| Page Range | 63071-63408 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 63214 - Notice of Opportunity To Comment on an Analysis of the Greenhouse Gas Emissions Attributable to Production and Transport of Jatropha Curcas Oil for Use in Biofuel Production | |
| 80 FR 63405 - Blind Americans Equality Day, 2015 | |
| 80 FR 63080 - Airworthiness Directives; Airbus Airplanes | |
| 80 FR 63255 - Sunshine Act Meetings | |
| 80 FR 63077 - Columbus Day, 2015 | |
| 80 FR 63075 - General Pulaski Memorial Day, 2015 | |
| 80 FR 63073 - International Day of the Girl, 2015 | |
| 80 FR 63071 - National School Lunch Week, 2015 | |
| 80 FR 63215 - Guidance Regarding the Prohibition of Certain Communications During the Incentive Auction, Auction 1000 | |
| 80 FR 63238 - U.S. Customs and Border Protection 2015 East Coast Trade Symposium: “Transforming Global Trade” | |
| 80 FR 63153 - Proposed Establishment of and Modification to Restricted Areas; Fort Sill, OK | |
| 80 FR 63251 - Notice of Inventory Completion: Wisconsin Historical Society, Museum Division, Madison, WI | |
| 80 FR 63242 - Homeland Security Science and Technology Advisory Committee (HSSTAC) | |
| 80 FR 63239 - Agency Information Collection Activities: Petroleum Refineries in Foreign Trade Sub-Zones | |
| 80 FR 63238 - Notice of Advisory Council on Historic Preservation Quarterly Business Meeting | |
| 80 FR 63092 - Extension of the Expiration Date for State Disability Examiner Authority To Make Fully Favorable Quick Disability Determinations and Compassionate Allowance Determinations | |
| 80 FR 63196 - Citric Acid and Certain Citrate Salts From the People's Republic of China: Rescission of Antidumping Duty Administrative Review; 2014-2015 | |
| 80 FR 63204 - Manual for Courts-Martial; Proposed Amendments | |
| 80 FR 63213 - New York State Prohibition of Discharges of Vessel Sewage; Notice of Final Determination; Correction | |
| 80 FR 63213 - Board of Scientific Counselors Homeland Security Subcommittee; Notification of Public Teleconference Meeting and Public Comment | |
| 80 FR 63254 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Applicant Information Form (1-783) | |
| 80 FR 63255 - NASA Advisory Council; Technology, Innovation and Engineering Committee; Meeting | |
| 80 FR 63120 - Ohio Regulatory Program | |
| 80 FR 63117 - Kentucky Regulatory Program | |
| 80 FR 63125 - Pennsylvania Regulatory Program | |
| 80 FR 63201 - Mid-Atlantic Fishery Management Council (MAFMC); Meeting | |
| 80 FR 63200 - Fisheries of the South Atlantic; South Atlantic Fishery Management Council; Public Meeting; Correction | |
| 80 FR 63190 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; 2016 Red Snapper Commercial Quota Retention | |
| 80 FR 63212 - Agency Information Collection Activities: Proposed Collection; Comment Request; Personal Identity Verification (PIV) Request | |
| 80 FR 63224 - Senior Executive Service Performance Review Board | |
| 80 FR 63201 - Proposed Information Collection; Comment Request; Greater Atlantic Region Logbook Family of Forms | |
| 80 FR 63225 - Submission for OMB Review; Comment Request | |
| 80 FR 63199 - Proposed Information Collection; Comment Request; NIST Generic Clearance for Program Evaluation Data Collections | |
| 80 FR 63202 - Agency Information Collection Activities Under OMB Review | |
| 80 FR 63224 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 63115 - Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes | |
| 80 FR 63234 - Advisory Commission on Childhood Vaccines; Request for Nominations for Voting Members | |
| 80 FR 63203 - Proposed collection; comment request | |
| 80 FR 63240 - South Carolina; Emergency and Related Determinations | |
| 80 FR 63240 - South Carolina; Major Disaster and Related Determinations | |
| 80 FR 63241 - South Carolina; Amendment No. 1 to Notice of a Major Disaster Declaration | |
| 80 FR 63241 - South Carolina; Amendment No. 2 to Notice of a Major Disaster Declaration | |
| 80 FR 63242 - California; Amendment No. 5 to Notice of a Major Disaster Declaration | |
| 80 FR 63241 - South Carolina; Amendment No. 3 to Notice of a Major Disaster Declaration | |
| 80 FR 63235 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment Request | |
| 80 FR 63130 - Suspension of Community Eligibility | |
| 80 FR 63253 - Proposed Renewal of Information Collection: OMB Control Number 1035-0003, Application To Withdraw Tribal Funds From Trust Status | |
| 80 FR 63281 - Voluntary Service National Advisory Committee; Notice of Meetings | |
| 80 FR 63246 - Privacy Act of 1974, as Amended; Notice To Amend an Existing System of Records | |
| 80 FR 63250 - Eastern States: Filing of Plat of Survey | |
| 80 FR 63244 - Endangered and Threatened Wildlife and Plants; Enhancement of Survival Permit Applications; Greater Sage-Grouse Umbrella Candidate Conservation Agreement With Assurances for Wyoming Ranch Management | |
| 80 FR 63272 - Environmental Impact Statement; Manatee and Hillsborough Counties, Florida | |
| 80 FR 63228 - Agency Information Collection Activities; Proposed Collection; Comment Request; Recordkeeping Requirements for Microbiological Testing and Corrective Measures for Bottled Water | |
| 80 FR 63230 - Agency Information Collection Activities; Proposed Collection; Comment Request; Guidance on Reagents for Detection of Specific Novel Influenza A Viruses | |
| 80 FR 63232 - Agency Information Collection Activities; Proposed Collection; Comment Request; Administrative Detention and Banned Medical Devices | |
| 80 FR 63226 - Office of Women's Health General Update on Strategic Priorities and Initiatives | |
| 80 FR 63231 - Evaluating the Effectiveness of New Animal Drugs for the Reduction of Pathogenic Shiga Toxin-Producing Escherichia coli | |
| 80 FR 63237 - National Institute of Environmental Health Sciences; Notice of Closed Meetings | |
| 80 FR 63237 - National Institute of Environmental Health Sciences; Notice of Closed Meeting | |
| 80 FR 63227 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; User Fee Cover Sheet; Form FDA 3397 | |
| 80 FR 63227 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Reclassification Petitions for Medical Devices | |
| 80 FR 63234 - Office of Women's Health Update on Strategic Priorities and Initiatives for Nurses | |
| 80 FR 63245 - Opening of Nomination Period for Members of the Advisory Committee on Climate Change and Natural Resource Science | |
| 80 FR 63214 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 80 FR 63196 - Meetings | |
| 80 FR 63199 - Announcing the Withdrawal of Six (6) Federal Information Processing Standards (FIPS) | |
| 80 FR 63193 - Notice of Request To Renew an Approved Information Collection (Laboratories) | |
| 80 FR 63264 - Self-Regulatory Organizations; the Options Clearing Corporation; Notice of Filing of Proposed Rule Change To Modify the Options Clearing Corporation's Margin Methodology by Incorporating Variations in Implied Volatility | |
| 80 FR 63257 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of BATS Exchange, Inc. | |
| 80 FR 63261 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify Chapter XV, Entitled “Options Pricing,” at Section 2 Governing Pricing for NASDAQ Members | |
| 80 FR 63267 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Mini Options | |
| 80 FR 63269 - Self-Regulatory Organizations; ICE Clear Europe Limited; Order Approving Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Relating to Credit Default Swap Risk Policies | |
| 80 FR 63256 - Columbia Trust, et al.; Notice of Application | |
| 80 FR 63193 - Submission for OMB Review; Comment Request | |
| 80 FR 63197 - Export Trade Certificate of Review | |
| 80 FR 63250 - National Register of Historic Places; Notification of Pending Nominations and Related Actions | |
| 80 FR 63281 - Agency Information Collection (VA Form 21P-0847) Activity Under OMB Review | |
| 80 FR 63254 - Meeting of the Judicial Conference Advisory Committee on Rules of Civil Procedure | |
| 80 FR 63194 - Newspapers Used for Publication of Legal Notice in the Rocky Mountain Region, Which Includes Colorado, Kansas, Nebraska, and Parts of South Dakota and Wyoming | |
| 80 FR 63243 - Agency Information Collection Activities: USCIS Case Status Online; Extension of an Existing Information Collection; Comment Request | |
| 80 FR 63238 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed Meeting | |
| 80 FR 63236 - National Institute on Aging; Notice of Closed Meeting | |
| 80 FR 63237 - National Cancer Institute; Amended Notice of Meeting | |
| 80 FR 63236 - National Cancer Institute; Notice of Closed Meetings | |
| 80 FR 63272 - Proposed Agency Information Collection Activities; Comment Request | |
| 80 FR 63185 - Air Plan Approval; Phoenix, Arizona; Second 10-Year Carbon Monoxide Maintenance Plan | |
| 80 FR 63222 - Information Collections Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 80 FR 63223 - Information Collections Being Reviewed by the Federal Communications Commission | |
| 80 FR 63275 - General Motors, LLC, Denial of Petition for Decision of Inconsequential Noncompliance | |
| 80 FR 63375 - Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students | |
| 80 FR 63168 - Safety Standard for Infant Bouncer Seats | |
| 80 FR 63155 - Safety Standard for Children's Folding Chairs and Stools | |
| 80 FR 63083 - Airworthiness Directives; CFM International S.A. Turbofan Engines | |
| 80 FR 63088 - Amendment of Class E Airspace for the Following Louisiana Towns: Jonesboro, LA and Winnfield, LA | |
| 80 FR 63087 - Amendment of Class E Airspace for the Following Nebraska Towns: Albion, NE; Bassett, NE; Lexington, NE | |
| 80 FR 63085 - Amendment of Class E Airspace for the Following Missouri Towns: Chillicothe, MO; Cuba, MO; Farmington, MO; Lamar, MO; Mountain View, MO; Nevada, MO; and Poplar Bluff, MO | |
| 80 FR 63089 - Amendment of Class E Airspace; Tekamah, Nebraska | |
| 80 FR 63276 - Hazardous Materials: Delayed Applications | |
| 80 FR 63277 - Hazardous Materials: Actions on Special Permit Applications | |
| 80 FR 63279 - Hazardous Materials: Notice of Applications for Special Permits | |
| 80 FR 63280 - Hazardous Materials: Notice of Application for Modification of Special Permit | |
| 80 FR 63151 - Airworthiness Directives; Piper Aircraft, Inc. Airplanes | |
| 80 FR 63145 - Airworthiness Directives; Airbus Helicopters (previously Eurocopter France) | |
| 80 FR 63134 - Airworthiness Directives; Airbus Airplanes | |
| 80 FR 63141 - Airworthiness Directives; Bombardier, Inc. Airplanes | |
| 80 FR 63132 - Airworthiness Directives; The Boeing Company Airplanes | |
| 80 FR 63136 - Airworthiness Directives; Airbus Airplanes | |
| 80 FR 63079 - Airworthiness Directives; Airbus Airplanes | |
| 80 FR 63147 - Airworthiness Directives; Bombardier, Inc. Airplanes | |
| 80 FR 63252 - Notice of Intent To Prepare an Extraordinary Operation and Maintenance Environmental Impact Statement for the Truckee Canal, Lahontan Basin Area Office, Nevada | |
| 80 FR 63090 - Revocation of Class D Airspace; Springfield, OH | |
| 80 FR 63091 - Establishment of Class E Airspace; Tomah, WI | |
| 80 FR 63084 - Establishment of Class E Airspace; Hart/Shelby, MI | |
| 80 FR 63094 - Secretarial Election Procedures | |
| 80 FR 63272 - The Entire United States and U.S. Territories | |
| 80 FR 63283 - Hazardous Waste Export-Import Revisions | |
| 80 FR 63321 - Technology Transitions, Policies and Rules Governing Retirement of Copper Loops by Incumbent Local Exchange Carriers and Special Access for Price Cap Local Exchange Carriers |
Food Safety and Inspection Service
Forest Service
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Bonneville Power Administration
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
Fish and Wildlife Service
Geological Survey
Indian Affairs Bureau
Land Management Bureau
National Park Service
Reclamation Bureau
Special Trustee for American Indians Office
Surface Mining Reclamation and Enforcement Office
Parole Commission
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
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), Department of Transportation (DOT).
Final rule; removal.
We are removing Airworthiness Directive (AD) 2010-08-08, which applied to certain Airbus Model A330-243, -341, -342, and -343 airplanes. AD 2010-08-08 required deactivating the water scavenge automatic operation and revising the Limitations section of the airplane flight manual (AFM). We are also removing AD 2011-06-04, which applied to certain Airbus Model A330-243F airplanes. AD 2011-06-04 required revising the Limitations section of the AFM. We issued ADs 2010-08-08 and 2011-06-04 to prevent fuel flow restriction, caused by ice, resulting in a possible engine surge or stall condition, and the engine being unable to provide the commanded thrust. Since we issued AD 2010-08-08 and AD 2011-06-04, we received new data indicating that the water scavenge system (WSS) operation does not induce any risk of fuel feed system (including the engine) blockage by ice on the pipework or pump inlets. We have also determined that the risk of fuel flow restriction by ice at the fuel oil heat exchanger (FOHE) interface on airplanes equipped with Rolls-Royce Trent 700 engines is now addressed by a redesigned FOHE, which incorporates enhanced anti-icing and de-icing performance.
This AD becomes effective November 23, 2015.
You may examine the AD docket on the Internet at
For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email:
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1138; fax: 425-227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A330-243, -243F, -341, -342, and -343 airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2010-0132-CN, dated October 14, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to cancel EASA AD 2010-0132R1, dated June 10, 2013, which superseded EASA AD 2010-0132, dated June 28, 2010. The requirements of FAA AD 2010-08-08, Amendment 39-16263 (75 FR 19196, April 14, 2010), and AD 2011-06-04, Amendment 39-16628 (76 FR 13075, March 10, 2011), correspond to EASA AD 2010-0132. The MCAI states:
During an in-service event, the flight crew of a Trent 700 powered A330 aeroplane reported a temporary Engine Pressure Ratio (EPR) shortfall on engine 2 during the takeoff phase of the flight. The ENG STALL warning was set. The flight crew followed the standard procedures which included reducing throttle to idle. The engine recovered and provided the demanded thrust level for the remainder of the flight.
Data analysis confirmed a temporary fuel flow restriction and subsequent recovery, and indicated that also engine 1 experienced a temporary fuel flow restriction shortly after the initial event on engine 2, again followed by a full recovery. The engine 1 EPR shortfall was insufficient to trigger any associated warning and was only noted through analysis of the flight data. No flight crew action was necessary to recover normal performance on this engine. The remainder of the flight was uneventful.
Based on industry-wide experience, the investigation of the event focused on the possibility for ice to temporarily restrict the fuel flow. While no direct fuel system fault was identified, the operation of the water scavenge system (WSS) at Rib 3 was considered to have been a contributory factor.
Prompted by these findings, EASA issued [EASA] Emergency AD 2010-0042-E [
Subsequently, EASA issued [EASA] AD 2010-0132 which superseded EASA AD 2010-0042-E, retaining its requirements, to expand the applicability to the newly certified model A330-243F [which corresponds to FAA AD 2011-06-04, Amendment 39-16628 (76 FR 13075, March 10, 2011, for the A330-243F requirements]. EASA AD 2010-0132 was later revised to remove the dispatch restriction with one main fuel pump inoperative.
Since EASA AD 2010-0132R1 was issued, extensive fuel system icing risk investigations testing was conducted by Airbus and Rolls-Royce, the results of which confirmed that the Rib 3 WSS operation does not induce any risk of fuel feed system (including the engine) blockage by ice accreted on the pipework and/or pump inlets. In addition, it was demonstrated that the risk of fuel flow restriction by ice at the Fuel Oil Heat Exchanger (FOHE) interface on aeroplanes equipped with Trent 700 engines is now adequately addressed by introduction of a re-designed FOHE, more tolerant to the release of ice (modification 200218). The
Previously, the operation of the WSS at Rib 3 was no longer considered as a main contributory factor on ice build-up and subsequent release of ice into the fuel system. Based on the latest information, the deactivation of the automatic Standby Fuel Pump Scavenge System is no longer required.
For the reasons described above, this Notice cancels EASA AD 2010-0132R1.
You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 59468, October 2, 2014), or on the determination of the cost to the public.
We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (79 FR 59468, October 2, 2014) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 59468, October 2, 2014).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD becomes effective November 23, 2015.
This AD removes AD 2010-08-08, Amendment 39-16263 (75 FR 19196, April 14, 2010); and AD 2011-06-04, Amendment 39-16628 (76 FR 13075, March 10, 2011).
This AD applies to the airplanes specified in paragraphs (c)(1) and (c)(2) of this AD.
(1) Airbus Model A330-243, -341, -342, and -343 airplanes, certificated in any category, all manufacturer serial numbers equipped with Rolls-Royce Trent 700 engines, on which Airbus Modification 56966MP16199 has been embodied in production or Airbus Service Bulletin A330-28-3105 has been embodied in service.
(2) Airbus Model A330-243F airplanes, certificated in any category, all manufacturer serial numbers on which Airbus Modification 56966H16199 has been embodied in production or Airbus Service Bulletin A330-28-3105 has been embodied in service.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain Airbus Model A330-200, A330-200 Freighter, A330-300, A340-200, A340-300, A340-500, and A340-600 series airplanes. This AD requires a detailed inspection of the girt installation of each escape slide and slide raft, and corrective action if necessary. This AD was prompted by a report of incorrect installation of the girt panel on passenger doors and an incorrectly installed quick release (girt) bar into the
This AD becomes effective November 3, 2015.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 3, 2015.
We must receive comments on this AD by December 3, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0183R1, dated September 29, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-200, A330-200 Freighter, A330-300, A340-200, A340-300, A340-500, and A340-600 series airplanes. The MCAI states:
During inspections of two different A330 aeroplanes before delivery, incorrect connection of the girt panel was noticed on one passenger (PAX) door 2 and one PAX door 4. Further investigation revealed that the quick release (girt) bar was incorrectly installed into the girt panel of the affected slide raft.
This condition, if not detected and corrected, would cause the slide pack to remain attached to the door, preventing slide deployment during an emergency (door in “ARMED” mode), leading to reduced evacuation capacity from the aeroplane and possible injury to occupants.
Further inspections at the Airbus final assembly line revealed a third case of incorrect installation of girt panel, on one emergency exit door.
Prompted by these findings, Airbus issued Alert Operators Transmission (AOT) A25L004-15 to provide inspection instructions.
For the reasons described above, EASA issued AD 2015-0183 to require a one-time inspection of the escape slide and slide/raft attachments and, depending on findings, accomplishment of applicable corrective action(s) [including reinstalling the slide or declaring the affected door inoperative].
Since that AD was issued, it was found that the Applicability could be reduced by excluding some aeroplanes and that there was a need to clarify the applicable Airbus MPD Tasks and MRBR MSI.
You may examine the MCAI on the Internet at
Airbus has issued Alert Operators Transmission (AOT) A25L004-15, Rev 00, dated August 24, 2015. The service information describes procedures for performing a visual inspection of the girt installations of each slide and slide raft, and corrective action. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of these same type designs.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because incorrect girt installation of the of escape slide and slide raft could prevent slide deployment during an emergency and result in reduced evacuation capacity from the airplane and possible injury to occupants. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 30 airplanes of U.S. registry.
We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $2,550, or $85 per product.
In addition, we estimate that any necessary follow-on actions will take about 18 work-hours, for a cost of $1,530 per escape slide/slide raft. We have no way of determining the number escape slides/slide rafts on the aircraft that might need this action.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD becomes effective November 3, 2015.
None.
This AD applies to the Airbus airplanes, certificated in any category, as specified in paragraphs (c)(1) and (c)(2) of this AD.
(1) This AD applies to the airplanes identified in paragraphs (c)(1)(i) through (c)(1)(vii) of this AD.
(i) Model A330-201, -202, -203, -223, and -243 airplanes.
(ii) Model A330-223F and -243F airplanes.
(iii) Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.
(iv) Model A340-211, -212, and -213 airplanes.
(v) Model A340-311, -312, and -313 airplanes.
(vi) Model A340-541 airplanes.
(vii) Model A340-642 airplanes.
(2) This AD does not apply to airplanes on which the installations of all escape slides and slide rafts have passed an inspection as specified in any task/item identified in paragraphs (c)(2)(i) through (c)(2)(v) of this AD.
(i) Task 25-62-41-01-1 Cabin Escape Facilities, of the applicable Airbus Maintenance Planning Document.
(ii) Task 25-62-41-02-1 Cabin Escape Facilities, of the applicable Airbus Maintenance Planning Document.
(iii) Task 25-62-41-03-1 Cabin Escape Facilities, of the applicable Airbus Maintenance Planning Document.
(iv) Task 25-62-41-04-1 Cabin Escape Facilities, of the applicable Airbus Maintenance Planning Document.
(v) Maintenance Schedule Item 25.62.00 section 01, 02, or 03, of the Cabin Escape Facilities, of the applicable Airbus Maintenance Review Board Report.
Air Transport Association (ATA) of America Code 25, Equipment/furnishings.
This AD was prompted by a report of incorrect installation of the girt panel on passenger doors and an incorrectly installed quick release (girt) bar into the girt panel of the slide raft. We are issuing this AD to detect and correct incorrect girt installation of the escape slide and slide raft, which could prevent slide deployment during an emergency, and result in reduced evacuation capacity from the airplane and possible injury to occupants.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, inspect to identify the slide raft and escape slide part numbers installed on the airplane. A review of the airplane delivery or maintenance records may be used in lieu of the inspection if the slide raft and escape slide part numbers can be conclusively defined through such review.
(1) If the inspection required by paragraph (g) of this AD reveals any slide raft having P/N 7A1508, 7A1510, 7A1539, or 4A3934 series, or any escape slide having P/N 7A1509 or 4A3928 series: Within 30 days after the effective date of this AD, do a detailed inspection of the girt installation of the affected escape slide and slide raft, in accordance with paragraph 4.2 of Airbus AOT A25L004-15, Rev 00, dated August 24, 2015.
(2) For any door position where an affected slide raft or escape slide has been removed and reinstalled, or replaced since the airplane's entry into service, the inspection of the girt installation of the slide raft or escape slide at that position, as required by paragraph (h)(1) of this AD, does not have to be done.
If, during the inspection required by paragraph (h)(1) of this AD, the girt bar fitted into the girt of an escape slide, or the quick release bar fitted into the girt of a slide raft, is found to be incorrectly installed, before further flight, accomplish the applicable corrective action(s), in accordance with paragraph 4.3 of Airbus AOT A25L004-15, Rev 00, dated August 24, 2015.
The following provisions also apply to this AD:
(1)
(2)
Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0183, dated August 31, 2015, for related information. You may examine the MCAI on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus Alert Operators Transmission A25L004-15, Rev 00, dated August 24, 2015.
(ii) Reserved.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
The FAA is correcting an airworthiness directive (AD) that published in the
This final rule is effective on October 20, 2015. The effective date of AD 2015-18-04, Amendment 39-18262 (80 FR 55235, September 15, 2015) remains October 20, 2015.
You may examine the AD docket on the Internet at
Kyle Gustafson, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7183; fax: 781-238-7199; email:
AD 2015-18-04, Amendment 39-18262 (80 FR 55235, September 15, 2015), requires AGB/transfer gearbox (TGB) magnetic chip detector (MCD) inspection of the affected gearshafts until removal.
As published, four headings in the Compliance section are incorrect.
No other part of the final rule has been changed.
The effective date of AD 2015-18-04 remains October 20, 2015.
This AD is effective October 20, 2015.
None.
This AD applies to CFM International S.A. (CFM) CFM56-7B and CFM56-3 engines with a 73-tooth or 41-tooth gearshaft installed in the accessory gearbox (AGB), that has a gearshaft serial number in Appendix A or Appendix B of CFM Service Bulletin (SB) No. CFM56-7B S/B 72-0964, Revision 1, dated December 15, 2014.
This AD was prompted by a report of an uncommanded in-flight shutdown on a CFM CFM56-7B engine following rupture of the 73-tooth gearshaft located in the engine AGB. We are issuing this AD to prevent failure of certain AGB gearshafts, which could lead to failure of one or more engines, loss of thrust control, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(i) For affected 73-tooth gearshafts, perform an AGB/TGB MCD inspection within 250 flight hours (FHs) since last inspection, within 25 FHs from the effective date of this AD, or when the gearshaft accumulates 3,000 FHs since new, whichever comes later.
(ii) For affected 41-tooth gearshafts, perform an AGB/TGB MCD inspection within 250 FHs since last inspection, within 25 FHs from the effective date of this AD, or when the gearshaft accumulates 6,000 FHs since new, whichever comes later.
(iii) If any magnetic particles, including fuzz, are seen, determine with laboratory analysis if the particles are 73-tooth or 41-tooth gearshaft material.
(iv) If the particles are 73-tooth or 41-tooth gearshaft material, remove the affected gearshaft(s) within 75 FHs since the AGB/TGB MCD inspection.
(i) For affected 73-tooth gearshafts, perform an AGB/TGB MCD inspection and laboratory analysis within every 500 FHs since the last AGB/TGB MCD inspection until affected gearshaft is removed.
(ii) For affected 41-tooth gearshafts, perform an AGB/TGB MCD inspection and laboratory analysis within every 500 FHs since the last AGB/TGB MCD inspection until affected gearshaft is removed.
(iii) If any magnetic particles, including fuzz, are seen, determine with laboratory analysis if the particles are 73-tooth or 41-tooth gearshaft material.
(iv) If the particles are 73-tooth or 41-tooth gearshaft material, remove the affected gearshaft(s) within 75 FHs since the AGB/TGB MCD inspection.
(1) Remove the affected 73-tooth gearshaft prior to the gearshaft accumulating 6,000 FHs since new or within 50 FHs after the effective date of this AD, whichever comes later.
(2) Remove the affected 41-tooth gearshaft prior to the gearshaft accumulating 9,000 FHs since new or within 50 FHs after the effective date of this AD, whichever comes later.
After the effective date of this AD, do not install an affected gearshaft into an AGB.
The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
For more information about this AD, contact Kyle Gustafson, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7183; fax: 781-238-7199; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on October 20, 2015.
(i) CFM International Service Bulletin No. CFM56-7B S/B 72-0964, Revision 1, dated December 15, 2014.
(ii) Reserved.
(4) For CFM service information identified in this AD, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email:
(5) You may view this service information at FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
(6) You may view this service information at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Hart/Shelby, MI. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAPs) at Oceana County Airport. The FAA is proposing this action to enhance the safety and management of Instrument Flight Rules (IFR) operations at the airport.
Effective 0901 UTC, December 10, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z Airspace Designations and Reporting Points and subsequent amendments can be viewed on line at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Rebecca Shelby, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: 817-222-5857.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace at Oceana County Airport, Hart/Shelby, MI.
On July 28, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This action amends Title 14, Code of Federal Regulations (14 CFR), Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.0-mile radius of Oceana County Airport, Hart/Shelby, MI, to accommodate new Standard Instrument Approach Procedures at the airport. This action enhances the safety and management of IFR operations at the airport.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.0-mile radius of Oceana County Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at Chillicothe Municipal Airport, Chillicothe, MO; Cuba Municipal Airport, Cuba, MO; Farmington Regional Airport, Farmington, MO; Lamar Municipal Airport, Lamar, MO; Mountain View Airport, Mountain View, MO; Nevada Municipal Airport, Nevada, MO; and Poplar Bluff Municipal Airport, Poplar Bluff, MO. Decommissioning of the non-directional radio beacons (NDB) and/or cancellation of NDB approaches due to advances in Global Positioning System (GPS) capabilities has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the above airports. Geographic coordinates are also adjusted at Chillicothe Municipal Airport, Chillicothe, MO; Lamar Municipal Airport, Lamar, MO; and Nevada Municipal Airport, Nevada, MO.
Effective 0901 UTC, December 10, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jim Pharmakis, Operations Support Group, Central Service Center, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: (817) 222-5855.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at the Missouri airports listed in this document.
On July 17th, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface for new standard instrument approach procedures at Chillicothe Municipal Airport, Chillicothe, MO; Cuba Municipal Airport, Cuba, MO; Farmington Regional Airport, Farmington, MO; Lamar Municipal Airport, Lamar, MO; Mountain View Airport, Mountain View, MO; Nevada Municipal Airport, Nevada, MO; and Poplar Bluff Municipal Airport, Poplar Bluff, MO. Also, Class E airspace extending upward from the surface is amended at Farmington Regional Airport, Farmington, MO. Airspace reconfiguration is necessary due to the decommissioning of NDBs and/or cancellation of the NDB approach at each airport. Additionally, geographic coordinates are adjusted for Lamar Municipal Airport, Lamar, MO; Nevada Municipal Airport, Nevada, MO; and Poplar Bluff Municipal Airport, Poplar Bluff, MO, to coincide with the FAAs aeronautical database.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Within a 3.9-mile radius of Farmington Regional Airport and within 1.7 miles each side of the 202° bearing from the airport extending from the 3.9-mile radius to 4 miles south of the airport.
That airspace extending upward from 700 feet above the surface within a 6.9-mile radius of Chillicothe Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of the Cuba Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Farmington Regional Airport, and within 4 miles each side of the 204° bearing from the airport extending from the 6.4-mile radius to 11.5 miles southwest of the airport, and within 1.3 miles each side of the Farmington VORTAC 300° radial extending from the 6.4-mile radius of the airport to the VORTAC.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of Lamar Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Mountain View Airport.
That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Nevada Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Poplar Bluff Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at Albion Municipal Airport, Albion, NE; Rock County Airport, Bassett, NE; and Jim Kelly Field Airport, Lexington, NE. Decommissioning of the non-directional radio beacons (NDBs) and/or cancellation of NDB approaches due to advances in Global Positioning System (GPS) capabilities has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the above airports. Also, the geographic coordinates are being updated for Rock County Airport and Jim Kelly Field Airport.
Effective 0901 UTC, December 10, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jim Pharmakis, Operations Support Group, Central Service Center, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: (817) 222-5855.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at the Nebraska airports listed in this document.
On May 11th, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface for new standard instrument approach procedures at Albion Municipal Airport, Albion, NE; Rock County Airport, Bassett, NE; and Jim Kelly Field Airport, Lexington, NE. Airspace reconfiguration is necessary due to the decommissioning of NDBs and/or the cancellation of the NDB approach at each airport. Additionally, geographic coordinates are adjusted for Rock County Airport and Jim Kelly Field to coincide with the FAAs aeronautical database.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Albion Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Rock County Airport.
That airspace extending upward from 700 feet above the surface within an 8-mile radius of Jim Kelly Field.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at Jonesboro Airport, Jonesboro, LA, and David G. Joyce Airport, Winnfield, LA. Decommissioning of the non-directional radio beacons (NDB) and/or cancellation of NDB approaches due to advances in Global Positioning System (GPS) capabilities has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the above airports.
Effective 0901 UTC, December 10, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jim Pharmakis, Operations Support Group, Central Service Center, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: (817) 222-5855.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at the Louisiana airports listed in this final rule.
On May 11th, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface for standard instrument approach procedures at Jonesboro Airport, Jonesboro, LA; and David G. Joyce Airport, Winnfield, LA. Airspace reconfiguration is necessary due to the decommissioning of NDBs and/or the cancellation of the NDB approach at each airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of Jonesboro Airport.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of David G. Joyce Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at Tekamah Municipal Airport, Tekamah, NE. A Class E extension is no longer required due to the decommissioning of the Tekamah VHF Omni-directional radio range (VOR) facility and its associated standard instrument approach procedures (SIAPs). This enhances the safety and management of instrument flight rules (IFR) operations at the airport.
Effective 0901 UTC, December 10, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jim Pharmakis, Operations Support Group, Central Service Center, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: (817) 222-5855.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at the Iowa airports listed in this document.
On May 21st, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR
This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface to within a 6.4-mile radius of Tekamah Municipal Airport, Tekamah, NE., reconfiguring the airspace for standard instrument approach procedures at the airport. The Tekamah VOR facility has been decommissioned and its associated standard instrument approach procedures have been canceled.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Tekamah Municipal Airport.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
This action removes Class D airspace at Springfield-Beckley Municipal Airport, Springfield, OH. The closure of the air traffic control tower has necessitated the need to remove the Class D airspace area at the airport.
Effective 0901 UTC, December 10, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points is published yearly and effective on September 15.
Rebecca Shelby, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5857.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as removes controlled airspace at Springfield-Beckley Municipal Airport, Springfield, OH.
On May 29, 2015, the FAA published in the
Class D airspace designations are published in paragraph 5000 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class D airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by removing Class D airspace at Springfield-Beckley Municipal Airport, Springfield, OH. The closing of the air traffic control tower at Springfield-Beckley Municipal Airport has made this action necessary for the efficient use of airspace within the National Airspace System.
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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Tomah, WI. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures at Bloyer Field Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations at the airport.
Effective 0901 UTC, December 10, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
For further information, you can contact the Airspace Policy and ATC Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 29591; telephone: 202-267-8783. The order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Rebecca Shelby, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: 817-222-5857.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Bloyer Field Airport, Tomah, WI.
On June 22, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Bloyer Field Airport, Tomah, WI, to accommodate new Standard Instrument Approach Procedures at the airport. This action enhances the safety and management of IFR operations at the airport.
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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Bloyer Field Airport.
Social Security Administration.
Final rule.
We are extending the expiration date of our rule that authorizes State agency disability examiners to make fully favorable determinations without the approval of a State agency medical or psychological consultant in claims that we consider under our quick disability determination (QDD) and compassionate allowance (CAL) processes. The current rule will expire on November 13, 2015. In this final rule, we are changing the November 13, 2015 expiration or “sunset” date to November 11, 2016, extending the authority for 1 year. We are making no other substantive changes.
This final rule is effective October 19, 2015.
Kenneth Williams, Office of Disability Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-0608, for information about this notice. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at
On October 13, 2010, we published a final rule that temporarily authorized State agency disability examiners to make fully favorable determinations without the approval of a State agency medical or psychological consultant in claims that we consider under our QDD and CAL processes. 75 FR 62676.
We included in 20 CFR 404.1615(c)(3) and 416.1015(c)(3) provisions by which the State agency disability examiner authority to make fully favorable determinations without medical or psychological consultant approval in QDD and CAL claims would no longer be effective, unless we decided to terminate the rule earlier or extend it beyond that date by publication of a
This final rule extends for 1 year the authority in the rule that we published on October 13, 2010 allowing disability examiners to make fully favorable determinations in certain disability claims under our QDD and CAL processes without the approval of a medical or psychological consultant. This rule allows us to make fully favorable determinations when we can as quickly as possible. The rule also helps us process claims more efficiently because it allows State agency medical and psychological consultants to spend their time on claims that require their expertise.
In the rule that we published on October 13, 2010, we noted that our experience adjudicating QDD and CAL claims led us to our decision to allow disability examiners to make some fully favorable determinations without a medical or psychological consultation. When we implemented the rule, we also knew that State agencies would require some time to establish procedures, adopt necessary software modifications, and satisfy collective bargaining obligations. Extending the rule provides data on the active processes as well as ongoing analysis of the data we will use to make a decision on whether to make the authority permanent.
We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 when developing regulations. Section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5). Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing a final rule. However, the APA provides exceptions to its notice and public comment procedures when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest.
We have determined that good cause exists for dispensing with the notice and public comment procedures for this rule. 5 U.S.C. 553(b)(B). Good cause exists because this final rule only extends the expiration date of the existing provisions. It makes no substantive changes. The current regulations expressly provide that we may extend or terminate the current rule. Therefore, we have determined that opportunity for prior comment is unnecessary, and we are issuing this rule as a final rule.
In addition, for the reasons cited above, we find good cause for dispensing with the 30-day delay in the effective date of this final rule. 5 U.S.C. 553(d)(3). We are not making any substantive changes in our current rule, but are extending the expiration date of the rule. In addition, as discussed above, the change we are making in this final rule will allow us to better utilize our scarce administrative resources in light of the current budgetary constraints under which we are operating. For these reasons, we find that it is contrary to the public interest to delay the effective date of our rule.
We consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB did not review it.
We also determined that this final rule meets the plain language requirement of Executive Order 12866.
We certify that this final rule will not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.
These rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.
Administrative practice and procedure; Blind, Disability benefits; Old-age, Survivors and Disability Insurance; Reporting and recordkeeping requirements; Social Security.
Administrative practice and procedure; Reporting and recordkeeping requirements; Supplemental Security Income (SSI).
For the reasons stated in the preamble, we are amending subpart Q of part 404 and subpart J of part 416 of title 20 of the Code of Federal Regulations as set forth below:
Secs. 205(a), 221, and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a), 421, and 902(a)(5)).
(c) * * *
(3) A State agency disability examiner alone if the claim is adjudicated under the quick disability determination process (see § 404.1619) or the compassionate allowance process (see § 404.1602), and the initial or reconsidered determination is fully favorable to you. This paragraph will no longer be effective on November 11, 2016 unless we terminate it earlier or extend it beyond that date by publication of a final rule in the
Secs. 702(a)(5), 1614, 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1382c, 1383, and 1383b).
(c) * * *
(3) A State agency disability examiner alone if you are not a child (a person who has not attained age 18), and the claim is adjudicated under the quick
Bureau of Indian Affairs, Interior.
Final rule.
The Bureau of Indian Affairs is amending its regulations governing Secretarial elections and procedures for tribal members to petition for Secretarial elections. This rule reflects changes in the law and the requirement that regulations be written in plain language. The rule also clarifies how tribes may remove Secretarial election requirements from their governing documents.
This rule is effective November 18, 2015.
Laurel Iron Cloud, Chief, Division of Tribal Government Services, Central Office, Bureau of Indian Affairs at telephone (202) 513-7641. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Monday through Friday, excluding Federal holidays.
The Bureau of Indian Affairs (BIA) is amending 25 CFR parts 81 (Tribal Reorganization under a Federal Statute) and 82 (Petitioning Procedures for Tribes Reorganized under Federal Statute and Other Organized Tribes), combining them into one Code of Federal Regulations part at 25 CFR part 81 (Secretarial Elections). The Secretarial elections regulations were originally adopted in 1964, and the Petitioning Procedures regulations were originally adopted in 1967.
A Secretarial election is a Federal election conducted by the Secretary of the Interior (Secretary) under a Federal statute or tribal governing document under 25 CFR part 81.
• Responds to the 1988 amendments made to section 16 of the Indian Reorganization Act (IRA) (June 18, 1934, 48 Stat. 984) (25 U.S.C. 476), as amended, which established time frames within which the Secretary must call and conduct Secretarial elections;
• Provides that all elections will be handled by mailout ballot unless polling places are expressly required by the amendment or adoption article of the tribe's governing document;
• Responds to the amendments made to Section 17 of the IRA by the Act of May 24, 1990 (104 Stat. 207) (25 U.S.C. 477) under which additional tribes may petition for charters of incorporation and removes the requirement of an election to ratify the approval of new charters issued after May 24, 1990, unless required by tribal law; and
• Reflects the 1994 addition of two subsections to section 16 of the IRA by the Technical Corrections Act of 1994 (108 Stat. 707) (25 U.S.C. 476(f) & (g)) that prohibit the Federal government from making a regulation or administrative decision “that classifies, enhances, or diminishes the privileges and immunities available to a federally recognized Indian tribe relative to the privileges and immunities available to other federally recognized tribes by virtue of their status as Indian tribes.”
When Congress enacted the Oklahoma Indian Welfare Act (OIWA) in 1936, the language it used to guarantee the right of tribes to organize and adopt constitutions and bylaws was different from that used in the IRA. The OIWA language requires the Secretary to approve the constitution before it is submitted to the tribal membership for a vote to ratify it. These regulations reflect the difference in language between the IRA and the OIWA.
For many tribes, the requirement for Secretarial elections or Secretarial approval is anachronistic and inconsistent with modern policies favoring tribal self-governance. The rule includes language clarifying that a tribe reorganized under the IRA may amend its governing document to remove the requirement for Secretarial approval of future amendments. The Department encourages amendments to governing documents to remove vestiges of a more paternalistic approach toward tribes. Once the requirement for Secretarial approval is removed through a Secretarial election, Secretarial approval of future amendments is not required, meaning there will be no future Secretarial elections conducted for the tribe, and future elections will be purely tribal elections, governed and run by the tribe rather than BIA. Additionally, without a requirement for Secretarial approval, the constitution will no longer be governed by the other election-related requirements of the IRA, such as the minimum number of tribal voters to make an election effective. Such matters will be governed by tribal policy decisions rather than Federal ones.
The rule also clarifies that the Secretary will accept petitions for Secretarial elections only from federally recognized tribes included on the list of recognized tribes published by the Secretary pursuant to section 479a-1.
It is the policy of the Federal government to support tribal self-governance as a substitute for Federal governance to the maximum extent permitted under Federal law. This rule seeks to effectuate that policy.
BIA published a proposed rule on Secretarial elections procedures on October 9, 2014.
If a tribe wishes to avoid entirely the application of all Federal voting requirements, including Federal voting qualifications, the tribe may hold a Secretarial election to remove the requirement for Secretarial approval, such that all future elections would be tribal elections conducted in accordance with tribal voting procedures and substantive requirements.
Practically, these timeframes pose a challenge for even the most skilled and experienced of Bureau and Department personnel because there are many steps required to “call and hold” an election and require considerable responsive cooperation from tribal officials (
• One commenter stated that petitioners do not have access to a list of all tribal members who are 18 and older because those records are maintained by the tribe, and that requiring such a list in the definition of “tribal request” effectively prevents petitioners from making a proper request for election.
• Another commenter stated that proposed § 81.60(a), which provides that the Bureau will determine how many signatures are needed on a petition, should provide some alternative to relying on the tribe to provide the current number of tribal members 18 years of age and older, in case the tribe refuses to turn over the information.
• A commenter asked how the Bureau creates its own list of members where the tribe refuses to provide an Eligible Voters List.
Efforts to revise this regulation date back to 1992, when the first consultations were held. More recently, the Department hosted tribal consultation sessions on December 1, 2009, in Anchorage, Alaska; Brooks, California, on January 12, 2010; Minneapolis, Minnesota, on January 20, 2010; Oklahoma City, Oklahoma, on January 26, 2010; Pala, California, on February 2, 2010; and Albuquerque, New Mexico, on February 4, 2010. The Department also accepted written comments on the regulations. The Department reviewed the comments and made significant changes to the draft in response to tribes' comments and suggestions. Following publication of the proposed rule in October 2014, the Department hosted additional tribal consultation sessions including a session on October 26, 2014, in Atlanta, Georgia during the National Congress of American Indians (NCAI) annual convention; on November 18, 2014, in Oklahoma City, Oklahoma; and on November 20, 2014, in Rocklin, California. The Department also held a listening session with tribes in Alaska in December 2014. Several tribes provided their input at these sessions or in writing. The final rule incorporates this input and responds to comments, above.
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has
The Department certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. Secretarial elections are funded by the BIA. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments, in the aggregate, or the private sector, of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
Under the criteria in Executive Order 12630, this rule does not affect individual property rights protected by the Fifth Amendment nor does it involve a compensable “taking.” A takings implication assessment is not required.
Under the criteria in Executive Order 13132, this rule has no 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. This rule clarifies the procedures for conducting a Secretarial election, which is a Federal election, for federally recognized Indian tribes.
This rule complies with the requirements of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity and written to minimize litigation; and is written in clear language and contains clear legal standards.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments,” Executive Order 13175 (59 FR 22951, November 6, 2000), and 512 DM 2, we have held several consultation sessions with representatives of federally recognized tribes throughout the development of this rule. Details on these consultation sessions and the comments received are described above.
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Section 81.55 of the revised Part 81 regulations requires the Department to collect information from tribal members who petition for a Secretarial election. Such petitioners are required to provide certain information in the petition, that tribal members who wish to vote in the election to register for the election, that votes be submitted via ballots. In addition, the section requires anyone wishing to challenge the results of an election to provide substantiating evidence for the challenge.
You can receive a copy of BIA's submission to OMB by contacting the person listed in the
Comments should address: (1) Whether the collection of information is necessary for the proper performance of the Program, including the practical utility of the information to the BIA; (2) the accuracy of the BIA's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment.
In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
Administrative practice and procedure, Elections, Indians—tribal government, Reporting and recordkeeping requirements.
For the reasons given in the preamble, under the authority of 5 U.S.C. 301 and 25 U.S.C. 2 and 9, the Department amends parts 81 and 82 of chapter I, title 25 of the Code of Federal Regulations, as follows:
: 25 U.S.C. 473a, 476, 477, as amended, and 503.
This part prescribes the Department's procedures for authorizing and conducting elections when Federal statute or the terms of a tribal governing document require the Secretary to conduct and approve an election to:
(a) Adopt, amend, or revoke tribal governing documents; or
(b) Adopt or amend charters.
(a) This part applies only to federally recognized tribes, in the circumstances shown in the following table.
(b) Secretarial elections will be conducted in accordance with the procedures in this part unless the amendment article of the tribe's governing document provides otherwise and is not contrary to Federal voting qualifications or substantive provisions, in which case the provisions of those documents shall rule, where applicable.
(c) If the amendment provisions of a tribal governing document have become outdated and the amendment cannot be effected under them, and the recognized tribal governing body requests a Secretarial election, the Bureau may authorize a Secretarial election under this part to amend the documents.
The information collection requirements contained in this part are approved by the Office of Management and Budget under the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and has been assigned OMB control number 1076-0183. This information is collected when, under Federal statute or the tribe's governing documents, the Secretarial election is authorized to adopt, amend, or revoke governing documents; or adopt or amend charters. This information is required to obtain or retain benefits. A Federal agency may not collect or sponsor an information collection without a valid OMB control number.
For purposes of this part:
A tribe that plans to adopt or amend a governing document or a spokesperson for a petitioner may, but is not required to, submit the proposed document with a request for informal review to the Local Bureau Official.
(a) During the informal review:
(1) Bureau personnel will help the tribal government or petitioner spokesperson in drafting governing documents, bylaws, charters, amendments and revocations, explain the Secretarial election process, and provide guidance on methods for voter education, such as informational meetings.
(2) The Local Bureau Official will review the proposed document and will offer technical assistance and comments to the tribe or petitioner spokesperson, including but not limited to guidance on whether any of the provisions of the proposed document or amendment may be contrary to applicable laws.
(b) The Bureau will provide technical assistance for a petition only upon request of the spokesperson. Bureau personnel will provide a courtesy copy to the tribe's governing body of all correspondence regarding technical assistance to the petitioners. The spokesperson will be responsible for obtaining the approval of the tribal members it represents on changes to the content of the petition.
To request a Secretarial election:
(a) The tribe or petitioner must submit:
(1) A duly adopted tribal resolution, tribal ordinance, other appropriate tribal document requesting the Secretary to call a Secretarial election, or, in the absence of an existing governing document or if authorized or required by the existing governing documents, a petition that has been verified by the Bureau as having the minimum number of required signatures of tribal members; and
(2) The exact document or amended language to be voted on; and
(b) The tribe must submit a list in an electronically sortable format with names, last known addresses, dates of birth, and voting district, if any, of all tribal members who:
(1) Will be 18 years of age or older within 120 days of the date of the request; and
(2) Meet any other voting restrictions imposed by the tribe's governing document for voting in the Secretarial election.
After receiving a tribal request for election under § 81.6, the Bureau will provide the following technical assistance.
(a) The Local Bureau Official will review and make a recommendation on the proposed document or amendment, prepare background information on the tribe, and submit to the Authorizing Official.
(b) The Authorizing Official must do all of the following:
(1) Review the proposed document or amendment and offer technical assistance to the tribe (and spokesperson, for petitions);
(2) Consult with the Office of the Solicitor to determine whether any of the provisions of the proposed document or amendment may be contrary to applicable law; and
(3) Notify the tribe (and spokesperson, for petitions) in writing of the results of the review.
(i) If the review finds that a provision is or may be contrary to applicable law, the notification must explain how the provision may be contrary to applicable law and list changes to the document that would be required to allow the Authorizing Official to approve the document as not contrary to applicable law.
(ii) The notification must be sent to the tribe (and spokesperson, for petitions) promptly but in no case less than 30 days before calling the election.
(iii) For IRA elections, the tribe may choose to proceed with the election without incorporating required changes, but the Authorizing Official may not approve election results ratifying provisions that are contrary to applicable law.
(iv) For OIWA elections, the Authorizing Official may not authorize a Secretarial election on any proposed document that contains provisions that may be contrary to applicable law.
If a conflict appears to exist between this part and a specific requirement of the Federal statute, this part must be interpreted to conform to the statute.
The Secretary will give deference to the tribe's reasonable interpretation of the amendment and adoption articles of the tribe's governing documents. The Secretary retains authority, however, to interpret tribal law when necessary to carry out the government-to-government relationship with the tribe or when a provision, result, or interpretation may be contrary to Federal law.
No. A Secretarial election is a Federal election. According to the 26th Amendment of the U.S. Constitution, adopted July 1, 1971, all individuals 18 years of age and older must be allowed to vote in Federal elections.
There shall be no electioneering within 50 feet of the entrance of a polling site.
If polling sites are required by the amendment or adoption article of the tribe's governing document, the Chair of the Secretarial Election Board will:
(a) Appoint interpreters;
(b) Ensure that audio or visual aids for the hearing or visually impaired are provided;
(c) Ensure that reasonable accommodations are made for others with impairments that would impede their ability to vote; and
(d) Allow the interpreter or Secretarial Election Board member to explain the election process and voting instructions. At the request of the voter, the interpreter or Board member may accompany the voter into the voting booth, but must not influence the voter in casting the ballot.
The Secretarial Election Board will, generally, avoid scheduling Secretarial elections at the same time as tribal elections to avoid confusion. If the Secretarial Election Board decides to schedule a Secretarial election at the same time as a tribal election, the Secretarial Election Board must clearly inform eligible voters of any differences between the tribal election and the Secretarial election and separate ballots must be used for each type of election.
When conflicting proposals to amend a single provision of a tribal governing document or charter provision are submitted, the proposal first received by the Local Bureau Official, if properly submitted as a complete tribal request, must be voted on before any consideration is given other proposals. Other proposals must be considered in order of their receipt if they are resubmitted following final agency action on the first submission. This procedure applies regardless of whether the proposal is a new or revised tribal governing document.
