Department of Labor; (2) medical guidance for claims examiners for claims with the EEOICPA program, with respect to the weighing of the medical evidence of claimants; (3) evidentiary requirements for claims under Part B of EEOICPA related to lung disease; and (4) the work of industrial hygienists and staff physicians and consulting physicians of the Department of Labor and reports of such hygienists and physicians to ensure quality, objectivity, and consistency. Candidates who are ultimately appointed to the Advisory Board will serve as Special Government Employees (SGE). As defined in 19 U.S.C. Section 202, an SGE is an officer or employee who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, for not more than 130 days during any period of 365 consecutive days.
The information received through this comment process, in addition to other relevant sources of information, will assist the Secretary in appointing members to serve on the Advisory Board. Nominees will be appointed based on the demonstrated qualifications, professional experience, and knowledge of issues related to the purpose and scope of the Advisory Board as well as statutory obligations under FACA and Section 3687 of EEOICPA regarding a balanced membership. Note that the nominees will be evaluated to determine their eligibility under both the statutory conflict of interest provision and under general governmental ethics standards upon completion of the public comment period.
The Legal Services Corporation's Board of Directors and Finance Committee will meet telephonically on October 19, 2015. The meetings will commence at 4:30 p.m., EDT, and will continue until the conclusion of the Board's agenda.
John N. Erlenborn Conference Room, Legal Services Corporation Headquarters, 3333 K Street NW., Washington, DC 20007.
Members of the public who are unable to attend in person but wish to listen to the public proceedings may do so by following the telephone call-in directions provided below.
• Call toll-free number: 1-866-451-4981;
• When prompted, enter the following numeric pass code: 5907707348
• When connected to the call, please immediately “MUTE” your telephone.
Members of the public are asked to keep their telephones muted to eliminate background noises. To avoid disrupting the meeting, please refrain from placing the call on hold if doing so will trigger recorded music or other sound. From time to time, the Chair may solicit comments from the public.
Open.
Katherine Ward, Executive Assistant to the Vice President & General Counsel, at (202) 295-1500. Questions may be sent by electronic mail to
LSC complies with the Americans with Disabilities Act and Section 504 of the 1973 Rehabilitation Act. Upon request, meeting notices and materials will be made available in alternative formats to accommodate individuals with disabilities.
Individuals needing other accommodations due to disability in order to attend the meeting in person or telephonically should contact Katherine Ward, at (202) 295-1500 or
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions for what to do with records when agencies no longer need them for current Government business. The instructions authorize agencies to preserve records of continuing value in the National Archives of the United States and to destroy, after a specified period, records lacking administrative, legal, research, or other value. NARA publishes notice in the
NARA must receive requests for copies in writing by November 16, 2015. Once NARA appraises the records, we will send you a copy of the schedule you requested. We usually prepare appraisal memoranda that contain additional information concerning the records covered by a proposed schedule. You may also request these. If you do, we will also provide them once we have completed the appraisal. You have 30 days after we send these requested documents in which to submit comments.
You may request a copy of any records schedule identified in this notice by contacting Records Management Services (ACNR) using one of the following means:
You must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and a mailing address. If you would like an appraisal report, please include that in your request.
Margaret Hawkins, Director, by mail at Records Management Services (ACNR); National Archives and Records Administration; 8601 Adelphi Road, College Park, MD 20740-6001, by phone at 301-837-1799, or by email at
Each year, Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval. These schedules provide for timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media-neutral unless otherwise specified. An item in a schedule is media-neutral when an agency may apply the disposition instructions to records regardless of the medium in which it has created or maintains the records. Items included in schedules submitted to NARA on or after December 17, 2007, are media-neutral unless the item is specifically limited to a specific medium. (See 36 CFR 1225.12(e).)
No agencies may destroy Federal records without the approval of the Archivist of the United States. The Archivist grants this approval only after a thorough consideration of the records' administrative use by the agency of origin, the rights of the Government and of private people directly affected by the Government's activities, and whether or not the records have historical or other value.
In addition to identifying the Federal agencies and any subdivisions requesting disposition authority, this notice lists the organizational unit(s) accumulating the records or lists that the schedule has agency-wide applicability (in the case of schedules that cover records that may be accumulated throughout an agency); provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction); and includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it also includes information about the records. You may request additional information about the disposition process at the addresses above.
1. Department of Agriculture, Farm Service Agency (DAA-0145-2014-0001, 3 items, 3 temporary items). Records related to a crop disaster assistance program, including applications, payment documents, spot check reports, correspondence, and other related documentation.
2. Department of the Army, Agency-wide (DAA-AU-2015-0031, 1 item, 1 temporary item). Master files of an electronic information system that contains aviation maintenance records relating to component repairs, removals, and installations.
3. Department of the Army, Agency-wide (DAA-AU-2015-0032, 3 items, 3 temporary items). Records related to medical research involving laboratory animal subjects, including protocols and care and treatment files.
4. Department of Commerce, Inspector General Office (DAA-0040-2015-0002, 2 items, 1 temporary item). Working papers for Inspector General reports to Congress. Proposed for permanent retention are the Inspector General reports.
5. Department of Defense, National Geospatial-Intelligence Agency (DAA-
6. Department of Health and Human Services, Indian Health Service (DAA-0513-2015-0009, 2 items, 2 temporary items). Case files for reviewing grant research protocols and records of meetings of the Institutional Review Board.
7. Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives (DAA-0436-2015-0001, 1 item, 1 temporary item). Internal communication log files.
8. Department of Justice, Federal Bureau of Investigation (DAA-0065-2015-0004, 1 item, 1 temporary item). Master files of an electronic information system used to track requests for information from facial comparison search requests.
9. Department of Justice, Office of Legislative Affairs (DAA-0060-2013-0010, 2 items, 1 temporary item). Copies of bills, reports, testimony, and other correspondence supporting the Department's communications on proposed legislation. Proposed for permanent retention are final position statements.
10. Department of the Navy, United States Marine Corps (DAA-0127-2015-0007, 3 items, 3 temporary items). Master files of an electronic information system used to track and manage drill requirements for the Marine Corps Reserve.
11. Department of the Treasury, Internal Revenue Service (DAA-0058-2015-0003, 6 items, 6 temporary items). Tax practitioner enrollment records including case files, applications, correspondence, and related materials.
12. Commodity Futures Trading Commission, Division of Enforcement (DAA-0180-2015-0003, 1 item, 1 temporary item). Summary information of closed cases.
13. Executive Office of the President, Office of Management and Budget (DAA-0051-2015-0014, 2 items, 2 temporary items). Records of the Office of Information and Regulatory Affairs including documentation related to routine regulatory review and the Paperwork Reduction Act.
14. Federal Communications Commission, Wireline Competition Bureau (DAA-0173-2015-0004, 1 item, 1 temporary item). Filings of proposed changes in depreciation rates from local exchange carriers.
15. Federal Communications Commission, Wireline Competition Bureau (DAA-0173-2015-0007, 1 item, 1 temporary item). Annual survey data of fixed voice and broadband service rates offered to consumers in urban areas.
16. National Archives and Records Administration, Research Services (N2-208-15-1, 5 items, 5 temporary items). Records of the Office of War Information which are fragmentary, duplicative, or low-level in nature. These records were accessioned to the National Archives but lack sufficient historical value to warrant continued preservation.
17. Peace Corps, Office of Strategic Partnerships (DAA-0490-2014-0002, 3 items, 3 temporary items). Records of the Office of Gifts and Grants Management including donor files, marketing materials, and working files.
18. Peace Corps, Agency-wide (DAA-0490-2015-0004, 1 item, 1 temporary item). Documentation related to personal service contracts for workers at overseas posts.
19. United States Commission on International Religious Freedom, Agency-wide (N1-148-15-2, 20 items, 4 temporary items). Records include general program correspondence; Web site content, design, management, and technical operations files; and routine and uncaptioned photographs. Proposed for permanent retention are files documenting the commission's establishment, organization, directives, charters, and policy documents; records of the chairman, commissioners, and executive director; and other records such as reports to Congress, meeting files, publications, news releases, photographs, historically significant litigation case files, and records related to public meetings.
National Science Foundation.
Submission for OMB review; comment request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. This is the second notice for public comment; the first was published in the
Written comments regarding the information collection and requests for copies of the proposed information collection request should be addressed to Suzanne Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Blvd., Rm. 1265, Arlington, VA 22230, or by email to
Suzanne Plimpton on (703) 292-7556 or send email to
NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it
• This document has been prepared to support the clearance of data collection instruments to be used in the evaluation of the Math and Science Partnership (MSP) program. The goals for the program are to (1) ensure that all K-12 students have access to, are prepared for, and are encouraged to participate and succeed in challenging curricula and advanced mathematics and science courses; (2) enhance the quality, quantity, and diversity of the K-12 mathematics and science teacher workforce; and (3) develop evidence-based outcomes that contribute to our understanding of how students effectively learn the knowledge, skills and ways of thinking inherent in mathematics, computer science, engineering, and/or the natural sciences. The motivational force for realizing these goals is the formation of partnerships between institutions of higher education (IHEs) and K-12 school districts. The role of IHE content faculty is the cornerstone of this intervention. In fact, it is the rigorous involvement of science, mathematics, and engineering faculty—and the expectation that both IHEs and K-12 school systems will be transformed—that distinguishes MSP from other education reform efforts.
• The components of the overall MSP portfolio include active projects whose initial awards were made in prior MSP competitions: (1) Comprehensive Partnerships that implement change in mathematics and/or science educational practices in both higher education institutions and in schools and school districts, resulting in improved student achievement across the K-12 continuum; (2) Targeted Partnerships that focus on improved K-12 student achievement in a narrower grade range or disciplinary focus within mathematics or science; (3) Institute Partnerships: Teacher Institutes for the 21st Century that focus on the development of mathematics and science teachers as school—and district-based intellectual leaders and master teachers; (4) Research, Evaluation and Technical Assistance (RETA) projects that build and enhance large-scale research and evaluation capacity for all MSP awardees and provide them with tools and assistance in the implementation and evaluation of their work; (5) MSP-Start Partnerships are for awardees new to the MSP program, especially from minority-serving institutions, community colleges and primarily undergraduate institutions, to support the necessary data analysis, project design, evaluation and team building activities needed to develop a full MSP Targeted or Institute Partnership; and (6) Phase II Partnerships for prior MSP Partnership awardees focus on specific innovation areas of their work where evidence of significant positive impact is clearly documented and where an investment of additional resources and time would produce more robust findings and results.
The MSP monitoring information system, comprised of eight web-based surveys, collects a common core of data about each component of MSP. The Web application for MSP has been developed with a modular design that incorporates templates and self-contained code modules for rapid development and ease of modification. A downloadable version will also be available for respondents who prefer a paper version that they can mail or fax to the external contractor.
The expected respondents are principal investigators of all Targeted and Institute partnership projects; STEM and education faculty members and administrators who participated in MSP; school districts and IHEs that are partners in an MSP project; and teachers participating in Institute Partnerships.
This figure is based upon the previous 3 years of collecting information under this clearance and anticipated collections. The average annual reporting burden is estimated to be between less than 1 and 50 hours per respondent depending on whether a respondent is a direct participant who is self-reporting or representing a project and reporting on behalf of many project participants. The majority of respondents (60%) are estimated to require fewer than two hours to complete the survey. The burden on the public is negligible because the study is limited to project participants that have received funding from the MSP Program.
Nuclear Regulatory Commission.
Interim staff guidance; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing Interim Staff Guidance (ISG) NSIR/DSP-ISG-03, “Review of Security Exemptions/License Amendment Requests for Decommissioning Nuclear Power Plants,” dated September 28, 2015. This document provides guidance for NRC staff to ensure clear and consistent reviews of a licensee's request for licensing actions and amendments, the use of alternative measures, and requests for exemption from security regulations for nuclear power reactors after permanent cessation of plant operations.
This ISG is effective on November 16, 2015.
Please refer to Docket ID NRC-2014-0255 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Douglas Garner, Office of Nuclear Security and Incident Response, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-287-0229; email:
Currently, the power reactor physical security requirements in part 73 of title 10 of the
Licensees have historically used the NRC's existing license amendment and exemption processes to propose tailored security requirements for site-specific conditions at a decommissioning facility. Licensees must follow the process outlined in 10 CFR 73.5 when applying for exemptions from security regulations.
This ISG provides guidance to NRC staff in processing requests for license amendments and exemptions from the security requirements for nuclear power reactors that are undergoing decommissioning. Use of this ISG would result in consistent and timely reviews of requests for exemption from certain security regulations.
A draft ISG was published for public comment in the
This ISG was revised from the draft that appeared in the
This ISG, NSIR/DSP-ISG-03 is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.
The NRC is issuing interim guidance for the NRC staff regarding its review of requests from licensees of decommissioning nuclear power plants for license amendments, alternative measures, and exemptions from specific security requirements in 10 CFR part 73. Issuance of the ISG does not constitute backfitting as defined in 10 CFR 50.109 (the Backfit Rule) and is not otherwise inconsistent with the issue finality provisions in 10 CFR part 52. The NRC's position is based upon the following considerations.
1.
The ISG provides interim guidance to the staff on how to review certain requests for exemption, alternative measures, or license amendments. Changes in internal staff guidance are not matters for which applicants or licensees are protected under 10 CFR 50.109 or issue finality provisions in 10 CFR part 52.
2.
The staff does not intend to impose or apply the positions described in the ISG to existing (already issued) licenses (
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. This is because neither the Backfit Rule nor the issue finality provisions under 10 CFR part 52—with certain exclusions discussed below—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 (
If, in the future, the staff seeks to impose a position in the ISG in a manner that does not provide issue finality as described in the applicable issue finality provision, then the staff must address the criteria for avoiding issue finality as described in the applicable issue finality provision.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Contract 145 negotiated service agreement to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-1 and CP2016-1 to consider the Request pertaining to the proposed Priority Mail Contract 145 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than October 15, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-1 and CP2016-1 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than October 15, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Contract 147 negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-4 and CP2016-4 to consider the Request pertaining to the proposed Priority Mail Contract 147 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than October 15, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints James F. Callow to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-4 and CP2016-4 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, James F. Callow is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than October 15, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Express Contract 28 negotiated service agreement to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-2 and CP2016-2 to consider the Request pertaining to the proposed Priority Mail Express Contract 28 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than October 15, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Curtis E. Kidd to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-2 and CP2016-2 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Curtis E. Kidd is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than October 15, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Contract 146 negotiated service agreement to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-3 and CP2016-3 to
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than October 15, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Cassie D'Souza to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-3 and CP2016-3 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Cassie D'Souza is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than October 15, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 7, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 7, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 7, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 7, 2015, it filed with the Postal Regulatory Commission a
On July 6, 2015, ICE Clear Credit LLC (“ICC”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
The purpose of the proposed rule change is to adopt rules that will provide the basis for ICC to clear additional SWES Contracts. ICC currently clears seven SWES Contracts: The Republic of Ireland, the Italian Republic, the Portuguese Republic, the Kingdom of Spain, the Kingdom of Belgium, the Republic of Austria, and the Kingdom of the Netherlands. ICC proposes to revise subchapter 26I (Standard Western European Sovereign (“SWES”) Single Name) of its Rules to provide for the clearance of the additional SWES Contracts by modifying Rule 26I-102 to include the Federal Republic of Germany, the French Republic, and the United Kingdom of Great Britain and Northern Ireland in the list of specific Eligible SWES Reference Entities to be cleared by ICC. ICC plans to offer these additional SWES Contracts on the 2003 and 2014 ISDA Credit Derivatives Definitions. ICC stated in its filing that these additional SWES Contracts have terms consistent with the other SWES Contracts approved for clearing at ICC and governed by subchapter 26I of the ICC Rules, namely the Republic of Ireland, the Italian Republic, the Portuguese Republic, the Kingdom of Spain, the Kingdom of Belgium, the Republic of Austria, and the Kingdom of the Netherlands.
In addition, ICC stated in its filing that the proposed change is dependent on the approval and implementation of the proposed rule change in SR-ICC-2015-009 and therefore, the text of the proposed rule change in Exhibit 5 should be read in conjunction with the proposed rule change in SR-ICC-2015-009.
Section 19(b)(2)(C) of the Act
The Commission finds that the proposed rule change is consistent with the requirements of section 17A of the Act
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of section 17A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1)
The proposed rule change consists of amendments to NSCC's Rules & Procedures (“Rules”) in order to permit trades in fixed income securities (corporate and municipal bonds, and unit investment trusts, collectively “CMU”) that are scheduled to settle on the day after trade date (“T+1”) to settle either through its Continuous Net Settlement (“CNS”) system, as described below, or through its Balance Order Accounting Operation on a trade-for-trade basis, as described below, when eligible for settlement through these services.
In its filing with the Commission, NSCC 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. NSCC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
CMU transactions that are effected in the over-the-counter markets and submitted to NSCC directly by Members on a bilateral basis are processed through NSCC's Real Time Trade Matching (“RTTM”) platform. Within RTTM, the buy and sell sides of a transaction are validated and matched, resulting in a compared trade that is reported to Members. This process is called “trade comparison.”
Today, with the exception of CMU trades that are submitted to NSCC to settle on a timeframe that is shorter than T+2,
Today, all CMU trades submitted to NSCC through RTTM that are scheduled to settle on T+1 are automatically processed as comparison-only in RTTM, and must settle away from NSCC. T+1 CMU trades are processed this way because, historically, NSCC's systems were not able to adequately risk manage CMU trades that settled on this shortened timeframe. NSCC is proposing to amend its Rules so that, following trade comparison through RTTM, T+1 CMU trades would be processed into UTC, where they would be checked for eligibility to settle through either CNS or the Balance Order Accounting Operation on a trade-for-trade basis. If eligible, these CMU trades would settle through the settlement service for which they are eligible,
Pursuant to Addendum K of the Rules, NSCC guarantees the completion of CNS settling trades that have reached the later of midnight of T+1 or midnight of the day they are reported to Members, and guarantees the completion of shortened process trades, such as same-day and next-day settling trades, upon comparison or trade recording processing.
Pending Commission approval of this proposed rule change, Members would be advised of the implementation date
Section 17A(b)(3)(F) of the Act requires, in part, that NSCC's Rules be designed to promote the prompt and accurate clearance and settlement of securities transactions and to protect investors and the public interest.
NSCC does not believe that the proposed rule changes would have any impact on competition because the proposal would apply equally to all NSCC Members that submit CMU trades through NSCC's RTTM service.
NSCC has not received any written comments relating to this proposal. NSCC will notify the Commission of any written comments received by NSCC.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such 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.
Securities and Exchange Commission (“Commission”).
Notice of application for an exemptive order under section 206A of the Investment Advisers Act of 1940 (the “Advisers Act”) and rule 206(4)-5(e).
Fidelity Management & Research Company (“FMR”) and FMR Co., Inc. (“FMRC” and, together with FMR, “Applicants”).
Exemption requested under section 206A of the Advisers Act and rule 206(4)-5(e) from rule 206(4)-5(a)(1) under the Advisers Act.
Applicants request that the Commission issue an order under section 206A of the Advisers Act and rule 206(4)-5(e) exempting Applicants from rule 206(4)-5(a)(1) under the Advisers Act to permit Applicants to receive compensation from certain government entities for investment advisory services provided to the government entities within the two-year period following a contribution by a covered associate of the Applicants to an official of the government entities.
The application was filed on August 28, 2014, an amended and restated application was filed on May 11, 2015, and a second amended and restated application was filed on September 24, 2015.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving Applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on November 2, 2015, and should be accompanied by proof of
Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Fidelity Management & Research Company and FMR Co., Inc., 245 Summer Street, Boston, MA 02210.
Kyle R. Ahlgren, Senior Counsel, or Holly Hunter-Ceci, Branch Chief, at (202) 551-6825 (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 either at
1. Applicants are affiliated asset management companies registered with the Commission as investment advisers under the Investment Advisers Act of 1940 (the “Act”). Applicants manage mutual funds offered as investment options in participant-directed plans sponsored by two Massachusetts government entities (“Client 1” and “Client 2”, respectively, or collectively, the “Clients”). Client 1 initially entered into its agreement with FMR in 2007 and Client 2 initially entered into its agreement with FMR and FMRC in 1994.
2. Thomas Hense (the “Contributor”) is a Group Chief Investment Officer of Applicants and a resident of Massachusetts. He assumed his current role in 2008, and is a “covered associate” of the Applicants, as such term is defined by rule 206(4)-5(f)(2)(i) due to his role as a supervisor of one or more employees who may solicit investment advisory business from government entities on behalf of each Client. The Contributor has very limited direct interactions with clients regarding their investments. The Contributor's primary role is to supervise a team of investment professionals who manage client funds and accounts. To the best of the Contributor's knowledge, the Contributor attended only two meetings with any Massachusetts government entities in the past two years, and neither of those meetings involved the solicitation of business or either of the Clients.
3. The recipient of the Contribution was Jeffrey McCormick (the “Recipient”), an independent candidate for Massachusetts Governor. The investment providers and options of Client 1 (including the mutual funds to be offered as investment options to employees) are directly selected by a board that includes a majority of gubernatorial appointees. The investment decisions of Client 2 (including the selection of mutual funds to be offered as investment options to employees) are directly made by the Treasurer of Client 2 under oversight of the President of Client 2. The board of Client 2, which includes a majority of gubernatorial appointees, has authority to appoint the Treasurer and President of Client 2. As a result of these appointment powers with respect to the Clients, the Governor of Massachusetts and any candidate for that office (including the Recipient) is an “official” as that term is defined by rule 206(4)-5(f)(6)(ii).
4. On December 21, 2013 (the “Contribution Date”), the Contributor made a contribution in the amount of $500 to the Recipient's campaign. Because the Contributor was a “covered associate” of Applicants, the Clients were “government entities” and the Recipient was an “official” as those terms are defined in rule 206(4)-5(f), the Contribution triggered Rule 206(4)-5's prohibition against receiving compensation for advisory services provided to the Clients during the two years following the Contribution Date. At the time of the Contribution, Applicants were not discussing or anticipating any new arrangements with the Clients. No material changes in the relationship between any of the funds managed by Applicants and any participant-directed plans sponsored by the Clients or any other material changes in relevant investment patterns occurred after the Contribution.
5. The Contributor lives and works in Massachusetts and has made prior donations to Massachusetts candidates for federal offices. The Contribution was consistent in size and motivation with those prior contributions. The Contributor decided to make the Contribution upon receiving an email solicitation form the Recipient's campaign. The Contributor's decision was based entirely on the personal friendship he maintained with the Recipient and the fact that he supported the Recipient in his efforts to run for Governor of Massachusetts. The reason for the Contribution was wholly unrelated to the investment advisory services provided to the Clients by the Applicants. The Contributor did not discuss the Contribution with the Recipient or with any of his staff, or with the Applicants or their other covered associates.
6. Applicants implemented pay-to-play policies and procedures (the “Policies”) on March 8, 2011. In accordance with the Policies, the Contributor was required to pre-clear all contributions to federal, state or local candidates or organizations. The Contributor annually received training on the Policies. On January 6, 2014, the Contributor promptly self-reported the Contribution to the Applicants' Compliance Department upon completing his certification questionnaire in accordance with the Policies and realizing that he had failed to pre-clear the Contribution. On January 7, 2014, the Contributor requested a full refund of the Contribution from the Recipient's campaign. The Contributor received a full refund on January 14, 2014.
7. Applicants established an escrow account for the Clients and are currently segregating all compensation for advisory services paid to the Applicants attributable to the Clients' assets under management of the Applicants for the two-year period beginning on the Contribution Date.
8. After learning of the Contribution, the Applicants took steps to limit the Contributor's contact with any representative of a Client for the duration of the two-year period beginning on the Contribution Date, including informing the Contributor that he could have no contact with any representative of a Client other than making substantive presentations to the Client's representatives and consultants about the investment strategies that the Applicants manage for the Clients.
1. Rule 206(4)-5(a)(1) under the Advisers Act prohibits a registered investment adviser from providing investment advisory services for compensation to a government entity within two years after a contribution to an official of the government entity is made by the investment adviser or any covered associate of the investment adviser. Each Client is a “government entity,” as defined in rule 206(4)-5(f)(5), the Contributor is a “covered associate” as defined in rule 206(4)-5(f)(2), and the Official is an “official” as defined in rule 206(4)-5(f)(6).
2. Section 206A of the Advisers Act grants the Commission the authority to
3. Rule 206(4)-5(e) provides that the Commission may exempt an investment adviser from the prohibition under rule 206(4)-5(a)(1) upon consideration of the factors listed below, among others:
(1) Whether the 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 Advisers Act;
(2) Whether the investment adviser: (i) Before the contribution resulting in the prohibition was made, adopted and implemented policies and procedures reasonably designed to prevent violations of the rule; and (ii) prior to or at the time the contribution which resulted in such prohibition was made, had no actual knowledge of the contribution; and (iii) after learning of the contribution: (A) Has taken all available steps to cause the contributor involved in making the contribution which resulted in such prohibition to obtain a return of the contribution; and (B) has taken such other remedial or preventive measures as may be appropriate under the circumstances;
(3) Whether, at the time of the contribution, the contributor was a covered associate or otherwise an employee of the investment adviser, or was seeking such employment;
(4) The timing and amount of the contribution which resulted in the prohibition;
(5) The nature of the election (
(6) The contributor's apparent intent or motive in making the contribution which resulted in the prohibition, as evidenced by the facts and circumstances surrounding such contribution.
4. Applicants request an order pursuant to section 206A and rule 206(4)-5(e), exempting them from the two-year prohibition on compensation imposed by rule 206(4)-5(a)(1) with respect to investment advisory services provided to the Clients within the two-year period following the Contribution (the “Order”).
5. Applicants submit that the exemption is necessary and 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.
6. Applicants represent that the Clients determined to invest with Applicants and established those advisory relationships on an arm's length basis free from any improper influence as a result of the Contribution, and there was no connection between the Contribution and any past or potential business between the Clients and the Applicants.
7. Applicants note that causing the Applicants to provide advisory services without compensation for a two-year period would result in a financial loss to the Applicants of approximately $2.7 million—an amount that is 5,400 times the amount of the Contribution. Applicants contend that such a result is greatly disproportionate to the violation and is not consistent with the protection of investors or a purpose fairly intended by the policies and provisions of the Act.
8. Applicants note that they had adopted and implemented the Policies at the time of the Contribution and had the Policies in place at all times since the adoption of rule 205(4)-5. Applicants represent that they perform compliance testing and they have a rigorous and robust screening of prospective hires and internal employees being considered for covered associate positions.
9. Applicants represent that at no time did any employees or covered associates of the Applicants, or any executive or employee of the Applicants' affiliates, other than the Contributor, know of the Contribution prior to the Contributor's self-report to Applicants' compliance personnel.
10. Applicants represent that the Applicants and the Contributor took all available steps to promptly obtain a return of the Contribution after the Contributor's self-report to Applicants' compliance personnel, and the full amount of the Contribution was fully refunded within one week of the refund request. Applicants established an escrow account for all compensation for advisory services attributable to the Clients' assets under management of the Applicants for the two-year period beginning on the Contribution Date.
Applicants agree that the Order will be subject to the following conditions:
1. The Contributor will be prohibited from soliciting investments from any “government entity” client or prospective “government entity” client for which the Recipient is an “official” as defined in rule 206(4)-5(f)(6) until December 21, 2015 (the “Restricted Period”).
2. Notwithstanding Condition 1, the Contributor will be (i) permitted to respond to inquiries from, and make presentations to, any government entity client described in Condition 1 regarding accounts already managed by the Applicants as of December 21, 2013 and (ii) permitted to respond to inquiries from any government entity client regarding an account established with the Applicants by such government entity client after December 21, 2013. The Applicants will maintain a log of such interactions, which will be maintained and presented in an easily accessible place for a period of not less than five years, the first two years in an appropriate office of the Applicants, and will be available for inspection by the staff of the Commission.
3. The Contributor will receive written notification of these conditions and will provide a quarterly certification of compliance through the Restricted Period. Copies of the certifications will be maintained and preserved by the Applicants in an easily accessible place for a period of not less than five years, the first two years in an appropriate office of the Applicants and will be available for inspection by the Staff of the Commission.
4. The Applicants will conduct testing reasonably designed to prevent violations of the conditions of the Order and maintain records regarding such testing, which will be maintained and preserved in an easily accessible place for a period of not less than five years, the first two years in an appropriate office of the Applicants, and will be available for inspection by staff of the Commission.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the
The Exchange seeks to amend its rules related to complex orders. The text of the proposed rule change is provided below.
(a) Definition: No change.
(b) Types of Complex Orders: No change.
(c) Complex Order Book
No change.
(d) Process for Complex Order RFR Auction: Prior to routing to the COB or once on PAR, eligible complex orders may be subject to an automated request for responses (“RFR”) auction process.
(i) For purposes of paragraph (d):
(1) “COA” is the automated complex order RFR auction process.
(2) A “COA-eligible order” means a complex order that, as determined by the Exchange on a class-by-class basis, is eligible for a COA considering the order's marketability (defined as a number of ticks away from the current market), size, complex order type (as defined in paragraphs (a) and (b) above) and complex order origin types (as defined in subparagraph (c)(i) above). Complex orders processed through a COA may be executed without consideration to prices of the same complex orders that might be available on other exchanges.
(ii) Initiation of a COA: On receipt of (1) a COA-eligible order with two legs and request from the Trading Permit Holder representing the order or the PAR operator handling the order, as applicable, that it be COA'd or (2) a complex order with three or more legs
(iii)-(ix) No change.
The text of the proposed rule change is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On September 4, 2014, the Securities and Exchange Commission (the “Commission”) approved a proposal to amend Exchange rules related to complex orders (“SR-CBOE-2014-017”).
Prior to implementing SR-CBOE-2014-017, it was discovered that the filing did not reference certain System requirements that must be met before a COA would be initiated (
On receipt of (1) a COA-eligible order with two legs and request from the Trading Permit Holder representing the order or the PAR operator handling the order, as applicable, that it be COA'd or (2) a complex order with three or more legs that (A) meets the class, marketability, size, and complex order type parameters of subparagraph (d)(i)(2) or (B) is designated as immediate or cancel and meets the class, marketability, and size parameters of subparagraph (d)(i)(2), in both cases regardless of the order's routing parameters or handling instructions (except for orders routed for manual handling), the System will send an RFR message to all Trading Permit Holders who have elected to receive RFR messages. Notwithstanding clause (2) of this subparagraph (ii), the System will reject back to a Trading Permit Holder any complex order with three or more legs that includes a request pursuant to Interpretation and Policy .04 that the order not COA. Any complex order described in subparagraph (d)(ii)(2) on PAR will COA even if the PAR operator requests that the order not COA. The RFR message will identify the component series, the size and side of the market of the COA-eligible order and any contingencies, if applicable.
The Exchange notes that complex orders that are not COA-eligible are either routed to the Public Automatic Routing System (“PAR”) (
As noted in the rule text above, the Exchange is proposing to hardcode the complex order type parameter as it relates to complex orders with three or more legs that are entered as immediate or cancel (“IOC”). Currently, the Exchange does not COA complex orders that are entered as IOC. The effect of this proposed rule will be that complex orders with three or more legs that are designated as IOC and meet the class, marketability, and size parameters will always be eligible to COA. Complex orders with three or more legs that are entered as IOC are the orders that primarily create the Market-Maker risk described in SR-CBOE-2014-017.
Additionally, the proposed rule does not affect the outcome of SR-CBOE-2014-017 as it relates to complex orders with three or more legs that are entered as IOC because neither SR-CBOE-2014-017 nor this proposal allow the Exchange to limit access to COA for orders with three or more legs based on the IOC designation. In other words, a market participant entering a complex order with three or more legs designated as IOC would expect (based on SR-CBOE-2014-017 providing that all complex orders with three or more legs shall COA) the order to COA. This proposed rule does not change that expectation. The only difference is that this proposed rule specifies that the complex order with three or more legs that is marked IOC must also meet the class, marketability, and size parameters in order to COA.
Further, the proposed rule does not materially affect the outcome or purpose of SR-CBOE-2014-017; rather, the proposed rule seeks to clarify that a complex order must meet the eligibility requirements of Rule 6.53C(d)(i)(2) prior to the Exchange initiating a COA. The Exchange still believes the proposed rule will allow Market-Makers to better manage their risk in their appointments and that the reduced risk will encourage Market-Makers to quote larger size, which will increase liquidity and enhance competition in those classes. The Exchange also notes that regardless of marketability requirements of paragraph (d)(i)(2), an order that is not
The Exchange will announce the implementation date of the proposed rule change in a Regulatory Circular to be published no later than 90 days following the effective date of this filing. The implementation date will be no later than 180 days following the effective date of this filing.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes the proposed rule change serves to clarify SR-CBOE-2014-017 and does not materially affect the outcome of SR-CBOE-2014-017. As noted above, it was not the intent of SR-CBOE-2014-017 to COA all complex orders irrespective of the eligibility parameters of Rule 6.53C(d)(i)(2); rather, the filing was intended to reflect the System's design, which filters complex orders through the COA eligibility requirements of paragraph (d)(i)(2) prior to initiating a COA. Therefore, under the proposed rule, complex orders with three or more legs will need to meet the class, marketability, size, and order type parameters of subparagraph (d)(i)(2) in order to COA, except the Exchange, by rule, will not be able to limit COA-eligibility based on a complex order with three or more legs being entered as IOC. Additionally, complex Orders with three or more legs will filter through the origin type parameter of subparagraph (d)(i)(2); however, for complex orders with three or more legs the Exchange, by rule, will not have the flexibility to limit COA-eligibility to certain origin types. This is consistent with SR-CBOE-2014-017 because SR-CBOE-2014-017 also did not provide the Exchange the flexibility to limit COA-eligibility for complex orders with three or more legs to certain origin types.
CBOE does not believe that the proposed rule change will impose any burden on intramarket or intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the rule change does not materially affect the outcome or purpose of SR-CBOE-2014-017. SR-CBOE-2014-017 was designed to reduce risk to Market-Makers that are quoting in the regular market, and this proposed rule change will not affect that outcome. In addition, Rule 6.53C(d)(ii), as amended by SR-CBOE-2014-017, clearly provides that the origin type of a complex order with three or more legs has no bearing on whether the complex order will COA, and this proposed rule does not modify how different origin types will be treated for purposes of COA. This proposed rule also does not affect the outcome of SR-CBOE-2014-017 as it relates to complex orders with three or more legs that are entered as IOC because neither SR-CBOE-2014-017 nor this proposal allow the Exchange to limit access to COA for orders with three or more legs based on the IOC designation. In other words, a market participant entering a complex order with three or more legs designated as IOC would expect (based on SR-CBOE-2014-017 providing that all complex orders with three or more legs shall COA) the order to COA. This proposed rule does not change that expectation. The only difference is that this proposed rule specifies that the complex order with three or more legs that is marked IOC must also meet the class, marketability, and size parameters in order to COA. This proposed rule simply seeks to apply the class, marketability, size, and complex order type parameters of Rule 6.53C(d)(i)(2) to complex orders with three or more legs.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, 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
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”)
This proposed rule change by OCC codifies the requirement for clearing members to participate in operational testing, including testing of OCC's business continuity and disaster recovery plans (“BCP Testing”).
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
This proposed rule change would codify OCC's current requirement for clearing members to participate in operational testing, including testing of OCC's BCP Testing. Article V of OCC's By-Laws sets forth OCC's initial membership requirements. Pursuant to Interpretation and Policy .02(b) of Article V, Section 1 of OCC's By-Laws, an applicant for clearing membership must demonstrate that it is operationally capable of: (i) Processing expected volumes and values of transactions cleared by the clearing member within required time frames, including at peak times and on peak days; (ii) fulfilling collateral, payment, and delivery obligations as required by OCC; and (iii) participating in applicable default management activities, as may be required by OCC and in accordance with applicable laws and regulations.
Once a firm becomes a member of OCC, Chapter II of OCC's Rules sets forth additional operational requirements. In particular, OCC Rule 214(d) requires clearing members to maintain their operational capabilities as a continuing obligation of membership.
Proposed Rule 218 would increase transparency regarding and ensure OCC's practice with respect to BCP Testing is consistent with Reg. SCI by articulating OCC's right to: (i) Designate clearing members required to participate in BCP Testing; (ii) determine the scope of such BCP Testing; and (iii) require clearing members to comply with the subject BCP Testing within specified timeframes. In connection therewith, OCC is planning to refine the criteria that it currently uses to designate firms for BCP Testing. For example, while OCC will continue to rely on volume thresholds to mandate participation in annual BCP Testing, OCC will also take into account additional factors when designating firms for BCP Testing, including but not limited to: (i) The nature of interconnectedness based on a firm's approved business activities; (ii) the existence of significant operational issues during the past twelve months, and (iii) past performance with respect to BCP Testing. Clearing members will be informed of the specific standards that will be used by OCC, along with
OCC believes the proposed rule would have no impact on OCC clearing members relative to what clearing members are currently required to do. As described above, OCC already requires certain clearing members to participate in BCP Testing on an annual basis. The proposed rule codifies OCC's practice and provides further clarity and transparency to OCC clearing members to ensure consistency with Reg. SCI.
OCC believes that the proposed rule change is consistent with applicable provisions of the Securities and Exchange Act (“Act”) and regulations promulgated thereunder. OCC believes providing further transparency regarding the requirement for clearing members to take part in its BCP Testing annually will help avoid ambiguity regarding such requirements, and will further ensure that business continuity and disaster recovery plans between OCC and its clearing members function as intended during an emergency. As such, OCC believes the proposed rule change would facilitate the prompt and accurate clearance and settlement of securities transactions and protect investors and the public interest consistent with Section 17A(b)(3)(F) of the Act,
Codifying OCC's current practice of requiring clearing members to engage in BCP Testing annually is also consistent with Rule 17Ad-22(d)(1), requiring that OCC provide for a well-founded, transparent, and enforceable legal framework for each aspect of its activities in all relevant jurisdictions, as it makes this obligation transparent.
OCC does not believe that the proposed rule change would impose any burden on competition.
For the foregoing reasons, OCC believes that the proposed rule change is in the public interest, would be consistent with the requirements of the Act applicable to clearing agencies, and would not impose a burden on competition.
Written comments on the proposed rule change were not and are not intended to be solicited with respect to the proposed rule change and none have been received.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors and the public interest;
(ii) Impose an 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, it has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder.
At any time within 60 days of the filing of this rule change, the Commission summarily may temporarily suspend the change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commissions Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-OCC-2015-015 and should be submitted on or before November 5, 2015.
For the Commission by the Division of Trading and Markets, pursuant to delegated Authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services (“Fee Schedule”). The Exchange proposes to implement the change on October 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 Exchange proposes to amend the Routable Retail Order Tier (“Routable Retail”) applicable to Tape C Securities on the Fee Schedule. Currently, the Routable Retail pricing tier provides ETP Holders, including Market Makers, that (1) provide liquidity of 0.20% or more of the US consolidated average daily volume (“CADV”) during a billing month across all Tapes, (2) maintain a ratio during a billing month across all Tapes of executed provide liquidity that is eligible to route away from the Exchange (“Routable Orders”)
The Exchange proposes to lower the per share fee for Routable and non-Routable Orders in Tape C Securities that take liquidity from the Book to $0.0029 per share.
The proposed changes are not otherwise intended to address any other issues, and the Exchange is not aware of any problems that ETP Holders would have in complying with the proposed changes.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes the proposed change to the Routable Retail Order Tier is reasonable and equitably allocated because it would apply to all Routable and non-Routable Orders sent by ETP Holders and Market Makers in Tape C Securities that take liquidity from the Book and the proposed lower fee would serve to incentivize these market participants to direct order flow to the Exchange rather than to a competing market. The Exchange believes that it is equitable and not unfairly discriminatory to charge a lower fee to ETP Holders, including Market Makers, because these market participants make significant contributions to market quality by providing higher volumes of liquidity, which benefits all market participants. The Exchange further believes that the proposed fee change is equitable and not unfairly discriminatory because the lowered fees would apply to all similarly situated ETP Holders, including Market Makers, equally.
Additionally, the Exchange, in an earlier filing, proposed to lower the per share fee for orders in Tape C Securities that take liquidity from the Book in a number of pricing tiers and is extending that same fee to the Routable Retail Order Tier which it intended to do in the earlier filing.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition. For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
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 (the “Act”),
The Exchange is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend the Fee Schedule to make changes to Section I.A., Exchange Fees for Non-Auction Transactions and Section II.B., Liquidity Fees and Credits for Facilitation and Solicitation transactions on the BOX Market LLC (“BOX”) options facility. While changes to the fee schedule pursuant to this proposal will be effective upon filing, the changes will become operative on October 1, 2015. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at
In its filing with the Commission, the Exchange included statements
The Exchange proposes to make changes to Section I.A., Exchange Fees for Non-Auction Transactions and Section II.B., Liquidity Fees and Credits for Facilitation and Solicitation transactions.
First, the Exchange proposes to raise certain fees for non-auction transactions in Non-Penny Pilot Classes which take liquidity from Public Customers. For all non-auction transactions, fees and credits are assessed depending upon three factors: (i) The account type of the Participant submitting the order; (ii) whether the Participant is a liquidity provider or liquidity taker; and (iii) the account type of the contra party. Non-Auction Transactions in Penny Pilot Classes are assessed different fees or credits than Non-Auction Transactions in Non-Penny Pilot Classes. The Exchange proposes to raise the fee assessed for Professional Customers and Broker Dealers taking liquidity from a Public Customer in a Non-Penny Pilot Class to $1.07 from $0.99. For Market Makers taking liquidity from a Public Customer in a Non-Penny Pilot Class, the Exchange proposes to raise the fee assessed to $1.03 from $0.90.
The fees for Non-Auction Transactions will be as follows:
The Exchange then proposes to amend the structure of the Tiered Volume Rebates for Public Customers in Non-Auction Transactions (Section I.A.1.) and distinguish between whether the Public Customer is a liquidity provider or liquidity taker within the transaction. While a majority of the rebate levels will remain unchanged, at the highest volume tier (65,001 contracts or greater) in Non-Penny Pilot Classes the Exchange proposes to award transactions where the Public Customer is a liquidity maker a per contract rebate of $0.90. Transactions where the Public Customer is a liquidity taker will continue to be awarded a $0.70 rebate.
The new per contract rebates for Public Customers in Non-Auction Transactions as set forth in Section I.A.1. of the BOX Fee Schedule will now be as follows:
The Exchange then proposes to amend Section II.B of the BOX Fee Schedule, liquidity fees and credits for Facilitation and Solicitation Transactions. Specifically, the Exchange proposes to establish higher liquidity credits for both Facilitation and Solicitation transactions in Penny Pilot and Non-Penny Pilot Classes. The Exchange proposes to raise the credit for removing liquidity in Facilitation and Solicitation transactions to $1.00 from $0.95 in Non-Penny Pilot Classes, and to $0.45 from $0.40 in Penny Pilot Classes.
The liquidity fees and credits for Facilitation and Solicitation transactions will be as follows:
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act, in general, and Section 6(b)(4) and 6(b)(5)of the Act,
The Exchange believes it is equitable, reasonable and not unfairly discriminatory to assess fees according to the account type of the Participant originating the order and the contra party. This fee structure has been in place on the Exchange for the past year and the Exchange is simply adjusting certain fees within the structure. The result of this structure is that a Participant does not know the fee it will be charged when submitting certain orders. Therefore, the Participant must recognize that it could be charged the highest applicable fee on the Exchange's schedule, which may, instead, be lowered or changed to a credit depending upon how the order interacts.
The Exchange believes raising the non-auction transaction fees for Professionals, Broker Dealers and Market Makers when taking liquidity from a Public Customer in a Non-Penny Pilot Class is reasonable, equitable and not unfairly discriminatory. The Exchange believes that participants taking liquidity from the BOX Book are willing to pay a higher fee for liquidity discovery in these less liquid names. Further, the Exchange believes the fees proposed are reasonable and in line with similar fees at a competing venue.
Raising these fees is intended to partially offset the higher Public Customer liquidity maker rebate also proposed within this filing. The Exchange believes it is reasonable, equitable and not unfairly discriminatory to give Public Customers a rebate and, accordingly, charge non-Public Customers a higher fee when their orders execute against a Public Customer. The securities markets generally, and BOX in particular, have historically aimed to improve markets for investors and develop various features within the market structure for public customer benefit. Similar to the payment for order flow and other pricing models that have been adopted by the Exchange and other exchanges to attract Public Customer order flow, the Exchange increases fees to non-Public Customers in order to provide incentives for Public Customers. The Exchange believes that providing additional incentives for Public Customers to make liquidity is reasonable and, ultimately, will benefit all Participants trading on the Exchange by attracting Public Customer order flow.
The Exchange believes that charging Professional Customers and Broker Dealers $1.07 for taking liquidity against Public Customers in Non-Penny Pilot Classes is reasonable and comparable to similar fees at competing venues.
The Exchange believes that charging Market Makers $1.03 for taking liquidity against Public Customers in Non-Penny Pilot Classes is reasonable and comparable to similar fees at competing venues.
The Exchange believes amending the structure of the Tiered Volume Rebates for Public Customers in Non-Auction Transactions (Section I.A.1.) to distinguish whether the Public Customer is a liquidity provider or liquidity taker is reasonable, equitable and not unfairly discriminatory. The volume thresholds and applicable rebates are meant to incentivize Public Customers to direct order flow to the Exchange to obtain the benefit of the rebate, which will in turn benefit all market participants by increasing liquidity on the Exchange. Other exchanges employ similar incentive
The proposed structure is intended to attract Public Customer order flow to the Exchange by offering these Participants incentives to submit their Non-Auction orders to the Exchange. The practice of providing additional incentives to increase order flow is, and has been, a common practice in the options markets.
The Exchange believes awarding a $0.90 rebate to those Public Customers who make liquidity in Non-Penny Pilot classes and achieve the highest volume tier during a month (65,001 contracts or greater) is reasonable, equitable and not unfairly discriminatory. As stated above, other exchanges employ similar incentive programs,
The Exchange continues to believe it is equitable and not unfairly discriminatory to offer these rebate structures to Public Customers in Non-Auction transactions. The practice of incentivizing increased Public Customer order flow is common in the options markets. The Exchange believes the proposed changes to the structure and per contract rebate for Public Customers who achieve the highest volume tier is equitable and not unfairly discriminatory as all Public Customers will benefit from the opportunity to obtain a greater rebate.
The Exchange believes it is reasonable to offer a higher per contract rebate for transactions in Non-Penny Pilot Classes compared to Penny Pilot Classes because Non-Penny Pilot Classes are typically less actively traded and have wider spreads. The Exchange believes that offering a higher rebate will incentivize Public Customer order flow in Non-Penny Pilot issues on the Exchange, ultimately benefitting all Participants trading on BOX.
BOX believes that the changes to Facilitation and Solicitation transaction liquidity credits are equitable and not unfairly discriminatory in that they apply to all categories of participants and across all account types. The Exchange notes that liquidity fees and credits on BOX are meant to offset one another in any particular transaction. The liquidity fees and credits do not directly result in revenue to BOX, but will simply allow BOX to provide the credit incentive to Participants to attract order flow. Raising the credits for removing liquidity will result in BOX crediting a Participant a higher amount for removing liquidity than it received from collecting the corresponding liquidity fee. The Exchange believes it is appropriate to provide incentives to market participants to use the Facilitation and Solicitation auction mechanisms, because doing so may result in greater liquidity on BOX which would benefit all market participants.
The Exchange also believes the liquidity fees and credits are reasonable and competitive when compared to similar fees at competing venues.
The Exchange believes that the proposed difference between what an Initiator will pay compared to what a Responder will pay is reasonable, equitable and not unfairly discriminatory. Specifically, the difference is in line with the credits and fees at the ISE.
In conclusion, the Exchange believes the proposed Facilitation and Solicitation credits are reasonable when compared to fees and credits for similar mechanisms at the ISE. While it is difficult to exactly equate these two fee structures, most Responders on ISE (Market Makers interacting with Customer Orders) will pay $0.47 (Penny Pilot Classes) and $1.17 (Non-Penny Pilot Classes) while most Responders on
Finally, the Exchange believes it is reasonable to establish different fees and credits for Facilitation and Solicitation transactions in Penny Pilot Classes compared to transactions in Non-Penny Pilot Classes. The Exchange makes this distinction throughout the BOX Fee Schedule, including the liquidity fees and credits for PIP and COPIP Transactions. The Exchange believes it is reasonable to establish higher fees and credits for Non-Penny Pilot Classes because these Classes are typically less actively traded and have wider spreads. The Exchange believes that offering a higher rebate will incentivize order flow in Non-Penny Pilot issues on the Exchange, ultimately benefitting all Participants trading on BOX.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes that the proposed adjustments to fees and rebates in the Non-Auction Transactions fee structure will not impose a burden on competition among various Exchange Participants. The Exchange believes that a fee structure that is determined according to whether the order removes or adds liquidity, the account type of the Participant submitting the order, and the contra party will result in Participants being charged appropriately for these transactions is designed to enhance competition in Non-Auction transactions on BOX. Submitting an order is entirely voluntary and Participants can determine which type of order they wish to submit, if any, to the Exchange. Further, the Exchange believes that this proposal will enhance competition between exchanges because it is designed to allow the Exchange to better compete with other exchanges for order flow.
The Exchange does not believe that the proposed liquidity credits will burden competition by creating such a disparity between the fees an Initiating Participant in the Facilitation and Solicitation auction pays and the fees a competitive responder pays that would result in certain Participants being unable to compete with initiators. In fact, the Exchange believes that these changes will not impair these Participants from adding liquidity and competing in Facilitation and Solicitation auction transactions and will help promote competition by providing incentives for market participants to submit customer order flow to BOX and thus, create a greater opportunity for customers to receive additional price improvement.
The Exchange also believes that this proposal will enhance competition between exchanges because it is designed to allow the Exchange to better compete with other exchanges for Facilitation and Solicitation auction order flow.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend the rule change if it appears to the Commission that the action is necessary or appropriate in the public interest, for the protection of investors, or would otherwise further the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 29, 2015, the 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”)
FINRA proposes to amend Rule 2210 to require each of its member's Web sites to include a readily apparent reference and hyperlink to BrokerCheck
Commenters generally support FINRA's proposal.
Some commenters state that FINRA should require a reference and hyperlink to BrokerCheck in members' and registered persons' emails and account statements to customers.
Some commenters state that FINRA should require deep links to firms' and individuals' BrokerCheck reports.
Finally, some commenters note that BrokerCheck excludes certain information that is currently available on the CRD system, and state that investors should be able to view all relevant information that is available in the CRD system.
Two commenters seek guidance regarding the interpretation of the term “readily apparent” as used the proposed rule, including whether placing the link to BrokerCheck in a Web site's footer would satisfy the “readily apparent” requirement.
One commenter seeks confirmation that, for firms that choose to provide the BrokerCheck link through an icon or button similar to that used by FINRA, such use would be a permissible use of any trademark or related intellectual property owned by FINRA.
One commenter seeks clarification regarding the application of the proposed rule to Web sites maintained by independent contractor registered representatives.
One commenter seeks confirmation that, for multi-faceted financial institutions, the link to BrokerCheck should be placed on the homepage of the broker-dealer member firm as opposed to the enterprise-level homepage,
One commenter seeks additional guidance on the treatment of Web pages of registered persons and/or branch offices under the proposal.
One commenter requests guidance regarding the application of the proposed rule to third-party Web sites that contain professional profiles of financial advisors that engage in a networking relationship with these third parties, such as Web sites owned and operated by credit unions and other non-FINRA members.
One commenter requests that FINRA promulgate a Regulatory Notice to provide interpretive guidance or responses to frequently asked questions, accompanied by a succinct reiteration of what information is and is not disclosed through BrokerCheck.
One commenter requests a 12-month implementation period for the proposal.
After careful review of the proposed rule change, the comment letters, and FINRA's response to the comments, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities association.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend Rule 9.3A (Continuing Education for Registered Persons) to provide for Web-based delivery of the Regulatory Element of the Exchange's continuing education (“CE”) program. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The CE requirements under Rule 9.3A consist of a Regulatory Element
The Firm Element consists of annual, TPH organization-developed and administered training programs for covered registered persons,
Today, most registered persons complete the Regulatory Element in a test center rather than in-firm. Given the advances in Web-based technology, the Exchange believes that there is diminishing utility in the test center and in-firm delivery methods. Moreover, according to FINRA,
In response to the issues noted above, FINRA engaged in extensive outreach with the industry and completed a pilot of a Web-based delivery system for administering the Regulatory Element.
Based on the recent amendments to FINRA Rule 1250,
In addition to proposing to amend Rule 9.3A to provide for a Web-based delivery method for completing the Regulatory Element, the Exchange also proposes to remove the option for Series 56 registered persons to participate in the S501 Series 56 Proprietary Trader continuing education program in order to satisfy the Regulatory Element. The S501 Series 56 Proprietary Trader continuing education program is being phased out along with the Series 56 Proprietary Trader qualification examination and being replaced with the Series 57 Securities Trader qualification examination.
The first phase of the Web-based delivery system would be launched October 1, 2015 and include the Regulatory Element of the S106 Program for Series 6 registered persons and the S201 Supervisor Program for registered principals and supervisors. The second phase of the Web-based delivery system would be launched January 4, 2016 and include the Regulatory Element of the S101 General Program for Series 7 and all other registered persons, including, but not limited to Securities Traders.
The Exchange is proposing to phase out test-center delivery by no later than six months after January 4, 2016. Registered persons will continue to have the option of completing the Regulatory Element in a test center, but they will be required to use the Web-based system after that date.
Further, the Exchange is proposing to phase out the current option for in-firm delivery on a rolling basis as each Regulatory Element program becomes available for Web-based delivery. Firms will not be able to establish new in-firm delivery programs after October 1, 2015. Moreover, firms that have pre-existing in-firm delivery programs established prior to October 1, 2015 would not be able to use that delivery method for the S106 and S201 Regulatory Element programs after October 1, 2015, which is the anticipated launch date of Web-based delivery for these programs. However, such firms may continue to use their pre-existing in-firm delivery programs for the S501 Regulatory Element and S101 Regulatory Element program until January 4, 2016, which is the anticipated launch date of Web-based delivery for the S101 program.
The Exchange notes that the Web-based format will include safeguards to authenticate the identity of the CE candidate. For instance, prior to commencing a Web-based session, the candidate will be asked to provide a portion of their SSN (either first five or last four digits) and their date of birth. This information will only be used for matching data in FINRA's Web-CRD system. The Web CE system will discard this information after the matching process. Further, before commencing a Web-based session, each candidate will be required to agree to the Rules of Conduct for Web-based delivery. Among other things, the Rules of Conduct will require each candidate to attest that he or she is in fact the person who is taking the Web-based session. The Rules of Conduct will also require that each candidate agree that the Regulatory Element content is intellectual property and that the content cannot be copied or redistributed by any means. If the Exchange discovers that a candidate has violated the Rules of Conduct, the candidate will forfeit the results of the Web-based session and may be subject to disciplinary action by the Exchange.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that the proposed rule change will improve TPHs' compliance efforts and will allow registered persons to spend a greater amount of time on the review of CE materials and potentially achieve better learning outcomes, which will in turn enhance investor protection. Further, while the proposed rule change will provide more flexibility to TPHs and registered persons, it will maintain the integrity of the Regulatory Element of the CE program and the CE program in general.
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 notes that the proposed rule change is specifically intended to reduce the burden on firms while preserving the integrity of the CE program. As described above, the Web-based delivery method will provide registered persons the flexibility to complete the Regulatory Element at any location that they choose. Further, Web-based delivery is efficient and offers significant cost savings over test-center and in-firm deliveries. With respect to the authentication process for Web-based delivery, the CE candidate's personal identifying information will be masked and will be submitted to FINRA through a secure, encrypted, network. The personal identifying information submitted via the Web-based system will be used for authentication purposes only—the information will not be stored in the Web-based system.