(a) A Secretarial election is a Federal election; therefore, Federal funding will be used to cover costs. The Bureau will pay for the costs, unless the tribe has received funding for this function through contracts or self-governance compacts entered into under the Indian Self-Determination and Education Assistance Act, as amended, 25 U.S.C. 450f,
(b) Once a tribe removes the requirement for Secretarial approval, all subsequent elections it holds to amend the governing document are tribal elections and the tribe is responsible for the costs of those elections.
A recognized tribal governing body may use tribal funds to compensate non-Federal personnel to respond to the needs of the tribal government in the conduct of the Secretarial election.
The tribe may withdraw the request for Secretarial election in the same manner in which the Secretarial election was requested. The petitioners may withdraw the request for Secretarial election by submitting a new petition, with signatures of at least a majority of the signers of the original petition, seeking withdrawal of the original petition. However, the request for a Secretarial election cannot be withdrawn after the established deadline for voter registration.
(a) Upon receiving a request for a Secretarial election, the Local Bureau Official will forward the request to the Authorizing Official with any appropriate background information.
(b) The Authorizing Official will issue a memorandum to the Local Bureau official. The memorandum will do all of the following:
(1) Direct the Local Bureau Official to call and conduct a Secretarial election by one of the following deadlines:
(i) If the tribal request is to amend an existing governing document, within 90 days from the date of receipt of the request;
(ii) If the tribal request is to adopt a new governing document (including an amendment to a governing document in the nature of an entire substitute) or to revoke an existing governing document, within 180 days after receiving the request.
(2) Include as an attachment the document or proposed language to be voted upon;
(3) Include as an attachment the Certificate of Results of Election with instructions to return it after the Secretarial election. The Certificate shall read as follows:
Under a Secretarial election authorized by (name and title of authorizing official) on (date), the attached [insert: Governing document and Bylaws, charter of incorporation, amendment or revocation] of the (official name of tribe) was submitted to the registered voters of the tribe and on (date) duly (insert: adopted, ratified, rejected or revoked) by a vote of (number) for and (number) against and (number) cast ballots found spoiled in an election in which at least 30 percent (or such “percentages” as may be required to amend according the governing document) of the (number) registered voters cast their ballot in accordance with (appropriate Federal statute).
(4) Advise that no changes or modifications can be made to any attached document, without the Authorizing Official's prior approval.
(c) The Local Bureau Official will appoint a Bureau employee to serve as the Chair of the Secretarial Election Board and notify the tribe of the need to appoint at least two tribal members, who are at least 18 years of age, to the Secretarial Election Board. If the election is to be held as the result of a petition, then the Local Bureau Official will appoint a Bureau employee to serve as the Chair of the Secretarial Election Board and notify the tribe and the spokesperson for the petitioners of the need to appoint one tribal member each, who is at least 18 years of age, to the Secretarial Election Board. If the tribe or spokesperson for the petitioners declines or fails for any reason to make the appointment(s) by close of business on the 10th day after the date the notice letter is issued, the Chair of the Secretarial Election Board must appoint the representative(s), who are tribal members, if available, on the 11th day after the notice letter is issued.
Within 5 days after the Secretarial Election Board representatives are appointed, the Chair must hold the first meeting of the Secretarial Election Board to set the election date.
The Secretarial Election Board conducts the Secretarial election. Except as provided in § 81.43, decisions of the Secretarial Election Board are not subject to administrative appeal.
The Secretarial Election Board:
(a) Uses the list provided in the tribal request as the basis for the Eligible Voters List;
(b) Assembles and mails the Secretarial Election Notice Packet at least 30 days, but no more than 60 days, before the date of the Secretarial election to all persons on the Eligible Voters List;
(c) Confirms that registration forms were received on or before the deadline date;
(d) Retains the completed registration form as part of the record;
(e) Develops the Registered Voters List for posting;
(f) Where the election is conducted entirely by mailout ballot, notes on a copy of the Registered Voters List, by the individual's name, the date the ballot was mailed, and the date the ballot was returned; and
(g) Where polling sites are required and an individual requests an absentee ballot, notes on a copy of the Registered Voters List, by the individual's name, the date his or her absentee ballot request was received, the date the absentee ballot was mailed, and the date the absentee ballot was returned.
The Secretarial Election Notice Packet includes the following:
(a) Mailout Balloting:
(1) The Secretarial election notice;
(2) A registration form with instructions for returning the completed form by mail;
(3) An addressed envelope with which to return the completed registration form;
(4) If the entire document is to be amended or adopted, a copy of the proposed document including proposed language; and if applicable, a copy of the current document proposed for change; and
(5) A side-by-side comparison showing the current language to be changed, if applicable, in the left column and the proposed language in the right column.
(b) Polling Sites (if required by the amendment or adoption articles of the tribe's governing document):
(1) The Secretarial election notice;
(2) A registration form with instructions for returning the completed form by mail;
(3) An absentee ballot request form with instructions for returning the completed form by mail;
(4) An addressed envelope with which to return the completed registration form and absentee ballot request form;
(5) If the entire document is to be amended or adopted, a copy of the proposed document including proposed language; and if applicable, a copy of the current document proposed for change; and
(6) A side-by-side comparison showing the current language to be changed, if applicable, in the left column and the proposed language in the right column.
The Secretarial election notice must contain all of the following items.
(a) The date of the Secretarial election;
(b) The date which registration forms must be received by the Secretarial Election Board;
(c) A description of the purpose of the Secretarial election;
(d) A description of the statutory and tribal authority under which the Secretarial election is held;
(e) The deadline for filing challenges to the Registered Voters List;
(f) If polling sites are to be used, the date an absentee ballot request must be received by the Secretarial Election Board;
(g) A statement as to whether the Secretarial election is being held entirely by mailout ballot or with polling sites, in accordance with the tribe's governing document's amendment or adoption articles; and
(h) The locations and hours of established polling sites, if any.
The Secretarial election notice will be posted at the local Bureau office, if any, the tribal headquarters, and other public places determined by the Secretarial Election Board.
We use the information you provide on the registration form to determine whether you will be registered for and vote in the Secretarial election. The
(a) Completing and returning this registration is necessary if you desire to vote in the forthcoming Secretarial election;
(b) This form, upon completion and return to the Secretarial Election Board, will be the basis for determining whether your name will be placed upon the list of registered voters, and therefore may receive a ballot, and
(c) Completion and return of this form is voluntary, but failure to do so will prevent you from participating in the Secretarial election.
Yes. A Secretarial election is a Federal election and you must register for each Secretarial election.
You must submit your registration form to the Secretarial Election Board by U.S. mail.
The Registered Voters List is a list of eligible voters who have registered and are, therefore, entitled to vote in the Secretarial election. We use this list, after all challenges have been resolved, to determine whether voter participation in the Secretarial election satisfies the minimum requirements of the tribe's governing documents and Federal law.
The Registered Voters List must contain the names, in alphabetical order, of all registered voters and their voting districts, if voting districts are required by the tribe's governing document's amendment or adoption articles.
A copy of the Registered Voters List, showing only names and, where applicable, voting districts, must be posted at the local Bureau office, the tribal headquarters, and other public places the Secretarial Election Board designates.
(a) It is possible to challenge in writing the inclusion or exclusion or omission of a name on the Registered Voters List. The written challenge must be received by the Secretarial Election Board by the established deadline and include the following:
(1) The name of the affected individual or individuals;
(2) The reason why the individual's name should be added to or removed from the Registered Voters List; and
(3) Supporting documentation.
(b) If an individual failed to submit his or her registration form on time, that individual is precluded from challenging the omission of his/her name from the list.
All challenges must be resolved by close of business on the third day after the date of the challenge deadline established by the Secretarial Election Board and all determinations of the Secretarial Election Board are final for the purpose of determining who can vote in the Secretarial election.
(a) If the challenge was received after the deadline, the Secretarial Election Board must deny the challenge.
(b) If the challenge was received on or before the deadline, the Secretarial Election Board will decide the challenge by reviewing the documentation submitted. Thereafter, the Secretarial Election Board will include the name of any individual whose name should appear or remove the name of any individual who should not appear on the Registered Voters List.
(a) The Secretarial Election Board must prepare the official ballot so that it is easy for the voters to indicate a choice between no more than two alternatives (
(b) The following information must appear on the face of the mailout or absentee ballot:
(Facsimile Signature)
(c) When polling places are required by the tribe's governing document, the official ballot may be a paper ballot, voting machine ballot, or other type of ballot supporting the secret ballot process.
(a) Unless the amendment or adoption articles of the tribe's governing document require the use of polling sites in the election, the election must be conducted entirely by mailout ballots, and the Secretarial Election Board must send mailout ballots to registered voters promptly upon completion of the Registered Voters List.
(b) When the amendment or adoption articles of the tribe's governing document require the use of polling sites in the election, the Secretarial Election Board must send an absentee ballot to every registered voter who requests an absentee ballot, as long as the request is received before the Secretarial election date.
(c) All mailout or absentee ballot deliveries must be via U.S. Mail or by hand-delivery to the location identified in the Secretarial election notice before the date of the Secretarial election.
The mailout or absentee ballot packet contains:
(a) A cover letter summarizing what the ballot packet contains and, if there is more than one ballot included in the packet, enumerating the ballots and advising voters to give consideration to each enumerated ballot;
(b) A mailout or absentee ballot (or, if several amendments are to be voted on, multiple ballots, each printed on a different colored sheet if possible);
(c) Instructions for voting by mailout or absentee ballot including the date the ballot must be received by the Secretarial Election Board;
(d) An inner envelope with the words “Mailout Ballot” or “Absentee Ballot” printed on the outside, as applicable;
(e) A copy of the proposed governing document or amendment, if the full text is not printed on the mailout ballot and if the entire document is to be amended or adopted; and
(f) A pre-addressed outer envelope with the following certification printed on the back:
I, (print name of voter), hereby certify I am a registered voter of the (name of Tribe); I will be 18 years of age or older on the day of the Secretarial election; I am entitled to vote in the Secretarial election to be held on (date of Secretarial election). I further certify that I marked the enclosed mailout ballot in secret.
Signed:
If polling sites are required by the tribe's governing document's amendment or adoption articles, the Secretarial Election Board will establish procedures for how polling site ballots will be presented and collected, including, but not limited to, paper
The ballots will be counted under the supervision of the Secretarial Election Board, after the deadline established for receiving all ballots or closing of the polls, if polling sites are required by the tribe's governing document's amendment or adoption articles.
The Secretarial Election Board must count the number of valid ballots and cast spoiled ballots to determine total voter participation. The Board must take the total voter participation and divide it by the total number of Registered Voters. This total is used to determine whether the percentage of Registered Voters who cast votes meets the requirements of the tribe's governing documents or Federal statute that requires at least 30 percent voter participation. For example:
(a) If there were 200 registered voters of which 75 cast valid ballots and 5 cast spoiled ballots for a total of 80 cast ballots (75 + 5 = 80). The percentage of voter participation would be determined as follows:
Total number of votes cast (80) divided by the total number registered voters (200) or 80 ÷ 200 = 0.40 or 40 percent voter participation.
(b) This example meets the Federal statutory requirement of at least 30 percent voter participation.
If a ballot is spoiled before it is cast, this section applies.
(a) The registered voter may return the spoiled ballot to the Secretarial Election Board by mail or in person at the local Bureau office with a request for a new ballot before the election date. The new ballot will be promptly provided to the registered voter. The Secretarial Election Board must retain all “spoiled uncast ballots” for recordkeeping purposes.
(b) If polling sites are required, the voter may return the spoiled ballot to the polling site worker and request a new ballot. Upon receiving the new ballot, the voter must then complete the voting process. The polling site worker will mark the spoiled ballot “spoiled uncast” and record that the ballot has been spoiled. The polling site worker must retain all “spoiled uncast ballots” for recordkeeping purposes.
The Chair and all members of the Secretarial Election Board must be present during the counting of the ballots and must sign the Certificate of Results of Election.
The Secretarial Election Board must post a copy of the Certificate of Results of Election at the local Bureau office, the tribal headquarters, and at other public places listed in the election notice. The Board also has the discretion to publicize the results using additional methods, such as by posting on the tribe's Web site.
Any person who was listed on the Eligible Voters List and who submitted a voter registration form may challenge the results of the Secretarial election. The written challenge, with substantiating evidence, must be received by the Chairman of the Secretarial Election Board within 5 days after the Certificate of Results of Election is posted, not including the day the Certificate of Results of Election is posted. Challenges received after the deadline for filing challenges will not be considered. If the third day falls on a weekend or Federal holiday, the challenge must be received by close of business on the next business day.
The Chair of the Secretarial Election Board must transmit all documents pertaining to the Secretarial election to the Authorizing Official, including:
(a) The original text of the material voted on;
(b) The Eligible Voters List;
(c) The Registered Voters List;
(d) The Secretarial Election Notice Packet;
(e) Any challenges to the Secretarial election results; and
(f) The Certificate of Results of Election.
The Authorizing Official will review election results and challenges, if any, as follows:
(a) If a challenge alleges errors that would invalidate the election, and the Authorizing Official sustains any such challenges, the Authorizing Official must authorize a recount or call for a new Secretarial election. The Authorizing Official will take the appropriate steps necessary to provide for a recount or a new Secretarial election.
(b) If all challenges are denied or dismissed, the Authorizing Official will review and make a decision based on the following:
(1) The percentage of total votes cast was at least 30 percent, or other percentages required according to the tribe's governing document's amendment or adoption articles.
(2) The voters rejected or accepted the proposed document or each proposed amendment; and
(3) The proposed documents or amendments are not contrary to Federal law.
(c) The Authorizing Official must notify, in writing, the recognized governing body of the tribe, and the Director of the Bureau, of the following:
(1) The decisions on challenges;
(2) The outcome of the voting;
(3) Whether the proposed governing document, proposed amendment(s) or charter or charter amendments are approved or ratified, or if the proposed documents contain language that is contrary to Federal law and, therefore, disapproved; and
(4) That the decision is a final agency action.
(d) The Authorizing Official must:
(1) Forward the original text of the document, Original Certificate of Approval or Disapproval, and the Certificate of Results of Election to the tribe and a copy of all documents to the Bureau Director; and
(2) Retain, as required by the Records Disposition Schedule, a copy of all document(s) relevant to the Secretarial election.
(e) If the certified election results show that the tribal members ratified the documents, but the Authorizing Official does not approve or disapprove the governing document or amendment by close of business on the 45th day after the date of the Secretarial election, the Secretary's approval of the documents must be considered as given.
(f) The Authorizing Official's decision to approve or disapprove the governing document or amendment is a final agency action.
If the proposed document does not contain any provision that may be contrary to applicable law, the Bureau will take the following steps.
(a) The Authorizing Official will issue a memorandum to the Local Bureau Official:
(1) Approving the proposed document or proposed amendments;
(2) Authorizing the Local Bureau Official to call and conduct a Secretarial election, within 90 days from the date of receiving the tribal request;
(3) Attaching the document or proposed language to be voted upon;
(4) Attaching the Certificate of Results of Election, with instructions to return it at the conclusion of the Secretarial election. The Certificate shall read as follows:
Under a Secretarial election authorized by (name and title of authorizing official) on (date), the attached [insert: Governing document and Bylaws, charter of incorporation, amendment or revocation] of the (official name of tribe) was submitted to the registered voters of the tribe and on (date) duly (insert: adopted, ratified, rejected or revoked) by a vote of (number) for and (number) against and (number) cast ballots found spoiled in an election in which at least 30 percent (or such “percentages” as may be required to amend according the governing document) of the (number) registered voters cast their ballot in accordance with (appropriate Federal statute).
(by the Chair of the Secretarial Election Board and Board Members)
(5) Advising that no changes or modifications can be made to any of the attached documents, without prior approval from the Authorizing Official.
(b) The Local Bureau Official will appoint the Chair of the Secretarial Election Board and notify the tribe of the need to appoint at least two tribal members to the Secretarial Election Board. If the election is to be held as the result of a petition, then the Local Bureau Official will appoint a Bureau employee to serve as the Chair of the Secretarial Election Board and notify the tribe and the spokesperson for the petitioners of the need to appoint one tribal member each, who is at least 18 years of age, to the Secretarial Election Board. If the tribe or spokesperson declines or fails for any reason to make the appointment(s) by close of business on the 10th day after the date the notice letter is issued, the Chair of the Secretarial Election Board must appoint the representative(s), who are tribal members, if available, on the 11th day after the notice letter is issued.
After the Chair of the Election Board receives the authorization of the Election, the Chair of the Secretarial Election Board will conduct the election following the procedures set out in §§ 81.19 through § 81.45 of subpart D.
(a) If a challenge is sustained and has an effect on the outcome of the election, the Authorizing Official must authorize a recount or call for a new Secretarial election. The Authorizing Official will take the appropriate steps necessary to provide for a recount or a new Secretarial election.
(b) If the challenges are denied or dismissed, the Authorizing Official will review and determine whether:
(1) The percentage of total votes cast was at least 30 percent, or such percentages as may be required according to the tribe's governing document's amendment or adoption articles; and
(2) The voters ratified or rejected the proposed document, proposed amendment or revocation.
(c) The Authorizing Official must notify, in writing, the recognized governing body of the tribe, and the Director of the Bureau, of the following:
(1) The decisions on challenges;
(2) The outcome of the voting; and
(3) That the proposed document, proposed amendments or revocation becomes effective as of the date of the Secretarial election; and
(4) That the decision is a final agency action.
(d) The Authorizing Official must:
(1) Forward the original text of the document, Original Certificate of Approval, and the Certificate of Results of Election to the tribe and a copy of all documents to the Director of the Bureau; and
(2) Retain, as required by the Records Disposition Schedule, a copy of all document(s) relevant to the Secretarial election.
This subpart establishes requirements for formulating and submitting petitions to request the Secretary to call a Secretarial election as required by the governing documents or charters of incorporation of tribes issued under the Indian Reorganization Act (IRA), 25 U.S.C. 476 and 477, as amended, and the Oklahoma Indian Welfare Act (OIWA), 25 U.S.C. 503. This Subpart may also be used by a federally recognized tribe that is adopting a governing document, under Federal statute, for the first time.
Any tribe meeting the criteria in paragraphs (a) or (b) of this section must follow the requirements of this subpart.
(a) A tribe whose governing document or charter of incorporation provides for petitioning the Secretary to call a Secretarial election for any of the following purposes:
(1) Amending or revoking the governing document;
(2) Amending a charter of incorporation ratified under 25 U.S.C. 477 of the IRA before May 24, 1990 where the amendments section or article specifically requires it;
(3) Amending or ratifying a charter of incorporation under 25 U.S.C. 503 of the OIWA; or
(4) Taking any other action authorized by the governing document or charter of incorporation.
(b) A federally recognized tribe, without an existing governing document, adopting a governing document under Federal statute, for the first time.
Tribal members wishing to circulate a petition to adopt or amend the tribe's governing document may submit the proposed document to the Local Bureau Official for review and comment. The Local Bureau Official may help the petitioners in drafting governing documents, bylaws, charters, amendments and revocations. The Bureau may also explain the Secretarial election process.
A member of the tribe who is 18 years of age or older whose tribe's governing document or charter of incorporation permits tribal members to petition the Secretary to authorize a Secretarial election.
A member of the tribe who is 18 years of age or older may sign a petition. Where the tribe's governing document imposes additional requirements (other than age requirements) on who may petition, those requirements also apply.
The petitioners must designate a spokesperson to submit the petition and act on their behalf for the petitioning process.
(a) Each page of the petition must contain:
(1) A summary of the purpose of the petition, or proposed document, or proposed amendment language;
(2) Numbered lines for each individual to print their legal name, current mailing address, date, and signature, and;
(3) The following declaration at the bottom of each page to confirm the collector was present when each signature was collected:
“I,
(Signature of Collector)
(b) Each individual must print their legal name, current mailing address, date, and sign on a numbered line.
(c) Each collector must complete and sign the declaration on each page in front of a notary, who will sign and certify.
A petition can have as many pages as necessary to obtain the required signatures. However, each page must have the information shown in § 81.58 of this subpart.
(a) For a tribe whose governing document or charter of incorporation provides for petitioning the Secretary to call a Secretarial election:
(1) The spokesperson for the petitioners may ask the tribe or the Local Bureau Official how many signatures are required.
(2) The Local Bureau Official will:
(i) Contact the tribal governing body to obtain the current number of tribal members, 18 years of age or older, to determine the number of tribal members who must sign a petition as required by the tribe's governing document; and
(ii) Notify the petitioners' spokesperson how many signatures are required and that the number is valid for 180 days from the date of this notification.
(b) For a federally recognized tribe adopting a governing document under Federal statute for the first time, the petition must have signatures of 50 percent of the tribal members who are 18 years of age or older.
Tribal members have one year from the date of the first signature to gather the required signatures.
The spokesperson must submit the original petition to the Local Bureau Official.
(a) The Local Bureau Official must, on the date of receipt, date stamp the petition to record the Official Filing Date, and make four copies of the petition for use as follows:
(1) Posting at the local Bureau office for 30 days from the Official Filing Date, including a statement of the proposal contained in the petition and instructions for filing a challenge;
(2) Use in determining sufficiency of petition; and
(3) For viewing at the Local Bureau Office by a member of the tribe, 18 years of age or older.
(b) The Local Bureau Official must, within one week of the Official Filing Date:
(1) Provide the spokesperson written acknowledgment of receiving the petition, which contains the Official Filing Date, the exact number of signatures submitted on the petition, and the statement “The petitioners may not add or withdraw any signatures from the petition after the Official Filing Date”; and
(2) Provide a copy of the written acknowledgment of receipt and petition to the recognized tribal governing body.
(c) The Local Bureau Official must:
(1) Consult with the Office of the Solicitor to determine if any of the provisions that are the subject of the petition are or may be contrary to applicable law; and
(2) If it appears that a provision is or may be contrary to applicable law, notify the petitioner's spokesperson in writing (with a copy to the recognized tribal governing body) how the provision may be contrary to applicable law.
(d) The Local Bureau Official must promptly notify the petitioners (with a copy to the recognized tribal governing body) of any problems identified under paragraph (c) of this section at least 30 days before calling the election.
Any member of the tribe, 18 years of age or older, may challenge in writing the signatures appearing on the petition. The challenge must be submitted to the Local Bureau Official, within 30 days of the Official Filing Date of the petition and must:
(a) Identify the page and line on which a signature appears; and
(b) Provide documentation supporting a challenge that at least one of the following is true:
(1) A signature was forged;
(2) An individual was ineligible to sign the petition;
(3) A petition page is inconsistent or improperly formatted; or
(4) A petition page contains an incomplete or un-notarized declaration statement.
(a) The Local Bureau Official must:
(1) Confirm the petition has the required number of signatures;
(2) Indicate any signatures appearing more than once and include only one in the count;
(3) Make recommendations regarding any challenge to the validity of signatures based upon the documentation provided by the challenger; and
(4) Verify the petitioning procedures complied with this Subpart.
(5) Transmit within 45 calendar days of the Official Filing Date the original petition, challenges, and recommendations to the Authorizing Official.
(b) The Authorizing Official must within 60 calendar days of the Official Filing Date:
(1) Determine whether the petition complies with the requirements of this Subpart;
(2) Inform the spokesperson for the petitioners and the recognized tribal governing body, in writing, whether the petition is valid, the basis for that determination, and a statement that the decision of the Authorizing Official is a final agency action.
(i) If the petition is determined valid for the purposes of calling a Secretarial election, it will be deemed a “tribal request” for the purposes of this part, and the Authorizing Official will instruct the Local Bureau Official to call and conduct the Secretarial election in accordance with §§ 81.19 through 81.45 of subpart D.
(ii) If the petition is determined invalid, the Authorizing Official will notify the spokesperson for the petitioners, with a courtesy copy to the tribe's governing body, that the petition was not valid and a Secretarial election will not be called.
No. A petition may not be used for more than one Secretarial election. Each request for a Secretarial election requires a new petition.
United States Parole Commission, Justice.
Final rule.
The U.S. Parole Commission is adopting a final rule to apply the parole guidelines of the former District of Columbia Board of Parole that were in effect until March 4, 1985 in its parole decisionmaking for D.C. Code prisoners who committed their offenses while those guidelines were in effect.
Effective October 19, 2015.
Office of the General Counsel, U.S. Parole Commission, 90 K Street NE., Washington, DC 20530, telephone (202) 346-7030. Questions about this publication are welcome, but inquiries concerning individual cases cannot be answered over the telephone.
Also in 2000, the U.S. Supreme Court decided the case of
Since the
Further, the recommendation by several commenters that the Commission modify the rule to require it to inform the parole applicant of steps he needs to take to be deemed suitable for parole release was not required by the 1972 rules. Parole Commission hearing examiners may continue, as is current practice, to make such recommendations where appropriate, but are not compelled to do so in every case.
These regulations 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. Under Executive Order 13132, these rules do not have sufficient federalism implications requiring a Federalism Assessment.
The rules will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b).
The rules will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.
These rules are not “major rules” as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 Subtitle E—Congressional Review Act, now codified at 5 U.S.C. 804(2). The rules will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on the ability of United States-based companies to compete with foreign-based companies. Moreover, these are rules of agency practice or procedure that do not substantially affect the rights or obligations of non-agency parties, and do not come within the meaning of the term “rule” as used in Section 804(3)(C), now codified at 5 U.S.C. 804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
Administrative practice and procedure, Prisoners, Probation and Parole.
Accordingly, the U.S. Parole Commission amends 28 CFR part 2 as follows:
18 U.S.C. 4203(a)(1) and 4204(a)(6).
(p)(1) A prisoner who is eligible under the criteria of paragraph (p)(2) of this section may receive a parole determination using the parole guidelines in the 1972 regulations of the former District of Columbia Board of Parole (9 DCMR section 105.1) (hereinafter “the 1972 Board guidelines”).
(2) A prisoner must satisfy the following criteria to obtain a determination using the 1972 Board guidelines:
(i) The prisoner committed the offense of conviction on or before March 3, 1985;
(ii) The prisoner is not incarcerated as a parole violator; and
(iii) The prisoner has not been granted a parole effective date.
(3) The granting of a parole is neither a constitutional or statutory requirement, and release to parole supervision by Commission action is not mandatory.
(4) Factors considered: Among others, the U.S. Parole Commission takes into account some of the following factors in making its determination as to parole:
(i) The offense, noting the nature of the violation, mitigating or aggravating circumstances and the activities and adjustment of the offender following arrest if on bond or in the community under any pre-sentence type arrangement.
(ii) Prior history of criminality, noting the nature and pattern of any prior offenses as they may relate to the current circumstances.
(iii) Personal and social history of the offender, including such factors as his family situation, educational development, socialization, marital history, employment history, use of leisure time and prior military experience, if any.
(iv) Physical and emotional health and/or problems which may have played a role in the individual's socialization process, and efforts made to overcome any such problems.
(v) Institutional experience, including information as to the offender's overall general adjustment, his ability to handle interpersonal relationships, his behavior responses, his planning for himself,
(vi) Community resources available to assist the offender with regard to his needs and problems, which will supplement treatment and training programs begun in the institution, and be available to assist the offender to further serve in his efforts to reintegrate himself back into the community and within his family unit as a productive useful individual.
(5) A prisoner who committed the offense of conviction on or before March 3, 1985 who is not incarcerated as a parole violator and is serving a maximum sentence of five years or more who was denied parole at their original hearing ordinarily will receive a rehearing one year after a hearing conducted by the U.S. Parole Commission. In all cases of rehearings, the U.S. Parole Commission may establish a rehearing date at any time it feels such would be proper, regardless of the length of sentence involved. No hearing may be set for more than five years from the date of the previous hearing.
(6) If a prisoner has been previously granted a presumptive parole date under the Commission's guidelines in paragraphs (b) through (m) of this section, the presumptive date will not be rescinded unless the Commission would rescind the date for one of the accepted bases for such action,
(7) Prisoners who have previously been considered for parole under the 1987 guidelines of the former DC Board of Parole will continue to receive consideration under those guidelines.
(8) Decisions resulting from hearings under this section may not be appealed to the U.S. Parole Commission.
Office of Surface Mining Reclamation and Enforcement (OSMRE), Interior.
Final rule; approval of amendment.
We are approving an amendment to the Kentucky regulatory program (the Kentucky program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). As a result of OSMRE's review of the Kentucky program, OSMRE has determined that two previously required amendments, 30 CFR 917.16(e) and (h), are to be removed because Kentucky's program, with regard to Ownership and Control (O&C), and Transfer, Assignment or Sale of Permit Rights (TAS) is now consistent with SMCRA and the corresponding Federal regulations.
Robert Evans, Field Office Director, Telephone: (859) 260-3904. Email:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act . . .; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See U.S.C. 1253 (a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Kentucky program in the May 18, 1982,
OSMRE first promulgated final rules to address O&C and TAS over 20 years ago. Subsequently, OSMRE published changes to O&C and TAS, some in response to Federal Court mandates, culminating in the issuance of Federal rulemaking on December 3, 2007. 72 FR 68000. Specifically, the Federal rulemaking amended definitions pertaining to ownership, control, and transfer, assignment, or sale of permit rights and OSMRE regulatory provisions governing: Permit eligibility determinations; improvidently issued permits; ownership or control challenges; post-permit issuance actions and requirements; transfer, assignment, or sale of permit rights; application and permit information; and alternative enforcement.
Prior to the implementation of the December 2007 Federal rulemaking, OSMRE issued required amendments to the Kentucky Department of Natural Resources (KYDNR) in 1991 and 1993. These previously required amendments are codified at 30 CFR 917.16(e), as noticed in the September 23, 1991,
Following the instructions given by the Director, OSMRE's Lexington Field Office (LFO) conducted an evaluation of the Kentucky program to determine if amendments to the Kentucky program were required. Consistent with 30 CFR 732.17, LFO reviewed the Kentucky program, comparing it to the current Federal regulations using a standard no less stringent than SMCRA and no less
During the review, LFO solicited assistance from the OSMRE Applicant Violator System Office (AVSO). The AVSO is a division of OSMRE that assists regulatory authorities in making permit eligibility determinations using the Applicant Violator System (AVS) as required under section 510(c) of SMCRA for applicants of coal mining permits.
Subsequent to programmatic review by LFO and independent review by the AVSO, LFO requested removal of the two previously required amendments because LFO and AVSO independently verified and determined that Kentucky has proper statutory authority to implement the requisite O&C and TAS standards in a manner that is no less stringent than provisions in SMCRA found at 30 U.S.C. 1260(c), and no less effective than the Federal regulations at 30 CFR 778.14. Further, LFO and AVSO determined Kentucky is appropriately implementing the Federal O&C and TAS rules as required by the Federal rulemaking on December 3, 2007.
OSMRE announced the proposed decision, which would eliminate the previously required amendments, in the September 19, 2012,
Following are the findings made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. OSMRE is approving the removal of two previously required amendments to the Kentucky program, found at 30 CFR 917.16(e) and (h), due to the following: (a) After significant review, OSMRE has determined that Kentucky has statutory authority to implement 405 Kentucky Administrative Regulations (KAR) 8:010 section 13, when coupled with the statutes and regulations referenced therein, in a manner no less stringent than SMCRA and no less effective than the Federal regulation counterpart found at 30 CFR part 774; and (b) Kentucky is implementing 405 KAR 8:010 section 13, in accordance with the Federal O&C regulations codified into law on December 3, 2007, as indicated in the
OSMRE approves the removal of the required amendment found at 30 CFR 917.16 (e) regarding the Kentucky O&C regulations. KYDNR implements the Kentucky program in a manner that is no less stringent than SMCRA and no less effective than the regulations found at 30 CFR part 774. Previously, via a
30 CFR 917.16(e). By March 23, 1992, Kentucky shall amend its rules at 405 KAR 8:010 § 13(4) to include violations of Federal regulatory programs and other State regulatory programs, not just violations of KRS chapter 350 and regulations adopted thereto.
At the time the 1991 required amendment was authored, OSMRE took the position that Kentucky was solely and independently responsible for the collection of violation data in Kentucky and other states for the purpose of determining if it was necessary to deny a Kentucky permit applicant a surface mining permit, based on outstanding violations of SMCRA or certain other environmental protection statutes and rules. OSMRE's former position did not account for the Memorandum of Understanding (MOU) between OSMRE and the Commonwealth of Kentucky that provides, among other things:
OSMRE shall develop, maintain, and provide for the use of Kentucky the AVS, which contains or will contain ownership and control data and violator information to assist Kentucky in meeting the mandated requirements under KRS 350.085(6).
In addition to the required obligations of OSMRE, Kentucky, prior to making any decisions regarding permitting, agreed to perform an independent review of an applicant's history, then “query AVS to determine whether the applicant is linked to a violator through ownership and control.” MOU, page 5, paragraph IV(C)(5).
While evaluating the impact of the 2007 Federal rulemaking on O&C and TAS, OSMRE concluded that KYDNR is appropriately relying on AVS data when determining to block or approve a permit in accordance with applicable provisions of SMCRA, Federal regulations and the MOU, consistent with 30 CFR parts 773 and 774. Further, OSMRE's AVSO independently verified that KYDNR utilizes the nationwide AVS on a daily basis to determine if Kentucky applicants are permit eligible prior to issuing any permit, evidencing conformity with the MOU. Additionally, as part of the AVS review, it was determined that Kentucky denies any permit application associated with any unabated Federal violations or violations issued by other states. Moreover, OSMRE concludes Kentucky is supplying sufficient information to AVS, and KYDNR is implementing Kentucky statutes and regulations consistent with SMCRA and the Federal regulations.
OSMRE determines the current O&C program in Kentucky is implemented in a manner that ensures that no permit will be issued to an applicant who owns or controls operations with a demonstrated pattern of willful violations of the Kentucky program, SMCRA, or any other surface coal mining regulatory program, that are of such nature and duration that may result in irreparable damage to the environment as to indicate an intent not to comply with the Kentucky program, SMCRA, or with any other surface coal mining regulatory program.
Based upon the plain language contained in both SMCRA and corresponding Kentucky statutes there is an additional basis for removing the required amendment. Both the Federal and Kentucky provisions refer to violations that cause irreparable damage to the environment. These types of violations, by definition, can never be abated, because “irreparable” means “[i]ncapable of being rectified, repaired, or corrected.” Webster's II New Riverside University Dictionary 645 (1984). Violators of SMCRA, or of other state programs' provisions, whose violations cause irreparable damage would remain forever blocked on the AVS. Thus, they would be permanently blocked in Kentucky, regardless of the state in which the violations occurred, since Kentucky faithfully follows AVS
For these reasons, OSMRE concludes the Kentucky program is no less stringent than SMCRA and no less effective than the promulgated regulations thereunder, at 30 CFR 774.11(c). Specifically, Kentucky Revised Statute Annotated §§ 350.085 and 350.060(3)(h), and 405 KY Admin. Regs. 8:010 section 13(4), incorporating the corresponding statute by reference, in conjunction with the discussion of the meaning of “irreparable,” above, clarify that KYDNR must consider all violations of SMCRA and any law, rule, or regulation in effect for the protection of air or water resources when issuing permits. Thus, OSMRE is removing the required amendment at 30 CFR 917.16(e).
In addition, OSMRE approves the removal of the required amendment found at 30 CFR 917.16(h) regarding the Kentucky operator change revision regulations. Previously, OSMRE reviewed a program amendment submitted by Kentucky which proposed to “established a new category of permit revision for operator changes that do not constitute a transfer, assignment or sale of permit rights.” OSMRE disapproved that submission as detailed in the January 12, 1993,
30 CFR 917.16(h) By June 14, 1993, Kentucky shall amend its rules at 405 KAR 8:010 § 20(6)(h) by including OSM[RE] as one of the parties to be notified of the cabinet's decision to approve or deny the application for an operator change and to require that the regulatory authority be notified when the approved change is consummated.
Historically, OSMRE interpreted the Federal rules as meaning the changes in the operator of the mine—as the term is defined at 30 CFR 701.5—must be processed as a TAS, consistent with 30 CFR part 774. Following OSMRE's interpretation of the holding in
For these reasons, OSMRE concludes that 405 KY Admin. Regs. 8:010 section 22 renders the Kentucky program no less stringent than SMCRA and no less effective than the promulgated regulations there under. Thus, OSMRE is removing the required amendment at 30 CFR 917.16(h).
We asked for public comments on the amendment via the
Pursuant to 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, OSMRE is required to request comments on an amendment from various Federal agencies with an actual or potential interest or special expertise related to the Kentucky program. This amendment removes two previously required amendments relative to O&C and TAS. Therefore, no request for comments is required for this amendment as no Federal agency, other than OSMRE has an actual or potential interest or special expertise in the amendment. Moreover, in reviewing Kentucky statutes and regulations relevant to these issues in a December 3, 2007, Federal rulemaking, OSMRE sought appropriate agency review. OSMRE sought the review of the AVSO, the office within OSMRE having specialized knowledge related to the issues within this amendment.
Pursuant to 30 CFR 732.17(h)(4), OSMRE is required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. As detailed within this final rule, this amendment deals with O&C regulations; therefore, no SHPO or ACHP may be affected by these changes and their comment was not required.
Pursuant to 30 CFR 732.17(h)(11)(ii), we are required to obtain written concurrence from the EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
Based upon the above finding, we approve the removal of two previously required amendments found at 30 CFR 917.16(e) and (h).
To implement this decision, we are amending the Federal regulations, at 30 CFR part 917, that codify decisions concerning the Kentucky program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
The Department of Interior has conducted the reviews required by section 3 of Executive Order 12988, and has determined that, to the extent allowable by law, this rule meets the applicable standards of Subsections (a) and (b). However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSMRE. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731 and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments regarding the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
On May 18, 2001, the President issued Executive Order 13211 requiring agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866, and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1992(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
For the reasons set forth in the preamble, 30 CFR part 917 is amended as follows:
30 U.S.C. 1201
Office of Surface Mining Reclamation and Enforcement, Interior.
Final rule; approval of amendment and addition of a required regulatory program amendment.
We are approving, with one additional requirement, an amendment to the Ohio regulatory program (the Ohio program) under the Surface
Mr. Ben Owens, Chief, Pittsburgh Field Division, Office of Surface Mining Reclamation and Enforcement, 4605 Morse Road, Rm. 102, Columbus, Ohio 43230; Telephone: (614) 416-2238; email:
Section 503(a) of the SMCRA permits a state to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act . . . ; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.”
Following the approval of the December 3, 2007, Federal rule, “Ownership and Control; Permit and Application Information; Transfer, Assignment, or Sale of Permit Rights; Final Rule,”
We announced receipt of the proposed amendment in the August 3, 2012,
We did not hold a public hearing or meeting because no one requested one. The public comment period ended on September 4, 2012. One comment was posted in the Federal Docket Management System in response to the proposal. However, it was later determined that this comment was erroneously posted and was not related to the proposed amendment. Therefore, no comments were received.
We are approving the amendment request under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. There are a few changes that are not addressed in the Findings because they involve minor clarifications and non-substantive corrections. The following outlines the approved amendment to the OAC:
The definition of “knowing” or “knowingly” has been added. This definition is now substantively identical to and therefore no less effective than, its Federal counterpart definition at 30 CFR 701.5, because it substitutes the word “person”, which is used in the Federal definition, for the word “individual.” Additionally, the approved amendment revises the definition in other sections of the OAC. Ohio added the definition of “[t]ransfer, assignment, or sale of permit rights” to the definition section. Ohio's definition of this term describes any change of a permittee, including any fundamental legal changes in the structure or nature of the permittee or a name change. The Ohio definition is substantively identical to, and therefore no less effective than, its Federal counterpart definition at 30 CFR 701.5.
The definition of “violation” has been added for the purposes of the following OAC sections:
• Permit applications; requirements for legal, financial, compliance and related information;
• Review, public participation, and approval or disapproval of permit applications and permit terms and conditions; and
• Improvidently issued permits.
Violation is defined as any of the following:
• Written notification from a governmental agency identifying a failure to comply with applicable Federal or state law or regulations relative to environmental air or water protection;
• Noncompliance identified by the Chief of the Division of Mineral Resources Management, OSMRE, or a comparable authority, pursuant to the Federal or state regulatory program. Notice of this noncompliance may be given via a notice of violation, cessation order, final order, bill or demand letter relative to a delinquent civil penalty; a bill or demand letter relative to delinquent reclamation fees or a
The Ohio definition is substantively identical to, and therefore no less effective than, the Federal counterpart definition at 30 CFR 701.5.
The definition of “violation notice” has been revised to apply to the following OAC sections:
• Permit applications; requirements for legal, financial, compliance and related information;
• Review, public participation, and approval or disapproval of permit applications and permit terms and conditions;
• Improvidently issued permits; and
• A violation notice is now defined as a written notification from a regulatory authority or other governmental entity of a violation, as defined in this section. This change reflects the language used to define this term in 30 CFR 701.5.
The Ohio definition is substantively identical to, and therefore, no less effective than, the Federal counterpart definition at 30 CFR 701.5.
Section (A)(8) has been revised to require any permittee, within thirty days of the issuance of a cessation order, to provide accurate and current identification of interest information as defined in the Permit applications; requirements for legal, financial compliance and related information sections of the OAC. This additional language is identical to the requirement in OAC 1501:13-5-01(G)(5), which is already part of Ohio's approved program. Therefore, we are approving it. Formatting changes were made throughout section 13-14-02 to reflect changes in numbering.
Revisions were made to remove the definition of “knowingly” from this section. Consequently, formatting changes were required to account for the elimination of this definition. In this same amendment, Ohio added a nearly identical definition of “Knowing or knowingly” to OAC 1501:13-1-02. Therefore, the definition proposed for deletion is no longer needed; the deletion is hereby approved.
Grammar and formatting changes are present that do not alter the meaning or intent of the OAC as previously structured. Multiple changes have been made to incorporate all inclusive gender references. In addition, sections (B)(2) and (3) have been revised to require submission of addresses for all owners of record, holders of record of any leasehold interests, and any purchasers of record of the property to be mined. Previously this requirement did not require the submission of addresses. The revision expands the requirements for providing addresses in order to encompass all aspects of interest. These changes render the Ohio provisions no less effective than the Federal counterpart regulation at 30 CFR 778.13(a) and they are, therefore, approved.
As discussed further below, at section (J), this section is further clarified to require submission of data when a departure or change of an individual named in a permit application occurs.
Section (B)(5)(d) is revised by deleting the requirement that, for each permit owned or controlled by an owner or controller of the applicant within a five year period preceding the submission of the application, the application must contain the dates of issuance of any Federal or state permits and Mine Safety and Health Administration (MSHA) identification numbers. Dates of issuance are not required to be submitted pursuant to the Federal regulations at 30 CFR 778.12(c). Therefore, we are approving this deletion.
Section (C)(1) requires violation history relative to an operator to be provided in the permit application. Previously, the applicant was the only individual required to submit this information. This addition renders the Ohio provision no less effective than the counterpart at 30 CFR 778.14(a), and it is, therefore, approved.
Section (C)(2) requires the applicant to provide the date of suspension or revocation of a permit, or forfeiture of a bond. The requirement to provide the date of issuance of any permit that was subsequently suspended or revoked, or for which a bond was forfeited, is proposed to be deleted. Section (C)(3) also adds a provision requiring all applications to include a listing of any of the applicant's, operator's, or owner's and controller's unabated cessation orders or notices of violation, or uncorrected air or water quality violations.
Furthermore, Section (C)(4) requires a certification by the Federal or state regulatory authority that issued the notice of violation or cessation order to confirm that the violation is being abated or corrected. It also adds a requirement to provide the identification numbers of any violation notice or cessation order. This provision does not interfere with the requirement in (C)(4)(f), which is being revised to clarify that the application shall contain information for all violations and cessation orders having an expired abatement period, and describe the action taken to abate or correct the violation or cessation order. These changes to Sections (C)(2) through (C)(4) are no less effective than their respective counterparts contained in the Federal regulations at 30 CFR 778.14(b) and (c), and they are, therefore, approved.
However, Section (C)(3) remains narrower in scope than its Federal counterpart at 30 CFR 778.14(c) because it only requires the listing of unabated cessation orders and uncorrected air and water quality violation notices received; whereas, the Federal regulation requires listing of all unabated violation notices. The term “violation notice,” as defined in both the Federal regulations at 30 CFR 701.5, and in the Ohio program at OAC 1501: 13-1-02, the latter of which is part of this submission, includes more than just cessation orders and air and water quality violations. For example, it includes unpaid reclamation fees or civil penalties. As such, we are requiring Ohio to amend its program to require permit applications to list all unabated “violation notices,” as that term is defined in the Ohio approved program.
Under Section (J), the addition of a “Central file for identity information” allows applicants or permittees to provide requisite information in a streamlined method whereby all “identification of interests” information required in permit applications, revisions and renewals and transfers, assignments and sales of permit rights provisions, is submitted to the Chief of the Division of Mineral Resources Management, and is applicable to all permits held by that applicant or permittee. These items will be maintained in a central file for reference in the event of any subsequent submission. To participate, applicants or permitees must submit a sworn or affirmed oath, in writing, verifying all the information is accurate and complete, including all ownership and permittee interests. The central file will be updated and maintained for reference, eliminating the need to provide identity information in each application. The file will be available for public review upon request.
In the event a permittee or applicant has an established central file, certification shall be made that the file is accurate and complete when submitting permit applications, revisions, renewals, transfers, assignments, and sales of permits rights
The corresponding regulations refer to the central repository for identification information and incorporate by reference provisions of the statute. While proposed Section (J) of the OAC has no precise Federal counterpart, we find that it provides an alternative means for submitting, updating and maintaining “identification of interests” information that is consistent with the Federal regulations at 30 CFR 778.8(c), which allows OSMRE to create a central file for this type of information; we are, therefore, approving it.
The amendment revises Section (I) by adding a provision requiring notification within 30 days of any addition, departure or change required to be shown in the permit application. This must be done in writing and must include any person's name, address, telephone number, title, and relationship to the applicant, including percentage of ownership, interest and position within the organizational structure. Information detailing commencement and departure are also required. These changes render Section (I) no less effective than the Federal regulations at 30 CFR 774.12(c).
Pursuant to the approved amendment, should the Chief of the Division of Mineral Resources Management have reason to believe a coal mining and reclamation permit was improvidently issued, he or she shall make a preliminary finding indicating improvident issuance if:
• A determination based on the permit eligibility, in effect at the time of issuance, indicates either:
(a) The permit should not have been issued due to an unabated or uncorrected violation or,
(b) The permit was issued based on the presumption that a violation was in the process of being corrected;
• The violation remains unabated or uncorrected and the time frame for appeal is expired or a payment schedule, as approved, is not being complied with as ordered; and
• Ownership or control existing at the time of issuance demonstrates a link to the violation and remains in effect, or if the link was severed, the permittee continues to be responsible for the violation.
Upon a preliminary finding of an improvidently issued permit, the Chief may serve the permittee with written notice establishing a prima facie case indicating the permit was improvidently issued. Within thirty days, the permittee may request an informal review and may provide evidence to the contrary.
Section (C) augments references to abatement of a violation by adding the term “correction.” It also deletes references to penalties and fees, because these terms are now included within the definition of the term “violation.”
Section (D) allows the Chief of the Division of Mineral Resources Management to suspend a permit as opposed to the previous regulation granting only the right to rescind the permit. Moreover, the approved amendment provides that, upon a determination indicating the permit was improvidently issued, the Chief shall serve the permittee notice of the proposed suspension and rescission, which includes the reasons for the finding and stipulates within sixty days the permit will be suspended, or in one hundred and twenty days, the permit will be rescinded, unless the permittee submits rebuttal proof and the Chief finds:
• The previous determination was incorrect;
• The violation has been abated or corrected;
• The violation is under appeal and an initial judicial decision affirming the violation is absent;
• The violation is subject to an approved abatement, correction plan or payment schedule;
• Ownership or control is severed and no continuing responsibility is apportioned to the permittee; or
• An appeal as to ownership or control exists and an initial judicial decision affirming such ownership or control is absent.
The approved amendment eliminates previous provisions allowing automatic suspension within ninety days upon proper showing. In the event the permit is deemed suspended or rescinded, the Chief shall immediately order the cessation of coal mining and reclamation operations and post written notice of the cessation order at the Division of Mineral Resources Management District Office closest to the permit area.
We find that these changes render the Ohio provisions governing improvidently issued permits no less effective than their Federal counterpart provisions found in 30 CFR 773.21, 773.22, and 773.23. Therefore, the changes are approved.
The Web site provided in the approved amendment is updated to ensure public access to Federal regulation references. The revised Web site is
We asked for public comments on the amendment (Administrative Record Numbers OH-2190-05 and 06), but did not receive any.
Pursuant to 30 CFR 732.17(h)(11)(i) and § 503(b) of SMCRA, OSMRE is to request comments on an amendment when any Federal agency has an actual or potential interest or special expertise related to the program amendment. On April 12, 2012, OSMRE sent requests for comment to the following agencies (in addition to the agencies specifically outlined below): The U.S. Department of Agriculture, Natural Resource Conservation Service; the U.S. Department of Interior, Fish and Wildlife Service; and the U.S. Department of Labor, MSHA. On May 4, 2012, the MSHA responded to the request for comments (Administrative Record Number OH-2190-04), stating that they concur with the amendment and have no further comments to offer. None of the other agencies responded to the requests for comment.
On April 12, 2012, OSMRE notified and requested comment from EPA regarding the amendment (Administrative Record Number OH-2190-02). Although OSMRE requested comments on the amendment, EPA did not respond to our request. Pursuant to 30 CFR 732.17(h)(11)(ii) we are required
Pursuant to 30 CFR 732.17(h)(4), OSMRE is required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. Consistent with this regulation, on April 12, 2012, OSMRE requested comments (Administrative Record Number OH-2190-02), on Ohio's amendment from the Ohio Historic Preservation Office and the Advisory Council on Historic Preservation, but neither responded to the request.
Based on the above findings, OSMRE approves the amendment Ohio sent us on March 30, 2012. In addition, we are requiring Ohio to amend its program to require permit applications to list all unabated “violation notices,” as that term is defined in the Ohio approved program.
To implement this decision, we are amending the Federal regulations at 30 CFR part 935, which codify decisions concerning the Ohio program. OSMRE finds that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that Ohio's program demonstrates it has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process.
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
The Department of the Interior has conducted the reviews required by Section 3 of Executive Order 12988, and has determined that, to the extent allowable by law, this rule meets the applicable standards of Subsections (a) and (b). However, these standards are not applicable to the actual language of state regulatory programs and program amendments because each program is drafted and promulgated by a specific state, not by OSMRE. Under Sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed state regulatory programs and program amendments submitted by the states must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731 and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and state governments regarding the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that state laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and Section 503(a)(7) requires that state programs contain rules and regulations “consistent with” regulations issued by the Secretary.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
On May 18, 2001, the President issued Executive Order 13211 requiring agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866 (Regulatory Planning and Review), and (2) likely to have significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866, and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because Section 702(d) of SMCRA (30 U.S.C. 1992(d)) provides that agency decisions on proposed state regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, geographic regions, or Federal, state, or local government agencies; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact
This rule will not impose an unfunded mandate on state, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the facts that the State submittal, which is the subject of this rule is based upon Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining. Underground mining. Required regulatory program amendments.
For the reasons set out in the preamble, 30 CFR part 935, is amended as set forth below:
30 U.S.C. 1201
(a) By December 18, 2015, Ohio shall amend its program, or provide a written description of an amendment together with a timetable for enactment which is consistent with established administrative or legislative procedures in the State, to require permit applications to list all unabated “violation notices”, as that term is defined in the Ohio approved program.
(b) [Reserved]
This document was received for publication by the Office of Federal Register on October 14, 2015.
Office of Surface Mining Reclamation and Enforcement (OSMRE), Interior.
Final rule; approval of amendment.
We are approving an amendment to the Pennsylvania regulatory program (the “Pennsylvania program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment that we are approving involves a statutory amendment to Pennsylvania's Coal Refuse Disposal Control Act (CRDCA). The amendment adds another category of sites considered as preferred when selecting a location for the placement of coal refuse.
Ben Owens, Chief, Pittsburgh Field Division, Office of Surface Mining Reclamation and Enforcement, Telephone: (412) 937-2827, email:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its state program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act . . .; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” 30 U.S.C. 1253(a)(1) and (7).
You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval in the July 30, 1982,
Pennsylvania provided various justifications for the inclusion of such provisions: It limits sites eligible to receive coal refuse placement by prohibiting placement in certain environmentally sensitive areas; it encourages disposal of coal refuse on
Pennsylvania had defined a preferred site as one of the following: (1) A watershed polluted by acid mine drainage; (2) a watershed containing an unreclaimed surface mine, but which has no mining discharge; (3) a watershed containing an unreclaimed surface mine with discharges that could be improved by the proposed coal refuse disposal operation; (4) unreclaimed coal refuse piles that could be improved by the proposed coal refuse disposal operation; and (5) other unreclaimed areas previously affected by mining activities. Section 4.1(a), 52 P.S. 30.54a(a) of CRDCA.
With respect to preferred sites, Pennsylvania's regulations provide that Pennsylvania will not approve (via the site selection process,
By letter dated February 24, 2010 (Administrative Record No. PA 837.111), Pennsylvania sent us an amendment to its program under SMCRA (30 U.S.C. 1201
With this amendment, Pennsylvania proposed a revision adding another category of sites to the list of “preferred sites” currently found in section 4.1(a). The proposed addition (subsection 4.1(a)(6)) would designate an “area adjacent to or an expansion of an existing coal refuse disposal site” as a preferred site.
In its submission, Pennsylvania indicates this amendment should be approved as consistent with Federal requirements for the following reasons:
(1)
(2)
(3)
(4)
(5)
For the reasons set forth below, we are approving the amendment request under SMCRA at 30 U.S.C. 1253, and the Federal regulations at 30 CFR 732.15 and 732.17.
Pennsylvania Technical Guidance Document No. 563-2113-660, Coal Refuse Site Selection, further explains how chapter 90.202(e)(7) will be administered by PADEP. In the Background section on page 1, the guidance states that the “District Mining Office will encourage meetings involving the applicant, the Pa. Fish and Boat Commission, the Pa. Game Commission and the U.S. Fish and Wildlife Service at key points in the review process, including: Prior to the site selection process to discuss the procedures to be used; before defining the search area; before selecting the final site; and before developing a mitigation plan. The District Mining Office will also solicit input from the Pennsylvania office of the U.S. Fish and Wildlife Service, the U.S. EPA and the U.S. Army Corps of Engineers during the site selection process and the permit application review process.”
In addition, Pennsylvania asserts that compliance with any applicable species-specific protective measures developed by the USFWS and Pennsylvania's mining regulatory program to minimize anticipated incidental take of threatened or endangered species remains unaffected by this program amendment.
There are no direct Federal counterparts to the new proposed site selection criterion. However, by providing this criterion, and by prohibiting, generally, coal refuse disposal operations on non-preferred sites, Pennsylvania imposes a more stringent environmental control of coal refuse disposal operations than is provided in either SMCRA or its implementing regulations. Moreover, Pennsylvania will continue to apply the Pennsylvania counterparts to the Federal permitting and performance standard requirements. Accordingly, for the reasons set forth above, OSMRE finds that Pennsylvania's amendment is not inconsistent with the provisions of SMCRA. We are, therefore, approving this amendment.
In the June 21, 2010,
PennFuture's comments address Pennsylvania's assertion in the program amendment that compliance with any applicable species-specific protective measures developed by the USFWS and Pennsylvania's mining regulatory program to minimize anticipated incidental take of threatened or endangered species remains unaffected by this program amendment. PennFuture's comments also address Pennsylvania's assertion in the program amendment that all coal refuse disposal permit applicants must implement the measures required to implement the 1996 Biological Opinion.
PennFuture refutes these assertions by referencing Pennsylvania's actions regarding pre-permit timbering activities undertaken by the mining company, which the USFWS found to be beyond the scope of the 1996 Biological Opinion because it occurred without a SMCRA permit. PennFuture asserts that the reason PADEP's implementation of the 1996 Biological Opinion falls short is its interpretation that timbering is not a mining activity, even if it occurs on a site for which a mining permit application is pending. Under PADEP's interpretation of the State program, timbering is outside the scope of regulated mining activities that must be authorized in advance by the issuance of a SMCRA-based mining permit. PennFuture further comments that continuing to give effect to this interpretation would mean that the 1996 Biological Opinion would be inapplicable to the activity (timbering) presenting the greatest threat to a threatened and endangered species, the Indiana Bat, which the Biological Opinion is intended to protect.
In its February 24, 2010, program amendment submission, PADEP asserts that the proposed amendment to the CRDCA does not alter provisions that implement the 1996 Biological Opinion, nor does it affect compliance with any species-specific protective measures developed by the USFWS or Pennsylvania's mining regulatory program. There are no aspects of the site selection criteria, including this amendment to the criteria that adds to the list of sites deemed “preferred,” that will allow operations to occur outside the scope of the approved program that was the basis for the USFWS's decision to issue the 1996 Biological Opinion. The mere selection of a site is not the equivalent of an authorization to begin coal refuse disposal, or any other pre-disposal activities that are likely to adversely affect Federally listed threatened or endangered species, or result in the “take” of Federally listed or endangered species. As such, this amendment will not alter the conditions that lead to the implementation of the 1996 Biological Opinion.
As noted in the findings above, Pennsylvania's coal refuse disposal site selection process is in addition to SMCRA's and the State program's permitting requirements, and, as such, provides an additional layer of environmental regulation of coal refuse disposal operations to that set forth in SMCRA and its implementing regulations. The site selection process is more stringent than SMCRA and the Federal regulations because it encourages coal refuse disposal on already disturbed sites, and also encourages construction of fewer, though larger, coal refuse disposal sites. Neither SMCRA nor the Federal regulations contains these environmentally sound incentives. While our approval of this amendment may render the site selection process less restrictive than before, that process remains more stringent than the environmental control and regulation of surface coal mining and reclamation operations contained in SMCRA.
PennFuture states that under section 7 of the Endangered Species Act, OSMRE must engage in formal consultation with the USFWS over any action that “may affect” the Indiana bat or any other Federally listed threatened or endangered species, unless, after informal consultation, OSMRE determines, and the USFWS concurs, that the proposed action is not likely to adversely affect any listed species or critical habitat. PennFuture states that in light of the consultation between the two agencies that occurred when the amendment to the CRDCA was submitted to OSMRE as a program amendment, and the fact that the proposed program amendment currently under review could significantly add to the number of preferred sites, OSMRE must initiate consultation with USFWS over the proposed amendment.
Our approval of this amendment is subject to the same restrictions contained in our April 22, 1998, approval of an amendment to the CRDCA. Namely, with respect to preferred sites, the State will not approve (via the site selection process) or permit (via requirements in chapters 86 or 90) a site that is known or likely to contain Federally listed threatened or endangered species unless the State demonstrates, and the USFWS concurs, that the proposed activity is not likely to adversely affect Federally listed threatened or endangered species or result in the “take” of Federally listed threatened or endangered species in violation of section 9 of the Endangered Species Act.
Under Federal regulations at 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Pennsylvania program (Administrative Record No. PA 837.111). The Mine Safety and Health Administration (MSHA), District 1, in a letter dated March 31, 2010, (Administrative Record No. PA 837.116), responded that it does not have any comments or concerns with this request.
Under Federal regulations at 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
Based on the above findings, we approve the amendment Pennsylvania sent to us on February 24, 2010, pertaining to Pennsylvania's CRDCA. However, our approval is with the understanding that, with respect to preferred sites, the State will not approve a site (via the site selection process) or permit (via requirements in chapters 86 or 90) a site that is known or likely to contain Federally listed threatened or endangered species, unless the State concludes, and the USFWS concurs, that the proposed activity is not likely to adversely affect Federally listed threatened or endangered species or result in the “take” of Federally listed or endangered species in violation of section 9 of the Endangered Species Act.
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.
This rule is exempted from review by the Office of Management and Budget under Executive Order 12866 (Regulatory Planning and Review).
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSMRE. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal program involving Indian lands.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed state regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act. (42 U.S.C. 4332(2)(C)
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, geographic regions, or Federal, State, or local government agencies or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
For the reasons set out in the preamble, 30 CFR part 938 is amended as set forth below:
30 U.S.C. 1201
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Bret Gates, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4133.
The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the
In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 airplanes. This proposed AD was prompted by a report of wire chafing caused by a certain left wing spoiler actuator wire not having enough separation from a certain bracket when the spoiler is in the deployed position. This proposed AD would require measuring the separation between a certain electro-mechanical actuator wire of the left wing, spoiler 4, and the support bracket of the flap variable camber trim unit, and related investigative and corrective actions if necessary. We are proposing this AD to detect and correct wire chafing, which could result in an electrical short and potential fire in a flammable fluid leakage zone, and possible loss of several functions essential for safe flight.
We must receive comments on this proposed AD by December 3, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Sean J. Schauer, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6479; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
During an inspection in final assembly, insufficient clearance and wire chafing was found on an airplane between the wiring on the number 4 spoiler electric motor actuator (SEMA) and a bracket with the flaps fully extended and the spoiler fully drooped. This condition, if not corrected, could result in an electrical short and potential fire in a flammable fluid leakage zone, and possible loss of several functions essential for safe flight.
We reviewed Boeing Alert Service Bulletin B787-81205-SB270024-00, Issue 001, dated September 24, 2014. The service information describes procedures for accomplishing the following actions.
• Measuring the separation between the electro-mechanical actuator wire W801182 of the left wing, spoiler 4, and the support bracket of the flap variable camber trim unit.
• Related investigative actions and corrective actions such as doing a general visual inspection for chafing of the electro-mechanical actuator wire W801182 of the left wing, spoiler 4; adjusting the electro-mechanical actuator wire W801182 of the left wing, spoiler 4; and replacing the electro-mechanical actuator wire W801182 of the left wing, spoiler 4.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition
This proposed AD would require accomplishing the actions specified in the service information described previously. Refer to this service information for details on the procedures.
The phrase “related investigative actions” is used in this proposed AD. “Related investigative actions” are follow-on actions that (1) are related to the primary actions, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.
The phrase “corrective actions” is used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
We estimate that this proposed AD affects 12 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need this replacement:
According to the manufacturer, all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all the available costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by December 3, 2015.
None.
This AD applies to certain The Boeing Company Model 787-8 airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787-81205-SB270024-00, Issue 001, dated September 24, 2014.
Air Transport Association (ATA) of America Code 24, Electrical Power.
This AD was prompted by a report of wire chafing caused by a certain left wing spoiler actuator wire not having enough separation from a certain bracket when the spoiler is in the deployed position. We are issuing this AD to detect and correct wire chafing, which could result in an electrical short and potential fire in a flammable fluid leakage zone and possible loss of several functions essential for safe flight.
Comply with this AD within the compliance times specified, unless already done.
Within 24 months after the effective date of this AD: Measure the separation between the electro-mechanical actuator wire W801182 of the left wing, spoiler 4, and the support bracket of the flap variable camber trim unit, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB270024-00, Issue 001, dated September 24, 2014. Do all applicable related investigative and corrective actions before further flight.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (i)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Sean J. Schauer, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6479; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A320-214, -232, and -233 airplanes; and Airbus Model A321-211 and -231 airplanes. This proposed AD was prompted by reports of incorrect installation of jiffy joint connectors on cables connected to certain passenger service units (PSU), which could cause the passenger oxygen container to malfunction if the connector becomes disengaged during flight due to vibration. This proposed AD would require identification of the affected PSUs, and depending on findings, doing applicable related investigative and corrective actions. We are proposing this AD to prevent failure of the door of the passenger oxygen container to open in the event of airplane decompression, resulting in lack of oxygen supply and consequent injury to occupants.
We must receive comments on this proposed AD by December 3, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For Airbus service information identified in this proposed AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
For Airbus Operations GMBH service information identified in this proposed AD, contact Airbus Operations GMBH, Cabin Electronics, Lueneburger Schanze 30, 21614 Buxtehude, Germany; telephone +49 40 7437 46 32; telefax +49 40 7437 16 80; email
You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent
A quality issue was reported regarding incorrect installation of jiffy joint connectors on cables connected to certain Passenger Service Units (PSU), which may lead to a malfunction of the passenger oxygen container in case of connector disengagement during flight due to vibrations. All the aeroplanes that had a potentially affected PSU installed were identified. Most of those aeroplanes were corrected during a specific quality inspection on the final assembly line prior to customer delivery. Unfortunately, a limited number of aeroplanes were delivered before the quality inspection was implemented.
This condition, if not detected and corrected, could lead to failure of the door of the passenger oxygen container and open in case of aeroplane decompression, possibly resulting in lack of oxygen supply and consequent injury to occupants.
For the reasons described above, this [EASA] AD requires identification of the affected PSU and, depending on the findings, * * * related investigative and corrective actions.
Related investigative actions include a detailed inspection to determine if the jiffy joint connector works properly. Corrective actions include rework or replacement of the jiffy joint connectors. You may examine the MCAI in the AD docket on the Internet at
Airbus has issued the following service information.
• Airbus Service Bulletin A320-25-1B20, dated October 9, 2014. This service information describes procedures for inspecting for affected PSU part numbers and serial numbers, and depending on findings, doing applicable related investigative and corrective actions. Related investigative actions include a detailed inspection to determine if the jiffy joint connector works properly. Corrective actions include rework or replacement of the jiffy joint connectors.
• Airbus Operations GmbH Vendor Service Bulletin Z315H-25-004, dated September 26, 2014. This service information describes procedures for inspecting for the connection of the jiffy joint connectors, and depending on findings, doing rework or replacement of the jiffy joint connectors.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which procedures and tests in the service information are required for compliance with an AD. Differentiating these procedures and tests from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The procedures and tests identified as RC (required for compliance) in any service information have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.
As specified in a Note under the Accomplishment Instructions of Airbus Service Bulletin A320-25-1B20, dated October 9, 2014, procedures and tests that are identified as RC in any service information must be done to comply with the proposed AD. However, procedures and tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an alternative method of compliance (AMOC), provided the procedures and tests identified as RC can be done and the airplane can be put back in a serviceable condition. Any substitutions or changes to procedures or tests identified as RC will require approval of an AMOC.
We estimate that this proposed AD affects 7 airplanes of U.S. registry.
We also estimate that it would take about 5 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost $0 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $2,975, or $425 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by December 3, 2015.
None.
This AD applies to Airbus Model A320-214, -232, and -233 airplanes; and Airbus Model A321-211 and -231 airplanes, certificated in any category, having manufacturer serial numbers (MSNs) 5583, 5598, 5602, 5604, 5608, 5610, 5613 through 5622 inclusive, 5624 through 5627 inclusive, 5629 through 5632 inclusive, 5634 through 5636 inclusive, 5638, 5640 through 5644 inclusive, 5646 through 5649 inclusive, 5651 through 5653 inclusive, 5655, 5657 through 5661 inclusive, 5663, 5665, 5667, 5670, 5672, 5673, and 5675.
Air Transport Association (ATA) of America Code 25, Equipment/Furnishings.
This AD was prompted by reports of incorrect installation of jiffy joint connectors on cables connected to certain passenger service units (PSU), which could cause the passenger oxygen container to malfunction if the connector becomes disengaged during flight due to vibration. We are issuing this AD to prevent failure of the door of the passenger oxygen container to open in the event of airplane decompression, resulting in lack of oxygen supply and consequent injury to occupants.
Comply with this AD within the compliance times specified, unless already done.
Within 7,500 flight hours or 26 months after the effective date of this AD, whichever occurs first, do an inspection to identify the part number and serial number of each PSU and if an affected part number or serial number is found, do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-25-1B20, dated October 9, 2014. Do all applicable related investigative and corrective actions within 7,500 flight hours or 26 months after the effective date of this AD, whichever occurs first. An affected PSU part number or serial number is one listed in Appendix 1 of Airbus Operations GmbH Vendor Service Bulletin Z315H-25-004, dated September 26, 2014. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number and serial number of the PSU can be conclusively determined from that review.
Appendix 1 of Airbus Operations GmbH Vendor Service Bulletin Z315H-25-004, dated September 26, 2014, identifies Attachment 1 as the list of affected PSU part numbers and serial numbers. Also, the “List of Attachments” in Appendix 1, specifies Attachment 1 as Table 4, however “Attachment 1” and “Table 4” do not appear on any of the pages of the list of affected PSU part numbers and serial numbers, nor does a date. Furthermore, the pagination of the list of affected PSU part numbers and serial numbers is independent of the pagination of Airbus Operations GmbH Vendor Service Bulletin Z315H-25-004, dated September 26, 2014.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0256, dated November 26, 2014, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For Airbus service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Airbus Model A318; A319; A320; and A321 series airplanes. This proposed AD was prompted by reports of premature aging of certain passenger chemical oxygen generators that resulted in the generators failing to activate. This proposed AD would require an inspection to determine if certain passenger chemical oxygen generators are installed and replacement of affected passenger chemical oxygen generators. We are proposing this AD to prevent failure of the passenger chemical oxygen generator to activate and consequently not deliver oxygen during an emergency, possibly resulting in injury to the airplane occupants.
We must receive comments on this proposed AD by December 3, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For Airbus service information identified in this proposed AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email:
For B/E Aerospace service information identified in this proposed AD, contact B/E Aerospace Inc., 10800 Pflumm Road, Lenexa, KS 66215; telephone: 913-338-9800; fax: 913-469-8419; Internet
You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1405; fax: 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2015-0117, dated June 24, 2015; corrected August 7, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318; A319; A320; and A321 series airplanes. The MCAI states:
Reports have been received indicating premature ageing of certain chemical oxygen generators, Part Number (P/N) 117042-XX (XX representing any numerical value), manufactured by B/E Aerospace. Some operators reported that when they tried to activate generators, some older units failed to activate. Given the number of failed units reported, all generators manufactured in 1999, 2000 and 2001 were considered unreliable.
This condition, if not corrected, could lead to failure of the generator to activate and consequently not deliver oxygen during an emergency, possibly resulting in injury to aeroplane occupants.
To address this potential unsafe condition, Airbus issued Alert Operators Transmission (AOT) A35N006-14, making reference to B/E Aerospace Service Information Letter (SIL) D1019-01 (currently at Revision 1) and B/E Aerospace Service Bulletin (SB) 117042-35-001.
Consequently, EASA issued AD * * * (later revised) to require identification and replacement of the affected oxygen generators.
Since EASA AD 2014-0275R1 [
For the reason described above, this [EASA] AD retains the requirements of the EASA AD 2014-0275R1, which is superseded, expands the scope of the [EASA] AD to include chemical oxygen generators manufactured after 2001, and requires their removal from service before exceeding 10 years since date of manufacture.
You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Alert AOT A35N006-14, dated December 10, 2014, including Appendix 01.
B/E Aerospace Inc. has issued Service Bulletin 117042-35-001, dated December 10, 2014.
This service information describes procedures to replace certain passenger chemical oxygen generators. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 953 airplanes of U.S. registry.
We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $390 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $533,680, or $560 per product.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this proposed AD is 2120-0056. The paperwork cost associated with this proposed AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this proposed AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by December 3, 2015.
None.
This AD applies to the airplanes, certificated in any category, identified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD; all manufacturer serial numbers, except those that have embodied Airbus modification 33125 (gaseous system for all oxygen containers) in production.
(1) Airbus Model A318-111, -112, -121, and -122 airplanes.
(2) Airbus Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.
(3) Airbus Model A320-211, -212, -214, -231, -232, and -233 airplanes.
(4) Airbus Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.
Air Transport Association (ATA) of America Code 35, Oxygen.
This AD was prompted by reports of premature aging of certain passenger chemical oxygen generators that resulted in the generators failing to activate. We are issuing this AD to prevent failure of the passenger chemical oxygen generator to activate and consequently not deliver oxygen during an emergency, possibly resulting in injury to the airplane occupants.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, do a one-time inspection of passenger chemical oxygen generators, part numbers (P/N) 117042-02 (15 minutes (min)-2 masks), 117042-03 (15 min-3 masks), 117042-04 (15 min-4 masks), 117042-22 (22 min-2 masks), 117042-23 (22 min-3 masks), and 117042-24 (22 min-4 masks) to determine the date of manufacture as specified in Airbus Alert Operators Transmission (AOT) A35N006-14, dated December 10, 2014, including Appendix 01. Refer to figure 1 and figure 2 to paragraph (g) of this AD for the location of the date. A review of airplane maintenance records is acceptable for the inspection required by paragraph (g) of this AD, provided the date of manufacture can be conclusively determined by that review.
If, during any inspection required by paragraph (g) of this AD, any passenger chemical oxygen generator having a date of manufacture in 1999, 2000, or 2001 is found: At the applicable time specified in paragraph (h)(1), (h)(2), or (h)(3) of this AD, remove and replace the affected passenger chemical oxygen generator with a serviceable unit, in accordance with the Accomplishment Instructions of B/E Aerospace Service Bulletin 117042-35-001, dated December 10, 2014 (for 15 minute passenger chemical oxygen generators); and Airbus AOT A35N006-14, dated December 10, 2014, including Appendix 01 (for 22 minute passenger chemical oxygen generators).
(1) For passenger chemical oxygen generators that have a date of manufacture in 1999: Within 30 days after the effective date of this AD.
(2) For passenger chemical oxygen generators that have a date of manufacture in 2000: Within 6 months after the effective date of this AD.
(3) For passenger chemical oxygen generators that have a date of manufacture in 2001: Within 12 months after the effective date of this AD.
If, during any inspection required by paragraph (g) of this AD, any passenger chemical oxygen generator having a date specified in table 1 to paragraph (i) of this AD is found: At the applicable time specified in table 1 to paragraph (i) of this AD, remove and replace the affected passenger chemical oxygen generator with a serviceable unit, in accordance with the Accomplishment Instructions of B/E Aerospace Service Bulletin 117042-35-001, dated December 10, 2014 (for 15 minute passenger chemical oxygen generators) and Airbus AOT A35N006-14, dated December 10, 2014, including Appendix 01 (for 22 minute passenger chemical oxygen generators).
For the purpose of this AD, a serviceable unit is a passenger chemical oxygen generator having P/N 117042-XX with a manufacturing date not older than 10 years, or any other approved part number, provided that the generator has not exceeded the life limit established for that generator by the manufacturer.
At the applicable time specified in paragraph (k)(1) or (k)(2) of this AD, submit a report of the findings (both positive and negative) of the inspection required by paragraph (g) of this AD, in accordance with paragraph 7., “Reporting,” of Airbus AOT A35N006-14, dated December 10, 2014, including Appendix 01. The report must include the information specified in Appendix 1 of Airbus AOT A35N006-14, dated December 10, 2014.
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
As of the effective date of this AD, no person may install a passenger chemical oxygen generator, unless it is determined, prior to installation, that the oxygen generator is a serviceable unit as specified in paragraph (j) of this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive EASA AD 2015-0117, dated June 24, 2015; corrected August 7, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For Airbus service information identified in this proposed AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2014-17-51, for certain Bombardier, Inc. Model CL-600-2B16 airplanes. AD 2014-17-51 currently requires inspecting the inboard flap fasteners of the hinge-box forward fitting at Wing Station (WS) 76.50 and WS 127.25 to determine the orientation and condition of the fasteners, as applicable, and replacement or repetitive inspections of the fasteners if necessary. AD 2014-17-51 also provides for optional terminating action for the requirements of that AD. Since we issued AD 2014-17-51, we have determined that additional action is necessary. This proposed AD would also require accomplishment of the previously optional terminating action. We are proposing this AD to detect and correct incorrectly oriented or fractured fasteners, which could result in premature failure of the fasteners attaching the inboard flap hinge-box forward fitting; failure of the fasteners could lead to the detachment of the flap hinge box and the flap surface, and consequent loss of control of the airplane.
We must receive comments on this proposed AD by December 3, 2015.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email
You may examine the AD docket on the Internet at
Aziz Ahmed, Aerospace Engineer, Propulsion and Services Branch, ANE-173, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7329; fax 516-794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On October 13, 2014, we issued AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014). AD 2014-17-51 requires actions intended to address an unsafe condition on certain Bombardier, Inc. Model CL-600-2B16 airplanes.
The preamble to AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014), explains that we consider the requirements “interim action” and were considering further rulemaking. We now have determined that further rulemaking is indeed necessary, and this proposed AD follows from that determination.
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2014-27R1, dated August 29, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2B16 airplanes. The MCAI states:
There have been three in-service reports on 604 Variant aeroplanes of a fractured fastener head on the inboard flap hinge-box forward fitting at Wing Station (WS) 76.50, found during a routine maintenance inspection. Investigation revealed that the installation of these fasteners on the inboard flap hinge-box forward fittings at WS 76.50 and WS 127.25, on both wings, does not conform to the engineering drawings. Incorrect installation may result in premature failure of the fasteners attaching the inboard flap hinge-box forward fitting. Failure of the fasteners could lead to the detachment of the flap hinge box and consequently the detachment of the flap surface. The loss of a flap surface could adversely affect the continued safe operation of the aeroplane.
The original issue of [Canadian] AD CF-2013-39 [
After the issuance of [Canadian] AD CF-2013-39, there has been one reported incident on a 604 Variant aeroplane where four fasteners were found fractured on the same flap hinge-box forward fitting. The investigation determined that the fasteners were incorrectly installed.
The original issue of this [Canadian] AD was issued to reduce the initial and repetitive inspection intervals previously mandated in [Canadian] AD CF-2013-39, and to impose replacement of the incorrectly oriented fasteners within 24 months. The CL-600-1A11, -2A12 and -2B16 (601-3A/-3R Variant) aeroplanes are addressed through [Canadian] AD CF-2013-39R1.
Revision 1 of this [Canadian] AD is issued to clarify the requirements for the initial and repetitive inspections.
You may examine the MCAI in the AD docket on the Internet at
Bombardier has issued Alert Service Bulletins:
• A604-57-006, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013,
• A605-57-004, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013, and
The service information describes detailed visual inspection of each inboard flap fastener of the hinge-box forward fitting at WS 76.50 and WS 127.25, on both wings, and, if necessary, replacement of the fasteners. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We estimate that this proposed AD affects 285 airplanes of U.S. registry.
The actions required by AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014), and retained in this proposed AD take about 1 work-hour per product, at an average labor rate of $85 per work-hour. Required parts cost about $0 per product. Based on these figures, the estimated cost of the actions that are required by AD 2014-17-51 is $85 per product.
We also estimate that it would take about 58 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $753 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $1,619,655, or $5,683 per product.
In addition, we estimate that any necessary follow-on actions would take about 58 work-hours and require parts costing $753, for a cost of $5,683 per product. We have no way of determining the number of aircraft that might need this action.
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by December 3, 2015.
(1) This AD replaces AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014).
(2) This AD affects AD 2014-03-17, Amendment 39-17754 (79 FR 9389, February 19, 2014), only for the airplanes identified in paragraph (c) of this AD.
This AD applies to Bombardier, Inc. Model CL-600-2B16 airplanes, certificated in any category, serial numbers 5301 through 5665 inclusive, and 5701 through 5920 inclusive.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of fractured fastener heads on the inboard flap hinge-box forward fitting at Wing Station (WS) 76.50 due to incorrect installation. We are issuing this AD to detect and correct incorrectly oriented or fractured fasteners, which could result in premature failure of the fasteners attaching the inboard flap hinge-box forward fitting; failure of the fasteners could lead to the detachment of the flap hinge box and the flap surface, and consequent loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014), with new service information. For airplanes on which the actions required by AD 2014-03-17, Amendment 39-17754 (79 FR 9389, February 19, 2014), have not been done as of November 12, 2014 (the effective date of AD 2014-17-51): Within 10 flight cycles after November 12, 2014, or within 100 flight cycles after March 6, 2014 (the effective date of AD 2014-03-17, Amendment 39-17754 (79 FR 9389, February 19, 2014)), whichever occurs first, do a detailed visual inspection of each inboard flap fastener of the hinge-box forward fitting at WS 76.50 and WS 127.25, on both wings, to determine if the fasteners are correctly oriented and intact (non-fractured, with intact fastener head). Do the inspection in accordance with the Accomplishment Instructions of Bombardier Alert Service Bulletin A604-57-006, Revision 01, dated September 26, 2013, including Appendices 1 and 2, dated September 26, 2013, Revision 02, dated January 22, 2014, including Appendices 1 and 2, dated September 26, 2013, or Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013 (for serial numbers 5301 through 5665 inclusive); or Bombardier Alert Service Bulletin A605-57-004, Revision 01, dated September 26, 2013, including Appendices 1 and 2, dated September 26, 2013, Revision 02, dated January 22, 2014, including Appendices 1 and 2, dated September 26, 2013, or Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013 (for serial numbers 5701 through 5920 inclusive). As of the effective date of this AD, only use Bombardier Alert Service Bulletin A604-57-006, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013; or Bombardier Alert Service Bulletin A605-57-004, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013; as applicable; for the actions required by this paragraph.
(1) If all fasteners are found intact and correctly oriented, no further action is required by this AD.
(2) If any fastener is found fractured: Before further flight, remove and replace all forward and aft fasteners at WS 76.50 and WS 127.25, regardless of condition or orientation, on both wings, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (g) of this AD. As of the effective date of this AD, only use Bombardier Alert Service Bulletin A604-57-006, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013; or Bombardier Alert Service Bulletin A605-57-004, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013; as applicable; for the actions required by this paragraph. After replacement of all fasteners as required by this paragraph of this AD, no further action is required by this AD.
(3) If any incorrectly oriented but intact fastener is found, and no fractured fastener is found, repeat the inspection required by paragraph (g) of this AD thereafter at intervals not to exceed 10 flight cycles, until the requirements of paragraph (i)(1) or (k) of this AD have been done.
This paragraph restates the requirements of paragraph (h) of AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014), with new service information. For airplanes on which an inspection required by paragraph (g) or (j) of AD 2014-03-17, Amendment 39-17754 (79 FR 9389, February 19, 2014), has been done as of November 12, 2014 (the effective date of AD 2014-17-51), and on which any incorrectly oriented fastener, but no fractured fastener, was found: Except as provided by paragraph (i)(3) of this AD, do a detailed visual inspection of all inboard flap fasteners of the hinge-box forward fitting at WS 76.50 and WS 127.25, on both wings, to determine if the fasteners are intact (non-fractured, with intact fastener head). Inspect within 10 flight cycles after November 12, 2014, or within 100 flight cycles after the most recent inspection done as required by AD 2014-03-17, whichever occurs first. Inspect in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (g) of this AD. As of the effective date of this AD, only use Bombardier Alert Service Bulletin A604-57-006, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013; or Bombardier Alert Service Bulletin A605-57-004, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013; as applicable; for the actions required by this paragraph.
(1) If all fasteners are found intact, repeat the inspection thereafter at intervals not to exceed 10 flight cycles, until the requirements of paragraph (i)(1) or (k) of this AD have been done.
(2) If any fastener is found fractured: Before further flight, remove and replace all forward and aft fasteners at WS 76.50 and WS 127.25, regardless of condition or orientation, on both wings, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (g) of this AD. As of the effective date of this AD, only use Bombardier Alert Service Bulletin A604-57-006, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013; or Bombardier Alert Service Bulletin A605-57-004, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013; as applicable; for the actions required by this paragraph. After replacement of all fasteners as required by this paragraph, no further action is required by this AD.
This paragraph restates the terminating action specified in paragraph (i) of AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014), with new service information.
(1) Replacement of all forward and aft fasteners at WS 76.50 and WS 127.25, on both wings, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (g) of this AD, terminates the requirements of this AD. As of the effective date of this AD, only use Bombardier Alert Service Bulletin A604-57-006, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013; or Bombardier Alert Service Bulletin A605-57-004, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013; as applicable; for the actions specified in this paragraph.
(2) Accomplishment of the applicable requirements of this AD constitutes terminating action for the requirements of AD 2014-03-17, Amendment 39-17754 (79 FR 9389, February 19, 2014), for that airplane only.
(3) Replacement of all fractured and incorrectly oriented fasteners before November 12, 2014 (the effective date of AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014)), as provided by paragraph (i) or (k) of AD 2014-03-17, Amendment 39-17754 (79 FR 9389, February 19, 2014), is acceptable for compliance with the requirements of this AD.
This paragraph restates the requirements of paragraph (j) of AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014). Special flight permits to operate the airplane to a location where the airplane can be repaired in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) are not allowed.
For airplanes on which incorrectly oriented fasteners were found during any inspection required by paragraph (g), (g)(3), (h), or (h)(1) of this AD, but none were found to be fractured: Within 24 months after the effective date of this AD, remove and replace all forward and aft fasteners at WS 76.50 and WS 127.25, regardless of condition or orientation, on both wings, in accordance with the Accomplishment Instructions of Bombardier Alert Service Bulletin A604-57-006, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013 (for serial numbers 5301 through 5665 inclusive); or Bombardier Alert Service Bulletin A605-57-004, Revision 04, dated November 12, 2014, including Appendices 1 and 2, dated September 26, 2013 (for serial numbers 5701 through 5920 inclusive). Accomplishing the requirements of this paragraph terminates the requirements of this AD.
(1) This paragraph provides credit for actions required by paragraphs (g), (h), and (i)(1) of this AD, if those actions were performed before the effective date of this AD using the applicable service information identified in paragraphs (l)(1)(i) and (l)(1)(ii) of this AD, which are not incorporated by reference in this AD.
(i) Bombardier Alert Service Bulletin A604-57-006, Revision 03, dated August 19, 2014, including Appendices 1 and 2, dated September 26, 2013.
(ii) Bombardier Alert Service Bulletin A605-57-004, Revision 03, dated August 19, 2014, including Appendices 1 and 2, dated September 26, 2013.
(2) This paragraph provides credit for actions required by paragraph (k) of this AD, if those actions were done before the effective date of this AD using the applicable service information identified in paragraphs (l)(2)(i) through (l)(2)(iv) of this AD.
(i) Bombardier Alert Service Bulletin A604-57-006, Revision 01, dated September 26, 2013, including Appendices 1 and 2, dated September 26, 2013, which is incorporated by reference in AD 2014-03-17, Amendment 39-17754 (79 FR 9389, February 19, 2014).
(ii) Bombardier Alert Service Bulletin A604-57-006, Revision 02, dated January 22, 2014, including Appendices 1 and 2, dated September 26, 2013, which is incorporated by reference in AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014).
(iii) Bombardier Alert Service Bulletin A605-57-004, Revision 01, dated September 26, 2013, including Appendices 1 and 2, dated September 26, 2013, which is incorporated by reference in AD 2014-03-17, Amendment 39-17754 (79 FR 9389, February 19, 2014).
(iv) Bombardier Alert Service Bulletin A604-57-004, Revision 02, dated January 22, 2014, including Appendices 1 and 2, dated September 26, 2013, which is incorporated by reference in AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014).
The following provisions also apply to this AD:
(1)
(i) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.
(ii) AMOCs previously approved for AD 2014-17-51, Amendment 39-17999 (79 FR 64088, October 28, 2014), are acceptable for the corresponding requirements of this AD.
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Emergency Airworthiness Directive CF-2014-27R1, dated August 29, 2014, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Bombardier, Inc., 400 Côte Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514 855-7401; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede airworthiness directive (AD) 2010-23-02 for Eurocopter France (now Airbus Helicopters) Model SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters. AD 2010-23-02 currently requires amending the Limitations section of the Rotorcraft Flight Manual (RFM) to limit the never-exceed velocity (VNE) to 150 Knots Indicated Air Speed (KIAS) and to add a 1,500 ft/minute rate of descent (R/D) limitation beyond 140 KIAS. Since we issued AD 2010-23-02, a design change designated as modification (MOD) 0755B28 improved the dynamic behavior of the horizontal stabilizer such that AD actions are not required. This proposed AD would retain the requirements of AD 2010-23-01 and revise the applicability to exclude helicopters with MOD 0755B28. These proposed actions are intended to exclude certain helicopters from the applicability and restrict the VNE on other helicopters to prevent failure of the horizontal stabilizer and subsequent loss of control of the helicopter.
We must receive comments on this proposed AD by December 18, 2015.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
For service information identified in this proposed AD, contact Airbus Helicopters, Inc., 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
Robert Grant, Aviation Safety Engineer, Safety Management Group, FAA, 10101 Hillwood Pkwy., Fort Worth, Texas 76177; telephone (817) 222-5110; email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
On October 15, 2010, we issued AD 2010-23-02, Amendment 39-16491 (75 FR 68169, November 5, 2010) for Eurocopter France (now Airbus Helicopters) Model SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters. AD 2010-23-02 requires amending the Limitations section of the RFM to limit the VNE to 150 KIAS and to add a 1,500 ft/minute R/D limitation beyond 140 KIAS and installing one or more placards on the cockpit instrument panel in full view of the pilot and copilot. AD 2010-23-01 was prompted by failures of the horizontal stabilizers on then-recently delivered Model AS 365 N3 helicopters due to a vibration phenomenon that may arise during the descent flight phases at high speed regardless of the stabilizer installed. Those actions were intended to prevent failure of the horizontal stabilizer and subsequent loss of control of the helicopter.
Since we issued AD 2010-23-01 (75 FR 68169, November 5, 2010), Eurocopter France changed its name to Airbus Helicopters. EASA, which is the
These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of these same type designs.
We reviewed a Eurocopter Emergency Alert Service Bulletin (EASB) with three numbers (01.00.60, 01.00.16, and 01.28), Revision 1, dated December 2, 2008. EASB No. 01.00.60 applies to U.S. type-certificated Model SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters and also to military Model AS365F, Fs, Fi, and K helicopters that are not certificated in the United States. EASB 01.00.16 applies to military Model AS565AA, MA, MB, SA, SB, and UB helicopters that are not type certificated in the United States. EASB 01.28 applies to the Model SA-366G1 helicopter. The EASB specifies bonding one or more locally-produced labels to the instrument panel stating that the VNE is limited to 150 KIAS and the R/D must not exceed 1,500 ft/min beyond 140 KIAS. Eurocopter states in the EASB that it is working on an enhanced definition that will be proposed as soon as possible. EASA classified this EASB as mandatory and issued AD No. 2008-0204-E, dated December 4, 2008, and revised with Revision 1, dated May 21, 2014, to ensure the continued airworthiness of these helicopters.
We also reviewed Airbus Helicopters Service Bulletin (SB) No. AS365-55.00.06, Revision 0, dated November 14, 2014, which Airbus Helicopters identifies as MOD 0755B28. The SB specifies repairing the stabilizer for suppression of the flutter phenomenon.
This proposed AD would retain the requirements of AD 2010-23-02, Amendment 39-16491 (75 FR 68169, November 5, 2010) to amend the Limitations section of the RFM to limit the VNE to 150 KIAS and to add a 1,500 ft/minute R/D limitation for airspeeds beyond 140 KIAS and installing one or more placards on the cockpit instrument panel in full view of the pilot and copilot stating the limitations. This proposed AD would also revise the applicability to exclude those helicopters with MOD 0755B28 installed.
We estimate that this proposed AD would affect 33 helicopters of U.S. Registry.
We estimate that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per hour. We estimate about
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters, with a horizontal stabilizer, part number 365A13-3030-1901, -1902, -1903, -1904, -1905, -1906, -1908, -1909; 365A13-3036-00, -0001, -0002, -0003; or 365A13-3038-00, installed, except those with modification 0755B28 installed, certificated in any category.
This AD defines the unsafe condition as vibration during descent at high speed. This condition could result in failure of the horizontal stabilizer and subsequent loss of control of the helicopter.
This AD replaces AD 2010-23-02, Amendment 39-16491 (75 FR 68169, November 5, 2010).
We must receive comments by December 18, 2015.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Before further flight:
(1) Revise the airspeed operating limitation in the Limitations section of the Rotorcraft Flight Manual (RFM) by making pen and ink changes or by inserting a copy of this AD into the RFM stating: “The never-exceed speed (VNE) is limited to 150 knots indicated airspeed (KIAS)” and “The rate-of-descent (R/D) must not exceed 1,500 ft/min when the airspeed is beyond 140 KIAS.”
(2) Install one or more self-adhesive placards, with 6 millimeter red letters on white background, on the cockpit instrument panel in full view of the pilot and co-pilot to read as follows: “VNE LIMITED TO 150 KIAS” and “R/D MUST NOT EXCEED 1,500 ft/min when airspeed is beyond 140 KIAS”
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Robert Grant, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, Texas 76177; telephone (817) 222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
(1) Eurocopter Emergency Alert Service Bulletin (EASB) No. 01.00.60, 01.00.16, and 01.28, Revision 1, dated December 2, 2008, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Airbus Helicopters, Inc., 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775. You may review a copy of the service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, Texas 76177.
(2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2008-0204R1, dated May 21, 2014. You may view the EASA AD on the Internet at
Joint Aircraft Service Component (JASC) Code 5310: Horizontal Stabilizer Structure.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model DHC-8-400, -401, and -402 airplanes. This proposed AD was prompted by reports of chafing damage due to insufficient clearance on the main landing gear (MLG) stabilizer brace, the nacelle A-frame structure, and the adjacent electrical wiring harnesses. An insufficient fillet radius may also exist on certain airplanes. This proposed AD would require, depending on airplane configuration, an inspection of the nacelle A-frame structure for insufficient fillet radius; an inspection for cracking of affected structure, and rework or repair if necessary, and rework of the nacelle A-frame structure; repetitive inspections of the nacelle A-frame structure and the MLG stabilizer brace for insufficient clearance and damage, and repair if necessary, and rework of the nacelle A-frame structure, which would terminate the repetitive inspections; installation of new stop brackets and a shim on each MLG stabilizer brace assembly; and rework of the electrical wiring harnesses in the nacelle area. We are proposing this AD to detect and correct chafing damage and subsequent premature cracking and fracture of the nacelle A-frame structure, which could result in failure of the MLG stabilizer brace and loss of the MLG down-lock indication, which could adversely affect the safe landing of the airplane.
We must receive comments on this proposed AD by December 3, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
You may examine the AD docket on the Internet at
Aziz Ahmed, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7329; fax 516-794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2014-45, dated December 23, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on certain Bombardier, Inc. Model DHC-8-400, -401, and -402 airplanes. The MCAI states:
The aeroplane manufacturer has discovered that an insufficient fillet radius may exist on the flange of the nacelle A-frame structure on certain aeroplanes. There have also been several in-service reports of chafing damage on the main landing gear (MLG) stabilizer brace, the nacelle A-frame structure and its adjacent electrical wiring harnesses due to insufficient clearance.
An insufficient fillet radius and chafing damage on the nacelle A-frame structure and MLG stabilizer brace could lead to premature cracking. Fracture of the nacelle A-frame structure or failure of the MLG stabilizer brace could adversely affect the safe landing of the aeroplane. The damage to the electrical wiring harnesses could result in the loss of the MLG downlock indication.
This [Canadian] AD mandates the inspection and rework of the nacelle A-frame structure, and the rework of the forward MLG stabilizer brace assembly and the electrical harnesses in the nacelle area adjacent to the A-frame structure.
Required actions include, depending on airplane configuration, the following actions:
• A detailed inspection of the nacelle A-frame structure for insufficient fillet radius, an eddy current or fluorescent dye penetrant inspection for cracking of affected structure, and rework or repair if necessary.
• Rework of the left-hand (LH) side and right-hand (RH) side nacelle A-frame structure, including doing a measurement of the clearance between the fasteners/A-frame structure and MLG stabilizer brace assembly and making sure no fouling condition exists, and repair if necessary.
• Repetitive detailed inspections of the nacelle A-frame structure and the MLG stabilizer brace for insufficient clearance and damage, and repair if necessary.
• Rework of the nacelle A-frame structure, including a measurement of the clearance between the A-frame structure and MLG stabilizer brace assembly and a fluorescent dye penetrant inspection or high frequency eddy current inspection for cracking and repair if necessary, which would terminate the repetitive inspections.
• Installation of new stop brackets and a shim on each MLG stabilizer brace assembly.
• Rework of the electrical wiring harnesses in the nacelle area. The rework includes a detailed inspection of the conduit assembly for certain conditions and repair if any condition is found, replacement of damaged conduit, a measurement of the clearance between the stabilizer brace and electrical harness on both LH and RH nacelles to make sure there is 0.100 inch (2.54 millimeters (mm)) minimum clearance between the MLG stabilizer brace, and a check for damage on the A-frame structure and MLG stabilizer brace and repair if necessary.
Bombardier has issued the following service information.
• ModSum IS4Q2400028, Revision B, dated June 22, 2012; and ModSum IS4Q240029, Revision A, dated July 6, 2014. These modsums describe procedures for rerouting certain electrical harnesses and installing grommets.
• ModSum IS4Q5450002, Revision B, dated April 30, 2012. This modsum describes procedures for installing specified fasteners on the MLG A-frame, in both the LH and RH nacelles.
• ModSum IS4Q5450003, Revision C, released November 29, 2012. This modsum describes procedures for trimming the horizontal and vertical stiffeners on the MLG A frame in both the LH and RH nacelles.
• Service Bulletin 84-32-112, Revision B, dated September 12, 2014, and Goodrich Service Bulletin 46400-32-102R1, Revision 1, dated June 24, 2013, as referenced in Bombardier Service Bulletin 84-32-112, Revision B, dated September 12, 2014. This service information describes procedures for incorporating Bombardier ModSum 4-902416 by installing new stop brackets and new stop shims for all MLG stabilizer brace assemblies.
• Service Bulletin 84-32-114, Revision A, dated September 18, 2013. This service information describes procedures for rework of the electrical wiring harnesses in the nacelle area. The rework includes a detailed inspection of the conduit assembly for certain conditions and repair, replacement of damaged conduit, a measurement of the clearance to make sure there is 0.100 inch (2.54 mm) minimum clearance between the MLG stabilizer brace, and a check for damage on the A-frame structure and MLG stabilizer brace and repair.
• Service Bulletin 84-54-19, dated April 18, 2013. This service information describes procedures for detailed inspections of the nacelle A-frame structure for insufficient fillet radius, an eddy current or fluorescent dye penetrant inspection for cracking of affected structure, and rework or repair.
• Service Bulletin 84-54-20, Revision B, dated October 2, 2014. This service information describes procedures for detailed inspections of the nacelle A-frame structure and the MLG stabilizer brace for insufficient clearance and damage, and repair. This service information also describes procedures for rework of the nacelle A-frame structure, including a measurement of the clearance between the A-frame structure and MLG stabilizer brace assembly, and a fluorescent dye penetrant inspection or high frequency eddy current inspection for cracking and repair, which would end the inspections.
• Service Bulletin 84-54-21, dated May 9, 2013. This service information describes procedures for rework of the LH side and RH side nacelle A-frame structure, including a measurement of the clearance between the fasteners/A-frame structure and MLG stabilizer brace assembly and to make sure no fouling condition exists, and repair.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or
We estimate that this proposed AD affects 80 airplanes of U.S. registry.
We also estimate that it would take up to 50 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost $8,452 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be up to $1,016,160, or $12,702 per product.
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by December 3, 2015.
None.
This AD applies to Bombardier, Inc. Model DHC-8-400, -401, and -402 airplanes, certificated in any category, serial numbers (S/Ns) 4001 through 4431 inclusive.
Air Transport Association (ATA) of America Code 32, Landing Gear.
This AD was prompted by reports of chafing damage due to insufficient clearance on the main landing gear (MLG) stabilizer brace, the nacelle A-frame structure, and the adjacent electrical wiring harnesses. An insufficient fillet radius might also exist on certain airplanes. We are issuing this AD to detect and correct chafing damage and subsequent premature cracking and fracture of the nacelle A-frame structure, which could result in failure of the MLG stabilizer brace and loss of the MLG down-lock indication, which could adversely affect the safe landing of the airplane.
Comply with this AD within the compliance times specified, unless already done.
For airplanes having S/Ns 4001 through 4055 inclusive: Do the actions required by paragraphs (g)(1) and (g)(2) of this AD.
(1) Within 600 flight hours or 100 days after the effective date of this AD, whichever occurs first: Do a detailed inspection of the left-hand (LH) side and right-hand (RH) side nacelle A-frame structure for insufficient fillet radius, in accordance with “Part A—Inspection” of the Accomplishment Instructions of Bombardier Service Bulletin 84-54-19, dated April 18, 2013. If an insufficient fillet radius exists, before further flight, do an eddy current or fluorescent dye penetrant inspection for cracking, in accordance with “Part A—Inspection” of the Accomplishment Instructions of Bombardier Service Bulletin 84-54-19, dated April 18, 2013.
(i) If any cracking is found: Before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO).
(ii) If no cracking is found: Before further flight, rework the structure, in accordance “Part B—Rectification” of the Accomplishment Instructions of Bombardier Service Bulletin 84-54-19, dated April 18, 2013.