The Exchange neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the fees applicable to securities listed on the Exchange, which are set forth in BATS Rule 14.13.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
On August 30, 2011, the Exchange received approval of rules applicable to the qualification, listing, and delisting of companies on the Exchange,
Specifically, the Exchange is proposing that the Issuer Incentive Program would allow the Exchange to provide payments to the fund on a quarterly basis that would be based on the CADV of the ETP for each trading day of the preceding calendar quarter that the ETP was listed on the Exchange, as follows:
Because the payments would be provided for each trading day, where an ETP had a CADV of 4,000,000 over the course of a full calendar quarter that it was listed on the Exchange, the ETP would receive a payment of $2,500 (.25 * $10,000, the annualized payment for that CADV) for the quarter. Where the same ETP had a CADV of 4,000,000, but was only listed on the Exchange for exactly half of the trading days in the calendar quarter, the ETP would receive a payment of $1,250 ((.25 * $10,000) * .5).
The Exchange is proposing the Issuer Incentive Program as a way to attract both new ETP issues and transfer ETP listings to the Exchange. The Exchange notes that the Issuer Incentive Program would also be applicable to ETPs currently listed on the Exchange. Traditionally, ETP issuers have paid between $5,000 and $55,000 on an annual basis in order to be listed on an exchange,
In addition to the proposed changes described above, the Exchange proposes to eliminate reference to fees for securities participating in the CLP Program because such program is no longer operational and has been replaced by the Supplemental Competitive Liquidity Provider Program, as described in Rule 11.8, Interpretation and Policy .03 (the “ETP CLP Program”).
The Exchange proposes to implement the amendments to Rule 14.13(b)(2)(C) effective October 1, 2015.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6 of the Act.
The Exchange believes that the proposed amendment to the annual listing fees in Rule 14.13(b)(2)(C) to provide payment to ETPs listed on the Exchange is a reasonable, fair and equitable, and not unfairly discriminatory allocation of fees and other charges because it would create a distribution of fees and other charges applicable to all issuers that reflect the additional revenue that an ETP listed on the Exchange creates for the Exchange through executions occurring in the auctions and additional shares executed on the Exchange. As the market is currently structured, ETPs typically pay a flat fee to an exchange for listing services regardless of the amount of additional revenue that the product will bring to the exchange. The Issuer Incentive Program, on the other hand, acknowledges the additional revenue brought to the Exchange by virtue of an ETP listing on the Exchange and is designed to reward the issuer of an ETP for such additional revenue, which the Exchange believes creates a more equitable and appropriate relationship between the Exchange and issuers based on the revenue and expenses associated with listing ETPs on the Exchange. As such, the Exchange believes that that it is reasonable, fair and equitable, and not unfairly discriminatory allocation of fees and other charges to provide payment to issuers of ETPs listed on the Exchange.
Similarly, the Exchange believes that the proposed amendment to the annual listing fees in Rule 14.13(b)(2)(C) to provide tiered payments to issuers of ETPs listed on the Exchange based on the CADV of an ETP is a reasonable, fair and equitable, and not unfairly discriminatory allocation of fees and other charges because it would create a distribution of fees and other charges applicable to all issuers that are commensurate with the additional revenue that an ETP listed on the Exchange creates for the Exchange through executions occurring in the auctions and additional shares executed on the Exchange. As described above, where the CADV of an ETP increases, so does the additional trading fee revenue earned by the primary listing exchange. Accordingly, the tiers within the Issuer Incentive Program are designed to reward the issuer of an ETP on the basis of the additional revenue potential that the ETP brings to the Exchange. Further to this point, the Exchange does not believe that the proposal is unfairly discriminatory because, as described above, the annualized payments associated with the various CADV tiers in the Issuer Incentive Program are designed to account for the approximate additional revenue that the Exchange
In addition, the Exchange does not believe that it is unfairly discriminatory to exclude ETPs with a CADV of less than 1,000,000 from the Issuer Incentive Program because such ETPs do not typically generate revenue to the same degree as the higher CADV products. The Exchange notes that ETPs with a CADV of less than 1,000,000 are eligible to participate in the ETP CLP Program, which is designed to incent market makers to provide liquidity in less actively traded products with the goal of facilitating the growth of such products.
The Exchange believes that the proposal creates a more equitable and appropriate relationship between the Exchange and issuers tied directly to the revenue and expenses associated with listing ETPs on the Exchange. As such, the Exchange believes that that it is reasonable, fair and equitable, and not unfairly discriminatory allocation of fees and other charges to offer payments to issuers of ETPs listed on the Exchange that are tiered on the basis of the CADV of the ETP.
The Exchange is not currently proposing to extend the Issuer Incentive Program to corporate securities despite the fact that it currently maintains rules and fees necessary to support the listing of a corporate security on the Exchange.
Based on the foregoing, the Exchange believes that the proposed amendment to Rule 14.13(b)(2)(C) to implement the Issuer Incentive Program is a reasonable, equitable, and non-discriminatory allocation of fees to issuers.
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. With respect to the proposed new pricing for the listing of ETPs, the Exchange does not believe that the changes burden competition, but instead, enhance competition, as it is intended to increase the competitiveness of the Exchange's listings program by allowing the Exchange to provide ETPs with quarterly payments based on the CADV of the ETP, which the Exchange believes will be directly related to the amount of additional revenue that the Exchange receives from additional transactions in the ETP. As such, the proposal is a competitive proposal that is intended to attract additional ETP listings, which will, in turn, benefit the Exchange and all other BATS-listed ETPs.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1)
The Exchange proposes toamend[sic] sections 902.03, 902.04, 902.05 and 902.06 of the Listed Company Manual (the “Manual”) to increase certain of the fees set forth therein. The Exchange proposes to immediately reflect the proposed changes in the Manual, but not to implement the proposed fee changes until January 1, 2016. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend sections 902.03, 902.04, 902.05 and 902.06 of the Manual to increase certain of the fees set forth therein. The Exchange proposes to immediately reflect the proposed changes in the Manual, but not to implement the proposed fee changes until January 1, 2016.
Section 902.03 of the Manual currently provides, in part, for annual fees for listed equity securities. Currently, the annual fee for an issuer's primary class of common shares or, if no class of common shares is listed on the Exchange, the preferred stock of such issuer is the greater of $45,000 or $0.001 per share. The Exchange proposes to increase these thresholds to $52,500 and $0.001025, respectively. Currently, the annual fee for each additional class of common shares, each additional class of preferred stock and each class of warrants is calculated as the greater of a specified minimum fee or $0.001 per share. The Exchange proposes to leave the minimum fee for those three categories unchanged, but to increase the fee per share for each category to $0.001025 per share.
Sections 902.04, 902.05 and 902.06 of the Manual set forth, in part, the annual fees for closed-end funds, structured products and short-term securities, respectively. In each case, the current annual fee for these securities is calculated as the greater of a specified minimum fee or $0.001 per share. The Exchange proposes to leave the minimum fee for those three categories of securities unchanged, but to increase the fee per share for each category to $0.001025 per share.
As described below, the Exchange proposes to make the aforementioned fee increases to better reflect the Exchange's costs related to listing equity securities and the corresponding value of such listing to issuers.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange believes that it is reasonable to amend section 902.03 of the Manual to increase the minimum annual fee for an issuer's primary class of common shares and primary class of
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is designed to ensure that the fees charged by the Exchange accurately reflect the services provided and benefits realized by listed companies. The market for listing services is extremely competitive. Each listing exchange has a different fee schedule that applies to issuers seeking to list securities on its exchange. Issuers have the option to list their securities on these alternative venues based on the fees charged and the value provided by each listing. Because issuers have a choice to list their securities on a different national securities exchange, the Exchange does not believe that the proposed fee changes impose a burden on competition.
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 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 August 7, 2015, NASDAQ OMX BX, Inc. (the “Exchange” or “BX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to offer to all its members a new optional risk protection functionality for options to help members control their quote and order activity on the Exchange.
To use the Kill Switch, a Participant will send a message
The BX Participant will be unable to enter any new quotes or orders using the affected Identifier(s) until the Participant makes a verbal request to the Exchange and Exchange staff enables re-entry. Once enabled for re-entry, the Exchange will send a message to the Participant and, if it requests to receive such notifications, to the Participant's clearing firm as well.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange,
According to the Exchange, the proposed rule change is designed to protect BX Participants in the event that the Participant encounters a situation, like a systems issue, for which they would like to withdraw temporarily from the market.
Further, the Commission agrees that it would be appropriate to notify a Participant's clearing member, at the clearing member's request, once a Participant's selected Identifiers are re-enabled following the Participant's use of the Kill Switch. Because the clearing member accepts financial responsibility for clearing the Participant's trades, notifying the applicable clearing member of a Participant's re-enabled Identifiers following use of the Kill Switch may be appropriate and help the clearing member manage the risk associated with the Participant's trading activity.
The Commission notes that the Exchange represented in its proposal that the Kill Switch will operate consistently with a broker-dealer's firm quote obligations pursuant to Rule 602 of Regulation NMS,
Accordingly, the Commission finds that the Exchange's proposal is consistent with the Act, including section 6(b)(5) thereof, in that it is designed to promote just and equitable principles of trade, foster cooperation and coordination with persons engaged in facilitating transactions in securities, remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
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 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.
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 December 14, 2015. Individuals can obtain copies of the collection instruments by writing to the above email address.
The Promoting Readiness of Minors in SSI (PROMISE) demonstration pursues positive outcomes for children with disabilities who receive Supplemental Security Income (SSI) and their families by reducing dependency on SSI. The Department of Education (ED) awarded six cooperative agreements to states to improve the provision and coordination of services and support for children with disabilities who receive SSI and their families to achieve improved education and employment outcomes. ED awarded PROMISE funds to five single-state projects, and to one six-state consortium.
Under PROMISE, targeted outcomes for youth include an enhanced sense of self-determination; achievement of secondary and post-secondary educational credentials; an attainment of early work experiences culminating with competitive employment in an integrated setting; and long-term reduction in reliance on SSI. Outcomes of interest for families include heightened expectations for and support of the long-term self-sufficiency of their youth; parent or guardian attainment of education and training credentials; and increases in earnings and total income. To achieve these outcomes, we expect the PROMISE projects to make better use of existing resources by improving service coordination among multiple state and local agencies and programs.
ED, SSA, DOL, and HHS intend the PROMISE projects to address key limitations in the existing service system for youth with disabilities. By intervening early in the lives of these young people, at ages 14-16, the projects engage the youth and their families well before critical decisions regarding the age 18 redetermination are upon them. We expect the required partnerships among the various state and Federal agencies that serve youth with disabilities to result in improved integration of services and fewer dropped handoffs as youth move from one agency to another. By requiring the programs to engage and serve families and provide youth with paid work experiences, the initiative is mandating the adoption of critical best practices in promoting the independence of youth with disabilities.
SSA is requesting clearance for the collection of data needed to implement and evaluate PROMISE. The evaluation provides empirical evidence on the impact of the intervention for youth and their families in several critical areas, including: (1) Improved educational attainment; (2) increased employment skills, experience, and earnings; and (3) long-term reduction in use of public benefits. We base the PROMISE evaluation on a rigorous design that entails the random assignment of approximately 2,000 youth in each of the six projects to treatment or control groups (12,000 total). The PROMISE projects provide enhanced services for youth in the treatment groups; whereas youth in the control groups are eligible only for those services already available in their communities independent of the interventions.
The evaluation assesses the effect of PROMISE services on educational attainment, employment, earnings, and reduced receipt of disability payments. The three components of this evaluation include:
• The process analysis, which documents program models, assesses the relationships among the partner organizations, documents whether the grantees implemented the programs as planned, identifies features of the programs that may account for their impacts on youth and families, and identifies lessons for future programs with similar objectives.
• The impact analysis, which determines whether youth and families in the treatment groups receive more services than their counterparts in the control groups. It also determines whether treatment group members have better results than control group members with respect to the targeted outcomes noted above.
• The cost-benefit analysis, which assesses whether the benefits of PROMISE, including increases in employment and reductions in benefit receipt, are large enough to justify its costs. We conduct this assessment from a range of perspectives, including those of the participants, state and Federal governments, SSA, and society as a whole.
SSA planned several data collection efforts for the evaluation. These include: (1) Follow-up interviews with youth and their parent or guardian 18 months and 5 years after enrollment; (2) phone and in-person interviews with local program administrators, program supervisors, and service delivery staff at two points in time over the course of the demonstration; (3) two rounds of focus groups with participating youth in the treatment group; (4) two rounds of focus groups with parents or guardians of participating youth; (5) staff activity logs
At this time, SSA requests clearance for the staff activity logs. SSA will request clearance for the 5-year survey interviews in a future submission. The respondents are the administrative and direct service staff, as well as some subcontractors whose primary roles with their organizations involve PROMISE service delivery.
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 November 16, 2015. Individuals can obtain copies of the OMB clearance packages by writing to
Important Information About Your Appeal, Waiver Rights, and Repayment Options—20 CFR 404.502-521—0960-0779. When SSA accidentally overpays beneficiaries, the agency informs them of the following rights: (1) The right to reconsideration of the overpayment determination; (2) the right to request a waiver of recovery and the automatic scheduling of a personal conference if SSA cannot approve a request for waiver; and (3) the availability of a different rate of withholding when SSA proposes the full withholding rate. SSA uses Form SSA-3105, Important Information About Your Appeal, Waiver Rights, and Repayment Options, to explain these rights to overpaid individuals and allow them to notify SSA of their decision(s) regarding these rights. The respondents are overpaid claimants requesting a waiver of recovery for the overpayment, reconsideration of the fact of the overpayment, or a lesser rate of withholding of the overpayment. This is a correction notice: SSA published the incorrect burden information for this collection at 80 FR 43828, on 7/23/15. We are correcting this error here.
Susquehanna River Basin Commission.
Notice.
This notice lists the approved by rule projects rescinded by the Susquehanna River Basin Commission during the period set forth in
July 1-31, 2015.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists the projects, described below, being rescinded for the consumptive use of water pursuant to the Commission's approval by rule process set forth in 18 CFR 806.22(e) and 806.22(f) for the time period specified above:
1. Marcellus GTL, LLC, Altoona Project, ABR-201307005, Blair and Allegheny Townships, Blair County, Pa.: Rescind Date: July 29, 2015.
1. Chief Oil & Gas, LLC, Pad ID: Inderlied Drilling Pad, ABR-201304020, Lathrop Township, Susquehanna County, Pa.; Rescind Date: June 5, 2015.
2. Energy Incorporated, Pad ID: Everbe Farms Unit B, ABR-201202024, Franklin Township, Lycoming County, Pa.; Rescind Date: June 24, 2015.
3. XTO Energy Incorporated, Pad ID: Free Library Unit E, ABR-201107024, Beech Creek Township, Clinton County, Pa.; Rescind Date: June 24, 2015.
4. XTO Energy Incorporated, Pad ID: PA Tract Unit H, ABR-201206018, Chapman Township, Clinton County, Pa.; Rescind Date: June 24, 2015.
5. XTO Energy Incorporated, Pad ID: PA Tract K, ABR-201208014, Chapman Township, Clinton County, Pa.; Rescind Date: June 24, 2015.
6. XTO Energy Incorporated, Pad ID: Shaner8507H, ABR-201011019, Jordon Township, Lycoming County, Pa.; Rescind Date: June 24, 2015.
7. XTO Energy Incorporated, Pad ID: West Brown A, ABR-201210008, Moreland Township, Lycoming County, Pa.; Rescind Date: June 24, 2015.
8. XTO Energy Incorporated, Pad ID: West Brown B, ABR-201209005, Moreland Township, Lycoming County, Pa.; Rescind Date: June 24, 2015.
9. WPX Energy Appalachia, LLC, Pad ID: S. Farver 1V, ABR-201008102, Benton Township, Columbia County, Pa.; Rescind Date: June 24, 2015.
10. WPX Energy Appalachia, LLC, Pad ID: Campbell Well Pad, ABR-201012010, Benton Township, Columbia County, Pa.; Rescind Date: June 24, 2015.
11. SWN Production Company, LLC, Pad ID: Wells Pad, ABR-201011014, Benton Township, Lackawanna County, Pa.; Rescind Date: June 24, 2015.
12. SWN Production Company, LLC, Pad ID: NR-19 WALKER-DIEHL PAD, ABR-201412009, Oakland Township, Susquehanna County, Pa.; Rescind Date: June 24, 2015.
13. SWEPI, LP, Pad ID: Fox 813, ABR-201007006, Gaines Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
14. SWEPI, LP, Pad ID: Geiser 907, ABR-201104003, Abbott Township, Potter County, Pa.; Rescind Date: June 25, 2015.
15. SWEPI, LP, Pad ID: Granger 850, ABR-201101004, Gaines Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
16. SWEPI, LP, Pad ID: Granger 853, ABR-201203017, Gaines Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
17. SWEPI, LP, Pad ID: McConnell 471, ABR-201012055, Charleston Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
18. SWEPI, LP, Pad ID: Palmer 809, ABR-201006106, Chatham Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
19. SWEPI, LP, Pad ID: Ritter 828, ABR-201008136, Gaines Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
20. SWEPI, LP, Pad ID: Schimmell 828, ABR-201010052, Farmington Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
21. SWEPI, LP, Pad ID: Sherman 498, ABR-201009101, Richmond Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
22. SWEPI, LP, Pad ID: Smith 140, ABR-201007079, Charleston Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
23. SWEPI, LP, Pad ID: State 811, ABR-201009020, Elk Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
24. SWEPI, LP, Pad ID: State 814, ABR-201010007, Elk Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
25. SWEPI, LP, Pad ID: State 816, ABR-201010039, Elk Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
26. SWEPI, LP, Pad ID: State 818, ABR-201010038, Elk Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
27. SWEPI, LP, Pad ID: State 819, ABR-201007039, Gaines Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
28. SWEPI, LP, Pad ID: State 820, ABR-201010037, Gaines Township,
29. SWEPI, LP, Pad ID: State 824, ABR-201007041, Gaines Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
30. SWEPI, LP, Pad ID: State 825, ABR-201007042, Gaines Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
31. SWEPI, LP, Pad ID: State 826, ABR-201007043, Shippen Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
32. SWEPI, LP, Pad ID: State 827, ABR-201010036, Elk Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
33. SWEPI, LP, Pad ID: State 841, ABR-201010035, Elk Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
34. SWEPI, LP, Pad ID: State 842, ABR-201010047, Elk Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
35. SWEPI, LP, Pad ID: State 843, ABR-201010048, Elk Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
36. SWEPI, LP, Pad ID: State 844, ABR-201009021, Elk Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
37. SWEPI, LP, Pad ID: Stewart 805, ABR-201007003, Elk Township, Tioga County, Pa.; Rescind Date: June 25, 2015.
38. SWEPI, LP, Pad ID: Wood 513R, ABR-201007014, Rutland Township, Tioga County, Pa.; Rescind Date: June 30, 2015.
39. Chesapeake Appalachia, LLC, Pad ID: Gunn, ABR-201101006, Rome Township, Bradford County, Pa.; Rescind Date: July 1, 2015.
40. Chesapeake Appalachia, LLC, Pad ID: Lantz, ABR-201102025, Sheshequin Township, Bradford County, Pa.; Rescind Date: July 1, 2015.
41. Chesapeake Appalachia, LLC, Pad ID: King, ABR-201103050, Sheshequin Township, Bradford County, Pa.; Rescind Date: July 1, 2015.
42. Anadarko E&P Onshore, LLC, Pad ID: Abel, ABR-201010062, Shrewsbury Township, Sullivan County, Pa.; Rescind Date: July 27, 2015.
43. Anadarko E&P Onshore, LLC, Pad ID: COP Tr 231 Pad E, ABR-201007097, Boggs Township, Sullivan County, Pa.; Rescind Date: July 27, 2015.
44. Anadarko E&P Onshore, LLC, Pad ID: Field, ABR-201010020, Cherry Township, Sullivan County, Pa.; Rescind Date: July 27, 2015.
45. Anadarko E&P Onshore, LLC, Pad ID: Jason M. Phillips Pad A, ABR-201007070, Cogan House Township, Lycoming County, Pa.; Rescind Date: July 27, 2015.
46. Anadarko E&P Onshore, LLC, Pad ID: Kohler, ABR-201009103, Liberty Township, Tioga County, Pa.; Rescind Date: July 27, 2015.
47. Anadarko E&P Onshore, LLC, Pad ID: Marilyn Ely, ABR-201008143, Gamble Township, Lycoming County, Pa.; Rescind Date: July 27, 2015.
48. Anadarko E&P Onshore, LLC, Pad ID: Maurice D Bieber Pad A, ABR-201008024, Cascade Township, Lycoming County, Pa.; Rescind Date: July 27, 2015.
49. Anadarko E&P Onshore, LLC, Pad ID: Stephen M Sleboda Pad A, ABR-201112008, Cascade Township, Lycoming County, Pa.; Rescind Date: July 27, 2015.
50. Chesapeake Appalachia, LLC, Pad ID: Lyon, ABR-201201038, Tuscarora Township, Bradford County, Pa.; Rescind Date: July 31, 2015.
51. XTO Energy Incorporated, Pad ID: King Unit, ABR-20091225.R1, Shrewsbury Township, Lycoming County, Pa.; Rescind Date: July 31, 2015.
Pub. L. 91-575, 84 Stat. 1509
Federal Highway Administration (FHWA), DOT.
Notice.
This notice provides information regarding FHWA's finding that a Buy America waiver is appropriate for the use of non-domestic Vanessa 30,000 series water line valves (two 42 inch, three 16 inch, and one 8 inch) for the Woodmen Road corridor improvement project, phase 2 in Colorado Springs, Colorado.
The effective date of the waiver is October 16, 2015.
For questions about this notice, please contact Mr. Gerald Yakowenko, FHWA Office of Program Administration, (202) 366-1562, or via email at
An electronic copy of this document may be downloaded from the
The FHWA's Buy America policy in 23 CFR 635.410 requires a domestic manufacturing process for any steel or iron products (including protective coatings) that are permanently incorporated in a Federal-aid construction project. The regulation also provides for a waiver of the Buy America requirements when the application would be inconsistent with the public interest or when satisfactory quality domestic steel and iron products are not sufficiently available. This notice provides information regarding FHWA's finding that a Buy America waiver is appropriate for use of non-domestic Vanessa 30,000 series water line valves (two 42 inch, three 16 inch, and one 8 inch) for the Woodmen Road corridor improvement project, phase 2, in Colorado Spring, Colorado. These waterline materials are required to relocate an existing 42 inch high pressure water line outside of the roadway. These valves would meet a zero leakage performance that is necessary for worker safety during water line construction.
In accordance with Division K, section 122 of the “Consolidated and Further Continuing Appropriations Act, 2015” (Pub. L. 113-235), FHWA published a notice of intent to issue a waiver on its Web site (
In accordance with the provisions of section 117 of the SAFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572), FHWA is providing this notice as its finding that a waiver of Buy America requirements is appropriate. The FHWA invites public comment on this finding for an additional 15 days following the effective date of the finding. Comments may be submitted to FHWA's Web site
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).
Notice of proposed MOU and request for comments.
This notice announces that FHWA has received and reviewed an application from the Ohio Department of Transportation (ODOT) requesting participation in the Surface Transportation Project Delivery Program (Program). This Program allows FHWA to assign and States to assume, responsibilities under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321,
Please submit comments by November 16, 2015.
To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:
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An electronic copy of this notice may be downloaded from the
Section 327 of title 23, United States Code (23 U.S.C. 327), allows the Secretary of the DOT (Secretary), to assign, and a State to assume, responsibility for all or part of FHWA's responsibilities for environmental review, consultation, or other actions required under any Federal environmental law with respect to one or more Federal-aid highway projects within the State pursuant to regulations promulgated by the Council on Environmental Quality under part 1500 of title 40, Code of Federal Regulations (CFR) (as in effect on October 1, 2003). The FHWA is authorized to act on behalf of the Secretary with respect to these matters.
Under the proposed MOU, FHWA would assign to the State, through ODOT, the responsibility for making decisions on the following types of highway projects:
1. All Class I, or environmental impact statement (EIS) projects, both on the State highway system (SHS) and local government projects off the SHS that are funded by FHWA or require FHWA approvals.
2. All Class II, or categorically excluded (CE), projects, both on the SHS and local government projects off the SHS that are funded by FHWA or require FHWA approvals.
3. All Class III, or environmental assessment (EA) projects, both on the SHS and local government projects off the SHS that are funded by FHWA or require FHWA approvals.
4. Projects funded by other Federal agencies [or projects without any Federal funding] of any Class that also includes funding by FHWA or require FHWA approvals. For these projects, ODOT would not assume the NEPA responsibilities of other Federal agencies.
Excluded from assignment are highway projects authorized under 23 U.S.C. 202 and 203, highway projects under 23 U.S.C. 204 unless the project will be designed and constructed by ODOT, projects that cross State boundaries, and projects that cross or is adjacent to international boundaries.
The following projects are examples of projects that will not be assigned because they are projects that cross State borders:
The assignment also would give the State the responsibility to conduct the following environmental review, consultation, and other related activities:
The MOU would allow ODOT to act in the place of FHWA in carrying out the environmental review-related functions described above, except with respect to government-to-government consultations with federally recognized Indian tribes. The FHWA will retain responsibility for conducting formal government-to-government consultation with federally recognized Indian tribes, which is required under some of the listed laws and executive orders. The ODOT will continue to handle routine consultations with the tribes and understands that a tribe has the right to direct consultation with FHWA upon request. The ODOT also may assist FHWA with formal consultations, with consent of a tribe, but FHWA remains responsible for the consultation. The ODOT also will not assume FHWA's responsibilities for conformity determinations required under Section 176 of the Clean Air Act (42 U.S.C. 7506) or any responsibility under 23 U.S.C. 134 or 135, or under 49 U.S.C. 5303 or 5304.
A copy of the proposed MOU may be viewed on the DOT DMS Docket, as described above, or may be obtained by contacting the FHWA or the State at the addresses provided above. A copy also may be viewed on ODOT's Web site at
The FHWA Ohio Division, in consultation with FHWA Headquarters, will consider the comments submitted when making its decision on the proposed MOU revision. Any final MOU approved by FHWA may include changes based on comments and consultations relating to the proposed MOU and will be made publicly available.
23 U.S.C. 327; 42 U.S.C. 4331, 4332; 23 CFR 771.117; 40 CFR 1507.3, 1508.4.
Federal Highway Administration (FHWA), DOT.
Notice.
This notice provides information regarding FHWA's finding that a Buy America waiver is appropriate for the use of non-domestic Voith 21/R5 propulsion units for ferry boat Pocahontas' propulsion unit replacement by Virginia DOT.
The effective date of the waiver is October 16, 2015.
For questions about this notice, please contact Mr. Gerald Yakowenko, FHWA Office of Program Administration, (202) 366-1562, or via email at
An electronic copy of this document may be downloaded from the
The FHWA's Buy America policy in 23 CFR 635.410 requires a domestic manufacturing process for any steel or iron products (including protective coatings) that are permanently incorporated in a Federal-aid construction project. The regulation also provides for a waiver of the Buy America requirements when the application would be inconsistent with the public interest or when satisfactory quality domestic steel and iron products are not sufficiently available. This notice provides information regarding FHWA's finding that a Buy America waiver is appropriate for use of non-domestic Voith 21/R5 propulsion units to replace the existing propulsion units, Voith 24/65, which have reached the end of their useful life.
In accordance with Division K, section 122 of the “Consolidated and Further Continuing Appropriations Act, 2015” (Pub. L. 113-235), FHWA published a notice of intent to issue a waiver on its Web site (
In accordance with the provisions of section 117 of the SAFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572), FHWA is providing this notice as its finding that a waiver of Buy America requirements is appropriate. The FHWA invites public comment on this finding for an additional 15 days following the effective date of the finding. Comments may be submitted to FHWA's Web site via the link provided to the waiver page noted above.
23 U.S.C. 313; Pub. L. 110-161, 23 CFR 635.410)
Federal Highway Administration (FHWA), DOT.
Notice.
This notice provides information regarding FHWA's finding that a Buy America waiver is appropriate for the use of non-domestic motor and machinery brakes for a moveable bridge in the State of Florida.
The effective date of the waiver is October 16, 2015.
For questions about this notice, please contact Mr. Gerald Yakowenko, FHWA Office of Program Administration, (202) 366-1562, or via email at
An electronic copy of this document may be downloaded from the
The FHWA's Buy America policy in 23 CFR 635.410 requires a domestic manufacturing process for any steel or iron products (including protective coatings) that are permanently incorporated in a Federal-aid construction project. The regulation also provides for a waiver of the Buy America requirements when the application would be inconsistent with the public interest or when satisfactory quality domestic steel and iron products are not sufficiently available. This notice provides information regarding FHWA's finding that a Buy America waiver is appropriate for use of non-domestic motor and machinery brakes that meet American Association of State Highway Transportation Officials (AASHTO) Moveable Highway Bridge Design Specifications and Florida DOT Structures Design Guidelines for the Flagler Memorial Bridge Replacement Project, Palm Beach County, Florida.
In accordance with Division K, section 122 of the “Consolidated and Further Continuing Appropriations Act, 2015” (Pub. L. 113-235), FHWA published a notice of intent to issue a waiver on its Web site (
In accordance with the provisions of section 117 of the SAFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572), FHWA is providing this notice as its finding that a waiver of Buy America requirements is appropriate. The FHWA invites public comment on this finding for an additional 15 days following the effective date of the finding. Comments may be submitted to FHWA's Web site via the link provided to the waiver page noted above.
Federal Motor Carrier Safety Administration (FMCSA).
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 41 individuals for exemption from the prohibition against persons with insulin-treated diabetes mellitus (ITDM) operating commercial motor vehicles (CMVs) in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate CMVs in interstate commerce.
Comments must be received on or before November 16, 2015.
You may submit comments bearing the Federal Docket Management
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Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 41 individuals listed in this notice have recently requested such an exemption from the diabetes prohibition in 49 CFR 391.41(b) (3), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
Mr. Bartel, 45, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Bartel understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Bartel meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Beckles, 43, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Beckles understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Beckles meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from New Jersey.
Mr. Bell, 52, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Bell understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Bell meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Florida.
Mr. Chadwick, 58, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Chadwick understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Chadwick meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Utah.
Mr. Correll, 45, has had ITDM since 1985. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Correll understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Correll meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist
Mr. Danczak, 37, has had ITDM since 1992. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Danczak understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Danczak meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Ohio.
Mr. Feeley, 56, has had ITDM since 2010. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Feeley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Feeley meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from New York.
Mr. Gurcik, 47, has had ITDM since 2009. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Gurcik understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gurcik meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that does not have diabetic retinopathy. He holds an operator's license from New Jersey.
Mr. Hackney, 58, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hackney understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hackney meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from New Jersey.
Mr. Hastings, 53, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hastings understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hastings meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Wisconsin.
Mr. Haun, 49, has had ITDM since 1989. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Haun understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Haun meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Rhode Island.
Mr. Hill, 52, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hill understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hill meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Georgia.
Mr. Hillman, 67, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hillman understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hillman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Oregon.
Mr. Hodge, 57, has had ITDM since 2011. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hodge understands diabetes management and monitoring,
Mr. Horschig, 58, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Horschig understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Horschig meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New Mexico.
Mr. Huber, 23, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Huber understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Huber meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Hurlburt, 64, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hurlburt understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hurlburt meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from New York.
Mr. Johnson, 30, has had ITDM since 2009. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Johnson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Johnson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Washington.
Mr. Jones, 54, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Jones understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Jones meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New York.
Mr. Killion, 44, has had ITDM since 2011. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Killion understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Killion meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from North Carolina.
Mr. Lawson, 36, has had ITDM since 1987. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lawson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lawson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from South Carolina.
Mr. Madison, 63, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Madison understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Madison meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from South Carolina.
Mr. Martin, 51, has had ITDM since 2010. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the
Mr. Matthews, 54, has had ITDM since 2011. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Matthews understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Matthews meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Missouri.
Mr. Mattos, 60, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Mattos understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Mattos meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Vermont.
Mr. Moody, 59, has had ITDM since 2007. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Moody understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Moody meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Tennessee.
Mr. Murray, 41, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Murray understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Murray meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from California.
Mr. Neisen, 31, has had ITDM since 2009. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Neisen understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Neisen meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Illinois.
Mr. Pereira, 61, has had ITDM since 1998. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Pereira understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Pereira meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Connecticut.
Mr. Powell, 58, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Powell understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Powell meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Texas.
Mr. Riley, 51, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Riley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Riley meets the requirements of the vision standard at 49 CFR
Mr. Smith, 50, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Smith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Smith meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from South Carolina.
Mr. Smith, 57, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Smith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Smith meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Wisconsin.
Mr. Swanson, 58, has had ITDM since 1996. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Swanson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Swanson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Illinois.
Mr. Sweeney, 51, has had ITDM since 1991. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Sweeney understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Sweeney meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from New Jersey.
Mr. Tabeling, 79, has had ITDM since 2007. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Tabeling understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Tabeling meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Kentucky.
Mr. Tellez, 51, has had ITDM since 2010. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Tellez understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Tellez meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Montana.
Mr. Turley, 43, has had ITDM since 1976. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Turley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Turley meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Ms. Turner, 47, has had ITDM since 2000. Her endocrinologist examined her in 2015 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Turner understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Turner meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2015 and certified that she does not have diabetic retinopathy. She holds a Class B CDL from Texas.
Mr. Webster, 54, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or
Mr. Whetzel, 63, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Whetzel understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Whetzel meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from West Virginia.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the date section of the notice.
FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441).
Section 4129 requires: (1) Elimination of the requirement for 3 years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.
In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 notice. FMCSA discontinued use of the 3-year driving experience and fulfilled the requirements of section 4129 while continuing to ensure that operation of CMVs by drivers with ITDM will achieve the requisite level of safety required of all exemptions granted under 49 U.S.C. 31136 (e).
Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary.
The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 notice, except as modified by the notice in the
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, To submit your comment online, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 45 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). They are unable to meet the vision requirement in one eye for various reasons. The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision requirement in one eye. The Agency has concluded that granting these exemptions will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these CMV drivers.
The exemptions were granted August 25, 2015. The exemptions expire on August 25, 2017.
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
On July 24, 2015, FMCSA published a notice of receipt of exemption applications from certain individuals, and requested comments from the public (80 FR 44188). That notice listed 45 applicants' case histories. The 45 individuals applied for exemptions from the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate commerce.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. Accordingly, FMCSA has evaluated the 45 applications on their merits and made a determination to grant exemptions to each of them.
The vision requirement in the FMCSRs provides:
A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber (49 CFR 391.41(b)(10)).
FMCSA recognizes that some drivers do not meet the vision requirement but have adapted their driving to accommodate their vision limitation and demonstrated their ability to drive safely. The 45 exemption applicants listed in this notice are in this category. They are unable to meet the vision requirement in one eye for various reasons, including amblyopia, aphakia, central retinal scar, chorioretinal scar complete loss of vision due to traumatic injury, corneal scarring, large optic nerve coloboma, macular degeneration, macular edema retinal scarring, no light perception, ocular hypertension ocular nerve damage, optic nerve atrophy, ocular sarcoidosis, prosthetic eye due to traumatic injury, refractive amblyopia, retinal damage, retinal disease, retinal vein occlusion, and traumatic glaucoma. In most cases, their eye conditions were not recently developed. Thirty of the applicants were either born with their vision impairments or have had them since childhood.
The 15 individuals that sustained their vision conditions as adults have had it for a range of 4 to 38 years.
Although each applicant has one eye which does not meet the vision requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV.
All of these applicants satisfied the testing requirements for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a CMV, with their limited vision, to the satisfaction of the State.
While possessing a valid CDL or non-CDL, these 45 drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. They have driven CMVs with their limited vision in careers ranging for 2 to 50 years. In the past three years, two drivers were involved in crashes, and two drivers were convicted of moving violations in a CMV.
The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the July 24, 2015 notice (80 FR 44188).
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision requirement in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered the medical reports about the applicants' vision as well as their driving records and experience with the vision deficiency.
To qualify for an exemption from the vision requirement, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for the past 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at Docket Number FMCSA-1998-3637.
FMCSA believes it can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly (See Bates
Applying principles from these studies to the past 3-year record of the 45 applicants, two drivers were involved in crashes, and two drivers were convicted of moving violations in a CMV. All the applicants achieved a record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.
We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to the 45 applicants listed in the notice of July 24, 2015 (80 FR 44188).
We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the 45 individuals consistent with the grandfathering provisions applied to drivers who participated in the Agency's vision waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the following: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirement in 49 CFR 391.41(b)(10) and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
FMCSA received no comments in this proceeding.
Based upon its evaluation of the 45 exemption applications, FMCSA exempts the following drivers from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above (49 CFR 391.64(b)):
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 27 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). They are unable to meet the vision requirement in one eye for various reasons. The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision requirement in one eye. The Agency has concluded that granting these exemptions will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these CMV drivers.
The exemptions were granted August 13, 2015. The exemptions expire on August 13, 2017.
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
On July 13, 2015, FMCSA published a notice of receipt of exemption applications from certain individuals, and requested comments from the public (80 FR 40122). That notice listed 27 applicants' case histories. The 27 individuals applied for exemptions from the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate commerce.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. Accordingly, FMCSA has evaluated the 27 applications on their merits and made a determination to grant exemptions to each of them.
The vision requirement in the FMCSRs provides:
A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber (49 CFR 391.41(b)(10)).
FMCSA recognizes that some drivers do not meet the vision requirement but have adapted their driving to accommodate their vision limitation and demonstrated their ability to drive safely. The 27 exemption applicants listed in this notice are in this category. They are unable to meet the vision requirement in one eye for various reasons, including esotropia, strabismic amblyopia, amblyopia, aphakia, torn iris, farsightedness, complete loss of vision, keratoconnus, prosthetic eye, no light perception, exudative retinopathy, central vein occlusion, corneal scar, phthisis bulbi, optic nerve damage, refractive amblyopia, and retinal detachment. In most cases, their eye conditions were not recently developed. Sixteen of the applicants were either born with their vision impairments or have had them since childhood.
The 11 individuals that sustained their vision conditions as adults have had it for a range of four to 45 years.
Although each applicant has one eye which does not meet the vision requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV.
All of these applicants satisfied the testing requirements for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a CMV, with their limited vision, to the satisfaction of the State.
While possessing a valid CDL or non-CDL, these 27 drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. They have driven CMVs with their limited vision in careers ranging for three to 49 years. In the past three years, two drivers were involved in crashes, and no drivers were convicted of moving violations in a CMV.
The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the July 13, 2015 notice (80 FR 40122).
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision requirement in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered the medical reports about the applicants' vision as well as their driving records and experience with the vision deficiency.
To qualify for an exemption from the vision requirement, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for the past 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a
FMCSA believes it can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly (See Bates and Neyman, University of California Publications in Statistics, April 1952). Other studies demonstrated theories of predicting crash proneness from crash history coupled with other factors. These factors—such as age, sex, geographic location, mileage driven and conviction history—are used every day by insurance companies and motor vehicle bureaus to predict the probability of an individual experiencing future crashes (See Weber, Donald C., “Accident Rate Potential: An Application of Multiple Regression Analysis of a Poisson Process,” Journal of American Statistical Association, June 1971). A 1964 California Driver Record Study prepared by the California Department of Motor Vehicles concluded that the best overall crash predictor for both concurrent and nonconcurrent events is the number of single convictions. This study used 3 consecutive years of data, comparing the experiences of drivers in the first 2 years with their experiences in the final year.
Applying principles from these studies to the past 3-year record of the 27 applicants, two drivers were involved in crashes, and no drivers were convicted of moving violations in a CMV. All the applicants achieved a record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.
We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to the 27 applicants listed in the notice of July 13, 2015 (80 FR 40122).
We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the 27 individuals consistent with the grandfathering provisions applied to drivers who participated in the Agency's vision waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the following: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirement in 49 CFR 391.41(b)(10) and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
FMCSA received no comments in this proceeding.
Based upon its evaluation of the 27 exemption applications, FMCSA exempts the following drivers from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above (49 CFR 391.64(b)):
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Announcement of Northeast Corridor Safety Advisory Committee (NECSC) Meeting.
FRA announces the fifth meeting of the Northeast Corridor Safety Committee, a Federal Advisory Committee mandated by section 212 of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA). The NECSC is made up of stakeholders operating on the Northeast Corridor, and the purpose of the NECSC is to provide annual recommendations to the Secretary of Transportation. NECSC meeting topics will include a presentation on recent FRA safety advisories and emergency orders, Amtrak derailment safety lessons learned, vehicle intrusions at other-than-grade crossings, NEC Positive Train Control implementation timeline/issues and challenges, and a general discussion of safety issues.
The NECSC meeting is scheduled to commence at 9:30 a.m. on Wednesday, November 18, 2015, and will adjourn by 4:30 p.m.
The NECSC meeting will be held at the National Housing Center located at 1201 15th Street NW., Washington, DC 20005. The meeting is open to the public on a first-come, first-served basis, and is accessible to individuals with disabilities. Sign and oral interpretation can be made available if requested 10 calendar days before the meeting.
Larry Woolverton, RSAC/NECSC Administrative Officer/Coordinator, FRA, 1200 New Jersey Avenue SE., Mailstop 25, Washington, DC 20590, (202) 493-6212; or Robert Lauby, Associate Administrator for Railroad Safety and Chief Safety Officer, FRA, 1200 New Jersey Avenue SE., Mailstop 25, Washington, DC 20590, (202) 493-6474.
The NECSC is mandated by a statutory provision in section 212 of the PRIIA (codified at 49 U.S.C. 24905(f)). The NECSC is chartered by the Secretary of Transportation and is an official Federal Advisory Committee established in accordance with the provisions of the Federal Advisory Committee Act, as amended, 5 U.S.C. title 5-Appendix.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of Railroad Safety Advisory Committee (RSAC) meeting.
FRA announces the fifty-fourth meeting of the RSAC, a Federal Advisory Committee that develops railroad safety regulations through a consensus process. The RSAC meeting topics will include opening remarks from the FRA Acting Administrator and the Associate Administrator for Railroad Safety and Chief Safety Officer. Briefings will be provided on recent FRA-issued safety advisories, and recent Notices of Proposed Rulemakings and status reports will be provided by the Remote Control Locomotive and Risk Reduction Working Groups. A status report will also be provided by the Engineering Task Force. This agenda is subject to change, including the possible addition of further proposed tasks.
The RSAC meeting is scheduled to commence at 9:30 a.m. on Thursday, November 5, 2015, and will adjourn by 4:30 p.m.
The RSAC meeting will be held at the National Housing Center located at 1201 15th Street NW., Washington, DC 20005. The meeting is open to the public on a first-come, first-served basis, and is accessible to individuals with disabilities. Sign and oral interpretation can be made available if requested 10 calendar days before the meeting.
Larry Woolverton, RSAC Administrative Officer/Coordinator, FRA, 1200 New Jersey Avenue SE., Mailstop 25, Washington, DC 20590, (202) 493-6212; or Robert Lauby, Associate Administrator for Railroad Safety and Chief Safety Officer, FRA, 1200 New Jersey Avenue SE., Mailstop 25, Washington, DC 20590, (202) 493-6474.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), FRA is giving notice of a meeting of the RSAC. The RSAC was established to provide advice and recommendations to FRA on railroad safety matters. The RSAC is composed of 60 voting representatives from 39 member organizations, representing various rail industry perspectives. In addition, there are non-voting advisory representatives from the agencies with railroad safety regulatory responsibility in Canada and Mexico, the National Transportation Safety Board, and the Federal Transit Administration. The diversity of the Committee ensures the requisite range of views and expertise necessary to discharge its responsibilities. See the RSAC Web site for details on prior RSAC activities and pending tasks at
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 16, 2015.
Comments should refer to docket number MARAD-2015-0116. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation,
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-0903, Email
As described by the applicant the intended service of the vessel FROG PRINTS is:
INTENDED COMMERCIAL USE OF VESSEL: “Passengers for hire, for sailing classes and recreational charters generally originating in Seattle, WA”
GEOGRAPHIC REGION: “Washington State, Oregon, California ”
The complete application is given in DOT docket MARAD-2015-0116 at
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
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 16, 2015.
Comments should refer to docket number MARAD-2015-0114. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-0903, Email
As described by the applicant the intended service of the vessel WAVELENGTH is:
The complete application is given in DOT docket MARAD-2015-0114 at
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
By Order of the Maritime Administrator.
Maritime Administration.
Notice and request for comments.
The Maritime Administration (MARAD) invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information collected ensures that the Maritime Administrator has sufficient information regarding the capacities and schedules of qualified vessels in order to make determinations required by 46 U.S.C. 501(b). The information will be used by the Maritime Administration (MARAD) to fulfill its statutory obligation in determining availability of Jones Act (
Written comments should be submitted by December 14, 2015.
You may submit comments [identified by Docket No. DOT-MARAD-2015-0119] through one of the following methods:
•
•
•
Michael Hokana, (202) 366-0760, Office of Cargo and Commercial Sealift, Maritime Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590.
The Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended; and 49 CFR 1:93.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 16, 2015.
Comments should refer to docket number MARAD-2015-0117. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-0903, Email
As described by the applicant the intended service of the vessel SUNDOG is:
The complete application is given in DOT docket MARAD-2015-0117 at
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
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 16, 2015.
Comments should refer to docket number MARAD-2015-0113. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-0903, Email
As described by the applicant the intended service of the vessel SURLY MERMAID is:
INTENDED COMMERCIAL USE OF VESSEL: “Uninspected Passenger Vessel (UPV) carrying no greater than six (6) passengers for hire”
GEOGRAPHIC REGION: Delaware, Maryland, Virginia, North Carolina, South Carolina
The complete application is given in DOT docket MARAD-2015-0113 at
Comments should also state the commenter's interest in the waiver application, and address the waiver criteria given in § 388.4 of MARAD's regulations at 46 CFR part 388.
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
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 16, 2015.
Comments should refer to docket number MARAD-2015-0115. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-0903, Email
As described by the applicant the intended service of the vessel FREEDOM is:
The complete application is given in DOT docket MARAD-2015-0115 at
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
By Order of the Maritime Administrator.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning the existing final regulations, FI-189-84 (TD 8517, Final), Debt Instruments With Original Discount; Imputed Interest on Deferred Payment Sales or Exchanges of Property.
Written comments should be received on or before December 14, 2015 to be assured of consideration.
Direct all written comments to Elaine Christophe, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Sara Covington at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
The Information Reporting Program Advisory Committee (IRPAC) will hold a public meeting on Wednesday, October 28, 2015.
Ms. Caryl Grant, National Public Liaison, CL:NPL:SRM, Rm. 7559, 1111 Constitution Avenue NW., Washington, DC 20224.
Phone: 202-317-6851 (not a toll-free number). Email address:
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988), that a public meeting of the IRPAC will be held on Wednesday, October 28, 2015 from 9:00 a.m. to 12:00 p.m. at Residence Inn Marriott, 1199 Vermont Avenue NW., Washington, DC 20005. Report recommendations on issues that may be discussed include: Foreign Account Tax Compliance Act; TIN Matching; W-9 Revision; Assisting SBSE and OSP to Improve the Penalty Abatement Process and RCA; Suggestions for Improvements to the IRS Use of FAQs; Electronic Transmittal of Employer Withheld IRS Tax Levy Proceeds; Pensions and IRA Complications; Publication 1586 Revision, Reasonable Cause Regulations & Requirements for Missing and Incorrect Name/TINs; Theft of Business Taxpayer's Identity; Publications and Forms Changes; Reporting by Insurance Companies and Third Parties under § 6055 and § 6056; ACA Education; IRC § 6050W and Form 1099-K Reporting; Form 1099-B Aggregate Reporting of Sales; Transfers of Section 1256 Options; Complex Debt Reporting Requirements; Form 1098-T. Last minute agenda changes may preclude
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8935, Airline Payments Report, and Form 8935-T, Transmittal of Airline Payments Reports.
Written comments should be received on or before December 14, 2015 to be assured of consideration.
Direct all written comments to Elaine Christophe, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Sara Covington, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Request for Comments: Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on 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.
United States Institute of Peace.
Department of Veterans Affairs.
Notice of Tribal Consultation.
The Department of Veterans Affairs (VA), Veterans Health Administration (VHA) is seeking a Tribal Consultation on VHA's effort to improve continuity of care and health care access via the development of a non-VA care core provider network utilizing agreements with high quality partners who also share the privilege of serving Veterans.
Comments must be received by VA on or before Monday, October 26, 2015.
Clay Ward, VA Office of Tribal Government Relations by phone at (202) 461-7445 (this is not a toll-free number), or by email at
Written comments may be submitted to the VA Office of Public and Intergovernmental Affairs, Office of Tribal Government Relations by email at
In July 2015, Congress passed the VA Budget and Choice Improvement Act, which calls for VA to develop by November 1, 2015 a plan to consolidate and streamline VA community care. In the plan due to Congress, VA proposes to reference, in the plan due to Congress, the Indian Health Service (IHS) and Tribal Health Programs (THP) as members of the VA core provider network. Inclusion in the core network of providers would preserve and build on VA's existing relationship IHS and THP and facilitate future collaborations to improve health care services provided to all eligible, enrolled Veterans. This Tribal Consultation is seeking input from tribal governments regarding this proposed inclusion in the core provider network.
U.S. Office of Personnel Management (OPM).
Notice.
As required by section 3132(b)(4) of title 5, United States Code, this gives notice of all positions in the Senior Executive Service (SES) that were career reserved during calendar year 2014.
Eloise Jefferson, Senior Executive Resource Services, Senior Executive Services and Performance Management, Employee Services, 202-606-2246.
Below is a list of titles of SES positions that were career reserved at any time during calendar year 2014, regardless of whether those positions were still career reserved as of December 31, 2014. Section 3132(b)(4) of title 5, United States Code, requires that the head of each agency publish such lists by March 1 of the following year. The Office of Personnel Management is publishing a consolidated list for all agencies.
5 U.S.C. 3132.
U.S. Office of Personnel Management.
Securities and Exchange Commission.
Proposed rule; re-opening of comment period.
The Securities and Exchange Commission is proposing a new rule and amendments to its rules and forms designed to promote effective liquidity risk management throughout the open-end fund industry, thereby reducing the risk that funds will be unable to meet redemption obligations and mitigating dilution of the interests of fund shareholders in accordance with section 22(e) and rule 22c-1 under the Investment Company Act. The proposed amendments also seek to enhance disclosure regarding fund liquidity and redemption practices. The Commission is proposing new rule 22e-4, which would require each registered open-end fund, including open-end exchange-traded funds (“ETFs”) but not including money market funds, to establish a liquidity risk management program. The Commission also is proposing amendments to rule 22c-1 to permit a fund, under certain circumstances, to use “swing pricing,” the process of adjusting the net asset value of a fund's shares to effectively pass on the costs stemming from shareholder purchase or redemption activity to the shareholders associated with that activity, and amendments to rule 31a-2 to require funds to preserve certain records related to swing pricing. With respect to reporting and disclosure, the Commission is proposing amendments to Form N-1A regarding the disclosure of fund policies concerning the redemption of fund shares, and the use of swing pricing. The Commission also is proposing amendments to proposed Form N-PORT and proposed Form N-CEN that would require disclosure of certain information regarding the liquidity of a fund's holdings and the fund's liquidity risk management practices. In connection with these proposed amendments, the Commission is re-opening the comment period for Investment Company Reporting Modernization, Investment Company Act Release No. 31610 (May 20, 2015).
The comment period for the proposed rule published June 12, 2015 (80 FR 33589) is reopened. Comments on this release (Investment Company Act Release No. 31835) and Investment Company Act Release No. 31610 should be received on or before January 13, 2016.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Use the Federal Rulemaking Portal (
• Send paper comments to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Studies, memoranda, or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the Commission's Web site. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
Melissa S. Gainor, Senior Special Counsel; Naseem Nixon, Senior Counsel; Amanda Hollander Wagner, Senior Counsel; Sarah A. Buescher, Branch Chief; or Sarah G. ten Siethoff, Assistant Director, Investment Company Rulemaking Office, at (202) 551-6792, Division of Investment Management, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-8549.
The Securities and Exchange Commission (the “Commission”) is proposing for public comment amendments to rules 22c-1 [17 CFR 270.22c-1] and 31a-2 [17 CFR 270.31a-2], and new rule 22e-4 [17 CFR 270.22e-4], under the Investment Company Act of 1940 [15 U.S.C. 80a-1
Daily redeemability is a defining feature of open-end management investment companies (“open-end funds” or “funds”) such as mutual funds.
We remain committed, as the primary regulator of open-end funds, to designing regulatory programs that respond to the risks associated with the increasingly complex portfolio composition and operations of the asset management industry. Commission staff engaged with large and small fund complexes to better understand funds' management of liquidity risk. Through these outreach efforts our staff has learned that, while some funds and their managers have developed comprehensive liquidity risk management programs, others have dedicated significantly fewer resources to managing liquidity risk in a formalized way. We believe proposing to address these variations in practices is appropriate and that it is in the interest of funds and fund investors to create a regulatory framework that would reduce the risk that a fund will be unable to meet its redemption obligations and minimize dilution of shareholder interests by promoting stronger and more effective liquidity risk management across open-end funds.
We are proposing a set of comprehensive reforms that would provide for: (i) Liquidity risk management standards that address issues arising from modern portfolio construction; (ii) a new pricing method that, if funds choose to use it, could better allocate costs to shareholders entering or exiting the fund; and (iii) fuller disclosure of information regarding the liquidity of fund portfolios and how funds manage liquidity risk and redemption obligations. To accomplish this, first, we are proposing new rule 22e-4 under the Act, which would require funds to establish liquidity risk management programs. Under the proposed rule, the principal components of a liquidity risk management program would include a fund's classification and monitoring of each portfolio asset's level of liquidity, as well as designation of a minimum amount of portfolio liquidity, which funds would tailor to their particular
Second, in order to provide funds with an additional tool to mitigate potential dilution and to manage fund liquidity, we are proposing amendments to rule 22c-1 under the Act to permit funds (except money market funds and ETFs) to use “swing pricing,” a process of adjusting the net asset value of a fund's shares to pass on to purchasing or redeeming shareholders more of the costs associated with their trading activity. Lastly, in order to give investors, market participants, and Commission staff improved information on fund liquidity and redemption practices, we are proposing amendments to our disclosure requirements and recently proposed data reporting forms. We discuss these proposals as well as why liquidity management is so vital to investors in open-end funds and the developments that have led us to this proposal further below. Taken together, these reforms are designed to provide investors with increased protections regarding how liquidity in their open-end funds is managed, thereby reducing the risk that funds will be unable to meet redemption obligations and mitigating dilution of the interests of fund shareholders. These reforms are also intended to give investors better information with which to make investment decisions, and to give the Commission better information with which to conduct comprehensive monitoring and oversight of an ever-evolving fund industry.
Over the past few decades, investors increasingly have come to rely on investments in open-end funds to meet their financial needs and access the capital markets. Individuals invest in these funds for a variety of reasons, from investing for retirement and their children's college education to providing a source of financial security for emergencies and other lifetime events. Institutions also invest significantly in open-end funds as part of basic or sophisticated trading and hedging strategies or to manage cash flows.
There are currently two kinds of open-end funds: Mutual funds and ETFs.
ETFs also offer investors an undivided interest in a pool of assets. Since 2003, the number of ETFs traded in U.S. markets has increased by more than 1,200 funds, and the assets held by ETFs have increased from $151 billion at the end of 2003 to $1.9 trillion at the end of 2014.
Similarly, for most ETFs, when an authorized participant wishes to redeem ETF shares, it presents a creation unit of ETF shares to the ETF for redemption and receives in return a “redemption basket,” the contents of which are made public by the ETF before the beginning of the trading day. The redemption basket (which is usually, but not always, the same as the portfolio deposit) typically consists of securities and a small amount of cash.
Recently, the Commission has also approved exchange-traded managed funds (“ETMFs”).
Open-end funds are an attractive investment option for many different types of investors because they provide diversification, economies of scale, and professional management. They also facilitate retail investors' access to certain investment strategies or markets that might be difficult (if not impossible) or time consuming for investors to replicate on their own.
A hallmark of open-end funds is that they must be able to convert some portion of their portfolio holdings into cash on a frequent basis because they issue redeemable securities,
Sufficient liquidity of ETF portfolio positions also is important. ETFs typically make in-kind redemptions of creation units, which can mitigate liquidity concerns for ETFs compared to mutual funds, if the in-kind redemptions are of a representative basket of the ETF's portfolio assets that do not alter the ETF's liquidity profile.