(2) Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first: Rework the LH side and RH side nacelle A-frame structure, including doing a measurement of the clearance between the fasteners/A-frame structure and MLG stabilizer brace assembly and making sure no fouling condition exists, in accordance with paragraph 3.B. “Procedure,” of the Accomplishment Instructions of Bombardier Service Bulletin 84-54-21, dated May 9, 2013. If the clearance is found to be less than 0.100 inch (2.54 millimeters (mm)) between the fasteners/A-frame structure and MLG stabilizer brace assembly after the rework is done, or a fouling condition exists during the extension of the MLG after rework is done, before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
For airplanes having S/Ns 4056 through 4426 inclusive: Within 600 flight hours or 100 days after the effective date of this AD, whichever occurs first: Do a detailed inspection of the LH side and RH side nacelle A-frame structure and upper surface of the MLG stabilizer brace for insufficient clearance and damage (
(1) If a clearance less than 0.100 inch (2.54 mm) exists between the A-frame structure and the MLG stabilizer brace assembly in the retracted position, after the rework is done, before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
(2) If any damage is found: Before further flight, repair using a method approved by the
For airplanes having S/Ns 4056 through 4426 inclusive: Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first; Rework the LH side and RH side nacelle A-frame structure, including doing a measurement of the clearance between the A-frame structure and MLG stabilizer brace assembly and doing a fluorescent dye penetrant inspection or high frequency eddy current inspection for cracking, in accordance with “Part B-Rework,” of the Accomplishment Instructions of Bombardier Service Bulletin 84-54-20, Revision B, dated October 2, 2014. Accomplishment of the actions required by this paragraph terminates the repetitive inspections required by paragraph (h) of this AD.
(1) If a clearance less than 0.100 inch (2.54 mm) exists between the A-frame structure and the MLG stabilizer brace assembly in the retracted position after the rework is done, before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
(2) If any cracking is found: Before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
For airplanes having S/Ns 4001 through 4431 inclusive with a MLG stabilizer brace assembly having part number 46400-27 installed: Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first; incorporate Bombardier ModSum 4-902416 by installing new stop brackets and a new shim on each MLG stabilizer brace assembly, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-32-112, Revision B, dated September 12, 2014, and Goodrich Service Bulletin 46400-32-102R1, Revision 1, dated June 24, 2013, as referenced in Bombardier Service Bulletin 84-32-112, Revision B, dated September 12, 2014.
For airplanes having S/Ns 4001 through 4411 inclusive: Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first; rework the LH and RH sides of the electrical wiring harnesses in the nacelle area adjacent to the A-frame structure, including doing the actions specified in paragraphs (k)(1) through (k)(4) of this AD, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-32-114, Revision A, dated September 18, 2013. If any damage is found on the A-frame structure or MLG stabilizer brace, before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
(1) Doing a detailed inspection of the conduit assembly for the conditions specified in Bombardier Service Bulletin 84-32-114, Revision A, dated September 18, 2013, and, before further flight, repairing if any condition is found.
(2) Replacing damaged conduit.
(3) Measuring the clearance between the stabilizer brace and electrical harness on both LH and RH nacelles to make sure there is 0.100 inch (2.54 mm) minimum clearance between the MLG stabilizer brace.
(4) Checking for damage on the A-frame structure and MLG stabilizer brace.
(1) Installing specified fasteners on the MLG A-frame, in both LH and RH nacelles, in accordance with Bombardier ModSum IS4Q5450002, Revision B, dated April 30, 2012, is acceptable for compliance with the actions specified in paragraph (g) of this AD, provided the actions specified in Bombardier ModSum IS4Q5450002 are done within the compliance time specified in paragraph (g) of this AD, except where ModSum IS4Q5450002, Revision B, dated April 30, 2012, specifies to contact Bombardier for reduced clearances, before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
(2) Trimming the horizontal and vertical stiffeners on MLG A-frame in both LH and RH nacelles, in accordance with Bombardier ModSum IS4Q5450003, Revision C, released November 29, 2012, is acceptable for compliance with the actions specified in paragraph (i) of this AD, provided the actions specified in Bombardier ModSum IS4Q5450003 are done within the compliance time specified in paragraph (i) of this AD, except where ModSum IS4Q5450003, Revision C, released November 29, 2012, specifies to contact Bombardier for reduced clearances, before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
(3) Rerouting certain electrical harnesses and installing grommets, in accordance with Bombardier ModSum IS4Q2400028, Revision B, dated June 22, 2012 (for S/Ns 4001 through 4098 inclusive) or Bombardier ModSum IS4Q2400029, Revision A, dated July 6, 2014 (for S/Ns 4090 through 4411 inclusive), is acceptable for compliance with the actions specified in paragraph (k) of this AD, provided the actions specified in the applicable modsum are done within the compliance time specified in paragraph (k) of this AD, except where Bombardier ModSum IS4Q2400028, Revision B, dated June 22, 2012; and Bombardier ModSum IS4Q2400029, Revision A, dated July 6, 2014; specify to contact Bombardier to report stabilizer brace or structural damaged findings, before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
(1) This paragraph provides credit for actions required by paragraph (i) of this AD, if those actions were performed before the effective date of this AD using the applicable service information specified in paragraph (m)(1)(i) or (m)(1)(ii) of this AD. This service information is not incorporated by reference in this AD.
(i) Bombardier Service Bulletin 84-54-20, dated April 25, 2013.
(ii) Bombardier Service Bulletin 84-54-20, Revision A, dated April 9, 2014.
(2) This paragraph provides credit for actions required by paragraph (j) of this AD, if those actions were performed before the effective date of this AD using the applicable service information specified in paragraph (m)(2)(i) or (m)(2)(ii) of this AD. This service information is not incorporated by reference in this AD.
(i) Bombardier Service Bulletin 84-32-112, dated December 20, 2012.
(ii) Bombardier Service Bulletin 84-32-112, Revision A, dated April 16, 2014.
(3) This paragraph provides credit for actions required by paragraph (k) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 84-32-114, dated June 6, 2013. This service information is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2014-45, dated December 23, 2014, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Piper Aircraft, Inc. Model PA-46-500TP airplanes. This proposed AD was prompted by a report of the wing upper skin joints being manufactured without sealant, which allows water to enter and stay in sealed, bonded stringers. This proposed AD would require inspecting the upper wing surface for sealant; inspecting the wing stringers for water intrusion; inspecting for deformation and corrosion if evidence of water intrusion exists; and taking corrective actions as necessary. We are proposing this AD to correct the unsafe condition on these products.
We must receive comments on this proposed AD by December 3, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Piper Aircraft, Inc., Customer Service, 2926 Piper Drive, Vero Beach, Florida 32960; telephone: (877) 879-0275; fax: none; email:
You may examine the AD docket on the Internet at
Gregory “Keith” Noles, Aerospace Engineer, FAA, Atlanta Aircraft Certification Office, 1701 Columbia Avenue, College Park, Georgia 30337; phone: (404) 474-5551; fax: (404) 474-5606; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received a report of wing upper skin joints on Piper Aircraft, Inc. Model PA-46-500TP airplanes being manufactured without sealant, which allows water to enter and stay in sealed, bonded stringers. This condition, if not corrected, could result in water entering the stringers common to the upper wing skin. Left uncorrected, corrosion could develop, and freeze/thaw cycles of water at this location could cause deformation of the skin with follow-on disbonding between the stringer flanges and the inner surface of the wing skin. Consequently, the corrosion or disbonding could reduce the structural integrity of the wing.
We reviewed Piper Aircraft, Inc. Service Bulletin No. 1262B, dated April 23, 2015. The service bulletin provides instructions for inspecting the upper wing surface for sealant and sealing or resealing (if necessary). This service bulletin also provides instructions for inspecting the wing stringers for water intrusion, and, if water intrusion was found as a result of the inspection, inspecting for corrosion or deformation. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously.
We estimate that this proposed AD affects 440 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any additional necessary inspections, rework of the stringers, and installation of sealant that would be required based on the results of the proposed initial inspection. We have no way of determining the number of airplanes that might need this rework of the stringers and installation of sealant:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by December 3, 2015.
None.
This AD applies to Piper Aircraft, Inc. Model PA-46-500TP airplanes, serial numbers 4697001 through 4697528, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 5700, Wings.
This AD was prompted by a report of wing upper skin joints being manufactured without sealant, which allows water to enter and stay in sealed, bonded stringers. We are issuing this AD to prevent water from entering the stringers common to the upper wing skin. Left uncorrected, corrosion could develop, and freeze/thaw cycles of water at this location could cause deformation of the skin with follow-on disbonding between the stringer flanges and the inner surface of the wing skin. Consequently, the corrosion or disbonding could reduce the structural integrity of the wing.
Comply with this AD within the compliance times specified, unless already done.
Within the next 100 hours time-in-service (TIS) after the effective date of this AD or 12 months after the effective date of this AD, whichever occurs first, inspect the upper skin joints for adequate sealant following Part I of Piper Aircraft, Inc. Service Bulletin No. 1262B, dated April 23, 2015. No further action per this AD is required if adequate sealant is already applied.
If you find missing or inadequate sealant during the inspection required by paragraph (g) of this AD, before further flight, inspect for evidence of water intrusion/moisture following Part II of Piper Aircraft, Inc. Service Bulletin No. 1262B, dated April 23, 2015.
(1) If no evidence of water intrusion/moisture is found during the inspection required in paragraph (h) of this AD, before further flight, rework the stringers and apply sealant as required in paragraph (k) of this AD.
(2) If evidence of water intrusion/moisture is found during the inspection required in
If you find, as a result of the inspection required by paragraph (h) of this AD, evidence of water intrusion/moisture, before further flight, inspect for corrosion following Part II of Piper Aircraft, Inc. Service Bulletin No. 1262B, dated April 23, 2015.
(1) If no evidence of corrosion is found during the inspection required in paragraph (i) of this AD, before further flight, rework the stringers and apply sealant as required in paragraph (k) of this AD.
(2) If evidence of corrosion is found during the inspection required in paragraph (i) of this AD, before further flight, obtain and implement an FAA-approved corrective action, approved specifically for this AD. At the operator's discretion, assistance may be provided by contacting Piper Aircraft, Inc. at the address identified in paragraph (o)(2) of this AD. After obtaining and implementing an FAA-approved corrective action, approved specifically for this AD, before further flight, rework the stringers and apply sealant as required in paragraph (k) of this AD.
If you find, as a result of the inspection required by paragraph (h) of this AD, evidence of water intrusion/moisture, before further flight, do a visual inspection for skin or stringer deformation.
(1) If no evidence of deformation is found during the inspection required in paragraph (j) of this AD, before further flight, rework the stringers and apply sealant as required in paragraph (k) of this AD.
(2) If any visible deformation is found during the inspection required in paragraph (j) of this AD, before further flight, obtain and implement an FAA-approved corrective action, approved specifically for this AD. At the operator's discretion, assistance may be provided by contacting Piper Aircraft, Inc. at the address identified in paragraph (o)(2) of this AD. After obtaining and implementing an FAA-approved corrective action, approved specifically for this AD, before further flight, rework the stringers and apply sealant as required in paragraph (k) of this AD.
If any inspection required by paragraphs (g) through (j) of this AD reveals discrepancies (no sealant/inadequate sealant, evidence of water intrusion/moisture, corrosion, or deformation), before further flight, after completing any necessary corrective actions, rework wing stringers and seal skin joints following Part II of Piper Aircraft, Inc. Service Bulletin No. 1262B, dated April 23, 2015.
Actions done before the effective date of this AD following Part I and Part II of Piper Aircraft, Inc. Service Bulletin No. 1262, dated October 16, 2013; or Part I and Part II of Piper Aircraft, Inc. Service Bulletin No. 1262A, dated November 14, 2013, as applicable, are considered acceptable for compliance with the corresponding actions specified in paragraphs (g), (h), (i), and (k) (including subparagraphs) of this AD. Additional inspections beyond Service Bulletin No. 1262 are required to fully comply with paragraph (j) of this AD.
(1) In accordance with 14 CFR 39.23, a single flight is allowed to a location to do the actions in paragraph (g) of this AD.
(2) In accordance with 14 CFR 39.23, a single flight is allowed to a location to do the inspections, rework and installation of sealant required in paragraphs (h) through (k) of this AD. Prior to the flight to perform the inspections, rework, and installation of sealant, the following inspection must be performed: If the inspection required by paragraph (g) of this AD reveals no sealant, inspect for evidence of wing damage (skin or stringer deformation,
(1) The Manager, Atlanta Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (l)(1) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Gregory “Keith” Noles, Aerospace Engineer, FAA, Atlanta ACO, 1701 Columbia Avenue, College Park, Georgia 30337; phone: (404) 474-5551; fax: (404) 474-5606; email:
(2) For service information identified in this AD, contact Piper Aircraft, Inc., Customer Service, 2926 Piper Drive, Vero Beach, Florida 32960; telephone: (877) 879-0275; fax: none; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish 2 new restricted areas (R-5601G and R-5601H) to expand the special use airspace (SUA) complex located at Fort Sill, OK, to provide additional maneuvering airspace for current and planned training activities determined to be hazardous to non-participating aircraft. Specifically, the proposed restricted areas would provide participating fighter or bomber aircraft with laser-firing and maneuvering airspace when training at the Falcon Bombing Range contained in R-5601C, at the West Range Target Area contained in R-5601B, or at the East Range Target Area contained in R-5601A. In addition, the using agency for all Fort Sill restricted areas would be updated to reflect the current organization tasked with that responsibility. The U.S. Army requested that the FAA take this action to allow realistic training on current tactics developed and refined during recent combat operations for employing hazardous targeting laser systems and weapons capabilities at longer ranges from the target area.
Comments must be received on or before December 3, 2015.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; telephone: (202) 366-9826. You must identify FAA Docket No. FAA-2015-3680 and Airspace Docket No. 13-ASW-15, at the beginning of your comments. You may also submit comments through the Internet at
Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would restructure the restricted airspace at Fort Sill, OK, to enhance safety and accommodate essential military training.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2015-3680 and Airspace Docket No. 13-ASW-15) and be submitted in triplicate to the Docket Management System (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2015-3680 and Airspace Docket No. 13-ASW-15.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person at the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
Military use of the airspace at Fort Sill, OK, can be traced back to 1949. Today, the Fort Sill SUA complex consists of six restricted areas, designated R-5601A, R-5601B, R-5601C, R-5601D, R-5601E, and R-5601F. The three ranges (Falcon Range, West Range, and East Range) contained within the Fort Sill SUA complex are used for a wide variety of military air and ground activities; including, but not limited to, air-to-surface weapons delivery training, laser systems, artillery, and joint air and ground forces exercises. Weapons events include high-, medium-, and low-altitude bombing runs, to include level, climbing, and diving deliveries. Today, real-world combat tactics for employing targeting lasers and weapons systems at distances farther from the target are driving the requirement for increased lateral dimensions of the Fort Sill SUA complex to support aircrew training in laser employment and weapons delivery tactics. Although the R-5601A, R-5601B, R-5601C, and R-5601F airspace areas extend to a maximum altitude of 40,000 feet mean sea level (MSL), the relatively small north to south dimensions of the restricted areas (approximately 9 nautical miles (NM) at its widest point) is not sufficient to provide the required distance from targets needed by aircrews employing current combat laser targeting or weapons deliveries tactics. Since there is no alternative SUA complex within 200 NM where combat lasers may be employed, aircrew training is significantly restricted at the Fort Sill ranges.
The FAA is proposing an amendment to 14 CFR part 73 to establish 2 new restricted areas (designated R-5601G and R-5601H) at Fort Sill, OK. This action would establish restricted area R-5601G with a ceiling to, but not including, 8,000 feet MSL under the Washita Military Operations Area (MOA), and establish restricted area R-5601H with a ceiling of Flight Level (FL) 400 to match the adjacent restricted areas; thus, expanding the lateral limits of restricted area airspace at the Fort Sill SUA complex. Restricted area R-5601G would abut the existing restricted area complex to the north, underlying the Washita MOA, and extend from 500 feet above ground level (AGL) to, but not including, 8,000 feet MSL. R-5601G would extend approximately three quarters of the existing restricted area complex northward, between 5 NM to 11 NM, to provide the required expanded lateral space from the current range boundaries. Restricted area R-5601H would extend from the surface to FL400. R-5601H would fill a small airspace area surrounded by two continuously active restricted areas (R-5601A and R-5601B) extending from the surface to FL400 and a MOA extending from 8,000 feet MSL to, but not including, FL180. Additionally, when active, R-5601H would overlay the Fort Sill post and a portion of the Class D airspace supporting the non-joint use military airfield located at Fort Sill.
The two new restricted areas would allow participating aircraft to maneuver within the current Fort Sill Approach Control Airspace and contain the hazardous combat laser energy (not eye-safe) within restricted airspace. As proposed, R-5601G would only be used for aircraft maneuvering and combat laser targeting employment and R-5601H would only be used for aircraft conducting Close Air Support (CAS) training. There would be no changes to
In addition to the proposed establishment of R-5601G and R-5601H, the following minor changes to the descriptions of the six existing Fort Sill restricted areas would be made. The using agency for R-5601A-E would be changed from “U.S. Army, Commanding General, Fort Sill, OK,” to “U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE), Fort Sill, OK.” The using agency for R-5601F would be changed from “Commanding General, United States Army Field Artillery Center (USAFACFS), Fort Sill, OK,” to “U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE), Fort Sill, OK.” This change would reflect the current organizational responsibilities. The new using agency would also apply to the proposed R-5601G and R-5601H. The boundaries, designated altitudes, times of designation, and controlling agency information for restricted areas R-5601A-F would not be changed by this proposal.
The FAA does not anticipate any aeronautical impacts as a result of this proposed action since Fort Sill Approach Control has radar coverage over the proposed restricted areas and already controls the airspace from surface to 7,000 feet MSL. Procedures will be established to continue allowing non-participating aircraft access to the airspace even when the restricted areas are in use. Pilots seeking information about the activity status of R-5601G and R-5601H should contact Fort Sill Approach Control on the frequency listed in the “Special Use Airspace” panel of the Dallas—Ft. Worth Sectional Aeronautical Chart. Fort Sill Approach Control will continue to provide VFR traffic advisories, as they do today, to non-participating aircraft requesting them.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal.
Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subjected to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.
Airspace, Prohibited areas, Restricted areas.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 73 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
By removing the current using agency and substituting the following:
By removing the current using agency and substituting the following:
By removing the current using agency and substituting the following:
By removing the current using agency and substituting the following:
By removing the current using agency and substituting the following:
By removing the current using agency and substituting the following:
Consumer Product Safety Commission.
Notice of proposed rulemaking.
The Danny Keysar Child Product Safety Notification Act, Section 104 of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) requires the United States Consumer
Submit comments by January 4, 2016.
Comments related to the Paperwork Reduction Act aspects of the marking, labeling, and instructional literature requirements of the proposed mandatory standard for children's folding chairs and stools should be directed to the Office of Information and Regulatory Affairs, the Office of Management and Budget, Attn: CPSC Desk Officer, FAX: 202-395-6974, or emailed to
Other comments, identified by Docket No. CPSC-2015-0029, may be submitted electronically or in writing:
Patricia Edwards, Project Manager, Directorate for Engineering Sciences, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; email:
The CPSIA was enacted on August 14, 2008. Section 104(b) of the CPSIA, part of the Danny Keysar Child Product Safety Notification Act, requires the Commission to: (1) Examine and assess the effectiveness of voluntary consumer product safety standards for durable infant or toddler products, in consultation with representatives of consumer groups, juvenile product manufacturers, and independent child product engineers and experts; and (2) promulgate consumer product safety standards for durable infant and toddler products. Standards issued under section 104 are to be “substantially the same as” the applicable voluntary standards or more stringent than the voluntary standard if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product.
The term “durable infant or toddler product” is defined in section 104(f)(1) of the CPSIA as “a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years.” Although section 104(f)(2) does not specifically identify children's folding chairs, high chairs, booster chairs and hook-on chairs are explicitly deemed to be “durable infant or toddler products.” Because folding chairs and folding stools serve functions and have characteristics similar to the listed types of chairs, folding chairs and folding stools likewise should be considered to be “durable infant or toddler products.” This conclusion is consistent with the Commission's prior determination that “children's folding chairs” fall within the definition of a “durable infant or toddler product” and are covered by product registration card rule promulgated under CPSIA section 104(d).
Although the product registration card rule does not specifically mention children's folding stools, the Commission considers folding stools to be a subset of folding chairs. Thus, the Commission proposes to include children's folding stools within the scope of the proposed standard. The Commission proposes to amend the product registration card rule so the scope of that rule will be clear that children's folding chairs and folding stools are identified as durable infant or toddler products for purposes of registration card requirements.
As required by section 104(b)(1)(A), the Commission consulted with manufacturers, retailers, trade organizations, laboratories, consumer advocacy groups, consultants, and members of the public in the development of this notice of proposed rulemaking (“NPR”), largely through the standards development process of ASTM International (formerly the American Society for Testing and Materials) (“ASTM”). The proposed rule is based on the current voluntary standard developed by ASTM, ASTM F2613-14,
The testing and certification requirements of section 14(a) of the Consumer Product Safety Act (“CPSA”) apply to product safety standards promulgated under section 104 of the CPSIA. Section 14(a)(3) of the CPSA requires the Commission to publish an NOR for the accreditation of third party conformity assessment bodies (test laboratories) to assess conformity with a children's product safety rule to which a children's product is subject. The children's folding chairs and stools standard, if issued as a final rule, will be a children's product safety rule that requires the issuance of an NOR. To meet the requirement that the Commission issue an NOR for the children's folding chairs and stools standard, this NPR proposes to amend 16 CFR part 1112 to include 16 CFR part 1232, the CFR section where the children's folding chairs and stools standard will be codified, if the standard becomes final.
ASTM F2613-14 defines a “children's chair” as “seating furniture with a rigid frame that is intended to be used as a support for the body, limbs, or feet of a child when sitting or resting in an upright or reclining position.” A “children's stool” is defined as a “children's chair without back, or armrest.” ASTM further defines “folding chair” and “folding stool” as “a children's chair or stool which can be folded for transport or storage.” ASTM F2613-14, Section 3. The standard covers a chair or stool intended to be used by a single child who can get in and get out of the product unassisted and with a seat height 15 inches or less, with or without a rocking base. The Commission proposes to limit the scope of the mandatory standard to folding chairs and folding stools because the hazards presented by folding chairs and folding stools are different from non-folding chairs and stools, as discussed further in section V of the preamble.
There are two primary designs associated with children's folding chairs and folding stools: (1) Straight tube versions that contact the surface in three or more capped-tube legs, and (2) bent tube versions that contact the ground along a substantial portion of the tubular frame. Although there are a variety of other designs used for children's folding chairs and folding stools, the primary characteristic that applies to all of the products is the folding mechanism of the chair and stool that is used for transport or storage of the product.
CPSC staff received reports of 98 injuries, 45 non-injury incidents, and another 39 recall-related complaints associated with children's folding chairs or stools in the Consumer Product Safety Risk Management System (“CPSRMS”) database for the period January 1, 2003 through December 31, 2014. Only one of the reported incidents involved a folding stool, while the remainder involved folding chairs. There were no fatalities reported in the data. Reporting is ongoing, and thus, the number of reported injury and non-injury incidents from the CPSRMS system may change in the future.
Ninety-eight (98) nonfatal incident injuries were reported, some not medically treated. Injuries involving chairs designed for the under 5 age range (51%) were the most frequently reported incidents. The most frequent injuries (76) involved fingers, thumbs, or other parts of the hand, with most of the remaining incidents (14) affecting the head or face. The youngest injury victim was 12 months old. Some victims exceeded the intended age range of the chair, but their injuries demonstrated hazards with chairs relevant to the standard (
Forty-five (45) incidents did not report an injury. However, these reports illustrate a potential for injuries. These reports included incidents in which the chair was occupied or used by a child, plus incidents in which a parent or submitter detected a malfunction or hazardous issue while the chair was not in use.
Thirty-nine (39) reports did not describe incidents, but merely reflected concerns regarding recalls. These concerns involved questions about recalled products (
CPSC also evaluates data reported through the National Electronic Injury Surveillance System (“NEISS”), which gathers summary injury data from hospital emergency departments selected as a probability sample of all the U.S. hospitals with emergency departments. This surveillance information enables CPSC staff to make timely national estimates of the number of injuries associated with specific consumer products. Based on a review of emergency department visits from January 1, 2003 through December 31, 2014, CPSC staff determined that there were an estimated 17,500 children younger than 5 years of age treated in emergency departments for injuries related to folding chairs and stools.
Information from hospital records, however, does not contain sufficient information to determine which injuries involved chairs specially designed for children under age 5. A known proportion of these injuries may have involved folding chairs or stools designed for children older than 5, or adults. Accordingly, CPSC staff focused on incident reports with specific information (
CPSC staff considered all 182 reports and complaints to identify four different hazard patterns associated with children's folding chairs and stools. One hundred forty-three reports involved incidents, and 39 reports involved complaints (without incident).
1.
Fingers and hands were the body parts most commonly involved in pinching or shearing hazards. In two incidents, other body parts were pinched/sheared from unexpected folding/collapsing (1 neck incident and 1 leg incident). Out of all 90 pinch/shear hazard incidents, including incidents without actual pinch/shear injuries, at least eight incidents involved recalled products (6 injured; 2 without injuries).
2.
3.
4.
Since January 1, 1997, there have been 11 children's folding chair or stool recalls involving 10 different firms, and 5,394,600 units of product. The hazards include pinching, bruising, fractures, finger amputations, and lead paint violations.
Section 104(b)(1)(A) of the CPSIA requires the Commission to consult representatives of “consumer groups, juvenile product manufacturers, and independent child product engineers and experts” to “examine and assess the effectiveness of any voluntary consumer product safety standards for durable infant or toddler products.” As a result of incidents arising from children's folding chairs, CPSC staff requested that ASTM develop voluntary requirements to address the hazard patterns related to the use of folding chairs. Through the ASTM process, CPSC staff consulted with manufacturers, retailers, trade organizations, laboratories, consumer advocacy groups, consultants, and members of the public.
ASTM F2613 was first published in 2007, and since then, the voluntary standard has been revised five times (2009, 2010, 2011, 2013, and 2014). The scope of products covered by the original version, F2613-07, was limited to “children's folding chairs” with a seat height of 15 inches or less. Significant revisions were made in 2013, in ASTM F2613-13, that were designed to expand the scope of the voluntary standard to all children's chairs and stools. In addition, the ASTM 2613-13 standard added definitions for “children's chair” and “children's stool,” and clarified the definition of a “folding chair” and “folding stool.” Specifically, “stools” were defined as a specific subset of a chair (“a children's chair without back or armrests”). ASTM 2613-13 also added stability requirements, a test method for stability, and clarified that locking mechanism requirements are applicable only for folding chairs and folding stools.
The current version, ASTM F2613-14, was approved on October 1, 2014, and published in October 2014. ASTM F2613-14 excludes products that do not have a rigid frame (such as bean bag chairs or foam chairs), seats with restraint systems, products intended for use by more than a single child, and products in which the child could not get in and out of the product unassisted. ASTM F2613-14 also includes products “with or without a rocking base” and contains many general requirements that are common to other juvenile product standards, such as requirements for sharp edges or points, small parts, and lead in paint. There are also specific performance requirements to address incidents that may result in lacerations, fractures, pinches, amputations, and other injuries. ASTM F2613-14 also contains requirements for marking and labeling.
CPSC staff compared the performance requirements of ASTM F2613-14 to the performance requirements of international standards: FIRA C001:2008 Furniture—Children's Domestic Furniture—General Safety Requirements and FIRA C002:2008 Furniture—Children's Domestic Furniture Seating—Requirements for Strength, Stability, and Durability, which address children's chairs.
CPSC staff's review showed that ASTM F2613-14 is the most comprehensive of the standards to address the incident hazards because ASTM F2613-14 includes requirements for labeling, pinch/shear, locking devices, entrapment, stability, strength, and small parts. FIRA C001/C002 standards include some requirements not found in ASTM F2613-14, such as a requirement for materials to be clean and free from infestation, and requirements that deal with corrosion-resistant metals, prohibition of glass and glass mirrors, retention of magnets, partially bound and V-shaped openings above 23.5 inches, moisture content of timber components, and powered-mechanism shear/pinch hazards. However, the hazard patterns identified in CPSC staff's review of the incident data did not indicate that similar requirements need to be added to ASTM F2613-14. However, CPSC staff will continue to monitor hazard patterns and recommend future changes, if necessary.
CPSC staff considered the fatalities, injuries, and non-injury incidents associated with children's folding chairs and folding stools, and evaluated ASTM F2163-14 to determine whether the current ASTM standard adequately addresses the incidents, or whether more stringent standards would further reduce the risk of injury associated with these products. Based on CPSC staff's assessment, the Commission proposes the following modifications to ASTM F2163-14: (1) Limit the scope of the proposed mandatory standard to children's folding chairs and folding stools; (2) change the stability test method to add a new performance requirement and test method to address sideways stability incidents in addition to rearwards stability incidents; and (3) revise the marking and labeling sections.
ASTM F2613-13 expanded the scope of the standard beyond children's folding chairs to include all children's chairs and stools. CPSC staff conducted a preliminary review of the incident data involving all children's chairs and stools. CPSC staff determined that, based on the total number of incidents, the number of incidents over time (years), the body parts injured, and the incident victim's average age reported, the hazards associated with children's folding chairs or stools are substantially different from the hazards reported for children's non-folding chairs or stools. Accordingly, the NPR encompasses both folding chairs and folding stools, but does not include
ASTM defines “children's chair” as “seating furniture with a rigid frame that is intended to be used as a support for the body, limbs, or feet of a child when sitting or resting in an upright or reclining position.” A “children's stool” is defined as a “children's chair without back, or armrest.” ASTM defines “children's folding chair” and “children's folding stool” as “a children's chair or stool which can be folded for transport or storage.” ASTM's definition considers children's folding stools to be a subset of children's
Based on CPSC staff's review of the configurations of children's folding chairs and folding stools and the hazards presented by them, the Commission proposes to include children's folding stools, along with children's folding chairs, in the scope of the proposed rule. However, the Commission seeks public comments regarding the inclusion of children's folding stools in the proposed standard.
CPSC believes that ASTM F2613-14 adequately addresses many of the general hazards associated with durable nursery products, such as lead in paint and surface coatings, sharp edges/sharp points, small parts, wood part splinters, openings/entrapments, flammable solids, and attached toy accessories. The standard covers specific requirements for folding chairs and stools, including requirements for adequate clearances or locking mechanisms to address pinch/shear hazards related to folding of the chair, load requirements to address structural integrity, stability requirements to address rearward tipover and warning and labeling requirements to inform the user of the hazards associated with children's folding chairs and stools. CPSC believes that these requirements adequately address the majority of incidents associated with folding chairs and folding stools. However, as discussed below, the Commission proposes to change the stability test method to include a sideways stability test method, as well as changes to the warning and labeling requirements to further reduce the risk of injury associated with folding chairs and stools.
CPSC staff compared the existing ASTM F2613-14 stability test to the stability requirements found in the European standard EN 1022 Domestic Furniture Seating—Determination of Stability. However, the requirements in EN 1022 are applicable to adult-sized furniture, not children's furniture. Accordingly, CPSC staff reviewed a standard developed by the UK Furniture Industry Research Association (“FIRA”), FIRA C002:2008 Furniture—Children's Domestic Furniture Seating—Requirements for Strength, Stability, and Durability. FIRA C002 specifies the EN 1022 test method, but adjusts the test loads based on the weight of the intended child occupant. FIRA C002 further references EN 1729-2 Furniture—Chairs and Tables for Educational Institutions Part 2, for determining the loading points for the test loads. After testing both methods (ASTM F2613-14 and EN 1022) for sideways stability on sample children's folding chairs, CPSC staff determined that both methods were valid and the results were comparable between the two methods. However, the ASTM F2613-14 test method already is being used to test rearwards stability, and CPSC staff found that the test method could be used also to test sideways stability with modifications, to reduce the incidents of tipovers.
On July 24, 2015, ASTM balloted the sideways stability requirement, which received five negative votes and several comments, most of which contained editorial comments to the ballot. The negatives all pertain to a common style non-folding chair without arms that fails the balloted requirement, but is not associated with any incidents. However, the proposed rule does not include non-folding chairs and stools, and non-folding chairs and stools are outside the scope of the proposed rule. Accordingly, the Commission proposes to change the stability test method in ASTM F2613-14
ASTM 2613-14 contains requirements prohibiting certain hazardous substances, including lead and flammable substances. In addition, ASTM 2613-14 also includes requirements for sharp points and edges, which were noted in some incidents. CPSC staff's review also indicated that the static load and fatigue tests in ASTM 2613-14 also would minimize integrity issues. Accordingly, the Commission is not proposing any changes to the existing ASTM F2613-14 standard to address these miscellaneous incidents at this time.
Although CPSC staff believes that the ideal placement of the label is on the front of the chair, such placement may detract from the appearance of the product and make consumers remove the label. Accordingly, CPSC staff looked at other locations for appropriate label placement. For example, one area that may be separate and distinct label on a folding chair is on the back of the chair's back rest away from warnings on the underside of the chair. An example of separate and distinct label on a folding stool is on a visible location such as on the legs in such a way that the label does not wrap around the legs.
CPSC staff developed suggested wording and formatting changes for children's folding chairs and folding stools that CPSC staff believed would improve the warning label sections of the voluntary standard. CPSC staff circulated these proposed wording and formatting changes to the ASTM subcommittee responsible for ASTM F2613-14, and discussed the proposed changes at public ASTM meetings in January and May 2015. In response to feedback received from ASTM and stakeholders, CPSC staff made adjustments to staff's proposed warning labels.
Based on staff's evaluation, the Commission now proposes to adopt ASTM F2613-14, with modifications to some of the warning labels for children's folding chairs and stools, to provide specific guidance for a more consistent and prominent presentation of hazard information through the use of clear and conspicuous text. In addition, the proposed rule recommends that the warnings be separate and distinct from other written material or graphics, so that the label is clearly visible when consumers approach the folding chair or folding stool.
The Commission is proposing to incorporate by reference ASTM F2613-14, with certain modifications to strengthen the standard. As discussed in the previous section, the Commission concludes that these modifications will further reduce the risk of injury associated with children's folding chairs and stools.
The proposed rule would limit the scope of the rule to children's folding chairs and folding stools under section 1232.1. The definition of “children's folding chair” and “folding stool” is provided in ASTM F2613-14 in section 3.1.4. In addition, section 1232.2(a) would incorporate by reference ASTM F2613-14, with the exception of certain provisions that the Commission proposes to modify. Section 1232.2(b) would detail the changes and modifications to ASTM F2613-14 that the Commission has determined would further reduce the risk of injury from children's folding chairs and folding stools.
In particular, we would revise section 5.13 (Stability), to specify that all products shall not tip over backwards or sideways when tested in accordance with the stability test methods and provide that tip over shall consist of the product moving past equilibrium and begin to overturn. In addition, we propose to revise Section 6.8 (Stability Test Method) to include a test method for sideways stability testing, as well as rearward stability testing. We also propose to add Section 6.8.1 to provide the requirements for the test equipment and preparation, and specify the test surface area, test cylinders, and measurement of product seating surface height.
The proposed rule would add section 6.8.2. to provide the test method for rearward stability and section 6.8.3 to provide the test method for sideways stability. Those sections would also specify the product orientation, the application of the load, cylinder positioning for folding chairs, and cylinder positioning for folding stools.
We also propose revisions to the marking and labeling section in section 7.2. Specifically, section 7.2 would be changed to state that each folding chair and each folding stool requires warning statements. New proposed requirements would provide specific instructions so that warnings are easier to read and are more conspicuous. Some of these requirements include putting the warnings in the English language, using highly contrasting color(s) in non-condensed sans serif type, text size, and placing the label separate and distinct from any other graphic or written material on the product. Other proposed requirements would provide specific language for the warning statements including the use of the safety alert symbol
The Commission is also proposing to amend 16 CFR part 1112 to include 16 CFR part 1232 in the list of notice of requirements (“NORs”) issued by the Commission, as discussed in section VIII of the preamble.
In addition, for consistency in deeming both children's folding chairs and folding stools to be “durable infant or toddler products,” the Commission also is proposing to amend 16 CFR 1130.2 to make the scope of the registration card rule applicable to both children's folding chairs and folding stools. As discussed in section V of the preamble, although the registration card rule specifically lists children's folding chairs, the rule is silent on children's folding stools (16 CFR 1130.2(a)(13)). The Commission considers folding stools to be a subset of folding chairs, and therefore, proposes to include children's folding stools within the scope of the proposed standard. Accordingly, the Commission proposes to amend § 1130.2 by revising paragraph (a)(13) to include both children's folding chairs and folding stools.
Section 1232.2(a) of the proposed rule incorporates by reference ASTM F2670-13. The Office of the Federal Register (“OFR”) has regulations concerning incorporation by reference. 1 CFR part 51. The OFR regulations require that, for a proposed rule, agencies must discuss in the preamble to the NPR, ways that the materials the agency proposes to incorporate by reference are reasonably available to interested persons, or explain how the agency worked to make the materials reasonably available. In addition, the preamble to the proposed rule must summarize the material. 1 CFR 51.5(a).
In accordance with the OFR's requirements, section V of this preamble summarizes the provisions of ASTM F2613-14 that the Commission proposes to incorporate by reference. ASTM F2613-14 is copyrighted. By permission of ASTM, the standard can be viewed as a read-only document during the comment period on this NPR, at:
The CPSA establishes certain requirements for product certification and testing. Products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard or regulation under any other act enforced by the Commission, must be certified as complying with all applicable CPSC-enforced requirements. 15 U.S.C. 2063(a). Certification of children's products subject to a children's product safety rule must be based on testing conducted by a CPSC-accepted third party conformity assessment body.
The Commission published a final rule,
All new NORs for new children's product safety rules, such as the children's folding chairs and stools standard, require an amendment to part 1112. To meet the requirement that the Commission issue a NOR for the proposed children's folding chairs and stools standard, as part of this NPR, the Commission proposes to amend the existing rule that codifies the list of all NORs issued by the Commission to add children's folding chairs and stools to the list of children's product safety rules for which the CPSC has issued a NOR.
Test laboratories applying for acceptance as a CPSC-accepted third party conformity assessment body to test to the new standard for children's folding chairs and stools would be required to meet the third party conformity assessment body accreditation requirements in part 1112. When a laboratory meets the requirements as a CPSC-accepted third party conformity assessment body, the laboratory can apply to the CPSC to have 16 CFR part 1232,
The Administrative Procedure Act (“APA”) generally requires that the effective date of a rule be at least 30 days after publication of the final rule. 5 U.S.C. 553(d). The Commission is proposing an effective date of 6 months after publication of the final rule in the
The Regulatory Flexibility Act (“RFA”) requires agencies to consider the impact of proposed rules on small entities, including small businesses. The RFA generally requires agencies to review proposed rules for their potential impact on small entities and prepare an initial regulatory flexibility analysis (“IRFA”) unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603 and 605. Because CPSC staff was unable to estimate precisely all costs of the proposed rule, staff conducted such an analysis. The IRFA must describe the impact of the proposed rule on small entities and identify significant alternatives that accomplish the statutory objectives and minimize any significant economic impact of the proposed rule on small entities. Specifically, the IRFA must contain:
• A description of, and where feasible, an estimate of the number of small entities to which the proposed rule will apply;
• a description of the reasons why action by the agency is being considered;
• a succinct statement of the objectives of, and legal basis for, the proposed rule;
• a description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities subject to the requirements and the type of professional skills necessary for the preparation of reports or records; and
• identification, to the extent possible, of all relevant federal rules that may duplicate, overlap, or conflict with the proposed rule; and
• a description of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and minimize the rule's economic impact on small entities.
CPSC staff is aware of four domestic firms manufacturing and ten domestic firms importing children's folding chairs and/or stools in the United States. Most firms only supply one model of chair; two supply two models, and one supplies five distinct models. All four manufacturers and six importers are categorized as “small firms” under the guidelines of the U.S. Small Business Administration (“SBA”). One importer's size could not be determined.
The Juvenile Products Manufacturers Association (“JPMA”) maintains a certification program for children's folding chairs and folding stools but at this time there are no active participants. JPMA does not maintain a list of firms complying with the voluntary standard for children's chairs; compliance of firms with the voluntary standard is self-reported and several firms report compliance with ASTM standards. Some of the firms in the market participate actively in the ASTM standard process and those firms are likely to comply with the voluntary standard.
Section 104(b) of the CPSIA requires the CPSC to promulgate a mandatory standard for children's folding chairs and stools that is substantially the same as, or more stringent than, the voluntary standard if the Commission determines that a more stringent standard would further reduce the risk of injury associated with such products. The Commission is proposing a safety standard for children's folding chairs and stools in response to the requirements of section 104(b).
The Commission has not identified any federal or state rule that duplicates, overlaps, or conflicts with the proposed rule.
Under SBA guidelines, a manufacturer of children's folding chairs and stools is categorized as “small” if it has 500 or fewer employees, and importers and wholesalers are considered “small” if they have 100 or fewer employees. Staff has identified four firms currently manufacturing and ten firms importing children's folding chairs and stools in the United States. All four manufacturers and six of the importers are categorized as small businesses. One importer's size could not be determined.
Of the four identified small manufacturers of children's folding chairs and stools in the United States, two claim compliance with the voluntary standard, and at least one participates in the ASTM process. Of the two remaining manufacturers, one does not comply with warning label requirement and possibly other requirements; the compliance of the other could not be determined. Regardless of conformance to the voluntary standard, the proportion of chairs that might need modifications to comply with side stability requirements could be high. In testing conducted by CPSC Engineering Sciences (“ES”) staff, 7 models out of 9 model samples (from both small and large firms) failed the proposed test for side stability.
If a folding chair or a folding stool must be modified to comply with the staff's proposed side-stability requirements, costs will vary with the necessary modification. CPSC ES staff has identified the addition of a small plastic stabilizer to each corner as a possible modification for chairs or stools with rounded tube frames, based on one model tested which passed with these stabilizers and failed the test with them removed. Similarly designed models found in Europe, where side stability requirements exist for children's folding chairs, also contain these stabilizers. The costs of adding these small pieces of plastic would likely be low, due to the size and material.
For chairs with other frame types and arms that extend farther out from the seating area, for which the plastic stabilizers are either not possible or not sufficient, a redesign may be necessary to eliminate the arms or otherwise modify the chair's design for compliance with the requirements. One manufacturer estimates the costs to redesign a non-compliant chair to be $10,000, including 9 to 12 months of labor and development time. This cost could be significant for one manufacturer, if a redesign were required for all models. The costs for a non-compliant folding chair that does not require a full redesign would likely be lower. The costs for redesign of warning labels is expected to be 1 hour of labor time at current labor rates, as discussed in section XII below.
At this time, CPSC staff does not have sufficient information to determine what proportion of folding chair or folding stool models currently in the market will be able to meet the side-stability requirements through a simple and inexpensive fix like adding a plastic stabilizer versus the proportion of models that will require a more costly redesign. Without this information, the economic impact that the four small manufacturers will experience due to the proposed side-stability requirements is difficult to assess. Therefore, we cannot rule out a significant economic impact for small folding chair manufacturers.
The Commission seeks information on the modifications that manufacturers expect are needed for existing folding chair or folding stool models to meet the side-stability requirements as well as any data regarding the expected costs of such modifications. In particular, the Commission seeks comments on the likely costs of compliance with the side-stability requirements and the extent to which the total cost of any necessary modifications might exceed one percent of the manufacturer's gross revenue.
Three of the small manufacturers of children's folding chairs and folding stools have diversified product lines. If the cost of compliance with the proposed rule is too high, these firms might discontinue production, thus avoiding significant economic harm. However, because revenue data for these firms was not sufficiently detailed, CPSC staff cannot determine with any certainty whether exit from the market is an economically viable option. The remaining manufacturer supplies a folding chair as an accessory with its one main product. This manufacturer's folding chair does not currently comply with the voluntary standard. Although the firm might be able to offer its product line without a folding chair, CPSC staff cannot determine whether ceasing the sale of its folding chair would have a significant adverse impact on the firm, and thus, CPSC staff is unable to rule out a significant economic impact based on this manufacturer's ability to exit the market.
To better assess the economic impact on small manufacturers, the Commission is interested in obtaining data on the importance of children's folding chairs and stools relative to a manufacturer's overall product line and gross revenues, and feedback regarding the desirability of exit as a strategy for averting regulatory compliance costs. For example, do sales of children's folding chairs or folding stools constitute a small proportion of a manufacturer's overall revenue (
Under section 14 of the CPSA, children's folding chairs and stools are subject to third party testing and certification. Once the new requirements become effective, all manufacturers will be subject to the additional costs associated with the third party testing and certification requirements under the testing rule, Testing and Labeling Pertaining to Product Certification (16 CFR part 1107). Third party testing will include physical and mechanical test requirements specified in the folding chairs final rule; lead testing is already required. Third party testing costs are in addition to the direct costs of meeting the standard.
CPSC staff contacted two small manufacturers regarding testing costs and one firm estimated that chemical and structural testing of one unit of a children's folding chair costs around $1,000 annually. No other firms were willing or able to supply the requested testing cost information. Estimates provided by suppliers for other section 104 rulemakings indicate that around 40 to 50 percent of testing costs can be attributed to structural requirements, with the remaining 50 to 60 percent resulting from chemical testing (lead testing). CPSC staff estimates that testing to structural components of the ASTM voluntary standard could cost about $400 to $500 per sample tested ($1,000 × .4 to $1,000 × .5). These costs are consistent with testing cost estimates for products with standards of similar complexity.
CPSC staff's review of the children's folding chairs and folding stools market shows that three small domestic manufacturers supply one model of children's folding chair or folding stool to the U.S. market annually. The fourth small manufacturer supplies five models of children's folding chairs and folding stools. Therefore, if third party testing were conducted every year, third party testing costs for three manufacturers with only one model would be about $400-$500 annually per model tested, and $2,000-$2,500 for the other manufacturer ($400-$500 per model, five models), if only one sample were tested for each model.
The testing and labeling rule (16 CFR part 1107) is not explicit regarding the number of samples firms will need to test to meet the “high degree of assurance” criterion. However, based on an examination of each small domestic manufacturer's revenues from recent Dun & Bradstreet or Reference USA reports, testing costs are likely to be under one percent of gross revenue for these small manufacturers. Thus, it seems unlikely that testing costs, by themselves, would be economically significant for the small manufacturers unless a very high number of samples per model were needed to meet the “high degree of assurance” criterion. The Commission seeks comments on the typical number of samples that are tested to satisfy third party testing requirements, and whether third party testing would lead to significant economic impact.
Whether there is a significant economic impact on small importers will depend upon the extent of the changes required to come into compliance and the response of their supplying firms. In general, if the supplying firm comes into compliance, the importer could elect to continue importing the compliant product. Any increase in production costs experienced by suppliers as a result of changes made to meet the mandatory standard could be passed on to the importers. If an importer is unwilling or unable to accept the increased costs, or if the importer's supplier decides not to comply with the mandatory standard, the importer could find another supplier of children's folding chairs and stools or stop importing children's folding chairs and stools. Because no small importers responded to requests for information, however, staff could not estimate the economic impact on these firms and cannot rule out a significant economic impact.
To assist with further analysis of the impact of the rule on small importers, the Commission seeks information on the degree to which supplying firms tend to pass on increases in production and regulatory costs to importers. To what extent is the ability to pass on these costs limited by the ease with which importers can switch suppliers or substitute an alternative product for children's folding chairs and stools?
As with manufacturers, all importers will be subject to third party testing and certification requirements, and consequently, will be subject to costs similar to those for manufacturers if the importer's supplying foreign firm(s) does not perform third party testing. These testing costs are not likely, by themselves, to exceed one percent of gross revenue for the six small domestic importers for which revenue information is available. The impact on the other importer is unknown. Again, the Commission is interested in the size
As required by the RFA, staff conducted a Final Regulatory Flexibility Analysis (“FRFA”) when the Commission issued the part 1112 rule (78 FR 15836, 15855-58). Briefly, the FRFA concluded that the accreditation requirements would not have a significant adverse impact on a substantial number of small testing laboratories because no requirements were imposed on test laboratories that did not intend to provide third party testing services. The only test laboratories that were expected to provide such services were those that anticipated receiving sufficient revenue from the mandated testing to justify accepting the requirements as a business decision.
Based on similar reasoning, amending 16 CFR part 1112 to include the NOR for the children's folding chair and stool standard will not have a significant adverse impact on small test laboratories. Moreover, based upon the number of test laboratories in the United States that have applied for CPSC acceptance of accreditation to test for conformance to other mandatory juvenile product standards, we expect that only a few test laboratories will seek CPSC acceptance of their accreditation to test for conformance with the children's folding chair and stool standard. Most of these test laboratories will have already been accredited to test for conformance to other mandatory juvenile product standards, and the only costs to them would be the cost of adding the children's folding chair and stool standard to their scope of accreditation. As a consequence, the Commission certifies that the NOR amending 16 CFR part 1112 to include the children's folding chair and stool standard will not have a significant impact on a substantial number of small entities.
The Commission's regulations address whether we are required to prepare an environmental assessment or an environmental impact statement. Under these regulations, a rule that has “little or no potential for affecting the human environment” is categorically exempt from this requirement. 16 CFR 1021.5(c)(1). The proposed rule falls within the categorical exemption.
This proposed rule contains information collection requirements that are subject to public comment and review by the Office of Management and Budget (“OMB”) under the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501-3521). In this document, pursuant to 44 U.S.C. 3507(a)(1)(D), we set forth:
• A title for the collection of information;
• a summary of the collection of information;
• a brief description of the need for the information and the proposed use of the information;
• a description of the likely respondents and proposed frequency of response to the collection of information;
• an estimate of the burden that shall result from the collection of information; and
• notice that comments may be submitted to the OMB.
Our estimate is based on the following:
There are 14 known firms supplying children's folding chairs or folding stools to the U.S. market. All firms are assumed to use labels on both their products and their packaging already, but they might need to make some modifications to their existing labels. The estimated time required to make these modifications is about 1 hour per model. Each of these firms supplies an average of 1.4 different models of children's folding chairs or folding stools; therefore, the estimated burden hours associated with labels is 1 hour × 14 firms × 1.4 models per firm = 20 annual hours.
We estimate that hourly compensation for the time required to create and update labels is $30.09 (U.S. Bureau of Labor Statistics, “Employer Costs for Employee Compensation,” December 2014, Table 9, total compensation for all sales and office workers in goods-producing private industries:
In compliance with the PRA (44 U.S.C. 3507(d)), we have submitted the information collection requirements of this rule to the OMB for review. Interested persons are requested to submit comments regarding information collection to the Office of Information and Regulatory Affairs, OMB (see the
Pursuant to 44 U.S.C. 3506(c)(2)(A), we invite comments on:
• Whether the collection of information is necessary for the proper performance of the CPSC's functions, including whether the information will have practical utility;
• the accuracy of the CPSC'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, utility, and clarity of the information to be collected;
• ways to reduce the burden of the collection of information on respondents, including the use of automated collection techniques, when appropriate, and other forms of information technology; and
• the estimated burden hours associated with label modification, including any alternative estimates.
Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA refers to the rules to be issued under that section as “consumer product safety rules.” Therefore, the preemption provision of section 26(a) of the CPSA would apply to a rule issued under section 104.
This NPR begins a rulemaking proceeding under section 104(b) of the CPSIA to issue a consumer product safety standard for children's folding chairs and stools, and to amend part 1112 to add children's folding chairs and stools to the list of children's product safety rules for which the CPSC has issued an NOR. We invite all interested persons to submit comments on any aspect of the proposed mandatory safety standard for children's folding chairs and stools and on the proposed amendment to part 1112. Specifically, the Commission requests comments on the costs of compliance with, and testing to, the proposed mandatory children's folding chairs and stools standard, the proposed 6-month effective date for the new mandatory children's folding chairs and stools standard, and the amendment to part 1112. In addition, the Commission requests comments on the proposed amendment to part 1130, to include folding stools in the proposed rule.
Comments should be submitted in accordance with the instructions in the
Administrative practice and procedure, Audit, Consumer protection, Reporting and recordkeeping requirements, Third party conformity assessment body.
Administrative practice and procedure, Business and industry, Consumer protection, Reporting and recordkeeping requirements.
Consumer protection, Imports, Incorporation by reference, Infants and children, Labeling, Law enforcement, and Toys.
For the reasons discussed in the preamble, the Commission proposes to amend 16 CFR chapter II, as follows:
Pub. L. 110-314, section 3, 122 Stat. 3016, 3017 (2008); 15 U.S.C. 2063.
(b) * * *
(43) 16 CFR part 1232, Safety Standard for Children's Folding Chairs and Stools.
(a) * * *
(13) Children's folding chairs and stools;
Sec. 104, Public Law 110-314, 122 Stat. 3016.
This part establishes a consumer product safety standard for children's folding chairs and stools.
(a) Except as provided in paragraph (b) of this section, each children's folding chair and stool shall comply with all applicable provisions of ASTM F2613-14,
(b) Comply with ASTM F2613-14 with the following additions or exclusions:
(1) Instead of complying with section 5.13 of ASTM F2613-14, comply with the following:
(i) 5.13
(ii) [Reserved]
(2) Instead of complying with section 6.8 of ASTM F2613-14, comply with the following:
(i) 6.8
Note X—Use of stops to prevent sliding: If necessary to prevent the product from sliding down the incline, either by its own weight when initially placed on the incline or during the conduct of the test in the following sections, stops can be placed against the product's legs. Stops shall be the minimum height required to prevent sliding and shall not inhibit overturning.
(B) 6.8.2
(C) 6.8.3
(3) Instead of complying with section 7.2 of ASTM F2613-14, including all subsections of section 7.2, comply with the following:
(i) 7.2 Warning Statements: Each folding chair and each folding stool shall have warning statements.
(A) 7.2.1 The warnings shall be easy to read and understand and be in the English language at a minimum.
(B) 7.2.2 The warning statements shall be conspicuous in highly contrasting color(s) (
(C) 7.2.3 The specified warnings shall be separate and distinct from any other graphic or written material on the product and surrounded by a black border. Note: Separate and distinct, for example, on the back of the chair's back rest away from warnings on the underside of the chair so that it is clearly visible to a consumer approaching the chair from the back. For stools, where possible, the label shall be placed in a visible location such as on the legs in such a way that the label does not wrap around the legs.
(D) 7.2.4 Any labels or written instructions provided in addition to those required by this section shall not contradict or confuse the meaning of the required information or be otherwise misleading to the consumer.
(E) 7.2.5 The safety alert symbol
(F) 7.2.6 The safety alert symbol
(G) 7.2.7 The signal word WARNING shall be in black letters on an orange panel surrounded by a black border.
Note 1—When special circumstances preclude the use of the color orange, yellow or red may be used, whichever contrasts best against the product background.
(H) 7.2.8 The solid triangle portion of the safety alert symbol shall be the same color as the signal word lettering, and the exclamation mark shall be the same color as the signal word panel.
(I) 7.2.9 The words “AMPUTATION HAZARD” shall be in bold black letters.
(J) 7.2.10 The precautionary statements shall be indented from the hazard statements, preceded with bullet points, and appear as shown in Figs. 6 and 7.
(K) 7.2.11 The warning label shall contain sufficient white space as shown as shown in Figs. 6 and 7.
(L) 7.2.12 Overall height and width of the label may be modified as necessary to fit on the product, but still meet requirements for conspicuousness. An example of the warning label format described in this section is shown in Figs. 6 and 7.
(M) 7.2.13 For folding chairs and folding stools with latch(es), warnings shall address the following:
(N) 7.2.14 For folding chairs and folding stools without latch(es), warnings shall address the following:
(4) In addition to the figures in ASTM F2613-14, use the following figure 6:
(5) In addition to the figures in ASTM F2613-14, use the following figure 7:
Consumer Product Safety Commission.
Notice of proposed rulemaking.
The Danny Keysar Child Product Safety Notification Act, section 104 of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), requires the United States Consumer Product Safety Commission (“Commission” or “CPSC”) to promulgate consumer product safety standards for durable infant or toddler products. These standards are to be “substantially the same as” applicable voluntary standards or more stringent than the voluntary standard, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product. The Commission is proposing a safety standard for infant bouncer seats (“bouncer seats”) in response to the direction of section 104(b) of the CPSIA. In addition, the Commission is proposing an amendment to 16 CFR part 1112 to include 16 CFR part 1229 in the list of notice of requirements (“NORs”) issued by the Commission.
Submit comments by January 4, 2016.
Comments related to the Paperwork Reduction Act aspects of the marking, labeling, and instructional literature requirements of the proposed mandatory standard for bouncer seats should be directed to the Office of Information and Regulatory Affairs, the Office of Management and Budget, Attn: CPSC Desk Officer, FAX: 202-395-6974, or emailed to
Other comments, identified by Docket No. CPSC-2015-0028, may be submitted electronically or in writing:
Suad Wanna-Nakamura, Ph.D., Project Manager, Directorate for Health Sciences, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone: 301-987-2550; email:
The CPSIA was enacted on August 14, 2008. Section 104(b) of the CPSIA, part of the Danny Keysar Child Product
The term “durable infant or toddler product” is defined in section 104(f)(1) of the CPSIA as “a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years,” and the statute specifies twelve categories of products that are included in the definition, including walkers, carriers and various types of children's chairs. In issuing regulations governing product registration under section 104, the Commission determined that an “infant bouncer” falls within the definition of a “durable infant or toddler product.” 74 FR 68668 (Dec. 29, 2009); 16 CFR 1130.2(a)(15).
Pursuant to section 104(b)(1)(A) of the CPSIA, the Commission consulted with manufacturers, retailers, trade organizations, laboratories, consumer advocacy groups, consultants, and members of the public in the development of this notice of proposed rulemaking (“NPR”), largely through the ASTM process. The NPR is based on the most recent voluntary standard developed by ASTM International (formerly the American Society for Testing and Materials), ASTM F2167-15,
The testing and certification requirements of section 14(a) of the Consumer Product Safety Act (“CPSA”) apply to the standards promulgated under section 104 of the CPSIA. Section 14(a)(3) of the CPSA requires the Commission to publish an NOR for the accreditation of third party conformity assessment bodies (“test laboratories”) to assess conformity with a children's product safety rule to which a children's product is subject. The proposed rule for bouncer seats, if issued as a final rule, would be a children's product safety rule that requires the issuance of an NOR. To meet the requirement that the Commission issue an NOR for the bouncer seat standard, this NPR also proposes to amend 16 CFR part 1112 to include 16 CFR part 1229, the CFR section where the bouncer seat standard will be codified, if the standard becomes final.
The scope section of ASTM F2167-15 defines an “infant bouncer seat” as: “a freestanding product intended to support an occupant in a reclined position to facilitate bouncing by the occupant, with the aid of a caregiver or by other means.” ASTM F2167-15 states that infant bouncer seats are intended for “infants who have not developed the ability to sit up unassisted (approximately 0 to 6 months of age).”
Bouncer seats vary widely in style and complexity, but typically, bouncer seats consist of a cloth cover stretched over a wire or tubular frame. Wire frame bouncers have two designs. The forward bend design is constructed with the seating area supported from the front side of the product. The second wire frame design is a rear bend design. In the rear bend design, the seat is supported from the rear side of the product. Other bouncer designs are also currently available, including, but not limited to, products with individual wire legs, solid bases, and spring designs. These infant bouncer designs use different methods to support the seat and are intended for “bouncing,” as defined in ASTM F2167.
All bouncer seats support the child in an inclined position, and some brands have adjustable seat backs. Various bouncer seat models include a “soothing unit” that vibrates or bounces the chair, and may play music or other sounds. Most bouncer seats also feature an accessory bar with attached toys that are, or at some point will be, within the child's reach. Most of the bouncer seat models examined by Commission staff provide a 3-point restraint system consisting of wide cloth crotch restraints, and short adjustable waist straps with plastic buckles. Only two models of bouncer seats reviewed by CPSC employed upper body restraints. Many bouncer seat brands also include an “infant insert,” intended for use to support smaller babies. See Tabs C and D, Staff Briefing Package: Infant Bouncer Seats Notice of Proposed Rulemaking, dated September 30, 2015 (“Staff NPR Briefing Package”), available at:
Although additional suppliers may exist, CPSC staff identified 22 firms supplying infant bouncer seats to the U.S. market. The 22 identified firms primarily specialize in the manufacture and/or distribution of children's products, including durable nursery products. The majority of the 22 known firms are domestic (including 8 manufacturers and 10 importers). The remaining four firms are foreign manufacturers.
CPSC's Directorate for Epidemiology, Division of Hazard Analysis is aware of 277 reported incidents involving bouncer seats, including 11 fatalities and 51 injuries, occurring between January 1, 2006 and February 2, 2015. The incidents are based on reports involving victims 12 months and younger in the Injury or Potential Injury Incident (“IPII”), In-Depth Investigation (“INDP”), and Death Certificates (“DTHS”) databases (collectively referred to as Consumer Product Safety Risk Management System data, or “CPSRMS” data). Additionally, CPSC staff found 672 bouncer-related incidents, including two fatalities, reported in the National Electronic Injury Surveillance System (“NEISS”) records retrieved for bouncer incidents from January 1, 2006 to December 31, 2013, involving children 12 months old and younger. A detailed review of the incident data and analysis associated with bouncer seats can be found in Tabs A, B, and D of the Staff NPR Briefing Package.
For the reporting periods described in the preceding paragraph, CPSC staff found 11 reported fatalities in the CPSRMS data, and two reported fatalities in the NEISS data. A brief description of each incident follows:
• 120427HCC1640: A 6-month-old died of blunt force trauma to the head when the infant's father lifted him in the bouncer seat. The bouncer collapsed and the child fell out of the back onto carpeted floor. He suffered a linear skull fracture and died the following day.
• 121001HCC2002: A 3-month-old was fed and left to sleep in her bouncer seat. The child's father reported that he found her face down, unrestrained, in the seat. The seat was on the floor, and the child's mother and 2-year-old sister had been asleep on a couch nearby.
• 070214CCC1300: A 2-month-old who suffered from reflux and a respiratory infection was placed, unrestrained, to sleep in a bouncer that was lined with a blanket; the bouncer was on the floor next to the couch where his mother slept for the night. The child turned over in the seat, and was found unresponsive, face down against seat back. Cause of death was positional asphyxia.
• 110726CAA3941: A 3-month-old was placed on an adult bed in an infant bouncer seat, unrestrained, for a nap. The mother reported that the child had fallen out of the seat and she found her face down on the bed. The child was diagnosed with an irreversible anoxic brain injury and died 19 days later.
• 726037034: A 3-month-old was left in a “bouncey (
• 1051041332: A 4-month-old “suffocated when face down in soft bedding on bouncey (
• 101012HCC3049: A 6-month-old (born several weeks premature) was placed in a bouncer on the floor (in front of a television) as he was falling asleep while his mother showered. She placed a pillow under the rear legs of the bouncer to raise it. She found the child unresponsive, turned with his face against the side of the bouncer, one leg out of the restraints. Cause of death was positional asphyxia.
• 080917HBB3900: A 2-month-old in a bouncer was placed in a crib to sleep. She was found suspended, partially upside down, over the side of the bouncer with one leg entwined in the restraints. A depression in the mattress suggests that the child's face was against it. Cause of death was mechanical asphyxia.
• X1490229A: A 4-month-old was swaddled and placed for a nap, unrestrained, in a bouncer, which was then placed on the floor; the child reportedly just started to roll over, but had not done so completely on her own. Her parents found her unresponsive “with her face against the back of the infant seat and half way off the chair from the waist level down . . .”; she could not be resuscitated. Cause of death was positional asphyxia.
• 140102HWE0001: A 6-month-old was sleeping, strapped into a bouncer and when she awoke, was moved in the bouncer to a bedroom and left briefly with two toddlers, and possibly a pet dog. When the caregiver returned, she found the chair overturned on the floor with the victim's neck lying over the chair's [toy bar]. The report is inconsistent regarding whether the bouncer was placed initially on the bed or on the floor. HS staff considers the injuries described in the ME's report to be consistent with a fall rather than a tip-over at floor level. The child died five days later. Cause of death was positional asphyxia.
• 140422CAA1573: A 3-month-old was placed to sleep for the evening, unrestrained, in a bouncer on the floor in a room with several other children. Her mother found her five hours later face down in front of the bouncer on the floor and not breathing.
• NEISS: 120328281: The parents of a 5-month-old found him unresponsive, flipped over in the bouncer seat with his leg still through one leg hole. The cause listed was cardiac arrest.
• NEISS: 130645295: A 2-month-old child had been asleep in a “bouncy”; his father awoke to find the child unresponsive on the floor. The cause of death was cardiac arrest.
Most of the infants' deaths involved the presence of excess bedding in or under the bouncer; placement of the bouncer on a soft surface such as an adult bed; placement of the bouncer in a crib; and carrying or placing the bouncer at an elevated height. Most of the bouncer seat deaths also involved the infant being placed in the bouncer to sleep unrestrained, which allowed the infant unsupervised time and movement within the hazardous environment which contributed to the death. Tab B, Staff NPR Briefing Package. In nine cases, the child was reported as napping or sleeping and without restraints in five of the nine incidents. In two cases, the child was partially out of the restraints when found; in the case when the bouncer was inside the crib, the child was partially suspended upside down over the side of the bouncer with one leg in the restraints. Moreover, in at least four cases, the child's emerging ability to turn over, resulted in the child's face resting against the conforming surface of the seat back, and this appears to have been a significant factor in causing the child's death. Tab D, Staff NPR Briefing Package.
Of the 277 CPSRMS bouncer-related incidents involving children 12 months old and younger, 266 incidents were nonfatal. Fifty-one (51) of these nonfatal incidents reported injuries. Four of the 51 reported injuries involved serious head injuries related to falls from a bouncer placed on an elevated surface. Other reported injuries included skull fractures, leg fractures, head contusions, eye bruises, facial bruises and scratches, a split lip and torn upper frenulum, a finger bruise, leg cuts, leg bruises, heel lacerations, and a blood blister. Because reporting is ongoing, the number of injuries and fatalities associated with bouncer seats are subject to change. See Tab A, Staff NPR Briefing Package.
Incidents involving the infant occupant falling from the bouncer are of most concern to CPSC because falls have the greatest potential for a serious injury. According to Health Sciences staff's analysis, 77 of the 266 nonfatal incidents involved the infant occupant falling from the bouncer. In five of these incidents, the infant occupant fell from a bouncer placed at an elevated height, such as on a kitchen countertop or dining table, or the bouncer was being carried by the caregiver; in four (80%) of these elevated-height incidents, the infant fell from the bouncer and sustained a severe head injury. Severe head injuries, such as concussions and fractured skulls, could cause extensive brain damage and affect the infant's motor development, emotional development, speech, ability to think and learn, and overall quality of life, long after the incident has occurred. The majority of the remaining 189 nonfatal incidents that did not involve a fall
To identify hazard patterns associated with infant bouncer seats, CPSC staff considered all 277 reported incidents in CPSRMS involving product-related issues. Tab A, Staff NPR Briefing Package. Product-related issues associated with these incidents include:
CPSC staff retrieved 672 NEISS records (estimated total of 17,200 injuries) describing infant bouncer seat incidents between January 1, 2006 and December 31, 2013. See Tab A, Staff NPR Briefing Package. Injury estimates are derived from NEISS data, where sampling weights are used to project the number of cases reported by NEISS hospitals to national estimates. A statistically significant upward trend exists in the estimated emergency department-treated injuries involving bouncer seats for victims under 1-year-old from 2006 to 2013.
An estimated 15,500 patients were treated and released for bouncer injuries, and an estimated 1,300 patients were treated and admitted, treated and transferred to another hospital, or held for observation. An estimated 15,100 (92%) bouncer injuries involved the head and face, while 1,300 estimated injuries involved an unknown area, or the rest of the body (appendages, torso, internal). Two cases involved a victim who died from cardiac arrest. One victim died after flipping over in an infant bouncer seat with his leg still through one leg opening, and the other victim was found on the floor unresponsive after being asleep in the bouncer. These two fatalities are in addition to the 11 fatalities reported in CPSRMS.
Of the 672 NEISS records describing bouncer injuries, 287 incidents took place on the floor or an unknown location. The remaining 385 incidents, or an estimated 9,200 injuries, involved hazardous placements: 342 of these incidents, or an estimated 8,100 injuries, resulted from falls. Hazardous placements included counters, tables, and other elevated surfaces (
Eighty-one percent of the incidents resulted in injuries (n=532; estimate=13,900). CPSC staff reviewed the NEISS cases and determined the severity of the reported injuries. Based on that analysis, 11 percent of the injuries were severe, such as skull fractures and intracranial hemorrhages; and 41 percent were moderate, such as less serious head injuries and fractures involving other body parts. CPSC staff concluded that infants were more likely to sustain a severe head injury when they fell from elevated heights, and that the potential for severe head injury increases if the child is being carried in the bouncer, and/or if they are unrestrained in the bouncer.
Since January 1, 2006, Compliance staff conducted two bouncer seat recalls involving two different firms. The first recall, in April 2007, involved 1,400
CPSC staff found no other standard for infant bouncer seats. See Tab C, Staff NPR Briefing Package. However, CPSC staff identified two closely related international standards, BS EN 14036:2003,
BS EN 12790 specifies safety requirements and the corresponding test methods for fixed or folding reclined cradles intended for children up to 6 months and/or up to a weight of 9 kg. Unlike infant bouncer seats, BS EN 12790 is intended to cover non-bouncing products designed to be a safe sleeping environment. BS EN 12790 contains the same general requirements as BS EN 14036. Additional testing in BS EN 12790 includes stability, static strength, dynamic strength, slip resistance, unintentional folding, and restraints. ASTM F2167 contains more stringent stability, static strength, and dynamic testing than BS EN 12790. Slip-resistance tests are substantially similar in both standards. BS EN 12790 contains an unintentional folding test that is not applicable to infant bouncer seats. Finally, although ASTM F2167 does not have a restraint slip test, the restraint strength test requires an additional pull test at 45lb (200 N) to the normal use direction. Accordingly, overall, ASTM F2167-15 is more stringent in most areas than BS EN 12790 and addresses the hazard patterns identified in CPSC's incident data.
A voluntary standard for infant bouncer seats was first approved in December 2001 and published in January 2002, as ASTM F2167-01,
ASTM F2167-15 includes the following key provisions: Scope, terminology, general requirements, performance requirements, test methods, marking and labeling, and instructional literature.
• Hazardous sharp points and edges (16 CFR 1500.48 and 1500.49);
• Small parts (16 CFR 1501);
• Lead in paint (16 CFR 1303);
• Banned articles (16 CFR 1500.18(a)(6) and 1500.86(a)(4));
• Wood parts;
• Latching and locking mechanisms;
• Scissoring, shearing, and pinching;
• Openings;
• Exposed coil springs;
• Protective components;
• Permanency of labels and warnings; and
• Toys (ASTM F963).
• Restraints. ASTM F2167-15 requires that restraints be provided with a bouncer seat that are capable of securing a child when the bouncer is placed in any use position recommended by the manufacturer. ASTM F 2167-15 requires both a waist and a crotch restraint, and the restraint must be designed in such a way that the crotch restraint must be used when the waist restraint is in use. The standard specifies that the restraint's anchorages shall not separate from the attachment points to the bouncer when tested. Testing to this requirement is performed by securing the bouncer seat and applying a 45lb (200N) force for a period of 10 seconds to a single attachment point of the restraint in the normal use direction. Although no provisions in the performance requirements address the actual use of the restraint, ASTM F2167-15 contains a warning label requirement regarding proper use of the restraint.
• Stability. ASTM F2167-15 includes a test for bouncer stability in each direction, forward, sideward, and rearward. In the forward stability test, an infant CAMI dummy is placed in the infant bouncer and the restraints are adjusted to fit in accordance with the manufacturer's instructions. The dummy is then removed and the stability test fixture is placed in the seat. A vertical static force of 21lb (93N) or three times the manufacturer's recommended weight, whichever is greater, is applied for 60 seconds to the fixture at a distance of 6in (152.4mm) in front of the crotch post. To pass the test, the bouncer must not tip over or the front edge must not touch the test surface.
Repeatable stability testing in the sideward and rearward directions is more difficult to accomplish based on a bouncer's potential shifts in the center of gravity. Because of these potential shifts, sideward and rearward testing for bouncers is done differently than in the forward direction. The current sideward and rearward stability tests are performed with the infant CAMI dummy placed in the seat and the bouncer placed on a 20-degree incline in the most unstable orientation other than forward. To pass the test, the bouncer must not tip over in this position.
• Slip Resistance. The slip resistance test is designed to keep bouncers from traveling across a surface while being used by a child. Bouncers placed on smooth, hard surfaces, such as a kitchen counter, are less likely to creep along the surface while a child is in the seat, if the product is designed to meet the slip resistance requirement. The slip resistance requirement in ASTM F2167-15 includes both static and dynamic components. The static slip resistance test is performed on a smooth laminate surface with a matte finish and a 10-degree incline. A 7.5lb (3.4kg) CAMI dummy is placed in the bouncer with the front of the bouncer facing down the incline. The bouncer must not move down the incline more than 1/8 in. (3mm) in 1 minute. The test is repeated with the bouncer seat oriented with the left, right, and rear sides pointed down the incline.
In the dynamic slip resistance test, a test fixture is placed in the bouncer seat with a 7.5lb (93.4kg) weight, and the bouncer is placed on the 10-degree inclined surface. Additionally, if the bouncer has a feature, such as a vibration unit, the unit is to be turned on during the test. An additional 2.5lb (1.13kg) weight is dropped onto the test fixture from a height of 6 in. (152.4mm) a total of 10 times. To pass, the bouncer seat is not allowed to move more than 1/2in (13mm) during the test. This test is repeated with the bouncer in the remaining sideways and rear orientations.
• Structural Integrity and Disassembly/Collapse. ASTM F2167-15 requires that bouncer seats pass a series of three tests to evaluate structural integrity: (1) A static load test; (2) a dynamic load test; and (3) a disassembly/collapse test.
To pass the first two tests, at the conclusion of the tests, the bouncer seat shall have no failure of seams, breakage of materials, or changes of adjustments that could cause the product not to fully support the child or that creates a hazardous condition outlined in the general requirements of the standard. The static load test requires that a 6″ × 6″ × 3/4″ (152.4 × 152.4 × 1.91mm) wood block be placed in the bouncer seat and loaded with the greater of 60lb (27.3kg), or 3 times the manufacturer's recommended maximum weight, whichever is greater. The test is intended to ensure that the bouncer design is sufficient to hold the weight of any child that is likely to use the product.
The dynamic load test requires that a 6″ (152.4mm) weld cap be dropped from a distance of 1″ (25mm) with the convex surface face down onto the bouncer seat. Extra weight is added to the weld cap to provide a total weight of 33lb (15kg). The drop for the dynamic load test is repeated a total of 100 times. This test simulates the child being placed in the seat and removed, as well as the forces applied to the bouncer while the child is in the seat. This test provides a reasonable factor of safety to ensure that the bouncer seat does not fail when used in accordance with the manufacturer's recommendations.
The disassembly/collapse test simulates lifting the bouncer by the ends with a child seated in the product to see whether the bouncer collapses or folds up into a position that might result in injury. To conduct the test, a newborn CAMI dummy is placed in the bouncer seat and a 15lb (67N) force is applied to the bouncer at the location most likely to cause disassembly. In situations where multiple locations are present that could result in disassembly, the test is repeated for each location. If a hazardous condition results from the test, the bouncer fails the requirement. A hazardous condition is anything that would result in the bouncer not meeting the general requirements, or any visual indications of disassembly or collapse of the bouncer.
• Drop Test. The drop test is intended to evaluate the durability of bouncer seats in instances of misuse, and to assess compliance with the general safety requirements, such as small parts, sharp points, and sharp edges. The drop test applies dynamic forces to the bouncer in directions not associated with normal use by a child. The bouncer must be dropped from a height of 36″ (914.4mm), once in each of six different planes (top, bottom, front, rear, left side, and right side). If the bouncer is of a folding design, the six drops must be done in both the folded and unfolded configurations (for a total of 12 drops). At the end of the test, the bouncer must meet the general requirements outlined in Section 5.0 of the standard.
• Toy Bar Attachment Integrity. ASTM F2167-15 includes general performance requirements to test toy bars on bouncer seats. A static test is performed with a 6″x6″x3/4″ (152.4x152.4x1.91mm) wood block placed in the bouncer seat and loaded with the greater of 40lb (18.2kg) or two times the manufacturer's recommended maximum weight. The bouncer is then gradually lifted. In the dynamic test, an infant CAMI is placed in the seat and a cable is attached to the center grasping point of the handle. The bouncer is raised and allowed to drop 2″ (5.1cm). The toy bar must completely release from the bouncer or move less than 2″ (5.1cm) from the resting position if the bar has a single attachment point. Additionally, individual toys included with the bouncer are required to meet the general requirements in the standard.
• Battery Compartments. ASTM recently added battery and containment requirements to F2167. The new requirements include permanently marking the correct battery polarity adjacent to the battery compartment, providing a means to contain the electrolytic material in the event of battery leakage, protection against the possibility of charging non-rechargeable batteries, and defining a maximum surface temperature for any accessible component. The battery polarity requirement requires a visual inspection of the battery compartment. Surface temperature and charging protection are accomplished through the performance of an operational test. The bouncer is operated using new batteries of the type recommended by the manufacturer. Testing is performed by operating the bouncer at the highest setting for 60 minutes. Upon conclusion, no battery leakage, explosion, or fire can occur, and no accessible component shall exceed 160 °F degrees (71°C). The performance requirement includes a provision for testing using a/c power; but staff is unaware of bouncers
• Manufacturing Information. Section 8.1 requires that each product and its retail packaging be marked or labeled, clearly, legibly, and permanently, to include the name and address of the manufacturer, distributor, or seller, and a code or other means to identify the date of manufacture. Section 8.2 states that a manufacturer should change the model number when the product undergoes a significant structural or design change that affects conformance to the standard.
• Product Warnings. CPSC staff and the ASTM task group and subcommittee worked to improve the warning label requirements for bouncer seats in section 8.3 of ASTM F2167 to address the hazard of falls from elevated surfaces. ASTM F2167-15 includes several changes to the warnings requirements intended to address this hazard, as well as suffocation. Bouncer seats must be labeled with two groups of warning statements, a fall hazard warning and a suffocation warning. ASTM F2167-15 includes new content on color in the warning labels, placement of the fall hazard warning on the front of the product, and changes to the suggested warning language for both falls and suffocation. As set forth in more detail in section VI of the preamble, CPSC is proposing to include additional changes to the warning label requirements to address the deaths and injuries associated with infants falling from bouncer seats, and associated with infants falling while remaining in the seat, that occur when caregivers place bouncer seats on an elevated surface.
CPSC staff examined the relationship between the performance requirements in ASTM F2167-15 and each of the hazard patterns identified in section III.C of this preamble. Tab C, Staff NPR Briefing Package. Based on staff's assessment, CPSC finds that the current voluntary standard, ASTM F2167-15, adequately addresses the mechanical hazard patterns identified in the incident data associated with bouncer seats. However, CPSC finds that the warning label requirements in ASTM F2167-15 can be improved to address infant falls from bouncers placed on an elevated surface. At this time, such falls cannot be addressed by a performance requirement for bouncer seats. Addressing incidents when infants fall from bouncer seats, as well as incidents when infants fall while remaining in the seat, will require a change in caregiver behavior. Accordingly, CPSC is proposing to strengthen the requirements for the warning label to increase compliance by caregivers and reduce the risk of injury to infants. Tab D, Staff NPR Briefing Package.
The following section discusses how each of the product-related hazard patterns identified in section III.C of this preamble is addressed by the current voluntary standard, ASTM F2167-15. Where CPSC is proposing additional requirements, the rationale for these changes is also explained.
Although the standard includes performance testing for better stability and slip resistance, addressing hazardous placement incidents with performance requirements is difficult because the hazard scenario involves consumer behavior, a foreseeable misuse of the bouncer seat, which should be used only on the floor. Accordingly, CPSC is proposing modifications to the text, placement, and formatting of warnings requirements and instructional literature requirements of ASTM F2167-15 to help further reduce injuries related to this hazard pattern. A detailed description of staff's assessment, rationale, and citations to the relevant literature for the recommended changes appear in Tab D of the Staff's NPR Briefing Package.
The Commission proposes to add two components to the warning statements for bouncer seats that are absent in ASTM F2167-15: (1) The phrase “even if baby is sleeping” to the warning to use restraints; and (2) developmental guidance on when to stop using the product to help avoid suffocation and fall risks. In general, guidelines for warning statements agree that warnings should identify the hazards, the consequences, and the means to avoid them (
“Always use restraints” is a part of the warnings and instructions in the current version of ASTM F2167, and has been so over many editions of the standard. Based on the incident data relating deaths to suffocation among unrestrained infants while they slept, and serious head injuries to unrestrained infants in falls from bouncer seats that are placed on elevated surfaces and falls from bouncer seats that are being carried, CPSC believes that the current requirement is inadequate to address the risk of injury to infants from falls out of bouncer seats, or the risk of suffocation among unrestrained infants who are sleeping.
The Commission's proposed warning language includes the statement, “Adjust to fit snugly,
Although the Commission understands the marketing concerns of some manufacturers, the proposed rule addresses how caregivers use bouncer seats, the sleeping activity of infants that are intended to use the product, and the deaths and injuries reflected in the data when caregivers fail to use restraints. Accordingly, to address caregiver behavior, it is essential to include language that conveys the hazard associated with allowing a child to sleep in a bouncer seat while unrestrained. The Commission's concern is that young infants, such as those intended to use bouncer seats, spend more time asleep than awake.
Caregivers may remove or loosen restraints while a child is sleeping in a bouncer seat. Removing or loosening product restraints while a child naps or sleeps is a known hazard pattern across infant products that use restraints. It is foreseeable that some caregivers will perceive the restraints as uncomfortable and unnecessary (Lerner, Huey, & Kotwal; 2001), particularly for younger users, who may be seen as not yet mobile enough to be at risk of falling out of the bouncer, and even less at risk of falling if the infant is asleep. CPSC's proposed warning statement addresses the fact that a child
The second modification to ASTM F2167-15 in CPSC's proposed warning content is in the developmental guidance given in the suffocation warning and in the product instructions. The warning in the current ASTM standard includes the developmental statement: “never use for a child able to sit up unassisted,” a milestone which, on average, a child will accomplish at about 6 months of age. Some packaging and instructions that CPSC staff reviewed also stated that the product is for use from birth
CPSC proposes that the bouncer seat warning label and product instructions advise caregivers to stop using the product when children start trying to sit up. On average, children reach this milestone at 4.8 months.
Language in ASTM F2167-15 requires the fall hazard warning to appear anywhere on the front surface of the product's seat back. To address hazards, warning labels must be conspicuous, formatted to help attract and maintain attention, and include appropriate instructional content. Accordingly, CPSC proposes that the fall hazard warning label be required to be on the front of the product near the infant's head to increase the likelihood that caregivers will notice it, and comply with its recommendations, at decision points affecting the child's safety. This location near the infant's head was adopted for warnings on hand-held infant carriers in 16 CFR part 1225,
CPSC's research indicates that placement of the warning label near the child's face on the bouncer seat is essential in the effort to influence caregivers' behavior. Research indicates that the location of a warning label plays a vital role in its salience, a crucial factor in effectiveness (
Because a label must be seen to have an effect, visibility is a prerequisite to effectiveness. Visibility, in itself, however, is an insufficient requirement. Given the number, type, and severity of the incidents that prompted the revisions to the warnings, the appropriate criterion is that the label be likely to draw the caregiver's attention at any decision point that may affect safe use. As with the required labeling for hand-held infant carriers, the warning label should be near the child's face because that is where the caregiver's attention is most likely to be focused. This is the most conspicuous location on the product and offers the best opportunity to influence the caregiver's behavior.
During the ASTM process, when CPSC staff suggested locating the fall hazard warning next to the infants' head, ASTM subcommittee members expressed concerns that (1) common label materials present potential abrasion and cut hazards if adjacent to an infant's face; (2) the location is design-restrictive for smaller models because of the size of the label; and (3) due to space restrictions, the location is challenging for those firms that use labels in multiple languages.
Based on staff's review of bouncer seats and the identified issues, the Commission believes these issues can be resolved. As noted above, CPSC's proposed location for the fall hazard warning is the same as that recently adopted for warnings on infant car seats that are also hand-held carriers. NHTSA adopted this location for its air bag warning in these products in the late 1990's, based on its own research. CPSC staff examined car seats and found that both heat transfer and sewn-on labels, the latter of which was identified by industry as a concern, are used on car seats. CPSC's project manager for the hand-held carrier standard reported that neither injuries nor space requirements due to the need to produce labels in multiple languages were raised as concerns for hand-held carriers. Firms that produce infant car seat carriers have managed these issues successfully. CPSC staff contacted NHTSA staff responsible for routine data review, who confirmed that there have been no complaints of injury of any type resulting from car seat labels near a child's face. Finally, CPSC's proposed label is approximately 2.25 inches long and 2.0 inches wide. Review of hand-held infant carriers that are also infant car seats, which require a larger
Although no voluntary or mandatory requirement exists for multiple languages on products sold in the U.S., given the relatively small size of the proposed warning label, multiple options appear available to firms for placement of the fall hazard warning in multiples languages. For example, the warning label could appear in a different language on either side of the child's head, as suggested by the Canadian representative to the task group; different labels could be made for different markets; or the label length could be extended to accommodate additional languages, as some firms have done with infant car seat labels.
ASTM F2167-15 (1) allows the text and the background of the warning label, except for the area behind the word “WARNING,” to be any color as long as it is contrasting, and (2) provides no format guidance. Although example labels with CPSC's recommended format are presented in the voluntary standard, the standard includes the permissive statements that the figures “ . . . are presented as EXAMPLES ONLY . . . [emphasis in original]” and that the format and “wording content,” as well as the use of highlighting, “are at the discretion of the manufacturer.”
The Commission proposes that the formatting requirements for bouncer seats reflect the format shown in the label in Figure 1. Good formatting helps attract and maintain attention, and aids reading and comprehension. Information is processed more quickly and easily when it is organized by content into brief chunks. CPSC is concerned that the quoted statements make it likely that some firms will continue to use poor quality labels that present warning information in a cluttered paragraph style that is difficult to read, rather than a label that is conspicuous, easy to read, and easy to comprehend, as is the recommended warning label.
The Commission concludes that ASTM F2167-15 adequately addresses most of the hazards associated with bouncer seats, but proposes to modify the warning label requirements to increase effectiveness aimed at changing caregiver behavior to further reduce the risk of injury to infants from falls. Thus, the Commission proposes to incorporate by reference ASTM F2167-15 with the following modifications to the warning label requirements:
• Revise the content of the warnings, markings, and instructions to:
• Add text to the warnings that states to use the restraints “. . . even if baby is sleeping . . .”;
• change the text in the warnings to read, “stop using when baby starts trying to sit up”; and
• change the developmental guidance in the instructions, if stated, to read, “from birth (or “0”) until baby starts trying to sit up.”
• Require that the fall hazard label be located on the front surface of the bouncer adjacent to the area where the child's head would rest, and modify the current visibility test to reflect this requirement.
• Specify a standard format (including black text on a white background, table design, bullet points, and black border) for the warnings on the product and in the instructions.
The CPSA establishes certain requirements for product certification and testing. Products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard or regulation under any other act enforced by the Commission, must be certified as complying with all applicable CPSC-enforced requirements. 15 U.S.C. 2063(a). Certification of children's products subject to a children's product safety rule must be based on testing conducted by a CPSC-accepted third party conformity assessment body.
The Commission published a final rule,
All new NORs for new children's product safety rules, such as the infant bouncer seat standard, require an amendment to part 1112. To meet the requirement that the Commission issue an NOR for the proposed bouncer seat standard, as part of this NPR, the Commission proposes to amend the existing rule that codifies the list of all NORs issued by the Commission to add bouncer seats to the list of children's product safety rules for which the CPSC has issued an NOR.
Test laboratories applying for acceptance as a CPSC-accepted third party conformity assessment body to test to the new standard for bouncer seats would be required to meet the third party conformity assessment body accreditation requirements in part 1112. When a laboratory meets the requirements as a CPSC-accepted third party conformity assessment body, the laboratory can apply to the CPSC to have 16 CFR part 1229,
Section 1229.2(a) of the proposed rule would incorporate by reference ASTM F2167-15. The Office of the Federal Register (“OFR”) has regulations concerning incorporation by reference. 1 CFR part 51. The regulations require that, for a proposed rule, agencies discuss in the preamble of the NPR ways that the materials the agency proposes to incorporate by reference are reasonably available to interested persons or how the agency worked to make the materials reasonably available. In addition, the preamble of the proposed rule must summarize the material. 1 CFR 51.5(a).
In accordance with the OFR's requirements, section V.B. of this preamble summarizes the provisions of ASTM F2167-15 that the Commission proposes to incorporate by reference. ASTM F2167-15 is copyrighted. By permission of ASTM, the standard can be viewed as a read-only document during the comment period on this NPR, at:
The Administrative Procedure Act (“APA”) generally requires that the effective date of a rule be at least 30 days after publication of the final rule. 5 U.S.C. 553(d). The Commission is proposing an effective date of 6 months after publication of the final rule in the
The Commission is issuing a proposed rule under the requirements of section 104 of the Consumer Product Safety Improvement Act (“CPSIA”) that would incorporate by reference the most recent ASTM standard for infant bouncer seats, ASTM F2167-15, with several modifications to the requirements for product warnings and instructional literature. In this section, we summarize staff's evaluation of the potential economic impact of the proposed rule on infant bouncer seats on small entities, including small businesses, as required by the Regulatory Flexibility Act (“RFA”). Section 603 of the RFA requires that agencies prepare an initial regulatory flexibility analysis (“IRFA”) and make it available to the public for comment when the general notice of proposed rulemaking (“NPR”) is published, unless the head of the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The IRFA must describe the impact of the proposed rule on small entities and identify any alternatives that may reduce the impact. See Tab F, Staff NPR Briefing Package.
An infant bouncer seat is defined in ASTM F2167-15,
Staff identified 22 firms (including large and small) supplying infant bouncer seats to the U.S. market, although there may be additional firms as well. These firms specialize primarily in the manufacture and/or distribution of children's products, including durable nursery products. The majority of the 22 known firms are domestic (including 8 manufacturers and 10 importers). The remaining four firms are foreign manufacturers.
Section 104 of the CPSIA requires the CPSC to promulgate a mandatory standard for infant bouncer seats that is substantially the same as, or more stringent than, the voluntary standard if the Commission determines that a more stringent standard would further reduce the risk of injury associated with such products.
CPSC staff worked closely with ASTM to develop the revised requirements, test procedures, and warning labels that have been incorporated into ASTM F2167 since the rulemaking process started in January 2013 in an effort to reduce this risk. However, not all of staff's warning label recommendations were adopted into the most recent version of the voluntary standard, ASTM F2167-15. Therefore, the Commission proposes to incorporate by reference ASTM F2167-15, with the remaining modifications staff recommended to ASTM.
The Commission proposes adopting the voluntary ASTM standard for infant bouncer seats (ASTM F2167-15) with additional changes to the warning labels (in particular, the location of the fall hazard warning label) and a test to ensure the visibility of those labels on the product. A description of the current voluntary standard appears in section V of this preamble, and a description of the proposed modifications to the warning requirements appears in section VII of this preamble.
All firms would need to modify the text of their warnings for both the product and the instruction manual. The fall hazard warning would need to be re-located next to the child's head
Staff discussed these changes with several ASTM members and supplier representatives. The possible economic impact of these changes on small business is discussed in Tab F of Staff's NPR Briefing Package and in section XI.G of this preamble.
No federal rules duplicate, overlap, or conflict with the proposed rule.
CPSC is aware of approximately 22 firms (large and small) currently marketing infant bouncer seats in the United States, 18 of which are domestic. Under U.S. Small Business Administration (“SBA”) guidelines, a manufacturer of infant bouncer seats is categorized as small if it has 500 or fewer employees, and importers and wholesalers are considered small if they have 100 or fewer employees. Our analysis is limited to domestic firms because SBA guidelines and definitions pertain to U.S.-based entities. Based on these guidelines, about 12 of the 22 firms are small—five domestic manufacturers and seven domestic importers. Additional unknown small domestic infant bouncer seats suppliers may be operating in the U.S. market.
The economic impact of the proposed bouncer standard should be small for the five small domestic manufacturers, apart from third party testing costs. The
None of the small manufacturers typically includes more than four languages in their warnings (two firms use two languages; two firms use three languages; and one firm uses four languages). Based upon inspection of their products and the space available for the warnings, redesign should not be required for any of the bouncers supplied by the known small manufacturers. The firm using four languages might opt to redesign to give their product(s) a less cluttered appearance. However, discussions with a firm representative contacted by staff indicated that the firm was not concerned about the location of the warning labels.
Under section 14 of the CPSA, once the new infant bouncer seat requirements become effective, all manufacturers will be subject to the third party testing and certification requirements of the CPSA and the Commission's rule
All infant bouncer seats sold by U.S. manufacturers are currently tested to verify compliance with the ASTM standard, though not necessarily via third party. Thus, the impact to testing costs will be limited to the difference between the cost of third party tests and the cost of current testing regimes. As a frame of reference, suppliers have estimated that testing to the ASTM voluntary standard typically costs about $560-$800 per model sample. Based on an examination of firm revenues from recent Dun & Bradstreet or ReferenceUSAGov reports, the impact of third party testing to ASTM F2167-15 is unlikely to be economically significant for most small manufacturers (
Five small importers of infant bouncer seats are currently in compliance with the voluntary standard and, based on prior compliance with the voluntary standard, would likely continue compliance as new versions of the voluntary standard are published. The bouncers supplied by these firms would, for the most part, only require modifications to meet the warning label changes.
The placement of the new warnings could potentially require significant changes to existing models of imported bouncers. Imported bouncers tend to be produced to broadly meet the current requirements for several trading partners simultaneously, including the labeling requirements for multiple countries. Producers for international markets typically address labeling requirements for their various trading partners by simply providing a warning that covers all required safety issues in multiple languages. However, the proposed rule's specificity regarding warning label location could make simple replication of the warning label in multiple languages impractical due to space constraints on the front surface of the back of the bouncer. While only the English-language warning would be required for products sold in the United States, this could mean that foreign producers will need to design a product for the U.S. market. One solution could be as straightforward as reducing the number of languages used for warnings on U.S.-bound bouncer seats. Regardless, having a differing product for the U.S market could create logistical problems or costs, which could be passed on to importers.
We have no information regarding the degree to which foreign producers tend to pass on increases in regulatory costs to importers and are seeking comment on this topic. Because we lack information on the costs to importers associated with complying with the proposed rule, we are unable to rule out a significant impact for three of the five importers of compliant bouncers. We begin our discussion of potential impacts by assuming, when possible, firms would prefer to develop a U.S.-specific product with fewer warning labels rather than exit the bouncer market or develop a bouncer with sufficient room to accommodate warnings in languages for both their U.S. and foreign markets. Developing such a bouncer would address the requirements in the proposed rule, while ensuring that the appearance of their bouncers remains comparable to their competition's products (for which one to three languages is typical). The Commission requests feedback from the public, particularly from small importers, on the portion of regulatory compliance costs typically borne by importers, as well as information on the costs of developing a compliant bouncer for the U.S. market.
CPSC staff believes that one importer would not likely experience a significant economic impact based on comparing redesign cost estimates provided by suppliers (around $200,000 to $300,000) to its annual revenue, even if its supplier passed on 100 percent of the costs of redesign.
The Commission requests feedback on the cost estimate for product redesign, as well as how that cost level might differ if the redesign focused exclusively on warning label changes and the logistical problems it might create. Based upon examination of this firm's
If product redesign costs $200,000 and the supplying firm only passed on roughly 50 percent of the expected redesign costs, then two of the remaining four importers would not likely experience significant economic impact. The Commission requests input on whether it is reasonable to assume, in the absence of alternative information, foreign suppliers will share up to 50 percent of the costs of redesign, as well as information supporting any alternative estimates of the relative portions of cost sharing that is typical for an importer and its supplying firm. If the supplying firm were unwilling or unable to limit cost passed through, then one of these firms could probably exit the market without significant economic impact as sales of bouncers are likely to contribute less than one percent to its overall revenue.
The fourth importer would likely only avoid significant economic impact if their supplier absorbed 100 percent of the cost of a redesign. Dropping bouncers from their product line could be an option. However, it is likely that the sales revenue generated by bouncer sales exceeds one percent of their overall revenue. This importer is an exclusive distributor for their supplier's products in the U.S., so an alternative supplier is not an option.
We request information on the relationship between exclusive distributors and their suppliers, particularly as it pertains to willingness to shoulder redevelopment costs to maintain a U.S. market presence.
Neither annual revenue nor bouncer sales revenue was available for the final small importer of compliant bouncers; therefore, no assessment of impact could be made.
Two firms import bouncers that do not comply with the voluntary standard. The bouncers for these firms will require changes to come into compliance with the voluntary standard as well as modifications to meet the proposed warning label requirements. Similar to the case of importers of compliant bouncers, the proposed location of the warning labels on the front of the bouncer adjacent to the head could present a problem, because one firm typically uses nine languages while the other uses six. These importers may need to tailor a product for the U.S, which could be logistically difficult or costly, especially for a small firm with low sales volume.
The size of the economic impact on the two firms with noncompliant infant bouncer seats will depend upon the cost of the changes required and the degree to which their supplying firms pass on any increases in production costs associated with changes in the product needed to meet the mandatory standard. Again, we do not have any information on the proportion of compliance costs passed on and are seeking public comment on this topic. It is possible that these two importers could discontinue the sale of infant bouncer seats altogether, as the product does not appear to represent a substantial portion of either firms' product lines. However, one of the two firms would likely only avoid a significant economic impact if its supplier absorbed 100 percent of the cost of a redesign and it seems likely that its bouncer sales might exceed 1 percent of its annual sales revenue as well. Again, we do not have specific information on bouncer sales revenues, and cannot rule out a significant economic impact for either firm.
Both of the small importers with noncompliant bouncers are directly tied to their foreign suppliers and finding an alternate supply source would not be a viable alternative for these firms. However, given this close relationship, the foreign suppliers likely would have an incentive to work with their U.S. subsidiaries to maintain an American market presence.
The Commission is interested in information regarding the relationship between foreign producers and their U.S. subsidiaries and whether such relationships decrease the likelihood that the subsidiary experiences a significant economic impact due to a rule.
As with manufacturers, all importers will be subject to third-party testing and certification requirements, and consequently, will be subject to costs similar to those for manufacturers if their supplying foreign firm(s) does not perform third party testing. The majority of bouncer importers are already testing their products to verify compliance with the ASTM standard, and any costs would be limited to the incremental costs associated with third party testing over the current testing regime.
We were able to obtain revenue data for one of the small importers with noncompliant bouncers. For that importer, third party testing costs, considered alone and apart from any additional performance requirements due to the proposed rule, would not exceed one percent of gross revenue unless around 12 units per model required testing to provide a “high degree of assurance.” Although staff believes that it is unlikely that any importer would need to test more than 12 samples, we are seeking information regarding the validity of that assumption. We had no basis for examining the size of the impact for the remaining importer of noncompliant bouncers.
It is important to note that our analysis of the impact of the draft proposed rule have evaluated the impacts of complying with performance requirements and third party testing requirements independently. Firms will, in fact, experience the costs jointly. It is possible for testing costs, when evaluated independently, to not create significant economic impact (and vice versa).
The Commission seeks information on the extent to which performance requirements and testing costs evaluated jointly generate significant economic impact even when each component evaluated independently is not expected to lead to significant impact.
Three alternatives are available to the Commission that may minimize the economic impact on small entities: (1) Adopt ASTM F2167-15 with no modifications;
Section 104 of the CPSIA requires that the Commission promulgate a standard that is either substantially the same as the voluntary standard or more stringent. Therefore, adopting ASTM F2167-15 with no modifications is the least stringent rule allowed by law. This alternative would reduce the impact on all of the known small businesses supplying infant bouncers to the U.S. market because this alternative would eliminate any economic impact related directly to complying with the proposed rule for all five of the known small domestic manufacturers and the five small importers with compliant infant bouncers, all of whom are expected to comply with ASTM F2167-15 by the time the final rule becomes effective. Firms with compliant products, however, would continue to be affected by third party testing requirements.
Alternatively, the Commission could adopt a more stringent alternative that is still less stringent than the proposed rule by adopting ASTM F2167-15 with the proposed modifications, except for the requirement that the warning labels on the product be located next to the occupant's head. With the exception of impacts due to third party testing, this would eliminate most of the impact on small manufacturers (all of which sell compliant bouncer seats), leaving them with only minor costs associated with changing the wording and format of their warning labels. The impact on the five small importers of compliant bouncers would be similarly reduced.
Finally, the Commission could reduce the proposed rule's impact on small businesses by setting a later effective date. A later effective date would reduce the economic impact on firms in two ways. One, firms would be less likely to experience a lapse in production/importation, which could result if they are unable to comply and third party test within the required timeframe. Two, firms could spread costs over a longer time period, thereby reducing their annual costs, as well as the present value of their total costs. We request comment on the 6-month effective date, as well as feedback on how firms (particularly small importers) would likely address the proposed rule.