In addition, a significant amount of illiquid securities in an ETF's portfolio can make arbitrage opportunities more difficult to evaluate because it would be difficult for market makers to price, trade, and hedge their exposure to, the
If authorized participants are unwilling or unable to trade ETF shares in the primary market, and the majority of trading takes place among investors in the secondary market, the ETF's shares may trade at a significant premium or a discount to the value of the ETF's underlying portfolio securities.
Market stresses have demonstrated how declines in market liquidity may cause an ETF's shares to trade at a significant premium or discount to the shares of the ETF's underlying portfolio assets.
As noted above, ETMFs have features of both mutual funds and ETFs. As ETMFs would redeem their shares on a daily basis from authorized participants, the ETMF would need to hold sufficiently liquid assets to meet such redemptions to the extent that authorized participants redeem in cash. Like ETFs, however, the ETMF's ability to make in-kind redemptions could mitigate liquidity concerns.
Portfolio managers consider a variety of factors in addition to liquidity when constructing a fund's portfolio, including the fund's investment strategies, economic and market trends, portfolio asset credit quality, and tax considerations. Nevertheless, meeting daily redemption obligations is fundamental for open-end funds, and funds must manage liquidity in order to meet these obligations.
First, it is important to consider how a mutual fund (or ETF redeeming shares by using significant amounts of cash) meets redemptions. When a fund receives redemption requests from shareholders, and the fund does not have cash on hand to meet those redemptions,
A fund could also use a line of credit to meet redemptions instead of selling assets, but using a line of credit leverages the fund, and thus many funds only do so infrequently.
A fund also may reserve the right to redeem its shares in kind instead of in cash. However, there are often logistical issues associated with paying in-kind redemptions, which limit the availability of in-kind redemptions under many circumstances.
Second, the effect of redemptions on shareholders is determined by how and when those redemptions affect the price of the fund's shares. Under rule 22c-1, all investors who redeem from an open-end fund on any particular day must receive the NAV next calculated by the fund after receipt of such redemption request.
Nevertheless, we recognize that trading activity and other changes in portfolio holdings associated with meeting redemptions may occur over multiple business days following the redemption request. Such activities associated with meeting redemptions may include, for example, selling assets and, if the fund's most liquid assets are sold to meet redemptions, rebalancing the portfolio to avoid departing from the fund's investment strategies. If these activities occur (and their associated costs are incurred) in days following redemption requests, the costs of providing liquidity to redeeming investors could be borne at least partially by the remaining investors in the fund, thus potentially diluting the
Thus, with respect to redemptions, there can be significant adverse consequences to remaining investors in a fund when it fails to adequately manage liquidity.
These factors in fund redemptions—either individually or in combination—can create incentives in times of liquidity stress in the markets for early redemptions (or a “first-mover advantage”).
There also is a potential for adverse effects on the markets when open-end funds fail to adequately manage liquidity. For example, if liquid asset levels are insufficient to meet redemptions, funds may sell less-liquid portfolio assets at discounted or even fire sale prices. These sales can produce significant negative price pressure on those assets and correlated assets. Accordingly, redemptions and funds' liquidity risk management can affect not just the remaining investors in the fund, but any other investors holding these assets. Such liquidity stress on the assets held in the fund may transmit
In December 2014, the Financial Stability Oversight Council (“FSOC”) issued a notice seeking public comment on the potential risks to the U.S. financial system that may be posed by asset management products and activities in the areas of liquidity and redemptions among others.
Recent industry developments have underlined our focus on the importance of liquidity risk management practices in open-end funds. These developments include significant growth in assets of, and shareholder inflows into, open-end funds with fixed income strategies and alternative strategies since 2008 and the evolution of settlement periods and redemption practices utilized by open-end funds. While mutual funds holding U.S. equities continue to make up the largest category of funds in terms of fund assets, their share of the total industry assets has declined from 65.2% in 2000 to 44.5% in 2014.
We have observed significant growth in cash flows into, and assets of, fixed income mutual funds and fixed income ETFs. Assets in these funds grew from $1.5 trillion at the end of 2008 to $3.5 trillion at the end of 2014, with net inflows exceeding $1.3 trillion during that period.
We also have observed recent growth in alternative mutual funds. Since 2005, the assets of open-end funds with alternative strategies have grown significantly, from approximately $365 million at the end of 2005 to approximately $334 billion at the end of 2014.
Unlike alternative mutual funds and ETFs, private funds (such as hedge funds and private equity funds) pursuing similar alternative strategies can invest in portfolio assets that are relatively illiquid without generating the same degree of redemption risk for the fund because investor redemption rights are often limited.
In contrast, alternative strategy mutual funds and ETFs have no such ability to tailor investor redemption rights based on the liquidity profile of the funds' portfolios. Yet some of these funds seek to pursue similar investment strategies as hedge funds and other private funds, while still being bound by the redemption obligations applicable to open-end funds. Accordingly, our staff has been focused on the liquidity of alternative strategy mutual funds and ETFs, the nature of liquidity and redemption risks faced by investors in these funds given their legal right to be paid the proceeds of any redemption request within seven days.
Practices relating to securities trade settlement periods and the timing of the payment of redemption proceeds to investors also have evolved considerably over the decades since the Commission last addressed liquidity needs in open-end funds.
While standard settlement periods for securities trades in the markets have tended to fall significantly over the last several decades—and investor expectations that redemption proceeds will be paid promptly after redemption requests have risen—settlement periods for other securities held in large amounts by certain funds have not fallen correspondingly. For example, some bank loan funds (an asset class that has grown in recent years)
Overall, the evolution of the market towards shorter settlement periods—and corresponding investor expectations—combined with open-end funds holding certain securities with longer settlement periods have raised concerns for us about whether fund portfolios are sufficiently liquid to support a fund's ability to meet its redemption obligations.
Section 22(e) of the Act provides that no open-end fund shall suspend the right of redemption or postpone the date of payment of redemption proceeds for more than seven days after tender of the security absent specified unusual circumstances.
With the exception of money market funds subject to rule 2a-7 under the Act, the Commission has not promulgated rules requiring open-end funds to invest in a minimum level of liquid assets.
Open-end funds also are required by rule 38a-1 under the Act to adopt and implement written policies and procedures reasonably designed to prevent violations of the federal securities laws. A fund's compliance policies and procedures should be appropriately tailored to reflect each fund's particular compliance risks.
In addition to the Commission's historical statements regarding the importance of adequate liquidity in open-end fund portfolios pursuant to section 22(e) of the Act, long-standing Commission guidelines generally limit an open-end fund's aggregate holdings of “illiquid assets” to 15% of the fund's net assets (the “15% guideline”).
While the wording of the Guidelines Release limits
Over the last two years, Commission staff has had the occasion to observe through a variety of different events the current liquidity risk management practices at a cross-section of different fund complexes with varied investment strategies. The staff has observed that liquidity risk management techniques may vary across funds, including funds within the same fund complex, in light of unique fund characteristics, including, for example, the nature of a fund's investment objectives or strategies, the composition of the fund's investor base, and historical fund flows. These observations collectively have shown the staff that, even with various unique characteristics, many open-end funds and fund complexes have implemented procedures for assessing, classifying, and managing the liquidity of their portfolio assets.
Specifically, some of the funds observed by the staff assess their ability to sell particular assets within various time periods (typically focusing on one-, three-, and/or seven-day periods).
Funds observed by the staff that have implemented procedures for assessing and classifying the liquidity of their portfolio assets also often have developed controls to manage fund portfolio liquidity risk and the risk of changing levels of shareholder redemptions, such as holding certain amounts of the fund's portfolio in highly liquid assets, setting minimum cash reserves, and establishing committed back-up lines of credit or interfund lending facilities.
Conversely, the Commission is concerned that some funds employ liquidity risk management practices that are substantially less rigorous. Some funds observed by the staff do not take different market conditions into account when evaluating portfolio asset liquidity, and do not conduct any ongoing liquidity monitoring. Some funds do not incorporate any independent oversight of fund liquidity risk management outside of the portfolio management process.
Finally, the Commission learned through staff outreach that many funds treat their risk management process for assessing the liquidity profile of portfolio assets, and the incorporation of market and trading information, as entirely separate from their assessment of assets under the 15% guideline. The former process is typically conducted on an ongoing basis through the fund's risk management function, through the fund's portfolio management function, or through the fund's trading function (or a combination of the foregoing), while assessment of assets under the 15% guideline is more typically conducted upon purchase of an asset through the fund's compliance or “back-office” functions, with little indication that information generated from the risk management or trading functions informs the compliance determinations. This functional divide may be a by-product of the limitations of the 15% guideline as a stand-alone method for comprehensive liquidity risk management, a situation that our
Overall, our staff outreach has increased our understanding of some of the valuable liquidity risk management practices employed by some firms as a matter of prudent risk management. This outreach also has shown us the great diversity in liquidity risk management practices that raises concerns regarding various funds' ability to meet their redemption obligations and minimize the effects of dilution under certain conditions. Collectively, these observations have informed our understanding of the need for an enhanced minimum baseline requirement for fund management of liquidity risk.
Against this background, today we are proposing a multi-layered set of reforms designed to promote effective liquidity risk management throughout the open-end fund industry and thereby reduce the risk that funds will not be able to meet redemption obligations and mitigate potential dilution of the interests of fund shareholders in accordance with section 22(e) of, and rule 22c-1 under, the Investment Company Act. The proposed amendments also seek to enhance disclosure regarding fund liquidity and redemption practices. In addition, these proposed reforms are intended to address the liquidity-related developments in the open-end fund industry discussed above and are a part of a broader set of initiatives to address the impact of open-end fund investment activities on investors and the financial markets, and the risks associated with the increasingly complex portfolio composition and operations of the asset management industry.
First, we are proposing new rule 22e-4, which would require each registered open-end fund, including open-end ETFs but not including money market funds, to establish a liquidity risk management program. The proposed rule would require a fund's liquidity risk management program to incorporate certain specified elements. One primary element of this program is a new requirement for funds to classify and monitor the liquidity of portfolio assets, reflecting that liquidity may be viewed as falling on a spectrum rather than a binary conclusion that an asset is either “liquid” or “illiquid.” Another principal feature is a new requirement that funds establish a minimum amount of their assets that would be held in cash and assets that the fund believes are convertible to cash within three business days at a price that does not materially affect the value of that asset immediately prior to the sale.
Even with improved liquidity risk management, circumstances could arise in which shareholder purchase and redemption activity could dilute the value of existing shareholders' interests in the fund. For this reason, we are also proposing amendments to rule 22c-1 under the Act to permit a fund (except a money market fund or ETF) to use “swing pricing,” the process of adjusting a fund's NAV to effectively pass on to purchasing or redeeming shareholders more of the costs stemming from their trading activity. Swing pricing could protect existing shareholders from dilution associated with such purchase and redemption activity and could be another tool to manage liquidity risks. Pooled investment vehicles in certain foreign jurisdictions currently use various forms of swing pricing to mitigate shareholder dilution associated with other shareholders' capital activity, and we believe swing pricing could be an effective tool to assist U.S. registered funds in mitigating potential shareholder dilution.
Finally, we are proposing disclosure- and reporting-related amendments to provide greater transparency with respect to funds' liquidity risks and risk management. Specifically, we are proposing amendments to Form N-1A to require disclosure regarding swing pricing, if applicable, and to improve disclosure regarding how funds meet redemptions of fund shares. We also are proposing amendments to proposed Form N-PORT and proposed Form N-CEN to provide detailed information, both to the Commission and the public, regarding a fund's liquidity-related holdings data and liquidity risk management practices. We note that while these disclosure- and reporting-related amendments are primarily applicable to mutual funds that are not money market funds, as well as ETFs, certain of the proposed amendments are applicable to money market funds as well.
We anticipate that these proposed requirements will facilitate the Commission's risk monitoring efforts by providing greater transparency regarding the liquidity characteristics of fund portfolio holdings, as well as to monitor and assess compliance with rule 22e-4 if adopted. While proposed Form N-PORT and proposed Form N-CEN are primarily designed to assist the Commission, we believe that the proposed requirements also would increase investor understanding of particular funds' liquidity-related risks and redemption policies, which in turn would assist investors in making investment choices that better match their risk tolerances.
Today we are proposing new rule 22e-4 under the Investment Company Act, which would require that each registered open-end management investment company, including open-end ETFs but not including money market funds,
Proposed rule 22e-4 would require each fund to adopt and implement a written liquidity risk management program that is designed to assess and manage the fund's liquidity risk.
This proposed definition contemplates that a fund consider both expected requests to redeem, as well as requests to redeem that may not be expected, but are reasonably foreseeable.
The requirements of proposed rule 22e-4, including the liquidity risk assessment requirements, are applicable to all open-end funds, which term is defined to include each separate series of a registered open-end investment company.
Proposed rule 22e-4 includes board oversight provisions related to the liquidity risk management program requirement. Specifically, a fund's board would be required to approve the fund's liquidity risk management program, any material changes to the program, and the fund's designation of the fund's investment adviser or officers as responsible for administering the fund's liquidity risk management program (which cannot be solely portfolio managers of the fund).
Proposed rule 22e-4, as well as the related disclosure and reporting requirements, would apply to all registered open-end funds (including
Although we recognize that various fund characteristics, such as a fund's investment strategy, ownership concentration, redemption policies, and other similar factors, could make a fund relatively more prone to liquidity risk,
We are not proposing to exclude any particular subset of open-end management investment companies other than money market funds from the scope of proposed rule 22e-4, because even funds with investment strategies that historically have entailed relatively little liquidity risk could experience liquidity stresses in certain environments. For example, although most equity securities are generally understood to be more liquid than fixed income securities, investments in certain types of equities involve some degree of liquidity risk.
Like traditional open-end funds, the Commission believes that open-end ETFs could experience liquidity risk, and thus proposes to include open-end ETFs within the scope of rule 22e-4.
The scope of proposed rule 22e-4 does not include closed-end investment companies (“closed-end funds”). Closed-end funds do not issue redeemable securities and are not subject to section 22(e) of the Investment Company Act.
Based on staff analysis, there were 26 closed-end interval funds, representing approximately $5.7 billion in assets, in 2014.
UITs, including ETFs structured as UITs, also would not be covered within the scope of proposed rule 22e-4. A UIT issues redeemable securities, like a traditional open-end fund, which represent undivided interests in an essentially fixed portfolio of securities.
At present, however, the majority of UIT assets are attributable to separate account vehicles that are used to fund variable annuity and variable life insurance products, and the sponsors of these UITs do not typically maintain a secondary market in UIT units.
We are not proposing to include UITs within the scope of the proposed rule for a number of reasons. First, we understand based on staff analysis that approximately 75% of the assets held in UITs currently serve as separate account vehicles that are used to fund variable annuity and variable life insurance products.
Second, UITs are not actively managed, and their portfolios are not actively traded. A UIT buys a relatively fixed portfolio of securities, and generally holds them with little change for the life of the UIT.
Finally, we also are not including UIT ETFs within the scope of proposed rule 22e-4 because UIT ETFs generally track established and widely recognized indices.
We also propose to exclude from the scope of rule 22e-4 all money market funds subject to the requirements of rule 2a-7 under the Investment Company Act. Money market funds are subject to extensive requirements concerning the liquidity of their portfolio assets. As described below, these requirements are more stringent than the liquidity-related requirements applicable to funds that are not money market funds (and that would be applicable to funds that are not money market funds under proposed rule 22e-4), on account of the historical redemption patterns of money market fund investors and the assets held by money market funds.
Money market funds are also subject to liquidity-related disclosure and reporting requirements.
Money market funds also have certain tools at their disposal to manage heavy redemptions that are not available to other open-end funds.
While we request detailed comment on each of the specific elements of proposed rule 22e-4 below, here we request comment on the general program requirement of the proposed rule, as well as the extent to which the proposed program requirement would promote effective liquidity risk management.
• As proposed, rule 22e-4 would require that a fund's liquidity risk management program include certain general elements. Do commenters believe that the general elements of the program would enhance a fund's ability to assess and manage its liquidity risk? Are there any elements that should be excluded from the program requirement, or are there any additional elements that should be included in the program requirement? Should any of the proposed elements be modified? Do commenters believe that the program would enhance funds' management of liquidity risk better than they already do in practice? Do commenters believe that the program would materially strengthen a fund's ability to meet its redemption obligations and would materially reduce potential dilution? Should the rule focus not just on the liquidity of the fund's assets but also more specifically and prominently on its liabilities, such as derivatives obligations, that may affect the liquidity of the fund?
• Should the Commission be more prescriptive in requiring a fund to adopt certain specific policies and procedures for classifying and monitoring the liquidity of portfolio assets, assessing and periodically reviewing liquidity risk, and/or managing the fund's liquidity risk, beyond the proposed requirements of rule 22e-4? If so, what other procedures should the Commission require? Are there operational challenges associated with any of the other procedures the Commission could require? To what extent do funds currently have policies and procedures resembling the proposed program requirements? Have funds' current policies and procedures proven effective at managing liquidity risk, and how have they evolved in recent years? Are these policies and procedures primarily overseen by a fund's chief compliance officer, chief risk officer (if any), or someone else?
We also request comment on the scope of proposed rule 22e-4.
• Do commenters agree that all open-end funds, including open-end ETFs but excluding money market funds, should be subject to the program requirement of the proposed rule? If not, why not? Do commenters agree that the proposed program requirement gives enough flexibility for a fund to adopt a program whose scope, and related costs and benefits, are adequately tailored for that fund to manage its actual and potential liquidity risk?
• Should certain funds or types of funds be excluded from the proposed program requirement, or subject to a different or less stringent requirement, because their investment strategies, ownership concentrations, redemption policies, or some other factor makes them less prone to liquidity risk? If so, which funds or types of funds, and why? Should smaller funds and smaller fund complexes be excluded from the proposed program requirement, or subject to a different or less stringent requirement? Why or why not? How should we distinguish between funds that should be subject to liquidity risk management program requirements and those that should not? Conversely, are there particular types of funds (or investment strategies) that are subject to heightened liquidity risk and should be subject to more prescriptive or stringent requirements under a liquidity risk management program or otherwise? If so, what types of funds should be considered to have higher liquidity risk and why? Can these types of funds be easily categorized or defined? What enhanced liquidity risk management program requirements should be considered for such funds and why? Are there any types of funds (or investment strategies) with such limited liquidity that we should consider limiting their ability to be structured as open-end funds?
• Do commenters agree that open-end ETFs and ETMFs should be included? If not, why not? Do commenters believe that ETFs and/or ETMFs incur additional liquidity risk if they permit redeeming authorized participants to receive cash, rather than an in-kind basket of securities, in exchange for redeemed shares?
• Should any of the requirements of the proposed rule be modified for ETFs or ETMFs on account of the relief from section 22(e) some of these funds receive under their exemptive orders? Should any of the requirements apply differently when an ETF or an ETMF is organized as a class of an open-end fund or as a feeder fund in a master-feeder structure where other classes or feeder funds operate as traditional mutual funds?
Exemptive orders for ETF relief include provisions that govern the composition of portfolio deposits and redemption baskets. In general, portfolio deposits and redemption baskets must represent pro rata slices of the ETF's portfolio and must be the same for all purchasers and redeemers that transact with the ETF on the same day. In recent years, ETF sponsors have requested increased flexibility in determining the composition of portfolio deposits and redemption baskets.
• We request comments on whether such flexibility would result in favorable or unfavorable changes in how ETFs manage the liquidity of their holdings. For example, would ETFs benefit from reduced cash drag? Would the flexibility enable or encourage ETFs to reduce the overall liquidity of their portfolios or to hold a greater amount of relatively illiquid assets? Does the existing 15% guideline adequately address any concerns regarding liquidity that could result from greater basket flexibility? Would the requirements we are proposing adequately address any concerns regarding liquidity that could result from greater basket flexibility? If not, could other requirements adequately address any concerns?
We request comment on the types of investment products that the Commission proposes not to include, or to specifically exclude, from the scope of proposed rule 22e-4.
• Do commenters agree that closed-end funds, including closed-end interval funds, should not be included within the scope of the proposed rule? Should we make any changes to the liquidity requirements for closed-end interval funds?
• Do commenters agree that UITs should not be included within the proposed rule's scope? Is there any subset of UITs that should be considered for inclusion, if only for some aspects of the rule? Is there a significant risk that UITs (or a certain subset of UITs) may not be able to meet redemption requests? With respect to UITs that are not ETFs, and that do not serve as separate account vehicles that are used to fund variable annuity and variable life insurance products, is it reasonable to expect that UIT sponsors would maintain a secondary market in UIT units to the same extent and in the same manner as they have historically?
• Alternatively, should we require UITs to meet certain minimum liquidity requirements at the time of deposit of the securities, such as requiring a UIT to maintain a prescribed minimum portion of its net assets in assets that it believes are convertible to cash within three business days at a price that does not materially affect the value of that asset immediately prior to the sale? Why or why not? What specific requirements of proposed rule 22e-4 should be modified for UITs to account for the facts that UITs are not actively managed, UITs' portfolios are not actively traded, and UITs do not have a board of directors, corporate officers, or an investment adviser to render advice during the life of the trust?
• Is it appropriate that we include ETFs organized as open-end funds but not ETFs organized as UITs within the rule? Should we exclude from the scope of the rule ETFs organized as open-end funds that, similar to UIT ETFs, fully track established and widely recognized indices? Why or why not? Do commenters believe that ETFs organized as open-end funds would reorganize as UITs in response to the rule? Why or why not?
• Do commenters agree that we should specifically exclude money market funds from the scope of proposed rule 22e-4? Is there any subset of money market funds that should be considered for inclusion, if only for some aspects of the rule?
We have not updated the liquidity guidelines applicable to funds and fund portfolio assets in over two decades, and we believe that developments in the fund industry as well as staff observations of funds' current liquidity risk management practices warrant proposing requirements for classifying the liquidity of funds' portfolio positions.
Due to the foregoing concerns, we are proposing new requirements for classifying and monitoring the liquidity of funds' portfolio positions. Under proposed rule 22e-4, a fund would be required to classify the liquidity of each of the fund's positions in a portfolio asset (or portions of a position in a particular asset) and review the liquidity classification of each of the fund's portfolio positions on an ongoing basis.
The proposed liquidity categorization process would be
Proposed rule 22e-4(b)(2)(i) would require a fund to classify each of the fund's positions in a portfolio asset (or portions of a position in a particular asset) based on the relative liquidity of the position.
In making this assessment, a fund could determine that different portions of a position in a particular asset could be converted to cash within different times. If a fund were to conclude, based on the liquidity classification factors required to be considered, that it would take the fund longer to convert its entire position in an asset to cash than it would to convert only a portion of that position to cash, it could determine, for example, that 50% of the position could be converted to cash within 1 day, but the remainder of the position could take up to 3 days to convert to cash. Staff outreach has shown that some funds currently consider the liquidity character of their portfolio holdings—particularly relatively large holdings—to be tiered in this manner, with a certain percentage of the holding deemed to be more liquid than the remainder of the holding. Proposed rule 22e-4 would thus specify that a fund would be
Based on its determination of the number of days within which the fund could convert its position in an asset to cash under this standard, the fund would be required to classify each of its positions in a portfolio asset into one of six liquidity categories:
○ Convertible to cash within
○ Convertible to cash within
○ Convertible to cash within
○ Convertible to cash within
○ Convertible to cash within
○ Convertible to cash in
As discussed below, we anticipate that the proposed liquidity categorization approach would permit a fund to take a more nuanced approach to portfolio construction and liquidity risk management than an approach under which a fund would simply designate portfolio assets as liquid or illiquid. The proposed approach also would provide the framework for detailed reporting and disclosure about the liquidity of funds' portfolio assets in a structured data format, as the six liquidity categories described above would be incorporated into the fund's portfolio holdings reporting on proposed Form N-PORT.
The proposed approach would require a fund to assess the liquidity of its entire position in a portfolio asset, or each portion of that position, as opposed to the liquidity of the normal trading lot for that asset. It has been argued that because a fund will not likely need to sell its entire position in a particular asset under normal market circumstances, liquidity determinations should be based on the sale of a single trading lot for that asset, except in unusual circumstances.
The proposed categorization approach also is meant to promote more consistent liquidity classification practices within the fund industry. Proposed rule 22e-4 would require a fund to consider certain specified factors, to the extent applicable, with respect to each position in an asset (or similar asset(s), if data concerning a particular portfolio asset is not available to the fund). The proposed rule would specify that this consideration must include certain specified market, trading, and asset-specific factors (each discussed in more detail below), as applicable.
Proposed rule 22e-4 does not specify that certain asset classes fall within particular liquidity categories, because we believe that individual funds would be more effective in assessing and reviewing their portfolio positions' liquidity based on an evaluation of market and asset-specific factors, than the Commission would be in determining asset classes' liquidity based on a categorical approach. While we recognize that permitting each fund to determine its own portfolio positions' liquidity would likely result in less consistency in funds' portfolio position liquidity classifications than specifying by rule which asset classes fall into certain liquidity categories, we believe that the proposed approach is preferable to an approach that involves Commission-imposed liquidity classifications of certain asset classes. We are concerned that an approach involving Commission-imposed liquidity classifications would likely result in certain assets' liquidity being overestimated and others' liquidity being underestimated, since we believe that a portfolio position's liquidity character depends on a range of interrelated factors (as discussed
Although we are not proposing an approach that presumes that certain asset classes fall within particular liquidity categories, we note that if a fund is an outlier with respect to its liquidity classifications, Commission staff would be able to identify such outlier classifications based on the fund's position-level liquidity disclosure on Form N-PORT and determine whether further inquiry is appropriate.
The proposed approach to liquidity classification reflects our understanding that many funds evaluate assets' liquidity across a liquidity spectrum, as opposed to making a binary determination of whether an asset is liquid or illiquid. As discussed above, Commission staff outreach to funds has shown us that it is common for funds to treat portfolio assets as relatively liquid or illiquid compared to other portfolio assets, and some funds “score” the liquidity of their portfolio holdings based on a variety of factors, including the period of time it takes to convert the holdings to cash, similar to those that we are proposing. We also understand that some third-party service providers currently provide data and analyses assessing the relative liquidity of a fund's portfolio assets.
A nuanced liquidity classification approach has practical benefits in terms of managing liquidity to meet anticipated redemptions. Because we understand based on staff outreach that many funds today consider very few, if any, of their portfolio assets to be holdings limited by the 15% guideline, we believe that the proposed spectrum-based approach to liquidity classification acknowledges the liquidity variation in funds' portfolio positions better than the current framework, in which a fund could consider its entire portfolio (or a significant portion of the portfolio) to be simply “liquid.” We believe that this approach would permit a fund to better plan how it would meet redemptions occurring in a day, a week, or some other period, by categorizing asset positions in terms of the respective times in which they could be converted to cash and constructing the fund's portfolio in order to manage its expected and reasonably foreseeable redemptions during these periods. The proposed liquidity classification approach also would enhance a fund's ability to adjust its portfolio composition in anticipation of, or in reaction to, adverse events, or to comply with its investment strategy or mandate.
The proposed approach would provide the framework for reporting and disclosure about the liquidity of funds' portfolio assets that would permit our staff to better monitor liquidity trends and funds' liquidity risk profiles, and also would help investors and other market participants assess funds' relative liquidity. As discussed below, we are proposing amendments to proposed Form N-PORT that would require a fund to indicate the liquidity classification of each of a fund's portfolio positions.
The time frames associated with the proposed liquidity categories reflect our understanding of some of the relevant periods that some funds currently consider in assessing the liquidity of a fund's portfolio assets.
Several comments from asset managers received in response to the FSOC Notice noted that, as a practical matter, the three-business-day settlement requirements of rule 15c6-1 effectively take most fund investments to a T+3 settlement timeline.
Along with identifying positions that may be converted to cash within either one business day or two-to-three business days, we believe that identifying each “less liquid asset”—that is, any position in an asset (or portion of a position in a particular asset) that is not a three-day liquid asset
Determining whether a portfolio position is convertible to cash within four-to-seven calendar days would enhance a fund's ability to identify those positions that are not immediately or very quickly convertible to cash (
We understand that circumstances could arise in which the settlement period for a particular portfolio position could be viewed either as two-to-three business days or four-to-seven calendar days. For example, if a sale were to occur on a Thursday and be settled on a Monday, the settlement period could be viewed either as two business days or four calendar days. Because this could cause ambiguity for reporting purposes,
We believe that the eight-to-fifteen calendar day and sixteen-to-thirty calendar day categories of less liquid assets would distinguish a position that is convertible to cash in close to seven calendar days (
Assets with settlement periods longer than three business days would be considered less liquid assets. Assets also should be classified under the rule based on typical expected settlement periods for transactions in that asset in the particular jurisdiction, and not based on the prospect of gaining expedited settlement of the purchase or sale upon request. Transactions in certain types of securities have historically entailed lengthy settlement periods. For example, transactions in certain foreign securities,
We request comment on the proposed requirements for classifying the relative liquidity of a fund's portfolio positions.
• What procedures or practices do funds currently use to assess and classify the liquidity of portfolio assets? Have these procedures proven effective in the past? If not, under what circumstances were they ineffective, and why? Have funds modified their procedures for assessing and classifying liquidity in recent years to account for changes in market structure and the advent of new types of market participants? If so, how? Who at the fund and/or the adviser is tasked with assessing the liquidity of the funds' portfolio assets? Are any third-party service providers used in assessing portfolio assets' liquidity, and if so, how are such service providers used and what are the costs associated with their services? Would the proposed requirements require funds to make systems modifications and what costs would be associated with any potential system modifications? What would the associated costs and other burdens be for funds to assess and classify the liquidity of portfolio assets?
• Do commenters agree that it would be useful for a fund to consider portfolio positions' liquidity in terms of a spectrum instead of a binary determination that an asset is liquid or illiquid, and do funds currently consider the relative liquidity of portfolio assets by classifying assets (either explicitly or informally) into multiple liquidity categories? If so, what categories are used, and why? Alternatively, should we define the term “illiquid assets?” Why or why not? If so, how should we define it?
• Do funds currently consider the period in which a fund's position in an asset can be converted into cash (that is, sold, with the sale settled) in assessing and classifying the liquidity of portfolio assets? Do commenters agree that it would be useful for a fund to assess the liquidity of its entire position in a portfolio asset, or portions of a position in a particular asset, as opposed to the liquidity of a single trading lot of a portfolio asset held by the fund? Do funds currently consider the ability to sell varying portions of a fund's position in a portfolio asset (fractions of the position, as well as the entire position) in assessing that asset's liquidity?
• What assumptions, estimations, and judgments would funds need to make in order to determine liquidity classifications, and how would these assumptions, estimations, and judgments affect the comparability of reporting across funds? Are there concerns, such as proprietary or liability concerns, associated with reporting liquidity classifications based on such assumptions, estimations, and judgments?
• The proposed rule would require a fund to determine, using information obtained after reasonable inquiry, the number of days within which a fund's position in a portfolio asset (or portion of a position in a particular asset) would be convertible to cash at a price that does not materially affect the value of that asset immediately prior to sale. Do commenters believe that the terms “information obtained using reasonably inquiry,” “at a price that does not materially affect the value of that asset,” and “immediately prior to sale” are sufficiently clear? If not, how could they be made clearer?
• Do the proposed liquidity categories reflect the manner in which funds currently assess and categorize the liquidity of their portfolio holdings as part of their portfolio and risk management? Should we increase or decrease the number of liquidity categories to which a fund might assign a portfolio position? For example, should we combine the last three liquidity categories (convertible to cash within 8-15, 16-30, or in more than 30 calendar days) into one liquidity classification category (
• Regarding the proposed liquidity categories that would be associated with less liquid assets, is there any reason why an asset with a settlement period longer than three business days should not be deemed to be a less liquid asset? What types of funds would be largely composed of assets that would be considered less liquid assets under proposed rule 22e-4?
• To what extent do commenters anticipate that assets in the eight-to-fifteen calendar days, sixteen-to-thirty calendar days, and over-thirty calendar days classification categories under the proposed rule overlap with assets that funds currently consider to be limited by the 15% guideline?
• Are the proposed liquidity categories appropriate for ETFs and ETMFs? Should ETFs and ETMFs that transact primarily in kind be permitted to have different liquidity categories? If so, what categories and why?
• Should smaller funds or funds pursuing particular types of investment strategies be permitted to have different liquidity categories? If so, how should we define those subsets of funds?
• Should we use business days or calendar days for all the liquidity classification categories, rather than using business days in the shorter categories, but calendar days for the longer categories? If we used calendar days for all the categories, how could we avoid changes in asset classification based on whether the asset was held near a weekend? In addition, if we used calendar days, how could we obtain information on which assets could be converted to cash within the three business day requirement in rule 15c6-1? If we used business days for all categories, how could we obtain information on which assets could be converted to cash within the seven calendar day (as opposed to business day) requirement for payment of redemption proceeds under section 22(e) of the Act?
Staff outreach to the fund industry has highlighted certain common factors
Proposed rule 22e-4(b)(2)(ii) would require a fund to take the following factors into account, to the extent applicable, when classifying the liquidity of each portfolio position in a particular asset:
• Existence of an active market for the asset, including whether the asset is listed on an exchange, as well as the number, diversity, and quality of market participants;
• Frequency of trades or quotes for the asset and average daily trading volume of the asset (regardless of whether the asset is a security traded on an exchange);
• Volatility of trading prices for the asset;
• Bid-ask spreads for the asset;
• Whether the asset has a relatively standardized and simple structure;
• For fixed income securities, maturity and date of issue;
• Restrictions on trading of the asset and limitations on transfer of the asset;
• The size of the fund's position in the asset relative to the asset's average daily trading volume and, as applicable, the number of units of the asset outstanding; and
• Relationship of the asset to another portfolio asset.
These factors are based on those certain investment advisers consider when systematically evaluating the liquidity of portfolio assets.
If a fund lacks pertinent information about a portfolio asset, the fund would be required to consider the proposed rule 22e-4(b)(2)(ii) factors as applied to similar assets (for purposes of this release, “comparable assets”).
We understand that some third-party service providers currently provide data and analyses assessing the relative liquidity of a fund's portfolio assets,
In the following sections, we discuss each of the proposed liquidity classification factors and provide guidance on specific issues associated with each of these factors that a fund may wish to consider in evaluating the liquidity of its portfolio positions.
Under proposed rule 22e-4(b)(2)(ii)(A), a fund would be required to consider, to the extent applicable, the existence of an active market for the asset, including whether the asset is listed on an exchange, as well as the number, diversity, and quality of market participants.
The manner in which a fund may sell a particular portfolio asset, including whether an asset is listed on an exchange, can affect that asset's liquidity. While in general, being listed on a developed and recognized exchange increases an asset's liquidity,
The means of trading a portfolio asset can affect its liquidity regardless of whether the asset is a security traded on an exchange. For example, whether an asset is traded in a bilateral transaction with a single dealer, or through an electronic auction mechanism whereby a trader can simultaneously contact multiple counterparties, can have different effects on that asset's liquidity.
In addition, there are multiple considerations that a fund could assess in evaluating the diversity and quality of market participants for a particular asset. A fund may wish to consider the number of market makers on both the buying and selling sides of transactions. A fund also may consider the quality of market participants who purchase and sell units of a particular portfolio asset, and may wish to assess, in particular: The market participant's capitalization; the reliability of the market participant's trading platform(s); and the market participant's experience and reputation transacting in various types of assets. We believe that the diversity and quality of market participants are meaningful in assessing a portfolio position's liquidity because the most liquid assets tend to have active sale or repurchase markets at all times with diverse market participants.
Proposed rule 22e-4(b)(2)(ii)(B) would require a fund to consider the frequency of trades and quotes for a particular asset in evaluating the liquidity of a portfolio position in that asset, as well as the asset's average daily trading volume, regardless of whether the asset is a security traded on an exchange.
In general, the greater the frequency of trades for an asset (and, relatedly, the greater the frequency of bid and ask quotes for that asset), the more liquid that asset is. However, this is not a perfect or complete measure, and trade size also should be considered in assessing the relationship between trade frequency and liquidity. For example, 100 trades at $100 might or might not signify greater liquidity than 50 trades at $200, although they are likely to suggest better liquidity than one trade at $10,000.
High average trading volume also tends to be correlated with greater liquidity. In general, the greater the average daily trading volume for a particular portfolio asset, the deeper the market, and the more likely it is that a fund would be able to convert its position to cash at a price that does not materially affect the value of that asset immediately prior to sale.
We note that double-counting of trades is a potential issue to consider when assessing average trading volume. Double-counting occurs because of differences between dealer and auction markets. In a dealer market, trades are “double-counted” because the dealer buys from person A and then sells to person B. In an auction market, person A and B trade directly.
Assets that are components of widely followed market indices tend to have relatively high trading volume, and therefore relatively high liquidity compared to other assets. If a security is included in such an index, market participants are likely to invest in the security in order to replicate the index. This, in turn, will increase demand and trading volume for the security, therefore increasing the security's liquidity compared to securities not in such an index.
Under proposed rule 22e-4(b)(2)(ii)(C), a fund would be required to consider the volatility of trading prices for a particular portfolio asset when evaluating the liquidity of a position in that asset. In general, there is an inverse relationship between liquidity and volatility,
Bid-ask spreads—the difference between bid and offer prices for a particular asset—have historically been viewed as a useful measure for assessing the liquidity of assets that trade in the OTC markets.
Proposed rule 22e-4(b)(2)(ii)(E) would require a fund to consider whether a portfolio asset has a relatively standardized and simple structure in evaluating the liquidity of a position in that asset. Assets that trade OTC with terms set at issuance such as sizes, maturities, coupons, and payment dates tend to be relatively more liquid compared to similarly situated assets without standardized terms. The issue of standardization is particularly significant with respect to the corporate bond market, since corporate issuers commonly have large numbers of bonds outstanding, and trading can be fragmented among that universe of bonds. For example, while each of the top ten largest issuers in the United States had one common equity security outstanding as of April 2014, these issuers collectively had more than 9,000 bonds outstanding.
With respect to fixed income assets, proposed rule 22e-4(b)(2)(ii)(F) would require a fund to consider the maturity of a particular asset, as well as when the asset was issued, in assessing the liquidity of the fund's position in that asset. In general, a fixed income asset trades most frequently in the time directly following issuance, and its trading volume decreases in the asset's remaining time to maturity.
Proposed rule 22e-4(b)(2)(ii)(G) would require a fund to consider any restrictions on trading a particular asset, and limitations on transfers of that asset, in evaluating the liquidity of a portfolio position in that asset. We previously stated that the liquidity of rule 144A securities is “a question of fact for the board of directors [of the fund] to determine based upon the trading markets for the specific security.”
Regardless of whether a portfolio asset is a restricted security, it may nevertheless be subject to other limitations on transfer. For example, for securities that are traded in certain foreign markets, government approval may be required for the repatriation of investment income, capital, or the proceeds of sales of securities by foreign investors.
Under proposed rule 22e-4, a fund's liquidity analysis regarding a particular portfolio asset would be required to take into consideration the ability to sell and receive cash for the entire position (or, as applicable, portions of a position in a particular asset), not only its ability to convert a single trading lot of that asset to cash.
When a fund is evaluating the size of its position in a particular asset as a factor in assessing that position's liquidity, it would be required to consider the extent to which the timing of disposing of the position could create any market value impact.
Under proposed rule 22e-4(b)(2)(ii)(I), a fund would be required to consider, in assessing the liquidity of a position in a particular portfolio asset, whether the fund invests in the asset because it is connected with an investment in another portfolio asset. This may arise in connection with a derivatives transaction, or if the fund uses an asset for hedging or risk mitigation purposes.
When funds enter into certain transactions that implicate section 18 of the Investment Company Act, they generally will maintain in a segregated account certain liquid assets in order to “cover” the fund's obligation under the transactions. We applied this framework to certain financing transactions in Investment Company Act Release No. 10666 (“Release 10666”), issued in 1979,
A fund may purchase an asset in connection with its holding of another asset for other reasons, such as hedging. For example, a fund might purchase a debt security denominated in a foreign currency and attempt to hedge the currency risks associated with the debt security by entering into a currency future. When evaluating the liquidity of the currency future, the fund should consider the way the currency future is being used in the fund's portfolio. In situations where a fund purchases a more liquid asset in connection with a less liquid asset, and it plans to transact in the more liquid asset only in connection with the less liquid asset, then the liquidity of the two assets is linked by the fund and, in this case, the fund should consider the liquidity classification of the foreign debt security when determining the liquidity of the currency future.
We request comment on the proposed factors that a fund would be required to consider, as applicable, in classifying the liquidity of each portfolio position in a particular asset.
• What factors do funds currently use to assess and classify the liquidity of portfolio assets, and do the proposed factors reflect factors that funds already consider when evaluating portfolio assets' liquidity? Do commenters agree that requiring a fund to consider certain factors would encourage effective liquidity assessment across the fund industry? Would considering certain factors improve funds' ability to meet their redemption obligations and to reduce potential dilution of non-redeeming shareholders? Would classification generally enhance funds' liquidity risk management, including funds' ability to meet their redemption obligations and to reduce potential dilution of non-redeeming shareholders?
• Should any of the proposed factors not be required to be considered by a fund in making liquidity determinations? Should any of the proposed factors be modified? Are there any additional factors, besides the proposed factors, that a fund should be required to consider in evaluating the liquidity of a portfolio position in a particular asset? Should the proposed rule text be modified to explicitly exempt certain types of funds from considering certain factors? Or are there additional factors, besides the proposed factors, that should be required to be considered by certain types of funds? Should funds be required to consider correlations between asset classes more generally, outside the derivatives and hedging contexts? Should certain factors be given more weight than others? Should proposed rule 22e-4 explicitly require a fund to classify the liquidity of a position (or portions of a position in a particular asset) used to cover a derivative position using the same liquidity classification category as it assigned to the derivative? Should the Commission provide additional guidance regarding the circumstances in which a fund should consider the liquidity of a particular portfolio asset in relation to the liquidity of another asset? What types of operational challenges would arise in connection with considering the liquidity of a particular portfolio asset in relation to the liquidity of another asset?
• Instead of codifying the factors as part of proposed rule 22e-4, should the Commission solely provide guidance as to what would be appropriate for a fund to consider in assessing its portfolio assets' liquidity? Why or why not? Would the failure to codify the factors diminish how consistently they are applied across the industry?
• Would a more principles-based approach, in lieu of codified factors or guidance, be more appropriate? For example, would it be less costly to implement and allow more flexible use of factors that might be more pertinent in analyzing the liquidity of a particular asset? Or would a more principles-based approach not materially advance portfolio asset liquidity assessments beyond those conducted today under the 15% guidelines, and thus be subject to similar limitations as discussed above as a stand-alone method for liquidity assessment?
• To the extent that a fund lacks pertinent information about a particular portfolio asset, should the fund be required to consider the proposed rule 22e-4(b)(2)(ii) factors with respect to appropriate comparable assets? What characteristics of the portfolio asset and the comparable asset would a fund generally compare in determining the weight to ascribe to the comparable asset's liquidity in evaluating the portfolio asset's liquidity?
• Should ETFs and ETMFs be governed by the same, a subset of, or different factors? If so, which factors and why?
We seek comment on the Commission's guidance regarding each of the proposed factors.
• Besides the guidance, are there any other specific issues associated with any of the proposed factors that a fund may wish to consider in evaluating the liquidity of a portfolio position in a particular asset?
• Do commenters generally agree with the guidance that we have proposed regarding the ways that each of the proposed factors could indicate relative liquidity or illiquidity of a portfolio asset? Should we add a note to rule 22e-4 indicating that the release includes additional guidance regarding the proposed factors?
Proposed rule 22e-4(b)(2)(i) would require a fund to review the liquidity classification of each of the fund's portfolio positions on an ongoing basis. As appropriate, a fund could determine to revise its liquidity classification of a portfolio position based on this ongoing
As discussed above, Commission staff understands, based on outreach to the fund industry and information provided by industry participants, that different funds employ varying approaches to monitoring the liquidity of individual assets and positions. We understand that some funds may not normally review the liquidity of individual portfolio assets on a continuing basis after they are acquired. On the other hand, our staff learned through outreach efforts across the fund industry that certain funds periodically reassess the liquidity of each portfolio security based on market-wide developments, as well as events affecting particular securities or asset classes.
Pursuant to the proposed ongoing review requirement, each fund would be required to consider the rule 22e-4(b)(2)(ii) factors, as applicable, in reviewing its portfolio positions' liquidity on an ongoing basis.
In adopting ongoing review policies and procedures, a fund generally should include policies and procedures for identifying market-wide developments, as well as security- and asset-class-specific developments, that could demonstrate a need to change the liquidity classification of a portfolio position. For instance, relevant market-wide developments could include changes in interest rates or other macroeconomic events, market-wide volatility, market-wide flow changes, dealer inventory or capacity changes, and extraordinary events such as natural disasters or political upheaval.
We request comment on the proposed ongoing review requirement.
• How do funds currently monitor the liquidity of portfolio assets, and how frequently do they do so? To what extent do funds anticipate that the ongoing review procedures that would be required under proposed rule 22e-4 would replicate the procedures funds currently use to monitor whether portfolio assets are limited by the 15% guideline? Are current processes largely automated? Do funds believe that systems could be used to automate the monitoring that would be required under proposed rule 22e-4? What trade-offs or risks does automated monitoring pose vis-à-vis manual monitoring, and how do firms currently manage those risks? Are there circumstances in which automated monitoring is inappropriate, and, if so, why?
• Is the ongoing review requirement, as proposed, sufficiently clear? Are there certain approaches to ongoing review that we should require and/or on which we should provide guidance? Should we specify a minimum time period for funds to review their liquidity classifications under proposed rule 22e-4? Should we require that a fund monitor for certain specified developments or events, and/or expand our guidance on the market-wide and security- and asset-class-specific developments that a fund could consider?
We believe that assessing and managing liquidity risk in a comprehensive manner is critical to a fund's ability to honor redemption requests within the seven-day period required under section 22(e) of the Investment Company Act, as well as within any shorter time period disclosed in the fund's prospectus or advertising materials or required for purposes of rule 15c6-1. Proposed rule 22e-4(a)(7) would define liquidity risk as the risk that the fund could not meet requests to redeem shares issued by the fund that are expected under normal conditions, or are reasonably foreseeable under stressed conditions, without materially affecting the fund's net asset value. This proposed definition contemplates that a fund consider both expected requests to redeem (
A fund's liquidity risk depends on a variety of factors, including, among others, its cash flows, investment strategy, portfolio liquidity, use of borrowings and derivatives, cash (and cash equivalents) on hand, and borrowing arrangements.
Because we are concerned with funds' ability to meet their redemption obligations and to mitigate shareholder dilution associated with redemptions, we are proposing new requirements for assessing and managing funds' liquidity risk. Proposed rule 22e-4(b)(2)(iii) would require a fund to assess and periodically review its liquidity risk, taking into account certain factors. Proposed rule 22e-4(b)(2)(iv) would require a fund to manage its liquidity risk based on this assessment, including: (i) Requiring the fund to determine (and periodically review) a minimum percentage of the fund's net assets that must be invested in three-day liquid assets (the fund's “three-day liquid asset minimum”);
We are proposing these new requirements with the goal of providing funds with the flexibility to adopt policies and procedures that would be most appropriate to assess and manage their liquidity risk, while at the same time reducing the risk that funds will be unable to meet redemption obligations, minimizing dilution, and elevating the overall quality of liquidity risk assessment and management across the fund industry. Given that a fund's liquidity risk arises from the interaction of multiple discrete and overlapping factors, we believe that the most effective liquidity risk management programs would be multi-faceted and customized to reflect the sources of the fund's liquidity risk. The requirements that we are proposing are therefore intended to be largely principles-based and would permit a fund to tailor its risk assessment and management procedures to respond to the fund's particular risks and circumstances. On the other hand, we also believe that requiring each fund to consider, as a baseline, a standard set of factors for assessing liquidity risk, requiring each fund to keep a minimum portion of net assets in cash and assets that the fund believes are convertible to cash within three business days without materially affecting the value of the asset (which minimum each fund would determine based on standard factors), and limiting a fund's holdings of 15% standard assets would create an overall framework that we believe would assist the development of effective and thorough liquidity risk assessment and management across the fund industry, thereby strengthening the ability of funds to meet redemption obligations
Proposed rule 22e-4 envisions a two-pronged liquidity risk assessment and risk management process, whereby a fund would be required to assess its liquidity risk, based on certain specified factors, and then develop a liquidity risk management program tailored to the fund's liquidity risk.
The proposed rule would require each fund to take the following factors into account, as applicable, in assessing the fund's liquidity risk:
○ Short-term and long-term cash flow projections, taking into account the following considerations:
Size, frequency, and volatility of historical purchases and redemptions of fund shares during normal and stressed periods;
The fund's redemption policies;
The fund's shareholder ownership concentration;
The fund's distribution channels; and
The degree of certainty associated with the fund's short-term and long-term cash flow projections
○ The fund's investment strategy and liquidity of portfolio assets;
○ Use of borrowings and derivatives for investment purposes; and
○ Holdings of cash and cash equivalents, as well as borrowing arrangements and other funding sources.
This list is not meant to be exhaustive. In assessing its liquidity risk, a fund may take into account considerations in addition to the factors set forth in proposed rule 22e-4(b)(2)(iii). For example, if a fund elects to conduct stress testing
We recognize that some of the proposed factors may not be applicable in assessing the liquidity risk of certain funds or types of funds. For example, we recognize that certain considerations that the proposed rule would require a fund to consider in assessing its cash flow projections (
Below we provide guidance on specific issues associated with each of the proposed liquidity risk assessment factors. We also request comment below with respect to each of the proposed factors, as well as guidance regarding each factor.
A fund's cash flow (the amount of cash flowing either into or out of the fund) is important in determining whether the fund will have sufficient cash to satisfy redemption requests.
A fund would be required to consider the size, frequency, and volatility of historical purchases and redemptions of fund shares, during both normal and stressed periods, when considering its cash flow projections.
A fund may wish to evaluate whether the size, frequency, and volatility of its shareholder flows follow any discernable pattern. For example, patterns in shareholder flows have been observed relating to seasonality,
While historical redemption patterns are an important factor in assessing cash flows, a fund should be cognizant of the limitations of using past flow history to assess future cash flow needs. Therefore, a fund would be required to take into account other factors when considering cash flow projections, including its redemption policies.
A mutual fund also would be required to consider its shareholder ownership concentration as a factor affecting its cash flow projections.
There are multiple ways that a mutual fund's distribution channels could affect its cash flows (including the predictability of the fund's cash flows), and the proposed rule would require a mutual fund to consider this factor in evaluating its cash flows and related liquidity risk.
Finally, a fund would be required to consider the degree of certainty surrounding its short-term and long-term cash flow projections.
Under proposed rule 22e-4, a fund's procedures for assessing its liquidity risk must take into account the effects that the fund's investment strategy and the liquidity of its portfolio assets could have on the fund's liquidity risk.
The extent to which a fund's portfolio is diversified (or, relatedly, a fund's concentration in certain types of portfolio assets) could have ramifications on the fund's potential liquidity risk as well. A fund's status as a diversified investment company under the Investment Company Act,
In addition to diversification or concentration issues, a fund's portfolio management decisions that are meant, in part, to decrease an undesirable tax impact on the fund could affect the fund's liquidity risk. For example, a fund whose portfolio includes foreign securities might manage its portfolio to avoid securities transaction taxes imposed by other jurisdictions.
While we believe consideration of a fund's investment strategy is an important factor in assessing a fund's liquidity risk, we caution that different types of funds within the same broad investment strategy may demonstrate different levels of liquidity (and thus, presumably, different levels of liquidity risk).
Proposed rule 22e-4 would require a fund to take into account the potential effects of the use of borrowings and derivatives for investment purposes (for example, to enhance returns) on its liquidity risk.
The use of derivatives, such as futures, forwards, swaps and written options, may also affect a fund's liquidity risk. Funds use derivatives for a wide range of purposes, including hedging or risk mitigation, but also to obtain leverage or investment exposures.
Even highly liquid derivatives may present liquidity risk for some funds. For example, some funds use derivatives for cash and liquidity management purposes. A large-cap equity fund with a temporary cash position may purchase equity index futures that have lower transaction costs, shorter settlement periods and greater liquidity than a direct investment in equity securities, in order to obtain a degree of exposure to large-cap equities. While “equitizing” its temporary cash position in this manner may mitigate the potential performance lag associated with a cash holding, it also exposes the fund to market risk.
In addition to the liquidity of the derivatives positions themselves, assessing liquidity risk generally may include an evaluation of the potential liquidity demands that may be imposed on the fund in connection with its use of derivatives, including any variation margin or collateral calls the fund may be required to meet.
Proposed rule 22e-4 would require a fund to consider its cash and cash equivalent holdings, as well as its borrowing arrangements and other funding sources, in assessing its liquidity risk.
Entering into borrowing arrangements and agreements with other potential funding sources also could affect a fund's liquidity risk, as they could assist the fund in paying redeeming shareholders without the need to sell portfolio securities under circumstances that could impair the fund's NAV.
A fund also could engage in interfund lending within a family of funds if the fund has obtained exemptive relief from the Commission permitting the arrangement.
Finally, a fund could generate liquidity through repurchase transactions, whereby the fund could agree to sell securities to another party at a specified price with a commitment to buy the securities back at a later date for another specified price. A repurchase agreement is structurally similar to a short-term loan, and thus a fund could use repurchase agreements to temporarily borrow cash to repay redeeming shareholders. A fund may find it instructive to consider how factors such as market conditions, supply and demand factors, whether the repurchase agreement is on a bilateral or tri-party basis, and counterparty credit risk could affect the ability of repurchase transactions to mitigate liquidity risk.
A fund's borrowing and other funding arrangements are subject to restrictions on affiliated transactions and leverage under the Investment Company Act and rules under the Act. For example, funds must obtain exemptive relief from the Commission before executing transactions that implicate section 17 of the Investment Company Act, which restricts transactions between an “affiliated person of a registered investment company or an affiliated person of such affiliated person” and that investment company.
We request comment on the proposed liquidity risk assessment requirement.
• Do commenters believe that the definition of “liquidity risk” in proposed rule 22e-4 is appropriate? Within the proposed definition, are the terms “reasonably foreseeable” and “without materially affecting the fund's NAV” clear? If not, how could the definition of “liquidity risk,” and terms within the proposed definition, be made more appropriate and/or clear?
• How do funds currently assess their liquidity risk? Who at the fund and/or the adviser is tasked with assessing the fund's liquidity risk? Who should be tasked with assessing the fund's liquidity risk? Should the proposed rule specify the officers or functional areas
We also request comment on each of the proposed factors that each fund would be required to consider in assessing its liquidity risk.
• What factors do funds currently use to assess their liquidity risk, and do the proposed factors reflect factors that funds (and/or the adviser, as applicable) already consider when evaluating liquidity risk? Should any of the proposed factors not be required to be considered by a fund in assessing its liquidity risk? Should any of the proposed factors be modified? Are there any additional factors, besides the proposed factors, that a fund should be required to consider in assessing liquidity risk? Should any of the proposed factors be given additional weight and, if so, under what circumstances?
• Instead of codifying the proposed factors as part of proposed rule 22e-4, should we provide guidance on factors that might be appropriate for a fund to consider in assessing its liquidity risk?
We seek comment on the Commission's guidance discussed above regarding each of the proposed factors.
• Besides the guidance, are there any other specific issues associated with any of the proposed factors that a fund may wish to consider in assessing the fund's liquidity risk? Do commenters generally agree with the guidance that the Commission has proposed regarding the ways in which each of the proposed factors could contribute to a fund's liquidity risk? Should the staff provide additional guidance about the factors? Should we add a note to rule 22e-4 indicating that the release includes additional guidance regarding the proposed factors?
• Are there any factors or procedures that would be of particular use to a fund without a substantial operating history in assessing liquidity risk? Would a new fund look to purchase and redemption activity in similar funds to predict its flow patterns?
Proposed rule 22e-4(b)(2)(iii) would require a fund to periodically review the fund's liquidity risk, taking into account each of the factors of proposed rule 22e-4(b)(2)(iii)(A)-(D) (discussed above in sections III.C.1.a-III.C.1.d). We believe that the periodic review of a fund's liquidity risk is necessary to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained. Like the proposed requirement to monitor the liquidity of portfolio assets,
We request comment on the proposed liquidity risk review requirement.
• How do funds currently review liquidity risk? How often do funds currently review this risk? To what extent do funds anticipate that the periodic review procedures that would be required under proposed rule 22e-4 would replicate procedures funds currently use to periodically evaluate liquidity risks facing the fund?
• Are there certain review procedures that the Commission should require and/or on which the Commission should provide guidance? Should the Commission specify how frequently a fund must review its liquidity risk? Should funds review liquidity risk at least as frequently as they conduct ongoing liquidity reviews? Should the Commission expand its guidance on regulatory, market-wide, and fund-specific developments that a fund's review procedures should cover?
Proposed rule 22e-4(b)(2)(iv)(A) would require each fund to determine the fund's “three-day liquid asset minimum” as part of its liquidity risk management program.
A fund's board would be required to approve the fund's three-day liquid asset minimum (including any changes to the fund's three-day liquid asset minimum),
We are proposing the requirement for each fund to determine a three-day liquid asset minimum to increase the likelihood that the fund will hold adequate liquid assets to meet redemption requests without materially affecting the fund's NAV. Although the Commission has stated that open-end funds have a general responsibility to maintain an appropriate level of portfolio liquidity, no requirements under the federal securities laws or Commission rules specifically oblige open-end funds (with the exception of money market funds) to maintain a minimum level of portfolio liquidity.
We believe setting the minimum amount of liquid assets in the fund based on three-day liquid assets is appropriate for a number of reasons. Most funds sell at least some of their shares through broker-dealers, and thus, as a practical matter, are required as a result of rule 15c6-1 under the Exchange Act to meet redemptions within three business days.
Consistent with the time period referenced in section 22(e) of the Act, we considered requiring that a fund determine a minimum amount of liquid assets based on assets convertible to cash within seven calendar days at a price that does not materially affect the value of that asset immediately prior to sale (“seven-day liquid assets”). Determining a minimum amount of seven-day liquid assets would require that a fund have a certain amount of liquidity to meet redemptions within the seven-day period required under the Act. However, we were concerned that requiring a minimum amount of seven-day liquid assets would not as well match regulatory requirements and disclosures that require most funds to meet redemption requests in shorter time periods and market practices and investor expectations that effectively require all funds to meet redemption requests in shorter time periods. We thus believe that a three-day liquid asset minimum more effectively advances our goals of reducing the risk that funds will be unable to meet redemptions and mitigating dilution.
We anticipate that the proposed requirement for a fund to consider certain factors, including the factors required in assessing the fund's liquidity risk, in determining its three-day liquid asset minimum would promote investor protection by reducing the risk funds will be unable to meet their redemption obligations, mitigating dilution, and elevating the overall quality of liquidity risk management across the fund industry. The consideration of certain factors also would require every fund to consider multiple aspects of its history, policies, strategy, and operations that could give rise to liquidity risk.
When determining its three-day liquid asset minimum, a fund must consider short-term and long-term cash flow projections, taking into account the following factors, which we discussed previously in connection with the assessment of a fund's liquidity risk:
1. the size, frequency, and volatility of historical purchases and redemptions of fund shares during normal and stressed periods;
2. the fund's redemption policies;
3. the fund's shareholder ownership concentration;
4. the fund's distribution channels; and
5. the degree of certainty associated with the fund's short-term and long-term cash flow projections.
We believe consideration of cash flow projections is pivotal to setting an appropriate three-day liquid asset minimum. The primary goal of a minimum level of liquidity is to ensure that each fund is able to meet redemptions and to do so with minimal dilution of shareholders' interests. Doing so requires that the fund's adviser, to the best of its ability, understands potential levels of net redemptions and the causes and timing of those redemptions. To adequately make such projections, we believe a fund must consider the sub-factors described above. For example, it would be important to understand not just the magnitude of redemptions the fund tends to receive, but also how frequent redemptions of various sizes are and how volatile the fund's flows are. It also may be important to understand how the fund's redemption activity compares to funds with similar investment strategies, for example, to understand whether the fund may have unique liquidity risks (or lack liquidity risks) that may make past redemption experiences less predictive of future redemption risk. It would be essential that the fund formulate its cash flow projections after considering the factors in both normal and stressed periods—minimum liquidity would not likely advance the Commission's goal of reducing the risk that funds will be unable to meet redemptions and mitigating dilution if funds can only meet redemptions in stressed conditions through sales of portfolio assets that create dilution and significantly increase the fund's liquidity risk. In addition, a fund, though not required to do so, may wish to consider employing some form of stress testing
In formulating the fund's cash flow projections, a fund also must consider the fund's redemption policies, shareholder ownership concentration, and distribution channels. These are
In setting its three-day liquid asset minimum, a fund also must consider its investment strategy and the liquidity of portfolio assets. A finding of the DERA Study is that certain investment strategies typically have greater volatility of flows than other investment strategies. For example, the DERA Study indicates that the mean standard deviation of monthly net flows for alternative funds is 13.6% and for emerging market debt funds is 9.4%, but is only 2.7% for municipal bond funds and 4.9% for U.S. corporate bond funds.
A fund also must consider its use of borrowings and derivatives in setting its three-day liquid asset minimum. A leveraged fund has an increased risk that it will be unable to meet redemptions and an increased risk of investor dilution compared to an equivalent fund with no leverage. For example, a fund with leverage through bank borrowings may have to meet margin calls if a security the fund provided to the bank to secure the loan declines in value. Such margin calls can render highly liquid portfolio assets unavailable to meet investor redemptions, which can increase dilution and the risk the fund will be unable to meet redemptions. Similarly, a fund that has significant fixed obligations to derivatives counterparties (for example, from a total return swap or writing credit default swaps) must pay out on these obligations when due, even if it means selling the fund's more liquid, high quality assets to raise cash.
Finally, a fund must consider its holdings of cash and cash equivalents, as well as borrowing arrangements and other funding sources when determining its three-day liquid asset minimum. Unencumbered cash and cash equivalents are assets that the fund can typically readily deploy, in normal and stressed conditions, to meet redemptions. A fund can have cash on hand to meet redemptions from cash held in the fund's portfolio, cash received from investor purchases of fund shares, interest payments and dividends on portfolio securities, or maturing bonds. Our staff observed that several fund complexes targeted a minimum amount of cash or cash equivalent holdings in the fund because they assumed such holdings would allow the fund to meet redemptions in a stressed period without realizing significant discounts to fair value when the asset was sold. Accordingly, higher cash and cash equivalent holdings may make a fund more comfortable that it can meet redemptions under stressed conditions with a lower three-day asset minimum than an equivalent fund whose three-day asset minimum was comprised primarily of non-cash equivalent assets. A fund also should consider whether it has a line of credit or other funding sources available to it to meet redemptions. As discussed further below, while we believe that liquidity risk management is best conducted primarily through portfolio construction, we recognize a line of credit can facilitate a fund's ability to meet unexpected redemptions.
Because each fund would be required to maintain a written record of how its three-day liquid asset minimum was determined, including an assessment of each of the factors discussed above,
Although a fund would be permitted to determine its three-day liquid asset minimum under the analysis required by the proposed rule, we generally believe that it would be extremely difficult to conclude, based on the factors it would be required to consider, that a zero three-day liquid asset minimum would be appropriate. Under the proposed rule, a fund's three-day liquid asset minimum would be a control to manage the fund's liquidity risk, and as discussed above the fund's three-day liquid asset minimum would be required to be determined based on the consideration of certain specified factors.
By way of example, consider a bank loan fund with a ten-year track record. The fund has a history of volatile cash
We considered establishing a floor for the three-day liquid asset minimum. For example, we considered requiring that a fund set its three-day liquid asset minimum after consideration of the factors described above, but in no event could the minimum be below a certain specified percentage of the fund's net assets or a certain multiple of its average or worst net redemptions. A uniform percentage three-day liquid asset minimum floor could be difficult, however, given the diverse range of funds to which it would apply and the range of net redemptions within different types of funds indicated by the DERA Study. If set relatively high, a uniform percentage floor risks requiring excessive liquidity in some funds given their portfolio characteristics, investor base, and flow projections, which may unnecessarily constrain the fund's returns and investment in certain assets frustrating investors' goals in choosing to invest in the fund. If set relatively low, it may encourage some funds to set low levels of three-day liquid asset minimums that would not effectively manage liquidity risk or mitigate dilution. A floor also could be set based on a fund's historical redemptions. However, such a floor would not be forward-looking—a fund should be setting its minimum liquidity based in large part on projections of expected future redemptions. Such an approach risks a fund setting its minimum liquidity too low, for example during a period of rapid inflows that are likely to soon reverse. Conversely, continuing with the same example, it risks setting minimum liquidity too high after those flows have in fact reversed.
Accordingly, we preliminarily believe our proposed approach appropriately balances these considerations by requiring that a rigorous set of factors be considered and documented, and the three-day liquid asset minimum approved by the fund's board, but otherwise allow the minimum to be tailored to the nature of the fund and its cash flow projections. It should allow funds with different investment strategies, and whose cash flow and liquidity needs vary notably from one fund to the next, to manage their individual levels of liquidity risk in a way that best serves their investors.
We also note that assets eligible for inclusion in each fund's three-day liquid asset minimum holdings could include a broad variety of securities, as well as cash and cash equivalents. While one fund may conclude that it is appropriate to hold a significant portion of its three-day liquid assets in cash and cash equivalents, another could decide it is appropriate to hold equity, debt, derivatives or asset-backed securities as the majority of its three-day liquid asset minimum holdings. We believe that the proposed three-day liquid asset minimum requirement would allow funds to continue to meet a wide variety of investors' investment needs by obliging funds to maintain appropriate liquidity in their portfolios, while permitting funds to remain substantially invested in portfolio assets that conform to their investment strategies.
The proposed three-day liquid asset minimum requirement reflects liquidity management strategies that we understand from staff outreach that some—but not all—funds use. Based on staff outreach, we understand that funds of different sizes, with varying investment strategies, manage their liquidity by maintaining specified portions of their portfolios in more liquid assets. Some funds invest a certain percentage of their assets in cash and cash equivalents; others invest in other types of more liquid portfolio securities corresponding with their investment strategies. To the extent that a fund already maintains a specified portion of its portfolio in more liquid assets, we anticipate that the proposed three-day liquid asset minimum requirement would formalize this risk management strategy, and augment it by requiring the fund to consider certain factors in determining the portion of assets that the fund will maintain in three-day liquid assets. More importantly, it would require the many funds that do not consider maintaining a minimum amount of liquidity, despite their obligations to meet redemptions within a certain time period, to do so.
Under proposed rule 22e-4(b)(2)(iv)(C), a fund would not be permitted to acquire any less liquid asset if, immediately after the acquisition, the fund would have invested less than its three-day liquid asset minimum in three-day liquid assets.
While we believe that fund shareholders' interests are generally best served when the percentage of a fund's assets invested in three-day liquid assets is at (or above) the fund's three-day liquid asset minimum,
Under proposed rule 22e-4(b)(2)(iv)(B), each fund would be required to periodically review the adequacy of the fund's three-day liquid asset minimum, and in conducting such review would be required to take into account the factors a fund would be required to consider in determining its three-day liquid asset minimum. We believe the factors used to determine a fund's three-day liquid asset minimum also provide an appropriate framework for reviewing the adequacy of a fund's three-day liquid asset minimum because, as discussed below, changes in the assessment of the factors could provide a basis for adjusting the three-day liquid asset minimum. A fund would be required to complete this review no less frequently than semi-annually,
Because we anticipate that a fund would rely significantly on its three-day liquid assets in meeting fund redemptions, we view the three-day liquid asset minimum determination as a cornerstone of a fund's liquidity risk management, and we believe it is important for a fund to periodically reassess whether its three-day liquid asset minimum effectively assists the fund in managing its liquidity risk. We envision the determination of a fund's three-day liquid asset minimum as a dynamic process, incorporating new or updated information into the fund's assessment of factors, reflecting shareholder-related, fund-management-oriented, or market changes that could affect the fund's ability to meet redemptions. A fund's three-day liquid asset minimum could become outdated for multiple reasons. For example, a fund's shareholder ownership concentration could change or market events could reveal that shareholder redemption patterns are different than anticipated under certain circumstances. Additionally, market events or national regulatory, monetary, and fiscal policies could affect the liquidity of a fund's portfolio assets. Any of these events, or similar events influencing a fund's cash flows, portfolio liquidity, or the other liquidity risk factors included in proposed rule 22e-4(b)(2)(iii), could alter the level of three-day liquid assets that a fund would determine appropriate to manage its liquidity risk.
Like the proposed requirements to perform an ongoing review of the liquidity of portfolio assets and to review periodically the fund's liquidity risk,
We request comment on all aspects of the proposed three-day liquid asset minimum requirement.
• Do commenters agree that the proposed three-day liquid asset minimum requirement would improve a fund's ability to meet redemption requests without materially affecting the fund's NAV? Are we correct that not all funds today target holding a minimum amount of more liquid assets?
• Do commenters agree that the proposed requirement would promote investor protection by enhancing funds' ability to meet their redemption obligations, mitigating dilution, and elevating the overall quality (comprehensiveness as well as independence) of liquidity risk management across the industry? Would the proposed requirement assist fund boards in overseeing funds' ability to meet redemption obligations?
• Should we define the three-day liquid asset minimum as proposed? Should we define three-day liquid assets as proposed? If not, why not? Are there other definitions that would be better? If so, what are they? Should we preclude certain assets or types of assets from being considered three-day liquid assets? If so, which assets or asset types and why? For example, should we prohibit funds from classifying as three-day liquid assets any assets that are subject, directly or indirectly, to a guarantee, put, wrap, swap, or other liquidity enhancement from a third party? Alternatively, should we require specific disclosure regarding such assets? If so, what should be included in the disclosure? Should we require that the fund more stringently or frequently monitor the liquidity of three-day liquid assets?
• Would an alternate liquid asset holdings requirement (
• Instead of permitting each fund to determine the portion of liquid asset holdings that would most effectively enable it to manage its own liquidity risk, should the Commission instead mandate a standard level of required minimum liquid asset holdings across-the-board, or different levels depending on different investment strategies (or some other fund characteristic)? If so, at what level (
• Should the Commission set a floor below which a fund could not set its three-day liquid asset minimum? Should it do so only for funds that hold above a certain percentage of net assets in less liquid assets? If so, what percentage of less liquid assets should trigger the mandated floor on the three-day liquid asset minimum? What should the floor on the three-day liquid asset minimum be for such funds?
• In addition to specifying that a fund must determine its three-day liquid asset minimum, should the Commission also require a fund to limit its investment in a subset of less liquid assets held by a fund (
• Should we exclude certain funds from the proposed requirement to determine a three-day liquid asset minimum? For example, should a fund that only invests in three-day liquid assets be required to determine a three-day liquid asset minimum?
• Instead of a requirement that limits the acquisition of less liquid assets when such acquisition would result in a fund investing less than its required minimum in three-day liquid assets, would a requirement mandating that a fund always maintain a specified portion of its assets in three-day liquid assets better facilitate funds' liquidity risk management and promote investor protection? Should a fund be required to hold some minimum portion of assets in holdings that are likely to be liquid in stressed market environments? If so, what type of assets, at what level, and what considerations would form the basis for the recommended level?
• As noted above, the three-day liquid asset minimum would be tested each time the fund acquires new assets, and a fund would be permitted to fall below its three-day liquid asset minimum if it does so due to redemptions or market events. Once a fund falls below its three-day liquid asset minimum, any acquisition of new assets must be of three-day liquid assets until the fund is at or above its three-day liquid asset minimum. Should we limit the time period (
• Should the board be required to approve the fund's three-day liquid asset minimum and any changes to the three-day liquid asset minimum? Why or why not?
We request comment on how the three-day liquid asset minimum requirement (or a similar requirement) could affect the management of a fund's liquidity risk, decrease the probability that the fund will be able to meet redemption obligations only through activities that could materially affect the fund's NAV or risk profile, and mitigate dilution.
• What range of levels of three-day liquid assets do commenters anticipate different funds would determine to be appropriate, based on the factors the proposed rule would require a fund to consider? What types of securities do commenters anticipate that different funds would determine are or are not appropriate as three-day liquid asset minimum holdings?
• How many funds today target a minimum level of more liquid assets? If some funds indeed aim to invest a certain portion of their assets in more liquid assets for purposes of liquidity risk management, what types of assets do funds hold for these purposes, and how do funds determine what portion of their net assets they intend to invest in these assets? What burdens and other difficulties, if any, would funds have in initially complying with the three-day liquid asset minimum requirement?
• What are the processes that commenters anticipate a fund would use for determining and reviewing its three-day liquid asset minimum under the proposed rule? Do commenters generally agree with the guidance that the Commission has provided regarding the processes a fund could use to determine and review its three-day liquid asset minimum? Should the minimum frequency of the fund's review of the adequacy of its three-day liquid asset minimum be shorter than semi-annually (such as quarterly) or longer (such as annually)?
• Should the Commission specify certain procedures that a fund must use in determining its three-day liquid asset minimum, such as requiring a fund to consider specific historical redemption scenarios? Should we require that the minimum not be less than, for example, a fund's highest historical level of net redemptions, its average level of net redemptions over some time period, or a multiple (
We request comment on the proposed factors that each fund would be required to consider in determining and reviewing its three-day liquid asset minimum.
• To what extent do funds already consider the proposed factors when determining the portion of fund assets that should be invested in more liquid assets for purposes of liquidity risk management? Do commenters believe it is appropriate for a fund to consider the same set of factors in determining and reviewing its three-day liquid asset minimum as it considers in assessing and reviewing its liquidity risk? Are there other factors that would be preferable?
• Should any of the proposed factors not be required to be considered by a fund in determining and reviewing its three-day liquid asset minimum? Should any of the proposed factors be modified? Are there any additional factors, besides the proposed factors, that a fund should be required to consider?
• Instead of codifying the proposed factors as part of proposed rule 22e-4, should the Commission provide guidance on factors that may be appropriate for a fund to consider in determining and reviewing its three-day liquid asset minimum? Should the Commission provide additional guidance on the proposed factors?
Included in proposed rule 22e-4 is a limit on a fund's ability to acquire “15% standard assets.” Specifically, proposed rule 22e-4(b)(2)(iv)(D) would prohibit a fund from acquiring any 15% standard asset if, immediately after the acquisition, the fund would have invested more than 15% of its net assets in 15% standard assets. The provision would not require a fund to divest any holdings if 15% standard assets rise above 15% of its net assets.
Under proposed rule 22e-4(a)(4), a 15% standard asset would be defined as any asset that may not be sold or disposed of in the ordinary course of business within seven calendar days at approximately the value ascribed to it by the fund.
As discussed above, the Commission and staff have in the past provided guidance in connection with the 15% guideline.
We believe that the proposed limit on 15% standard assets and the proposed three-day liquid asset minimum each serve distinctly important, but interrelated, roles in managing liquidity risk. We therefore propose to require each fund to comply with the limit on 15% standard assets as well as the three-day liquid asset minimum requirement. While the three-day liquid
While this definition is similar to the definition of an asset that cannot be converted to cash within seven days under the proposed liquidity classification framework, we note several key differences between the definitions. When determining whether an asset may be sold or disposed of within seven calendar days for purposes of assessing whether the asset is a 15% standard asset, a fund need not consider whether it can receive the proceeds of such sale or disposition within the same seven-day time period. In contrast, the classification framework takes into consideration whether a fund could convert an asset to cash—that is, sell the asset and receive cash for the sale within this period. Also, the definition of 15% standard asset does not require a fund to consider any specific factors in determining the circumstances under which an asset may be sold or disposed of. The definition of less liquid asset, on the other hand, requires a fund to consider, as applicable, certain market, trading, and asset-specific factors set forth in proposed rule 22e-4(b)(2)(ii).
To provide an example of the distinctions between the proposed 15% standard and the proposed three-day liquid asset minimum, consider a fund that holds a very large block of a particular security “X”. Because the fund holds a large block of the issue, it may determine, based on the liquidity classification factors required to be considered under the proposed rule, that it could convert a certain percentage (
Consider as well a scenario in which a fund holds shares of security “Y,” and the fund determines, based on the liquidity classification factors required to be considered under the proposed rule, that it can
Conversely, consider a fund that holds shares of security “Z,” a privately placed security that the fund determines cannot be sold within seven days at approximately the value ascribed to it by the fund. Under the proposed rule, security “Z” would be considered a less liquid asset, because it would not be able to be converted to cash (that is, sold, with the sale settled) within three business days. Security “Z” also would be considered to be a 15% standard asset, because it would not be able to be sold within seven days at approximately the value ascribed to it by the fund. The fund would take these classifications into account when it is considering whether the further acquisition of less liquid assets or 15% standard assets would cause the fund to not be in compliance with its three-day liquid asset minimum
The scenarios depicted in the preceding paragraphs demonstrate that the same asset could be deemed to be a less liquid asset but
We request comment on the proposed 15% standard.
• Do commenters agree that the Commission should include the 15% standard in proposed rule 22e-4? Would the 15% standard enhance funds' ability to manage liquidity risk?
• Do commenters agree that the three-day liquid asset minimum requirement and the 15% standard serve distinct roles in managing liquidity risk? Is there a single alternative standard that would be an effective substitute for the three-day liquid asset minimum requirement and the 15% standard?
• Should the Commission instead adopt a different restriction on funds' investments in assets whose liquidity is extremely limited, and if so, what should this restriction be? For example, should we adopt a different percentage limit on funds' investments in 15% standard assets? Should we instead limit funds' investments in some other subset of assets with extremely limited liquidity, such as assets that can only be converted to cash in over 7 days, over
• As noted above, the 15% standard would be tested each time the fund acquires new assets, and a fund would be permitted to hold more than 15% of its net assets in 15% standard assets if it does so due to redemptions or market events. Once a fund rises above the 15% limit, any acquisition of new assets must be of non-15% standard assets until the fund is at or below the 15% standard. Would a requirement mandating that a fund divest excess 15% standard assets if its holdings of these assets rise above 15% of its net assets better facilitate funds' liquidity risk management and promote investor protection? Or should we limit the time period (
• Should the Commission modify the proposed definition of 15% standard assets to require that funds take into account the time period associated with receipt of proceeds of sale or disposition of an asset?
• Do commenters agree with the proposal to withdraw current guidance associated with the 15% guideline? Do commenters believe additional guidance is needed in connection with the proposed definition of 15% standard asset? If so, what guidance should the Commission provide?
• What assets do funds currently consider to be limited by the 15% guideline? Do commenters believe that assets that would meet the proposed definition of 15% standard asset are consistent with assets that funds currently classify as illiquid under the 15% guideline? If not, what types of assets would be classified differently?
• What are funds' current practices for determining whether a portfolio asset is limited by the 15% guideline, and what factors do funds currently use to make this determination? Who at the fund and/or the adviser is tasked with determining whether a portfolio asset is limited by the 15% guideline, and how often is each asset reviewed? Do funds expect to engage in the same practices for determining whether an asset is a 15% standard asset?
• Would it be beneficial to funds for the Commission to include as part of the rule certain types of securities whose acquisition would be limited by the 15% standard, or other factors for funds to consider in determining whether an asset is a 15% standard asset? Do commenters believe that confusion could arise between the definition of a 15% standard asset and the definition of a less liquid asset under the proposed rule, and if so, how could this confusion be reduced?
• Rule 2a-7 currently defines the term “illiquid security” to mean “a security that cannot be sold or disposed of in the ordinary course of business within seven calendar days at approximately the value ascribed to it by the fund.”
Along with ETFs, which commonly redeem shares in kind, many mutual funds reserve the right to redeem their shares in kind instead of in cash.
Besides using in-kind redemptions as an emergency measure to manage liquidity risk, funds may also use in-kind redemptions for other reasons. For example, funds may wish to redeem certain investors (particularly, large, institutional investors) in kind, because in-kind redemptions could have a lower tax impact on the fund than selling portfolio securities in order to pay redemptions in cash. This, in turn, could benefit the remaining shareholders in the fund.
There are often logistical issues associated with paying in-kind redemptions, and this limits the availability of in-kind redemptions under many circumstances.
We believe that, as part of a fund's management of its liquidity risk, a fund that engages in or reserves the right to engage in in-kind redemptions should adopt and implement written policies and procedures regarding in-kind redemptions, and we have included this requirement in proposed rule 22e-4.
• Our understanding is that redemptions in kind are not used extensively outside ETFs. Is this assumption correct? Do funds that engage in redemptions in kind have policies and procedures regarding those redemptions? Are there steps that funds can take to make redemptions in kind easier to implement?
• Under rule 18f-1, any registered open-end fund that has the right to redeem in kind could file with the Commission a notification of election committing itself to pay in cash all requests for redemptions by any shareholder of record, limited in amount during any ninety-day period to the lesser of $250,000 or 1 percent of the net asset value of the fund at the beginning of the period.
While proposed rule 22e-4 specifies that each fund would be required to adopt a liquidity risk management program incorporating certain specified elements, a fund's program could incorporate liquidity risk management tools beyond the requirements of the proposed rule. We understand that many funds currently engage in certain practices that would not be required by proposed rule 22e-4, but which could enhance funds' ability—in conjunction with the policies and procedures required to be adopted under the proposed rule—to manage liquidity risk. Specifically, we understand based on staff outreach that it is relatively common for funds to establish lines of credit to manage liquidity risk, and that funds may use borrowed money or draw on other funding sources to meet shareholder redemptions, typically during periods of significantly limited market liquidity. We also understand that it is relatively common for certain funds (particularly, funds with strategies involving investment in relatively less liquid portfolio securities) to invest in ETFs to enhance the liquidity of the fund's portfolio. Below we provide guidance funds may wish to consider in using these tools and their role in a fund's liquidity risk management program. We note that the liquidity risk management tools discussed below do not comprise an exhaustive list of liquidity risk management controls or procedures that a fund could consider implementing, nor are we currently proposing to mandate that a fund use these tools as part of its liquidity risk management program.
In addition, there are currently several tools that a fund could use, generally under emergency circumstances, to pay redeeming shareholders during periods in which the fund encounters limited liquidity. As discussed above, many funds reserve the right to redeem their shares in kind instead of in cash, although we understand that many funds that do so consider in-kind redemptions to be a last resort or emergency measure. As a separate emergency measure, money market funds (but not other funds) are currently permitted, under certain circumstances, to permanently suspend shareholder redemptions and liquidate the fund. Below we request comment on whether this tool would be useful and appropriate for the Commission to make available to funds besides money market funds.
As discussed above, entering into borrowing arrangements and agreements with other potential funding sources could strengthen a fund's management of liquidity risk, as they could be used to pay redeeming shareholders without the need to sell portfolio securities at significantly discounted prices. For example, a fund could establish a committed or uncommitted line of credit with a commercial bank, engage in interfund lending within a family of funds, or use repurchase transactions to generate liquidity.
We understand that certain funds, particularly funds with investment strategies involving relatively less liquid portfolio securities (such as micro-cap equity funds, high-yield bond funds and bank loan funds), may invest a portion of their assets in ETFs with strategies similar to the fund's investment strategy because they view ETF shares as having characteristics that enhance the liquidity of the fund's portfolio.
While we appreciate that ETFs' exchange-traded nature could make these instruments useful to funds in managing purchases and redemptions (for example, ETFs' settlement times could more closely reflect the time in which a fund has disclosed that it will typically redeem fund shares), funds should consider the extent to which relying substantially on ETFs to manage liquidity risk is appropriate. As discussed above, the liquidity of an ETF, particularly in times of declining market liquidity, may be limited by the liquidity of the market for the ETF's underlying securities.
Section 22(e) of the Investment Company Act permits a fund to suspend redemptions in specified unusual circumstances, including for any period during which an emergency exists (only as determined by Commission rules and regulations) as a result of which it is not reasonably practicable for the fund to liquidate its portfolio securities, or fairly determine the value of its net assets.
We also request comment below on whether the Commission should consider proposing rules that would permit funds to suspend redemptions under other circumstances not involving the liquidation of the fund.
We request comment on the above discussion and guidance regarding certain tools that a fund could use to manage liquidity risk beyond the requirements specified in proposed rule 22e-4.
• Are there any specific liquidity risk management policies or procedures, beyond those that would be required by proposed rule 22e-4(b)(2)(iv)(A)-(E), that funds should be required to implement? What procedures, separate from any that resemble those required by proposed rule 22e-4(b)(2)(iv)(A)-(E), do funds currently use to manage liquidity risk?
• Do commenters generally agree with our guidance discussed above on the use of borrowing arrangements and other funding sources, the use of ETFs to manage portfolio liquidity, and the use of redemptions in kind? Is any additional guidance needed on the liquidity risk management tools described in this section? Are there any other issues associated with specific liquidity risk management tools or techniques about which we should provide guidance? To the extent that funds use liquidity risk management tools outside those mentioned in this section, what guidance, if any, is needed regarding those tools?
• Regarding borrowing arrangements and other funding sources, would additional guidance be useful regarding specific types of borrowing arrangements?
• When using ETFs to manage liquidity, do funds consider the liquidity of the ETFs' portfolio securities? Why or why not?
We also request specific comment on several current rules that touch on liquidity risk management issues and the suspension of shareholder redemptions.
• Would proposing a rule similar to rule 22e-3 for funds other than money market funds protect the interests of fund investors if the fund were to liquidate? If so, under what circumstances should funds be permitted to suspend redemptions and postpone payment of redemption proceeds, and should a fund's board be required to make any finding in connection with a fund's suspension of redemptions?
• Should we consider proposing rules that would permit funds to suspend redemptions under other circumstances, such as rules that would specify certain emergency circumstances that would permit funds to suspend redemptions under section 22(e)? How could we define such emergency circumstances? For example, should we define emergency circumstances to include situations where redemptions exceeded a high level over a certain period of time or where asset price volatility in the markets exceeded a certain level making it difficult for the fund to accurately price?
Funds, subject to the requirements of the Investment Company Act, are permitted to engage in “cross-trading,” that is, securities transactions with certain of their affiliated persons, including other funds within the fund family. Some funds may seek to use cross-trading as an additional liquidity risk management tool. Rule 17a-7, however, includes conditions that limit the portfolio assets that may be cross-traded, and as discussed below, cross-trades that involve certain less liquid assets may not be eligible to rely on the rule. We propose below guidance relating to the use of cross-trading in response to investor redemptions.
Section 17 of the Investment Company Act restricts transactions between an “affiliated person of a registered investment company or an affiliated person of such affiliated person” and that investment company—for example, transactions between a fund and another fund managed by the same adviser.
Cross-trading can benefit funds and their shareholders, for example by allowing funds that are mutually interested in a securities transaction that is consistent with the investment strategies of each fund to conduct such a transaction without incurring transaction costs and without generating a market impact.
Certain less liquid assets may be ineligible to trade under rule 17a-7 due to this requirement. Indeed, the less liquid an asset is, the more likely it may not satisfy rule 17a-7.
In addition, when considering whether cross-trading would be an effective and appropriate liquidity risk management tool, a fund's adviser should consider its duty to seek best execution for each fund potentially involved in the cross-trading transaction, as well as its duty of loyalty to each fund.
• Does our guidance (combined with existing guidance) relating to rule 17a-7 provide sufficient protections for cross-trades involving assets that are only traded over the counter and, depending on the facts and circumstances, may be less liquid? If not, what additional guidance or protections might be warranted to protect funds and investors from unfairness or abuse in cross-trades?
Proposed rule 22e-4(b)(3)(i) would require each fund to obtain initial approval of its written liquidity risk management program from the fund's board of directors, including a majority of independent directors.
Directors may satisfy their obligations with respect to this initial approval by reviewing summaries of the liquidity risk management program prepared by the fund's investment adviser or officers administering the program, legal counsel, or other persons familiar with the liquidity risk management program. The summaries should familiarize directors with the salient features of the program and provide them with an understanding of how the liquidity risk management program addresses the required assessment of the fund's liquidity risk, including how the fund's investment adviser or officers administering the program determined the fund's three-day liquid asset minimum. In considering whether to approve a fund's liquidity risk management program, the board may wish to consider the nature of the fund's liquidity risk exposure. A board also may wish to consider the adequacy of the fund's liquidity risk management program in light of recent experiences regarding the fund's liquidity, including any redemption pressures experienced by the fund.
Proposed rule 22e-4(b)(3)(i) also would require each fund to obtain approval of any material changes to the fund's liquidity risk management program, including changes to the
The fund's board would be responsible under the proposed rule for reviewing a written report from the fund's investment adviser or officers administering the fund's liquidity risk management program, provided no less frequently than annually, that reviews the adequacy of the fund's liquidity risk management program, including the fund's three-day liquid asset minimum, and the effectiveness of its implementation.
Proposed rule 22e-4(b)(3)(iii) would expressly require a fund to designate the fund's investment adviser or officers (which may not be solely portfolio managers of the fund) responsible for administering the fund's liquidity risk management program, which designation must be approved by the fund's board of directors. Designating the fund's investment adviser or officers responsible for the administration of the fund's liquidity risk management program, subject to board oversight, is consistent with the way we understand most funds currently manage liquidity.
We understand, based on staff outreach, that some funds employ a dedicated risk management officer and task liquidity risk management to this officer, in consultation with the fund's portfolio management function. The board of a fund that employs a dedicated risk management officer (or an officer whose role includes risk management among other duties) may find it appropriate to designate administration of the fund's liquidity risk management program to this officer. We request comment below on whether a fund should be required to specifically task administration of the fund's liquidity risk management program to a dedicated risk officer, or whether we should otherwise specify the officer who must administer the fund's liquidity risk management program.
Because the administration of a fund's liquidity risk management program would be designated to a fund's investment adviser or officers, the investment adviser or officers should provide the board with enough information to oversee such administration. As discussed above, the fund's investment adviser or officers would therefore be required to provide the board with a written report on the adequacy of the fund's liquidity risk management program, including the three-day liquid asset minimum, and the effectiveness of its implementation, at least annually. To the extent that a serious compliance issue arises under the program, it may be appropriate to consider whether the event should be brought to the board's attention promptly.
We understand that, in certain circumstances, a fund's service providers may assist a fund and its investment adviser in monitoring factors relevant to a fund's liquidity risk and managing the fund's liquidity risk. For example, third parties could provide data relevant to assessing fund flows. Also, a sub-adviser's portfolio management responsibilities would involve investing a fund's assets in accordance with the fund's three-day
We request comment on the proposed board approval and oversight requirements.
• Do fund boards currently approve procedures for classifying the liquidity of portfolio assets? Do fund boards take any additional steps to oversee the liquidity of portfolio assets? Should the Commission require boards, including a majority of independent directors, to approve the initial liquidity risk management program, including the three-day liquid asset minimum?
• Should the Commission require boards to approve material changes to a fund's liquidity risk management program, including any changes to a fund's three-day liquid asset minimum? Should the Commission define what would constitute a “material change” to a fund's liquidity risk management program or provide additional guidance regarding what changes would constitute material changes? Alternatively, should the Commission require boards to approve all changes to a fund's liquidity risk management program? Or, similar to rule 38a-1 regarding a fund's compliance program, should there be no requirement for board approval of changes to the liquidity risk management program?
• Does the release provide adequate guidance to fund boards regarding their approval of the liquidity risk management program? Should we provide any additional guidance in this regard?
• Do commenters agree that it would be appropriate to require a fund to designate the fund's adviser or officers responsible for administering a fund's liquidity risk management program, subject to board approval? Is it appropriate to specify that those administering the program may not be solely the fund's portfolio managers? Would any small fund complexes have difficulty meeting the proposed requirement that the program may not be solely administered by the fund's portfolio manager? Is it appropriate to allow a fund to designate a fund sub-adviser responsible for administering a fund's liquidity risk management program? Should the Commission require a fund to task administration of the fund's liquidity risk management program to a specific officer of the fund? Should the Commission require that a fund have a chief risk officer or risk committee administer the fund's liquidity risk management program?
• Should the Commission specify a shorter or longer frequency for review of a report on the fund's liquidity risk management program? Should the report to the board cover both the adequacy and effectiveness of the fund's liquidity risk management program as well as the adequacy of the fund's three-day liquid asset minimum? Alternatively, would a report reviewing the adequacy of the fund's three-day liquid asset minimum likely provide a review of the fund's liquidity risk management program overall given the factors that must be assessed in setting the three-day liquid asset minimum?
• Are there other aspects of the fund's liquidity risk management program about which the fund's investment adviser or officers responsible for administering the program should report to the board? Should we provide any additional guidance to fund boards in connection with the approval and oversight of a fund's liquidity risk management program?
We are proposing to require that each fund maintain a written copy of the policies and procedures adopted as part of its liquidity risk management program for five years, in an easily accessible place.
Finally, we are proposing to require that each fund keep a written record of how its three-day liquid asset minimum, and any adjustments thereto, were determined, including the fund's assessment and periodic review of its liquidity risk in light of the factors incorporated in paragraphs (b)(2)(iii)(A) through (D) of proposed rule 22e-4.
The records discussed above are designed to provide our examination staff with a basis to determine whether a fund has adopted a liquidity risk management program in compliance with the requirements of proposed rule 22e-4. Specifically, such records would help our staff to determine whether a fund's program incorporates the elements required to be included under paragraph (b)(2) of proposed rule 22e-4. We also anticipate that these records would assist our staff in identifying weaknesses in a fund's liquidity risk management if violations do occur or are uncorrected.
The five-year retention period in proposed rule 22e-4(c) is consistent with that in rule 38a-1(d) under the Act. We believe consistency in these retention periods is appropriate because funds currently have program-related recordkeeping procedures in place incorporating a five-year retention period, which we believe would lessen the compliance burden to funds slightly, compared to choosing a different retention period, such as the six-year recordkeeping retention period under rule 31a-2 of the Act. Taking this into account, we believe a five-year retention period is a sufficient period of time for our examination staff to evaluate whether a fund is in compliance (and
We request comment on the proposed liquidity risk management program recordkeeping requirements.
Do commenters agree that the proposed recordkeeping requirements are appropriate? Specifically, are there any additional records associated with a fund's liquidity risk management program that a fund should be required to keep? Should a fund be required to keep a written record of how the liquidity classifications of each of the fund's positions in a portfolio asset were determined, including assessment of the factors set forth in proposed rule 22e-4(b)(2)(ii)? Should a fund be required to keep a written record of what liquidity classifications were determined for each of the fund's positions in a portfolio asset? Do commenters anticipate that, to the extent that data regarding certain factors that a fund would be required to consider in classifying its portfolio positions' liquidity could be obtained largely through automated systems, it would be possible to easily re-create a record of how past liquidity classifications assigned to a fund's portfolio positions were determined? Are there feasible alternatives to the proposed rule that would minimize recordkeeping burdens, including the costs of maintaining the required records?
Do commenters agree that the five-year retention period for records that would be required to be kept pursuant to proposed rule 22e-4(c) is appropriate? If not, what retention period would commenters recommend? Would commenters recommend a six-year retention period? Why or why not?
We specifically request comment on any alternatives to the proposed recordkeeping requirements that would minimize recordkeeping burdens on funds, the utility and necessity of the proposed recordkeeping requirements in relation to the associated costs and in view of the public benefits derived, and the effects that additional recordkeeping requirements would have on funds' internal compliance policies and procedures.
Rule 22c-1 under the Investment Company Act, the “forward pricing” rule, requires funds, their principal underwriters, dealers in fund shares, and other persons designated in a fund's prospectus, to sell and redeem fund shares at a price based on the current NAV next computed after receipt of an order to purchase or redeem.
To the extent that a fund were to apply a purchase fee or redemption fee, shareholders would, at least to a certain extent, bear the transaction-related costs associated with their purchase and redemption requests.
While forward pricing captures the changes in portfolio assets' value that arise as a result of market-wide trading, it does not necessarily reflect any disparity between the market price of a portfolio asset at the end of the day (as determined for purposes of striking a fund's NAV) and the price that a fund receives for trading that asset. This scenario could arise, for example, in situations in which an asset's value changes throughout the day, and the price that a fund receives when trading that asset differs from the market value of the asset at the end of the day. It also could arise if a fund were forced to sell a relatively less liquid asset at an inopportune time, and thus had to accept a price for that asset that incorporates a significant discount to the asset's stated value.
To provide an illustration of a situation in which forward pricing may not result in a fund's NAV reflecting the price that a fund actually received when it sold portfolio assets, consider the following example. If a fund has valued portfolio asset X at $10 at the beginning of day 1, and market activity on day 1 (including the fund's sale of portfolio asset X) decreases the market value of portfolio asset X to $9 at the end of day 1, the fund's remaining holdings of portfolio asset X at the end of day 1 would be valued at $9 to reflect the asset's market value on that day. However, staff outreach has shown that it is common industry practice, as permitted by rule 2a-4, for the fund's current NAV to not reflect the actual price at which the fund has sold the
Similarly, as noted above, the price that a purchasing shareholder pays for fund shares normally does not take into account trading and market impact costs that arise when the fund buys portfolio assets to invest the proceeds received from shareholder purchases. For example, when a fund experiences net inflows, it may invest the proceeds of shareholder purchases over several days following the purchase of fund shares. Thus, the purchase price that shareholders receive on day 1 would not reflect any transaction fees associated with investing the proceeds of shareholder purchases on subsequent days, or any market activity (including the fund's purchase of portfolio assets) that increases the value of the fund's portfolio assets. To illustrate, if the fund's NAV on day 1 (and the purchase price an incoming shareholder were to receive on day 1) reflects portfolio asset X being valued at $10, but the fund were to purchase additional shares of portfolio asset X on day 2 at $11, the price that a purchasing shareholder pays on day 1 would not reflect the costs of investing the proceeds of the shareholder's purchases of fund shares. These costs instead would be reflected in the fund's NAV on days following the shareholder's purchase, and thus would be borne by all of the investors in the fund, not only the shareholders who purchased on day 1.
Certain foreign funds currently use “swing pricing,” the process of adjusting the fund's NAV to effectively pass on the market impact costs,
The European Commission's 2009 revised Undertakings for Collective Investment in Transferable Securities (“UCITS”) Directive does not specifically provide for swing pricing, but does provide that “[t]he rules for the valuation of assets and the rules for calculating the sale or issue price and the repurchase or redemption price of the units of a UCITS shall be laid down in the applicable national law, in the fund rules or in the instruments of incorporation of the investment company.”
Commission rules and guidance do not currently address the ability of a fund to use swing pricing to mitigate potential dilution of fund shareholders. The Commission has previously recognized that excessive trading of mutual fund shares could dilute the value of long-term investors' shares,
Because we believe that swing pricing could be a useful tool in mitigating potential dilution of fund shareholders, we are proposing rule 22c-1(a)(3), which would permit certain mutual funds (but not ETFs or money market funds) to use swing pricing under certain circumstances. Proposed rule 22c-1(a)(3) specifies the conditions under which we believe swing pricing would be appropriately used. Below we describe in detail the proposed requirements that a fund using swing pricing would be obliged to follow, the objectives of the proposed rule, and certain considerations that a fund should generally assess in determining whether swing pricing would be an effective tool to prevent fund dilution and promote fairness among all its shareholders. The proposed rule is designed to promote
Under proposed rule 22c-1(a)(3), a registered open-end investment company (but not a registered investment company that is regulated as a money market fund,
“Swing threshold” would be defined as “the amount of net purchases into or net redemptions from a fund, expressed as a percentage of the fund's net asset value, that triggers the initiation of swing pricing.” Proposed rule 22c-1(a)(3)(v)(D). We request comment on this definition in section III.F.1.c below.
In determining whether the fund's level of net purchases or net redemptions has exceeded the fund's swing threshold, the person(s) responsible for administering the fund's swing pricing policies and procedures
Under the proposed rule, in-kind purchases and in-kind redemptions would be excluded from the calculation of net purchases and net redemptions for purposes of determining whether a fund's net purchases or net redemptions exceed its swing threshold.
We are proposing rule 22c-1(a)(3) to provide funds with a tool to mitigate the potentially dilutive effects of shareholder purchase and redemption activity. Funds would be able to adopt swing pricing policies and procedures in their discretion (although, once these policies and procedures are adopted, a fund would be required to adjust its NAV when net purchases or net redemptions cross the swing threshold, unless the fund's board approves a change to the fund's swing threshold). When a fund that has adopted swing pricing experiences net purchases exceeding the swing threshold, it would adjust its NAV upward, which would effectively require purchasing shareholders to cover near-term costs associated with the fund investing in additional portfolio assets. Conversely, when a fund that has adopted swing pricing experiences net redemptions exceeding the swing threshold, it would adjust its NAV downward, which would effectively require redeeming shareholders to cover near-term costs associated with the fund selling portfolio assets. In both cases, swing pricing would result in the costs of trading portfolio assets (along with transaction fees and charges relating to these trades) being passed on to purchasing and redeeming shareholders.
As discussed above, some foreign funds currently use swing pricing, which suggests that these funds consider swing pricing to be a valuable and effective means of decreasing dilution. Indeed, one investment manager conducted a study of its funds whose prices swung over a one-year period (over fifty funds) and found that the performance of each of these funds would have been impaired, in some cases quite considerably, had the manager not implemented a swing pricing policy.
In addition, money market funds are permitted to use liquidity fees under rule 2a-7.
In considering the swing pricing proposal, we considered proposing a rule that would permit “dual pricing” as opposed to swing pricing. We understand that certain foreign funds use dual pricing as an alternative means of mitigating potential dilution arising from shareholder transaction activity. A fund using dual pricing would not adjust the fund's NAV by a swing factor when it faces high levels of net purchases or net redemptions, but instead would quote two prices—one for incoming shareholders (reflecting the cost of buying portfolio securities at the ask price in the market), and one for outgoing shareholders (reflecting the proceeds the fund would receive from selling portfolio securities at the bid price in the market).
We recognize that swing pricing may involve potential disadvantages to funds as well as potential advantages, and the provisions of proposed rule 22c-1(a)(3) are designed to maximize the relative
The swing pricing requirements in proposed rule 22c-1(a)(3) aim to minimize NAV volatility (and related tracking error) associated with swing pricing to the extent possible. Swing pricing could increase the volatility of a fund's NAV in the short term, because NAV adjustments would occur when the fund's net purchases or net redemptions pass the fund's swing threshold. Thus, the fund's NAV would show greater fluctuation than would be the case in the absence of swing pricing. This volatility might increase tracking error (
Proposed rule 22c-1(a)(3) envisions partial swing pricing (that is, a NAV adjustment would not be permitted unless net purchases or net redemptions exceed a threshold set by the fund and approved by the fund's board) and not full swing pricing (that is, a NAV adjustment
We recognize that there are other trade-offs that a fund would have to consider in determining to implement swing pricing. For example, application of a swing factor would affect all purchasing and redeeming shareholders equally, regardless of whether the size of an individual shareholder's purchases or redemptions alone would create material trading costs for the fund. This could cause certain shareholders to experience benefits or costs, relative to the other shareholders in the fund, that otherwise would not exist. For example, an investor who purchases fund shares on a day when a fund adjusts its NAV downward would pay less to enter the fund than if the fund had not adjusted is NAV on that day. And, while a small investor's redemption requests would not likely create significant liquidity costs for the fund on its own, if this investor were to redeem on the same day that the fund's net redemptions cross the swing threshold, his or her redemption proceeds would be reduced by the NAV adjustment. These concerns, however, are partially mitigated by the fact that shareholders could be assured that the same threshold level of net purchase and net redemption activity (as approved by the fund's board) would consistently trigger the use of swing pricing, unless the fund's board and a majority of the fund's independent directors were to approve a change in the fund's swing threshold.
We believe that an adequate level of transparency about swing pricing is critical for investors to understand the risks associated with investing in a particular fund. As discussed in section III.G below, proposed disclosure and reporting requirements regarding swing pricing would assist shareholders in understanding whether a particular fund has implemented swing pricing policies and procedures and has used swing pricing. We are not, however, proposing to require a fund to publicly disclose its swing threshold, because of concerns that certain shareholders may attempt to time their transactions based on this information,
We seek comment on the general swing pricing process as contemplated by proposed rule 22c-1(a)(3). We seek specific comment on the process a fund would use to determine and review its swing threshold and to calculate the swing factor it would use to adjust its NAV, and on the proposed approval and oversight requirements associated with swing pricing policies and procedures, below.
• Do commenters agree that swing pricing could be a useful tool for U.S. registered funds in mitigating potential dilution of fund shareholders? Do commenters believe that dilution arising from costs associated with certain purchases or redemptions of fund shares is a significant problem that funds currently face, have historically faced under certain market conditions, or might be expected to face in the future?
• Do commenters agree that the proposed rule should require a fund that adopts swing pricing policies and procedures to adjust the fund's NAV when the fund's level of net purchases
• Should a fund be permitted to use full swing pricing, as opposed to the partial swing pricing contemplated by the proposed rule? Why or why not?
• Under the proposed rule, when net purchases or net redemptions of a fund that has adopted swing pricing policies and procedures exceed the fund's swing threshold, the price that
• Would the use of purchase fees, redemption fees and/or liquidity fees (either separately or in combination) be a more or less effective means of mitigating potential dilution than swing pricing? Why or why not? Would the use of purchase fees, redemption fees and/or liquidity fees (either separately or in combination) entail burdens and costs that are higher or lower than the burdens and costs associated with swing pricing? What types of operational challenges would arise with swing pricing as opposed to purchase fees, redemption fees, and liquidity fees? Are purchase fees, redemption fees, and liquidity fees feasible for those funds whose shares are primarily held through third-party intermediaries?
• Would the use of dual pricing be a more or less effective means of mitigating potential dilution than swing pricing? What types of operational challenges would arise with swing pricing vs. dual pricing?
• Would allowing funds to require certain investors to accept in-kind redemptions in certain circumstances be a more or less effective means of mitigation potential dilution than swing pricing in those circumstances?
• Do commenters agree that the swing pricing framework contemplated by proposed rule 22c-1(a)(3) responds as effectively as possible to the potential concerns associated with swing pricing? Specifically, we request comment on the extent to which the swing pricing requirements incorporated into the proposed rule would reduce volatility and respond to transparency-related concerns. Would any performance volatility that could result from swing pricing result in market distortions if some funds adopt swing pricing but other, similarly situated funds do not? Do commenters believe that the use of partial swing pricing, as opposed to full swing pricing, would mitigate concerns that the swing pricing would increase a fund's volatility? Do these proposed requirements also effectively respond to transparency-related concerns associated with swing pricing, and would the proposed disclosure requirements regarding swing pricing also respond to transparency concerns? Would any alternative or additional swing pricing requirements more effectively respond to potential concerns about volatility or transparency (or any other concerns) associated with swing pricing?
• As proposed, rule 22c-1(a)(3) would permit, but not require, a fund to adopt swing pricing policies and procedures. What process do commenters anticipate that a fund may use to weigh the potential advantages and disadvantages of swing pricing in relation to the fund's particular circumstances and risks? Should each fund's board be required to determine whether swing pricing is appropriate for each fund? Should all funds, or a particular subset of funds (
• Proposed rule 22c-1(a)(3) would permit the person(s) responsible for administering a fund's swing pricing policies and procedures to make the
• As proposed, rule 22c-1(a)(3) would require a fund to exclude any purchases or redemptions that are made in kind and not in cash when determining whether the fund's level of net purchases or net redemptions has exceeded the fund's swing threshold. Is this exclusion appropriate? Why or why not?
Proposed rule 22c-1(a)(3) would apply to all registered open-end management investment companies, with the exception of money market funds and ETFs.
All investment companies that fall within the scope of proposed rule 22e-4, with the exception of ETFs, would be permitted to use swing pricing under proposed rule 22c-1(a)(3), and a fund may decide to adopt swing pricing policies and procedures as part of the liquidity risk management program it would be required to implement under proposed rule 22e-4. Under proposed rule 22c-1(a)(3), swing pricing would be voluntary for funds, and some fund complexes may decide to use swing pricing for certain funds within the complex but not others, or establish different swing thresholds for different funds within the complex.
We are not proposing to include closed-end investment companies, UITs, ETFs or money market funds within the scope of proposed rule 22c-1(a)(3). Closed-end investment companies do not issue redeemable securities and therefore would not incur costs associated with shareholder purchase and redemption activity that would necessitate swing pricing. Similarly, where a UIT sponsor maintains a secondary market in units of a UIT series, we believe that the series is unlikely to ever need to use swing pricing. In addition, since UITs do not frequently trade their underlying securities, but instead maintain a relatively fixed portfolio, investor flows do not generally affect the portfolio, and thus purchases and sales of UIT shares would not likely produce dilutive effects to existing shareholders.
Although we believe that ETFs could experience liquidity risk and thus have included them within the scope of proposed rule 22e-4,
In addition to our belief that ETFs' purchase and redemption practices would generally not entail the risk of dilution for existing shareholders, we are also not including ETFs within the scope of the proposed rule because we believe that swing pricing could impede the effective functioning of an ETF's arbitrage mechanism.
We are also not proposing to include money market funds within the scope of proposed rule 22c-1(a)(3). Money market funds are subject to extensive requirements concerning the liquidity of their portfolio assets. Also, a money market fund (other than a government fund) is permitted to impose a liquidity fee on redemptions if its weekly liquid assets fall below a certain threshold, and these fees serve a similar purpose as the NAV adjustments contemplated by swing pricing.
We also believe that the liquidity fee regime permitted under rule 2a-7 is a more appropriate tool for money market funds to manage the allocation of liquidity costs than swing pricing. First, while funds would be able to adopt swing pricing policies and procedures at their discretion, rule 2a-7 requires a money market fund under certain circumstances to impose a 1% liquidity fee on each shareholder's redemption, unless the fund's board of directors (including a majority of its independent directors) determines that such fee is not in the best interests of the fund, or determines that a lower or higher fee (not to exceed 2%) is in the best interests of the fund.
We seek comment on the scope of proposed rule 22c-1(a)(3).
• Do commenters agree that the proposed rule should apply to all registered open-end management investment companies except money market funds and open-end ETFs?
• Do commenters agree that the risk of investor dilution is low for closed-end investment companies and UITs, and thus closed-end investment companies and UITs should not be included within the scope of proposed rule 22c-1(a)(3)?
• Do commenters agree that the risk of investor dilution is low for ETFs, whether ETFs purchase and redeem in cash or in kind? Why or why not? Do commenters agree that swing pricing could adversely affect the effective functioning of an ETF's arbitrage mechanism? Why or why not? Regardless of these considerations, should ETFs be permitted to use swing pricing, and do commenters anticipate that ETFs would use swing pricing if the scope of proposed rule 22c-1(a)(3) were expanded to include ETFs?
• If the scope of the proposed rule were expanded to include ETFs, are there any swing pricing operational considerations specific to ETFs that we should address? For example, if an ETF were to adopt swing pricing, how should we address any shareholder fairness implications that could result if certain authorized participants were to transact in cash and others were to transact in kind on a day when the fund swings its NAV? Should ETFs be permitted to use swing pricing in addition to imposing transaction fees on authorized participants, or as an alternative to such fees? Should we address implications of the proposed rule on exemptive relief that has been granted to existing ETFs? Should we also consider the implications of the proposed rule on an ETF that operates as a share class of a fund that also offers mutual fund share classes, or on an ETF that operates as a feeder fund investing in a master fund alongside mutual fund feeder funds?
• We seek comment on how the utilization of swing pricing by an ETF could affect the capital markets, in particular, market-making in the ETF. If the scope of the rule were expanded to include ETFs, would market makers and other market participants that contribute to ETF market-making be less willing to do so if it were unclear when an ETF that has adopted swing pricing policies and procedures would adjust its NAV, and to what extent swing pricing would affect the ETF's end-of-day NAV?
• The proposed definition of “exchange-traded fund” in rule 22c-1 would include ETMFs. While no ETMF has been launched yet, if an ETMF were to begin operations pursuant to applicable exemptive relief, it would arrange for an independent third party to disseminate the intraday indicative value of the ETMF's shares, which an investor would use to estimate the number of shares to buy or sell based on the dollar amount in which the investor wants to transact.