In accordance with section 14 of the CPSA, all children's products that are subject to a children's product safety rule must be tested by a CPSC-accepted third party conformity assessment body (
A Final Regulatory Flexibility Analysis (“FRFA”) was conducted as part of the promulgation of the original 1112 rule (78 FR 15836, 15855-58) as required by the RFA. Briefly, the FRFA concluded that the accreditation requirements would not have a significant adverse impact on a substantial number of small laboratories because no requirements were imposed on laboratories that did not intend to provide third party testing services. The only laboratories that were expected to provide such services were those that anticipated receiving sufficient revenue from the mandated testing to justify accepting the requirements as a business decision.
Based on similar reasoning, amending the rule to include the NOR for the bouncer seat standard will not have a significant adverse impact on small laboratories. Moreover, based upon the number of laboratories in the U.S. that have applied for CPSC acceptance of the accreditation to test for conformance to other juvenile product standards, we expect that only a few laboratories will seek CPSC acceptance of their accreditation to test for conformance with the infant bouncer seat standard. Most of these laboratories will have already been accredited to test for conformance to other juvenile product standards, and the only costs to them would be the cost of adding the bouncer seat standard to their scope of accreditation, a cost that test laboratories have indicated is extremely low when they are already accredited for other section 104 rules. As a consequence, the Commission certifies that the NOR for the infant bouncer seat standard will not have a significant impact on a substantial number of small entities.
The Commission's regulations address whether the agency is required to prepare an environmental assessment or an environmental impact statement. Under these regulations, a rule that has “little or no potential for affecting the human environment,” is categorically exempt from this requirement. 16 CFR 1021.5(c)(1). The proposed rule falls within the categorical exemption.
This proposed rule contains information collection requirements that are subject to public comment and review by the Office of Management and Budget (“OMB”) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). In this document, pursuant to 44 U.S.C. 3507(a)(1)(D), we set forth:
• A title for the collection of information;
• a summary of the collection of information;
• a brief description of the need for the information and the proposed use of the information;
• a description of the likely respondents and proposed frequency of response to the collection of information;
• an estimate of the burden that shall result from the collection of information; and
• notice that comments may be submitted to the OMB.
Our estimate is based on the following:
Section 8.1.1 of ASTM F2167-15 requires that the name and the place of business (city, state, and mailing address, including zip code) or telephone number of the manufacturer, distributor, or seller be marked clearly and legibly on each product and its retail package. Section 8.1.2 of ASTM F2167-15 requires a code mark or other means that identifies the date (month
Twenty-two known entities supply bouncer seats to the U.S. market may need to make some modifications to their existing labels. We estimate that the time required to make these modifications is about 1 hour per model. Based on an evaluation of supplier product lines, each entity supplies an average of four models of bouncer seats;
Section 9.1 of ASTM F2167-15 requires instructions to be supplied with the infant bouncer. Bouncer seats are complicated products that generally require use and assembly instructions. Under the OMB's regulations (5 CFR 1320.3(b)(2)), the time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the “normal course of their activities” are excluded from a burden estimate, where an agency demonstrates that the disclosure activities required to comply are “usual and customary.” We are unaware of bouncer seats that generally require use instructions but lack such instructions. Therefore, we tentatively estimate that no burden hours are associated with section 9.1 of ASTM F2167-15, because any burden associated with supplying instructions with bouncer seats would be “usual and customary” and not within the definition of “burden” under the OMB's regulations.
Based on this analysis, the proposed standard for bouncer seats would impose a burden to industry of 88 hours at a cost of $2,656.72 annually.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted the information collection requirements of this rule to the OMB for review. Interested persons are requested to submit comments regarding information collection by November 18, 2015, to the Office of Information and Regulatory Affairs, OMB (see the
Pursuant to 44 U.S.C. 3506(c)(2)(A), we invite comments on:
• Whether the collection of information is necessary for the proper performance of the CPSC's functions, including whether the information will have practical utility;
• the accuracy of the CPSC'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, utility, and clarity of the information to be collected;
• ways to reduce the burden of the collection of information on respondents, including the use of automated collection techniques, when appropriate, and other forms of information technology; and
• the estimated burden hours associated with label modification, including any alternative estimates.
Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that when a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA refers to the rules to be issued under that section as “consumer product safety rules.” Therefore, the preemption provision of section 26(a) of the CPSA would apply to a rule issued under section 104.
This NPR begins a rulemaking proceeding under section 104(b) of the CPSIA to issue a consumer product safety standard for bouncer seats, and to amend part 1112 to add bouncer seats to the list of children's product safety rules for which the CPSC has issued an NOR. We invite all interested persons to submit comments on any aspect of the proposed mandatory safety standard for bouncer seats and on the proposed amendment to part 1112. Specifically, the Commission requests comments on the costs of compliance with, and testing to, the proposed bouncer seats safety standard; the impact of the proposed rule on small businesses; the proposed 6-month effective date for the new mandatory bouncer seats safety standard; and the proposed amendment to part 1112. During the comment period, the ASTM F2167-15, Standard Consumer Safety Specification for Infant Bouncer Seats, is available as a read-only document at:
Comments should be submitted in accordance with the instructions in the
Administrative practice and procedure, Audit, Consumer protection, Incorporation by Reference, Reporting and recordkeeping requirements, Third party conformity assessment body.
Bouncer seats, Chairs, Consumer protection, Imports, Incorporation by reference, Infants and children, Labeling, Law enforcement, Seats, and Toys.
For the reasons discussed in the preamble, the Commission proposes to amend Title 16 of the Code of Federal Regulations as follows:
Pub. L. 110-314, section 3, 122 Stat. 3016, 3017 (2008); 15 U.S.C. 2063.
(b) * * *
(42) 16 CFR part 1229, Safety Standard for Infant Bouncer Seats.
Sec. 104, Pub. L. 110-314, 122 Stat. 3016.
This part establishes a consumer product safety standard for infant bouncer seats.
(a) Except as provided in paragraph (b) of this section, each infant bouncer seat must comply with all applicable provisions of ASTM F2167-15, Standard Consumer Safety Specification for Infant Bouncer Seats, approved on May 1, 2015. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from ASTM International, 100 Bar Harbor Drive, P.O. Box 0700, West Conshohocken, PA 19428;
(b) Comply with ASTM F2167-15 with the following additions or exclusions:
(1) Instead of complying with sections 7.11.1 through 7.11.3.3 of ASTM F2167-15, comply with the following:
(i) 7 .11.1
(ii) 7.11.1.1 Face the front of the bouncer from a distance of 1.0 ft (0.3 m and verify that all warning text is visible and not obscured by the accessory(ies).
(iii) 7.11.1.2 A label on the bouncer seat back surface that is obscured by an accessory such as an infant insert would meet the visibility requirement if the label is plainly visible and easily readable on the accessory.
(A) 7.11.2
(B) 7.11.2.1 Face the front of the bouncer from a distance of 1.0 ft (0.3 m and verify that all warning text is visible and not obscured by the toy bar and related accessory(ies).
(C) 7.11.2.2 A fall hazard label that is partly obscured by a toy bar or its related accessories, but is visible with a shift of the observer's head position would meet the visibility requirement.
(2) Instead of complying with sections 8.3.1 through 8.3.3.1 of ASTM F2167-15, comply with the following:
(i) 8.3.1 Warning Groups and Header—Each infant bouncer seat shall be labeled with two groups of warning statements: a fall hazard warning and a suffocation warning. Each warning statement group shall be preceded by a header consisting of the safety alert symbol
(ii) 8.3.2 Warning Format—The background color for the safety alert symbol and the signal word shall be orange, red or yellow, whichever provides best contrast against the product material. The safety alert symbol and the signal word shall be in bold capital letters not less than 0.2 in. (5 mm) high. The remainder of the text shall be characters whose upper case shall be at least 0.1 in. (2.5 mm) high. All elements of these warnings shall be permanent, and in sans serif, non-condensed style font. Precautionary statements shall be indented from hazard statements and preceded with bullet points. The warning label and the panel containing the signal word “WARNING” shall be surrounded by a heavy black line. Message panels within the labels shall be delineated with solid lines between sections of differing content. The background color in the message panel shall be white and the text shall be black. If an outside border is used to surround the heavy black lines of the label, the border shall be white and the corners may be radiused.
(iii) 8.3.3
(A) 8.3.3.1 The fall hazard warnings label in 8.3.4.1 shall be on the front surface of the infant bouncer seat back adjacent to the area where a child's head would rest, so that the label is plainly visible and easily readable. If one or more accessories are provided with the bouncer that could obscure the warning label during use, the visibility of the label shall be verified in accordance with 7.11.
(B) [Reserved].
(3) Instead of complying with sections 8.3.4.1 through 8.3.5 of ASTM F2167-15, comply with the following:
(i) 8.3.4.1
Fall Hazard: Babies have suffered skull fractures falling while in and from bouncers.
• Use bouncer ONLY on floor.
• Always use restraints. Adjust to fit snugly, even if baby is sleeping.
• Never lift or carry baby in bouncer. [NOTE: Bouncer seats with a handle(s) intended for use to lift and carry a child are exempt from including this warning statement.]
(ii) 8.3.4.2
Suffocation Hazard: Babies have suffocated when bouncers tipped over on soft surfaces.
• Never use on a bed, sofa, cushion, or other soft surface.
• Never leave baby unattended. To prevent falls and suffocation:
• Always use restraints. Adjust to fit snugly, even if baby is sleeping.
• Stop using bouncer when baby starts trying to sit up.
(iii) 8.3.5 Figs. 10-12 The safety alert symbol
(4) In section 9 of ASTM F2167-15, replace Figure 10 with the following:
(5) Instead of complying with section 9.1.1.5 of ASTM F2167-15, comply with the following:
(i) 9.1.1.5 Instructions must indicate the manufacturer's recommended maximum weight, height, age, developmental level, consistent with the warning statement in 8.3.4.2, or combination thereof of the occupant for which the infant bouncer seat is intended. If the infant bouncer seat is not intended for use by a child for a specific reason (insert reason), the instructions shall so state this limitation.
(ii) [Reserved]
(6) In section 10 of ASTM F2167-15, replace Figures 11 and 12 with the following:
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing approval of a State Implementation Plan (SIP) revision submitted by the State of Arizona. On March 9, 2005, the EPA redesignated Phoenix, Arizona from nonattainment to attainment for the carbon monoxide (CO) National Ambient Air Quality Standards (NAAQS) and approved the State's plan addressing the area's maintenance of the NAAQS for ten years. On April 2, 2013, the State of Arizona submitted to the EPA a second maintenance plan for the Phoenix area that addressed maintenance of the NAAQS for an additional ten years. The EPA is also proposing to find adequate and approve a transportation conformity motor vehicle emissions budgets (MVEB) for the year 2025 and beyond.
Comments must be received on or before November 18, 2015.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2015-0645, to the
For additional submission methods, the full EPA public comment policy, and general guidance on making effective comments, please visit
John Kelly, Planning Office (Air-2), Air Division, Region 9, Environmental Protection Agency, 75 Hawthorne Street, San Francisco, California 94105, (415) 947-4151,
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials
(ii) The initials
(iii) The initials
(iv) The initials
(v) The initials
(vi) The words
(vii) The initials
(viii) The initials
(ix) The initials
(x) The initials
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(xvii) The words
Under the Clean Air Act (CAA) Amendments of 1990, the Phoenix metropolitan area in Maricopa County, Arizona (hereinafter referred to as Phoenix, the Phoenix area or the area) was designated and classified as a moderate CO nonattainment area. On July 29, 1996, the EPA found that the area had not attained the CO NAAQS by the moderate attainment date and the area was reclassified to serious nonattainment by operation of law, effective August 28, 1996. 61 FR 39343.
The primary CO NAAQS are attained when ambient concentration design values do not exceed either the 1-hour 35 parts per million (ppm) standard or the 8-hour 9 ppm standard more than once per year. 40 CFR 50.8(a). There have been no violations in Phoenix of the 1-hour CO standard since 1984 and no violations of the 8-hour standard since 1996. 2013 Maintenance Plan, page 1-1. The EPA determined in 2003 that the area had attained the CO NAAQS by the area's December 31, 2000 attainment deadline. 68 FR 55008, September 22, 2003. This determination did not affect the designation of the area as nonattainment or its classification as a serious area.
On May 30, 2003, the State of Arizona submitted a request to the EPA to redesignate Phoenix from nonattainment to attainment for the CO NAAQS. Along with this request, the State submitted a CAA section 175A(a) maintenance plan which demonstrated that the area would maintain the CO NAAQS for the first 10 years following our approval of the redesignation request (“2003 CO Maintenance Plan”). We approved the State's redesignation request and 10-year maintenance plan on March 9, 2005, effective April 8, 2005. 70 FR 11553. For a detailed history of the CO planning efforts in the area up to 2004, please see the Technical Support Document that accompanied the EPA's proposal to approve the first 10-year maintenance plan for the area. 69 FR 60328, October 8, 2004.
Eight years after an area is redesignated to attainment, CAA section 175A(b) requires the State to submit a subsequent maintenance plan to the EPA, covering a second 10-year period.
Section 176(c) of the Act defines conformity as meeting the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards. The Act further defines transportation conformity to mean that no Federal transportation activity will: (1) Cause or contribute to any new violation of any standard in any area; (2) increase the frequency or severity of any existing violation of any standard in any area; or (3) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area. The Federal transportation conformity rule, 40 CFR part 93 subpart A, sets forth the criteria and procedures for demonstrating and assuring conformity of transportation plans, programs and projects which are developed, funded or approved by the U.S. Department of Transportation, and by metropolitan planning organizations or other recipients of Federal funds under Title 23 U.S.C. or the Federal Transit Laws. 49 U.S.C. chapter 53.
The transportation conformity rule applies within all nonattainment and maintenance areas. As prescribed by the transportation conformity rule, once an area has an applicable SIP with MVEBs, the expected emissions from planned transportation activities must be consistent with such established budgets for that area.
With this action, the EPA proposes to find adequate and approve a CO transportation conformity MVEB for the year 2025 and beyond.
The 2013 Maintenance Plan contains the following major sections:
1. Introduction. This section contains a general discussion of CO plan approvals and the area's redesignation to attainment. 2013 Maintenance Plan, Chapter 1.
2. Continued Attainment of the Carbon Monoxide NAAQS. This section includes some historical background, a description of the CO monitoring network in Phoenix, monitoring results and the State's demonstration that the area has continued to attain the CO standards, and information regarding the State's monitoring data quality assurance program. 2013 Maintenance Plan, Chapter 2.
3. Maintenance Plan. This section includes control measures, maintenance demonstration, monitoring network information and verification that the area has continued to attain the CO standards, contingency provisions, a transportation conformity budget and subsequent maintenance plan revisions. 2013 Maintenance Plan, Chapter 3.
The following is the EPA's evaluation of the ambient air monitoring information and maintenance plan provided in the State's submittal.
The primary NAAQS for CO are: “(1) 9 parts per million (10 milligrams per cubic meter) for an 8-hour average concentration not to be exceeded more than once per year and (2) 35 parts per million (40 milligrams per cubic meter) for a 1-hour average concentration not to be exceeded more than once per year.” 40 CFR 50.8. At the time of submittal of the 2013 Maintenance Plan in March 2013, there had been no violations in Phoenix of the 1-hour carbon monoxide
The EPA
The State and MAG commit to continue to implement the nine control measures listed in the 2003 Maintenance Plan, and have implemented a tenth control measure that had been identified in that plan as a contingency measure. 2013 Maintenance Plan, page 3-1. Table 2 lists these control measures. 2013 Maintenance Plan, table 3-1, page 3-2.
The tenth control measure listed in Table 2 is described in the 2003 Maintenance Plan as a contingency measure. 2003 Maintenance Plan, Exhibit 2, Appendix A, Technical Support Document, Section VII-2-2. The State has implemented the expansion of Area A boundaries and the EPA approved the expansion of Area A boundaries as a revision to the Arizona SIP on May 22, 2013. 78 FR 30209.
The 2013 Maintenance Plan provides a comparison of actual CO emissions in the Phoenix maintenance area in 2008 with projected emissions in 2025. 2003 Maintenance Plan, page 3-4, table 3-3. These emissions are for an average weekday during the winter season, the months November to January. The 2008 emissions are taken from the latest periodic emissions inventory for the area, the 2008 periodic emissions inventory, which is included in Appendix A, Exhibit 1 of the 2013 Maintenance Plan. Emissions for the year 2025 used growth factors for the area derived from the 2005 special U.S. census conducted in the area and EPA models for estimating onroad emissions and nonroad equipment emissions, as well as the Emissions and Dispersion Modeling System and the Federal Aviation Administration Terminal Area Forecast system database for all airports except Luke Air Force Base (AFB). Emissions of CO from the Luke AFB were derived from two documents: the first, titled “2008 Mobile Source Emissions Inventory for Luke Air Force Base,” prepared by Weston Solutions, Inc. for the Air Education and Training Command, U.S. Air Force, Randolph AFB, Texas, in June 2010; the second document is titled “F-35A Training Basing Environmental Impact Statement, Final Volume 1,” prepared by the U.S. Air Force in 2012.
Several emissions reductions are credited in the projected emissions for the year 2025. The first two control measures listed in Table 2, California Phase 2 Reformulated Gasoline with 3.5 percent Oxygen Content from November 1 through March 31, and Off-Road Vehicle and Engine Standards, are estimated to produce reductions of CO emissions of 128.9 mtpd and 15 mtpd, respectively. These reductions represent about a 19 percent reduction of emissions by 2025. The State and MAG commit to continued implementation of all other control measures listed in Table 2. However, their collective reduction is expected to be less than one percent of 2025 emissions, and therefore no numeric credit was taken for those measures in the State's projections of CO emissions in 2025.
Details regarding the technical inputs and assumptions used in preparing the emissions inventories are provided in Chapter II of the technical support document for the 2013 Maintenance plan, in Appendix A, Exhibit 2. The results of MAG's inventory of actual emissions in 2008 and projected emissions in 2025 are provided in Table 3.
Compared to emissions in 2008, projected emissions in 2025 show a downward trend. Total CO emissions projected in the year 2025, 639.6 mtpd, represent approximately 70 percent of the actual emissions in the year 2008.
The 2013 Maintenance Plan relies on a series of technical analyses to demonstrate maintenance of the CO NAAQS through the year 2025. MAG performed three different modeling analyses to project CO emissions out to the year 2025 and estimate their impact on maximum ambient CO concentration. In addition, MAG conducted two weight-of-evidence evaluations using actual trends in air quality and meteorological data to reinforce the modeling analyses. MAG also developed a modeling protocol to detail the technical approaches and assumptions to be used in demonstrating maintenance of the CO NAAQS. 2013 Maintenance Plan, Appendix A, Exhibit 2, Technical Support Document.
MAG's first modeling analysis was based on an emissions inventory comparison. MAG developed two sets of CO emissions inventories: one representing the CO modeling domain in 2006, 2008, 2015 and 2025; another representing the maintenance area in 2008 and 2025. The modeling domain covers 792 square miles, including the busiest intersections in the area and the ambient air monitors with the highest readings, while the maintenance area is 1,814 square miles. MAG calculated the ratio of the total emissions expected in 2025 to the total emissions in a prior year (2006 for the modeling domain and 2008 for the maintenance area). MAG then multiplied these ratios by the maximum concentration in the earlier year to yield a predicted 2025 concentration. The maximum 8-hour CO concentration at West Indian School monitor in 2006 was 5.3 ppm. When multiplied by the ratio of 2025 emissions for the maintenance area (403.9 mtpd) divided by 2006 emissions (803.0 mtpd) for the maintenance area, or 0.503, the predicted concentration in 2025 at the West Indian School monitoring site is 2.7 ppm, well below the 9 ppm level of the 8-hour CO NAAQS.
MAG's second modeling analysis involved updating the modeling of CO concentrations performed in the 2003 Maintenance Plan using the EPA-approved Urban Airshed Model (UAM) and the intersection hotspot model (CAL3QHC). In particular, MAG updated the projections of concentrations for the years 2006 and 2015 in the 2003 Maintenance Plan by adjusting by the ratio of new to old emissions inventory totals and then scaling them for the year 2025. The highest concentrations in 2025 predicted at the two busiest intersections in Phoenix (at the Phoenix Grand Avenue and West Indian School monitors) using these models was 4.0 ppm, less than half of the level of the 8-hour standard.
MAG's third modeling approach in the 2013 Maintenance Plan was an intersection hotspot analysis. The three intersections projected to have the highest traffic volumes and the three intersections projected to have the worst traffic congestion were identified using the MAG TransCAD traffic assignment for the year 2025. MAG used CAL3QHC to determine the maximum 8-hour concentration at these intersections in 2025, then added the expected background concentration, 1.3 ppm CO. The highest CO concentration expected in 2025 was 1.7 ppm at two intersections, 16th Street and Camelback Road, and Priest Drive and Southern Avenue. This level is also well below the 8-hour CO NAAQS.
In addition to the above three modeling exercises, MAG conducted two weight-of-evidence evaluations to support the maintenance demonstration. In one, historical trends of 1-hour and 8-hour monitored CO concentrations were applied to a regression analysis to project concentrations in 2015 and 2025. The monitoring data used was from the period 1980 to 2011. Projecting forward the trend lines using regression analysis for each monitoring site, the West Phoenix site has the highest projected 8-hour CO concentration, 2.7 ppm in 2015 and 1.6 ppm in 2025.
In a second weight-of-evidence evaluation, MAG conducted a meteorological analysis to assess whether unusually favorable meteorology played a role in continued maintenance of the CO standard. In particular, MAG assessed long-term values of key meteorological parameters, including temperature, wind speed, wind direction, atmospheric stability and mixing height and compared these values to CO monitored concentration trends during the same period. Four meteorological analyses were performed, comparing later meteorological data to the data from the 1994 episode used in the evaluation, when there was an exceedance of the 8-hour CO standard, with the following results: (1) The maximum 8-hour CO concentrations have continued to decline, while meteorological conditions have not differed significantly from the 1994 episode; (2) 8-hour CO concentrations declined while daily variations in wind speeds, temperatures and mixing heights have not varied significantly over time; (3) 1-hour CO concentrations have continued to decrease over time regardless of meteorological conditions; and (4) daily maximum 8-hour CO concentrations below the CO NAAQS were predominant during the period 1997 through 2011 under the same range of wind speeds and mixing heights.
The EPA finds that the three modeling exercises and two weight-of-evidence evaluations provide compelling evidence that the Phoenix area will continue to maintain the CO NAAQS.
The Phoenix area has maintained an ambient air quality monitoring network consisting of twelve State and Local Air Monitoring Stations (SLAMS). Of these twelve monitoring stations, 11 are operated by the Maricopa County Air Quality Department (MCAQD) and one
The EPA approved the area's ANPs, which describe the monitoring network for the area and any changes anticipated for the following year. The most recent ANP from the MCAQD was the “MCAQD 2013 Final Air Monitoring Network Review,” dated December 5, 2014. The most recent ANP from ADEQ was the “State of Arizona Air Monitoring Network Plan for the Year 2014,” dated July 1, 2014. The 2014 MCAQD ANP was approved by the EPA on March 31, 2015. Letter from Meredith Kurpius, Manager, Air Quality Analysis Office, to William Wiley, Director, MCAQD, dated March 31, 2015. The 2014 ADEQ ANP was approved by the EPA on October 30, 2014. Letter from Meredith Kurpius, Manager, Air Quality Analysis Office, to Eric Massey, Director, Air Quality Division, ADEQ, dated October 30, 2014.
The EPA performs Technical Systems Audits (TSA) of ambient air monitoring programs in accordance with 40 CFR part 58, section 2.5, which requires that the EPA conduct TSAs of primary quality assurance organizations every three years. The most recent TSA for the MCAQD was conducted by the EPA on September 25 to September 27, 2013. The EPA's findings from this TSA are presented in a final report. There were no findings that were cause for data invalidation. Letter from Deborah Jordan, Director, U.S. EPA Region 9 Air Division, to Phil McNeely, Director, Maricopa County Air Quality Department, dated December 12, 2014, transmitting “Technical System Audit, Maricopa County Air Quality Department, Ambient Air Monitoring Program, September 25-September 27, 2013,” dated December 2014.
The most recent TSA for ADEQ was conducted by the EPA on April 9 to April 13, 2012. The EPA's findings from this TSA are presented in a final report. There were no findings that were cause for data invalidation. Letter from Deborah Jordan, Director, U.S. EPA Region 9 Air Division, to Eric Massey, Director, ADEQ Air Division, dated January 18, 2013, transmitting “Technical System Audit, Arizona Department of Environmental Quality, Ambient Air Monitoring Program, April 9-April 13, 2012,” dated January 2013.
The EPA is confident that the area's air quality monitoring network is being implemented in accordance with requirements in the CAA and implementing regulations in 40 CFR part 58.
Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions to promptly correct any violation of the NAAQS that occurs after redesignation of an area. A maintenance plan's contingency measures are not required to be fully adopted. However, the plan should contain clearly identified contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a specific time limit for action by the State. In addition, specific indicators should be identified which will be used to determine when the contingency measures need to be implemented. EPA memorandum, “Procedures for Processing Requests to Redesignate Areas to Attainment,” September 4, 1992.
Two contingency measures that were included in the 2003 Maintenance Plan are included in the 2013 Maintenance Plan: Gross Polluter Option for I/M Program Waivers, and Increased Waiver Repair Limit Options. These contingency measures have already been implemented in the area. A third contingency measure has been added to the 2013 Maintenance Plan: Reinstatement of the Vehicle Emissions Inspection and Maintenance (VEI) Program for Motorcycles. The VEI program for motorcycles was a control measure in the area prior to redesignation to attainment, but the State subsequently exempted motorcycles from the VEI program. Pursuant to section CAA section 175A(d) of the CAA, the contingency provisions of a maintenance plan must include all the control measures that were included in the SIP for the area before redesignation. Therefore, the State is required to include the VEI program for motorcycles as a contingency measure in the 2013 CO Maintenance Plan. ADEQ has fulfilled this requirement by submitting a SIP revision committing to request Legislative action to reinstate emissions testing for motorcycles in the Phoenix area should the area experience a violation of the CO standards. See 78 FR 30209, May 22, 2013. In addition, as noted above, the State has expanded Area A in Maricopa County, which extends additional controls beyond the previous boundary for Area A, converting this expansion from a contingency measure in the 2003 Maintenance Plan, to a control measure in the 2013 Maintenance Plan.
We propose to find that the contingency plan in the 2013 Maintenance Plan is sufficient to meet the requirements of section 175A(d) of the CAA.
Transportation conformity is required by section 176(c) of the CAA. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS (CAA section 176(c)(1)(B)). The EPA's conformity rule at 40 CFR part 93, subpart A requires that transportation plans, programs and projects conform to SIPs and establish the criteria and procedures for determining whether or not they conform. To effectuate its purpose, the conformity rule generally requires a demonstration that emissions from the Regional Transportation Plan (RTP) and the Transportation Improvement Program (TIP) are consistent with MVEBs contained in the control strategy SIP revision or maintenance plan (40 CFR 93.101, 93.118, and 93.124). An MVEB is defined as the level of mobile source emissions of a pollutant relied upon in the attainment or maintenance demonstration to attain or maintain compliance with the NAAQS in the nonattainment or maintenance area.
The 2013 Maintenance Plan establishes a 2025 MVEB of 559.4 mtpd for the CO maintenance area. We are not announcing the availability of this MVEB through the EPA's Adequacy Web site and providing a separate comment period on the adequacy of the
If today's proposed action is finalized, the 2015 MVEB, which is already approved for 2015 and later years, would apply only up to the year 2024. For the year 2025 and later years, the budget will be 559.4 mtpd. See Table 4.
The EPA is proposing to approve the 2013 Maintenance Plan submitted on April 3, 2012. This maintenance plan meets the applicable CAA requirements and the EPA has determined it is sufficient to provide for maintenance of the CO NAAQS over the course of the second 10-year maintenance period out to 2025.
The EPA is also proposing to find adequate and approve the CO MVEB of 559.4 mtpd for use in the year 2025 and later years.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve State law as meeting federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council (Council). If implemented, this proposed rule would withhold 4.9 percent of the 2016 red snapper commercial quota prior to the annual distribution of red snapper allocation to red snapper Individual Fishing Quota Program (IFQ) shareholders on January 1, 2016. The purpose of this proposed rule is to allow the allocations being established through Amendment 28 to the FMP
Written comments must be received by November 3, 2015.
You may submit comments on the proposed rule, identified by “NOAA-NMFS-2015-0121” by any of the following methods:
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Electronic copies of the framework action, which includes an environmental assessment, a regulatory impact review, and a Regulatory Flexibility Act (RFA) analysis, may be obtained from the Southeast Regional Office Web site at
Richard Malinowski, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The Gulf reef fish fishery is managed under the FMP. The FMP was prepared by the Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The Magnuson-Stevens Act requires NMFS and regional fishery management councils to achieve on a continuing basis the optimum yield from federally managed fish stocks. This mandate is intended to ensure that fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems.
In recent years, the Council has expressed its intent to evaluate and possibly adjust the allocation of reef fish resources between the commercial and recreational sectors. At its August 2015 meeting, the Council approved Amendment 28 for submission to the Secretary of Commerce (Secretary) for review and implementation. Amendment 28 would reallocate 352,000 lb (159,665 kg), round weight, 317,117 lb (143,842 kg), gutted weight of red snapper from the commercial sector to the recreational sector. This is equal to 4.9 percent of the current red snapper commercial quota.
This proposed rule would allow for the implementation of Amendment 28 in early 2016. While the recreational fishing season does not open until June 1 each year, NMFS distributes IFQ allocation to the shareholders on January 1 each year. After NMFS distributes the red snapper commercial quota to shareholders, it cannot be effectively recalled. If Amendment 28 is approved, it is unlikely that NMFS would be able to implement the reallocation until after the IFQ program's annual distribution of red snapper quota to the commercial sector on January 1, 2016. Therefore, without the management measures in this proposed rule, the reallocation could not occur until 2017.
This proposed rule would withhold distribution of 4.9 percent of the 2016 red snapper commercial quota (352,000 lb (159,665 kg), round weight; 317,117 lb (143,842 kg), gutted weight) when allocation to the red snapper IFQ shareholders is released on January 1, 2016. If NMFS does not implement Amendment 28, NMFS would distribute the withheld 4.9 percent of the 2016 IFQ allocation of red snapper to shareholders based on the shares held as of the date of distribution.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the framework amendment, the FMP, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if implemented, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:
The purpose of this proposed rule is to withhold 4.9 percent of the Gulf commercial red snapper quota (352,000 lb (159,665 kg), round weight; 317,117 lb (143,842 kg), gutted weight) to ensure that the allocations established through Amendment 28, and scheduled to be implemented in 2016, if approved by the Secretary, are effective for the 2016 fishing year. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.
NMFS expects this proposed rule, if implemented, to directly affect commercial vessels that harvest red snapper in the Gulf. Based on commercial logbook data, over the period of 2009-2013, an average of 353 vessels per year recorded commercial red snapper harvests. The maximum number of vessels with recorded commercial red snapper harvests during this period was 375 in 2010. However, in 2010, 384 vessels were identified in the red snapper IFQ on-line account program, which tracks activity in the Red Snapper Limited Access Privilege Program. This system, however, is not the official record for trip harvests of all species by vessels with commercial harvests of red snapper, nor does it capture all landings, or associated revenues, from all species harvested on all trips by vessels that also harvest red snapper. Therefore, data from both sources are used for this analysis to estimate the number of potentially affected entities. As a result, this proposed rule would be expected to apply to 353-384 commercial fishing vessels. The average annual gross revenue from all species harvested on all trips by the vessels identified with recorded red snapper harvests in logbook data over the period 2009-2013 (353 vessels) was approximately $110,000 (2013 dollars).
NMFS has not identified any other entities that would be expected to be directly affected by this proposed rule.
The Small Business Administration has established size criteria for all major industry sectors in the U.S., including fish harvesters. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its
This proposed rule would withhold from distribution 4.9 percent or 352,000 lb (159,665 kg), round weight; 317,117 lb (143,842 kg), gutted weight, of the 2016 Gulf red snapper commercial quota, valued at approximately $1.46 million ($4.75 median ex-vessel price per lb gutted weight, minus the 3-percent IFQ program cost recovery fee, all vessels; 2013 dollars). This is equivalent to the amount of red snapper quota proposed to be reallocated from the commercial sector to the recreational sector in proposed Amendment 28. Across all vessels (353-384 vessels), this amount of quota would be equivalent to an average of approximately 826-898 lb (375-407 kg), gutted weight, of red snapper per vessel, valued at approximately $3,800-$4,100. Thus, the proposed quota withholding in this framework action would result in a reduction in ex-vessel revenue in 2016 to the entities in this fishery; however, this reduction is consistent with the analysis and expected economic effects of Amendment 28, which projects a reduction in red snapper commercial quota, and associated economic benefits to commercial fishermen, beginning in 2016. The reallocation would, however, be expected to result in an increase in economic benefits to the recreational sector. If approved by the Secretary, final rulemaking to implement the allocation change proposed by Amendment 28 cannot occur until after January 1, 2016, whereas distribution of the commercial quota to IFQ shareholders occurs at the start of each fishing year to allow vessels to begin harvesting red snapper on January 1. After the annual red snapper quota is distributed to shareholders, it cannot be effectively recalled. Thus, to ensure the effects of Amendment 28 are realized in 2016, NMFS is withholding from distribution the commensurate amount of quota equivalent to the amount reallocated in Amendment 28 for the 2016 fishing season. If NMFS implements the proposed rulemaking and the reallocation in Amendment 28, then the effects of the reduced commercial quota, including this proposed withholding, will be attributable to and analyzed with Amendment 28's rulemaking. If NMFS does not implement the proposed reallocation in Amendment 28, then the portion of the quota withheld through this framework action will be distributed as soon as possible to the appropriate shareholders. Because this allocation would be available later in the fishing year, a reduction in normal total revenue (disruption of the timing of harvest may reduce the price and total revenue received), alteration of the flow of receipts, and disruption of normal business operation may occur. However, these effects would be expected to be minor because only a small portion of the available quota (4.9 percent) would be affected for only a portion of the year.
Based on the discussion above, NMFS determines that this proposed rule, if implemented, would not have a significant adverse economic effect on a substantial number of small entities.
Commercial, Fisheries, Fishing, Gulf of Mexico, Recreational, Red snapper, Reef fish.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
16 U.S.C. 1801
(a) * * *
(1) * * *
(i) * * *
(B) * * *
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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 Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to renew the approved information collection on two laboratory programs. FSIS is requesting a reduction in the estimated burden associated with these two programs from 24 hours to 13 hours based on historical use of certain forms to collect the information on the laboratories in the programs. The current approval for this information collection will expire on December 31, 2015.
Submit comments on or before December 18, 2015.
FSIS invites interested persons to submit comments on this information collection. Comments may be submitted by one of the following methods:
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Gina Kouba, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 1400 Independence
Any non-Federal laboratory that is applying for the FSIS Accredited Laboratory program needs to complete an Application for FSIS Accredited Laboratory Program form (9 CFR 439). State or private laboratories need only submit the application once for entry into the program. FSIS uses the information collected by the form to help access the laboratory applying for admission to the FSIS Accredited Laboratory program.
FSIS has made the following estimates based upon an information collection assessment.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of FSIS's functions, including whether the information will have practical utility; (b) the accuracy of FSIS's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology. Comments may be sent to both FSIS, at the addresses provided above, and the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20253.
Responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations,
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
Forest Service, USDA.
Notice.
This notice lists the newspapers that Ranger Districts, Forests, and the Regional Office of the Rocky Mountain Region will use to publish legal notices required under 36 CFR part 218 and 219. The intended effect of this action is to inform interested members of the public which newspapers will be used to publish legal notices for opportunities to comment or file an administrative
Publication of legal notices in the listed newspapers will begin on the date of this publication and continue until further notice.
USDA Forest Service, Rocky Mountain Region; ATTN: Regional Administrative Review Coordinator; 740 Simms Street, Golden, Colorado, 80401
Nancy Miller, Regional Administrative Review Coordinator, 303 275-5373.
The administrative review procedures at 36 CFR 218 and 219 require the Forest Service to publish notices in a newspaper of general circulation. The content of the notices is specified in 36 CFR 218 and 219. In general, the notices will identify: The decision or project, by title or subject matter; the name and title of the official making the decision; how to obtain additional information; and where and how to file comments or requests for administrative review. The date the notice is published will be used to establish the official date for the beginning of the comment or filing period. The newspapers to be used are as follows:
Regional Forester decisions affecting National Forest System lands in Colorado, Kansas, Nebraska and those portions of South Dakota and Wyoming within the Rocky Mountain Region:
Forest Supervisor decisions:
District Ranger decisions for Canyon Lakes District:
District Ranger decisions for Pawnee District:
District Ranger decisions for Boulder District:
District Ranger decisions for Clear Creek District:
District Ranger decisions for Sulphur District:
Forest Supervisor decisions:
District Ranger decisions:
Forest Supervisor decisions:
District Ranger decision:
Forest Supervisor decisions:
District Ranger decisions for Grand Valley District:
District Ranger decisions for Paonia District:
District Ranger decisions for Gunnison Districts:
District Ranger decisions for Norwood District:
District Ranger decisions for Ouray District:
Forest Supervisor decisions:
District Ranger decisions for Laramie District:
District Ranger decisions for Douglas District:
District Ranger decisions for Brush Creek-Hayden District:
District Ranger decisions for Hahns Peak-Bears Ears District:
District Ranger decisions for Yampa District:
District Ranger decisions for Parks District:
Forest Supervisor decisions:
District Ranger decisions for Bessey District/Charles E. Bessey Tree Nursery:
District Ranger decisions for Pine Ridge District:
District Ranger decisions for Samuel R. McKelvie National Forest:
District Ranger decisions for Fall River and Wall Districts, Buffalo Gap National Grassland:
District Ranger decisions for Fort Pierre National Grassland:
Forest Supervisor decisions:
District Ranger decisions for San Carlos District:
District Ranger decisions for Comanche District-Carrizo Unit:
District Ranger decisions for Comanche District-Timpas Unit:
District Ranger decisions for Cimarron District: The Elkhart
District Ranger decisions for South Platte District:
District Ranger decisions for Leadville District:
District Ranger decisions for Salida District:
District Ranger decisions for South Park District:
District Ranger decisions for Pikes Peak District:
Forest Supervisor decisions:
District Ranger decisions for all Districts:
Forest Supervisor decisions:
District Ranger decisions for Columbine and Pagosa Districts:
District Ranger decisions for Dolores District:
Forest Supervisor decisions:
District Ranger decisions for Clarks Fork District:
District Ranger decisions for Wapiti and Greybull Districts:
District Ranger decisions for Wind River District:
District Ranger decisions for Washakie District:
Forest Supervisor decisions:
District Ranger decisions for Aspen-Sopris District:
District Ranger decisions for Blanco District:
District Ranger decisions for Dillon District:
District Ranger decisions for Eagle-Holy Cross District:
District Ranger decisions for Rifle District:
Architectural and Transportation Barriers Compliance Board.
Notice of meetings.
The Architectural and Transportation Barriers Compliance Board (Access Board) plans to hold its regular committee and Board meetings in Washington, DC, Monday and Tuesday, November 9-10, 2015 at the times and location listed below.
The schedule of events is as follows:
Meetings will be held at the Access Board Conference Room, 1331 F Street NW., Suite 800, Washington, DC 20004.
For further information regarding the meetings, please contact David Capozzi, Executive Director, (202) 272-0010 (voice); (202) 272-0054 (TTY).
At the Board meeting scheduled on the afternoon of Tuesday, November 10, 2015, the Access Board will consider the following agenda items:
• Approval of the draft September 10, 2015 meeting minutes (vote)
• Ad Hoc Committee Reports: Frontier Issues; Design Guidance; Information and Communications Technologies; and, Public Rights-of-Way and Shared Use Paths
• Budget Committee
• Technical Programs Committee
• Planning and Evaluation Committee
• Election Assistance Commission Report
• Executive Director's Report
• Public Comment (final 15 minutes of the meeting)
Members of the public can provide comments either in-person or over the telephone during the final 15 minutes of the Board meeting on Tuesday, November 10, 2015. Any individual interested in providing comment is asked to pre-register by sending an email to
All meetings are accessible to persons with disabilities. An assistive listening system, Communication Access Realtime Translation (CART), and sign language interpreters will be available at the Board meeting and committee meetings.
Persons attending Board meetings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants (see
You may view the Tuesday, November 10, 2015 meeting through a live captioned webcast from 1:30 p.m. to 3:00 p.m. at:
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 citric acid and certain citrate salts (“citric acid”) from the People's Republic of China (“the PRC”) for the period of review May 1, 2014, through April 30, 2015.
Maisha Cryor, 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) 482-5831.
On July 1, 2015, the Department published the notice of opportunity to request an administrative review of the order on citric acid from the PRC for the period of review May 1, 2014, through April 30, 2015.
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, all parties withdrew their requests for administrative reviews 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 antidumping duties on all appropriate entries of citric acid from the PRC. Antidumping duties shall be assessed 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 date of publication of this notice of rescission of administrative review.
This notice also 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 presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double 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 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).
Notice of Application for an Amended Export Trade Certificate of Review by Northwest Fruit Exporters, Application No. 84-26A12.
The Secretary of Commerce, through the International Trade Administration, Office of Trade and Economic Analysis (OTEA), has received an application for an amended Export Trade Certificate of Review (“Certificate”) from Northwest Fruit Exporters. This notice summarizes the proposed amendment and seeks public comments on whether the amended Certificate should be issued.
Joseph E. Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR part 325 (2015). OTEA is issuing this notice pursuant to 15 CFR 325.6(a), which requires the Secretary of Commerce to publish a notice in the
An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Export Trading Company Affairs, International Trade Administration, U.S. Department of Commerce, Room 21028, Washington, DC 20230.
Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the amended Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 84-26A12.”
1. Under the heading Products, add “fresh pears.”
2. Under the heading Export Trade Activities and Methods of Operation, add “fresh pears” to the subtitles of sections 1 and 3.
3. Add coverage for Export Trade Activities and Methods of Operation relating to “fresh pears” for the following existing Members of the Certificate (within the meaning of section 325.2(l) of the regulations (15 CFR 325.2(l)):
4. Add the following new Members of the Certificate (within the meaning of section 325.2(l) of the regulations (15 CFR 325.2(l)), for Export Trade Activities and Methods of Operation relating to “fresh pears”:
5. Add the following new Members of the Certificate for Export Trade Activities and Methods of Operation relating to apples:
6. Remove the following companies as Members of the Certificate: Blue Mountain Growers, Inc. (Milton-Freewater, OR), and Obert Cold Storage (Zillah, WA); and
7. Change the name of the following existing Members: The Apple House, Inc. (Brewster, WA) is now Apple House Warehouse & Storage, Inc. (Brewster, WA); C&M Fruit Packers (Yakima, WA) is now Columbia Fruit Packers/Airport Division (Yakima, WA); Domex Marketing (Yakima, WA) is now Domex Superfresh Growers LLC (Yakima, WA); Stemilt Growers Inc. is now Stemilt Growers, LLC; and The Dalles Fruit Company, LLC is now The Dalles Fruit Company, LLC Underwood Fruit & Warehouse Co. (Dallesport, WA).
National Institute of Standards and Technology (NIST), Commerce.
Notice.
This notice announces the withdrawal of six Federal Information Processing Standards (FIPS): FIPS 181, FIPS 185, FIPS 188, FIPS 190, FIPS 191 and FIPS 196.
These FIPS are obsolete and are being withdrawn because they have not been updated to reference current or revised voluntary industry standards, federal specifications, or federal data standards. Federal agencies are responsible for using current voluntary industry standards and current federal specifications and data standards in their acquisition and management activities.
The withdrawal of FIPS 181, FIPS 185, FIPS 188, FIPS 190, FIPS 191 and FIPS 196 is effective on October 19, 2015.
Ms. Diane Honeycutt, telephone (301) 975-8443, National Institute of Standards and Technology, 100 Bureau Drive, MS 8930, Gaithersburg, MD 20899-8930 or via email at
Federal Information Processing Standards Publications (FIPS PUBS) are issued by the National Institute of Standards and Technology after approval by the Secretary of Commerce, pursuant to Section 5131 of the Information Technology Management Reform Act of 1996 (Pub. L. 104-106), and the Federal Information Security Management Act of 2002 (Pub. L. 107-347).
The Information Technology Management Reform Act of 1996 (Division E of Pub. L. 104-106) and Executive Order 13011 emphasize agency management of information technology and Government-wide interagency support activities to improve productivity, security, interoperability, and coordination of Government resources. Under the National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113), Federal agencies and departments are directed to use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments. Voluntary industry standards are the preferred source of standards to be used by the Federal government. The use of voluntary industry standards eliminates the cost to the government of developing its own standards, and furthers the policy of reliance upon the private sector to supply goods and services to the government.
A notice was published in the
Comments were received from one commenter: an industry organization. These comments are posted at
Following is a summary of the comments received.
The single set of comments received was from an industry organization and pertained solely to the withdrawal of FIPS 185, Escrowed Encryption Standard. The comments supported the withdrawal of FIPS 185, Escrowed Encryption Standard. The commenter stated that the citation of Skipjack as the reference algorithm, vulnerabilities in Escrowed Encryption Standards, and potential for misuse of escrowed encryption keys were reasons for supporting the withdrawal of FIPS 185.
No comments were received concerning the other five standards that had been proposed for withdrawal.
The FIPS number and title for each of the six FIPS being withdrawn are:
Withdrawal means that these FIPS will no longer be part of a subscription service that is provided by the National Technical Information Service, and federal agencies will no longer be required to comply with these FIPS. NIST will continue to provide relevant information on standards and guidelines by means of electronic dissemination methods. Current versions of the data standards and specifications are available through the Web pages of the Federal agencies that develop and maintain the data codes. NIST will keep references to these withdrawn FIPS on its FIPS Web pages, and will link to current versions of these standards and specifications where appropriate.
National Institute of Standards and Technology (NIST), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before December 18, 2015.
Direct all written comments to Jennifer Jessup, Departmental
Requests for additional information or copies of the information collection instrument and instructions should be directed to Darla Yonder, Management Analyst, NIST, 100 Bureau Drive, MS 1710, Gaithersburg, MD 20899-1710, telephone 301-975-4064 or via email to
In accordance with Executive Order 12862, the National Institute of Standards and Technology (NIST), a non-regulatory agency of the Department of Commerce, proposes to conduct a number of surveys—both quantitative and qualitative—designed to evaluate our current programs from a customer's perspective. NIST proposes to perform program evaluation data collections by means of, but not limited to, focus groups, reply cards that accompany product distributions, and Web-based surveys and dialogue boxes that offer customers the opportunity to express their views on the programs they are asked to evaluate. NIST will limit its inquiries to data collections that solicit strictly voluntary opinions and will not collect information that is required or regulated. Steps will be taken to assure anonymity of respondents in each activity covered under this request.
NIST will collect this information by electronic means when possible, as well as by mail, fax, telephone and person-to-person interviews.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of correction to a public meeting.
The South Atlantic Fishery Management Council will hold a meeting of its Habitat Protection and Ecosystem-Based Management (Habitat) Advisory Panel (AP) in St. Petersburg, FL. The meeting is open to the public.
The meeting will be held from 9 a.m. until 4:30 p.m. on Tuesday, November 17, 2015, and from 9 a.m. until 4:30 p.m. Wednesday, November 18, 2015.
Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC, 29405; phone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
This notice being re-published in its entirety is a correction to a meeting notice that published on October 2, 2015 (80 FR 59739). The original notice stated in the SUMMARY that the meeting was to be held in N. Charleston, SC. The
Items to be addressed or sessions to be conducted during the Habitat AP meeting include but not limited to: The review and completion of a redrafted Council Essential Fish Habitat (EFH) Policy Statement on Energy Exploration, Development and Transportation; a presentation on the Florida Artificial Reef Program and discussion on the developing Artificial Reef Policy Statement; a roundtable discussion on issues associated with South Atlantic Climate Variability and Fisheries and South Atlantic Food Webs and Connectivity for possible future policy statement development; and a Panel member working session highlighting regional research program activities and facilitating the update of Volume V of Fishery Ecosystem Plan (FEP) II, Regional Programs and Data Needs and associated appendices presenting Council, State, Commission and partner research, monitoring and data needs. Other status reports will focus on regional ecosystem modelling, threats to EFH, and EFH updates associated with FEP II development.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's (MAFMC's) Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will hold a public meeting.
The meeting will be held on Monday, November 9, 2015 from 1 p.m. to 5 p.m. and on Tuesday, November 10, 2015 from 9 a.m. to 3 p.m. See
The meeting will be held at the Providence Biltmore, Curio Collection by Hilton, 11 Dorrance Street, Providence, RI 02903; telephone: (401) 421-0700.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255.
The Mid-Atlantic Fishery Management Council's Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will meet from Monday, November 9 through Tuesday, November 10 (see
(1) Monitoring Committee recommendations for recreational management measures for the summer flounder, scup, and black sea bass fisheries for the 2016 fishing year;
(2) Possible discussion of Monitoring Committee review of commercial management measures for summer flounder, scup, and black sea bass fisheries, depending on progress made prior to meeting.
A detailed agenda and background documents will be made available on the Council's Web site (
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before December 18, 2015.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to James St.Cyr, (978) 281-9369 or
This request is for an extension of a currently approved information collection.
Under the Magnuson-Stevens Fishery Conservation and Management Act, the Secretary of Commerce (Secretary) has the responsibility for the conservation and management of marine fishery resources. Much of this responsibility has been delegated to the National Oceanic and Atmospheric Administration (NOAA)/National Marine Fisheries Service (NMFS). Under this stewardship role, the Secretary was given certain regulatory authorities to ensure the most beneficial uses of these resources. One of the regulatory steps taken to carry out the conservation and management objectives is to collect data from users of the resource. Thus, as regional Fishery Management Councils develop specific Fishery Management Plans (FMP), the Secretary has promulgated rules for the issuance and use of a vessel Interactive Voice Response (IVR) system, a Vessel Monitoring System (VMS) and vessel logbooks (VTR) to obtain fishery-dependent data to monitor, evaluate, and enforce fishery regulations.
Fishing vessels permitted to participate in Federally-permitted fisheries in the Northeast are required to submit logbooks containing catch and effort information about their fishing trips. Participants in the herring, tilefish and red crab fisheries are also required to make weekly reports on their catch through IVR. In addition, vessels fishing under a days-at sea (DAS) management system can use the IVR system to request a DAS credit when they have canceled a trip for unforeseen circumstances. The information submitted is needed for the management of the fisheries.
Most information is submitted on paper forms, although some vessels are utilizing an electronic vessel trip reporting system (EVTR). The IVR system is used by vessel owners to provide supplemental information related to specific activities such as harvesting research set-aside quota species, conducting exempted fishing activities, or declaring a block of days out of the fishery. In the herring and tilefish fisheries vessel owners or operators must provide weekly catch information to an IVR system. In the NE Multispecies fishery, vessel owners or operators must declare catch and discards of groundfish species of concern through VMS for all trips.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (“PRA”), this notice announces that the Information Collection Request (“ICR”) abstracted below has been forwarded to the Office of Management and Budget (“OMB”) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before November 18, 2015.
Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to the Office of Information and Regulatory Affairs (“OIRA”) in OMB, within 30 days of the notice's publication, by email at
Comments may also be mailed to: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581 or by Hand Delivery/Courier at the same address.
A copy of the supporting statements for the collection of information discussed above may be obtained by visiting
Peter A. Kals, Special Counsel, Division of Clearing and Risk, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, (202) 418-5466; email:
44 U.S.C. 3501
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (“PRA”), this notice announces that the Information Collection Request (“ICR”) abstracted below has been forwarded to the Office of Management and Budget (“OMB”) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before November 18, 2015.
Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to the Office of Information and Regulatory Affairs (“OIRA”) in OMB, within 30 days of the notice's publication, by email at
Comments may also be mailed to: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581 or by Hand Deliver/Courier at the same address.
A copy of the supporting statements for the collection of information discussed above may be obtained by visiting
Jacob Chachkin, Special Counsel, Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, (202) 418-5496, email:
(Authority: 44 U.S.C. 3501
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Notice
In compliance with the
Consideration will be given to all comments received by December 18, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the National Center for Telehealth and Technology (T2), 9933 West Hayes Street, BOX 339500 MS 34, Joint Base Lewis-McChord 98431 or call (253) 968-2946.
Form completers are behavioral and medical health providers, military unit leadership or their designees. The DoDSER form is used to collect information regarding suicide events of military service members. Form completers collect information from military personnel records, military medical records, enterprise data systems within the DoD and persons (respondent) familiar with the event details. Respondents include but are not limited to family members, friends, unit members, unit leadership and clergy members. The DoDSER form data is used to produce ad hoc reports for services leadership and the DoDSER Annual Report. The annual report is a comprehensive description and analysis of the data collected, which provides information for DoD suicide prevention efforts.
Joint Service Committee on Military Justice (JSC), Department of Defense.
Notice of Proposed Amendments to the Manual for Courts-Martial, United States (2012 ed.) and Notice of Public Meeting.
The Department of Defense requests comments on proposed changes to the
The proposed changes also concern supplementary materials that accompany the rules of procedure and evidence and punitive articles. The Department of Defense, in conjunction with the Department of Homeland Security, publishes these supplementary materials to accompany the Manual for Courts-Martial. These materials consist of a Discussion (accompanying the Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, and the Punitive Articles), an Analysis, and various appendices. The approval authority for changes to the supplementary materials is the General Counsel, Department of Defense; changes to these items do not require Presidential approval.
The proposed amendments would change military justice practice by implementing recommendations made by the Response Systems to Adult Sexual Assault Crimes Panel, incorporating recent amendments to the Federal Rules of Evidence into the Military Rules of Evidence, and modifying the Rules for Courts-Martial, Military Rules of Evidence, and Punitive Articles explanation to reflect recent statutory amendments and developments in case law.
This notice is provided in accordance with DoD Directive 5500.17, “Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice,” May 3, 2003.
The JSC invites members of the public to comment on the proposed changes; such comments should address specific recommended changes and provide supporting rationale.
This notice also sets forth the date, time, and location for a public meeting of the JSC to discuss the proposed changes.
This notice is intended only to improve the internal management of the Federal Government. It is not intended to create any right or benefit, substantive or procedural, enforceable at law by any party against the United States, its agencies, its officers, or any person.
Comments on the proposed changes must be received no later than December 18, 2015. A public meeting for comments will be held on November 5, 2015, at 10 a.m. in the United States Court of Appeals for the Armed Forces building, 450 E Street NW., Washington DC 20442-0001.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Captain Harlye S. Carlton, USMC, Executive Secretary, JSC, (703) 693-9299,
The proposed amendments to the MCM are as follows:
“(22) The definition of “signature” below includes a digital or electronic signature.”
“(1)
“(B) Give a less favorable rating or evaluation of any defense counsel or special victims' counsel because of the zeal with which such counsel represented any client. As used in this rule, “special victims' counsel” are judge advocates who, in accordance with 10 U.S.C. 1044e, are designated as Special Victims' Counsel by the Judge Advocate General of the armed force in which the judge advocates are members, and within the Marine Corps, by the Staff Judge Advocate to the Commandant of the Marine Corps.”
“(v)
“(b)
(1)
“(2)
(A) For purposes of this subsection, a “sex-related offense” means any allegation of a violation of Article 120, 120a, 120b, 120c, or 125 or any attempt thereof under Article 80, UCMJ.
(B) Under such regulations as the Secretary concerned may prescribe, for alleged sex-related offenses committed in the United States, the victim of the sex-related offense shall be provided an opportunity to express views as to whether the offense should be prosecuted by court-martial or in a civilian court with jurisdiction over the offense. The commander shall consider such views as to the victim's preference for jurisdiction, if available, prior to making an initial disposition decision. For purposes of this rule, “victim” is defined as an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an alleged sex-related offense as defined in subsection (A).
(C) Under such regulations as the Secretary concerned may prescribe, if the victim of an alleged sex-related offense expresses a preference for prosecution of the offense in a civilian court, the convening authority shall ensure that the civilian authority with jurisdiction over the offense is notified of the victim's preference for civilian prosecution. If the convening authority learns of any decision by the civilian authority to prosecute or not prosecute the offense in civilian court, the convening authority shall ensure the victim is notified.”
“(2)
(A) The victim(s) of an offense under the UCMJ has the right to reasonable, accurate, and timely notice of a preliminary hearing relating to the alleged offense, the right to be reasonably protected from the accused, and the reasonable right to confer with counsel for the government during the preliminary hearing. For the purposes of this rule, a “victim” is a person who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration.”
“(A) A promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or a confessional stipulation will be entered;”
“(3)
“(2)
“(b)(6)
“(1)
“(3)
(A) The specification is so defective that it substantially misled the accused, and the military judge finds that, in the interest of justice, trial should proceed on remaining charges and specifications without undue delay;
(B) The specification is multiplicious with another specification, is unnecessary to enable the prosecution to meet the exigencies of proof through trial, review, and appellate action, and should be dismissed in the interest of justice; or
(C) The specification fails to state an offense.”
“(4)
(A) That the accused understands the agreement;
(B) That the parties agree to the terms of the agreement; and
(C) That the victim was provided an opportunity to express views as to the terms and conditions of the agreement as provided in R.C.M. 705.”
“(a)
(b)
“(i) Any part of the sentence adjudged exceeds twelve months confinement, forfeiture of pay greater than two-thirds pay per month, or any forfeiture of pay for more than twelve months or other punishments that may be adjudged by a special court-martial; or”
“[Note: R.C.M. 1107(b)-(f) apply to offenses committed on or after 24 June 2014; however, if at least one offense resulting in a finding of guilty in a case occurred prior to 24 June 2014, then the prior version of R.C.M. 1107 applies to all offenses in the case, except that
“(c)
(1) Where a court-martial includes a finding of guilty for an offense listed in (c)(1)(A), the convening authority may not take the actions listed in subsection (c)(1)(B):
(A)
(i) Article 120(a) or (b), Article 120b, or Article 125;
(ii) Offenses for which the maximum sentence of confinement that may be adjudged exceeds two years without regard to the jurisdictional limits of the court; or
(iii) Offenses where the adjudged sentence for the case includes dismissal, dishonorable discharge, bad-conduct discharge, or confinement for more than six months.
(B)
(i) Dismiss a charge or specification by setting aside a finding of guilty thereto; or
(ii) Change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.
(2) The convening authority may direct a rehearing in accordance with subsection (e) of this rule.
(3) For offenses other than those listed in subsection (c)(1)(A):
(A) The convening authority may change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification; or
(B) Set aside any finding of guilty and:
(i) Dismiss the specification and, if appropriate, the charge; or
(ii) Direct a rehearing in accordance with subsection (e) of this rule.
(4) If the convening authority acts to dismiss or change any charge or specification for an offense, the convening authority shall provide, at the same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of trial and action thereon.”
“(d)
(1) The convening authority shall take action on the sentence subject to the following
(A) The convening authority may disapprove, commute, or suspend, in whole or in part, any portion of an adjudged sentence not explicitly prohibited by this rule, to include reduction in pay grade, forfeitures of pay and allowances, fines, reprimands, restrictions, and hard labor without confinement.
(B) Except as provided in subsection (d)(1)(C), the convening authority may not disapprove, commute, or suspend, in whole or in part, that portion of an adjudged sentence that includes:
(i) confinement for more than six months; or
(ii) dismissal, dishonorable discharge, or bad-conduct discharge.
(C)
(i)
(ii)
(D) If the convening authority acts to disapprove, commute, or suspend, in whole or in part, the sentence of the court-martial for an offense listed in subsection (c)(1)(A), the convening authority shall provide, at the same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of trial and action thereon.”
“(e)
(1)
(2)
(A)
(B)
(i)
(ii)
(iii)
(C)
(i)
(ii)
(iii)
(D)
(E)
(3)
“[Note: R.C.M. 1108(b) applies to offenses committed on or after 24 June 2014; however, if at least one offense in a case occurred prior to 24 June 2014, then the prior version of R.C.M. 1108(b) applies to all offenses in the case.]”
_“(a)
“(A)
“(C)
“The purpose of the hearing is for the hearing officer to determine whether there is probable cause to believe that the probationer violated a condition of the probationer's suspension.”
“(C)
“This record shall include the recommendation, the evidence relied upon, and reasons for making the decision.”
“(A)
“The purpose of the hearing is for the hearing officer to determine whether there is probable cause to believe that the probationer violated the conditions of the probationer's suspension.”
“(3)
“This record shall include the recommendation, the evidence relied upon, and reasons for making the decision.”
“(6)
“The purpose of the hearing is for the hearing officer to determine whether there is probable cause to believe that the probationer violated the conditions of the probationer's suspension.”
“(3)
“This record shall include the recommendation, the evidence relied upon, and reasons for making the decision.”
“(6)
“(h)
(1)
(2)
(3)
(4)
(5)
(6)
(i) After being notified of the time and place of the proceeding is voluntarily absent; or
(ii) After being warned by the hearing officer that disruptive conduct will cause removal from the proceeding, persists in conduct that is such as to justify exclusion from the proceeding.
(7)
(8)
(9)
“(c)
(1) An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that would tend to establish the trustworthiness of the admission or confession.
(2) Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of the admission or confession, then it may be considered as evidence against the accused. Not every element or fact contained in the confession or admission must be independently proven for the confession or admission to be admitted into evidence in its entirety.
(3) Corroboration is not required for a statement made by the accused before the court by which the accused is being tried, for statements made prior to or contemporaneously with the act, or for statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions.
(4)
(5)
“(a)
(1) The accused makes a timely motion to suppress or an objection to the evidence under this rule;
(2) the accused had a reasonable expectation of privacy in the person, place or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise have grounds to object to the search or
(3) exclusion of the evidence results in appreciable deterrence for future Fourth Amendment violations and the benefits of such deterrence outweigh the costs to the justice system.”
“(4)
“(A) any conduct prohibited by Article 120 and committed with a child, or prohibited by Article 120b.”
“Rule 504. Marital privilege
(a)
(b)
(1)
(2)
(c)
(1)
(2)
(A) In proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other spouse;
(B) When the marital relationship was entered into with no intention of the parties to live together as spouses, but only for the purpose of using the purported marital relationship as a sham, and with respect to the privilege in subdivision (a), the relationship remains a sham at the time the testimony or statement of one of the parties is to be introduced against the other; or with respect to the privilege in subdivision (b), the relationship was a sham at the time of the communication; or
(C) In proceedings in which a spouse is charged, in accordance with Article 133 or 134, with importing the other spouse as an alien for prostitution or other immoral purpose in violation of 8 U.S.C. 1328; with transporting the other spouse in interstate commerce for prostitution, immoral purposes, or another offense in violation of 18 U.S.C. 2421-2424; or with violation of such other similar statutes under which such privilege may not be claimed in the trial of criminal cases in the United States district courts.
(d)
(1) “A child of either” means a biological child, adopted child, or ward of one of the spouses and includes a child who is under the permanent or temporary physical custody of one of the spouses, regardless of the existence of a legal parent-child relationship. For purposes of this rule only, a child is:
(A) an individual under the age of 18; or
(B) an individual with a mental handicap who functions under the age of 18.
(2) “Temporary physical custody” means a parent has entrusted his or her child with another. There is no minimum amount of time necessary to establish temporary physical custody, nor is a written agreement required. Rather, the focus is on the parent's agreement with another for assuming parental responsibility for the child. For example, temporary physical custody may include instances where a parent entrusts another with the care of his or her child for recurring care or during absences due to temporary duty or deployments.
(3) As used in this rule, a communication is “confidential” if made privately by any person to the spouse of the person and is not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication.”
“(B) is consistent with the declarant's testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or”
“(E) the opponent does not show that the source of information or the method or circumstance of preparation indicate a lack of trustworthiness.”
“(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.”
“(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.”
“(B) a counsel for the government who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the accused does not object in writing within 7 days of receiving the notice—unless the military judge sets a different time for the notice or the objection.”
“c.
“
“
“
“
“
“
“
“
“
“
“
Rule 311(c)(4) was added to adopt the expansion of the “good faith” exception to the exclusionary rule set forth in
“
“
“Paragraph 144
“
“
“
“Rule 803(8)(C) makes admissible, but only against the Government, “factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” This provision will make factual findings made, for example, by an Article 32 Investigating Officer or by a Court of Inquiry admissible on behalf of an accused. Because the provision applies only to “factual findings,” great care must be taken to distinguish such factual determinations from opinions, recommendations, and incidental inferences.”
“
Paragraph 110, Article 134—Threat, communicating, is amended by inserting the following at the end:
“
“Any preferences as to disposition expressed by the victim regarding jurisdiction, while not binding, should be considered by the cognizant commander prior to making initial disposition.
The cognizant commander should continue to consider the views of the victim as to jurisdiction until final disposition of the case.”
“(ii)
“When an alleged offense involves a victim, the victim should, whenever practicable, be provided an opportunity to express views regarding the disposition of the charges. The commander with authority to dispose of charges should consider such views of the victim prior to deciding how to dispose of the charges and should continue to consider the views of the victim until final disposition of the case. A “victim” is an individual who is alleged to have suffered direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration.”
“When an alleged offense involves a victim, the victim should, whenever practicable, be provided an opportunity to express views regarding the withdrawal of any charges or specifications in which the victim is named. The convening authority or other individual authorized to act on the charges should consider such views of the victim prior to withdrawing said charges or specifications and should continue to consider the views of the victim until final disposition of the case. A “victim” is an individual who is alleged to have suffered direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration.”
“A promise to provide restitution includes restitution to a victim of an alleged offense committed by the accused in accordance with Article 6b(a)(6).”
“If the plea agreement contains any unclear or ambiguous terms, the military judge should obtain clarification from the parties. If there is doubt about the accused's understanding of any terms in the agreement, the military judge should explain those terms to the accused.
(i) The Discussion section following R.C.M. 1105(b)(2)(C) is amended to read as follows:
“For example, post-trial conduct of the accused, such as providing restitution to the victim of the accused's offense in accordance with Article 6b(a)(6), or exemplary behavior, might be appropriate.”
“The action is taken in the interests of justice, discipline, mission requirements, clemency, and other appropriate reasons. If errors are noticed by the convening authority, the convening authority may take corrective action under this rule to the extent that the convening authority is empowered by Article 60.”
“The military follows a unitary sentencing model where the court-martial may impose only a single, unitary sentence covering all of the offenses for which there was a finding of guilty; courts-martial do not impose sentences per offense.
“Per Article 60(c)(4)(A) and subsection (d)(1)(A) and (B) of this rule, disapproval of the sentence is not authorized where a court-martial's adjudged sentence for the case includes confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad- conduct discharge. In such cases, the convening authority may not order a rehearing because disapproval of the sentence is required for a convening authority to order a rehearing.
“A sentence rehearing, rather than a reassessment, may be more appropriate in cases where a significant part of the government's case has been dismissed. The convening authority may not take any actions inconsistent with directives of superior competent authority. Where that directive is unclear, appropriate clarification should be sought from the authority issuing the original directive. For purposes of R.C.M. 1107(e)(1)(B), the term “superior competent authority” does not include superior convening authorities but rather, for example, the appropriate Judge Advocate General or a court of competent jurisdiction.”
“For example, if proof of absence without leave was by improperly authenticated documentary evidence admitted over the objection of the defense, the convening authority may disapprove the findings of guilty and sentence and order a rehearing if there is reason to believe that properly authenticated documentary evidence or other admissible evidence of guilt will be available at the rehearing. On the other hand, if no proof of unauthorized absence was introduced at trial, a rehearing may not be ordered.”
“The limitations on suspension of the execution of any sentence or part thereof contained in Article 60 apply to a decision by a convening authority or other person acting on the case under Article 60, as opposed to an individual remitting or suspending a sentence pursuant to a different authority, such as Article 74.
“The following oath may be given to witnesses:
“Do you (swear) (affirm) that the evidence you give shall be the truth, the whole truth, and nothing but the truth (so help you God)?”
The hearing officer is required to include in the record of the hearing, at a minimum, a summary of the substance of all testimony.
All hearing officer notes of testimony and recordings of testimony should be preserved until the end of trial.
If during the hearing any witness subject to the Code is suspected of an offense under the Code, the hearing officer should comply with the warning requirements of Mil. R. Evid. 305(c), (d), and, if necessary, (e).
Bearing in mind that the probationer and government are responsible for preparing and presenting their cases, the hearing officer may ask a witness questions relevant to the limited purpose of the hearing. When questioning a witness, the hearing officer may not depart from an impartial role and become an advocate for either side.”
DOE-Bonneville Power Administration (BPA)
60-Day notice of submission of information collection approval from the Office of Management and Budget (OMB) and request for comments.
BPA is seeking comments on a proposed submission to OMB for clearance of a collection of information under the provisions of the Paperwork Reduction Act of 1995. BPA collects information necessary to verify the personal identity of potential employees and contractors. The information assists BPA in the performance of identity verification and registration prior to issuance of a DOE Security Badge and ensures compliance with Homeland Security Presidential Directive-12 (HSPD-12), a mandatory, Government-wide standard for secure and reliable forms of identification issued by the Federal Government to its employees and contractors.
Comments must be received on or before December 18, 2015.
Written comments may be submitted by first class mail to: Christopher M. Frost, CGC-7, Bonneville Power Administration, 905 NE 11th Avenue, Portland, Oregon 97232, or by email:
Information Collection Clearance Officer, Christopher M. Frost, at the mailing address above or by email:
This information collection request contains:
A recent internal audit of PRA compliance determined that this existing collection does not have an OMB clearance number. BPA is seeking approval for an information collection on personally identifiable information (PII) of new and existing Federal and
BPA requests that you send your comments to the locations listed in the
(a) The necessity of the information collection for the proper performance of BPA's functions, including whether the information will have practical utility;
(b) The accuracy of our estimate of the burden (hours and costs) of the collection of the information;
(c) Ways BPA could enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways BPA could minimize the burden of the collection of the information, such as through the use of automated collection techniques or other forms of information technology.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid Office of Management and Budget control number. Comments may be made available to the public, including your address, phone number, and email address. You may request that BPA withholds your personally identifiable information, but there is no guarantee that BPA will be able to do so.
Environmental Protection Agency (EPA).
Notice of determination; correction.
The Environmental Protection Agency (EPA) published a document in the
Moses Chang, (212) 637-3867, email address:
In the
Environmental Protection Agency (EPA).
Notification of public teleconference meeting and public comment.
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, the U.S. Environmental Protection Agency (EPA) hereby provides notice that the Board of Scientific Counselors (BOSC) Homeland Security Subcommittee will host a public teleconference meeting on Tuesday, November 3, 2015, from 12 noon to 2:00 p.m. Eastern Time. The primary discussion will focus on the draft report summarizing recommendations from the August 25-27, 2015, meeting and subsequent public teleconference on October 1, 2015. There will be a public comment period from 1:45 p.m. to 2 p.m. Eastern Standard Time (EST). Members of the public are encouraged to provide comments relevant to the topics of the meeting.
For additional information about registering to attend the meeting or to provide public comment, please see the
The BOSC Homeland Security Subcommittee teleconference meeting on Tuesday, November 3, 2015, will begin promptly at 12 noon Eastern Time.
Questions or correspondence concerning the teleconference meeting should be directed to Tom Tracy, Designated Federal Officer, Environmental Protection Agency, by mail at 1200 Pennsylvania Avenue NW., (MC 8104 R), Washington, DC 20460; by telephone at 202-564-6518; or via email at
The Charter of the BOSC states that the advisory committee shall provide
Written Statements: Written comments for the public meeting must be received by 12 noon, Eastern Time on Friday, October 30, 2015, and will be included in the materials distributed to the BOSC Homeland Security Subcommittee prior to the teleconference. Written comments should be sent to Tom Tracy, Environmental Protection Agency, via email at
Information about Services for Individuals with Disabilities: For information about access or services for individuals with disabilities, please contact Tom Tracy, at 202-564-6518 or via email at
In Notice Document 2015-26039, appearing on pages 61406-61419, in the Issue of Tuesday, October 13, 2015, make the following correction:
On page 61406, in the second column, under the heading “
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before December 18, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Communications Commission.
Federal Communications Commission.
Notice.
The
Wireless Telecommunications Bureau, Auctions and Spectrum Access Division: Erik Salovaara at (202) 418-0660 or
This is a summary of the
1. The Auction 1000 Prohibited Communications Guidance PN addresses the application of the Commission's rules prohibiting certain communications during the broadcast television spectrum incentive auction, Auction 1000, and related issues. The rules apply to applicants in both the reverse and the forward auction. In response to numerous questions on this topic, the Commission's Wireless Telecommunications Bureau (Bureau) also takes this opportunity to clarify certain aspects of the rules. Finally, the Bureau discusses the applicability of the antitrust laws and administrative issues.
2. 47 CFR 1.2205(b) provides that, subject to specified exceptions, “beginning on the deadline for submitting applications to participate in the reverse auction and until the results of the incentive auction are announced by public notice, all full power and Class A broadcast television licensees are prohibited from communicating directly or indirectly any incentive auction applicant's bids or bidding strategies to any other full power or Class A broadcast television licensee or to any forward auction applicant.” For purposes of the rule, a full power or a Class A broadcast television licensee includes all controlling interests in the licensee, and all officers, directors, and governing board members of the licensee. With respect to the bids and bidding strategies that are the focus of the rule, “an incentive auction applicant” is the party identified as the applicant in an application to participate in either the reverse or forward auction. A forward auction applicant includes all controlling interests in the entity applying to participate in the forward auction, as well as all holders of partnership and other ownership interests and any stock interest amounting to 10 percent or more of the entity, or outstanding stock, or outstanding voting stock of the entity submitting a short-form application, and all officers and directors of that entity. Generally, a party that submits an application becomes an applicant under this rule at the deadline for submitting applications to participate in the reverse auction, and for purposes of the rule that party's status does not change based on subsequent developments during the auction process. The prohibition on communicating directly or indirectly includes public disclosures as well as private communications.
3. 47 CFR 1.2205(b) applies solely to communications that directly or indirectly communicate an incentive auction applicant's bids or bidding strategies. The Commission has emphasized that the rule is limited in scope and only prohibits disclosure of information that affects, or has the potential to affect, bids and bidding strategies. Business discussions and negotiations that are
4. There are three exceptions to 47 CFR 1.2205(b) under which communications regarding bids or bidding strategies are permissible. Under the first, such communications between covered broadcast licensees are permissible if the licensees share a common controlling interest, director, officer, or governing board member as of the deadline for submitting applications to participate in the reverse auction. The second exception permits such communications between a broadcast licensee and a forward auction applicant if a controlling interest, director, officer or governing board member of the broadcast licensee is also a controlling interest, director, officer, or holder of any 10 percent or greater ownership interest in the forward auction applicant as of the deadline for submitting application to participate in the reverse auction. The third exception permits such communications between broadcast licensees that are parties to a channel sharing agreement that was executed prior to the deadline for submitting applications to participate in the reverse auction and that was disclosed on an application to participate in the reverse auction.
5. Overview. The Commission has previously explained that the rule prohibiting certain communications should result in minimal intrusion into broadcasters' routine business practices, since covered television licensees may structure their business practices to avoid violations. The Bureau recognizes that broadcast licensees engage in a myriad of business arrangements with one another, or with affiliated entities, that are not directly related to bids and bidding strategies in the incentive auction. Such arrangements include, but are not limited to, network affiliation
6. Communicating Merely Whether a Licensee Has or Has Not Applied to Participate Does Not Violate the Rule. Communicating directly or indirectly that a licensee has or has not filed an application to participate in the reverse auction does not constitute communication regarding an applicant's bids or bidding strategies and therefore does not violate the reverse auction rule prohibiting certain communications. Filing an application is a prerequisite to bidding in the reverse auction, but the mere fact that an application has been filed does not require the applicant to bid, nor does it reveal an applicant's specific bids or bidding strategies,
7. Accordingly, a licensee may explain in the course of its business communications that it has applied to participate in the auction, for example, as the basis for seeking a short-term extension of an agreement rather than a full term renewal or in communications with legislators. Alternatively, a licensee seeking a multi-year contract may state that it has not applied. Noncommercial broadcasters may refer to their decision to apply or not to apply to participate in the auction when engaging in fundraising activities, including public pledge drives and private discussions with existing and potential donors. Such communications would not violate the rule. Moreover, while another broadcast licensee or forward auction applicant might attempt to infer specific bids or bidding strategies based solely on a licensee's status as an applicant, such an inference without more support does not constitute a communication regarding the applicant's bids or bidding strategies.
8. Communicating How a Licensee Will Participate in the Auction Is Prohibited by the Rule. In contrast to communications solely about whether or not a licensee has applied to participate in the auction, communications regarding the specific nature of a licensee's participation, including without limitation the bid options or bidding actions that have been or will be selected or taken, may convey bids and bidding strategy and are therefore prohibited by the rule after the quiet period commences. Unlike the submission of an application, such communications convey information about specific bids or bidding strategies; some of these may represent irrevocable obligations or commitments by an applicant. The rule prohibits such communications whether direct or indirect, express or implied. An applicant that communicates details regarding its application or bidding actions, such as indicating which option or options it has selected or stating that it has dropped out of bidding, may be disclosing its bids and bidding strategy in violation of the rule. A communication concerning the existence or details of a channel sharing agreement during the quiet period is also potentially a disclosure in violation of the rule. The Commission recognizes that broadcasters will continue operations during the auction and any broadcaster, regardless of its bids or bidding strategies, may need to do so indefinitely after the auction. Accordingly, a broadcaster communicating that it will continue broadcasting does not thereby disclose any bids or bidding strategies, whether or not it is an applicant. For instance, a noncommercial station that states that it has applied to participate in the incentive auction and subsequently undertakes a pledge drive could lead others to draw an inference that the station intends to either channel share or move to a new band, or perhaps anticipates that it will not accept the prices ultimately offered in the auction. Merely undertaking the pledge drive does not, however, create a clear or reliable inference with respect to its particular strategy, and in connection with the pledge drive the station may state publicly that it will continue broadcasting after the auction.
9. Although communications regarding whether or not a broadcaster has applied to participate in the auction are permissible under the rule, licensees should take care when communicating about their applicant or non-applicant status that their communications does not convey or appear to convey information about specific bids or bidding strategies. For example, a communication that a broadcaster “is not bidding” in the auction, in contrast to “is not an applicant,” could constitute an apparent violation of the rule—and create issues with respect to any failure to make a violation report.
10. Routine Business Communications Do Not Violate the Rule if They Do Not Convey Bids or Bidding Strategies. If no prohibited communications occur during normal course transactions, other information communicated in the course of such transactions would not be considered communications regarding an applicant's bids or bidding strategies. Absent express statements of bids or bidding strategies, communications regarding legitimate, non-auction-related business topics are unlikely to support reliable inferences by other covered entities regarding bids or bidding strategies. While another broadcaster or forward auction applicant might attempt to infer bids or bidding strategies based on communications regarding a licensee's decision whether or not to apply to bid in the auction, circumstances make it unlikely that anyone will be able to reliably infer a covered broadcast licensee's detailed bids or bidding strategies from communications on other topics. While a bidder cannot control what inferences another covered entity may draw from the bidder's communication regarding whether or not it has applied to bid in the auction,
11. Moreover, no one can know with certainty what the outcome of the auction will be. Accordingly, no licensee can count on a bid being accepted, whether the bid is to go off-air and cease operations, to go off-air to share a channel, or to move to a new band. Non-applicants can count, of
12. Communications With Third Parties. The prohibited communications rule prohibits only communications among covered parties (that is, eligible broadcast television licensees and forward auction applicants), not necessarily communications to third parties. During the period the prohibition on certain communications is in effect, covered parties may want or need to communicate bids or bidding strategies to third parties such as counsel, consultants or lenders. The rule does not prohibit such communications, provided that the covered entity takes any steps necessary to prevent the third party from becoming a conduit for communicating bids or bidding strategies to other covered parties.
13. Commission precedent provides guidance for how a covered party can guard against a third party becoming a conduit for prohibited communications to other covered parties. For instance, a licensee might require a third party, such as a lender, to sign a non-disclosure agreement before the licensee communicates any information regarding bids or bidding strategy to the third party. This approach might be useful where the third party needs to know the licensee's bids or bidding strategies but will not be advising other covered parties about bids or bidding strategies. For third parties that may advise multiple licensees on bids or bidding strategies, such as attorneys or auction consultants, firewalls and other compliance procedures should be implemented to help prevent such third parties from becoming conduits for the communication of bids or bidding strategies of one covered party to another.
14. Information firewalls or equivalent procedures are not an absolute defense against an alleged violation of the prohibited communications rule. As the Bureau has explained, however, such procedures are strongly encouraged because demonstrating that precautionary actions were taken places the respondent to claims of a violation in a stronger legal position. At the very least, claims of negligent ignorance of the situation can be rejected with some dispatch. In the
15. Based in part on the foregoing precedent, the Mass Media Practice Committee (MMPC) of the Federal Communications Bar Association contends that an individual attorney or law firm may be informed of bids and bidding strategies by multiple clients covered by the reverse auction rule without becoming a conduit for prohibited communications so long as those attorneys do not reveal such information provided by one client to another client. The MMPC further asserts that the canons of ethics applicable to attorneys should provide the Commission with sufficient comfort that the effectiveness of its anti-collusion rule would not be compromised by attorneys possessing bids or bidding strategy information with respect to more than one client. The Bureau disagrees with MMPC's suggestion that the fact that an individual or law firm is subject to a canon of ethics should be sufficient, without more, to demonstrate that no violation has occurred. Other professionals also have raised this issue.
16. Disclosures Required by Other Laws. Representatives of some potential reverse auction applicants have raised the concern that legal obligations to disclose information could result in a violation of the prohibited communications rule. For example, they have raised the concern that a non-commercial broadcaster might be required by state or local sunshine laws to publicly disclose its decision making, financial status, or operational plans, all of which might include reverse auction bids or bidding strategies. Given the limited duration of the prohibition period imposed by the rule and the customary sunshine law exemptions with respect to sensitive business information, however, such concerns may not be realized. If a licensee can
17. Reporting by the News Department of a Broadcast Licensee. As part of its operations, broadcast licensees often report news to the public. In that role, a licensee's reporter-employee might obtain information regarding the licensee's or another covered party's bids and bidding strategies to be used in a news story. The Bureau will not automatically impute a reporter's dissemination of the licensee's bids and bidding strategy, or the bids or bidding strategies of other incentive auction applicants, to the licensee. In determining whether to impute to the licensee the reporter's dissemination of such information, the Bureau will consider all of the facts and circumstances, including the existence of separation between a licensee's management and editorial decision-making functions. Covered entities can limit their potential risk by undertaking careful and comprehensive compliance education for their employees in advance of the auction, particularly for those employees with access to information about bids and bidding strategies, and establish internal safeguards to limit the availability of this information to those with a need to know. This approach provides some certainty to covered entities and is consistent with First Amendment objectives.
18. Communicating Pursuant to Exceptions to the Prohibition. Licensees that may communicate with one or more other covered parties under the exceptions to the reverse auction rule prohibiting certain communications must take care that their communications related to bids or bidding strategies with particular parties fall within the scope of the exception. Thus, consistent with the Commission's intent in establishing the exception that channel sharing partners should be able to fully engage as various options are presented during the auction process, bidding-related communications are permitted solely between the specific licensees covered by a particular channel sharing arrangement (CSA) that is submitted with one of the licensee's auction applications, and only with regard to the stations involved in the arrangement. A broadcast licensee owning multiple licenses must execute separate CSAs for each of its stations that will be channel sharing with a different, not commonly owned, licensee. Further, the channel sharing exception does not permit coordination across multiple markets. Permissible communication between unaffiliated (
19. The exceptions are not cumulative. Accordingly, the parent of multiple stations may be informed of the bids and bidding strategies of all of its stations, as well as the terms and conditions of any CSAs its stations entered into before the auction. However, the licensee that entered into a CSA may not communicate to its parent or other commonly owned licensees the bids and bidding strategies of the channel sharing station's channel sharing partner(s). Similarly, while parties to a channel sharing agreement disclosed on an auction application may communicate about the bids or bidding strategies of the stations covered by their agreement, they may not communicate regarding the bids or bidding strategies of any commonly owned stations of a party to the agreement that are not subject to the agreement.
20. A covered licensee that is permitted to communicate with more than one other covered licensee under the exceptions to the rule must take precautions to prevent the prohibited communication of bids or bidding strategies with other licensees. A covered party might implement information firewalls to prevent the inadvertent sharing of information regarding bids or bidding strategies among parties that are not covered by the same exception. Such firewall might, for example, take the form of separate teams informed of bids and bidding strategies for stations that are involved in a particular channel sharing agreement disclosed in an auction application, but are not informed of the bids and bidding strategies for other, commonly owned stations that are involved in a different channel sharing agreement. As an alternative to establishing separate teams of personnel and information firewalls, a covered party might instead share a bidder with a prospective channel sharing partner, possibly the other licensee, or a corporate affiliate, to execute bids in accordance with instructions developed prior to the application deadline. In such a case, the party using a shared bidder in place of a firewall would be precluded from communicating with the bidder during the prohibition period.
21. License Assignments and Transfers of Control. Licensees that file an application to bid in the auction or that have information regarding another applicant's bids or bidding strategies must take care not to communicate such information in any context, including the negotiation or execution of license assignments or transfers of control. Thus, after the auction application deadline, the negotiations necessary to reach agreement between or among covered licensees regarding a transaction for the assignment of any such licenses that are the subject of an auction application or the transfer of control of the applicant could create the risk of a violation of the prohibited communications rule. The Bureau emphasizes, however, that the rule does not
22. Separate and apart from the prohibited communications rule, the Commission's auction application rules require that the applicant on a reverse auction application must be the broadcast licensee that would relinquish spectrum usage rights if it becomes a winning bidder in the auction. In addition, the rules bar changes in control of an applicant after the auction application filing deadline if such changes would constitute an assignment or transfer of control. These rules could effectively prevent a licensee from changing hands after the application is filed until after the auction is over.
23. The Bureau
24. For all of these reasons, the Bureau waives the bar on assignments of a license subject to an auction application or transfers of control of reverse auction applicants during the incentive auction. The waiver is limited to those instances in which the transaction resulting in the assignment of license or transfer or control of the licensee, has been accepted for filing with the Commission at the deadline for submitting reverse auction applications. This preserves in the reverse auction one of the safeguards of the underlying rule by assuring that all relevant parties are identified to the Commission prior to the auction. Furthermore, the Commission limits the waiver to transactions in which the party that will hold the licenses upon consummation of the transaction agrees, in the agreement filed with the application, to be bound by the original applicant's actions in the auction with respect to the licensee. This assures that the application, and all attendant representations and certifications, remain effective and enforceable notwithstanding the transaction.
25. 47 CFR 1.2105(c) provides that, subject to specified exceptions, after the deadline for filing applications to participate in the forward auction “all applicants are prohibited from cooperating or collaborating with respect to, communicating with or disclosing, to each other or any nationwide provider [of communications services] that is not an applicant, or, if the applicant is a nationwide provider, any non-nationwide provider that is not an applicant, in any manner the substance of their own, or each other's, or any other applicants' bids or bidding strategies (including post-auction market structure), or discussing or negotiating settlement agreements, until after the down payment deadline.” In addition, beginning at the “application filing deadline for the forward auction and until the results of the incentive auction are announced by public notice, all forward auction applicants are prohibited from communicating directly or indirectly any incentive auction applicant's bids or bidding strategies to any full power or Class A broadcast television licensee.”
26. “Applicant” for purposes of this rule includes the officers and directors of the applicant, all controlling interests in the entity applying to participate in the forward auction, as well as all holders of interests amounting to 10 percent or more of the entity. As with the reverse auction, a party that submits an application becomes an “applicant” under the rule at the application deadline and that status does not change based on subsequent developments.
27. The forward auction rule prohibiting certain communications does not apply to an applicant's communications regarding any arrangement relating to the licenses being auctioned that is excluded from the prohibition on joint bidding, provided such arrangement is disclosed on the applicant's auction application. Arrangements expressly excluded from the rule prohibiting joint bidding include solely operational agreements relating to roaming, spectrum leasing and other spectrum use arrangements, or device acquisition. Similarly, the Commission expressly noted that agreements solely for funding purposes, and not with regard to bids, bidding strategies, or post-auction market structure relating to the licenses being auctioned, are not prohibited arrangements. Permissible arrangements also include agreements to form consortia or joint ventures that will become the applicant in the auction. Additionally, they include agreements for assignment or transfer of licenses, provided that any such agreement does not both relate to the licenses at auction and address or communicate directly or indirectly bidding at auction (including prices) or bidding strategies (including the specific licenses on which to bid) or post-auction market structure. The forward auction rule also provides an exception for communications between forward auction applicants and covered broadcast licensees that have certain ownership interests or management officials in common, mirroring the exception to the reverse auction rule.
28. The Commission expressly requires that an applicant establish internal controls to preclude any person or entity with a disclosable interest in more than one applicant in a spectrum license auction from possessing information about the bids or bidding strategies of more than one applicant and from communicating information that it has about one applicant to another applicant.
29. Overview. In the course of providing service, wireless service providers engage in a wide variety of communications and business arrangements with one another, or with affiliated entities, that are not directly related to licenses offered in pending auctions and auction bids or bidding strategies or post-auction market structure. Such arrangements range from industry-wide matters, such as technical standards setting for spectrum bands, to matters concerning particular service providers, such as tower-siting and use arrangements.
30. In the
31. More recently, the Commission clarified in the
32. Permissible Communications. The Commission's recently adopted provisions banning joint bidding, and the relevant exceptions, help clarify the scope of the “applicant's bids or bidding strategies (including post-auction market structure)” that are the subject of the prohibition on communications in 47 CFR 1.2105(c). In the
33. The Bureau further clarifies that the communication of “bids or bidding strategies (including post-auction market structure)” prohibited by 47 CFR 1.2105(c) must relate to the licenses being auctioned, as does the prohibition on joint bidding agreements in 47 CFR 1.2105(a)(2). In that regard, agreements, arrangements, or understandings not subject to the prohibition on joint bidding arrangements under 47 CFR 1.2105(a)(2)(ix) similarly are not subject to the prohibition on communications in 47 CFR 1.2105(c). As the Commission noted in the
34. The Bureau also clarifies that a forward auction applicant may negotiate new agreements after the application deadline, provided that the communications involved do not relate both to the licenses being auctioned and to bids or bidding strategies or post-auction market structure. Such agreements include, for example, agreements addressing operational aspects of providing a mobile service, including but not limited to agreements for roaming, device acquisition, and spectrum leasing and other spectrum use arrangements that do not otherwise involve prohibited communications. Other such agreements could include spectrum partitioning and disaggregation and interconnection agreements. The standard for evaluating whether an agreement is exempt from the prohibited communications rule hinges on whether the agreement relates to (1) the licenses being auctioned; and (2) bids or bidding strategies or post-auction market structure. Under the rules, forward auction applicants that enter into any such agreements during the auction would be subject to the same disclosure obligations as they would for agreements existing at the deadline for filing the application.
35. In addition, the Bureau clarifies that, absent communication both relating to the licenses being auctioned and communicating or addressing bids or bidding strategies or post-auction market structure, broad industry discussions regarding setting technical standards for the spectrum band for which licenses will be auctioned do not constitute communications prohibited by 47 CFR 1.2105(c). Though the technical standards may be applied to the licenses after the auction, such discussion does not by itself raise post-auction market structure issues within the rule's concern in the absence of discussion relating to which parties may or may not obtain particular licenses through the auction. Likewise, discussions in connection with the First Responder Network Authority (FirstNet) draft request for proposals for construction of the Nationwide Public Safety Broadband Network that may involve discussions of post-auction market structure will not violate the rule so long as they do not relate to the licenses being auctioned in the incentive auction.
36. Ongoing discussions between broadcast licensees and wireless service providers that become forward auction applicants with respect to voluntary relocation of the broadcasters out of channel 51 also may continue, so long as the discussions do not communicate “an incentive auction applicant's bids or bidding strategies.” Discussions involving forward auction applicants and broadcast licensees are subject to similar provisions of the forward auction and reverse auction rules, which prohibit only communication of “an incentive auction applicant's bids or bidding strategies.” The fact that the channel 51 license is in the reverse auction would not be itself preclude such discussions. A channel 51 licensee may communication whether or not it applied to participate in the reverse auction without violating the rule.
37. Of course, participants in the discussions can take additional steps to help prevent these discussions from becoming a forum for prohibited communications by, for example, utilizing different personnel for auction operations and for other discussions, such as technical standards settings, FirstNet discussions, or channel 51 relocation arrangements.
38. Application Requirements and Additional Precautions May Help Prevent Potential Violations of the Prohibition on Certain Communications. Certain arrangements and relationships that may facilitate the communication of bids and bidding strategies through conduits are specifically addressed by the revised rule. For example, with limited exceptions relating to specified rural partnerships, no party may have a controlling interest in more than one application in a spectrum license auction such as the forward auction. Consistent with the ban on most joint bidding agreements in spectrum license auctions, the revised rule also expressly bars an individual from serving as an authorized bidder for more than one auction applicant. This bar does not apply to the reverse auction and there may be circumstances in which reverse auction applicants might share the same bidder.
39. As in the past, forward auction applicants must take care to avoid unintentional communication of bids and bidding strategies in the course of
40. As with any communication, all of the surrounding facts and circumstances must be considered when determining whether a particular communication violates the rule. As an initial matter, the communication must be to another party covered by the rule for it to constitute a violation. In other words, confidential communications within the applicant or to a third party source of funding would not violate the rule, unless it created a conduit for communication to a covered party. Thus, for instance, a capital call that does not expressly communicate bids or bidding strategies and that, after consideration of all the facts and circumstances, does not strongly support an inference of specific bids or bidding strategies likely would not violate the rule. On the other hand, the Commission has found a violation of 47 CFR 1.2105(c) where an applicant used the Commission's bidding system to disclose its bidding strategy in a manner that explicitly invited other auction participants to cooperate and collaborate in specific markets, and has placed auction participants on notice that the use of its bidding system to disclose market information to competitors will not be tolerated and will subject bidders to sanctions.
41. Forward auction applicants should use caution in their dealings with third parties, such as members of the press, financial analysts, or others who might become conduits for the prohibited communication of regarding bids or bidding strategies. For example, when bidding eligibility information is not public, an applicant's statement to the press that it has lost bidding eligibility or intends to stop bidding in the auction could give rise to a finding of a 47 CFR 1.2105(c) violation. Similarly, once it has filed an application to participate and the prohibition period has begun, an applicant's public statement of intent not to bid could also violate the rule, as it would disclose the bidding strategy of a party covered by the rule. Public disclosure of information relating to bidder interests and bidder identities that has not yet been made public by the Commission at the time of disclosure may violate the forward auction rule that prohibits certain communications.
42. In addition, when submitting its application to participate, each applicant should avoid any statements or disclosures that may violate 47 CFR 1.2105(c). Specifically, an applicant should avoid including any information in its short-form applications that might convey information regarding its license selection, such as using applicant names that refer to licenses being offered, referring to certain licenses or markets in describing bidding agreements, or including any information in attachments that may otherwise disclose the applicant's license selections.
43. The prohibited communications rule does not supplant the antitrust laws, which are designed to prevent anticompetitive behavior in the marketplace. For instance, a violation of the antitrust laws could arise out of actions taking place before the deadline for auction applications, which is the start of the prohibition period under the Commission's rules. In addition, compliance with the rule does not insulate parties from the antitrust laws. Where specific instances of collusion in the competitive bidding process are alleged, the Commission may conduct an investigation or refer such complaints to the Department of Justice for investigation.
44. Parties that violate the antitrust laws or related Commission rules are subject to severe sanctions. These may include, but are not limited to, forfeiture of reverse auction winning bid incentive payments and revocation of licenses, where applicable, forfeiture of forward auction upfront payments, or forward auction winning bid down or final payments, where applicable. Furthermore, parties may be barred from participating in future Commission auctions, and Commission licensees may be subject to revocation of their license(s).
45. Prohibition Period. The prohibition has a limited duration. Pursuant to both the rule for the reverse auction and the rule for the forward auction, the prohibition on certain communications begins with the deadline for filing applications to participate. Thus, the prohibition period under the reverse auction rule commences with the reverse auction application filing deadline, and the prohibition period under the forward auction rule commences with the forward auction application filing deadline. Under the reverse auction rule, the prohibition period ends with the announcement of the incentive auction results. For communications between forward auction applicants and broadcast television licensees, the mirroring forward auction rule prohibition period likewise ends with the announcement of the results of the incentive auction in the
46. Duty to Report. The rules require covered parties to report violations to the Commission. For Auction 1000, reports must be filed with Margaret W. Wiener, the Chief of the Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, by the most expeditious means available. Any such report should be submitted by email to Ms. Wiener at the following email address:
47. Any party subject to either the reserve or forward auction rule should take special care in circumstances where their employees or subsidiaries may receive information directly or indirectly relating to any incentive auction applicant's bids or bidding strategies. Precedent has not addressed a situation where non-principals of a party subject to the rule (
48. Compliance Education. All eligible broadcast television licensees are subject to the reverse auction rule and all forward auction applicants are subject to the forward auction rule. Accordingly, all these parties should become familiar with the relevant rule in advance of the auction application process. The Bureau reiterates that the rules apply only with respect to communications regarding bids and bidding strategies of incentive auction applicants. The rules should not impose any significant burden on full power and Class A television broadcasters that neither participate in the auction nor have information regarding bids or bidding strategies of any applicants. The main burden of the reverse auction rule will fall on broadcasters that apply to participate in the auction, or that may possess information regarding the bids and bidding strategies of others that do. These broadcasters and forward auction applicants also should become familiar with the Commission precedent regarding application of the prohibition of communications regarding bids and bidding strategies. These precedents apply slightly different rules in the context of past Commission auctions, and the details of the rules applied have changed over time. Nevertheless, the purpose underlying the prohibition reflected in all versions of the rule has remained consistent, making the precedents a potentially helpful resource for parties with respect to particular circumstances.
49. Parties also should educate employees and agents regarding compliance, particularly those employees and agents with access to bids and bidding strategy information. Limiting such access to persons with a definite need will both strengthen and simplify compliance.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before December 18, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Form 349 also contains a third party disclosure requirement, pursuant to Section 73.3580. This rule requires stations applying for a new broadcast station, or to make major changes to an existing station, to give local public notice of this filing in a newspaper of general circulation in the community in which the station is located. This local public notice must be completed within 30 days of the tendering of the application. This notice must be published at least twice a week for two consecutive weeks in a three-week period. In addition, a copy of this notice must be placed in the station's public inspection file along with the application, pursuant to Section 73.3527. This recordkeeping information collection requirement is contained in OMB Control No. 3060-0214, which covers Section 73.3527.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before December 18, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
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 13, 2015.
A. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528:
1.
Federal Retirement Thrift Investment Board.
Notice.
This notice announces the appointment of the members of the Senior Executive Service Performance Review Boards for the Federal Retirement Thrift Investment Board. The purpose of the Performance Review Boards is to make written recommendations on annual summary ratings and awards to the appointing authorities on the performance of senior executives.
This notice is effective October 14, 2015.
Kelly Powell, HR Specialist, at 202-942-1681.
Title 5, U.S. Code, 4314(c)(4), requires that the appointment of Performance Review Board members be published in the
The Program was later expanded in response to legislation enacted by Congress to address the particular needs of persons with mental illness (24 U.S.C. Sections 321 through 329). Further refinements occurred in response to Executive Order (EO) 11490 (as amended) where HHS was given the responsibility to “develop plans and procedures for assistance at ports of entry to U.S. personnel evacuated from overseas areas, their onward movement to final destination, and follow-up assistance after arrival at final destination.” In addition, under EO 12656 (53 CFR 47491), “Assignment of emergency preparedness responsibilities,” HHS was given the lead responsibility to develop plans and procedures in order to provide assistance to U.S. citizens and others evacuated from overseas areas.
In order to effectively and efficiently manage these legislative authorities, the Program has been divided into two major activities, Emergencies and Non-Emergencies Repatriation Activities. Operationally, these two Program activities involve different kinds of preparation, resources, and implementation. However, the core Program statute, regulations, policies and administrative procedures for these two Programs are essentially the same. The ongoing routine arrivals of individual repatriates and the repatriation of individuals with mental illness constitute the Program Non-emergency activities. Emergency Activities are characterized by contingency events such as civil unrest, war, threat of war or similar crisis, among other incidents. Depending on the type of event, number of evacuees and resources available, ACF will provide assistance utilizing two scalable mechanisms, emergency repatriations or group repatriations. Emergency repatriations assume the evacuation of 500 or more individuals, while group repatriations assume the evacuation of 50-500 individuals.