• Do commenters agree that money market funds already have liquidity risk management tools at their disposal that could accomplish comparable goals to swing pricing, and that the liquidity fee regime permitted under rule 2a-7 is a more appropriate tool for money market funds to manage the allocation of liquidity costs than swing pricing? Would there be any reason to extend the scope of proposed rule 22c-1(a)(3) to floating NAV money market funds?
Under proposed rule 22c-1(a)(3), a fund's swing pricing policies and procedures must provide that the fund is required to adjust its NAV once the level of net purchases or net redemptions from the fund has exceeded a set, specified percentage of the fund's net asset value known as the “swing threshold.”
○ The size, frequency, and volatility of historical net purchases or net redemptions of fund shares during normal and stressed periods;
○ The fund's investment strategy and the liquidity of the fund's portfolio assets;
○ The fund's holdings of cash and cash equivalents, as well as borrowing arrangements and other funding sources; and
○ The costs associated with transactions in the markets in which the fund invests.
These factors overlap significantly with factors that we understand are commonly considered by funds that use swing pricing in other jurisdictions, in order to determine a fund's swing threshold. For example, the Luxembourg Swing Pricing Survey, Reports & Guidelines provides that factors influencing the determination of the swing threshold ordinarily include: (i) Fund size; (ii) type and liquidity of securities in which the fund invests; (iii) costs (and hence, the dilution impact) associated with the markets in which the fund invests; and (iv) investment manager's investment policy and the extent to which the fund can retain cash (or near cash) as opposed to always being fully invested).
In order to effectively mitigate possible dilution arising in connection with shareholder purchase and redemption activity, a fund's swing threshold should generally reflect the estimated point at which net purchases or net redemptions would trigger the fund's investment adviser to trade portfolio assets in the near term, to a degree or of a type that may generate material liquidity or transaction costs for the fund. As discussed below, we believe that a consideration of the factors set forth above would permit a fund to estimate this point. The liquidity or transaction costs associated with purchase or redemption activity can dilute the value of existing shareholders' interests in the fund, and the purpose of swing pricing is to lessen this potential dilution. Trading assets to meet purchase or redemption requests is not in and of itself an indication that a fund will incur material liquidity or transaction costs. For example, trading smaller levels of very liquid assets would likely not produce significant costs to the fund. However, trading portfolio assets to a significant degree, or trading relatively less liquid assets within a short time frame in order to invest proceeds from purchases or satisfy redemption requests, could generate material costs to the fund that could dilute the value of fund shares held by existing investors.
We believe that evaluating the factors that proposed rule 22c-1(a)(3) would require a fund to consider in specifying its swing threshold would assist a fund in determining what level of net purchases or net redemptions would generally lead to a trade of portfolio assets that would result in material costs to the fund. Assessing the size, frequency, and volatility of historical net purchases and net redemptions of fund shares would permit a fund to determine its typical levels of net purchases and net redemptions and the levels the fund could expect to encounter during periods of unusual market stress, as well as the frequency with which the fund could expect to see periods of unusually high purchases or redemptions. We believe that comparing the fund's historical flow patterns with the fund's investment strategy, the liquidity of the fund's portfolio holdings, the fund's holdings of cash and cash equivalents and borrowing arrangements and other funding sources, and the costs associated with transactions in the markets in which the fund invests would allow a fund to predict what levels of purchases and redemptions would result in material costs under a variety of scenarios.
The first three factors that proposed rule 22c-1(a)(3)(i)(B) would require a fund to consider in specifying the fund's swing threshold correspond with certain of the factors a fund would be required to consider in assessing its liquidity risk.
In assessing the fourth factor, the costs associated with transactions in the markets in which the fund invests, a fund may wish to consider, as applicable, market impact costs
We understand that because proposed rule 22c-1(a)(3) does not specify a minimum “floor” for a fund's swing threshold, a fund could set a swing threshold representing a very low level of net purchases or net redemptions. This could result in the fund effectively practicing full swing pricing (that is, adjusting the fund's NAV whenever there is
We recognize that requiring a fund to adopt a swing threshold could create the potential for shareholder gaming behavior because a fund's shareholders could attempt to time their purchases and redemptions based on the likelihood that a fund would or would not adjust its NAV. However, we do not think that potential gaming is a significant concern, because it would be difficult for shareholders to determine when the fund's net purchases or net redemptions cross the swing threshold. As discussed above, a fund would not be required to publicly disclose its swing threshold.
We request comment on the definition of “swing threshold” set forth in proposed rule 22c-1(a)(3) and the process a fund would use to determine its swing threshold.
• Is the definition of “swing threshold,” as set forth in proposed rule 22c-1(a)(3) appropriate and clear? If not, how could this definition be clarified or made more effective within the context of the proposed rule?
• Should a fund be permitted to adopt two swing thresholds—one for net redemptions and one for net purchases? Would this be more operationally difficult than adopting one swing threshold that would be used for net redemptions as well as net purchases, and if so, why?
• Should any of the proposed factors not be required to be considered by a fund in determining and reviewing its swing threshold? Should any be modified? Are there any additional factors, besides the proposed factors, that a fund should be required to consider? Should we set a minimum floor for a fund's swing threshold (
• Do commenters agree that the swing threshold requirements under proposed rule 22c-1(a)(3) would not raise significant concerns regarding the potential for shareholder gaming behavior, because it would be difficult for shareholders to determine when the fund's net purchases or net redemptions cross the swing threshold? If commenters believe that the swing pricing framework contemplated by proposed rule 22c-1(a)(3)
Proposed rule 22c-1(a)(3) would require a fund's swing pricing policies and procedures to include policies and procedures providing for the periodic review, no less frequently than annually, of the fund's swing threshold.
We request comment on the process a fund would use to review its swing threshold.
• Are there certain procedures that we should require, and/or on which we should provide guidance, regarding a fund's periodic review of its swing threshold? Should we expand our guidance on the market-wide, and fund-specific developments that a fund's swing threshold review procedures should cover?
• Do commenters agree that a fund that adopts swing pricing policies and procedures should be required to review its swing threshold at least annually? Do commenters anticipate that a fund that adopts swing pricing procedures would voluntarily choose to review its swing threshold any more frequently than annually? Alternatively, should a fund be required to review its swing threshold any more or less frequently than annually?
Under proposed rule 22c-1(a)(3), a fund's swing pricing policies and procedures would be required to provide that the fund must adjust its NAV by an amount designated as the “swing factor” each time the fund's net purchases or net redemptions have exceeded the fund's swing threshold.
We anticipate that, because these considerations could vary depending on the facts and circumstances, the swing factor that a fund would determine appropriate to use in adjusting its NAV also could vary. We therefore believe that procedures for determining the swing factor generally should detail how each of the factors a fund would be required to consider under the proposed rule would assist the fund in calculating the swing factor. Below we provide examples of methods that a fund may wish to consider employing in calculating the swing factor.
We are proposing rule 22c-1(a)(3) to provide funds with a tool to mitigate the potentially dilutive effects of shareholder purchase and redemption activity, and the factors a fund would be required to consider in determining its swing factor are meant to enhance a fund's ability to estimate the costs associated with purchase and redemption activity that could dilute the value of the existing shareholders' interests in the fund. These costs include both market-related costs (that is, market impact costs and spread costs
Specifically, proposed rule 22c-1(a)(3)(i)(D)
The proposed rule specifies that the determination of a fund's swing factor must take into account the
Under proposed rule 22c-1(a)(3)(i)(D)
A fund could take a variety of approaches to determining its swing factor, in light of the fact that the relevant factors to be used in determining the swing factor could vary, as well as the likelihood that the persons administering the fund's swing pricing policies and procedures may (to the extent that net purchases or net redemptions cannot be ascertained or reasonably estimated until close to the time that the fund must strike its NAV) have limited time to determine the swing factor each day the fund's net purchases or net redemptions exceed the swing threshold. For example, a fund may wish to set a “base” swing factor, and adjust it as appropriate if certain aspects required to be considered in determining the swing factor deviate from a range of pre-determined norms (for example, if spread costs generally exceed a certain pre-determined level). Alternatively or additionally, we request comment below on the extent to which a fund that uses swing pricing may wish to incorporate into its policies and procedures a formula or algorithm that includes the factors required to be considered for determining the swing factor. We also understand that it may be difficult to determine certain costs (particularly, certain market impact costs and spread costs) with precision, while other factors that a fund would be required to consider in determining its swing factor may be able to be ascertained more exactly (for example, transaction fees and charges, borrowing-related costs, and the value of assets purchased or sold by the fund as a result of net purchases or net redemptions that occur on the day the swing factor is used to adjust the fund's NAV). For this reason, in establishing policies and procedures for determining the swing factor, a fund may wish to incorporate the use of reasonable estimates in these policies and procedures, to the extent the fund determines necessary or appropriate.
We are not proposing to require an upper limit on the swing factor that a fund would be permitted to use, on account of the difficulty of establishing an appropriate across-the-board limit that would permit funds with different investment strategies, under all market conditions, to determine a swing factor that reflects the costs associated with the potential shareholder purchase or redemption activity. These costs could vary widely across funds and under different market conditions, and we do not wish to limit the extent to which swing pricing could mitigate the dilution of existing shareholders. We believe that the lack of an upper limit on a fund's swing factor would not result in inappropriately high NAV adjustments, because the swing factor would be required to be determined with reference to the factors discussed above, and the policies and procedures for determining the swing factor would be required to be approved by the fund's board, which has an obligation to act in the interests of the fund.
We do recognize that if we were to require an upper limit on the amount that a fund would be permitted to adjust its NAV, this could mitigate volatility, tracking error, and transparency concerns that could arise from the use of swing pricing.
Although we are not proposing to require an upper limit on the swing factor that a fund would be permitted to use, a fund would be permitted to adopt an upper limit on the swing factor it would apply, as part of the fund's swing pricing policies and procedures.
We request comment below on whether to require an upper limit on the swing factor that a fund would be permitted to use, and if so, the appropriate level of such limit. We also request comment on whether a fund should be permitted to adopt an upper limit on the swing factor it would apply, as part of the fund's swing pricing policies and procedures.
We request comment on the definition of “swing factor” set forth in proposed rule 22c-1(a)(3) and the process a fund would use to calculate the swing factor that the fund would use to adjust its NAV.
• Is the definition of “swing factor,” as set forth in proposed rule 22c-1(a)(3) appropriate and clear? If not, how could this definition be clarified or made more effective within the context of the proposed rule?
• We request comment on each of the considerations that a fund would be required to take into account in determining the swing factor, pursuant to proposed rule 22c-1(a)(3)(i)(D). Would these considerations reflect the estimated or actual costs associated with purchasing or selling portfolio assets in order to meet purchases or redemptions of fund shares? Should any aspect of proposed rule 22c-1(a)(3)(i)(D) not be required to be considered by a fund in calculating the swing factor? Should any of the considerations be modified, and is the definition of “transaction fees and charges,” as set forth in the proposed rule, appropriate and clear? Instead of codifying certain considerations that a fund must take into account in determining the swing factor, should we instead provide guidance on factors a fund may wish to consider in calculating the swing factor? Instead of using a swing factor to adjust a fund's NAV, is there an alternate means by which a fund should be permitted to adjust its NAV to mitigate potential dilution stemming from purchase or redemption activity (
• We request comment on the approaches commenters believe a fund may take to determine its swing factor. For example, do commenters anticipate that a fund would set a “base” swing factor, and adjust it as appropriate if certain elements required to be considered in the swing factor deviate from a range of pre-determined norms? Do commenters believe that it would be feasible and likely that a fund may wish to use a formula or algorithm approach for determining the swing factor? What other approaches to determining the swing factor do commenters anticipate that a fund would be likely to take?
• Do commenters agree that the Commission should not require an upper limit on the swing factor that a fund would be permitted to use? Why or why not? If not, what upper limit would be appropriate (
• Do commenters agree that a fund should be permitted to adopt an upper limit on the swing factor it would apply, as part of the fund's swing pricing policies and procedures? Why or why not? To the extent that a fund does adopt an upper limit on the swing factor it would apply, should the fund be required to disclose this upper limit to shareholders? Should each fund that adopts swing pricing policies and procedures be required, not only permitted, to adopt an upper limit on the swing factor it would apply?
Proposed rule 22c-1(a)(3)(ii)(A) would require a fund that has determined to engage in the use of swing pricing to obtain initial approval of its swing pricing policies and procedures (including the fund's swing threshold and any swing factor upper limit specified under the fund's swing pricing policies and procedures) from the fund's board, including a majority of independent directors. The proposed rule also would require a fund's board, including a majority of independent directors, to approve any material change to the fund's swing pricing policies and procedures (including any change to the fund's swing threshold, a change to any swing factor upper limit, or any decision to suspend or terminate the fund's swing pricing policies and procedures).
The proposed oversight requirements for a fund's board and its independent directors reflect the historical role that a fund's board and independent directors have held with respect to issues involving valuation. A fund's board historically has held significant responsibility regarding valuation- and pricing-related matters,
We believe that the proposed board and independent director approval requirements would help ensure that a fund establishes and implements swing pricing policies and procedures that are in the best interests of all the fund's shareholders. Because fund directors have an obligation to act in the interests of the fund,
We believe that shareholders' interests would be best served by requiring the majority of a fund's independent directors, along with the fund's board, to approve the fund's swing pricing policies and procedures. As we have stated before, a fund's independent directors serve to guard investors' interests.
While a fund's board would be required to approve the fund's swing pricing policies and procedures, the board would be required to designate the fund's adviser or officers responsible for the administration of these policies and procedures, including responsibility for determining a swing factor that would be used to adjust the fund's NAV when the fund's swing threshold is breached.
Proposed rule 22c-1(a)(3) would require the determination of the swing factor to be reasonably segregated from the portfolio management function of the fund. For example, if a committee were tasked with determining the swing factor(s) the fund would use in a variety of circumstances, we believe it would be appropriate for the fund's portfolio manager to provide inputs to be used by that committee in determining the swing factor, but not to decide how those inputs would be employed in the swing factor determination. We believe that, in determining the swing factor, independence from portfolio management is important because the incentives of portfolio managers may not always be consistent with determining a swing factor that most effectively prevents dilution of existing
A fund's board would not be required to approve each swing factor that would be used to adjust the fund's NAV when the fund's swing threshold is breached, although the board would be required to approve the policies and procedures for determining the swing threshold. This approval framework—along with the proposed segregation of the swing factor determination from the portfolio management function—is meant to strike a balance between ensuring appropriate board oversight over the policies and procedures for determining the swing factor, and independence with respect to the swing factor determination process, while recognizing that it may not be practicable for a fund's directors to be directly involved in the process of determining each swing factor. Because the persons administering the fund's swing pricing policies and procedures may have limited time to determine each swing factor to the extent that net purchases or net redemptions cannot be ascertained or reasonably estimated until close to the time that the fund must strike its NAV, we do not believe that it would generally be operationally feasible for a fund's board to approve each swing factor. Also, we do not believe that requiring a fund's board to approve each swing factor would be consistent with boards' historical oversight role.
We seek comment on the proposed approval and oversight requirements associated with a fund's swing pricing policies and procedures.
• Do commenters agree that a fund's board, including a majority of the fund's independent directors, should be required to approve the fund's swing pricing policies and procedures (including the fund's swing threshold, and any swing factor upper limit specified under the fund's swing pricing policies and procedures), and any material changes thereto? Would these approval requirements ensure that a fund establishes and implements swing pricing policies and procedures that are in the interests of all of the fund's shareholders? Do commenters agree that the proposed independent director approval requirement would ensure that a fund's use of swing pricing benefits the fund's shareholders? Should the board be provided the option to not use swing pricing in a particular situation when swing pricing would have been warranted pursuant to a fund's swing pricing policies and procedures?
• Do commenters agree that it would be appropriate to require a fund's board to designate the fund's adviser or officers responsible for the administration of swing pricing policies and procedures, including responsibility for determining a swing factor that would be used to adjust the fund's NAV when the fund's swing threshold is breached? Do commenters agree that the determination of the swing factor should be reasonably segregated from the portfolio management of the fund? Would this pose any difficulty for particular types of entities, for example funds managed by small advisers? Is there a better way to prevent conflicts between the portfolio manager's incentives and the process of determining a swing factor that most effectively prevents dilution of existing shareholders' interests in the fund? What officers (or functional areas) of a fund do commenters anticipate a fund's board would select to administer the fund's swing pricing policies and procedures, and do commenters anticipate that these persons (or functional areas) would overlap with the administrators of a fund's liquidity risk management program?
• Do commenters agree that a fund's board should not be required to approve each swing factor that would be used to adjust the fund's NAV when the fund's swing threshold is breached, although the board would be required to approve the policies and procedures for determining the swing threshold? Why or why not?
• Should the Commission provide guidance as to the circumstances in which a possible misapplication of a firm's swing pricing policy could result in a material NAV error? For example, should the Commission explain whether an error would occur when the fund makes estimates under its swing pricing policy that is applied correctly, but the information, such as final shareholder flows, subsequently changes to a material degree? Should funds be required to have specific policies and procedures to address possible NAV errors?
Proposed rule 22c-1(a)(3) would require a fund to maintain a written copy of swing pricing policies and procedures adopted by the fund that are in effect, or at any time within the past six years were in effect, in an easily accessible place.
These proposed recordkeeping requirements would help our examination staff to ascertain whether a fund that has adopted swing pricing policies and procedures has done so in compliance with the requirements of proposed rule 22c-1(a)(3). They also would help our staff to determine whether a fund is taking into account
We seek comment on the proposed recordkeeping requirements associated with a fund's swing pricing policies and procedures.
• Do commenters agree that the proposed recordkeeping requirements are appropriate? Are there any additional records associated with a fund's swing pricing policies and procedures that a fund should be required to keep? Should rule 31a-2(a)(2) be amended to specifically require a fund to keep records evidencing the fund's consideration of each of the factors required to be considered in determining each swing factor used to adjust the fund's NAV? Do commenters agree that the six-year record retention period in proposed rule 22c-1(a)(3) and the proposed amendments to rule 31a-2(a)(2) is appropriate?
Swing pricing requires the net cash flows for a fund to be known, or estimated using information obtained after reasonable inquiry,
In addition, there are unique operational considerations applicable to funds with multiple share classes. A fund with multiple share classes that uses swing pricing should consider the net purchase or net redemption activity of all share classes in determining whether its swing threshold has been breached.
For purposes of calculating the financial highlights and performance data to be included in a fund's prospectus and shareholder reports,
If a fund using swing pricing pays NAV-based performance fees to its adviser,
However, there are certain exemptions to this general restriction.
When funds merge, and at least one of the merging funds uses swing pricing, there are a number of considerations relating to swing pricing that the funds generally should consider when determining the terms of the merger.
We seek comment on the Commission's guidance discussed above regarding certain operational and accounting considerations relating to swing pricing. Do commenters generally agree with the Commission's guidance in this section III.F.2?
Along with this general request for comment on the Commission's guidance, we request specific comment on a number of individual guidance items.
• To what extent is it currently typical for a fund to receive interim feeds of flows from its transfer agent or distributor, and do these interim feeds generally permit a fund to reasonably estimate its net flows at the end of a business day? To what extent do financial intermediaries or other third parties provide interim feeds of flows?
• Should the Commission amend the proposed rule or provide guidance regarding pricing errors in the context of swing pricing? How do commenters anticipate that a fund using swing pricing may wish to update its pricing policies to provide clarity as to the application of swing pricing to the fund's policies concerning pricing errors? What policies do commenters anticipate that a fund's pricing policies could incorporate with respect to circumstances in which the fund's NAV was swung (or not swung) based on an estimate of net purchases or net redemptions that was later determined to be incorrect, but was based on information obtained after reasonable inquiry pursuant to proposed rule 22c-1(a)(3)(i)(A)?
• Do commenters agree that it is appropriate to require that a fund calculate performance fees based on the fund's NAV as adjusted pursuant to the fund's swing pricing policies and procedures (as applicable)? Why or why not? We specifically request comment on whether calculating a performance fee based on a fund's adjusted NAV could be viewed as inappropriately increasing or decreasing the fee (
• Besides the issues discussed in this section, what specific operational challenges do funds anticipate associated with swing pricing? Do commenters anticipate there would be circumstances in which a fund's structure (
• With respect to a fund with multiple share classes that uses swing pricing, do commenters agree that the fund should consider the net purchase or net redemption activity of all share classes in determining whether its swing threshold has been breached? Or should a fund instead be permitted to consider the net purchase or redemption activity of each share class separately (which potentially could lead to NAV adjustments for certain share classes and not others, or different NAV adjustments for each share class, on the same day)? If so, should we amend rule 18f-3 to expressly allow this? What operational or other difficulties could result from permitting a fund with multiple share classes that uses swing pricing to consider the net purchase or redemption activity of each share class separately, and to potentially make different NAV adjustments for each share class on the same day?
• Besides the issues discussed in this section, are there any other operational issues associated with swing pricing about which we should provide guidance?
With respect to master-feeder funds, we believe the use of swing pricing would generally be appropriate only with respect to the level (or levels) of the fund structure that actually transact in underlying portfolio assets as a result of net purchase or redemption activity.
We seek comment on the application of swing pricing to master-feeder funds. Do commenters generally agree that feeder funds should not be permitted to use swing pricing? Why or why not?
The application of swing pricing would impact a fund's financial statements and disclosures in a number of areas, including a fund's statement of assets and liabilities, statement of changes in net assets, financial highlights and the notes to the financial statements. Currently, funds are required by Regulation S-X rule 6-04.19
Swing pricing also would impact disclosures of capital share transactions included in a fund's statement of changes in net assets. A fund using swing pricing to adjust its NAV would make payments for shares redeemed and receive payments for shares purchased net of the swing pricing adjustment. For example, if a fund had an unadjusted NAV of $10.00 on a given day and the adjusted NAV pursuant to the fund's swing pricing policies and procedures was $9.90, shareholders would transact at $9.90 multiplied by the number of shares purchased or redeemed. The $0.10 difference between the adjusted and unadjusted NAV would be retained by the fund to offset transaction and liquidity costs. This $0.10 difference per share should be accounted for as a capital transaction and not included as income to the fund, because it is designed to reflect the near-term transactional and liquidity costs incurred as a result of satisfying shareholder transactions. Funds are required by Regulation S-X rule 6-09.4(b) to disclose the number of shares and dollar amounts received for shares sold and paid for shares redeemed.
Consistent with presentation of the impact of swing pricing on the statement of changes in net assets and performance reporting described in section III.F.2.b, a fund should include the impact of swing pricing in its financial highlights.
Similarly, a fund's calculation of total return should use the NAV as adjusted pursuant to a fund's swing pricing policies and procedures as the redemption price calculated on the last business day of the period. We are proposing to amend Instructions 3(a) and 3(d) to Item 13 of Form N-1A to explicitly require funds to assume the NAV calculated on the last business day before the first day of each period and the price calculated on the last business day of each period shown should each be adjusted for the impact of swing pricing, if applicable. We believe that it is important for investors to understand the impact of swing pricing on the return that they would have received for the period presented in the fund's financial statements. We also are proposing to amend instructions to Item 26 regarding calculation of performance data to clarify that “ending redeemable value” should assume a value adjusted pursuant to swing pricing policies and procedures.
Finally, we are proposing to require funds that adopted swing pricing policies and procedures to state in a note to their financial statements the general methods used in determining whether the fund's net asset value per share will swing, whether the fund's net asset value per share has swung during the year, and a general description of the effects of swing pricing on the fund's financial statements.
We seek comment on the financial statement disclosure considerations relating to swing pricing. Do commenters generally agree with the Commission's guidance discussed above regarding financial statement disclosure, as well as the proposed amendments to Regulation S-X?
Along with this general request for comment, we request specific comment on a number of individual issues discussed above.
• Should the Commission allow a fund to disclose the total return calculation on an unadjusted NAV basis as a supplement to the total return calculation in the financial highlights table, and/or in a fund's advertising materials?
• Should the dollar amount of purchases and redemptions disclosed in a fund's financial statements be presented based on unadjusted NAV, with the dollar amount retained by the fund because of swing pricing separately disclosed? Alternatively, should the dollar amount of purchases and redemptions be presented as the actual value received by the fund or paid to shareholders, which would include the impact of swing pricing? Why or why not?
• Should funds be required to disclose only the NAV as adjusted pursuant to a fund's swing pricing policies and procedures on the statement of assets and liabilities? Alternatively, should funds be required to disclose both unadjusted NAV and the NAV as adjusted pursuant to a fund's swing pricing policies and procedures on the statement of assets and liabilities?
• Should we require additional disclosures in notes to fund financial statements regarding swing pricing? If so, what additional information should be disclosed? Do commenters believe that any of the proposed disclosures should be modified? Are any of the proposed disclosures unnecessary? Why or why not?
• Do commenters have any accounting or auditing concerns in connection with swing pricing? If so, please describe specific concerns.
Investors receiving relevant information about the operations of a fund and the principal risks associated with an investment in a particular fund are important in facilitating investor choice regarding the appropriate investments for their risk tolerances. Investors in open-end funds generally expect funds to pay redemption proceeds promptly following their redemption requests based, in part, on representations made by funds in their disclosure documents. Accordingly, information about how redemptions will be made and when investors will receive payment is significant to investors. Currently, funds are not expressly required to disclose how they manage the liquidity of their assets, and therefore limited information is available regarding whether the liquidity of a fund's portfolio securities corresponds with its liquidity needs related to redemption obligations. In addition to the proposed amendments to Form N-1A and Regulation S-X discussed above regarding financial reporting related to swing pricing, we are proposing amendments to Form N-1A, Regulation S-X, proposed Form N-PORT and proposed Form N-CEN to improve the ability of investors, the Commission staff, and other potential users to analyze and better understand a fund's redemption practices, its management of liquidity risks, and how liquidity risk management can affect shareholder redemptions. We are also proposing amendments to Form N-1A regarding disclosure of swing pricing.
Form N-1A is used by funds to register under the Investment Company Act and to register offerings of their securities under the Securities Act. In particular, Form N-1A requires funds to describe their procedures for redeeming fund shares, including restrictions on redemptions and any redemption charges.
We believe that requiring consistency in disclosures and increasing the level of information provided among funds regarding the timing of payment after shareholder redemption of fund shares would give investors fuller information about their investments. Improvements are needed to enhance the ability of investors to evaluate and compare redemption policies across funds and to understand when a fund will actually pay redemption proceeds. Accordingly, we are proposing amendments to Item 11 of Form N-1A that would require a fund to disclose the number of days in which the fund will pay redemption proceeds to redeeming shareholders.
We also are proposing amendments to Item 11 of Form N-1A that would require a fund to disclose the methods that the fund uses to meet redemption requests.
Currently, Item 11(c)(3) of Form N-1A requires funds to disclose whether they reserve the right to redeem their shares in kind instead of in cash.
We are also proposing to amend Item 28 of Form N-1A to require a fund to file as an exhibit to its registration statement any agreements related to lines of credit for the benefit of the fund.
Overall, we believe that requiring funds to provide additional disclosure concerning the methods they use and the funding sources they have to fulfill their redemption obligations and whether those methods are used on a regular basis or only in stressed market conditions would improve shareholder and market participant knowledge regarding fund redemption procedures and liquidity risk management. In particular, increased knowledge of how and when a fund's redemption procedures may affect whether, for example, a shareholder would receive cash or securities in kind or pay a redemption fee would be helpful for investors to better understand the impact of a fund's redemption procedures on shareholders.
Form N-1A currently requires a fund to describe its procedures for pricing fund shares, including an explanation that the price of fund shares is based on the fund's NAV and the method used to value fund shares.
We are proposing to amend Item 6 of Form N-1A to account for this pricing procedure. Specifically, the proposed amendment would require a fund that uses swing pricing to explain the circumstances under which swing pricing would be required to be used as well as the effects of using swing pricing.
We request comment on all aspects of the proposed amendments to Form N-1A.
• Would the proposed amendments regarding payment of redemption proceeds be helpful to fund shareholders? Should we modify the proposed disclosures, and if so, how?
• In addition to the proposed disclosure requirements, should Form N-1A be amended to require certain funds to incorporate enhanced disclosure regarding liquidity risk into their summary prospectuses? If so, what funds should be subject to such enhanced disclosure requirements (
• Are there any challenges associated with funds disclosing when they expect to pay redemption proceeds? Should funds be required to disclose the expected period in normal and stressed market conditions?
• Are there any challenges associated with funds disclosing the methods that they use to meet redemption requests and whether those methods are used regularly or only in stressed market conditions? Would disclosure of this information overly complicate prospectus disclosures?
• In cases where the number of days in which a fund will pay redemption proceeds differs by distribution channel, are there any challenges associated with funds disclosing the number of days for each distribution channel? Do funds pay all redemption proceeds at the same time irrespective of distribution channel (although when the shareholder actually receives redemption proceeds may differ by distribution channel)?
• Would the proposed amendments provide useful information to shareholders about how funds plan to satisfy redemption requests? Is there any additional information about fund redemption policies that shareholders should be aware of that is not discussed above? If so, would such additional information already be covered under existing Form N-1A requirements, or would we need to make any amendments to the form or its instructions?
• Would the proposed amendment to Item 28 of Form N-1A that would require a fund to file as exhibits to its registration statement any agreements related to lines of credit for the benefit of the fund be useful to fund shareholders and market participants? Why or why not? Are there any issues associated with funds filing such credit agreements? For example, even if specific fees paid in connection with the credit agreements are redacted, do funds have confidentiality concerns regarding filing such credit agreements? Should funds be required to file credit agreements if we adopt the proposed amendments to proposed Form N-CEN that require a fund to disclose information regarding lines of credit available to the fund?
• Would the proposed amendments to Form N-1A regarding swing pricing be useful to fund shareholders? Should funds be required to disclose additional information regarding swing pricing, and if so, what information should be disclosed?
The Commission, investors, and other market participants currently have limited information about the liquidity of portfolio investments of funds, and we believe that all would benefit from more detailed reporting and disclosure of the liquidity of a fund's portfolio investments. On May 20, 2015, we proposed requiring registered management investment companies and ETFs organized as unit investment trusts, other than registered money market funds or small business investment companies, to electronically file with the Commission monthly portfolio investment information on proposed Form N-PORT.
We believe that requiring funds to report information about the liquidity of portfolio investments would assist the Commission in better assessing liquidity risk in the open-end fund industry, which can inform its policy and guidance, as well as in its monitoring for compliance with proposed rule 22e-4 and identifying potential outliers in fund liquidity classifications for further inquiry, as appropriate. Furthermore, we believe that this information would help investors and potential users better understand the liquidity risks in funds. Accordingly, the Commission seeks to enhance the reporting regarding the liquidity of fund holdings by proposing that each fund report on Form N-PORT the fund's three-day liquid asset minimum as well as the liquidity classification for each portfolio asset, as further described below.
Part C of proposed Form N-PORT would require a fund and its consolidated subsidiaries to disclose its schedule of investments and certain information about the fund's portfolio of investments. We propose to add Item C.13 to Part C of proposed Form N-PORT, which would require a fund to indicate the liquidity classification of each of the fund's positions in a portfolio asset. Funds would be required to indicate such liquidity classification using the following categories as specified in proposed rule 22e-4:
• Convertible to cash within 1 business day;
• Convertible to cash within 2-3 business days;
• Convertible to cash within 4-7 calendar days;
• Convertible to cash within 8-15 calendar days;
• Convertible to cash within 16-30 calendar days; and
• Convertible to cash in more than 30 calendar days.
We anticipate that the enhanced reporting proposed in these amendments would help our staff better monitor liquidity trends and various funds' liquidity risk profiles. We also believe that making this information available to the public quarterly, as with other information on proposed N-PORT, is appropriate. We received several comments to the Investment Company Reporting Modernization Release that addressed our proposal to require funds to identify on proposed Form N-PORT whether an investment is an illiquid asset. Specifically, several commenters noted concern that public dissemination of a fund's liquidity determinations could lead to misinterpretation and confusion among investors, particularly because of the subjective nature of such determinations.
While we appreciate commenters' concerns and request further comment, we believe that the liquidity-related data reported on Form N-PORT that is made publicly available would inform investors and assist users in assessing funds' relative liquidity and the overall liquidity of the fund industry and of particular investment strategies and would not be confusing to investors.
We note that the liquidity classification of an asset may vary across funds depending on the facts and circumstances relating to the funds and their trading practices.
As currently proposed, Form N-PORT would require that each fund disclose whether each particular portfolio security is an “illiquid asset.”
The Investment Company Reporting Modernization Release also proposed amendments to Article 12 of Regulation S-X in which funds would be required to identify illiquid securities.
This change would have the effect of requiring funds to report, for each portfolio asset, whether the asset is a 15% standard asset. This information would allow our staff and other interested parties to track the extent that funds are holding 15% standard assets and to discern the nature of those holdings. This information also would help these groups in tracking the fund's exposure to liquidity risk.
We propose to add an Item B.7 to Part B of proposed Form N-PORT to require each fund to disclose its “three-day liquid asset minimum,” as such term is defined in proposed rule 22e-4.
This should facilitate comparisons between funds as well as the observation of trends over time in this indicator of fund liquidity.
We seek comment on each of the Commission's proposed amendments to proposed Form N-PORT.
• Is there different or other information associated with liquidity that we should require funds to report on proposed Form N-PORT? If so, please describe the information.
• Would the proposed liquidity classification disclosure assist investors, fund boards, and other users in analyzing liquidity among portfolio assets within the fund and across the fund industry? What challenges, if any, may arise in reporting the liquidity classification information, and how could we address those challenges? What concerns are raised with public disclosure of liquidity classification information and how could we address those concerns?
• Should we require that the liquidity classification information on proposed Form N-PORT only be reported to the Commission and not be publicly disclosed? If so, how would we achieve our goal of allowing investors to become better informed, through information provided by third-party information providers or otherwise, about the liquidity of the funds in which they invest? Would public disclosure of liquidity classification information facilitate predatory trading practices or exacerbate first mover incentives? If so, how?
• Proposed Form N-PORT has a section in which a fund can provide explanatory notes with any information that it believes would be helpful in understanding the information reported on Form N-PORT.
As proposed, all registered investment companies, including money market funds but excluding face amount certificate companies, would be required to file Form N-CEN annually.
We are proposing to amend proposed Form N-CEN to allow the Commission and other users to track certain liquidity risk management practices that we expect funds to use on a less frequent basis than the day-to-day portfolio construction techniques captured by proposed Form N-PORT. More specifically, we propose amending Part C of proposed Form N-CEN to add an item that would include certain questions regarding the use of lines of credit, interfund lending, interfund borrowing, and swing pricing.
The proposed amendments would add a new Item 44 to Part C of proposed Form N-CEN requiring a fund to disclose if it has available a committed line of credit, and, if so, the size of the line of credit in U.S. dollars, the name of the institution(s) with which the fund has the line of credit, and whether the line of credit is for that fund alone or is shared among multiple funds.
Proposed Item 44 also would require a fund to report whether it engaged in interfund lending or interfund borrowing during the reporting period, and, if so, the average amount of the interfund loan when the loan was outstanding and the number of days that the interfund loan was outstanding.
Finally, Item 44 would require a fund other than a money market fund to disclose whether it engaged in swing pricing during the reporting period. This disclosure would inform our staff and potential users about whether funds use swing pricing as a tool to mitigate dilution of the value of outstanding redeemable securities through shareholder purchase and redemption activity.
Proposed Form N-CEN includes a section related specifically to ETFs.
Specifically, we are proposing to add Item 60(g)
We seek comment on each of the Commission's proposed amendments to proposed Form N-CEN.
• Would the proposed reporting on the availability and use of lines of credit, interfund lending, interfund borrowing and the use of swing pricing assist investors, Commission staff, and market participants in assessing liquidity and liquidity risks within a fund and across the fund industry? Would this information be readily available to funds? If not, please explain why.
• Do the proposed questions collect all sources of liquidity outside the liquidity of fund portfolio assets? If not, what are these other sources?
• Is the annual reporting time period under Form N-CEN appropriate for this requested information? Should it be collected more frequently? If so, should we require funds to disclose any or all of the requested information on Form N-PORT instead of Form N-CEN?
• Is there different or other information associated with liquidity that we should require funds to report on proposed Form N-CEN? If so, please describe the information.
• Should funds be required to report information on uncommitted lines of credit? Please explain why or why not.
• What types of ETFs tend to require posting of collateral for purchases or redemptions and why? Please provide data on the size of such collateral deposits, and how this deposit requirement can affect an authorized participant's operating capital? How common is it for an authorized participant or market maker to contract with another authorized participant to post such collateral on its behalf? Are there situations where one authorized participant contracts with another authorized participant to purchase or redeem ETF shares on an agency basis rather than purchase or redeem the shares directly with the ETF because of the ETF's requirement that the purchase or redemption be collateralized for the duration of the settlement period?
Proposed rule 22e-4 would require that each registered open-end management investment company, including open-end ETFs but not including money market funds, adopt and implement a written liquidity risk management program, approved by a fund's board of directors, that meets certain minimum requirements outlined in the rule. Given the nature of the liquidity risk management program, including the classification and ongoing review of the liquidity of each of a fund's positions in an asset (or portion thereof) required under proposed rule 22e-4(b)(2)(i) and the three-day liquid asset minimum determination required under proposed rule 22e-4(b)(2)(iv)(A), we expect to provide for a tiered set of compliance dates based on asset size for proposed rule 22e-4.
Specifically, for larger entities—namely, funds that together with other investment companies in the same “group of related investment companies”
For smaller entities (
On or before the applicable compliance date(s), a fund must have adopted and implemented compliance policies and procedures that satisfy the requirements of the new rule. These policies and procedures must have been approved by the board on or before the applicable compliance date(s).
Proposed rule 22c-1(a)(3), if adopted, would permit (but not require) a fund (with the exception of a money market fund or ETF) to adopt swing pricing policies and procedures. Related proposed amendments to rule 31a-2 (regarding the preservation of books and records evidencing and supporting adjustments to NAV based on swing pricing policies and procedures), Item 13 of Form N-1A and Regulation S-X (regarding financial reporting), and Item 11(c) of Form N-1A (regarding a fund's use of swing pricing) would apply only to funds that elect to use swing pricing. As reliance on rule 22c-1(a)(3) would be optional, we believe a compliance period would not be necessary. Therefore, we expect that a fund would be able to rely on the rule after the effective date as soon as the fund could comply with proposed rule 22c-1(a)(3) and related records, financial reporting and prospectus disclosure requirements.
Except with respect to the proposed amendments to Form N-1A related to swing pricing (discussed above), if the other proposed amendments to Form N-1A are adopted, we expect to require all initial registration statements on Form N-1A, and all post-effective amendments that are annual updates to effective registration statements on Form N-1A, filed six months or more after the effective date, to comply with the proposed amendments to Form N-1A. We do not expect that funds would require significant amounts of time to prepare additional disclosures in accordance with our proposed amendments regarding redemptions.
Similar to the tiered compliance dates for the liquidity classification requirements for fund liquidity risk management programs under proposed rule 22e-4 (discussed above), we expect to provide for a tiered set of compliance dates based on asset size for the proposed amendments to proposed Form N-PORT. Specifically, for larger entities we are proposing a compliance date of 18 months after the effective date to comply with the new reporting requirements. For these larger entities, we expect that 18 months would provide an adequate period of time for funds, intermediaries, and other service providers to conduct the requisite operational changes to their systems and to establish internal processes to prepare, validate, and file reports containing the additional information requested by the proposed amendments to Form N-PORT. For smaller entities, we are proposing to provide for an extra 12 months (or 30 months after the effective date) to comply with the new reporting requirements. We believe that smaller groups would benefit from this extra time to comply with the filing requirements for Form N-PORT and would potentially benefit from the lessons learned by larger investment companies and groups of investment companies during the adoption period for Form N-PORT.
If Form N-CEN and the amendments we propose to the form are adopted, we are proposing a compliance date of 18 months after the effective date to comply with the new reporting requirements.
We request comment on the compliance dates discussed above.
• How, if at all, should the proposed compliance dates be modified? What factors should we consider when setting the compliance dates for the proposed rule and amendments to the rules and forms? To the extent that a fund would decide to reallocate certain portions of its portfolio in order to correlate its portfolio holdings with its three-day liquid asset minimum, would the proposed compliance dates provide adequate time to do so in a way that would cause the fund to incur relatively few portfolio reallocation-related costs (
• We request comment on our proposed 18-month compliance date for proposed rule 22e-4. Is our 18-month compliance period appropriate? If not, what length of time (
• We also request comment on our proposed tiered compliance dates for proposed rule 22e-4 and related reporting requirements under our proposed amendments to proposed Form N-PORT. Is a threshold of $1 billion based on the net assets of funds together with other investment companies in the same “group of related investment companies” as of the end of the most recent fiscal year appropriate? Should the threshold be higher or lower?
• With respect to our proposed amendments to Form N-PORT, is our compliance date of 18 months for larger filers appropriate? If not, what length of time would be appropriate for compliance with the proposed amendments? Would a shorter or longer compliance date be appropriate? Is our 12-month extension of the compliance period for smaller entities appropriate? If not, what length of time would be appropriate for compliance with the additional reporting requirements under the proposed amendments?
• Is our 18-month compliance period for our proposed amendments to Form N-CEN appropriate? If not, what length of time would be appropriate? Would a shorter or longer compliance date be appropriate?
• We are proposing to not have a compliance period for proposed amendments to rule 22c-1 regarding swing pricing policies procedures and related amendments to rule 31a-2, Form N-1A and Regulation S-X. Is this appropriate?
• Is our six-month compliance period for our proposed amendments to Form N-1A disclosure requirements regarding the redemption of fund shares adequate? If not, what length of time would be adequate and why?
The Commission is sensitive to the economic effects that could result from the proposed liquidity risk management program requirement, the ability for funds to use swing pricing under proposed rule 22c-1(a)(3), and the proposed new disclosure and reporting requirements regarding liquidity risk and liquidity risk management (such proposed rule and proposed amendments to certain rules and forms, the “proposed liquidity regulations”). These economic effects include the benefits and costs of the proposed liquidity regulations, as well as the effects on efficiency, competition, and capital formation. The economic effects of the proposed liquidity regulations are discussed below in the context of the primary goals of the proposed regulation.
In summary, and as discussed in greater detail in section III above, the proposed liquidity regulations include the following:
○ Proposed new rule 22e-4 would require that each fund establish a written liquidity risk management program. A fund's liquidity risk management program would be required to include the following elements: (i) Classification and ongoing review of the classification of the liquidity of each of the fund's positions in a portfolio asset (or portions of a position in a particular asset), taking into account certain specified factors; (ii) assessment and periodic review of its liquidity risk; and (iii) management of the fund's liquidity risk, including limitations on the fund's acquisition of less liquid assets or 15% standard assets in certain circumstances.
○ Under proposed rule 22c-1(a)(3), a fund (except a money market fund or ETF) would be permitted (but not required) to establish and implement swing pricing policies and procedures that would, under certain circumstances, require the fund to use swing pricing to adjust its current NAV to lessen potential dilution of the value of outstanding redeemable securities caused by shareholder purchase and redemption activity. A fund that engages in swing pricing would be subject to certain disclosure and reporting requirements.
○ Proposed amendments to Form N-1A, Regulation S-X, proposed Form N-PORT, and proposed Form N-CEN would require enhanced fund disclosure and reporting regarding position liquidity, shareholder redemption practices, and swing pricing.
The proposed liquidity regulations are designed to promote effective liquidity risk management throughout the open-end fund industry and thereby reduce the risk that funds will be unable to meet redemption obligations and mitigate dilution of the interests of fund shareholders in accordance with, among other provisions, section 22(e) and rule 22c-1 under the Investment Company Act. The proposed liquidity regulations also seek to enhance disclosure regarding fund liquidity and redemption practices. In addition, these proposed reforms are intended to address the liquidity-related developments in the open-end fund industry discussed above and are a part of a broader set of initiatives to address the impact of open-end fund investment activities on financial markets and the risks associated with the increasingly complex portfolio composition and operations of the asset management industry. We provide an overview of these rulemaking goals in the following paragraphs, and the goals are discussed in more detail below as we describe the prospective benefits and costs of each aspect of the proposal.
A primary goal of the proposed liquidity regulations is to promote investor protection by reducing the risk that funds will be unable to meet their redemption obligations, elevating the overall quality of liquidity risk management across the fund industry, increasing transparency of funds' liquidity risks and risk management practices, and mitigating potential dilution of existing shareholders' interests. Funds are not currently subject to requirements under the federal securities laws or Commission rules that specifically require them to maintain a minimum level of portfolio liquidity (with the exception of money market funds), and follow Commission guidelines (not rules) that generally limit their investment in illiquid assets.
The proposed liquidity regulations are also intended to lessen the possibility of early redemption incentives (and investor dilution) created by insufficient liquidity risk management, as well as the possibility that investors' share value will be diluted by costs incurred by the fund as a result of other investors' purchase or redemption activity. When a fund experiences significant redemption requests, it may sell portfolio securities or borrow funds in order to obtain sufficient cash to meet redemptions.
Finally, the proposed liquidity regulations are meant to address recent industry developments that have underscored the significance of funds' liquidity risk management practices. In recent years, there has been significant growth in the assets managed by funds with strategies that focus on holding relatively less liquid assets, such as fixed income funds (including emerging market debt funds), open-end funds with alternative strategies, and emerging market equity funds.
The proposed liquidity regulations would affect all funds and their investors, investment advisers and other service providers, all issuers of the portfolio securities in which funds invest, and other market participants potentially affected by fund and investor behavior. The effects of the proposed liquidity regulations on all of these parties are analyzed in detail below in the discussion of the costs and benefits of the proposed regulations. The economic baseline of the proposed liquidity regulations includes funds' current practices regarding liquidity risk management, swing pricing, and liquidity risk disclosure, as well as the economic attributes of funds that affect their portfolio liquidity and liquidity risk. These economic attributes include industry-wide trends regarding funds' liquidity and liquidity risk management, as well as industry developments highlighting the importance of robust liquidity risk management by funds.
Under section 22(e) of the Investment Company Act, an open-end fund is required to make payment to shareholders for securities tendered for redemption within seven days of their tender.
With the exception of money market funds subject to rule 2a-7 under the Act, the Commission has not promulgated rules requiring open-end funds to invest in a minimum level of liquid assets.
Additionally, long-standing Commission guidelines generally limit an open-end fund's aggregate holdings of “illiquid assets” to 15% of the fund's net assets (the “15% guideline”).
Staff outreach has shown that funds currently employ a diversity of practices with respect to classifying portfolio assets' liquidity, as well as managing liquidity risk. Section II.D.3 above provides an overview of these practices, which include, among others: Assessing the ability to sell particular assets within various time periods, taking into account relevant market, trading, and other factors; monitoring initial liquidity determinations for portfolio assets (and modifying these determinations, as appropriate); holding certain amounts of the fund's portfolio in highly liquid assets or cash equivalents; establishing committed back-up lines of credit or interfund lending facilities; and conducting stress testing relating to the extent the fund has liquid assets to cover possible levels of redemptions.
Commission rules and guidance do not currently address the ability of an open-end fund to use swing pricing to mitigate potential dilution of fund shareholders, and U.S. registered funds do not currently use swing pricing. However, as discussed above, certain foreign funds currently do use swing pricing.
Items 4 and 9 of Form N-1A require a fund to disclose the principal risks of investing in the fund.
Item 11 of Form N-1A requires a fund to describe its procedure for redeeming fund shares, including restrictions on redemptions, any redemption charges, and whether the fund has reserved the right to redeem in kind.
Funds are not currently required to disclose information about the liquidity of their portfolio assets. However, Form N-PORT, as proposed earlier this year, would require that each fund disclose whether each particular portfolio security is an “illiquid asset” and defines illiquid assets in terms of current Commission guidelines (
Form N-1A does not currently require funds to disclose information about liquidity risk management practices such as the establishment (or use) of committed back-up lines of credit. A fund is, however, required to disclose information regarding the amount and terms of unused lines of credit for short-term financing, as well as information regarding related party transactions in its financial statements or notes thereto.
While the liquidity of a fund's portfolio assets, and the fund's overall liquidity risk, depend on a variety of factors and are unique to the particular circumstances facing the fund,
Staff economists have examined how the liquidity of U.S. equity funds' portfolios is influenced by both the market capitalization of a fund's portfolio assets, as well as the size of the fund in terms of assets. As described in more detail below, among U.S. equity funds, the average liquidity of a fund's equity positions is correlated with the market capitalization of a fund's portfolio assets, as well as the level of the fund's assets.
Fund liquidity tends to be highest for large cap U.S. equity funds and lowest for small cap U.S. equity funds.
To the extent that a fund invests in portfolio assets that are relatively less liquid, the fund may experience greater liquidity risk than a fund that invests in portfolio assets that are highly liquid. Based in part on our empirical analysis, we have decided not to propose any modification of or exclusion from the proposed liquidity requirements for smaller funds, since smaller funds tend to demonstrate relatively high flow volatility (and thus possibly greater liquidity risk).
We do note, however, that the staff's analysis discussed in the previous two paragraphs may overstate the difference in liquidity risk between funds with differing levels of asset liquidity for two reasons. First, the analysis performed by the staff does not reflect the fact that smaller funds will have smaller positions in the underlying equities, and sales of relatively small positions should result in less price impact than sales of larger positions (although the sale of smaller positions should have greater transaction costs as a percentage of sale proceeds). However, with respect to U.S. equity funds, staff analysis indicates that, on average, smaller funds hold assets that are relatively less liquid, which may at least partially offset that fact.
While portfolio managers consider a variety of factors when constructing a fund's portfolio (including the fund's investment strategies, economic and market trends, portfolio asset credit quality, and tax considerations), meeting daily redemption obligations is fundamental for open-end funds, and funds need to manage liquidity in order to meet obligations. We understand, based on statements from members of the fund industry and staff outreach, that funds generally consider the portfolio management process to be of central importance in managing funds' liquidity risk.
The results of the staff's analysis demonstrate that, with respect to U.S. equity funds, the liquidity of funds' holdings of equity securities is higher
The results of staff's analysis on the relationship between portfolio liquidity and fund flow volatility are significant for several reasons. First, these results suggest that, as indicated by funds in the course of staff outreach and in funds' statements regarding their liquidity risk management, some funds actively manage their portfolio liquidity to respond to events that could challenge funds' ability to plan to meet redemption requests. These results also emphasize that flow volatility is a relevant factor that a fund should consider when assessing liquidity risk and managing the liquidity profile of its portfolio. Rule 22e-4 as proposed reflects this by requiring a fund to consider its cash flow projections in assessing its liquidity risk (and determining its three-day liquid asset minimum), including the volatility of historical purchases and redemptions of fund shares during normal and stressed periods.
While increased flow volatility could make a fund less certain as to the extent of redemption requests it will be required to meet, changes in market liquidity (that is, the extent to which market factors affect the liquidity of a fund's portfolio holdings) could make a fund less certain that the assets its holds are sufficient to meet redemption requests, or meet such requests in a way that minimizes dilution of non-redeeming shareholders. Thus, both increased flow volatility and decreased market liquidity could increase a fund's liquidity risk. While staff analysis shows that U.S. equity fund liquidity decreased sharply during the 2007-2009 financial crisis, the cause of this decrease in liquidity is initially unclear.
This analysis demonstrates that fund portfolio liquidity tends to be lower during periods of decreased market liquidity. Based on this analysis, if a shareholder were to redeem shares during a period of decreased market liquidity, funds would likely have a less liquid portfolio of assets available to sell to meet redemptions. To the extent that selling those relatively less liquid assets requires the fund to accept a discount from the assets' market value, the value of the fund's shares would be negatively affected. Our staff's analysis thus highlights a source of potential concern regarding investor protection, reinforcing our motivation to propose regulations to better protect investors by enhancing funds' liquidity risk management. A primary benefit of the proposed liquidity risk management program requirement, discussed below, is the potential for the requirement to improve investor protection by decreasing the likelihood that a fund would be unable to meet its redemption obligations, or meet such obligations by materially affecting the fund's NAV.
A fund may meet redemption requests in a variety of ways, including by using available cash to pay all redemptions. If a fund were to sell portfolio assets in order to meet redemption requests, the fund's portfolio liquidity will be affected by the choice of which assets will be sold. Subsequent rebalancing of the fund's portfolio after redemptions are met will also affect portfolio liquidity. For example, a fund facing a large redemption request can lessen the price impact of selling assets by selling the most liquid portion of the portfolio.
Staff analysis of the impact of large redemptions on portfolio liquidity suggests that the typical U.S. equity fund does not sell a strip of its portfolio assets to meet redemptions, but instead appears—based on changes in funds' portfolio liquidity following net outflows—to disproportionately sell the more liquid portion of its portfolio for this purpose.
Holding all else equal, as the liquidity of a U.S. equity fund portfolio decreases, the price impact of selling a strip of that portfolio increases.
Along with staff analysis of economic relationships regarding funds' portfolio liquidity, evaluating recent fund industry developments also point to concerns about the need for funds to have liquidity risk management programs that will reduce the risk that funds will be unable to meet redemption obligations without materially affecting the fund's NAV or risk profile and mitigate dilution of interests of fund shareholders.
Below we discuss the size and growth of the U.S. fund industry generally, as well as the growth of various investment strategies within the industry. We show that the fund industry has grown significantly in the past two decades, and during this period, funds with international strategies, fixed income funds, and funds with alternative strategies have grown particularly quickly. We also examine trends regarding the volatility and predictability of fund flows, discussing in particular those types of funds that demonstrate notably volatile and unpredictable flows. Because volatility and predictability in a fund's flows can affect the extent to which the fund is able to meet expected and reasonably foreseeable redemption requests without materially affecting a fund's NAV or dilution of the interests of fund shareholders, assessing trends regarding these factors can provide information about sectors of the fund industry that could be particularly susceptible to liquidity risk.
While we believe that these trends are relevant from the perspective of addressing potential liquidity risk in the fund industry (and in funds' underlying portfolio assets), we emphasize that liquidity risk is not confined to certain types of funds or investment strategies. Although we recognize that certain fund characteristics could make a fund relatively more prone to liquidity risk, we believe that all types of funds entail liquidity risk to some extent.
Open-end funds and ETFs manage a significant and growing amount of assets in U.S. financial markets. As of the end of 2014, there were 8,734 open-end funds (excluding money market funds, but including ETFs), as compared to 5,279 at the end of 1996.
U.S. equity funds represent the greatest percentage of U.S. open-end fund industry assets.
While the overall growth rate of funds' assets has been generally high (about 8.0% per year, between the years 2000 and 2014
These investment subclasses represent a small portion of the U.S. mutual fund industry (the combined assets of these investment subclasses as a percentage of the U.S. fund industry was 2.6% at the end of 2014).
The assets of funds with alternative strategies
The industry developments discussed above are notable for several reasons. The growth of funds generally over the past few decades demonstrates that investors have increasingly come to rely on investments in funds to meet their financial needs.
These trends also demonstrate growth in particular types of funds that may entail increased liquidity risk. In particular, there has been significant growth in high-yield bond funds, emerging market debt funds, and funds with alternative strategies. Commissioners and Commission staff have previously spoken about the need to focus on potential liquidity risks relating to fixed income assets and fixed income funds,
Taking into account the goals of the proposed liquidity regulations and the economic baseline, as discussed above, this section explores the benefits and costs of the proposed liquidity regulations, as well as the potential effects of the proposed liquidity regulations on efficiency, competition, and capital formation. This section also discusses reasonable alternatives to proposed rule 22e-4, proposed rule 22c-1(a)(3), and the proposed disclosure and reporting requirements regarding funds' liquidity risk and liquidity risk management and swing pricing.
Proposed rule 22e-4 would require each fund to establish a written liquidity risk management program. The proposed rule specifies that a fund's liquidity risk management program shall include the following required program elements: (i) Classification and ongoing review of the classification of the liquidity of each of the fund's positions in a portfolio asset (or portions of a position in a particular asset), taking into account certain specified factors set forth in the rule;
A fund's board, including a majority of the fund's independent directors, would be required to approve the fund's liquidity risk management program (including the fund's three-day liquid asset minimum), as well as any material change to the program.
Proposed rule 22e-4 also includes certain recordkeeping requirements. A fund would be required to keep a written copy of its liquidity risk management policies and procedures, as well as copies of any materials provided to the fund's board in connection with the approval of the initial liquidity risk management program and any material changes to the program and annual board reporting requirement.
We believe that proposed rule 22e-4 is likely to produce benefits for current and potential fund investors. Specifically, we believe that the proposed program requirement is likely to improve investor protection by decreasing the chance that a fund would be unable to meet its redemption obligations, would meet such obligations only by materially affecting the fund's NAV, or would meet such obligations through methods that would have other adverse impacts on non-redeeming investors (
We believe that the proposed liquidity risk management program requirement would promote improved alignment of the liquidity of the fund's portfolio with the fund's expected (and reasonably foreseeable) levels of redemptions. As discussed above, proposed rule 22e-4 would require each fund to consider a
We believe that the proposed rule also would decrease the probability that a fund will be able to meet redemption requests only through activities that can materially affect the fund's NAV or risk profile or dilute the interests of fund shareholders. For example, when a fund does not effectively manage liquidity and is faced with significant redemptions, it may be forced to sell portfolio assets under unfavorable circumstances, which could create significant negative price pressure on those assets.
The potential negative consequences of asset sales effected to pay fund redemptions could create incentives in times of liquidity stress in the markets for early redemptions, or a “first-mover advantage.”
We recognize that certain funds already engage in fairly comprehensive liquidity risk management practices, and the proposed program requirement would likely benefit these funds' shareholders less than it would benefit the shareholders of funds that do not employ equally rigorous practices. The proposed program requirement aims to promote a minimum baseline in the fund industry, both in the assessment of portfolio assets' liquidity and the evaluation of factors relevant to liquidity risk management. This, in turn, we believe would promote investor protection by elevating the overall quality of liquidity risk management across the fund industry, reducing the likelihood that funds will meet redemption obligations only through activities that could materially affect fund NAVs or risk profiles, and mitigating dilution of shareholder interests. We cannot quantify the total benefits to fund operations and investor protection that we discuss above, but to the extent that staff outreach has noted that some funds currently have no (or very limited) formal liquidity risk management programs in place, proposed rule 22e-4 would enhance current liquidity risk management practices.
We also believe that the liquidity risk management program requirement, as proposed, would not adversely impact fund diversity and investor choice. While the proposed liquidity risk management program requirement would include certain required elements, and would require a fund to consider certain specified factors in classifying the liquidity of its portfolio assets and assessing its liquidity risk, it would not produce a de facto prohibition against certain investment strategies. We anticipate that the proposed three-day liquid asset minimum requirement would be sufficiently flexible to permit funds with different investment strategies, and whose cash flow and liquidity needs vary notably from one fund to the next, to manage their individual levels of liquidity risk. This proposed requirement would not mandate a standard level of minimum liquid asset holdings across the fund industry. Proposed rule 22e-4 thus would allow a fund with a relatively less liquid investment strategy to continue operating under that strategy, so long as the fund determines a three-day liquid asset minimum that takes into account the factors required to be considered under the proposed rule, and invests its assets in compliance with its three-day liquid asset minimum. (We recognize, however, that the proposed rule could result in a fund modifying its portfolio composition if it determines that the three-day liquid asset minimum that it should hold, as a result of its consideration of the required factors specified in the proposed rule, does not correspond with the fund's current portfolio composition.
Finally, to the extent that the proposed program requirement results in funds less frequently needing to sell portfolio assets in unfavorable market conditions in order to meet redemptions, the proposed requirement also could lower potential spillover risks that funds could pose to the financial markets generally. For example, the proposed approach could decrease the risk that all investors holding an asset would be affected if a fund facing heavy redemptions were forced to sell portfolio assets under unfavorable circumstances, which in turn could create significant negative price pressure on those assets. If, as a result of the proposed program requirement, a fund was prepared to meet redemption requests in other ways, the proposed rule could decrease the risk that the fund might indirectly transmit stress to other market sectors and participants. While there have been examples of funds' liquidity risk management preventing spillover market effects that could have arisen in the face of significant shareholder redemptions, this prevention of larger market effects has occurred because of funds' organic liquidity risk management practices, and not because of any specific liquidity risk management requirements. It is unclear whether such organic practices will be sufficient to prevent future spillover market events of similar or greater magnitude. The proposed rule should help all funds, not just funds with liquidity risk management practices currently in place, operate in a manner that lessens the chance of spillover risks. We are unable to quantify this potential benefit because we cannot predict the extent to which funds would enhance their current liquidity risk management practices as a result of proposed rule 22e-4, or predict the precise circumstances that could entail negative spillover effects in light of less-comprehensive liquidity risk management by funds.
Funds would incur one-time costs to establish and implement a liquidity risk management program in compliance with proposed rule 22e-4, as well as ongoing program-related costs. As discussed above, funds today employ a range of different practices, with varying levels of comprehensiveness, for assessing and classifying the liquidity of their portfolio assets, as well as for assessing and managing fund liquidity risk. Accordingly, funds whose practices regarding portfolio asset liquidity classification and liquidity risk assessment and management most closely align with the proposed liquidity risk management program requirements would incur relatively lower costs to comply with proposed rule 22e-4. Funds whose practices for classifying the liquidity of their portfolio assets and for assessing and managing liquidity risk are less comprehensive or not closely aligned with our proposals, on the other hand, may incur relatively higher initial compliance costs.
Our staff estimates that the one-time costs necessary to establish and implement a liquidity risk management program would range from $1.3 million to $2.25 million
We note that the estimated one-time systems costs associated with implementing the fees and gates provisions of the 2014 amendments to rule 2a-7 are generally similar to the proposed estimated one-time systems costs associated with implementing the floating NAV provisions of the 2014 rule 2a-7 amendments.
We understand, based on staff outreach, that annual costs to subscribe to the liquidity classification services provided by third-party data and analytics providers currently range from $50,000-$500,000.
We anticipate that, depending on the personnel (and/or third party service providers) involved with respect to the activities associated with establishing and implementing a liquidity risk management program, certain of the estimated one-time costs could be borne by the fund, and others could be borne by the fund's adviser. This cost allocation would be dependent on the facts and circumstances of a particular fund's liquidity risk management program, and thus we cannot specify the extent to which the estimated costs would typically be allocated to the fund as opposed to the adviser. Estimated costs that are allocated to the fund would be borne by fund shareholders in the form of fund operating expenses.
Staff estimates that each fund complex would incur ongoing program-related costs, as a result of proposed rule 22e-4, that range from 10% to 25% of the one-time costs necessary to establish and implement a liquidity risk management program.
For purposes of this analysis, Commission staff estimates, based on outreach conducted with a variety of funds regarding funds' current liquidity risk management practices, that approximately
605 investment grade bond mutual funds + 241 high yield bond mutual funds + 347 world bond mutual funds + 139 multi-sector bond mutual funds + 322 state municipal mutual funds + 376 alternative strategy funds that are equity funds (alternative strategy funds that are bond funds are included in our estimates of the number of bond mutual funds) + 469 emerging market equity mutual funds + 264 bond ETFs + 165 emerging market ETFs = 2,928 funds. 2,928 funds ÷ 8,734 open-end funds (excluding money market funds, and including ETFs) = approximately 33% = approximately
8,734 open-end funds (excluding money market funds, and including ETFs) −2,928 funds (see supra note 710) = 5,806 funds. 5,806 funds ÷ 8,734 open-end funds (excluding money market funds, and including ETFs) = approximately 66% = approximately
Certain elements of the program requirement may entail marked variability in related compliance costs, depending on a fund's particular circumstances and sources of potential liquidity risk. The process of classifying the liquidity of each of a fund's positions in a portfolio asset, taking into account the factors specified under proposed rule 22e-4(b)(2)(ii), could give rise to varying costs depending on the fund's particular investment strategy. For example, a U.S. large cap equity fund would likely incur relatively few costs to obtain the data necessary to consider the required factors. On the other hand, a fund that invests in assets for which relevant market, trading, and other liquidity-relevant data is less readily available would incur relatively greater costs associated with the classification, and ongoing review of the classification, of the funds' portfolio positions' liquidity. Certain of the factors that a fund would be required to consider in assessing its liquidity risk also could entail relatively greater costs, depending on the fund's circumstances. For instance, a fund with a relatively short operating history could incur greater costs in assessing the fund's cash flow projections than a similarly situated fund with a relatively long operating history. This is because the newer fund could find it appropriate to assess redemption activity in similar funds during normal and stressed periods (to predict its future cash flow patterns), which could entail additional costs to gather and analyze relevant data about these comparison funds. Also, a fund whose shares are held largely through omnibus accounts may wish to periodically request shareholder information from financial intermediaries in order to determine how the fund's ownership concentration may affect its cash flow projections. These data requests, and related analyses, could cause a fund to incur costs that another fund, whose shares are largely held directly, would not. A fund that deems it appropriate to establish and implement additional liquidity risk management policies and procedures beyond those specifically required under the proposed rule also would incur additional related costs. While we recognize that, as described above, the costs to establish and implement a liquidity risk management program in compliance with proposed rule 22e-4 will depend to some degree on the level of liquidity risk facing the fund, we are unable to discuss in detail all of the ways in which a fund's individual risks and circumstances could affect the costs associated with establishing a liquidity risk management program.
A fund may incur costs if it decides to reallocate portfolio assets to correspond with its initial or subsequently modified three-day liquid asset minimum. While we are unable to anticipate how many funds may reallocate portfolio assets in this way, or the extent of such reallocation by any fund that does so, we anticipate that the transaction-related costs of any such reallocation will not be significant for most funds. This is because some funds may not need to reallocate portfolio assets at all to correspond with their three-day liquid asset minimum, and those that decide to do so would be able to gradually adjust their portfolios in order to buy and sell portfolio positions during times that are financially advantageous. We note that the three-day liquid asset minimum requirement would limit the
Under the proposed rule, a fund would be required to determine its three-day liquid asset minimum based on a consideration of certain specified factors relating to the fund's liquidity risk.
As discussed above, the proposed rule could result in certain funds increasing their investments in relatively more liquid assets, which would effectively mean that these funds would decrease their investments in relatively less liquid assets. If funds decrease their investments in relatively less liquid assets, the market for those assets could become even less liquid. This could discourage new issuances of similar assets and decrease the liquidity of relatively less liquid assets that are still outstanding. The impact of decreased activity from funds in less liquid markets will depend on how much current activity in those markets is driven by the funds, which varies between markets. Further, these market effects could be partially offset if other opportunistic investors with greater capacity to hold less liquid assets are attracted to the market by any lower prices for these assets that result if funds decrease their holdings of less liquid assets.
The proposed liquidity risk management program requirement would require a fund to assess its liquidity risk and to determine its three-day liquid asset minimum based on this risk assessment. We believe that the proposed requirements would improve the alignment between fund portfolio liquidity and fund liquidity needs. This improved alignment could enhance funds' ability to meet redemptions in a manner that mitigates potential dilution of shareholders' interests, and thus this improved alignment could be viewed as increasing efficiency to the extent that dilution is viewed as a drag on the ability of a fund's NAV to reflect the performance of its portfolio. Additionally, the requirement for a fund to classify the liquidity of its portfolio assets (along with the related reporting and disclosure requirements, discussed below) also could increase allocative efficiency by assisting investors in making investment choices that better match their risk tolerances.
By enhancing funds' liquidity risk assessment and risk management, the proposed program requirement also could promote pricing efficiency in the sense that it would decrease the likelihood that a fund would be forced
If the proposed liquidity risk management program requirement results in a material decrease in funds' investment in relatively less liquid assets, competition for these assets would be negatively affected. Under this scenario, the relatively less liquid assets in which funds formerly would have invested may become even less liquid, since the number of current or potential market participants would be reduced. This decrease in competition may be partially offset if some other investors become willing to invest in relatively less liquid assets because of the larger illiquidity discount now associated with the price of those assets. As a corollary, if the proposed liquidity risk management program requirement results in a material increase in funds' investment in three-day liquid assets, competition for these assets would be positively affected. As funds increase their investment in relatively more liquid assets, the liquidity of those assets should increase. However, that increase may be partially offset if some other investors decrease their investment in relatively more liquid assets because of the larger liquidity premium now associated with the price of those assets.
The size of a fund, or the family of funds to which a fund belongs, could have certain competitive effects with respect to the fund's implementation of its liquidity risk management program. If there are economies of scale in creating and administrating multiple liquidity risk management programs, funds in large families would have a competitive advantage. For a fund in a smaller complex, however, a greater portion of the fund's (and/or adviser's
Any changes in certain assets' or asset classes' liquidity that could indirectly result from the proposed liquidity risk management program requirement (for example, as discussed above, if the number of buyers and sellers for certain assets becomes significantly reduced as a result of the program requirement) could also affect capital formation among issuers of these assets. Some firms could be discouraged from issuing new securities in particular asset classes because of price discounts associated with lower liquidity. Or if changes in liquidity are not equal across all asset classes, firms may begin to shift their capital structure (
In formulating our proposal, we have considered various alternatives to the individual elements of proposed rule 22e-4. Those alternatives are outlined above in the sections discussing the proposed rule elements, and we have requested comment on these alternatives.
Instead of proposing rule 22e-4, we could issue guidance surrounding the classification of portfolio assets' liquidity and the assessment and management of liquidity risk. However, on account of the significant diversity in liquidity risk management practices that we have observed in the fund industry, we believe that the need exists for an enhanced comprehensive baseline requirement instead of only guidance for fund liquidity risk management. Also, an approach that involves rulemaking, as opposed to merely guidance, would permit us to examine registrants' compliance with the requirements and bring enforcement actions relating to non-compliance and hence make it more likely that the benefits discussed above would be realized.
We considered proposing liquidity requirements similar to those imposed on money market funds—that is, the requirement to hold a minimum level of highly liquid asset holdings, and the ability to impose redemption fees and gates.
The Commission considered, but ultimately decided against, proposing to exclude certain types of funds from proposed rule 22e-4. For example, the proposed rule could have carved out exemptions for funds with investment strategies that historically have entailed relatively little liquidity risk, or funds with relatively low assets. We are not proposing to exclude any subset of open-end funds, other than money market funds, from the scope of the proposed rule. As discussed above, even funds with investment strategies that historically have involved little liquidity risk could experience liquidity stresses in certain environments.
We considered multiple alternatives to the proposed requirements regarding a fund's classification of the liquidity of its portfolio assets. Under proposed rule 22e-4, a fund would be required to classify and review the liquidity of each of the fund's positions in a portfolio asset (or a portion of a fund's position in a portfolio asset) based on the number of days within which a fund's position in a particular portfolio asset could be converted to cash at a price that does not materially affect the value of that asset assessed immediately prior to sale, and considering certain specified factors.
Instead of proposing an approach whereby a fund would be required to assign each portfolio position to one of several liquidity categories, we could have proposed a classification framework under which a fund would simply be required to classify a portfolio position as “liquid” or “illiquid,” based on a number of specified factors. As discussed above, Commission staff has found, based on outreach to a variety of funds, that funds with relatively comprehensive liquidity classification procedures tend to view the liquidity of their portfolio positions in terms of a liquidity spectrum rather than simply as wholly liquid or wholly illiquid. This “spectrum”-based approach to liquidity can greatly facilitate a fund's portfolio manager in engaging in portfolio construction that takes into account potential varying liquidity needs of the fund over time. Our proposed approach to liquidity classification reflects our understanding that funds commonly evaluate assets' liquidity across such a liquidity spectrum, as opposed to making a binary determination of whether an asset is liquid or illiquid. It also more accurately conveys to investors that liquidity tends to be a matter of degree.
We also considered several alternatives to the proposed requirement for each fund to determine its three-day liquid asset minimum and limit its acquisition of less liquid assets in contravention of that minimum. We instead could have proposed that each fund be required to determine a minimum buffer level of cash (or cash equivalents) that it would hold, or alternatively, to determine a minimum level of one-day liquid asset holdings. The cash buffer alternative would help ensure that a fund would be able to meet redemptions immediately, without the need to sell any portfolio assets. Likewise, a one-day liquid asset minimum requirement would help ensure that a fund would be able to meet redemptions within a very quick period, and could encourage a fund to hold a comparatively more liquid portfolio than the proposed three-day liquid asset minimum. But we believe that these options have a number of disadvantages. Namely, these options would not necessarily match a fund's liquidity needs with its redemption obligations, and could result in a fund being underinvested in assets that reflect the fund's investment strategy (and concurrent risks and performance potential).
We also considered proposing to require a standard level of three-day liquid asset minimum holdings for all funds. This alternative approach would have the advantage of being simple for investors to understand and our examination staff to verify. However, this alternative fails to account for notable differences between funds with respect to investment strategy, fund flow patterns, and other characteristics that contribute to funds' liquidity risk, which in turn would make it reasonable for funds' portfolios to have varying liquidity profiles. We believe that the proposed three-day liquid asset minimum requirement would promote consistency in funds' consideration of the factors relevant to their liquidity risk management, while also permitting flexibility in implementation, which we believe is appropriate in light of the significant diversity within the fund industry. This approach includes elements that would help our staff to ascertain that funds are indeed considering the required factors: Each fund would be required to maintain a written record of how its three-day liquid asset minimum was determined, as well as copies of materials submitted to the fund's board in connection with the board's approval of the three-day liquid asset minimum and reports provided to the board that review the adequacy of the fund's three-day liquid asset minimum.
Instead of requiring funds to determine and invest their assets in compliance with a three-day liquid asset minimum, we could require funds to conduct stress tests of their own design relating to the extent the fund has liquid assets to cover possible levels of redemptions. This would have the benefit of permitting a fund flexibility in determining whether its portfolio liquidity profile is appropriate given its liquidity needs. Also, since the three-day liquid asset minimum requirement implicitly also involves the requirement for a fund to classify its portfolio assets' liquidity in a particular manner (since compliance with a fund's three-day liquid asset minimum would require knowing which assets are three-day liquid assets), not requiring funds to determine a three-day liquid asset minimum would permit a fund to not incur the costs associated with the proposed liquidity classification requirements. As discussed above, some funds already conduct stress testing incorporating the factors that a fund would be required to consider in assessing their liquidity risk and determining their three-day liquid asset minimum based on this assessment.
Finally, we considered proposing a liquidity risk management program requirement that would not incorporate a three-day liquid asset minimum requirement (or one of the alternatives to this requirement discussed in the preceding paragraphs). Under this alternative, a fund would be required to adopt and implement a liquidity risk management program, which would include the proposed requirements regarding a fund's classification of the liquidity of its portfolio assets (and related reporting and disclosure regarding its portfolio assets' liquidity) and the proposed requirements limiting investments in 15% standard assets, but a fund would not be required to establish a minimum level of three-day liquid assets. This alternative would have the benefit of permitting funds to have a large amount of flexibility in managing their liquidity risk. Although a fund would need to ensure that it is able to meet its redemption obligations and would be subject to the proposed limitations on investments in 15% standard assets, it would be subject to no other requirements regarding its portfolio liquidity. This would provide flexibility, for example, for a fund to adjust its liquidity profile very quickly in light of changing market conditions, whereas a fund subject to the three-day liquid asset minimum requirement might not be able to do so as quickly, to the extent the fund's board would be required to approve a change in the fund's three-day liquid asset minimum. It also would permit a fund to calibrate portfolio liquidity based on the factors the fund or its adviser considers appropriate, instead of the factors that the proposed rule would require a fund to consider in determining its three-day liquid asset minimum. To the extent that a fund's portfolio liquidity was not in line with investors' risk tolerances, investors could decide not to invest in the fund, based on information about the fund's portfolio liquidity reported on Form N-PORT.
We do not believe, however, that this alternative would adequately respond to primary goals of this rulemaking, that is, reducing the risks that funds will be unable to meet their redemption obligations and reducing potential dilution of non-redeeming shareholders. We believe that the three-day liquid asset minimum requirement is a critical element of the proposed liquidity risk management program requirement that is designed to provide investors with increased protections regarding how
Under proposed rule 22c-1(a)(3), a fund (with the exception of a money market fund or ETF) would be permitted to establish and implement swing pricing policies and procedures that would, under certain circumstances, require the fund to use swing pricing to adjust its current NAV as an additional tool to lessen potential dilution of the value of outstanding redeemable securities caused by shareholder purchase or redemption activity. In order to use swing pricing under the proposed rule, a fund would be required to establish and implement swing pricing policies and procedures.
A fund's board, including a majority of the fund's independent directors, would be required to approve the fund's swing pricing policies and procedures (including the fund's swing threshold, and any swing factor upper limit specified under the fund's swing pricing policies and procedures), and any material change to these policies and procedures.
A fund that adopts swing pricing policies and procedures also would be required to keep certain records, including a written copy of its swing pricing policies and procedures,
We believe proposed rule 22c-1(a)(3) would promote investor protection by providing funds with a tool to reduce the potentially dilutive effects of shareholder purchase or redemption activity. Rule 22c-1 under the Investment Company Act, the “forward pricing” rule, requires a fund to price its shares based on the current market prices of its portfolio assets next computed after receipt of an order to buy or redeem shares.
We recognize that swing pricing may involve potential disadvantages to funds as well as potential advantages, and the provisions of proposed rule 22c-1(a)(3) are designed to maximize the relative advantages and respond to potential concerns associated with swing pricing. While swing pricing may reduce dilution at the fund level and could act as a deterrent against redemptions motivated by any first-mover advantage, the potential disadvantages to swing pricing (described in more detail below) include increased performance volatility and the fact that the precise impact of swing pricing on particular purchase or redemption requests would not be known in advance and thus may not be fully transparent to investors. In addition, the swing factor used by a fund on a particular day may not capture all costs incurred by the fund resulting from purchases or redemptions that day.
Commission rules and guidance do not currently address the ability of a fund to use swing pricing to mitigate potential dilution of fund shareholders, and the Commission's current valuation guidance could raise questions about making such NAV adjustment.
A primary cost of implementing swing pricing is an increase in fund return volatility. The implementation of swing pricing also could increase tracking error relative to a fund's benchmark. However, the impact of swing pricing on volatility and tracking error would decrease as a function of time: For example, the impact of swing pricing on daily return volatility and tracking error would likely be much greater than the impact on monthly volatility and tracking error. The use of “partial” swing pricing also lessens the impact on volatility and tracking error. When deciding whether or not to implement swing pricing, a fund would have to weigh the cost of increased volatility and tracking error (along with the other costs discussed below) against the previously-discussed benefits of swing pricing.
In addition, a swing pricing regime that uses a fund's daily net purchases or net redemptions to determine when the fund will adjust its NAV could create costs for fund investors. For example, an investor who purchases fund shares on a day when a fund adjusts its NAV downward will pay less to enter the fund than if the fund had not adjusted its NAV on that day. However, investors would not be able to purposefully take advantage of this lower purchase price without knowledge of contemporaneous intraday flows, which funds do not publicly disclose. Further, we believe that investors who purchase shares on a day that a fund adjusts its NAV downward would not create dilution for non-redeeming shareholders. Shareholders' purchase activity would provide liquidity to the fund, which could reduce the fund's liquidity costs and thereby could also decrease the swing factor. This could potentially help redeeming shareholders to receive a more favorable redemption price than they otherwise would have if there had been less purchase activity on that day, but would not affect the interests of non-redeeming investors. Similarly, adjusting a fund's NAV when the fund's daily net redemptions cross a certain threshold, regardless of the size of the component shareholder redemptions that comprise the daily net redemptions, could produce costs to individual redeeming shareholders whose redemptions alone would not result in redemption-related costs to the fund. For instance, a small investor's redemption request would not create any significant liquidity costs for the fund on its own, but if this investor were to redeem on the same day that the fund's net redemptions are high, his or her redemption proceeds would be reduced by the NAV adjustment.
We are not proposing to exempt certain investors from the NAV adjustments permitted under proposed rule 22c-1(a)(3). We believe that the costs of exempting certain investors from the NAV adjustment could be significant, particularly the operational costs that we believe could result from the relatively complex process of applying the NAV adjustment only to some investors and not to others. Exempting small investors from the NAV adjustment also may not be beneficial to a fund because such exemption could lead to large investors engaging in gaming behavior—that is, structuring their investments in funds using multiple small accounts—in order to use the exemption. This could contravene the purpose of the exemption and be costly for funds to detect.
Each fund that chooses to adopt swing pricing policies and procedures pursuant to proposed rule 22c-1(a)(3) would incur one-time costs to develop and implement the policies and procedures, as well as ongoing costs relating to administration of the policies and procedures. Those costs will directly impact the fund and may indirectly impact fund investors if the fund passes along its costs to investors through increased fees. As discussed above, while U.S. registered funds do not currently use swing pricing to mitigate potential dilution, certain foreign funds affiliated with U.S. fund families currently do use swing pricing.
Just as the costs associated with proposed rule 22e-4 could depend largely on the level of liquidity risk facing the fund, as well as the sources of the fund's liquidity risk, the costs of implementing swing pricing policies and procedures likewise could vary depending on these factors. As discussed above, there are multiple ways in which the costs associated with classifying portfolio positions' liquidity and assessing a fund's liquidity risk could vary based on a fund's individual risks and circumstances.
Our staff estimates that the one-time costs necessary to establish and implement swing pricing policies and procedures pursuant to proposed rule 22c-1(a)(3) would range from $1.3 million to $2.25 million
We note that the estimated one-time systems costs associated with implementing the fees and gates provisions of the 2014 amendments to rule 2a-7 are generally similar to the proposed estimated one-time systems costs associated with implementing the floating NAV provisions of the 2014 rule 2a-7 amendments.
We anticipate that, depending on the personnel (and/or third party service providers) involved in the activities associated with establishing and implementing swing pricing policies and procedures, certain of the estimated one-time costs associated with these activities could be borne by the fund, and others could be borne by the adviser. This cost allocation would depend on the facts and circumstances of a particular fund's swing pricing policies and procedures, and thus we cannot specify the extent to which the estimated costs would typically be allocated to the fund as opposed to the adviser. Estimated costs that are allocated to the fund would be borne by fund shareholders in the form of fund operating expenses.
Staff estimates that, on average, a fund complex that includes funds that adopt swing pricing policies and procedures pursuant to proposed rule 22c-1(a)(3) would incur ongoing annual costs that range from 5% to 15% of the one-time costs necessary to establish and implement swing pricing policies and procedures pursuant to proposed rule 22c-1(a)(3).
A fund would be permitted, but not required, to establish and implement swing pricing policies and procedures under proposed rule 22c-1(a)(3), and for purposes of this cost analysis, staff estimates that 167 fund complexes would adopt swing pricing policies and procedures. In developing this estimate, staff assumed that complexes including certain mutual fund strategies (high-yield bond funds, world bond funds (including emerging market debt funds), multi-sector bond funds, state municipal funds, alternative strategy funds, and emerging market equity funds) would be relatively more likely to adopt swing pricing policies and procedures, and of complexes with funds following these strategies, 75% would actually adopt swing pricing policies and procedures.
Proposed rule 22c-1(a)(3) would permit a fund, under certain circumstances, to adjust its NAV to effectively pass on costs stemming from shareholder purchase or redemption activity to the shareholders associated with that activity. Adjusting a fund's NAV in this way could reduce dilution to existing shareholders arising from trading costs. We therefore believe that the proposed rule could increase the efficiency of cost allocation among shareholders of funds that adopt swing pricing policies and procedures, provided that a fund's swing threshold and swing factor are appropriately calculated.
We anticipate that proposed rule 22c-1-1(a)(3) could indirectly foster capital formation by bolstering investor confidence. Investors may be more inclined to invest in funds if they understand that funds will be able to use swing pricing to prevent the purchase or redemption activity of certain investors from diluting the interests of other investors (particularly long-term investors, who represent the majority of fund shareholders). To the extent that swing pricing preserves investment returns to investors, particularly long-term investors,
The following discussion addresses significant alternatives to proposed rule 22c-1(a)(3). More detailed alternatives to the individual elements of the proposed rule are discussed in detail above, and we have requested comment on these alternatives.
Instead of permitting, but not requiring, funds to adopt swing pricing policies and procedures under proposed rule 22c-1(a)(3), we could have proposed a rule that would require all funds to adopt swing pricing policies and procedures. This alternative approach would have the benefit of establishing a uniform regulatory framework to prevent potential shareholder dilution. But because funds differ notably in terms of their particular circumstances and risks, as well as with respect to the tools funds use to manage risks relating to liquidity and shareholder purchases and redemptions, we decided to propose a rule that would permit swing pricing as a voluntary tool for funds. Our chosen approach would allow funds to weigh the advantages of swing pricing (
While proposed rule 22c-1(a)(3) envisions partial swing pricing (that is, a NAV adjustment would not be permitted unless net purchases or redemptions exceed a threshold set by the fund), the Commission instead could have proposed a rule that would permit full swing pricing (that is, a NAV adjustment would be permitted any time the fund experiences net purchases or net redemptions). Full swing pricing would result in
We considered permitting funds to use swing pricing only to adjust their NAV downward in the event that net redemptions exceeded a particular threshold, as there may be more significant issues regarding potential dilution for non-redeeming shareholders in connection with shareholder redemptions, because funds are obligated to satisfy redemption requests pursuant to section 22(e) of the Act. In this regard, we note that unlike redemptions, funds may reserve the right to decline purchase requests. For example, a fund may decline purchase requests from shareholders who engaged in frequent trading, and it also may decline large purchase requests that would negatively impact the fund.
We also considered limiting the swing factor, but we recognize that there could be circumstances in which limiting the swing factor would prevent a fund from capturing the costs associated with purchase or redemption activity in a fund.
Lastly, instead of proposing to permit funds to use swing pricing, we considered clarifying that a fund (other than a money market fund) could impose a purchase fee or redemption fee to address potential dilution.
We are proposing amendments to Form N-1A, Regulation S-X, proposed Form N-PORT, and proposed Form N-CEN to enhance fund disclosure and reporting regarding liquidity and redemption practices. Specifically, proposed amendments to Form N-1A would require a fund to disclose: (i) The number of days in which the fund will pay redemption proceeds to redeeming shareholders
The proposed disclosure and reporting requirements would promote investor protection by improving the availability of information regarding funds' liquidity risks and risk management practices, as well as funds' redemption practices. As discussed above, funds' disclosures to shareholders regarding their redemption practices are currently quite varied in content and comprehensiveness.
We note that, while proposed Form N-PORT and proposed Form N-CEN are designed primarily to assist the Commission and its staff, we believe that the information in these proposed forms (including the liquidity-related information proposed to be included in these forms) also would be valuable to investors.
The liquidity-related information that funds would be required to provide on proposed Form N-PORT and proposed Form N-CEN would enhance investor protection by improving the Commission's ability to monitor funds' liquidity using relevant and targeted data. This monitoring would permit us to analyze liquidity trends in individual funds, and among certain types of funds and the fund industry as a whole, as well as to better understand funds' liquidity risk management practices. As
Because we cannot predict the extent to which the proposed requirements would enhance investors' awareness of funds' portfolio liquidity and liquidity risk, or that this enhanced awareness would influence investors' investments in certain funds, we are unable to quantify the potential benefits discussed in this section.
Funds would incur one-time and ongoing annual costs to comply with the proposed disclosure and reporting requirements regarding liquidity and shareholder redemption practices.
We estimate that the one-time costs to comply with the proposed amendments to Form N-1A would be approximately $637 per fund (plus printing costs).
The proposed amendments to proposed Form N-PORT would require funds to report on Form N-PORT the liquidity classification of each portfolio asset position (or portion of a position in a particular asset), and we estimate that the average one-time compliance costs associated with this reporting would be $15,330 per fund.
Likewise, compliance with the proposed amendments to proposed Form N-CEN would involve ongoing costs as well as one-time costs. We estimate that 8,734 funds would be required to file responses on Form N-CEN as a result of the proposed amendments to the form. We estimate that the one-time and ongoing annual compliance costs associated with providing additional responses to Form N-CEN as a result of the proposed amendments would be approximately $160 per fund.
Based on these estimates, staff further estimates that the total one-time costs to comply with the proposed disclosure and reporting requirements would be
We appreciate that the proposed amendments to proposed Form N-PORT would increase the amount and availability of public information about investment companies' portfolio positions and that more frequent portfolio disclosure could potentially harm fund shareholders by expanding the opportunities for professional traders to exploit this information by engaging in predatory trading practices, such as “front-running” and “copycatting.”
We believe the proposed requirements could increase informational efficiency by providing additional information about the liquidity of funds' portfolio positions to investors, third-party service providers, and the Commission. This in turn could assist investors in evaluating the risks associated with certain funds, which could increase allocative efficiency by assisting investors in making investment choices that better match their risk tolerances. Enhanced disclosure regarding funds' liquidity and liquidity risk management practices could positively affect competition by permitting investors to choose whether to invest in certain funds based on this information. However, if investors were to move their assets among funds as a result of the disclosure requirements (for example, if the disclosure made clear that a certain fund was able to generate higher returns than its peers through high exposure to relatively less liquid positions, which then led investors with limited risk tolerance to move assets out of this fund), this could negatively affect the competitive stance of certain funds.
Increased investor awareness of funds' portfolio liquidity and liquidity risk management practices also could promote capital formation if investors find certain funds' liquidity profiles and/or risk management practices attractive, and this awareness promotes increased investment in these funds and in turn in the assets in which the funds invest. For example, disclosure that reveals liquidity risk in funds' portfolios could negatively impact capital formation if this disclosure leads investors to decide that such funds pose too great of an investment risk, and consequently decide not to invest in these funds or to decrease their investment in these funds. Conversely, to the extent that investors assume that funds investing in relatively less liquid assets could obtain a liquidity risk premium in the form of higher returns over some period of time, the potential for higher returns could draw certain investors to funds investing in relatively less liquid asset classes, which could positively affect capital formation for these funds. If investors shift their invested assets between funds based on liquidity, there could be capital formation effects stemming from increased (or decreased) investment in the funds' portfolio assets, even if the total capital invested in funds remains constant. For example, if fund investors move assets from an investment strategy that entails relatively high liquidity risk
The following discussion addresses significant alternatives to proposed disclosure and reporting requirements. More detailed alternatives to the individual elements of the proposed requirements are discussed in detail above, and we have requested comment on these alternatives.
The Commission considered proposing to require each fund to disclose information about the liquidity of its portfolio positions in the fund's prospectus or on the fund's Web site, in addition to in reports filed on Form N-PORT. For example, we could have proposed to require a fund to disclose its three-day liquid asset minimum, or the percentage of the fund's portfolio invested in each of the liquidity categories specified under proposed rule 22e-4(b)(2)(i), in its prospectus or on its Web site. This additional disclosure could further increase transparency with respect to funds' portfolio liquidity and liquidity-related risks. But we had concerns that this additional disclosure could create investor confusion; for example, an investor could mistakenly understand statements about the liquidity of the fund's
Conversely, the Commission also considered limiting the proposed enhancements to funds' liquidity-related disclosures on proposed Form N-PORT. As discussed above, we are sensitive to the possibility that the proposed amendments to the proposed form could facilitate front-running, predatory trading, and other activities that could be detrimental to a fund and its investors. Limiting the required disclosure about information concerning the liquidity of funds' portfolio positions could allow funds to shelter certain information that they may consider a source of competitive advantage. As discussed in our recent proposal to modernize investment company reporting, the items included on proposed Form N-PORT reflect our careful consideration of what information we believe to be important for our oversight activities and to the public, and the costs to investment companies to provide the information.
The Commission requests comment on all aspects of this initial economic analysis, including whether the analysis has: (i) Identified all benefits and costs, including all effects on efficiency, competition, and capital formation; (ii) given due consideration to each benefit and cost, including each effect on efficiency, competition, and capital formation; and (iii) identified and considered reasonable alternatives to the proposed new rule and rule amendments. We request and encourage any interested person to submit comments regarding the proposed rule and proposed amendments, our analysis of the potential effects of the proposed rule and proposed amendments, and other matters that may have an effect on the proposed rule and proposed amendments. We request that commenters identify sources of data and information as well as provide data and information to assist us in analyzing the economic consequences of the proposed rule and proposed amendments. We also are interested in comments on the qualitative benefits and costs we have identified and any benefits and costs we may have overlooked. We also request comments on all data and empirical analyses used in support of the proposed rule and proposed amendments.
In addition to our general request for comment on the economic analysis associated with the proposed rule and proposed amendments, we request specific comment on certain aspects of the proposal:
• To what extent do funds' current practices regarding portfolio asset liquidity classification and liquidity risk assessment and management currently align with the proposed liquidity risk management program requirements, and what operational and other costs would funds incur in modifying their current practices to comply with the proposed requirements?
• What factors, with respect to a fund's particular risks and circumstances, would cause particular variance in funds' compliance costs related to the liquidity risk management program requirement?
• We note that rule 22e-4 as proposed is meant to provide flexibility in permitting a fund to customize its liquidity risk management program, and thus we anticipate that the costs and burdens relating to the program requirement will vary based on the fund's risks and circumstances. Does this flexibility (and the attendant requirement for each fund to adopt liquidity risk management policies and procedures based on an assessment of the fund's individual liquidity risk) affect the extent to which a fund family could lower costs by developing procedures, or implementing systems modifications, that could be used by all funds within the fund family? Does this flexibility enhance the potential effectiveness of the proposed liquidity risk management program?
• We request comment on our estimates of the one-time and ongoing costs associated with the proposed program requirement. Do commenters agree with our cost estimates? If not, how should our estimates be revised, and what changes, if any, should be made to the assumptions forming the basis for our estimates? Are there any significant costs that have not been identified within our estimates that warrant consideration? To what degree would economies of scale affect compliance costs for larger entities, and is the longer proposed compliance period for small entities
• To what extent do commenters anticipate that the proposed liquidity risk management program requirement could lead funds to modify their investment strategies or increase their
• We request comment on our estimate of the number of funds that would adopt swing pricing policies and procedures under proposed rule 22c-1(a)(3). For what reasons would a fund decide not to adopt swing pricing policies and procedures, and would funds with certain investment strategies be relatively more likely to adopt swing pricing policies and procedures?
• What operational and other costs would a fund incur in adopting swing pricing policies and procedures, and would these costs be significantly lower if a fund is a member of a fund complex that also includes foreign-domiciled funds that currently use swing pricing? Do commenters agree with our cost estimates associated with proposed rule 22c-1(a)(3)? If not, how should our estimates be revised, and what changes, if any, should be made to the assumptions forming the basis for our estimates? Are there any significant costs that have not been identified within our estimates that warrant consideration? How do commenters anticipate that these estimated costs might be allocated between a fund and its adviser?
• Would fund shareholders be more inclined or less inclined to invest in a fund that has adopted swing pricing policies and procedures as contemplated by proposed rule 22c-1(a)(3)? Do commenters believe that swing pricing could preserve investment returns to fund investors? If so, please provide any available data regarding the relationship between the use of swing pricing and the preservation of investment returns.
• Do commenters agree with our statement that swing pricing would be simpler and less costly to implement than purchase fees or redemption fees?
• Do the proposed disclosure and reporting requirements raise any concerns about confidentiality relating to a fund's portfolio holdings, investor confusion, the potential misallocation of invested funds, or other concerns? To what extent would the proposed portfolio liquidity-related enhancements to funds' disclosures on Form N-PORT give rise to front-running, predatory trading, and other activities that could be detrimental to a fund and its investors?
• Would additional prospectus disclosure about funds' portfolio liquidity, beyond that which would be required under the proposed Form N-1A amendments, be useful to investors? If so, what additional disclosure would be most useful, and what disclosure methods would permit funds to appropriately balance disclosure about liquidity-related risks with disclosure regarding other risks facing the fund?
Proposed rule 22e-4 and the proposed amendments to rule 22c-1 contain “collections of information” within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
The title for the existing collections of information are: “Rule 31a-2 Records to be preserved by registered investment companies, certain majority-owned subsidiaries thereof, and other persons having transactions with registered investment companies” (OMB Control No. 3235-0179); and “Form N-1A under the Securities Act of 1933 and under the Investment Company Act of 1940, Registration Statement of Open-End Management Investment Companies” (OMB Control No. 3235-0307). In the Investment Company Reporting Modernization Release, we submitted new collections of information for proposed Form N-CEN and proposed Form N-PORT.
The Commission is proposing new rule 22e-4 and amendments to rule 22c-1, rule 31a-2, Regulation S-X and Form N-1A. The Commission also is proposing to amend proposed Form N-CEN and proposed Form N-PORT. The new rule and proposed amendments are designed to promote effective liquidity risk management throughout the open-end fund industry, prevent potential dilution of interests of fund shareholders in light of redemption activity, and enhance disclosure regarding fund liquidity and shareholder redemption practices. We discuss below the collection of information burdens associated with these reforms.
Proposed rule 22e-4 would require funds to establish a written liquidity risk management program that is reasonably designed to assess and manage the fund's liquidity risk. This program would include policies and procedures adopted by the fund that incorporate certain program elements, including: (i) Classification, and ongoing review of the classification, of the liquidity of a fund's portfolio positions; (ii) assessment and periodic review of a fund's liquidity risk; and (iii) management of the fund's liquidity risk, including determination and periodic review of the fund's three-day liquidity asset minimum and establishment of policies and procedures regarding redemptions in kind, to the extent that the fund engages in or reserves the right to engage in redemptions in kind. The rule also would require board approval and oversight of the program and recordkeeping. The proposed requirements that funds adopt a written liquidity risk management program, report to the board, maintain a written record of how the three-day liquid asset minimum and any adjustments were determined, and retain certain records are collections of information under the
We believe that most funds regularly monitor the liquidity of their portfolios as part of the portfolio management function, but they may not have written policies and procedures regarding liquidity management. Proposed rule 22e-4 would require funds to have a written liquidity risk management program. We believe such a program would promote efficient liquidity risk management, reduce the probability that a fund will be able to meet redemption requests only through activities that could materially affect the fund's NAV or risk profile or dilute the interests of fund shareholders, and respond to risks associated with increasingly complex portfolio investments and operations.
For purposes of this PRA analysis, we estimate that a fund complex would incur a one-time average burden of 40 hours associated with documenting the liquidity risk management programs adopted by each fund within the complex. Proposed rule 22e-4 requires fund boards to approve the liquidity risk management program and any material changes to the program (including the three-day liquid asset minimum), and we estimate a one-time burden of nine hours per fund complex associated with fund boards' review and approval of the funds' liquidity risk management programs and preparation of board materials. Amortized over a 3 year period, this would be an annual burden per fund complex of about 16 hours. Accordingly, we estimate that the total burden for initial documentation and review of funds' written liquidity risk management program would be 42,483 hours.
Under proposed rule 22e-4(b)(2)(iv), each fund would be required as part of its liquidity risk management program to determine and periodically review its three-day liquid asset minimum. The fund's investment adviser or officer that administers the liquidity risk management program must provide a written report to the fund's board at least annually that reviews the adequacy of the fund's liquidity risk management program, including the fund's three-day liquid asset minimum, and the effectiveness of its implementation.
For purposes of this PRA analysis, we estimate that, for each fund complex, compliance with the reporting requirement would entail: (i) Five hours of portfolio management time, (ii) five hours of compliance time, (iii) five hours of professional legal time and (iv) 2.5 hours of support staff time, requiring an additional 17.5 burden hours at a time cost of approximately $5,193 per fund complex to draft the required report to the board.
Because each fund within a fund complex would be required to determine its own three-day liquid asset minimum, this estimate assumes that the report at issue would incorporate an assessment of the three-day liquid asset minimum for each fund within the fund complex.
Proposed rule 22e-4(c) would require a fund to maintain a written copy of policies and procedures adopted pursuant to its liquidity risk management program for five years in an easily accessible place. The proposed rule also would require a fund to maintain copies of materials provided to the board, as well as a written record of how the three-day liquid asset minimum and any adjustments to the minimum were determined, for five years, the first two years in an easily accessible place. The retention of these records would be necessary to allow the staff during examinations of funds to determine whether a fund is in compliance with the required liquidity risk management program. We estimate that the burden would be five hours per fund complex to retain these records, with 2.5 hours spent by a general clerk and 2.5 hours spent by a senior computer operator. We estimate a time cost per fund complex of $361.
Amortized over a three-year period, the hour burdens and time costs associated with proposed rule 22e-4, including the burden associated with (a) funds' initial documentation and review of the required written liquidity risk management program, (b) reporting to a fund's board regarding the fund's three-day liquid asset minimum, and (c) recordkeeping requirements, would result in an average aggregate annual burden of 28,611 hours and average aggregate time costs of $14,431,215.
We are proposing to amend rule 22c-1 and establish new collection of information burdens under the rule. The proposed amendments would permit a fund (with the exception of a money market fund or ETF) to establish and implement policies and procedures that would require the fund, under certain circumstances, to use swing pricing to mitigate dilution of the value of outstanding redeemable securities stemming from shareholder purchase or redemption activity. We believe the proposed amendments to rule 22c-1 would promote investor protection by providing funds with an additional tool to mitigate the potentially dilutive effects of shareholder purchase or redemption activity and provide a set of operational standards that would allow funds to gain comfort using swing pricing as a new means of mitigating potential dilution.
In order to use swing pricing under the proposed amendments, a fund would be required to establish and implement swing pricing policies and procedures that meet certain requirements.
For purposes of this PRA analysis, we estimate that each fund complex would incur a one-time average burden of 24 hours to document swing pricing policies and procedures. The proposed amendments to rule 22c-1 would require fund boards initially to approve the swing pricing policies and procedures (including the swing threshold) and any material changes to them, and we estimate a one-time burden of five hours per fund complex associated with the fund board's review and approval of swing pricing policies and procedures. Amortized over a 3 year period, this would be an annual burden per fund complex of about 10 hours. Accordingly, we estimate that the total burden associated with the preparation and approval of swing pricing policies and procedures by those fund complexes that we believe would use swing pricing would be 4,843 hours.
The proposed amendments to rule 22c-1 also would require a fund that uses swing pricing to retain a written copy of the fund's swing policies and procedures that are in effect, or at any time within the past six years were in effect, in an easily accessible place.
Amortized over a three-year period, the hour burdens and time costs associated with the proposed amendments to rule 22c-1, including the burden associated with the requirements that funds adopt policies and procedures, obtain board approval and retain certain records related to swing pricing, would result in an average aggregate annual burden of 2,115 hours and average aggregate time costs of $1,244,595.
Section 31(a)(1) of the Investment Company Act requires registered investment companies and certain of their majority-owned subsidiaries to maintain and preserve records as prescribed by Commission rules. Rule 31a-1 under the Act specifies the books and records that must be maintained. Rule 31a-2 under the Act specifies the time periods that entities must retain certain books and records, including those required to be maintained under rule 31a-1. The retention of records, as required by rule 31a-2, is necessary to ensure access by Commission staff to material business and financial information about funds and certain related entities. This information is used by the staff to evaluate fund compliance with the Investment Company Act and regulations thereunder. The Commission currently estimates that the annual burden associated with rule 31a-2 is 220 hours per fund, with 110 hours spent by a general clerk at a rate of $52 per hour and 110 hours spent by a senior computer operator at a rate of $81 per hour.
We are proposing to amend rule 31a-2 to require a fund that chooses to use swing pricing to create and maintain a record of support for each computation of an adjustment to the NAV of the fund's shares based on the fund's swing policies and procedures.
We estimate that approximately 947 funds would use swing pricing pursuant to the proposed amendments to rule 22c-1. We also estimate that each fund that uses swing pricing generally would incur an additional burden of 1 hour per year in order to comply with the proposed amendments to rule 31a-2. Accordingly, we estimate that the total average annual hour burden associated with the proposed amendments to rule 31a-2 would be an additional 947 hours at a cost of $68,169.
The Commission currently estimates that the average external cost of preserving books and records required by rule 31a-2 is approximately $70,000 per fund at a total cost of approximately $243,880,000 per year,
On May 20, 2015, the Commission proposed Form N-PORT, which would require funds to report information within thirty days after the end of each month about their monthly portfolio holdings to the Commission in a structured data format. Preparing a report on Form N-PORT is mandatory and a collection of information under the PRA, and the information required by Form N-PORT would be data-tagged in XML format. Responses to the reporting requirements would be kept confidential for reports filed with respect to the first two months of each quarter; the third month of the quarter would not be kept confidential, but made public sixty days after the quarter end.
In the Investment Company Reporting Modernization Release, we estimated that, for the 35% of funds that would file reports on proposed Form N-PORT in house, the per fund average aggregate annual hour burden was estimated to be 178 hours per fund, and the average cost to license a third-party software solution would be $4,805 per fund per year.
We are proposing amendments to Form N-PORT that would require each fund to report its three-day liquid asset minimum,
Under proposed rule 22e-4(b)(2)(i), an open-end management investment company (other than a money market fund) would be required as part of its liquidity risk management program to classify the liquidity of each of its positions in a portfolio asset (or portions of a position in a particular asset) based the number of days that the fund's position in the asset (or portion thereof) would be convertible to cash at a price that does not materially affect the value of that asset immediately prior to sale. We estimate that 8,734 funds would be required to file, on a monthly basis, additional information on Form N-PORT as a result of the proposed amendments.
Based on staff outreach, we understand that many funds currently categorize assets based on their liquidity, but this proposal would require a specific type of classification and the determination of a three-day liquid asset minimum. We expect that funds would incur a one-time internal burden to initially classify a fund's
In addition to the classification and review of securities, we estimate that 8,734
We estimate that 65% of funds (5,677) would retain the services of a third party to provide data aggregation, validation and/or filing services as part of the preparation and filing of reports on proposed Form N-PORT on the fund's behalf. For these funds, we estimate that each fund would require an average of approximately 4 hours to compile and review the information with the service provider prior to electronically filing the report for the first time and an average of 0.5 burden hours for subsequent filings. Therefore, we estimate the per fund average annual hour burden associated with the incremental changes to proposed Form N-PORT as a result of the proposed amendments for these funds would be an additional 9.5 hours for the first year
On May 20, 2015, we proposed to amend rule 30a-1 to require all funds to file reports with certain census-type information on proposed Form N-CEN with the Commission on an annual basis. Proposed Form N-CEN would be a collection of information under the PRA, and is designed to facilitate the Commission's oversight of funds and its ability to monitor trends and risks. The collection of information under Form N-CEN would be mandatory for all funds, and responses would not be kept confidential.
In the Investment Company Reporting Modernization Release, we estimated that the average annual hour burden per response for proposed Form N-CEN for the first year would be 32.37 hours and 12.37 hours in subsequent years.
We are proposing amendments to Form N-CEN to enhance the reporting of a fund's liquidity risk management practices. Specifically, the proposed amendments to Form N-CEN would require a fund to disclose information about committed lines of credit, including the size of the line of credit, the number of days that the line of credit was used, and the identity of the institution with whom the line of credit is held. The proposed amendments to Form N-CEN also would require a fund to report whether it engaged in interfund lending or interfund borrowing. Funds other than money market funds and ETFs would be required to report whether they used swing pricing during the reporting period. In addition, proposed amendments to Form N-CEN would require an ETF to report whether it required that an authorized participant post collateral to the ETF or any of its designated service providers in connection with the purchase or redemption of ETF shares during the reporting period.
We estimate that 8,734 funds would be required to file responses on Form N-CEN as a result of the proposed amendments to the form. We estimate that the average annual hour burden per additional response to Form N-CEN as a result of the proposed amendments would be 0.5 hour per fund per year for a total average annual hour burden of 4,367 hours.
Form N-1A is the registration form used by open-end investment companies. The respondents to the proposed amendments to Form N-1A are open-end management investment companies registered or registering with the Commission. Compliance with the disclosure requirements of Form N-1A is mandatory, and the responses to the disclosure requirements are not confidential. We currently estimate for Form N-1A a total hour burden of 1,579,974 hours, and the total annual external cost burden is $124,820,197.
We are proposing amendments to Form N-1A that would require funds
Form N-1A generally imposes two types of reporting burdens on investment companies: (i) The burden of preparing and filing the initial registration statement; and (ii) the burden of preparing and filing post-effective amendments to a previously effective registration statement (including post-effective amendments filed pursuant to rule 485(a) or 485(b) under the Securities Act, as applicable). We estimate that each fund would incur a one-time burden of an additional 2 hours,
We estimate that each fund would incur an ongoing burden of an additional 0.25 hours, at a time cost of an additional $80,
Amortizing these one-time and ongoing hour and cost burdens over three years results in an average annual increased burden of approximately 0.50 hours per fund,
In total, we estimate that funds would incur an average annual increased burden of approximately 8,007 hours,
We request comment on whether our estimates for burden hours and any external costs as described above are reasonable. Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments in order to: (i) Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (ii) evaluate the accuracy of the Commission's estimate of the burden of the proposed collections of information; (iii) determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; and (iv) determine whether there are ways to minimize the burden of the collections of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology.
The agency has submitted the proposed collection of information to OMB for approval. Persons wishing to submit comments on the collection of information requirements of the proposed amendments should direct them to the Office of Management and Budget, Attention Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and should send a copy to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549 1090, with reference to File No. S7-16-15. OMB is required to make a decision concerning the collections of information between 30 and 60 days after publication of this release; therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days after publication of this release. Requests for materials submitted to OMB by the Commission with regard to these collections of information should be in writing, refer to File No. S7-16-15, and be submitted to the Securities and Exchange Commission, Office of FOIA Services, 100 F Street NE., Washington, DC 20549-2736.
This Initial Regulatory Flexibility Analysis has been prepared in accordance with section 3 of the
Funds are not currently subject to requirements under the federal securities laws or Commission rules that specifically require them to manage their liquidity risk.
The Commission is proposing a new rule, amendments to current rules, and amendments to current and proposed forms that are designed to promote effective liquidity risk management throughout the open-end fund industry and thereby reduce the risk that funds will be unable to meet redemption obligations and mitigate dilution of the interests of fund shareholders. The proposed amendments also seek to enhance disclosure regarding fund liquidity and redemption practices. Specifically, a primary objective of these proposed liquidity regulations is to promote shareholder protection by elevating the overall quality of liquidity risk management across the fund industry, as well as by increasing transparency of funds' liquidity risks and risk management. The proposed liquidity regulations are also intended to lessen the possibility of early redemption incentives (and investor dilution) created by insufficient liquidity risk management, as well as the possibility that investors' share value will be diluted by costs incurred by the fund as a result of other investors' purchase and redemption activity. Finally, the proposed liquidity regulations are meant to address recent industry developments that have underscored the significance of funds' liquidity risk management practices. Each of these objectives is discussed in detail in section IV above.
The Commission is proposing new rule 22e-4 under the authority set forth in sections 22(c), 22(e) and 38(a) of the Investment Company Act [15 U.S.C. 80a-37(a)]. The Commission is proposing amendments to rule 22c-1 under the authority set forth in sections 22(c) and 38(a) of the Investment Company Act [15 U.S.C. 80a-22(c) and 80a-37(a)]. The Commission is proposing amendments to rule 31a-2 under the authority set forth in section 31(a) of the Investment Company Act [15 U.S.C. 80a-31(a)]. The Commission is proposing amendments to Form N-1A, Regulation S-X, proposed Form N-PORT, and proposed Form N-CEN under the authority set forth in the Securities Act, particularly section 19 thereof [15 U.S.C. 77a
An investment company is a small entity if, together with other investment companies in the same group of related investment companies, it has net assets of $50 million or less as of the end of its most recent fiscal year.
Proposed new rule 22e-4 would require each fund, including each small entity, to establish a written liquidity risk management program.
We estimate that 85 fund complexes are small fund groups that have funds that would be required to comply with the proposed liquidity risk management program requirement.
Under proposed rule 22c-1(a)(3), all funds (except money market funds and ETFs), including small entities, would be permitted (but not required) to use swing pricing to adjust the fund's current NAV to prevent potential dilution of the value of outstanding redeemable securities caused by shareholder purchase or redemption activity. In order to use swing pricing, a fund would be required to adopt swing pricing policies and procedures that must: (i) Provide that the fund will adjust its NAV by an amount designated as the “swing factor” once the level of net purchases or net redemptions from the fund has exceeded a specified percentage of the fund's net asset value known as the “swing threshold”;
As discussed above, we estimate that, on average, a fund complex would incur one-time costs ranging from $1,300,000 to $2,250,000, depending on the fund complex's particular circumstances, to adopt swing pricing policies and procedures and comply with related record retention requirements, as well as ongoing annual costs ranging from $65,000 to $337,500 per year associated with the proposed swing pricing (and related recordkeeping) regulations.
We are proposing amendments to Form N-1A, proposed Form N-PORT, and proposed Form N-CEN to enhance fund disclosure and reporting regarding the fund's redemption practices, portfolio liquidity, and certain liquidity risk management practices. Specifically, proposed amendments to Form N-1A would require new disclosure regarding a fund's redemption practices and its use of swing pricing (as applicable);
All funds would be subject to the proposed disclosure and reporting requirements, including funds that are small entities. For smaller funds and fund groups (
As discussed above, we estimate that each fund, including funds that are small entities, would incur a one-time burden of an additional 2 hours, at a time cost of an additional $637 (plus printing costs), to comply with the proposed amendments to Form N-1A.
We also estimate that the one-time disclosure- and reporting-related compliance costs for a fund that files reports in compliance with the proposed amendments to Form N-PORT in house would be approximately $780, and the one-time costs for a fund that uses a third-party service provider to prepare and file reports on proposed Form N-PORT would be approximately
As discussed above, we also estimate that the average annual burden per additional response to Form N-CEN as a result of the proposed amendments would be 0.5 hour per year per fund, including funds that are small entities.
Commission staff has not identified any federal rules that duplicate, overlap, or conflict with the proposed liquidity regulations.
The RFA directs the Commission to consider significant alternatives that would accomplish our stated objectives, while minimizing any significant economic impact on small entities. We considered the following alternatives for small entities in relation to the proposed liquidity regulations: (i) Exempting funds that are small entities from proposed rule 22e-4, and/or establishing different requirements under proposed rule 22e-4 to account for resources available to small entities; (ii) exempting funds that are small entities from the proposed disclosure and reporting requirements, or establishing different disclosure and reporting requirements, or different reporting frequency, to account for resources available to small entities; and (iii) exempting funds that are small entities from proposed rule 22c-1(a)(3) and the recordkeeping requirements of the proposed amendments to rule 31a-2.
We do not believe that exempting any subset of funds, including funds that are small entities, from proposed rule 22e-4 would permit us to achieve our stated objectives. As discussed above, we believe that the proposed liquidity regulations would result in multiple investor protection benefits, and these benefits should apply to investors in smaller funds as well as investors in larger funds.
We also do not believe that it would be desirable to establish different requirements applicable to funds of different sizes under proposed rule 22e-4 to account for resources available to small entities. We believe that all of the proposed program elements would be necessary for a fund to effectively assess and manage its liquidity risk, and we anticipate that all of the proposed program elements would work together to produce the anticipated investor protection benefits. We do note that the costs associated with proposed rule 22e-4 would vary depending on the fund's particular circumstances, and thus the proposed rule could result in different burdens on funds' resources. In particular, we expect that a fund that pursues an investment strategy that involves greater liquidity risk may have greater costs associated with its liquidity risk management program. However, we believe that it is appropriate to correlate the costs associated with the proposed rule with the level of liquidity risk facing a fund, and not necessarily with the fund's size. Under the proposed rule, a fund would be permitted to customize its liquidity risk management program precisely to reflect the liquidity risks that it typically faces, and that it could face in stressed market conditions. This flexibility in permitting a fund to customize its liquidity risk management program is meant to result in programs whose scope, and related costs and burdens, are appropriate to manage the actual amount of liquidity risk faced by a particular fund. Thus, to the extent a fund that is a small entity faces relatively little liquidity risk, it would incur relatively low costs to comply with proposed rule 22e-4. However, as discussed above, we believe that small funds could generally entail relatively high liquidity risk compared to larger funds, and thus these funds could incur relatively high costs to comply with proposed rule 22e-4.
Similarly, we do not believe that the interest of investors would be served by exempting funds that are small entities from the proposed disclosure and reporting requirements, or subjecting these funds to different disclosure and reporting requirements than larger funds. We believe that all fund investors, including investors in funds that are small entities, would benefit from disclosure and reporting requirements that would permit them to make investment choices that better match their risk tolerances.
Finally, we are not exempting funds that are small entities from proposed rule 22c-1(a)(3) because we believe that all funds should be able to use swing pricing as a voluntary tool to mitigate potential shareholder dilution.
The Commission requests comments regarding this analysis. We request comment on the number of small entities that would be subject to the proposed liquidity regulations and whether the proposed liquidity regulations would have any effects that have not been discussed. We request that commenters describe the nature of any effects on small entities subject to the proposed liquidity regulations and provide empirical data to support the nature and extent of such effects. We also request comment on the estimated compliance burdens of the proposed liquidity regulations and how they would affect small entities.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), the Commission must advise OMB whether a proposed regulation constitutes a “major” rule. Under SBREFA, a rule is considered “major” where, if adopted, it results in or is likely to result in:
○ An annual effect on the economy of $100 million or more;
○ A major increase in costs or prices for consumers or individual industries; or
○ Significant adverse effects on competition, investment, or innovation.
We request comment on whether our proposal would be a “major rule” for purposes of SBREFA. We solicit comment and empirical data on:
○ The potential effect on the U.S. economy on an annual basis;
○ Any potential increase in costs or prices for consumers or individual industries; and
○ Any potential effect on competition, investment, or innovation.
Commenters are requested to provide empirical data and other factual support for their views to the extent possible.
The Commission is proposing new rule 22e-4 under the authority set forth in sections 22(c), 22(e) and 38(a) of the Investment Company Act [15 U.S.C. 80a-37(a)]. The Commission is proposing amendments to rule 22c-1 under the authority set forth in sections 22(c) and 38(a) of the Investment Company Act [15 U.S.C. 80a-22(c) and 80a-37(a)]. The Commission is proposing amendments to rule 31a-2 under the authority set forth in section 31(a) of the Investment Company Act [15 U.S.C. 80a-31(a)]. The Commission is proposing amendments to Form N-1A, Regulation S-X, proposed Form N-PORT, and proposed Form N-CEN under the authority set forth in the Securities Act, particularly section 19 thereof [15 U.S.C. 77a
Accounting, Investment companies, Reporting and recordkeeping requirements, Securities.
Investment companies, Reporting and recordkeeping requirements, Securities.
For the reasons set out in the preamble, Title 17, Chapter II of the Code of Federal Regulations is proposed to be amended as follows:
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77nn(25), 77nn(26), 78c, 78j-1, 78
(e)
(f)
(g)
(n)
19.
15 U.S.C. 80a-1
(a) * * *
(3) Notwithstanding this paragraph (a), a registered open-end management investment company (but not a registered open-end management investment company that is regulated as a money market fund under § 270.2a-7 or an exchange-traded fund as defined in paragraph (a)(3)(v)(A) of this section) (a “fund”) may use swing pricing to adjust its current net asset value per share to mitigate dilution of the value of its outstanding redeemable securities as a result of shareholder purchase and redemption activity, provided that it has established and implemented swing pricing policies and procedures in compliance with the paragraphs (a)(3)(i)-(v) of this section.
(i) The fund's swing pricing policies and procedures shall:
(A) Provide that the fund must adjust its net asset value per share by a swing factor, determined pursuant to paragraph (a)(3)(i)(D) of this section, once the level of net purchases into or net redemptions from such fund has exceeded the fund's swing threshold, determined pursuant to paragraph (a)(3)(i)(B) of this section. In determining whether the fund's level of net purchases or net redemptions has exceeded the fund's swing threshold, the person(s) responsible for administering the fund's swing pricing policies and procedures pursuant to paragraph (a)(3)(ii)(B) of this section: shall be permitted to make such determination on the basis of information obtained after reasonable inquiry; and shall exclude any purchases or redemptions that are made in kind and not in cash.
(B) Specify the fund's swing threshold to be used pursuant to paragraph (3)(i)(A) of this section, considering:
(C) Provide for the periodic review, no less frequently than annually, of the fund's swing threshold, considering the factors set forth in paragraph (a)(3)(i)(B) of this section.
(D) Specify how the swing factor to be used pursuant to paragraph (a)(3)(i)(A) of this section shall be determined, and whether the swing factor would be subject to any upper limit. The determination of the swing factor, as well as any upper limit on the swing factor, must take into account:
(ii) The fund's swing pricing policies and procedures shall be subject to the following approval and oversight requirements:
(A) The fund's board of directors, including a majority of directors who are not interested persons of the fund, shall approve the swing pricing policies and procedures (including the fund's swing threshold, and any swing factor upper limit specified under the fund's swing pricing policies and procedures), as well as any material change to the policies and procedures (including any change to the fund's swing threshold, a change to any swing factor upper limit specified under the fund's swing pricing policies and procedures, or any decision to suspend or terminate the fund's swing pricing policies and procedures).
(B) The fund's board of directors shall designate the fund's investment adviser or officers responsible for administering the swing pricing policies and procedures, and for determining the swing factor that will be used each time the swing threshold is breached; provided that determination of the swing factor must be reasonably segregated from the portfolio management function of the fund.
(iii) The fund shall maintain a written copy of the policies and procedures adopted by the fund under this paragraph (a)(3) that are in effect, or at any time within the past six years were in effect, in an easily accessible place.
(iv) Any fund (a “feeder fund”) that invests, pursuant to section 12(d)(1)(E) of the Act (15 U.S.C. 80a-12(d)(1)(E)), in another fund (a “master fund”) may not use swing pricing to adjust the feeder fund's net asset value per share; however, a master fund may use swing pricing to adjust the master fund's net asset value per share, pursuant to the requirements set forth in this paragraph (a)(3).
(v) For purposes of this paragraph (a)(3):
(A)
(B)
(C)
(D)
(E)
(a) Definitions. For purposes of this section:
(1) Acquisition
(2) Business
(3) Convertible
(4)
(5)
(6)
(7)
(8)
(9)
(b)
(1) Program requirement. Each fund shall adopt and implement a written liquidity risk management program (“program”) that is reasonably designed to assess and manage the fund's liquidity risk. The program shall include policies and procedures incorporating the elements of paragraphs (b)(2)(i) through (iv) of this section. The program shall be administered by the fund's investment adviser, or an officer or officers of the fund, but may not be administered solely by portfolio managers of the fund.
(2) Required program elements. Each fund must:
(i) Classify and engage in an ongoing review of each of the fund's positions in a portfolio asset (or portions of a position in a particular asset) based on the following categories of number of days in which it is determined, using information obtained after reasonable inquiry, that the fund's position in the asset (or portion thereof) would be convertible to cash at a price that does not materially affect the value of that asset immediately prior to sale:
(A) Convertible to cash within 1 business day;
(B) Convertible to cash within 2-3 business days;
(C) Convertible to cash within 4-7 calendar days;
(D) Convertible to cash within 8-15 calendar days;
(E) Convertible to cash within 16-30 calendar days; and
(F) Convertible to cash in more than 30 calendar days.
In situations in which the period to convert a position to cash could be viewed either as two-to-three business days or four-to-seven calendar days, a fund should classify the position based on the shorter period (
(ii) For purposes of classifying and reviewing the liquidity of a fund's position in a portfolio asset (or portion thereof) under paragraph (b)(2)(i) of this section, take into account the following factors, to the extent applicable, with respect to the asset (or similar asset(s), to the extent that data concerning the portfolio asset is not available to the fund):
(A) Existence of an active market for the asset, including whether the asset is listed on an exchange, as well as the number, diversity, and quality of market participants;
(B) Frequency of trades or quotes for the asset and average daily trading volume of the asset (regardless of whether the asset is a security traded on an exchange);
(C) Volatility of trading prices for the asset;
(D) Bid-ask spreads for the asset;
(E) Whether the asset has a relatively standardized and simple structure;
(F) For fixed income securities, maturity and date of issue;
(G) Restrictions on trading of the asset and limitations on transfer of the asset;
(H) The size of the fund's position in the asset relative to the asset's average daily trading volume and, as applicable, the number of units of the asset outstanding. Analysis of position size should consider the extent to which the timing of disposing of the position could create any market value impact; and
(I) Relationship of the asset to another portfolio asset.
(iii) Assess and periodically review the fund's liquidity risk, considering the fund's:
(A) Short-term and long-term cash flow projections, taking into account the following considerations:
(
(
(
(
(
(B) Investment strategy and liquidity of portfolio assets;
(C) Use of borrowings and derivatives for investment purposes; and
(D) Holdings of cash and cash equivalents, as well as borrowing arrangements and other funding sources.
(iv) Manage the fund's liquidity risk, including that the fund will:
(A) Determine the fund's three-day liquid asset minimum, considering the factors specified in paragraphs (b)(2)(iii)(A) through (D) of this section;
(B) Periodically review, no less frequently than semi-annually, the adequacy of the fund's three-day liquid asset minimum, considering the factors incorporated in paragraphs (b)(2)(iii)(A) through (D) of this section;
(C) Not acquire any less liquid asset if, immediately after the acquisition, the fund would have invested less than its three-day liquid asset minimum in three-day liquid assets;
(D) Not acquire any 15% standard asset if, immediately after the acquisition, the fund would have invested more than 15% of its total assets in 15% standard assets; and
(E) Establish policies and procedures regarding redemptions in kind, to the
(3) Board approval and oversight of the program.
(i) The fund shall obtain initial approval of the liquidity risk management program (including the fund's three-day liquid asset minimum), as well as any material change to the program (including a change to the fund's three-day liquid asset minimum), from the fund's board of directors, including a majority of directors who are not interested persons of the fund.
(ii) The fund's board of directors, including a majority of directors who are not interested persons of the fund, shall review, no less frequently than annually, a written report prepared by the fund's investment adviser or officers administering the liquidity risk management program that describes the adequacy of the fund's liquidity risk management program, including the fund's three-day liquid asset minimum, and the effectiveness of its implementation.
(iii) The fund shall designate the fund's investment adviser or officers (which may not be solely portfolio managers of the fund) responsible for administering the policies and procedures incorporating the elements of paragraphs (b)(2)(i) through (iv) of this section, whose designation must be approved by the fund's board of directors, including a majority of the directors who are not interested persons of the fund.
(c)
(1) A written copy of the policies and procedures adopted by the fund under paragraphs (b)(1) of this section that are in effect, or at any time within the past five years were in effect, in an easily accessible place;
(2) Copies of any materials provided to the board of directors in connection with its approval under paragraph (b)(3)(i) of this section, and written reports provided to the board of directors under paragraph (b)(3)(ii) of this section, for at least five years after the end of the fiscal year in which the documents were provided, the first two years in an easily accessible place; and
(3) A written record of how the three-day liquid asset minimum, and any adjustments thereto, were determined, including assessment of the factors incorporated in paragraphs (b)(2)(iii)(A) through (D) of this section, for a period of not less than five years (the first two years in an easily accessible place) following the determination of and each change to the three-day liquid asset minimum.
(a) * * *
(2) Preserve for a period not less than six years from the end of the fiscal year in which any transactions occurred, the first two years in an easily accessible place, all books and records required to be made pursuant to paragraphs (5) through (12) of § 270.31a-1(b) and all vouchers, memoranda, correspondence, checkbooks, bank statements, cancelled checks, cash reconciliations, cancelled stock certificates, and all schedules evidencing and supporting each computation of net asset value of the investment company shares, including schedules evidencing and supporting each computation of an adjustment to net asset value of the investment company shares based on swing pricing policies and procedures established and implemented pursuant to § 270.22c-1(a)(3), and other documents required to be maintained by § 270.31a-1(a) and not enumerated in § 270.31a-1(b).
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78
The text of Form N-1A does not, and this amendment will not, appear in the Code of Federal Regulations.
(d) If the Fund uses swing pricing, an explanation of the circumstances under which it will use swing pricing and the effects of using swing pricing. With respect to any portion of a Fund's assets that is invested in one or more open-end management investment companies that are registered under the Investment Company Act, the Fund shall include a statement that the Fund's net asset value is calculated based upon the net asset values of the registered open-end management investment companies in which the Fund invests, and that the prospectuses for those companies explain the circumstances under which those companies will use swing pricing and the effects of using swing pricing.
(c) * * *
(7) The number of days following receipt of shareholder redemption requests in which the fund will pay redemption proceeds to redeeming shareholders. If the number of days differs by distribution channel, disclose the number of days for each channel.
(8) The methods that the Fund uses to meet redemption requests, and whether those methods are used regularly, or only in stressed market conditions (
2.
(d) The amount shown at the Capital Adjustments Due to Swing Pricing caption should include the per share impact of any amounts retained by the
(e) The amounts shown at the Net Asset Value, End of Period and Net Asset Value, Beginning of Period captions should be the Fund's net asset value per share as adjusted pursuant to its swing pricing policies and procedures, if applicable.
(a) Assume an initial investment made at the net asset value calculated on the last business day before the first day of each period shown, as adjusted pursuant to the Fund's swing pricing policies and procedures, if applicable.
* * *
(d) Assume a redemption at the price calculated on the last business day of each period shown, as adjusted pursuant to the Fund's swing pricing policies and procedures, if applicable.
(b)
* * *
(1)
* * *
4. * * * The ending redeemable value should assume a value as adjusted pursuant to swing pricing policies and procedures, if applicable.
* * *
(2)
* * *
6. * * * The ending value should assume a value as adjusted pursuant to swing pricing policies and procedures, if applicable.
(3)
* * *
6. * * * The ending value should assume a value as adjusted pursuant to swing pricing policies and procedures, if applicable.
(h) Credit Agreements. Agreements relating to lines of credit for the benefit of the Fund.
* * *
Item 44. Lines of credit, interfund lending and borrowing, and swing pricing. For open-end management investment companies, respond to the following:
a. Does the Fund have available a committed line of credit? [Yes/No]
i. If yes, what size is the line of credit? [insert dollar amount]
ii. If yes, with which institution(s) is the line of credit? [list name(s)]
iii. If yes, is the line of credit just for the Fund, or is it shared among multiple funds? [sole/shared]
1. If shared, list names of other funds that may use the line of credit. [list names and SEC File numbers]
iv. If yes, did the Fund draw on the line of credit this period? [Yes/No]
v. If the Fund drew on the line of credit during this period, what was the average amount outstanding when the line of credit was in use? [insert dollar amount]
vi. If the Fund drew on the line of credit during this period, what was the number of days that the line of credit was in use? [insert amount]
b. Did the Fund engage in interfund lending? [Yes/No]
i. If yes, what was the average amount of the interfund loan when the loan was outstanding? [insert dollar amount.]
ii. If yes, what was the number of days that the interfund loan was outstanding? [insert amount]
c. Did the Fund engage in interfund borrowing? [Yes/No]
i. If yes, what was the average amount of the interfund loan when the loan was outstanding? [insert dollar amount.]
ii. If yes, what was the number of days that the interfund loan was outstanding? [insert amount]
d. Did the Fund (if not a Money Market Fund, Exchange-Traded Fund, or Exchange-Traded Managed Fund) engage in swing pricing? [Yes/No]
* * *
Item 60.
* * *
g. Did the Fund require that an authorized participant post collateral to the Fund or any of its designated service providers in connection with the purchase or redemption of Fund shares during the reporting period? [Y/N]
The revisions and additions read as follows:
E. Definitions
* * *
15% Standard Asset has the meaning defined in rule 22e-4(a)(4).
Three-Day Liquid Asset Minimum has the meaning defined in rule 22e-4(a)(9).
* * *
* * *
Item B.7 Liquidity information. For open-end investment companies, provide the Three-Day Liquid Asset Minimum.
* * *
* * *
Item C.7 For portfolio investments of registered open-end management investment companies, is the investment a 15% Standard Asset?[Y/N]
* * *
Item C.13 For portfolio investments of open-end management investment companies, indicate the liquidity classification for each portfolio asset (or portion thereof) among the following categories as specified in rule 22e-4. For portfolio assets with multiple liquidity classifications, indicate the dollar amount attributable to each classification:
Convertible to cash within 1 business day
Convertible to cash within 2-3 business days
Convertible to cash within 4-7 calendar days
Convertible to cash within 8-15 calendar days
Convertible to cash within 16-30 calendar days
Convertible to cash in more than 30 calendar days
By the Commission.
Environmental Protection Agency (EPA).
Final rule.
This action finalizes the residual risk and technology review (RTR) conducted for the Primary Aluminum Production source category regulated under national emission standards for hazardous air pollutants (NESHAP). In addition, we are taking final action regarding new and revised emission standards for various hazardous air pollutants (HAP) emitted by this source category based on the RTR, newly obtained emissions test data, and comments we received in response to the 2011 proposal and 2014 supplemental proposal.
These final amendments include technology-based standards and work practice standards reflecting performance of maximum achievable control technology (MACT), and related monitoring, reporting, and testing requirements, for several previously unregulated HAP from various emissions sources. Furthermore, based on our risk review, we are finalizing new and revised emission standards for certain HAP emissions from potlines using the Soderberg technology to address risk. We are also adding a requirement for electronic reporting of compliance data, eliminating the exemptions for periods of startup, shutdown, and malfunctions (SSM), and not adopting the affirmative defense provisions proposed in 2011, consistent with a recent court decision vacating the affirmative defense provisions. This action will provide improved environmental protection regarding potential emissions of HAP emissions from primary aluminum reduction facilities.
This final action is effective on October 15, 2015. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of October 15, 2015.
The Environmental Protection Agency (EPA) has established a docket for this action under Docket ID No. EPA-HQ-OAR-2011-0797. All documents in the docket are listed on the
For questions about this final action, contact Mr. David Putney, Sector Policies and Programs Division (D243-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, 27711; telephone number: (919) 541-2016; fax number: (919) 541-3207; and email address:
Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source category listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding
In addition to being available in the docket, an electronic copy of this final action will also be available on the Internet through the Technology Transfer Network (TTN) Web site, a forum for information and technology exchange in various areas of air pollution control. Following signature by the EPA Administrator, the EPA will post a copy of this final action at
Additional information is available on the RTR Web site at
Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by December 14, 2015. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.
Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to reconsider the rule “[i]f the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000,
Section 112 of the CAA establishes a two-stage regulatory process to address emissions of HAP from stationary sources. In the first stage, we must identify categories of sources emitting one or more of the HAP listed in CAA section 112(b) and then promulgate technology-based NESHAP for those sources. “Major sources” are those that emit, or have the potential to emit, any single HAP at a rate of 10 tons per year (tpy) or more, or 25 tpy or more of any combination of HAP. For major sources, these standards are commonly referred to as MACT standards and must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). In developing MACT standards, CAA section 112(d)(2) directs the EPA to consider the application of measures, processes, methods, systems, or techniques, including, but not limited to, those that reduce the volume of or eliminate HAP emissions through process changes, substitution of materials, or other modifications; enclose systems or processes to eliminate emissions; collect, capture, or treat HAP when released from a process, stack, storage, or fugitive emissions point; are design, equipment, work practice, or operational standards; or any combination of the above.
For these MACT standards, the statute specifies certain minimum stringency requirements, which are referred to as MACT floor requirements and which may not be based on cost considerations. See CAA section 112(d)(3). For new sources, the MACT floor cannot be less stringent than the emission control achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than floors for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, we must also consider control options that are more stringent than the floor under CAA section 112(d)(2). We may establish standards more stringent than the floor, based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements.
In the second stage of the regulatory process, the CAA requires the EPA to undertake two different analyses, which we refer to as the technology review and the residual risk review. Under the technology review, we must review the technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years, pursuant to CAA section 112(d)(6). Under the residual risk review, we must evaluate the risk to public health remaining after application of the technology-based standards and revise the standards, if necessary, to provide an ample margin of safety to protect public health or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. The residual risk review is required within 8 years after promulgation of the technology-based standards, pursuant to CAA section 112(f). In conducting the residual risk review, if the EPA determines that the current standards provide an ample margin of safety to protect public health, it is not necessary to revise the MACT standards pursuant to CAA section 112(f).
Today's amendments involve rule changes pursuant to these authorities. Specifically, pursuant to CAA sections 112(d)(2) and (3), and 112(h), the EPA is amending the NESHAP to add standards for HAP not previously addressed. In addition, pursuant to CAA section 112(f), the EPA is amending certain MACT standards already promulgated to address risk. The EPA also conducted a technology review and determined that no further changes to the rule are necessary (within the meaning of CAA section 112(d)(6)) to reflect developments in practices, processes, and control technologies other than the work practices for anode bake furnaces and paste plants during startup periods, and work practices for potlines during normal operations (to help minimize POM, TF, and PM emissions), described in the 2011 and 2014 proposals.
The EPA promulgated the Primary Aluminum Reduction Plants NESHAP, which apply to the Primary Aluminum Production source category, on October 7, 1997 (62 FR 52407). The rule was amended on November 2, 2005 (70 FR 66280). The associated standards are codified at 40 CFR part 63, subpart LL.
The Primary Aluminum Production source category consists of facilities that produce aluminum from refined bauxite ore (also known as alumina), using an electrolytic reduction process in a series of cells called a “potline.” The two main potline types are prebake (a newer, higher-efficiency, lower-emitting technology) and Soderberg (an older, lower-efficiency, higher-emitting technology). The raw materials include alumina, petroleum coke, pitch, and fluoride salts. According to information available on the Web site of The Aluminum Association, Inc. (
Primary aluminum reduction facilities emit HAP from four basic processes: Pitch storage tanks, paste production plants, anode bake furnaces, and potlines. Operators form anode paste in the paste production plant from a mixture of petroleum coke and pitch. In a prebake facility, this anode paste is then formed into anodes and baked in an anode bake furnace. Operators subsequently place these “prebaked” anodes into a prebake potline where they are consumed via the electrolytic reduction process. Soderberg facilities do not have anode bake furnaces. Instead, the anode paste is fed directly into the Soderberg potlines and baked in place to form anodes, which again are consumed via the electrolytic reduction process.
There are currently 11 facilities located in the United States that are subject to the requirements of this NESHAP: 10 primary aluminum reduction plants and one carbon-only prebake anode production facility. These 10 primary aluminum reduction
At the time of the 2011 proposal, there were two facilities in the U.S. that used Soderberg potlines. One of those facilities (Massena East) was operating at that time, and the other (Columbia Falls) was idle. However, in 2014, before publication of the supplemental proposal, the Massena East facility was permanently shut down. Therefore, at the time we published the supplemental proposal, there was only one Soderberg facility (Columbia Falls) in the U.S., which was idle. After publication of the 2014 supplemental proposal, we learned that the one remaining idle Soderberg facility located in Columbia Falls was permanently shut down. We also learned that one prebake facility (run by Ormet Primary Aluminum Corporation) was shut down. Therefore, currently there are 10 existing facilities with potlines (all prebake facilities) in the source category plus the one facility without potlines that only produces anodes.
The major HAP emitted by these facilities are carbonyl sulfide (COS), hydrogen fluoride (HF), particulate HAP metals and polycyclic organic matter (POM), specifically polycyclic aromatic hydrocarbons (PAH).
The current Primary Aluminum Reduction Plants NESHAP (as they existed before today's final action) included MACT standards (promulgated in 1997 and 2005) for emissions of total fluorides (TF) (as a surrogate for HF) from anode bake furnaces and potlines and for emissions of POM from paste production plants, anode bake furnaces, Soderberg potlines, and new pitch storage tanks.
On December 6, 2011, and December 8, 2014, the EPA published proposed rules in the
This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the Primary Aluminum Production source category, finalizes our reviews of other aspects of the rule, and amends the Primary Aluminum Reduction Plants NESHAP based on those determinations and reviews. The changes being finalized in this action include the following: The promulgation of MACT floor-based limits for previously unregulated HAP (
This section provides a summary of the final amendments to the Primary Aluminum Reduction Plants NESHAP being promulgated in this action pursuant to CAA section 112(f).
To address risk, we are promulgating emission limits for POM, As, and Ni from existing vertical stud Soderberg two (VSS2) potlines at the following levels: 1.9 pounds (lb) POM/ton of aluminum produced, 0.006 lb As/ton of aluminum produced, and 0.07 lb Ni/ton of aluminum produced.
To address risk, we are promulgating As and Ni emission limits for new Soderberg potlines at the following levels: 0.006 lb As/ton of aluminum produced and 0.07 lb Ni/ton of aluminum produced. New or reconstructed Soderberg potlines would also be subject to the POM limit of 0.77 lb per ton of aluminum produced that we are promulgating for all new potlines. These emission limits for POM, Ni, and As for new and existing Soderberg plants being promulgated in this rule are the same as the limits proposed in the 2014 supplemental proposal. Additional information regarding the limits addressing risk is available in the
Based on our analyses of the data and information collected and our general understanding of the industry and other available information on potential controls for this industry, we have determined that there are no developments in practices, processes, and control technologies that warrant revisions to the MACT standards for this source category, other than the work practices for anode bake furnaces during startup periods (described in the December 2011 proposal), the work practices for paste plants during startup (described in the 2014 proposal) and work practices for potlines (to minimize emissions of PM, TF and POM) during normal operations (described in the 2014 supplemental proposal). We are promulgating these work practices as proposed for anode bake furnaces and paste plants during startup periods, and for potlines during normal operations, under section 112(d)(6) of the CAA. These standards apply to both new and existing sources using either of the production technologies.
In summary, we are not revising the MACT standards under CAA section 112(d)(6) other than the startup work practices for anode bake furnaces and paste plants described in the 2011 and 2014 proposals, and the work practices for potlines during normal operations described in the 2014 supplemental proposal. Additional information is available in the
We are promulgating MACT emission limits for COS, PM (as a surrogate for HAP metals other than mercury (Hg)), Hg, and polychlorinated biphenyls (PCB),
We are finalizing, as proposed in the 2014 proposal, changes to the Primary Aluminum Reduction Plants NESHAP to eliminate the exemption in the present rules for emissions occurring during SSM operations. Consistent with
In addition, we are finalizing work practices for potlines, paste production plants, and anode bake furnaces during startup periods that will ensure improved capture and control of emissions from those sources.
This rule also finalizes revisions to several other Primary Aluminum Reduction Plants NESHAP requirements as proposed, or in some cases with some modification, which are summarized in this section.
To increase the ease and efficiency of data submittal and data accessibility, we are finalizing, as proposed, a requirement that owners and operators of sources subject to the Primary Aluminum Reduction Plants NESHAP submit electronic copies of certain required performance test reports through an electronic performance test report tool called the Electronic Reporting Tool (ERT). This requirement to submit performance test data electronically to the EPA does not require any additional performance testing and applies only to those performance tests conducted using test methods that are supported by the ERT. A listing of the pollutants and test methods supported by the ERT is available at the ERT Web site.
We are finalizing work practice standards for all potlines (
We are finalizing new twice-daily visible emissions (VE) monitoring requirements as an alternative to bag leak detection systems (BLDS) or PM continuous emissions monitoring systems (CEMS) for control devices installed on existing sources (see section IV.D of this preamble for additional discussion of these monitoring changes).
We are finalizing the inclusion of PM for the potline similarity option found in the current subpart LL at 40 CFR 63.848(d). This section allows an owner or operator to use the monitoring of secondary TF and/or POM emissions from one potline to represent the performance of other “similar” potlines. Potlines are similar “if the owner or operator demonstrates that their structure, operability, type of emissions, volume of emissions and concentration of emissions are substantially equivalent.” Based on consideration of comments and information received in responses to the 2014 proposal, the EPA is amending the existing rule to allow potline owners or operators this same option for PM. That is, potline owners and operators now will have the option to establish “similarity of potlines” with respect to PM emissions. “Similarity” would be established based on the criteria already applicable with respect to TF and POM. See subpart LL at 40 CFR 63.848(d). As with TF and POM, an owner or operator would have to make this demonstration to the applicable regulatory authority and obtain approval from that authority.
We are modifying 40 CFR 63.846 to allow emission averaging in the case of PM from potlines and anode bake furnaces. That section currently allows emission averaging in the cases of POM and TF from these process units with certain prohibitions (
We are also finalizing the alternative emissions limits for co-controlled new and existing anode bake furances as proposed in the 2014 supplemental proposal (79 FR 72949).
We are also finalizing other minor technical and editorial changes to the NESHAP in response to comments received during the public comment period for the proposal and supplemental proposal, as described in this preamble.
The revisions to the MACT standards being promulgated in this action are effective on October 15, 2015.
The compliance dates for existing sources are:
October 15, 2015 for the malfunction provisions and the electronic reporting provisions;
October 17, 2016 for potline work practice standards and COS emission limits, for Soderberg potline PM and PCB emission limits, and for anode bake furnace and paste production plant work practices and PM emission limits; and
October 16, 2017 for prebake potline POM and PM emission limits; for Soderberg potline revised POM emission limits and emission limits for Ni and As; for anode bake furnace Hg emission limits; and for pitch storage tank POM equipment standards.
For more information on how we selected compliance dates for existing sources, refer to section IV.E of this preamble and the
New sources must typically comply with all of the standards immediately upon the effective date of the standard, or upon startup, whichever is later. CAA section 112(i)(1).
The EPA is requiring owners and operators of sources subject to the Primary Aluminum Reduction Plants NESHAP facilities to submit electronic copies of certain required performance test reports [and any other reports,
As mentioned in the preamble of the 2011 proposal, the EPA Web site that stores the submitted electronic data, WebFIRE, will be easily accessible to everyone and will provide a user-friendly interface that any stakeholder could access. By making the records, data and reports addressed in this rulemaking readily available, the EPA, the regulated community and the public will benefit when the EPA conducts its CAA-required technology and risk-based reviews. As a result of having reports readily accessible, our ability to carry out comprehensive reviews will be increased and achieved within a shorter period of time.
We anticipate fewer or less substantial information collection requests (ICRs) in conjunction with prospective CAA-required technology and risk-based reviews may be needed. We expect this to result in a decrease in time spent by industry to respond to data collection requests. We also expect the ICRs to contain less extensive stack testing provisions, as we will already have stack test data electronically. Reduced testing requirements would be a cost savings to industry. The EPA should also be able to conduct these required reviews more quickly. While the regulated community may benefit from a reduced burden of ICRs, the general public benefits from the agency's ability to provide these required reviews more quickly, resulting in increased public health and environmental protection.
Air agencies could benefit from more streamlined and automated review of the electronically submitted data. Having reports and associated data in electronic format will facilitate review through the use of software “search” options, as well as the downloading and analyzing of data in spreadsheet format. The ability to access and review air emission report information electronically will assist air agencies to more quickly and accurately determine compliance with the applicable regulations, potentially allowing a faster response to violations which could minimize harmful air emissions. This benefits both air agencies and the general public.
For a more thorough discussion of electronic reporting required by this rule, see the discussion in the preamble of the 2011 proposal (see 76 FR 76280). In summary, in addition to supporting regulation development, control strategy development, and other air pollution control activities, having an electronic database populated with performance test data will save industry, air agencies, and the EPA significant time, money, and effort while improving the quality of emission inventories, air quality regulations, and enhancing the public's access to this important information.
In this final rule, the EPA is including regulatory text that includes incorporation by reference (IBR). In accordance with requirements of 1 CFR 51.5, the EPA is incorporating by reference the following documents described in the amendments to 40 CFR 63.14:
• ASTM D4239-14e1, “Standard Test Method for Sulfur in the Analysis Sample of Coal and Coke Using High-Temperature Tube Furnace Combustion,” approved March 1, 2014;
• ASTM D6376-10, “Standard Test Method for Determination of Trace Metals in Petroleum Coke by Wavelength Dispersive X-Ray Fluorescence Spectroscopy,” approved July 1, 2010; and
• Method 428, “Determination Of Polychlorinated Dibenzo-P-Dioxin (PCDD), Polychlorinated Dibenzofuran (PCDF), and Polychlorinated Biphenyle Emissions from Stationary Sources,” amended September 12, 1990.
The following material will be referenced in 40 CFR 63.14 and as noted below. This material has already received IBR approval for subpart LL of 40 CFR part 63. We are moving it from an IBR section established earlier within subpart LL to the centralized IBR section in § 63.14.
•
• ASTM D2986-95A, “Standard Practice for Evaluation of Air Assay Media by the Monodisperse DOP (Dioctyl Phthalate) Smoke Test,” approved September 10, 1995, IBR approved for section 7.1.1 of Method 315 in appendix A to 40 CFR part 63.
The EPA has made, and will continue to make, these documents generally available electronically through
This section provides a description of what we proposed and what we are finalizing for several issues, the EPA's rationale for the final decisions and
Pursuant to CAA section 112(f), we conducted a residual risk review and presented the results of this review, along with our proposed decisions regarding risk acceptability and ample margin of safety, in the December 2014 supplemental proposal for the Primary Aluminum Reduction Plants NESHAP. The EPA views the residual risk review associated with the 2011 proposal as superseded by the residual risk review associated with the 2014 supplemental proposal, and so is referring only to that later risk assessment. The results of the risk assessment for the 2014 supplemental proposal are summarized in the preamble for that proposal and presented in more detail in the residual risk document,
Based on actual emissions estimates for the Primary Aluminum Production source category supplemental proposal, the maximum individual risk (MIR) for cancer was estimated to be up to 70-in-1 million driven by emissions of As and Ni compounds. The maximum chronic non-cancer target organ-specific hazard index (TOSHI) value was estimated to be up to 1 driven by Ni emissions. The maximum off-site acute hazard quotient (HQ) value was estimated to be 10 for As compounds and 2 for HF. The total estimated national cancer incidence from this source category, based on actual emission levels, was 0.06 excess cancer cases per year, or one case in every 17 years.
Based on MACT-allowable emissions, in the supplemental proposal, the MIR was estimated by the EPA to be up to 300-in-1 million, driven by potential emissions of As, Ni, and POM from the one idle Soderberg facility (Columbia Falls), which is now permanently closed. The maximum chronic non-cancer TOSHI value was estimated to be up to 2, driven by Ni. The MIR due to allowable emissions from prebake facilities was estimated by the EPA to be up to 70-in-1 million, driven by As and Ni.
The EPA also assessed the risks due to multipathway exposures to HAP emissions from the primary aluminum reduction plants. The assessment included tier 1 and tier 2 screening analyses and a refined analysis for the one Soderberg facility which was operational at the time recent emissions data for this source category were collected and this analysis was commenced, but which subsequently announced its permanent shut down in March 2014.
The multipathway screens rely on health-protective assumptions about consumption of local fish and locally grown or raised foods (adult female angler at 99th percentile consumption of fish
The highest cancer exceedance in the tier 2 analyses for dioxins was 40 times and 7 times for PAH for the subsistence fisherman scenario (total cancer screen value of 50 for the MIR site). Thus, these results indicate that the maximum cancer risks due to multipathway exposures to D/F and PAH emissions for the subsistence fisher scenario are less than 50-in-1 million under these highly conservative screening assumptions.
For the supplemental proposal, we weighed all health risk factors in our risk acceptability determination, and we proposed that the risks due to potential HAP emissions at baseline from the Soderberg subcategory were unacceptable due mainly to the estimated cancer risks of 300-in-1 million based on potential emissions from the one idle Soderberg facility were it to operate.
Regarding the prebake subcategories, as explained in the supplemental proposal, the EPA had concerns regarding the potential acute risks due to As emissions (with a maximum acute HQ of 10). See 79 FR 72947. However, given the conservative nature of the EPA's analysis of acute effects, and the facts that: (a) The inhalation cancer MIR was well below 100-in-1 million (MIR = 70-in-1 million); (b) the chronic non-cancer risks were low (
The EPA carefully considered public comments regarding the supplemental proposal (and original proposal), but did not find any comments that resulted in a change in analysis. Thus, the EPA did not change the risk assessment due to actual emissions for the source category and made no changes in the overall results for prebake facilities from the December 2014 supplemental proposal. However, the estimated risks due to allowable emissions for the source category decreased significantly due to the permanent closure of the one idle Soderberg facility. For the supplemental proposal, we included the one idle Soderberg facility in our assessment of allowable risks because, at that time, the facility still had a permit to operate, had not formally announced plans to close, and, therefore, could have reopened. However, that facility is now permanently closed, and the EPA is no longer including it in the risk assessment. Therefore, the final rule considers only risks from prebake facilities. Nevertheless, as discussed in section III.A. of this preamble, we are promulgating the As, Ni and POM standards proposed in the supplemental proposal to address risk from Soderberg facilities in the very unlikely event that either this idle Soderberg facility is reopened or a new Soderberg facility is constructed. A summary of the risk assessment results for the final rule is provided in Table 5 below. The documentation and details for the final rule risk assessment can be found in the document titled,
For the final rule, we again weighed all health risk factors in our risk acceptability determination. The EPA had concerns regarding the potential acute risks due to As emissions (with a maximum acute HQ of 10). See 79 FR 72947. However, given the conservative nature of the EPA's analysis of acute effects, and the facts that: (a) The inhalation cancer MIR was well below 100-in-1 million (MIR = 70-in-1 million); (b) the chronic non-cancer risks were low (
We also conducted an ample margin of safety analysis. As we described in the supplemental proposal, for prebake facilities we considered what further reductions might be obtained from technically feasible controls, further considering the cost of such controls and their cost-effectiveness. We identified no cost-effective controls under the ample margin of safety analysis to further reduce risks or environmental effects due to HAP emissions from prebake facilities. 79 FR 72947-48. Therefore, we indicated in the supplemental proposal, and conclude again in this final rule, that the NESHAP for prebake facilities provides an ample margin of safety to protect public health and prevent an adverse environmental effect.
With regard to Soderberg facilities, as mentioned in section III above, we proposed more stringent emission limits for Ni, As, and POM under CAA section 112(f) to ensure that the cancer MIR would remain below 100-in-1 million, the level of risk we defined as acceptable for purposes of this rule. We did not propose more stringent standards under the ample margin of safety analysis since we identified no feasible controls that would yield risk reductions at reasonable cost. Id at 72948. In this final action, we are promulgating these standards as proposed. Although these standards may not apply to any facilities, we are still promulgating the As, Ni and POM emissions limits for Soderberg facilities under CAA section 112(f) to address the shut down, but not yet demolished, existing Soderberg potlines, and the very unlikely scenario of construction of new Soderberg potlines.
The EPA received several comments regarding the revised risk assessment for the Primary Aluminum Production source category. The following is a summary of some key comments and our responses to those comments. Other comments received and our responses to those comments can be found in the document titled,
• The EPA's acceptability determination is unlawful and arbitrary because its risk assessment is incomplete and fails to follow the up-to-date science to assess health risk;
• The EPA's acceptability determination fails to consider or prevent unacceptable levels of cumulative impacts;
• Socioeconomic disparity in health risk from this source category makes the risk the EPA has found unacceptable, and the EPA must finalize a rule that is consistent with the principle of environmental justice (EJ);
• The EPA has failed to provide a reasoned explanation for why the lifetime cancer risk of 1-in-1 million or more based on inhalation alone from this sector is acceptable;
• After finding a level of acute risk that is 10 times the EPA's safety threshold, the agency has failed to justify not requiring the reduction of acute health risk below 1; and
• The EPA has failed to justify finding chronic non-cancer health risk to be acceptable.
With regard to the comment that the EPA failed to consider cumulative impacts, we note that while the incorporation of additional background concentrations from the environment in our risk assessments (including those from mobile sources and other industrial and area sources) could be technically challenging, they are neither mandated nor barred from our analysis. In developing the decision framework in the Benzene NESHAP used for making residual risk decisions, and now codified in CAA section 112(f)(2)(B), the EPA rejected approaches that would have mandated consideration of background levels of pollution in assessing the acceptability of risk, concluding that comparison of acceptable risk should not be associated with levels in polluted urban air (54 FR 38044, 38061, September 14, 1989). Background levels (including natural background) are not barred from the EPA's ample margin of safety analysis, and the EPA may consider them, as appropriate and as available, along with other factors, such as cost and technical feasibility, in the second step of its CAA section 112(f) analysis. As discussed in the 2014 supplemental proposal, the risk assessment for this source category did not include background contributions (that may reflect emissions that are from outside the source category and from other than co-located sources) because the available data are of insufficient quality upon which to base a meaningful analysis.
This rule has been finalized consistent with agency EJ principles and analyses. To examine the potential for any EJ issues that might be associated with the Primary Aluminum Production source category, we performed a demographic analysis, which is an assessment of risks to individual demographic groups, of the population close to the facilities. In this analysis, we evaluated the distribution of HAP-related cancer risks and non-cancer hazards from this source category across different social, demographic, and economic groups within the populations living near facilities identified as having the highest risks. The results of the demographic analysis are summarized in Table 6 below and indicate that there are no significant disproportionate risks to any particular minority, low income, or indigenous population. The methodology and the results of the demographic analyses are included in a technical report,
With regard to the comments that the EPA did not justify the determination that risks are acceptable, we generally draw no bright lines of acceptability regarding cancer or non-cancer risks from source category HAP emissions. This is a core feature of the Benzene NESHAP approach, now codified in CAA section 112(f)(2)(B). See 54 FR at 38046, 38057; see also 79 FR 72933-34. It is always important to consider the specific uncertainties of the emissions and health effects information regarding the source category or subcategory in question when deciding exactly what level of cancer and non-cancer risk should be considered acceptable. In addition, the source category-specific or subcategory-specific decision of what constitutes an acceptable level of risk should be a holistic one; that is, it should simultaneously consider all potential health impacts—chronic and acute, cancer and non-cancer, and multipathway—along with their uncertainties, when determining the acceptable level of source category risk. Today, such flexibility is even more imperative, because new information relevant to the question of risk acceptability is being developed all the time, and the accuracy and uncertainty of each piece of information must be considered in a weight-of-evidence approach for each decision. This relevant body of information is growing fast (and will likely continue to grow even faster), necessitating a flexible weight-of-evidence approach that acknowledges both complexity and uncertainty in the simplest and most transparent way possible. While this challenge is formidable, it is nonetheless the goal of the EPA's RTR decision-making, and it is the goal of the risk assessment to provide the information to support the decision-making process.
Our acceptability decisions for the prebake subcategory presented in the supplemental proposal, and again in this final rule, are appropriate. The rationale for our acceptability decision for the prebake subcategory was clearly explained in the supplemental proposal and was based on full consideration of the health risk information and associated uncertainties, and we summarize it here:
Regarding the prebake subcategories, as explained in the supplemental proposal, the EPA had concerns regarding the potential acute risks due to As emissions (with a maximum acute HQ of 10). See 79 FR 72947. However, given the conservative nature of the EPA's analysis of acute effects—among them, an assumption of the unlikely confluence of peak emissions, worst-
The commenter stated that in view of the EPA's scientific policy of summing cancer risks, it should recognize that the most-exposed person's combined multipathway and inhalation cancer risk is 70 + 70 or 140-in-1 million. The commenter stated that this is well above the EPA's presumptive acceptability benchmark (which itself is insufficiently stringent, as explained in their 2012 comments, incorporated by reference). The commenter also stated that the EPA should find the current cancer risk from inhalation and multipathway exposure, due to a combination of As, Ni, PAH, and dioxins, is unacceptable. The commenter stated that if viewed together with the high acute and chronic non-cancer risks the EPA found, as a result of As and Ni in particular, the data the EPA has compiled on risk show that the current health risks are unacceptable.
The commenter stated that the EPA has not assessed the additional multipathway risk from risk-driver pollutants, such as As and Ni. The commenter stated that, as discussed in their 2012 comments (to EPA's original proposal), this is inconsistent with the scientific evidence showing these are persistent bioaccumulative toxics [PBTs], and it is, thus, unlawful and arbitrary and capricious for the EPA not to assess and address the multipathway risks they create.
In the multipathway screening assessment, we did not sum the risk results of the fisher and farmer scenarios. The modeling approach used for this analysis constructs two different exposure scenarios, which serves as a conservative estimate of potential risks to the most-exposed receptor in each scenario. Given that it is highly unlikely that the most-exposed farmer is the same person as the most-exposed fisher, it is not reasonable to add risk results from these two exposure scenarios (see Appendix 5 and Section 2.5 of the
We do not find it reasonable to combine the results of our inhalation and multipathway assessments for this source category. The multipathway risk assessment for prebake facilities was a screening-level assessment. The screening assessment used highly conservative assumptions designed to ensure that sources with results below the screening threshold values did not have the potential for multipathway impacts of concern. The screening scenario is a hypothetical scenario, and, due to the theoretical construct of the screening model, exceedances of the thresholds are not directly translatable into estimates of risk or HQs for these facilities. Rather, it represents a high-end estimate of what the risk or hazard may be. For example, an exceedance of 2 for a non-carcinogen can be interpreted to mean that we have high confidence that the HQ or HI would be
We currently do not have screening values for some PB-HAP, but we disagree that the multipathway assessment is inadequate because it did not include “all HAP metals emitted (such as arsenic and nickel).” We developed the current PB-HAP list considering all available information on persistence and bioaccumulation (see
Regarding the commenter's assertion that we did not base the multipathway risk assessment on allowable emissions, we believe it is reasonable for the multipathway risk assessment to be based on actual emissions for this source category, and not the allowable level of emissions—
The commenter also argued for summing acute HQs from different HAP to assess acute non-cancer risk. We do not sum results of the acute non-cancer inhalation assessment to create a combined acute risk number that would represent the total acute risk for all pollutants that act in a similar way on the same organ system or systems (similar to the chronic TOSHI). The worst-case acute screen is already a conservative scenario. That is, the acute screening scenario assumes worst-case meteorology, peak emissions for all emission points occurring concurrently and an individual being located at the site of maximum concentration for an hour. Thus, as noted in the
The commenter stated that the EPA has not offered and can not offer a valid justification for not finding risk from both source categories (including primary aluminum prebake and secondary aluminum) to be unacceptable based on the co-located and combined risks. The commenter stated that the EPA has collected data from both source categories and is evaluating that data in rulemakings for both source categories. The commenter stated that the EPA may not lawfully ignore the full picture of risk that its combined rulemakings show is present
The commenter stated that the EPA only assessed facility-wide risks based on so-called “actual” emissions, so the facility-wide risk number could be at least 1.5 to 3 times higher, based on the EPA's recognition that allowable emissions from primary aluminum facilities are about 1.5 to 1.9 times higher and the fact that allowable emissions from secondary aluminum are at least 3 times higher.
The commenter stated that it is important that the EPA is evaluating facility-wide risk from sources in multiple categories that are co-located.
The commenter stated that the EPA may not reasonably or lawfully then decide not to use the results of that assessment to set stronger standards for these sources. The commenter stated that this rulemaking is an important opportunity for the EPA to recognize the need to act based on data showing significant combined and cumulative risks and impacts at the facility-wide level. The commenter stated that the EPA is also required to do so to meet its CAA section 112(f)(2) duties, as explained in the 2012 comments and reincorporated by reference here.
We conducted facility-wide risk assessments for all major sources in the source category that were operating in 2014, including the nine secondary aluminum production facilities co-located with primary aluminum reduction plants. See 79 FR 72929 (emissions estimated for all emitting sources in a contiguous area under common control).
The commenter stated that the EPA must find the risks unacceptable based on the whole-facility risks from co-located primary and secondary aluminum operations. The EPA does not typically include whole-facility assessments in the CAA section 112(f) acceptability determination for a source category. Reasons for this include the fact that emissions and source characterization data are usually not of the same vintage and quality for all source categories that are on the same site, and, thus, the results of the whole-facility assessment are generally not appropriate to include in the regulatory decisions regarding acceptability. However, in this case, we are developing the risk assessments for primary and secondary aluminum production at the same time. The data are generally of the same vintage and we have actual emissions data and source characterization data for both source categories. In response to the comment, we refer to the facility-wide risk assessment, which included the nine facilities with co-located primary and secondary aluminum operations. As discussed above and shown in Table 6, for the facility with the highest risk from inhalation, the facility-wide MIR for cancer from actual emissions is 70-in-1 million. The facility-wide non-cancer hazard is 1. The highest facility-wide exceedance of the multipathway screen is 70. There was no facility-wide exceedance of a noncancer threshold in the multipathway screen. Considering these facility-wide results as part of the acceptability determination is thus corroborative of our determination that the risks are acceptable for the Secondary Aluminum Production source category.
The commenter is correct that we based our facility-wide risk assessment on actual emissions rather than on estimated allowable emissions. Because the facility-wide allowable emissions estimates have not been subjected to the same level of scrutiny, quality assurance, and technical evaluation as the actual emissions estimates from the source category, and because of the larger inherent uncertainty associated with allowable emissions discussed above, facility-wide risk results based on allowable emissions would be too uncertain to support a regulatory decision, but they could remain important for providing context as long as their uncertainty is taken into consideration.
The distinct issue of whether background emissions not associated with co-located emitting sources at the facility is discussed above. We reiterate that while the incorporation of additional background concentrations from the environment in our risk assessments (including those from mobile sources and other industrial and area sources) could be technically challenging, they are neither mandated nor barred from our analysis. In developing the decision framework in the Benzene NESHAP used for making residual risk decisions, the EPA rejected approaches that would have mandated consideration of background levels of pollution in assessing the acceptability of risk, concluding that comparison of acceptable risk should not be associated with levels in polluted urban air (54 FR 38044, 38061, September 14, 1989).
Background levels (including natural background) are not barred from the EPA's ample margin of safety analysis, and the EPA may consider them, as appropriate and as available, along with other factors, such as cost and technical feasibility, in the second step of its CAA section 112(f) analysis. As discussed in the 2014 supplemental proposal, the risk assessment for this source category did not include background contributions (that may reflect emissions that are from outside the source category and from other than co-located sources) because the available data are of insufficient quality upon which to base a meaningful analysis.
One commenter recommended conducting a full multipathway risk assessment for this source category that includes consideration of a child's multipathway exposure in urban and rural residential scenarios. The commenter further stated that the failure of the EPA to assess an exposed child scenario as part of the cumulative risk assessment ignores the exposures that may pose the most significant risk from this source category. The commenter highlighted the risk to children from contaminated soils, noting that past risk assessments have relied on outdated estimates of incidental soil ingestion exposures and stated that the EPA must update these values. The commenter cited two EPA exposures factors handbooks and a journal article as resources to use for assessing risks.
The multipathway risk assessment conducted for the proposal was a screening-level assessment. The screening assessment used highly conservative assumptions designed to ensure that facilities with results below the screening threshold values did not have the potential for multipathway impacts of concern. The screening scenario is a hypothetical scenario, and, due to the theoretical construct of the screening model, exceedances of the thresholds are not directly translatable into estimates of risk or HQs for these facilities. The scope of the assessment did not change across the tiers in the multipathway screening assessment and is described in the risk assessment documents (and related appendices) available in the docket for this rulemaking (Docket ID No. EPA-HQ-OAR-2011-0797).
As discussed above and in the preamble of the 2014 supplemental proposal, after considering health risk information and other factors, including uncertainties, we have determined that the risks from primary aluminum production prebake facilities are acceptable and that the current NESHAP provides an ample margin of safety to protect public health for prebake facilities given that the inhalation cancer MIR was well below 100-in-1 million, the chronic non-cancer risks were low, and the multipathway assessment indicated the maximum cancer risk due to multipathway exposures to HAP emissions from prebake facilities was no higher than 50-in-1 million. In summary, our revised risk assessment indicates that cancer risks due to actual and allowable emissions from prebake facilities are below the presumptive limit of acceptability, and that non-cancer results indicate minimal likelihood of adverse health effects. We evaluated potential risk reductions as well as the cost of control options, but did not identify any control technologies or other measures that would be cost-effective in further reducing risks (or potential risks) for prebake facilities. In particular, we did not identify any cost-effective approaches to further reduce As, Ni, and PAH emissions and risks beyond what is already being achieved by the current NESHAP.
Regarding the Soderberg facilities, as discussed above, since all existing Soderberg facilities are permanently shut down, we necessarily conclude the risks due to emissions from Soderberg facilities are currently acceptable. However, under our ample margin of safety analysis, we have determined that it is appropriate to promulgate standards for Ni, As, and PAH under CAA section 112(f) for the Soderberg subcategory potlines to ensure that excess cancer risk due to HAP emissions from any possible future primary aluminum reduction plant would remain below 100-in-1 million. We estimate the costs to comply with these standards for Soderberg facilities would be zero since there are no existing operating Soderberg facilities in the U.S. Furthermore, we expect any future new primary aluminum reduction plant would use prebake potlines since prebake potlines are more energy efficient (and lower-emitting) than Soderberg potlines. Therefore, we also estimate that these standards would pose no cost for any future new primary aluminum reduction plant.
We proposed several MACT standards in the December 2011 proposal pursuant to CAA sections 112(d)(2) and (3), which are summarized in Table 7, below.
We received significant comments on the 2011 proposal from industry representatives, environmental organizations, and state regulatory agencies. After reviewing the comments, and after consideration of additional data and information received since the 2011 proposal, the EPA determined it was appropriate to gather additional data, revise some of the analyses associated with that proposal, and to publish a supplemental proposal.
In support of the supplemental proposal, the EPA sent an information request to owners of currently operating primary aluminum reduction plants in March of 2013. The EPA received associated responses in May through August 2013. As part of this data collection effort, we received emissions data for PM, HAP metals (including antimony, As, beryllium, cobalt, manganese, selenium, Ni, cadmium, chromium, lead, and Hg), PCB, and D/F from potlines, anode bake furnaces, and/or paste production plants from every primary aluminum reduction plant that was operational at that time, including nine prebake-type facilities and one Soderberg-type facility.
Based on evaluation of all the data, we proposed several revised and new MACT standards in the December 2014 proposal pursuant to CAA sections 112(d)(2) and (3), which are summarized in Table 7, below.
Commenters provided additional emissions data for POM from SWPB potlines and for PM from CWPB1 potlines and anode bake furnaces, and identified areas where we had misinterpreted data used for the proposed PM and POM standards.
Based on these comments and additional PM and POM emissions data, we re-evaluated the proposed PM and POM MACT standards and revised the following MACT limits:
• POM emission limit of 19 lb/ton aluminum for existing SWPB potlines changed to 17 lb/ton aluminum;
• PM emission limit of 7.2 lb/ton aluminum for existing CWPB1 potlines changed to 7.4 lb/ton aluminum;
• PM emission limit of 4.6 lb/ton aluminum for existing SWPB potlines changed to 4.9 lb/ton aluminum;
• PM emission limit of 4.6 lb/ton aluminum for new potlines changed to 4.9 lb/ton aluminum;
• PM emission limit of 0.068 lb/ton green anode for existing anode bake furnaces changed to 0.2 lb/ton green anode; and
• PM emission limit of 0.036 lb/ton green anode for new anode bake furnaces changed to 0.07 lb/ton green anode.
The EPA discussed at proposal whether to promulgate MACT standards at this time for HAP where much, most, or virtually all of the data showed levels below detection limits. See 79 FR 72936. We received comments claiming that, in addition to the standards listed above, the EPA must promulgate standards for these HAP: Hg, D/F, and PCB. Based on these comments, and considering further reply comments from industry addressing this issue (see email, dated July 1, 2015, from Mr. Curt Wells of The Aluminum Association, which is available in the docket for this rulemaking (Docket ID No. EPA-HQ-OAR-2011-0797)), we re-evaluated the data we had for PCB, D/F, and Hg to determine whether it would be appropriate to establish emissions limits for these HAP. Based on that evaluation, we determined that the emissions data for PCB from VSS2 Soderberg potlines are above detection limits and that numerical limits reflecting MACT can be set for these sources. Therefore, we are finalizing a MACT limit for PCB of 2.0 µg TEQ/ton for existing Soderberg VSS2 potlines and new Soderberg potlines. These standards were developed based on the 99-percent upper prediction limit (UPL) for PCB emissions from the available emissions data and represent the MACT floor level of control. We also considered beyond-the-floor options, but did not identify any feasible or cost-effective beyond-the-floor options.
Furthermore, we determined that the emissions data for Hg from anode bake furnaces are above detection limits and that MACT limits can be set for these sources. Therefore, we are finalizing a MACT limit for Hg of 1.7 μg/dscm for new and existing anode bake furnaces. These standards are equal to 3 times the representative detection limit (RDL) value for Hg. The RDL is the average method detection level (MDL) achieved in practice by laboratories whose data support the best performing 12 percent of a MACT category (or categories). We use an average value for the RDL because a decision for a new source floor may be based upon a test report where the laboratory chosen has better equipment and/or practices than other laboratories and, therefore, reported a lower MDL. Using that data to set the floor would result in requiring all new sources to choose that laboratory in order to demonstrate compliance with the new limit. We recognize the need to allow sources to conduct business with their local laboratories, or a laboratory of their preference; however, we limit the RDL to the best laboratory performers because we do not want to incentivize the use of the worst performing laboratories. The EPA policy is to set MACT standards for a pollutant at a level of 3 times the RDL level for that pollutant when the 99-percent UPL value for the available emissions data results in a value that is less than 3 times the RDL level for that pollutant, which is the case for Hg emissions from anode bake furnaces. See,
We use the multiplication factor of 3 to approximately reduce the imprecision of the analytical method until the imprecision in the field sampling reflects the relative method precision as estimated by the American Society of Mechanical Engineers (ASME) study
Please refer to the
Regarding the Hg and PCB emissions from the other process units (such as potlines and paste production plants), and D/F from all the process units, most (or all) of the emissions tests were below the detection limit. Therefore, we conclude it is not feasible to prescribe or enforce a numerical emission standard for these HAP emissions, within the meaning of CAA section 112(h)(1) and (2). Specifically, measured values for these HAP would be neither duplicable nor replicable and would not give reliable indication of what (if anything) the source was emitting. Under CAA section 112(h)(2), the EPA may adopt work practice standards when “the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.” As discussed more fully in section IV.C below, the EPA does not regard measurements which are unreliable, non-duplicable, and non-replicable to be practicable. Simply put, the CAA simply does not compel promulgation of numerical emission standards that are too unreliable to be meaningful. Therefore, as discussed in section IV.C of this preamble, we are promulgating work practice standards for these HAP under section 112(h) of the CAA for various process units.
Response: We agree with commenters that the EPA misinterpreted certain data in the supplemental proposal. For example, we misinterpreted the PM and POM emissions from a single exhaust stack of a control device with multiple exhaust stacks to be the total PM and POM emissions from that source and misinterpreted the primary POM emissions from a potline to be total POM emissions from that potline (see pages 5 through 8 of the public comments provided by The Aluminum Association, which are available in the docket for this rulemaking (Docket ID No. EPA-HQ-OAR-2011-0797). The final rule reflects appropriate data corrections, and the additional data provided have been incorporated in the final limits promulgated for POM and PM from prebake potlines and PM from anode bake furnaces. Further information regarding the development of the final emission limits can be found in the document titled,
All numerical MACT standards proposed and promulgated for the Primary Aluminum Production source category reflect the MACT floor and were developed based on the 99-percent UPL of the available emissions data for this source category,
In 2011, we proposed work practice standards for TF and POM emissions from potlines during startup periods under 112(h) of the CAA because we determined that it is economically and technically infeasible to measure emissions of these HAP during these startup periods. Subsequently, in 2014 we proposed to expand these standards to also apply to PM.
In 2014, we also realized that these work practices could also help minimize emissions during periods of normal operation. Therefore, as mentioned above, under the technology review pursuant to CAA section 112(d)(6), in 2014 we proposed that these work practice standards for potlines would also apply during normal operations to ensure improved capture and control of TF, POM, and
Regarding other emissions sources, in 2011 we also proposed work practices for anode bake furnaces during startup periods under CAA section 112(d)(6) that will ensure improved capture and control of HAP emissions from those sources during startup periods. Then, in the 2014 supplemental proposal, we proposed work practices for paste production plants during startup periods under CAA section 112(d)(6) that will ensure improved capture and control of HAP emissions from those sources during startup periods.
For anode bake furnaces and paste production plants, the proposed work practices included ensuring that the associated emission control system is operating within normal parametric limits prior to startup of the emission source and requiring that the anode bake furnace or paste production plants be shut down if the associated emission control system is off line during startup.
In the final rule, the work practices for potlines, anode bake furnaces, and paste production plants remain unchanged from the proposals. In the final rule, we added additional, more specific VE monitoring requirements, which are applicable during all periods of operation, for emission points that are not equipped with BLDS or PM CEMS, and thus, ensuring improved capture and control of emissions at all times. Furthermore, the work practice standards for anode bake furnaces address PCB emissions (under CAA section 112(h)) for these process units, and the work practice standards for potlines address Hg from all potlines, PCB emissions from prebake potlines, and D/F emissions from Soderberg potlines (under CAA section 112(h)) because in all these cases we determined that it is economically and technically infeasible to reliably measure emissions of these HAP from these process units.
The commenter stated that as the D.C. Circuit has held, the EPA has a “clear statutory obligation to set emissions standards for each listed HAP [i.e., hazardous air pollutant]” under CAA sections 112(d)(1)-(3). The commenter stated that these pollutants are some of the most potent and most harmful, even at extremely low levels of human exposure.
The commenter stated that it would be internally inconsistent not to regulate these HAP, because in this rulemaking, the EPA has recognized the need to set emission standards for unregulated pollutants. The commenter stated that the EPA states that it may, but is not required to set emission standards for these pollutants, citing the Portland Cement decision (665 F.3d at 189). The commenter stated that the Portland Cement decision did not hold that the EPA may avoid setting limits for CAA section 112-listed pollutants emitted by a source category. The commenter stated that the Portland Cement decision affirmed that the EPA may set revised emission standards, including updated MACT floors, whenever it determines this is necessary, including as a result of a CAA section 112(d)(6) review, or more often.
The commenter stated that the revised standards the EPA is proposing here must satisfy CAA sections 112(d)(2)-(3). The commenter stated that the EPA may not “cherry-pick” the HAP when initially setting and revising standards. The commenter stated that if the EPA missed HAP that it is legally required to regulate in prior standards, then it has an ongoing obligation to set such standards, and it would be both unlawful and arbitrary and capricious for the EPA not to set such standards as part of this review and revision rulemaking under CAA section 112(d).
The commenter stated that the EPA has recognized the need to assess health risks from these pollutants and has created a method to do so by assuming that the undetected emissions were equal to one-half the detection limit, which the EPA explains is “the established approach for dealing with non-detects in the EPA's RTR program when developing emissions estimates for input to the risk assessments.” The commenter stated that the EPA may not ignore these pollutants under CAA section 112(d) when it acknowledges and has found a way to address them under CAA section 112(f)—even though some of the data in the record are below the detection level.
The commenter stated that instead of ignoring the emissions data it has, the EPA must at least use the emission data that are above the detection level to set standards. Furthermore, the commenter stated that for the non-detect values, the EPA may not lawfully ignore these data. The commenter stated that the EPA must recognize that some sources have achieved levels of emissions below the detection level and use an appropriate number at or below the detection level as part of its floor analysis, to satisfy the floor and beyond-the-floor requirements of CAA sections 112(d)(2)-(3).
Given these determinations, the commenter's claims that the EPA is obligated to establish MACT standards for HAP at particular times, and that it must do so if it is making assumptions about emission levels as part of the CAA
Based on comments received during the 2014 supplemental proposal public comment period, we determined that it was appropriate to re-evaluate the data we had for PCB, D/F, and Hg. For D/F from potlines, anode bake furnaces, and paste production plants; Hg from potlines and paste production plants; and PCB from prebake potlines, anode bake furnaces, and paste production plants, we found that more than half of the test data were below the detection limit. We maintain our December 2014 proposed position that it is not appropriate to promulgate numerical MACT limits for these HAP from these process units. Instead, as explained below, we are promulgating work practice standards under CAA section 112(h), when appropriate.
Sections 112(h)(1) and (h)(2)(B) of the CAA indicate that the EPA may adopt a work practice standard rather than a numeric standard when “the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.” As explained above, the majority of the data collected for Hg, D/F, and PCB during the information request test program for these emissions points were below the detection limit. Under these circumstances, the EPA does not believe that it is technologically and economically practicable to reliably measure Hg, D/F, and PCB emissions from these particular sources. The “application of measurement methodologies” (described in CAA section 112(h)(2)(B)) means more than taking a measurement. It must also mean that a measurement has some reasonable relation to what the source is emitting,
In the cases of PCB from anode bake furnaces and prebake potlines, D/F from Soderberg potlines, and Hg from both Soderberg and prebake potlines, we determined that about 70 to 80 percent of the emissions data were below the detection limits. In previous cases (see, e.g., 76 FR 25046, 78 FR 22387, and docket item number EPA-HQ-OAR-2013-0291-0120) where test results were predominantly (
However, as noted above, all of the emissions data for D/F from prebake potlines, anode bake furnaces, and paste production plants were either below the detection limit or otherwise unreliable (
In the 2014 supplemental proposal, we proposed that the owner or operator of a primary aluminum reduction plant would need to install either a BLDS or a PM CEMS on the exhaust of each control device used to control emissions from a new or existing affected potline, anode bake furnace, or paste production plant.
In the final rule, the control device monitoring requirements for new potlines, new anode bake furnaces, and new paste production plants remain unchanged. However, for existing potlines, existing anode bake furnaces and existing paste production plants, the owner or operators have the option to conduct enhanced VE monitoring as an alternative to the installation of BLDS or PM CEMS. This enhanced VE monitoring would include twice daily monitoring of VE from the exhaust of each control device, with those two VE monitoring events at least 4 hours apart. If VE are observed, then the owner or operator would need to take corrective action within 1 hour, including isolating, shutting down, and conducting internal inspections of any baghouse compartment associated with VE indicating abnormal operations and fixing the compartment before it is put back in service.
The commenters stated that there are significant and substantial issues with this requirement that merit rethinking.
The commenters stated that the EPA concluded “. . . that all existing prebake potlines will be able to meet these MACT floor limits for PM without the need to install additional controls because the performance of all sources in the category is similar, all of the potlines within each of the subcategories utilize very similar emission control technology, the average emissions from each source are well below the MACT floor limit and emissions data from every facility that performed emissions testing were included in the dataset used to develop the MACT floor.” The commenters stated that it is clear that the daily VE inspection, corrective action, and baghouse maintenance practices that facilities have already implemented in response to the enhanced monitoring requirements of current 40 CFR part 63, subpart LL are resulting in a level of baghouse performance that ensures ongoing continuous compliance with the proposed PM emission limits.
The commenters stated that the EPA notes in the proposed rule that potline secondary PM emissions comprise by far the largest share of primary aluminum reduction plant PM emissions, and these would not be addressed with BLDS. The commenters cited test data to highlight this issue and stated that the EPA's own analysis of control options on secondary PM emissions from potlines found them to not be economically feasible yet the resulting risks are still within acceptable risk limits.
The commenters stated that the most common potline primary PM control system, the A-398 scrubber system, has multiple stacks associated with each control device, and there are multiple control devices for each potline. The commenters stated that a survey of U.S. primary aluminum facilities indicated that at present there are 388 potline stack emission points across seven operating plants that would need to install BLDS in response to this proposed new requirement. The commenters stated that there are 50 to 100 individual stacks per potline at some of their facilities and provided a table of the affected sources. The commenters stated that the costs, complexity, and time required for installing BLDS or PM CEMS at a facility with over 100 potline control device stacks are formidable.
The commenters provided a cost analysis of installation and operating cost for BLDS and estimated that industry-wide, this would result in cumulative $5.24 million of initial costs and $1.2 million of annual costs to comply with this requirement for potlines, not including the additional costs relative to compliance for anode bake furnaces and paste production plants. The commenters stated that none of these very significant costs are included in either the December 2014 supplemental proposal preamble discussion of the costs/benefit calculation or the
The commenters stated that the proposed requirements of 40 CFR 63.848(o)(3)(i) require initiation of procedures to determine the cause of a BLDS alarm with 30 minutes. The commenters stated that the subpart LL requirements of 40 CFR 63.848(h) all require the initiation of corrective action within 1 hour. The commenters stated that the EPA should set the time frame for initiating a response to BLD events at 1 hour so as to be consistent with the other corrective action requirements.
The commenters stated that the proposed timelines for compliance do not consider the time required to design, procure, and install and operate a BLDS or PM CEMS on each baghouse stack. The commenters stated that since the proposed requirement to install BLDS or PM CEMS on potline control devices is unnecessary and cost-prohibitive for existing potlines, they strongly recommend that BLDS and PM CEMS provisions be deleted from the final rule requirements in their entirety.
The commenters stated that the EPA's proposed requirements of 40 CFR 63.848(o)(1) pertain to baghouse preventative maintenance requirements. The commenters stated that facilities already have to comply with similar requirements for proper operation and maintenance of emission control equipment under state or federal requirements as included in their title V air operating permits. The commenters stated that the EPA should tailor the proposed requirements to specifically address the development and implementation of procedures pertaining to the BLDS.
The commenters recommended (in the event that BLDS is in the final rule) revisions to 40 CFR 63.848(o)(1) and (3)(i).
The final rule will require annual PM testing of the primary control device and continuous or frequent monitoring
We believe that future potline air pollution control systems will be constructed/installed with a newer technology (dry injection type), rather than the currently installed (older) technology A-398 type. The newer technologies have significantly fewer stack emission points than the many stacks of the A-398 systems. Consequently, the number of BLDS needed would be substantially less with those systems than for the A-398 systems. For this reason, we are maintaining the requirement to install BLDS or PM CEMS on new sources.
The proposed compliance dates for existing sources in the December 2014 supplemental proposal were as follows:
• Date of publication of final rule for the malfunction provisions and the electronic reporting provisions;
• One year after date of publication of final rule for potlines subject to the COS and PM emission limits; prebake potlines subject to POM emission limits; the potline, paste production plant, and anode bake furnace work practices; anode bake furnaces and paste production plants subject to PM emission limits; and pitch storage tanks subject to POM standards; and
• Two years after date of publication of final rule for Soderberg potlines subject to the POM, Ni, and As emission limits.
The EPA has revised the compliance dates for existing sources in the Primary Aluminum Production source category from those proposed in 2014 as follows:
• The compliance date was changed from 1 year after date of publication of final rule to 2 years after date of publication of final rule for prebake potlines subject to POM and PM emission limits and for pitch storage tanks subject to POM equipment standards;
• The compliance date of 1 year after date of publication of final rule was added for Soderberg potlines subject to PCB emission limits; and
• The compliance date of 2 years after date of publication of final rule was added for anode bake furnaces subject to Hg emission limits.
For more discussion of the promulgated compliance dates, refer to the document,
The commenters stated that at least one facility will be required to install a Method 14 manifold or Method 14A cassette system in a currently operating potline for collecting roof monitor samples to determine emissions of PM and POM. The commenters stated that a number of facilities currently do not have an emission control system on their existing pitch storage tanks. The commenters stated that these facilities will be required to install and test (or certify) an emission control system to meet the 95-percent POM reduction requirement.
The commenters stated that the effort involved in the determination of the exact changes that will be needed; the selection, installation, and startup of new controls and their associated equipment; and consideration of the business planning cycle for making significant new capital and operating expense monetary outlays all indicate that more than 1 year is needed to have the emissions control and monitoring devices installed and properly operational.
The commenters requested an increased amount of time for compliance dates for malfunction and ERT provisions, work practices, and emission limits.
After further evaluation, the EPA determined that the appropriate compliance date for the 95-percent POM reduction requirement for pitch storage tanks is 2 years from the publication date of the final rule. The EPA agrees with the commenters that this additional time may be needed to install, test, and certify emission control systems.
We are finalizing the proposed compliance dates for existing sources for the malfunction provisions and the electronic reporting provisions.
We are finalizing a compliance date of 1 year after date of publication of the final rule for potlines subject to the work practice standards and the COS emission limits, and for anode bake furnaces and paste production plants
We are finalizing a compliance date of 2 years after date of publication of the final rule for prebake potlines subject to POM emission limits; for Soderberg potlines subject to revised POM emission limits and emission limits for Ni, As, and PCB; for potlines subject to PM emissions limits; and for existing pitch storage tank POM equipment standards.
We are finalizing a compliance date of 2 years after date of publication of final rule for anode bake furnaces subject to Hg emission limits.
The EPA extended the compliance dates for prebake potlines subject to POM and PM emissions limits from 1 to 2 years after date of publication of the final rule to give owners or operators an appropriate amount of time to install the manifolds or cassette systems necessary to sample the potline fugitive emissions. Monitoring of potline fugitive emissions will be required in order to demonstrate compliance with the promulgated POM and PM emissions limits unless the owner or operator can demonstrate potline similarity for purposes of these HAP pursuant to 40 CFR 63.848(d) of subpart LL, and the EPA finds that the 2 year compliance time allows adequate time for owners or operators to apply for similarity determinations.
Similarly, the compliance date for existing pitch storage tanks subject to POM equipment standards was extended by EPA from 1 to 2 years after date of publication of the final rule to give owners or operators an appropriate amount of time to install, test, and certify the emission control systems.
The compliance date of 1 year after date of publication of the final rule was added for Soderberg potlines subject to a PCB emission limit or D/F work practice standards. We believe that 1 year will be sufficient to demonstrate compliance with these requirements for existing Soderberg potlines, in the unlikely event that the existing Soderberg potlines are restarted, since the available data suggests that no modifications or additional controls are necessary to meet that limit.
The EPA added a compliance date of 2 years after date of publication of the final rule for anode bake furnaces subject to the Hg emission limit. We believe 2 years is justified in this case to provide industry sufficient time to schedule and perform testing and take appropriate subsequent steps to ensure compliance.
The affected sources are new and existing potlines, new and existing pitch storage tanks, new and existing anode bake furnaces (except for one that is located at a facility that only produces anodes for use off-site and is subject to the state MACT determination established by the regulatory authority), and new and existing paste production plants.
We estimate that the promulgated lower VSS2 potline POM emissions limit would reduce POM emissions from the one Soderberg facility by approximately 53 tpy if the facility were to resume operation. Furthermore, we estimate that these standards would also result in about 1 tpy reduction of HAP metals and 40 tpy reduction of PM with diameter of 2.5 microns and less (PM
Finally, we estimate that the addition of controls to the eight existing uncontrolled pitch storage tanks located at prebake facilities would reduce POM emissions by 1.55 tpy.
Under the final amendments, facilities are subject to additional testing, monitoring, and equipment costs. Owners and operators are required to conduct semiannual tests for PM and POM emissions from potline roof vents, annual tests for PM and POM from potline primary emissions, annual tests of PM and Hg from anode bake furnace exhausts, and annual tests of PM from paste production plant exhausts. These testing costs are offset by reduced frequency of secondary potline TF emissions testing (from monthly to semiannual). In addition, all emission stacks not equipped with either BLDS or PM CEMS are subject to increased frequency (from daily to twice daily) VE testing. Additional monitoring to demonstrate continuous compliance with PM standards for anode bake furnaces and paste production plants is required by the rule. Eight owners or operators of facilities operating uncontrolled pitch storage tanks are required to install and operate controls on these tanks, and the owner or operator of one facility with two potlines (one idle and one in operation) not currently equipped with either a manifold or a cassette system may be required to install this equipment. These amendments result in a net estimated reduction in testing costs of $1.05 million, a net estimated increase in monitoring costs of $625,000, and a net increase in estimated annualized capital equipment costs of $260,000. Nationwide annual costs to industry are expected to decrease by an estimated $165,000 per year under these amendments.
The memorandum,
We performed an economic impact analysis for the modifications in this action. That analysis estimates a net savings for each primary aluminum reduction facility based on the belief that the Columbia Falls Soderberg facility will not reopen. In March of 2015, the Columbia Falls Aluminum Company announced the permanent closure of their Soderberg facility. For more information, please refer to the
If the Columbia Falls Soderberg facility were to resume operations, there would be an estimated reduction in its annual HAP emissions (
Further, we estimate that the addition of controls to the eight existing uncontrolled pitch storage tanks at prebake facilities would reduce POM emissions by 1.55 tpy.
This rulemaking is not an “economically significant regulatory action” under Executive Order 12866 because it is not likely to have an annual effect on the economy of $100
Directly emitted particles are precursors to secondary formation of PM
The rulemaking may prevent increases in emissions of other HAP, including HAP metals (As, cadmium, chromium (both total and hexavalent), lead, manganese, Hg, and Ni) and PAH. Some of these HAP are carcinogenic (
To examine the potential for any EJ issues that might be associated with the Primary Aluminum Production source category, we performed a demographic analysis, which is an assessment of risks to individual demographic groups, of the population close to the facilities. In this analysis, we evaluated the distribution of HAP-related cancer risks and non-cancer hazards from this source category across different social, demographic, and economic groups within the populations living near facilities identified as having the highest risks. The results of the demographic analysis are summarized in Table 6 in section IV.A.3 of this preamble and indicate that there are no significant disproportionate risks to any particular minority, low income, or indigenous population (see the discussion in section IV.A.3 of this preamble). The methodology and the results of the demographic analyses are included in a technical report,
This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because the Agency does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children. The report,
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
The information collection activities in this rule have been submitted for approval to the OMB under the PRA. The ICR document prepared by the EPA has been assigned EPA ICR number 2447.01. You can find a copy of the ICR in the docket for this rule (Docket ID No. EPA-HQ-OAR-2011-0797) and it is briefly summarized below. The information collection requirements are not enforceable until OMB approves them.
We are finalizing changes to the paperwork requirements for the Primary Aluminum Production source category facilities subject to 40 CFR part 63, subpart LL. In this final rule, we are promulgating less frequent testing of TF emissions from potlines. In addition, we are removing the burden associated with the affirmative defense provisions included in the December 2011 proposal.
We estimate 11 regulated entities are currently subject to CFR part 63, subpart LL and will be subject to this action. The annual monitoring, reporting, and recordkeeping burden for this collection (averaged over the first 3 years after the effective date of the standards) as a result of the final amendments to 40 CFR part 63, subpart LL (NESHAP for Primary Aluminum Reduction Plants) is estimated to be −$931,000 per year.
This includes 361 labor hours per year at a total labor cost of $27,400 per year, and total non-labor capital, and operation and maintenance costs of −$958,000 per year. This estimate includes performance tests, notifications, reporting, and recordkeeping associated with the new requirements for primary aluminum reduction plant operations. The total burden for the federal government (averaged over the first 3 years after the effective date of the standard) is estimated to be 181 hours per year at a total labor cost of $8,250 per year. Burden is defined at 5 CFR 1320.3(b).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. There are no small entities in this regulated industry. For this source category, which has the NAICS code 331312, the Small Business Administration (SBA) small business size standard is 1,000 employees according to the SBA small business standards definitions.
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local, or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. This action does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in the
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This final action involves technical standards. The rule requires the use of either ASTM D4239-14e1, “Standard Test Method for Sulfur in the Analysis Sample of Coal and Coke Using High-Temperature Tube Furnace Combustion,” approved March 1, 2014, or ASTM D6376-10, “Test Method for Determination of Trace Metals in Petroleum Coke by Wavelength Dispersive X-ray Fluorescence Spectroscopy,” approved July 1, 2010. ASTM D4239-14e1, approved March 1, 2014, covers the determination of sulfur in samples of coal or coke by high temperature tube furnace combustion. ASTM D6376-10, approved July 1, 2010, covers the x-ray fluorescence spectrometric determination of total sulfur and trace metals in samples of raw or calcined petroleum coke. These are voluntary consensus methods. These methods can be obtained from the American Society for Testing and Materials, 100 Bar Harbor Drive, West Conshohocken, Pennsylvania 19428 (telephone number (610) 832-9500). These methods were promulgated in the final rule because they are commonly used by primary aluminum reduction plants to demonstrate compliance with sulfur dioxide emission limitations imposed in their current title V permits.
This final rule also requires use of Method 428, “Determination of Polychlorinated Dibenzo-P-Dioxin (PCDD), Polychlorinated Dibenzofuran (PCDF), and Polychlorinated Biphenyle Emissions (PCB) from Stationary Sources,” amended September 12, 1990. Method 428, amended September 12, 1990, covers the determination of PCDD, PCDF, or PCB from stationary sources. The standard is available from the California Air Resources Board, 1001 “I” Street, Sacramento, CA 95812 (telephone number (800) 242-4450) or at their Web site,
The EPA has decided to use EPA Method 29 for the determination of the concentration of Hg. While the EPA identified ASTM D6784-02 (2008), “Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method),” ASTM International, West Conshohocken, PA, 2008, as being potentially applicable, the Agency decided not to use it. The use of this voluntary consensus standard would be more expensive and is inconsistent with the final Hg standard that was determined using EPA Method 29 data.
Under 40 CFR 63.7(f) and 40 CFR 63.8(f) of Subpart A of the General Provisions, a source may apply to the EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures in this final rule.
The EPA believes the human health or environmental risk addressed by this
These final standards will improve public health and welfare, now and in the future, by reducing HAP emissions contributing to environmental and human health impacts. These reductions in HAP associated with the rule will benefit all populations.
To examine the potential for any EJ issues that might be associated with this source category, we evaluated the distributions of HAP-related cancer and non-cancer risks across different social, demographic, and economic groups within the populations living near the facilities where this source category is located. The methods used to conduct demographic analyses for this final rule, and the results of these analyses, are described in the document,
In the demographics analysis, we focused on populations within 50 kilometers of the facilities in this source category with emissions sources subject to 40 CFR part 63, subpart LL. More specifically, for these populations we evaluated exposures to HAP that could result in cancer risks of 1-in-one million or greater. We compared the percentages of particular demographic groups within the focused populations to the total percentages of those demographic groups nationwide.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Administrative practice and procedures, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, Title 40, chapter I, of the Code of Federal Regulations (CFR) is amended as follows:
42 U.S.C. 7401,
The additions read as follows:
(b) * * *
(1) Industrial Ventilation: A Manual of Recommended Practice, 22nd Edition, 1995, Chapter 3, “Local Exhaust Hoods” and Chapter 5, “Exhaust System Design Procedure.” IBR approved for §§ 63.843(b) and 63.844(b).
(h) * * *
(33) ASTM D2986-95A, “Standard Practice for Evaluation of Air Assay Media by the Monodisperse DOP (Dioctyl Phthalate) Smoke Test,” approved September 10, 1995, IBR approved for section 7.1.1 of Method 315 in appendix A to this part.
(54) ASTM D4239-14e1, “Standard Test Method for Sulfur in the Analysis Sample of Coal and Coke Using High-Temperature Tube Furnace Combustion,” approved March 1, 2014, IBR approved for § 63.849(f).
(79) ASTM D6376-10, “Standard Test Method for Determination of Trace Metals in Petroleum Coke by Wavelength Dispersive X-Ray Fluorescence Spectroscopy,” Approved July 1, 2010, IBR approved for § 63.849(f).
(k) * * *
(1) Method 428, “Determination Of Polychlorinated Dibenzo-P-Dioxin (PCDD), Polychlorinated Dibenzofuran (PCDF), and Polychlorinated Biphenyle Emissions from Stationary Sources,” amended September 12, 1990, IBR approved for § 63.849(a)(13) and (14).
(a) Except as provided in paragraph (b) of this section, the requirements of this subpart apply to the owner or operator of each new or existing pitch storage tank, potline, paste production plant and anode bake furnace associated with primary aluminum production and located at a major source as defined in § 63.2.
The revisions and additions read as follows:
(a)
(1) * * *
(iv) 0.8 kg/Mg (1.6 lb/ton) of aluminum produced for each SWPB potline; and
(v) [Reserved]
(vi) 1.35 kg/Mg (2.7 lb/ton) of aluminum produced for each VSS2 potline.
(2) * * *
(i) [Reserved]
(ii) [Reserved]
(iii) 0.85 kg/Mg (1.9 lb/ton) of aluminum produced for each VSS2 potline;
(iv) 0.55 kg/Mg (1.1 lb/ton) of aluminum produced for each CWPB1 prebake potline;
(v) 6.0 kg/Mg (12 lb/ton) of aluminum produced for each CWPB2 prebake potline;
(vi) 1.4 kg/Mg (2.7 lb/ton) of aluminum produced for each CWPB3 prebake potline; and
(vii) 8.5 kg/Mg (17 lb/ton) of aluminum produced for each SWPB prebake potline.
(3)
(i) 3.7 kg/Mg (7.4 lb/ton) of aluminum produced for each CWPB1 potline;
(ii) 5.5 kg/Mg (11 lb/ton) of aluminum produced for each CWPB2 potline;
(iii) 10 kg/Mg (20 lb/ton) of aluminum produced for each CWPB3 potline;
(iv) 2.45 kg/Mg (4.9 lb/ton) of aluminum produced for each SWPB potline; and
(v) 13 kg/Mg (26 lb/ton) of aluminum produced for each VSS2 potline.
(4)
(5)
(6)
(7) * * *
(b)
(1) The emission capture system shall be installed and operated to meet the generally accepted engineering standards for minimum exhaust rates as published by the American Conference of Governmental Industrial Hygienists in Chapters 3 and 5 of “Industrial Ventilation: A Handbook of Recommended Practice” (incorporated by reference; see § 63.14); and
(4)
(c)
(1)
(2)
(3)
(4)
(d)
(e)
(f) At all times, the owner or operator must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. Determination of whether such operation and maintenance procedures are being used will be based on information available to the Administrator which may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of
The revisions and additions read as follows:
(a)
(2)
(3)
(4)
(5)
(6)
(b)
(2) Emissions of PM shall not exceed 0.0028 kg/Mg (0.0056 lb/ton) of green anode.
(c)
(1)
(2)
(3)
(4)
(e)
(f) At all times, the owner or operator must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. Determination of whether such operation and maintenance procedures are being used will be based on information available to the Administrator which may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records and inspection of the source.
The revisions read as follows:
(b)
(1) Semiannual average emissions of TF shall not exceed the applicable emission limit in Table 1 of this subpart. The emission rate shall be calculated based on the total primary and secondary emissions from all potlines comprising the averaging group over the period divided by the quantity of aluminum produced during the period, from all potlines comprising the averaging group. To determine compliance with the applicable emission limit in Table 1 of this subpart for TF emissions, the owner or operator shall determine the average emissions (in lb/ton) from each potline from at least three runs per potline semiannually for TF secondary emissions and at least three runs per potline primary control system each year using the procedures and methods in §§ 63.847 and 63.849. The owner or operator shall combine the results of secondary TF average emissions with the TF results for the primary control system and divide total emissions by total aluminum production.
(2) Semiannual average emissions of POM shall not exceed the applicable emission limit in Table 2 of this subpart. The emission rate shall be calculated based on the total primary and secondary emissions from all potlines comprising the averaging group over the period divided by the quantity of aluminum produced during the period, from all potlines comprising the averaging group. To determine compliance with the applicable emission limit in Table 2 of this subpart for POM emissions, the owner or operator shall determine the average emissions (in lb/ton) from each potline from at least three runs per potline semiannually for POM secondary emissions and at least three runs per potline primary control system each year for POM primary emissions using the procedures and methods in §§ 63.847 and 63.849. The owner or operator shall combine the results of secondary POM average emissions with the POM results for the primary control system and divide total emissions by total aluminum production.
(3) Semiannual average emissions of PM shall not exceed the applicable emission limit in Table 3 of this subpart. The emission rate shall be calculated based on the total primary and secondary emissions from all potlines comprising the potline group over the period divided by the quantity of aluminum produced during the period, from all potlines comprising the averaging group. To determine compliance with the applicable emission limit in Table 3 of this subpart for PM emissions, the owner or operator shall determine the average emissions (in lb/ton) from each potline from at least three runs per potline semiannually for PM secondary emissions and at least three runs per potline primary control system each year for PM primary emissions using the procedures and methods in §§ 63.847 and 63.849. The owner or operator shall combine the results of secondary PM average emissions with the PM results for the primary control system and divide total emissions by total aluminum production.
(c)
(1) Annual emissions of TF, POM and/or PM from a given number of anode bake furnaces making up each averaging group shall not exceed the applicable emission limit in Table 4 of this subpart in any one year; and
(2) To determine compliance with the applicable emission limit in Table 4 of this subpart for anode bake furnaces, the owner or operator shall determine TF, POM and/or PM emissions from the control device for each anode bake furnace at least once each year using the procedures and methods in §§ 63.847 and 63.849.
(d) * * *
(2) * * *
(ii) The assigned TF, POM and/or PM emission limit for each averaging group of potlines and/or anode bake furnaces;
(iii) The specific control technologies or pollution prevention measures to be used for each emission source in the averaging group and the date of its installation or application. If the pollution prevention measures reduce or eliminate emissions from multiple sources, the owner or operator must identify each source;
(iv) The test plan for the measurement of TF, POM and/or PM emissions in accordance with the requirements in § 63.847(b);
(4) * * *
(i) Any averaging between emissions of differing pollutants or between differing sources. Emission averaging shall not be allowed between TF, POM and/or PM, and emission averaging shall not be allowed between potlines and anode bake furnaces;
(ii) The inclusion of any emission source other than an existing potline or existing anode bake furnace or the inclusion of any potline or anode bake furnace not subject to the same operating permit; or
(iii) The inclusion of any potline or anode bake furnace while it is shut down, in the emission calculations.
The revisions and additions read as follows:
(a)
(1) Except as noted in paragraph (a)(2) of this section, the compliance date for an owner or operator of an existing plant or source subject to the provisions of this subpart is October 7, 1999.
(2) The compliance dates for existing plants and sources are:
(i) October 15, 2015 for the malfunction provisions of § 63.850(d)(2) and (e)(4)(xvi) and (xvii) and the electronic reporting provisions of § 63.850(b), (c) and (f) which became effective October 15, 2015.
(ii) October 17, 2016 for potline work practice standards in § 63.854 and COS emission limit provisions of § 63.843(e); for anode bake furnace startup practices in § 63.847(l) and PM emission limits in § 63.843(c)(3); for Soderberg potline PM and PCB emission limits in § 63.843(a)(3)(v) and (a)(6); and for paste production plant startup practices in § 63.847(m) and PM emission limits in § 63.843(b)(4) which became effective October 15, 2015.
(iii) October 16, 2017 for prebake potline POM emission limits in § 63.843(a)(2)(iv) through (vii); for Soderberg potline POM, As and Ni emission limits in §§ 63.843(a)(2)(iii), (a)(4) and (5); for prebake potline PM emission limits in § 63.843(a)(3); for anode bake furnace Hg emission limits in § 63.843(c)(4); and for the pitch storage tank POM limit provisions of § 63.843(d) which became effective October 15, 2015.
(3) [Reserved]
(5) Except as provided in paragraphs (a)(6) and (7) of this section, a new affected source is one for which construction or reconstruction commenced after September 26, 1996.
(6) For the purposes of compliance with the emission standards for PM, a new affected potline, anode bake furnace or paste production plant is one for which construction or reconstruction commenced after December 8, 2014.
(7) For the purposes of compliance with the emission standards for POM and COS, a new affected prebake potline is one for which construction or reconstruction commenced after December 8, 2014.
(8) For the purposes of compliance with the emission standards for As, Ni and POM, a new affected Soderberg potline is one for which construction or reconstruction commenced after December 8, 2014.
(9) For the purposes of compliance with the emission standards for Hg, a new affected anode bake furnace is one for which construction or reconstruction commenced after December 8, 2014.
(b) * * *
(6) [Reserved]
(c) Following approval of the site-specific test plan, the owner or operator must conduct a performance test to demonstrate initial compliance according to the procedures in paragraph (d) of this section. If a performance test has been conducted on the primary control system for potlines, the anode bake furnace, the paste production plant, or (if applicable) the pitch storage tank control device within the 12 months prior to the compliance date, the results of that performance test may be used to demonstrate initial compliance. The owner or operator must conduct the performance test:
(1) During the first month following the compliance date for an existing potline (or potroom group), anode bake furnace, paste production plant or pitch storage tank.
(2) By the date determined according to the requirements in paragraph (c)(2)(i), (ii), (iii), or (iv) of this section for a new or reconstructed potline, anode bake furnace, or pitch storage tank (for which the owner or operator
(iv) By the 30th day following startup of a paste production plant. The 30-day period starts when the paste production plant produces green anodes.
(3) By the date determined according to the requirements in paragraph (c)(3)(i), (ii), (iii) or (iv) of this section for an existing potline, anode bake furnace, paste production plant, or pitch storage tank that was shut down at the time compliance would have otherwise been required and is subsequently restarted:
(iii) By the 30th day following startup of a paste production plant. The 30-day period starts when the paste production plant produces green anodes.
(iv) By the 30th day following startup for a pitch storage tank. The 30-day period starts when the tank is first used to store pitch.
(d)
(1)
(2) [Reserved]
(4)
(5)
(ii) Compliance is demonstrated when the emissions of nickel are equal to or less than the applicable emission limit in § 63.843(a)(4) or § 63.844(a)(4).
(6)
(ii) Compliance is demonstrated when the emissions of arsenic are equal to or less than the applicable emission limit in § 63.843(a)(5) or § 63.844(a)(5).
(7)
(ii) Compliance is demonstrated when the emissions of PCB are equal to or less than the applicable emission limit in § 63.843(a)(6) or § 63.844(a)(6).
(e) The owner or operator shall determine compliance with the applicable TF, POM, PM, nickel, arsenic or PCB emission limits using the following equations and procedures:
(1) Compute the emission rate (E
(2) [Reserved]
(3) Compute the emission rate (E
(4) Compliance with the anode bake furnace Hg emission standard is demonstrated if the Hg concentration of the exhaust from the anode bake furnace control device is equal to or less than the applicable concentration standard in § 63.843(c)(4) or § 63.844(c)(4).
(8) Compute the emission rate (E
(f)
(2) For each paste production plant, the owner or operator shall measure and record the emission rate of PM exiting the exhaust stacks(s) of the primary emission control system. Using the equation in paragraph (e)(8) of this section, the owner or operator shall compute and record the average of at least three runs each year to determine compliance with the applicable emission limits for PM. Compliance with the PM standards for existing and new paste production plants is demonstrated when the PM emission rates are less than or equal to the applicable PM emission limits in §§ 63.843(b)(4) and 63.844(b)(2).
(g)
(2) * * *
(ii) If an enclosed combustion device with a minimum residence time of 0.5 seconds and a minimum temperature of 760 degrees C (1,400 degrees F) is used to meet the emission reduction requirement specified in § 63.843(d) and § 63.844(d), documentation that those conditions exist is sufficient to meet the requirements of § 63.843(d) and § 63.844(d);
(iv) If the pitch storage tank is vented to the emission control system installed for control of emissions from the paste production plant pursuant to § 63.843(b) or § 63.844(b)(1), documentation of compliance with the requirements of § 63.843(b) is sufficient to meet the requirements of § 63.843(d) or § 63.844(d);
(i) [Reserved]
(j)
Compliance is demonstrated if the calculated value of E
(k)
(l)
(1) A requirement to develop an anode bake furnace startup schedule.
(2) Records of time, date, duration of anode bake furnace startup and any nonroutine actions taken during startup of the furnaces.
(3) A requirement that the associated emission control system be operating within normal parametric limits prior to startup of the anode bake furnace.
(4) A requirement to take immediate actions to stop the startup process as soon as practicable and continue to comply with § 63.843(f) or § 63.844(f) if the associated emission control system is off line at any time during startup. The anode bake furnace restart may resume once the associated emission control system is back on line and operating within normal parametric limits.
(m)
(1) Records of time, date, duration of paste production plant startup and any nonroutine actions taken during startup of the paste production plants.
(2) A requirement that the associated emission control system be operating within normal parametric limits prior to startup of the paste production plant.
(3) A requirement to take immediate actions to stop the startup process as soon as practicable and continue to comply with § 63.843(f) or § 63.844(f) if the associated emission control system is off line at any time during startup. The paste production plant restart may resume once the associated emission control system is back on line and operating within normal parametric limits.
The revisions and additions read as follows:
(a)
(b)
(c)
(d)
(1) * * *
(ii) For TF, POM and PM emissions, must meet or exceed Method 14 criteria.
(7) If the alternative method is approved by the applicable regulatory authority, the owner or operator must perform semiannual emission monitoring using the approved alternative monitoring procedure to demonstrate compliance with the alternative emission limit for each similar potline.
(e) [Reserved]
(f) * * *
(6) For emission sources control device exhaust streams for which the owner or operator chooses to demonstrate continuous compliance through bag leak detection systems you must install and operate a bag leak detection system according to the requirements in paragraph (o) of this section, and you must set your operating limit such that the sum of the durations of bag leak detection system alarms does not exceed 5 percent of the process operating time during a 6-month period.
(7) For emission sources control device exhaust streams for which the owner or operator chooses to demonstrate continuous compliance through a PM CEMS, you must install and operate a PM CEMS according to the requirements in paragraph (p) of this section. You must determine continuous compliance averaged on a rolling 30 operating day basis, updated at the end of each new operating day. All valid hours of data from 30 successive operating days shall be included in the arithmetic average. Compliance is demonstrated when the 30 operating day PM emissions are equal to or less than the applicable emission limits in § 63.843, § 63.844, or § 63.846.
(g) The owner or operator of a new or reconstructed affected source that is subject to a PM limit shall comply with the requirements of either paragraph (f)(6) or (7) of this section. The owner or operator of an existing affected source that is equipped with a control device and is subject to a PM limit shall:
(1) Install and operate a bag leak detection system in accordance with paragraph (f)(6) of this section; or
(2) Install and operate a PM CEMS in accordance with paragraph (f)(7) of this section; or
(3) Visually inspect the exhaust stack(s) of each fabric filter using Method 22 on a twice daily basis (at least 4 hours apart) for evidence of any visible emissions indicating abnormal operations and, must initiate corrective actions within 1 hour of a visible emissions inspection that indicates abnormal operation. Corrective actions shall include, at a minimum, isolating, shutting down and conducting an internal inspection of the baghouse compartment that is the source of the visible emissions that indicate abnormal operations.
(n)
(o)
(1) You must develop and implement written procedures for control device maintenance that include, at a minimum, a preventative maintenance schedule that is consistent with the control device manufacturer's instructions for routine and long-term maintenance.
(2) Each bag leak detection system must meet the specifications and requirements in paragraphs (o)(2)(i) through (viii) of this section.
(i) The bag leak detection system must be certified by the manufacturer to be capable of detecting PM emissions at concentrations of 1.0 milligram per dry standard cubic meter (0.00044 grains per actual cubic foot) or less.
(ii) The bag leak detection system sensor must provide output of relative PM loadings.
(iii) The bag leak detection system must be equipped with an alarm system that will alarm when an increase in relative particulate loadings is detected over a preset level.
(iv) You must install, calibrate, operate and maintain the bag leak detection system according to the manufacturer's written specifications and recommendations.
(v) The initial adjustment of the system must, at a minimum, consist of establishing the baseline output by adjusting the sensitivity (range) and the averaging period of the device and establishing the alarm set points and the alarm delay time.
(vi) Following initial adjustment, you must not adjust the sensitivity or range, averaging period, alarm set points, or alarm delay time, except in accordance with the procedures developed under paragraph (o)(1) of this section. You cannot increase the sensitivity by more than 100 percent or decrease the sensitivity by more than 50 percent over a 365-day period unless such adjustment follows a complete PM control device inspection that demonstrates that the PM control device is in good operating condition.
(vii) You must install the bag leak detector downstream of the PM control device.
(viii) Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.
(3) You must include in the written procedures required by paragraph (o)(1) of this section a corrective action plan that specifies the procedures to be followed in the case of a bag leak detection system alarm. The corrective action plan must include, at a minimum, the procedures that you will use to determine and record the time and cause of the alarm as well as the corrective actions taken to minimize emissions as specified in paragraphs (o)(3)(i) and (ii) of this section.
(i) The procedures used to determine the cause of the alarm must be initiated within 1 hour of the alarm.
(ii) The cause of the alarm must be alleviated by taking the necessary corrective action(s) that may include, but not be limited to, those listed in paragraphs (o)(3)(ii)(A) through (F) of this section.
(A) Inspecting the PM control device for air leaks, torn or broken filter elements, or any other malfunction that may cause an increase in emissions.
(B) Sealing off defective bags or filter media.
(C) Replacing defective bags or filter media, or otherwise repairing the control device.
(D) Sealing off a defective baghouse compartment.
(E) Cleaning the bag leak detection system probe, or otherwise repairing the bag leak detection system.
(F) Shutting down the process producing the particulate emissions.
(p)
(1) You must conduct a performance evaluation of the PM CEMS according to the applicable requirements of § 60.13, and Performance Specification 11 at 40 CFR part 60, Appendix B of this chapter.
(2) During each PM correlation testing run of the CEMS required by Performance Specification 11 at 40 CFR part 60, Appendix B of this chapter, collect data concurrently by both the CEMS and by conducting performance tests using Method 5, 5D or 5I at 40 CFR part 60, Appendix A-3.
(3) Operate and maintain the CEMS in accordance with Procedure 2 at 40 CFR part 60, Appendix F of this chapter. Relative Response Audits must be performed annually and Response Correlation Audits must be performed every three years.
The revisions and additions read as follows:
(a) The owner or operator shall use the following reference methods to determine compliance with the applicable emission limits for TF, POM, PM, Ni, As, Hg, PCB and conduct visible emissions observations:
(6) Method 315 in appendix A to this part or an approved alternative method for the concentration of POM where stack or duct emissions are sampled;
(7) Method 315 in appendix A to this part and Method 14 or 14A in appendix A to part 60 of this chapter or an approved alternative method for the concentration of POM where emissions are sampled from roof monitors not employing wet roof scrubbers. Method 315 need not be set up as required in the method. Instead, when using Method 14A, replace the Method 14A monitor cassette filter with the filter specified by Method 315. Recover and analyze the filter according to Method 315. When using Method 14, test at ambient conditions, do not heat the filter and probe, and do not analyze the back half of the sampling train;
(8) Method 5 in appendix A to part 60 of this chapter or an approved alternative method for the concentration of PM where stack or duct emissions are sampled;
(9) Method 17 and Method 14 or Method 14A in appendix A to part 60 of this chapter or an approved alternative method for the concentration of PM where emissions are sampled from roof monitors not employing wet roof scrubbers. Method 17 need not be set up as required in the method. Instead, when using Method 14A, replace the Method 14A monitor cassette filter with the filter specified by Method 17. Recover and analyze the filter according to Method 17. When using Method 14, test at ambient conditions, do not heat the filter and probe, and do not analyze the back half of the sampling train;
(10) Method 29 in appendix A to part 60 of this chapter or an approved alternative method for the concentration of mercury, nickel and arsenic where stack or duct emissions are sampled;
(11) Method 29 and Method 14 or Method 14A in appendix A to part 60 of this chapter or an approved alternative method for the concentration of nickel and arsenic where emissions are sampled from roof monitors not employing wet roof scrubbers. Method 29 need not be set up as required in the method. Instead, replace the Method 14A monitor cassette filter with the filter specified by Method 29. Recover and analyze the filter according to Method 29. When using Method 14, test at ambient conditions, do not heat the filter and probe, and do not analyze the back half of the sampling train;
(12) Method 22 in Appendix A to part 60 of this chapter or an approved alternative method for determination of visual emissions;
(13) Method 428 of the California Air Resources Board (incorporated by reference; see § 63.14) for the measurement of PCB where stack or duct emissions are sampled; and
(14) Method 428 of the California Air Resources Board (incorporated by reference; see § 63.14) and Method 14 or Method 14A in appendix A to part 60 of this chapter or an approved alternative method for the concentration of PCB where emissions are sampled from roof monitors not employing wet roof scrubbers.
(f) The owner or operator must use either ASTM D4239-14e1 or ASTM D6376-10 (incorporated by reference; see § 63.14) for determination of the sulfur content in anode coke shipments to determine compliance with the applicable emission limit for COS emissions.
The revisions and additions read as follows:
(b)
(1) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT Web site (
(2) For data collected using test methods that are not supported by the EPA's ERT as listed on the EPA's ERT Web site at the time of the test, you must submit the results of the performance test to the Administrator at the appropriate address listed in § 63.13.
(3) For data collected which requires summation of results from both ERT and non-ERT supported test methods in order to demonstrate compliance with an emission limit, you must submit the results of the performance test(s) used to demonstrate compliance with that emission limit to the Administrator at the appropriate address listed in § 63.13.
(c)
(1) For performance evaluations of continuous monitoring systems measuring relative accuracy test audit (RATA) pollutants that are supported by the EPA's ERT as listed on the EPA's ERT Web site at the time of the test, you must submit the results of the performance evaluation to the EPA via the CEDRI. (CEDRI can be accessed through the EPA's CDX.) Performance evaluation data must be submitted in a file format generated through the use of the EPA's ERT. Alternatively, you may submit performance evaluation data in an electronic file format consistent with the XML schema listed on the EPA's ERT Web site once the XML schema is available. If you claim that some of the
(2) For any performance evaluations of continuous monitoring systems measuring RATA pollutants that are not supported by the EPA's ERT as listed on the EPA's ERT Web site at the time of the test, you must submit the results of the performance evaluation to the Administrator at the appropriate address listed in § 63.13.
(d)
(1) Excess emissions report. As required by § 63.10(e)(3), the owner or operator must submit a report (or a summary report) if measured emissions are in excess of the applicable standard. The report must contain the information specified in § 63.10(e)(3)(v) and be submitted semiannually unless quarterly reports are required as a result of excess emissions.
(2) If there was a malfunction during the reporting period, the owner or operator must submit a report that includes the number, duration and a brief description for each type of malfunction which occurred during the reporting period and which caused or may have caused any applicable emission limitation to be exceeded. The report must also include a description of actions taken by an owner or operator during a malfunction of an affected source to minimize emissions in accordance with §§ 63.843(f) and 63.844(f), including actions taken to correct a malfunction.
(e) * * *
(4) * * *
(iii) [Reserved]
(xiv) Records documenting any POM data that are invalidated due to the installation and startup of a cathode;
(xv) Records documenting the portion of TF that is measured as particulate matter and the portion that is measured as gaseous when the particulate and gaseous fractions are quantified separately using an approved test method;
(xvi) Records of the occurrence and duration of each malfunction of operation (
(xvii) Records of actions taken during periods of malfunction to minimize emissions in accordance with §§ 63.843(f) and 63.844(f), including corrective actions to restore malfunctioning process and air pollution control and monitoring equipment to its normal or usual manner of operation.
(f) All reports required by this subpart not subject to the requirements in paragraph (b) or (c) of this section must be sent to the Administrator at the appropriate address listed in § 63.13. If acceptable to both the Administrator and the owner or operator of a source, these reports may be submitted on electronic media. The Administrator retains the right to require submittal of reports subject to paragraph (b) of this section in paper format.
(a)
(1) Ensure the potline scrubbers and exhaust fans are operational at all times.
(2) Ensure that the primary capture and control system is operating at all times.
(3) Hood covers should be replaced as soon as possible after each potroom operation.
(4) Inspect potlines daily and perform the work practices specified in paragraphs (a)(4)(i) through (iii) of this section.
(i) Identify unstable pots as soon as practicable but in no case more than 12 hours from the time the pot became unstable;
(ii) Reduce cell temperatures to as low as practicable, and follow the written operating plan described in paragraph (b)(4) of this section if the cell temperature exceeds the specified high temperature limit; and
(iii) Reseal pot crusts that have been broken as often and as soon as practicable.
(5) Ensure that hood covers fit properly and are in good condition.
(6) If the exhaust system is equipped with an adjustable damper system, the hood exhaust rate for individual pots must be increased whenever hood covers are removed from a pot, provided that the exhaust system will not be overloaded by placing too many pots on high exhaust.
(7) Dust entrainment must be minimized during material handling operations and sweeping of the working aisles.
(8) Only tapping crucibles with functional aspirator air return systems (for returning gases under the collection hooding) can be used, unless the regulatory authority approves an alternative tapping crucible.
(b)
(1) Develop a potline startup schedule before starting up the potline.
(2) Keep records of the number of pots started each day.
(3) Inspect potlines daily and adjust pot parameters to their optimum levels, as specified in the operating plan described in paragraph (b)(4) of this section, including, but not limited to: alumina addition rate, exhaust air flow rate, cell voltage, feeding level, anode current and liquid and solid bath levels.
(4) Prepare a written operating plan to minimize emissions during startup to include, but not limited to, the requirements in (b)(1) through (3) of this section. The operating plan must include a specified high temperature limit for pots that will trigger corrective action.
(a)
(1) The new anode bake furnace must have been permitted to operate prior to May 1, 1998; and
(2) The new anode bake furnace must share a common control device with one or more existing anode bake furnaces.
(b)
(2) The owner or operator of a new anode bake furnace that is controlled by a control device that also controls emissions of TF from one or more existing anode bake furnaces must not discharge, or cause to be discharged into the atmosphere, any emissions of TF in excess of the emission limits established in paragraph (b)(1) of this section.
(c)
L
(2) The owner or operator of a new anode bake furnace that is controlled by a control device that also controls emissions of POM from one or more existing anode bake furnaces must not discharge, or cause to be discharged into the atmosphere, any emissions of TF in excess of the emission limits established in paragraph (c)(1) of this section.
| 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 |