The Program provides services through agreements with the States, U.S. Territories, Federal agencies, and Non-governmental agencies. The list of Repatriation Forms is as follows:
1.
2.
3.
4.
5.
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8.
Food and Drug Administration, HHS.
Notice of meeting.
The Food and Drug Administration (FDA) is announcing the following meeting: Office of Women's Health General Update on Strategic Priorities and Initiatives. FDA staff will provide updates on strategic priorities, educational outreach, and research initiatives of interest to national organizations focused on the health of women.
The meeting will be held on November 30, 2015, 9 a.m. to 11 a.m.
The meeting will be held at the AARP Cy Brickfield Center, 601 East St. NW., Washington, DC 20049.
Deborah Kallgren, Office of Women's Health, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-9440, FAX: 301-847-8604,
There is no fee, but pre-registration is required. Send registration information (including name, title, firm or organization name, address, telephone, and fax number) to Deborah Kallgren. Seating is limited to 25 participants (1 person per organization).
If you need special accommodations due to a disability, please contact Deborah Kallgren (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by November 18, 2015.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under the prescription drug user fee provisions of the Federal Food, Drug, and Cosmetic Act (sections 735 and 736 (21 U.S.C. 379g and 379h)), as amended, FDA has the authority to assess and collect user fees for certain drug and biologics license applications (BLAs) and supplements to those applications. Under this authority, pharmaceutical companies pay a fee for certain new human drug applications (NDAs), BLAs, or supplements submitted to the Agency for review. Because the submission of user fees concurrently with applications and supplements is required, review of an application by FDA cannot begin until the fee is submitted. The Prescription Drug User Fee Cover Sheet, Form FDA 3397, is designed to provide the minimum necessary information to determine whether a fee is required for review of an application, to determine the amount of the fee required, and to account for and track user fees. The form provides a cross-reference of the fee submitted for an application by using a unique number tracking system. The information collected is used by FDA's Center for Drug Evaluation and Research (CDER) and Center for Biologics Evaluation and Research (CBER) to initiate the administrative screening of NDAs, BLAs, and/or, supplemental applications to those applications.
Respondents to this collection of information are new drug and biologics manufacturers. Based on FDA's database system for fiscal year (FY) 2014, there are an estimated 290 manufacturers of products subject to the Prescription Drug User Fee Act (Pub. L. 105-115). The total number of annual responses is based on the number of submissions received by FDA in FY 2014. CDER received 3,005 annual responses that include the following submissions: 128 NDAs; 7 BLAs; 1,586 manufacturing supplements; 1,081 labeling supplements; and 203 efficacy supplements. CBER received 705 annual responses that include the following submissions: 11 BLAs; 611 manufacturing supplements; 64 labeling supplements; and 19 efficacy supplements. The estimated hours per response are based on past FDA experience with the various submissions.
In the
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Reclassification Petitions for Medical Devices” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver
On June 16, 2015, the Agency submitted a proposed collection of information entitled “Reclassification Petitions for Medical Devices” to OMB for review and clearance under 44 U.S.C. 3507. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0138. The approval expires on September 30, 2018. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by December 18, 2015.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions”.
Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions”, publicly viewable at
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION”. The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal
With respect to the following collection of information, we invite comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The bottled water regulations in parts 129 and 165 (21 CFR parts 129 and 165) require that if any coliform organisms are detected in weekly total coliform testing of finished bottled water, follow-up testing must be conducted to determine whether any of the coliform organisms are
We estimate the burden of this collection of information as follows:
The current CGMP regulations already reflect the time and associated recordkeeping costs for those bottlers that are required to conduct microbiological testing of their source water, as well as total coliform testing of their finished bottled water products. We therefore conclude that any additional burden and costs in recordkeeping based on follow-up testing that is required if any coliform organisms detected in the source water test positive for
We expect that recordkeeping for the follow-up test for
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by December 18, 2015.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
In accordance with section 513 of the Federal Food, Drug, and Cosmetic Act
FDA issued an order classifying the H5 (Asian lineage) diagnostic device into class II on February 3, 2006 (71 FR 14377), establishing the special controls necessary to provide reasonable assurance of the safety and effectiveness of that device and similar future devices. The new classification was codified in 21 CFR 866.3332, a regulation that describes the new classification for reagents for detection of specific novel influenza A viruses and sets forth the special controls that help to provide a reasonable assurance of the safety and effectiveness of devices classified under that regulation. The regulation refers to the special controls guidance document entitled “Class II Special Controls Guidance Document: Reagents for Detection of Specific Novel Influenza A Viruses,” which provides recommendations for measures to help provide a reasonable assurance of safety and effectiveness for these reagents. The guidance document recommends that sponsors obtain and analyze postmarket data to ensure the continued reliability of their device in detecting the specific novel influenza A virus that it is intended to detect, particularly given the propensity for influenza viruses to mutate and the potential for changes in disease prevalence over time. As updated sequences for novel influenza A viruses become available from the World Health Organization, National Institutes of Health, and other public health entities, sponsors of reagents for detection of specific novel influenza A viruses will collect this information, compare them with the primer/probe sequences in their devices, and incorporate the result of these analyses into their quality management system, as required by 21 CFR 820.100(a)(1). These analyses will be evaluated against the device design validation and risk analysis required by 21 CFR 820.30(g) to determine if any design changes may be necessary.
FDA estimates that 10 respondents will be affected annually. Each respondent will collect this information twice per year; each response is estimated to take 15 hours. This results in a total data collection burden of 300 hours.
The guidance also refers to previously approved information collections found in FDA regulations. The collections of information in 21 CFR part 801 have been approved under OMB control number 0910-0485; the collections of information in 21 CFR part 807 subpart E have been approved under OMB control number 0910-0120; and the collections of information in 21 CFR part 820 have been approved under OMB control number 0910-0073.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry #229 entitled “Evaluating the Effectiveness of New Animal Drugs for the Reduction of Pathogenic Shiga Toxin-Producing
Submit either electronic or written comments on Agency guidances at any time.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
Submit written requests for single copies of this guidance to the Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your request. See the
Joshua R. Hayes, Center for Veterinary Medicine (HFV-133), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-0585,
In the
The guidance discusses general considerations regarding the development of protocols, study conduct, animal welfare, substantial evidence of effectiveness, experimental parameters, nutritional content of experimental diets, and the assessment of drug concentrations in experimental diets. It also discusses the studies and analyses CVM recommends for sponsors to substantiate the effectiveness of pathogenic STEC reduction drugs.
This level 1 guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Evaluating the Effectiveness of New Animal Drugs for the Reduction of Pathogenic Shiga Toxin-Producing
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 514 have been approved under OMB control number 0910-0032.
Persons with access to the Internet may obtain the draft guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by December 18, 2015.
You may submit comments as follows:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
• Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION”. The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
FDA has the statutory authority under section 304(g) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 334(g)) to detain during established inspections devices that are believed to be adulterated or misbranded. Section 800.55 (21 CFR 800.55), on administrative detention, includes among other things, certain reporting requirements and recordkeeping requirements. Under § 800.55(g), an applicant of a detention order must show documentation of ownership if devices are detained at a place other than that of the appellant. Under § 800.55(k), the owner or other responsible person must supply records about how the devices may have become adulterated or misbranded, in addition to records of distribution of the detained devices. These recordkeeping requirements for administrative detentions permit FDA to trace devices for which the detention period expired before a seizure is accomplished or injunctive relief is obtained.
FDA also has the statutory authority under section 516 of the FD&C Act (21
During the past several years, there has been an average of less than one new administrative detention action per year. Each administrative detention will have varying amounts of data and information that must be maintained. FDA's estimate of the burden under the administrative detention provision is based on FDA's discussion with one of the firms whose devices had been detained.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice of meeting.
The Food and Drug Administration (FDA) is announcing the following meeting: Office of Women's Health Update on Strategic Priorities and Initiatives. FDA staff will provide updates on strategic priorities, educational outreach, and research initiatives of interest to national organizations for nursing professionals and students.
The meeting will be held on November 18, 2015, 1 p.m. to 3 p.m.
The meeting will be held at the American Nurses Association, 8515 Georgia Ave., Suite 400, Silver Spring, MD 20910-3492.
Deborah Kallgren, Office of Women's Health, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-9440, FAX: 301-847-8604,
There is no fee, but pre-registration is required. Send registration information (including name, title, organization name, address, telephone, and fax number) to Deborah Kallgren. Seating is limited to 35 participants (1 person per organization).
If you need special accommodations due to a disability, please contact Deborah Kallgren (see
Health Resources and Services Administration, HHS.
Notice.
The Health Resources and Services Administration (HRSA) is requesting nominations to fill six vacancies on the Advisory Commission on Childhood Vaccines (ACCV). The ACCV was established by Title XXI of the Public Health Service Act (the Act), as enacted by Public Law (Pub. L.) 99-660 and as subsequently amended, and advises the Secretary of Health and Human Services (the Secretary) on issues related to implementation of the National Vaccine Injury Compensation Program (VICP).
The agency will receive nominations on or before December 18, 2015.
All nominations are to be submitted to the Director, Division of Injury Compensation Programs, Healthcare Systems Bureau (HSB),
Ms. Annie Herzog, Principal Staff Liaison, Division of Injury Compensation Programs, HSB, HRSA, at (301) 443-6634 or email:
Under the authorities that established the ACCV, the Federal Advisory Committee Act of October 6, 1972 (Pub. L. 92-463) and section 2119 of the Act, 42 U.S.C. 300aa-19, as added by Public Law 99-660 and amended, HRSA is requesting nominations for six voting members of the ACCV.
The ACCV advises the Secretary on the implementation of the VICP. The activities of the ACCV include: Recommending changes in the Vaccine Injury Table at its own initiative or as the result of the filing of a petition; advising the Secretary in implementing section 2127 of the Act regarding the need for childhood vaccination products that result in fewer or no significant adverse reactions; surveying federal, state, and local programs and activities related to gathering information on injuries associated with the administration of childhood vaccines, including the adverse reaction reporting requirements of section 2125(b) of the Act; advising the Secretary on the methods of obtaining, compiling, publishing, and using credible data related to the frequency and severity of adverse reactions associated with childhood vaccines; consulting on the development or revision of Vaccine Information Statements; and recommending to the Director of the National Vaccine Program research related to vaccine injuries which should be conducted to carry out the VICP.
The ACCV consists of nine voting members appointed by the Secretary as follows: (1) Three health professionals, who are not employees of the United States Government, and who have expertise in the health care of children, the epidemiology, etiology, and prevention of childhood diseases, and the adverse reactions associated with vaccines, of whom at least two shall be pediatricians; (2) three members from the general public, of whom at least two shall be legal representatives (parents or guardians) of children who have suffered a vaccine related injury or death; and (3) three attorneys, of whom at least one shall be an attorney whose specialty includes representation of persons who have suffered a vaccine-related injury or death, and of whom one shall be an attorney whose specialty includes representation of vaccine manufacturers. In addition, the Director of the National Institutes of Health, the Assistant Secretary for Health, the Director of the Centers for Disease Control and Prevention, and the Commissioner of the Food and Drug Administration (or the designees of such officials) serve as nonvoting ex officio members.
Specifically, HRSA is requesting nominations for six voting members of the ACCV representing: (1) Two health professionals, who have expertise in the health care of children, the epidemiology, etiology, and prevention of childhood diseases, and the adverse reactions associated with vaccines, of whom both shall be a pediatricians; (2) two members of the general public, of whom at least one shall be legal representative (parent or guardian) of a child who has suffered a vaccine related injury or death; and (3) two attorneys, of whom at least one shall be an attorney whose specialty includes representation of persons who have suffered a vaccine-related injury or death, and of whom one shall be an attorney whose specialty includes representation of vaccine manufacturers. Nominees will be invited to serve a 3-year term beginning the date of appointment.
The Department of Health and Human Services (HHS or Department) will consider nominations of all qualified individuals with a view to ensuring that the ACCV includes the areas of subject matter expertise noted above. Based on a recommendation made by the ACCV, the Secretary will consider having a health professional with expertise in obstetrics as the second member of the general public. Interested persons may nominate one or more qualified persons for membership on the ACCV. Nominations shall state that the nominee is willing to serve as a member of the ACCV.
ACCV members are appointed as Special Government Employees. As such, they are covered by the federal ethics rules, including the criminal conflict of interest statutes governing executive branch employees. For example, an ACCV member may be prohibited from discussions about making changes to the Vaccine Injury Table and Vaccine Information Statements for the Hepatitis B vaccine if he/she or his/her spouse owns stock valued above a certain amount in companies which manufacturer this vaccine, affecting their own pecuniary interests—including interests imputed to them. To evaluate possible conflicts of interest, potential candidates will be asked to fill out the Confidential Financial Disclosure Report, OGE Form 450, to provide detailed information concerning financial interests, consultancies, research grants, and/or contracts that might be affected by recommendations made by the ACCV.
A nomination package should include the following information for each nominee: (1) A letter of nomination stating the name, affiliation, and contact information for the nominee, the basis for the nomination (
The HHS strives to ensure that the membership of the HHS Federal Advisory Committee is fairly balanced in terms of points of view presented and the committee's function. Every effort is made to ensure that the views of women, all ethnic and racial groups, and people with disabilities are represented on HHS Federal Advisory Committees and, therefore, the Department encourages nominations of qualified candidates from these groups. The Department also encourages geographic diversity in the composition of the Committee. Appointment to this Committee shall be made without discrimination on basis of age, race, ethnicity, gender, sexual orientation, disability, and cultural, religious, or socioeconomic status.
Office of the Secretary, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of
Comments on the ICR must be received on or before November 18, 2015.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the Information Collection Request Title and document identifier OS-0990-XXXX for reference.
Information Collection Request Title: Examining Consumer and Producer Responses to Restaurant Menu Labeling Requirements.
Previous research demonstrates that consumers respond both to information about their options and the way those options are presented. Accordingly, restaurants can utilize presentation effects on menus and menu boards to influence consumer perceptions and choices. By analyzing the consumer response to menu options and design, this study will offer a wide-ranging view of the consumer responses to menu labeling requirements.
The goal of the online survey is to evaluate the effect that the calorie labeling will have on consumer choices when ordering at restaurants.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Notice is hereby given of a change in the meeting of the National Cancer Institute Clinical Trials and Translational Research Advisory Committee, November 4, 2015, 8:30 a.m. to November 4, 2015, 4:00 p.m., National Institutes of Health, Building 31, 31 Center Drive, C-Wing, 6th Floor, 10, Bethesda, MD 20892 which was published in the
The meeting notice is amended to change the end time from 4:00 p.m. to 12:30 p.m. The meeting is open to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Advisory Council on Historic Preservation.
Notice of Advisory Council on Historic Preservation Quarterly Business Meeting.
Notice is hereby given that the Advisory Council on Historic Preservation (ACHP) will hold its next quarterly meeting on Wednesday, November 4, 2015. The meeting will be held in Room SR325 at the Russell Senate Office Building at Constitution and Delaware Avenues NE., Washington, DC, starting at 9:00 a.m.
The quarterly meeting will take place on Wednesday, November 4, 2015, starting at 9:00 a.m.
The meeting will be held in Room SR325 at the Russell Senate Office Building at Constitution and Delaware Avenues NE., Washington, DC.
Cindy Bienvenue, 202-517-0202,
The Advisory Council on Historic Preservation (ACHP) is an independent federal agency that promotes the preservation, enhancement, and sustainable use of our nation's diverse historic resources, and advises the President and the Congress on national historic preservation policy. The goal of the National Historic Preservation Act (NHPA), which established the ACHP in 1966, is to have federal agencies act as responsible stewards of our nation's resources when their actions affect historic properties. The ACHP is the only entity with the legal responsibility to encourage federal agencies to factor historic preservation into federal project requirements. For more information on the ACHP, please visit our Web site at
The agenda for the upcoming quarterly meeting of the ACHP is the following:
Call to Order—9:00 a.m.
The meetings of the ACHP are open to the public. If you need special accommodations due to a disability, please contact Cindy Bienvenue, 202-517-0202 or
54 U.S.C. 304102.
U.S. Customs and Border Protection, Department of Homeland Security (DHS).
Notice of Trade Symposium.
This document announces that U.S. Customs and Border Protection (CBP) will convene the 2015 East Coast Trade Symposium in Baltimore, Maryland, on Wednesday, November 4, 2015, and Thursday, November 5, 2015. The 2015 East Coast Trade Symposium will feature panel discussions involving agency personnel, members of the trade community, and other government agencies, on the agency's role in international trade initiatives and programs. Members of the international
Wednesday, November 4, 2015, (opening remarks and general sessions, 8:00 a.m.-4:15 p.m. EST) and Thursday, November 5, 2015 (general session, break-out sessions and closing remarks, 8:00 a.m.-4:15 p.m. EST).
The CBP 2015 East Coast Trade Symposium will be held at the Baltimore Marriott Waterfront Hotel located at 700 Aliceanna Street, Baltimore, MD 21202.
The Office of Trade Relations at (202) 344-1440, or at
Earlier this year CBP held a Trade Symposium on the West Coast in Tacoma, WA. This document announces that CBP will convene the 2015 East Coast Trade Symposium on Wednesday, November 4, 2015, and Thursday, November 5, 2015 in Baltimore, Maryland. The theme for the 2015 East Coast Trade Symposium will be “Transforming Global Trade.” The format of the 2015 East Coast Trade Symposium will be held with general sessions on the first day, and a general session and breakout sessions on the second day. Discussions will be held regarding CBP's role in international trade initiatives and partnerships.
The agenda for the 2015 East Coast Trade Symposium can be found on the CBP Web site (
Hotel accommodations will be announced at a later date on the CBP Web site (
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: Petroleum Refineries in Foreign Trade Sub-zones. 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 18, 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 (Pub. L. 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:
19 CFR 146.4(d) provides that the operator of the refinery sub-zone is required to retain all records relating to the above mentioned activities for five years after the merchandise is removed from the sub-zone. Further, the records shall be readily available for CBP review at the sub-zone.
Instructions on compliance with these record keeping provisions are available in the Foreign Trade Zone Manual which is accessible at:
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of South Carolina (FEMA-3373-EM), dated October 3, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated October 3, 2015, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I have determined that the emergency conditions in the State of South Carolina resulting from severe storms and flooding beginning on October 1, 2015, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
You are authorized to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide assistance for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program.
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, W. Michael Moore, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the State of South Carolina have been designated as adversely affected by this declared emergency:
All 46 South Carolina counties and the Catawba Nation for emergency protective measures (Category B), limited to direct federal assistance, under the Public Assistance program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of South Carolina (FEMA-4241-DR), dated October 5, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated October 5, 2015, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of South Carolina resulting from severe storms and flooding beginning on October 1, 2015, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance and assistance for debris removal and emergency protective measures (Categories A and B) under the Public Assistance program in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate subject to completion of Preliminary Damage Assessments (PDAs). Direct Federal assistance is authorized.
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation and Other Needs Assistance will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, W. Michael Moore, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of South Carolina have been designated as adversely affected by this major disaster:
Charleston, Dorchester, Georgetown, Horry, Lexington, Orangeburg, Richland, and Williamsburg Counties for Individual Assistance.
Berkley, Charleston, Clarendon, Dorchester, Georgetown, Horry, Lexington, Orangeburg, Richland, Sumter, and Williamsburg Counties for debris removal and emergency protective measures (Categories A and B), including direct federal assistance, under the Public Assistance.
All areas within the State of South Carolina are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Carolina (FEMA-4241-DR), dated October 5, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of South Carolina is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 5, 2015.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Carolina (FEMA-4241-DR), dated October 5, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of South Carolina is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 5, 2015.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Carolina (FEMA-4241-DR), dated October 5, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of South Carolina is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 5, 2015.
Berkeley, Clarendon, and Sumter Counties for Individual Assistance (already designated for debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030,
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of California (FEMA-4240-DR), dated September 22, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of California is hereby amended to include Public Assistance (Categories A-G) among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of September 22, 2015.
Calaveras and Lake Counties for Public Assistance [Categories A-G] (already designated for Individual Assistance and emergency protective measures [Category B], limited to direct federal assistance, under the Public Assistance program).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Science and Technology Directorate, DHS.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Homeland Security Science and Technology Advisory Committee (HSSTAC) will meet on November 2-3, 2015 in Washington, DC. The meeting will be both in-person and virtual (webinar)—open session.
The HSSTAC will meet in-person Monday, November 2, 2015, from 12:45 p.m.-4:30 p.m. and Tuesday, November 3, 2015, from 8:00 a.m.-4:30 p.m.
Due to security, screening pre-registration is required for this event. Please see registration information below. Also, please note the meeting may close early if the committee has completed its business.
Homeland Security Acquisition Institute, 90 K Street NW., Suite 1200, Washington, DC 20005.
For information on services for individuals with disabilities or to request special assistance at the meeting, contact Bishop Garrison as soon as possible. If you plan to attend the meeting in-person you must RSVP by Wednesday, October 29, 2015. To register send an email to
To pre-register for the virtual meeting (webinar) please send an email to:
To facilitate public participation, we invite public comment on the issues to be considered by the committee as listed in the “Supplementary Information” below. Written comments must be received by October 18, 2015, Please include the docket number (DHS-2015-0060) and submit via
• Federal eRulemaking Portal:
• Email:
• Fax: 202-254-6176.
• Mail: Bishop Garrison, HSSTAC Executive Director, S&T IAO STOP 0205, Department of Homeland Security, 245 Murray Lane, Washington, DC 20528-0205
A period is allotted for public comment on November 2 and November 3, 2015 at the end of each open session. Please note that the public comment period may end before the time indicated, following the last call for comments. To register as a speaker, contact the person listed below.
Bishop Garrison, HSSTAC Executive Director, S&T IAO STOP 0205, Department of Homeland Security, 245 Murray Lane, Washington, DC 20528-0205, 202-254-5617(O), 202-254-6176 (F)
Notice of this meeting is given under the Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix (Pub. L. 92-463). The committee addresses areas of interest and importance to the Under Secretary for Science and Technology, such as new developments in systems engineering, cyber-security, knowledge management and how best to leverage related technologies funded by other federal agencies and by the private sector. It also advises the Under
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information or new collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until December 18, 2015.
All submissions received must include the OMB Control Number 1615-0080 in the subject box, the agency name and Docket ID USCIS-2005-0033. To avoid duplicate submissions, please use only
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USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Laura Dawkins, Chief, 20 Massachusetts Avenue NW., Washington, DC 20529-2140, telephone number 202-272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), have received applications for enhancement of survival permits (EOS permits) under the Endangered Species Act of 1973, as amended (Act), pursuant to the Greater Sage-grouse Umbrella Candidate Conservation Agreement with Assurances for Wyoming Ranch Management (Umbrella CCAA). The permit applications, if approved, would authorize incidental take associated with implementation of specified individual Candidate Conservation Agreements with Assurances (individual CCAAs) developed in accordance with the Umbrella CCAA. We invite the public to comment on the EOS permit applications described below. The Act requires that we invite public comment before issuing these permits.
To ensure consideration, please send your written comments by November 18, 2015.
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Tyler Abbott, U.S. Fish and Wildlife Service, (307) 772-2374, ext. 231 (phone);
A Candidate Conservation Agreement with Assurances is an agreement with the Service in which private and other non-Federal landowners voluntarily agree to undertake management activities and conservation efforts on their properties to enhance, restore, or maintain habitat to benefit species that are proposed for listing under the Act, that are candidates for listing, or that may become candidates. The Service and several State, Federal, and local partners developed the Umbrella CCAA (available at
Pursuant to the Umbrella CCAA, ranchers in Wyoming may apply for an EOS permit under the Act by agreeing to implement certain conservation measures for the greater sage-grouse on their properties. These conservation measures are specified in individual CCAAs for their properties, which are developed in accordance with the Umbrella CCAA and are subject to the terms and conditions stated in that agreement. Landowners consult with the Service and other participating agencies to develop an individual CCAA for their property, and submit it to the Service for approval with their EOS permit application. If we approve the individual CCAA and EOS permit application, we will issue an EOS permit, under section 10(a)(1)(A) of the Act (16 U.S.C. 1531
We invite local, State, and Federal agencies and the public to comment on the following EOS permit applications. The Umbrella CCAA, as well as the individual CCAAs submitted with the permit applications, are also available for review, subject to the requirements of the Privacy Act (5 U.S.C. 552a) and Freedom of Information Act (5 U.S.C. 552). The following applicants request approval of EOS permits for the greater sage-grouse, pursuant to the Umbrella CCAA, for the purpose of enhancing the species' survival.
All comments and materials we receive in response to these requests will become part of the public record, and will be available for public inspection, by appointment, during normal business hours at the address listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We provide this notice under section 10(c) of the Act (16 U.S.C. 1539(c)).
U.S. Geological Survey, Department of the Interior.
Notice of opening of nomination period.
The Department of the Interior is inviting nominations for membership on the Advisory Committee on Climate Change and Natural Resource Science. This
Written nominations must be received by January 15, 2016.
Send nominations to: Robin O'Malley, National Climate Change and Wildlife Science Center, U.S. Geological Survey, 12201 Sunrise Valley Drive, Mail Stop 516, Reston, VA 20192,
Mr. Robin O'Malley, Designated Federal Officer for ACCCNRS, Policy and Partnership Coordinator, National Climate Change and Wildlife Science Center, U.S. Geological Survey, 12201 Sunrise Valley Drive, Mail Stop 516, Reston, VA 20192,
The Advisory Committee on Climate Change and Natural Resource Science (ACCCNRS) was chartered in 2013. Twenty-five members were appointed to the committee to provide advice on matters and actions relating to the operations of the U.S. Geological Survey National Climate Change and Wildlife Science Center and the Department of the Interior (DOI) Climate Science Centers. The ACCCNRS Charter can be found at:
In May 2016, membership terms for several committee members will expire, creating approximately 12 membership openings. The Department of the Interior is inviting nominations for individuals to be considered for these membership openings. Only nominations in response to this notice will be considered. Existing ACCCNRS members, whose terms are expiring, must be re-nominated during this open nomination period to be considered. Self-nominations will be accepted. Nominations should include a resume that describes the nominee's qualifications in enough detail to enable us to make an informed decision regarding meeting the membership requirements of the Committee and to contact a potential member. Additional information will be requested from those selected for final review before appointment. Members selected for appointment may identify an alternate who can participate in their stead; names of proposed alternates need not be submitted at this time.
The Department of the Interior is soliciting members for ACCCNRS to represent the following interests: (1) State and local governments, including state membership entities; (2) Nongovernmental organizations, including those whose primary mission is professional and scientific and those whose primary mission is conservation and related scientific and advocacy activities; (3) American Indian tribes and other Native American entities; (4) Academia; (5) Landowners, businesses, and organizations representing landowners or businesses.
In 2016 and later, the Committee will meet approximately 2 times annually, and at such times as designated by the DFO. The Secretary of the Interior will appoint members to the Committee. Members appointed as special Government employees are required to file on an annual basis a confidential financial disclosure report. No individual who is currently registered as a Federal lobbyist is eligible to serve as a member of the Committee.
This activity is subject to the Privacy Act of 1974 and the Federal Advisory Committee Act (FACA) of 1972 (Public Law 92-463 Sec. 1, Oct. 6, 1972, 86 Stat. 770.)
42 U.S.C. 2000E-16.
Office of the Secretary, Interior.
Notice of amendment to an existing system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Interior is issuing a public notice of its intent to amend the Department-wide Privacy Act system of records titled, “The `America the Beautiful—The National Parks and Federal Recreational Lands Pass' System,” DOI-06. This system allows the Department of the Interior to manage the Pass program and information about organizations and individuals who participate in Pass program activities and initiatives. The system notice is being amended to reflect new Pass initiatives and updates to the system location, categories of individuals covered by the system, categories of records in the system, authority for maintenance of the system, storage, safeguards, retention and disposal, system manager and address, notification procedures, records access and contesting procedures, records source categories, and to update the routine uses to include activities related to the issuance and management of park passes and programs that support these activities.
Comments must be received by November 18, 2015. The amendments to the system will be effective November 18, 2015.
Any person interested in commenting on this new system of records may do so by submitting written comments to Teri Barnett, Departmental Privacy Officer, U.S. Department of the Interior, 1849 C Street NW., Mail Stop 5547 MIB, Washington, DC 20240; hand-delivering comments to Teri Barnett, Departmental Privacy Officer, U.S. Department of the Interior, 1849 C Street NW., Mail Stop 5547 MIB, Washington, DC 20240; or emailing comments to
America the Beautiful—The National Parks and Federal Recreational Lands Pass Program Manager, National Park Service, Org. Code 2608, 1201 Eye St. NW., Washington, DC 20005, or by phone: 202-513-7139.
The Department of the Interior (DOI) manages the “America the Beautiful—The National Parks and Federal Recreational Lands Pass” (hereinafter “`Pass” or “Pass System”). The purpose of the Pass System is to manage Pass program activities and information about organizations and individuals who purchase or participate in Pass initiatives, receive the “America the Beautiful—The National Parks and Federal Recreational Lands Pass”, or register to receive information about the Pass program and stewardship opportunities. Passes may be purchased online, or via mail or telephone. The information collected is required to establish eligibility; process financial transactions to complete Pass purchase requests; fulfill Passes to individuals (“fulfill” and “fulfillment” refer to shipping and handling of Passes), Federal recreation sites, and third parties; and provide associated customer services such as sending renewal notices and providing information about the Pass program and Federal lands. Any entity authorized to sell and fulfill Passes on behalf of the government will be barred from selling, renting, licensing, sharing, or disclosing to third parties any personal information collected. Any such entity will also be barred from using any personal information collected for purposes other than to sell and fulfill Passes. Informational or promotional messages will be sent to individuals and organizations only if they have affirmatively requested such messages through an “opt-in” mechanism.
The Every Kid in a Park (EKiP) initiative is an interagency effort between the National Park Service, Bureau of Land Management, Fish and Wildlife Service, Bureau of Reclamation, Forest Service, Department of Education, Army Corps of Engineers, the National Oceanic and Atmospheric Administration, and the General Services Administration to provide free entrance and standard amenity fees to U.S. students. The EKiP program promotes education about America's wildlife, resources, and history, and encourages fourth grade students and their families to visit federal public lands and waters by issuing fee-free annual passes to recreation sites managed by DOI and its Federal partners. These EKiP program activities are managed by DOI with participating bureaus, offices, and partners under the authority of the Federal Lands Recreation Enhancement Act of 2004 (REA), 16 U.S.C. 6804.
DOI is proposing to amend the system notice to provide updates to the Pass System and include information on the EKiP initiative. Amendments to the system include updates to the system location, categories of individuals covered by the system, categories of records in the system, authority for maintenance of the system, storage, safeguards, retention and disposal, system managers and addresses, notification procedures, records access and contesting procedures, records source categories, and updating the routine uses to include activities related to the issuance of Passes and management of the Pass and EKiP programs. This system notice was last published in the
The amendments to the system will be effective as proposed at the end of the comment period (the comment period will end 30 days after the publication of this notice in the
The Privacy Act of 1974, as amended, embodies fair information practice principles in a statutory framework governing the means by which Federal Agencies collect, maintain, use, and disseminate individuals' personal information. The Privacy Act applies to records about individuals that are maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information about an individual is retrieved by the name or by some identifying number, symbol, or other identifying particular assigned to the individual. The Privacy Act defines an individual as a United States citizen or lawful permanent resident. As a matter of policy, DOI extends administrative Privacy Act protections to all individuals. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of
The Privacy Act requires each agency to publish in the
In accordance with 5 U.S.C. 552a(r), DOI has provided a report concerning this system of records to the Office of Management and Budget and to Congress.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
America the Beautiful—The National Parks and Federal Recreational Lands Pass System, DOI-06.
Unclassified.
Records pertaining to Pass System sales and fulfillment are maintained at the U.S. Geological Survey: U.S. Geological Survey Geospatial Information Office, Science Information & Education Branch, MS-306/Accounting Team, Box 25286, Denver Federal Center, Denver, CO 80225. Records are also located in DOI bureaus and offices that manage Pass program sales, initiatives, and outreach activities; and in facilities of DOI contractors who manage or process Pass sales on behalf of the Department of the Interior. Records pertaining to the Every Kid in a Park program are located in the office of the Every Kid in a Park Program Manager, Department of the Interior, 1849 C St. NW., Washington, DC 20240, and at the General Services Administration and contractor facilities who provide EKiP program support services.
(1) Members of the public who:
(a) Purchase the “America the Beautiful—The National Parks and Federal Recreational Lands Pass” (hereinafter, “Pass”) via the Internet, mail, or a telephone call-center,
(b) Register online to receive information about the Pass program and stewardship opportunities,
(c) Are awarded a Pass as a result of reaching the necessary threshold of hours volunteered at Federal recreation lands, or
(d) Participate in the EKiP program or are awarded a Pass as a result of participation in Pass program promotions, educational programs, or initiatives to encourage individuals to visit Federal parks, lands, and waters, including volunteers, educators, students, and special groups;
(2) Representatives and employees of businesses and organizations who are third party vendors of the Pass; and
(3) Employees of DOI, Department of Agriculture, Forest Service, and Department of Defense, Army Corps of Engineers, or other Federal agency partners who serve as ordering contacts for the Pass for sale or distribution.
(1) Name of individual or organization and contact information, including home address, telephone number, and email address.
(2) Category of Pass(es) being purchased or awarded such as Annual Pass, Access Pass, Senior Pass, and Volunteer Pass.
(3) Information required for proof of identity and eligibility for a Pass or to meet a requirement for Pass program initiatives, such as age, date of birth, disability status, citizenship, photo identification, passport, driver license or state issued identification, and other criteria such as employment or membership status.
(4) Information about special groups participating in Pass program activities or initiatives (such as schools, educators, or organizations) who provide information necessary to request or receive Passes. Information may include name of individual, name of organization, email address, address, other contact information, zip code, or specific Federal park or lands, and may be used to establish eligibility, and develop metrics to analyze success of promotional outreach activities and increase program participation.
(5) Financial information necessary to process Pass purchases, including credit card number, account holder, type of credit card (
(6) Date that Pass(es) were purchased or awarded.
(7) Other information necessary to manage the Pass and EKiP programs, such as name, address, contact method, other preferences, and information contained in correspondence or requests to receive further information.
The Federal Lands Recreation Enhancement Act of 2004 (REA), 16 U.S.C. 6804
The primary purposes of this system are: (1) To process financial transactions to complete sales of Passes; (2) to fulfill Passes to individuals, Federal recreation sites, and third party vendors of the Pass; (3) for those who “opt-in” or register, to send updates, reminders (including remarketing the Pass when an individual's Pass is about to expire), and additional information on the Pass program and stewardship opportunities from the REA participating agencies and Congressionally Authorized Foundations (the National Fish and Wildlife Foundation, the National Forest Foundation, the Corps Foundation, and the National Park Foundation); and (4) for other necessary actions to manage the Pass and EKiP programs within the intent of the authorizing legislation.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, disclosures outside DOI may be made as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
(1)(a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The U.S. Department of Justice (DOJ);
(ii) A court or an adjudicative or other administrative body;
(iii) A party in litigation before a court or an adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purpose for which the records were compiled.
(2) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if the covered individual is deceased, has made to the office.
(3) To the Executive Office of the President in response to an inquiry from that office made at the request of the subject of a record or a third party on that person's behalf, or for a purpose compatible for which the records are collected or maintained.
(4) To any criminal, civil, or regulatory law enforcement authority (whether Federal, state, territorial, local, tribal or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(5) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(6) To Federal, state, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant, or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
(7) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(8) To state, territorial, and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(9) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(10) To appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made to such agencies, entities and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(11) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(12) To the Department of the Treasury to recover debts owed to the United States.
(13) To the news media and the public, with the approval of the Public Affairs Officer in consultation with Counsel and the Senior Agency Official for Privacy, where there exists a legitimate public interest in the disclosure of the information, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
(14) To an expert, consultant, contractor (including employees of the contractor) of DOI that performs, on DOI's behalf, services requiring access to these records.
(15) To the Department of Agriculture's Forest Service and the Department of Defense's Army Corps of Engineers as necessary to implement the Pass program.
(16) To the Congressionally Authorized Foundations (the National Fish and Wildlife Foundation, the National Forest Foundation, the Corps Foundation, and the National Park Foundation) about those individuals or entities who “opt-in” or register to receive communications.
(17) To a debt collection agency for the purpose of collecting outstanding debts owed to the Department for fees associated with processing FOIA/PA requests.
(18) To disclose debtor information to the Internal Revenue Service, or to another Federal agency or its contractor solely to aggregate information for the Internal Revenue Service to collect debts owed to the Federal government through the offset of tax refunds.
(19) To other Federal agencies for the purpose of collecting debts owed to the Federal government by administrative or salary offset.
(20) To Federal, state, tribal, territorial or local government, educational, and other organizations, entities or individuals for the purpose of verifying eligibility to receive a Pass, prevent duplication, fraud and abuse, or as otherwise required by law.
(21) To the General Services Administration, U.S. Department of Education, U.S. Army Corps of Engineers, U.S. Forest Service, National Oceanic and Atmospheric Administration, and other Federal agencies in partnership with DOI to promote educational or outreach activities to encourage individuals to visit Federal parks, lands, and waters, for the purpose of developing metrics to analyze success of promotional outreach activities and identify challenges for special groups and localities, and to prevent fraud and abuse.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made to a consumer reporting agency as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1996 (31 U.S.C. 3701(a)(3)).
Records maintained in paper form are stored in file folders in file cabinets. Electronic records are maintained in computer servers, computer hard drives, electronic databases, email, and electronic media such as removable drives, compact disc, magnetic disk, diskette, and computer tapes.
Information from the Pass System will be retrievable by (1) name of individual or organization, (2) address, (3) credit card information (for Pass purchasers only), and (4) other unique identifiers such as an email address or a phone number.
The records contained in this system are safeguarded in accordance with 43 CFR 2.226 and other applicable security rules and policies. During normal hours of operation, paper records are maintained in locked filed cabinets in secured rooms under the control of authorized personnel that are locked during non-business hours. Computers and storage media are encrypted in accordance with DOI security policy. Electronic records are stored in servers located in secured Federal agency and contractor facilities with physical, technical and administrative levels of security to prevent unauthorized access to information. Security controls include encryption, firewalls, two-factor authentication, audit logs, intrusion detection systems, and network system security monitoring. Access to records in this system is limited to DOI personnel and other authorized parties who have a need to know the information for the performance of their official duties, and is based on least privileges or access level needed to perform job duties. Electronic records are safeguarded by permissions set to “Authenticated Users” which require valid username and password, and user access is monitored to protect against unauthorized access or use. Database tables are kept on separate file servers away from general file storage and other local area network usage, and the database itself will be stored in a password-protected, client-server database. Electronic transmissions of records containing sensitive data will be encrypted and password-protected. Personnel authorized to access the system must complete security, privacy, and records management training and sign the DOI Rules of Behavior. A Privacy Impact Assessment was conducted to ensure that adequate controls are implemented to protect data as required by the Privacy Act, E-Government Act of 2002, the Federal Information Security Modernization Act of 2014, Office of Management and Budget policy, National Institute of Standards and Technology guidelines and standards, and DOI privacy and security policies.
Records in this system are maintained in accordance with the National Park Service (NPS) Records Schedules and Departmental Records Schedules that have been approved by the National Archives and Records Administration (NARA). Commercial Visitor Services (Item 5) C. Routine Financial and Contract/Lease Records ((N1-79-08-4)) have a temporary disposition and are destroyed seven years after closure. Interpretation and Education (Item 6), Retention plan C, Routine and Supporting Documentation have a temporary disposition and are destroyed three years after closure (N1-79-08-5). General administrative records, including routine correspondence, administrative copy files, budget files, and duplicate copies, are maintained under Departmental Records Schedule 1—Administrative Records (DAA-0048-2013-0001). The disposition of these records may vary based on the subject matter, function, and the needs of the agency. Temporary records are cut off when superseded or obsolete, and destroyed after the required retention period for the specific record type. In some cases, records may be maintained under DOI bureau and office records retention schedules and disposed of in accordance with the applicable retention schedules. Approved disposition methods for temporary records include shredding or pulping paper records, and erasing or degaussing electronic records in accordance with 384 Departmental Manual 1 and NARA guidelines.
1. America the Beautiful—The National Parks and Federal Recreational Lands Pass Program Manager, National Park Service, Org. Code 2608, 1201 Eye St. NW., Washington, DC 20005.
2. Every Kid in a Park Program Manager, Office of the Secretary, Department of the Interior, 1849 C St. NW., Mail Stop 7254 MIB, Washington, DC 20240.
An individual requesting notification of the existence of records on himself or herself in the Pass System should send a signed, written inquiry to the appropriate System Manager identified above. The request envelope and letter should both be clearly marked “PRIVACY ACT INQUIRY” and the request must include the individual's full name and address. A request for notification must meet the requirements of 43 CFR 2.235.
An individual requesting records on himself or herself in the Pass System should send a signed, written inquiry to the appropriate System Manager identified above. The request must include the individual's full name and address and should describe the records sought as specifically as possible. The request envelope and letter should both be clearly marked “PRIVACY ACT REQUEST FOR ACCESS.” A request for access must meet the requirements of 43 CFR 2.238.
An individual requesting corrections or the removal of material from his or her records should send a signed, written request to the appropriate System Manager identified above. The request must include the individual's full name and address, as well as an explanation of what information they believe should be changed, and why. A request for corrections or removal must meet the requirements of 43 CFR 2.246.
Information in the Pass System comes primarily from individual members of the public, persons, parties, or organizations purchasing or receiving Passes or registering to receive additional information from DOI about the Pass or EKiP programs, and related activities. Individuals may provide information using online or electronic forms, through mail, or over the telephone if using a telephone call-in center. Information may also be obtained from correspondence with individuals interested in programs related to Pass and EKiP program activities, and from DOI bureau and office program records related to these program activities. Information may also be obtained from DOI partner agencies, and other Federal, state, local or tribal entities; DOI employees, contractors, and volunteers; and any persons who correspond or communicate with DOI during the course of program management activities for “The `America the Beautiful—The National Parks and Federal Recreational Lands Pass' System”.
None.
Bureau of Land Management, Interior.
Notice of Filing of Plat of Survey; Michigan.
The Bureau of Land Management (BLM) will officially file the plat of survey of the lands described below in the BLM-Eastern States Office, Washington, DC at least 30 calendar days from the date of publication in the
Bureau of Land Management, Eastern States Office, 20 M Street SE., Washington, DC, 20003. Attn: Cadastral Survey. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
This survey was requested by the Bureau of Indian Affairs.
The lands surveyed are:
T. 3 S., R. 16 W.
The plat of survey represents the dependent resurvey of a portion of the west boundary, a portion of the subdivisional lines, a portion of the adjusted record meanders of the Paw Paw River, the subdivision of sections 7, 8, 18, and 19, the survey of the boundaries of land held in trust by the United States for the Pokagon Band of Potawatomi Indians in sections 7, 8, 18 and 19, and the informative traverse of portions of the present day meanders of the Paw Paw River, Township 3 South, Range 16 West, of the Michigan Meridian, in the State of Michigan, and was accepted August 31, 2015.
We will place a copy of the plat we described in the open files. It will be available to the public as a matter of information.
If BLM receives a protest against this survey, as shown on the plat, prior to the date of the official filing, we will stay the filing pending our consideration of the protest.
We will not officially file the plat until the day after we have accepted or dismissed all protests and they have become final, including decisions on appeals.
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before September 26, 2015, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by November 3, 2015.
Comments may be sent via U.S. Postal Service to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202-371-6447.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before September 26, 2015. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
A request to remove has been received for the following resources:
60.13 of 36 CFR part 60
National Park Service, Interior.
Notice.
The Wisconsin Historical Society, Museum Division, 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 Wisconsin Historical Society. 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 Wisconsin Historical Society at the address in this notice by November 18, 2015.
Jennifer Kolb, Wisconsin Historical Society, Museum Division, 816 State Street, Madison, WI 53706, telephone (608) 264-6434, 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 Wisconsin Historical Society, Madison, WI. The human remains were removed from Poor Man's Farrah site in Grant County, WI.
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 Wisconsin Historical Society, Museum Division, professional staff in consultation with representatives of the Forest County Potawatomi Community, Wisconsin; Ho-Chunk Nation of Wisconsin; and the Menominee Indian Tribe of Wisconsin.
In 1980, human remains representing, at minimum, 11 individuals (1983.73.1, 1983.73.5, 1983.73.8, 1983.73.10, 1983.73.11, 1983.73.15, 1983.73.19, and 1983.73.27) were removed from Poor Man's Farrah (47-GT-0366) in Grant County, WI. The human remains were excavated from one linear mound and three conical mounds by archeologists from the Wisconsin Historical Society for a highway expansion and bridge construction project. The human remains were determined to represent seven adults, one subadult, and three infants. No known individuals were identified. No associated funerary objects are present.
Officials of the Wisconsin Historical Society, Museum Division, have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on the location and context of the burial, skeletal analysis, and Wisconsin Historical Society records.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 11 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 were removed is the aboriginal land of the Ho-Chunk Nation of Wisconsin; Sac & Fox Nation of Missouri in Kansas and Nebraska; Sac & Fox Nation, Oklahoma; Sac & Fox Tribe of the Mississippi in Iowa; and the Winnebago Tribe of Nebraska.
• 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 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; Ho-Chunk Nation of Wisconsin; 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 of Michigan; Leech Lake Band of the Minnesota Chippewa Tribe, Minnesota; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota; 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; Sac & Fox Nation of Missouri in Kansas and Nebraska; Sac & Fox Nation, Oklahoma; Sac & Fox Tribe of the Mississippi in Iowa; 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; White Earth Band of the Minnesota Chippewa Tribe, Minnesota; and the Winnebago Tribe of Nebraska (hereafter referred to as “The Aboriginal Land Tribes”).
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to The Aboriginal Land 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 Jennifer Kolb, Wisconsin Historical Society, Museum Division, 816 State Street, Madison, WI 53706, telephone (608) 264-6434, email
The Wisconsin Historical Society, Museum Division, is responsible for notifying The Aboriginal Land Tribes that this notice has been published.
Bureau of Reclamation, Interior.
Notice.
The Bureau of Reclamation, Lahontan Basin Area Office, the lead Federal agency, intends to prepare an Extraordinary Operation and Maintenance (XM) Environmental Impact Statement (EIS) for the Truckee Canal (Canal). The XM EIS will evaluate opportunities to reduce the risk to public safety from a Canal breach. Multiple federal, state, and local government agencies, tribal entities, and quasi- or non-governmental entities will be invited to participate as cooperating agencies for the XM EIS.
Submit written comments on the scope of the draft XM EIS by November 30, 2015.
Three public scoping meetings will be held on the following dates and times:
• Tuesday, October 27, 2015, 5:30 to 7:30 p.m., Wadsworth, Nevada.
• Wednesday, October 28, 2015, 5:30 to 7:30 p.m., Fallon, Nevada.
• Thursday, October 29, 2015, 5:30 to 7:30 p.m. in Fernley, Nevada.
Send written comments on the scope of the draft XM EIS to Ms. Roberta Tassey, Lahontan Basin Area Office, Bureau of Reclamation, 705 N. Plaza Street, Room 320, Carson City, Nevada 89701; or by email to
Scoping meetings will be held at the following locations:
• Wadsworth—Wadsworth Community Building, Eighth Street, Wadsworth, Nevada.
• Fallon—Churchill County Administrative Complex, Commission Chambers Room no. 15, 155 N. Taylor Street, Fallon, Nevada.
• Fernley—Fernley City Council Chambers, 595 Silverlace Boulevard, Fernley, Nevada.
For further information and/or to be added to the mailing list, please contact Ms. Roberta Tassey at
Persons who use a telecommunications device for the deaf may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
This
Background. Nine Federal agencies, three Nevada state agencies, 13 local governments, four tribal entities, and seven quasi- or non-governmental entities will be invited to participate as cooperating agencies for the XM EIS. Other entities will be considered as necessary during the XM EIS process.
The Canal is part of the Newlands Project (Project), which was constructed in 1903 as one of the Reclamation's first projects. In January 2008, a portion of the Canal embankment near the City of Fernley, Nevada, breached. The Canal's operations are now limited due to safety concerns.
Portions of the Project were listed on the National Register of Historic Places on March 25, 1981. In addition, the Canal and other associated structures have been determined eligible for listing on the National Register of Historic Places for contributing to the history of the Project.
Scoping meetings will be held in Carson City, Fallon, and Fernley; Nevada. Additional information regarding specific dates and times for the upcoming meetings and identification of relevant comment periods will be provided in a future notice, local news media, and through direct contact with interested parties.
Purpose and Need for Action. The purpose is to improve public safety by reducing the risk of a Canal breach. Reclamation needs to take action to evaluate alternatives that will enable the Canal operator—the Truckee Carson Irrigation District (TCID)—to safely operate the Canal and deliver Project water in compliance with operating criteria and procedures for the Project. Additional restrictions on Canal operations may be necessary without taking actions or initiating risk-reducing repairs.
Proposed Federal Action. Reclamation or TCID are proposing to complete structural improvements of the Canal facilities; and/or implement a long-term tolerable stage level restriction. This may be achieved using a variety of options including, but not limited to the following structural improvements to the canal embankment, which could include sheet pile walls and improvements to the earthen embankment.
Public Disclosure. Before including your address, phone number, email address, or other personal identifying information in your comment, please be advised that your entire comment-including your personal identifying information-may be made publicly available at any time. While you may request that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Office of the Special Trustee for American Indians, Interior.
Notice and request for comments.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Special Trustee for American Indians, Department of the Interior, announces the proposed renewal of a public information collection required by The American Indian Trust Fund Management Reform Act of 1994, “Application to Withdraw Tribal Funds from Trust Status, 25 CFR 1200,” OMB Control No. 1035-0003, and that it is seeking comments on its provisions. After public review, the Office of the Special Trustee for American Indians will submit the information collection to Office of Management and Budget for renewal.
Consideration will be given to all comments received by
Send your written comments to the Office of the Special Trustee, Office of External Affairs, Attn: Roberson D. Becenti, 4400 Masthead St. NE., Room 259A, Albuquerque, New Mexico 87109. You may also email comments to
To request a copy of the information collection request, any explanatory information and related forms, see the contact information provided in the
This notice is for renewal of information collection.
The Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Public Law 103-412, The American Indian Trust Fund Management Reform Act of 1994, allows Indian tribes on a voluntary basis to take their funds out of trust status within the Department of the Interior (and the Federal Government) in order to manage such funds on their own. 25 CFR part 1200, subpart B, Sec. 1200.13, “How does a tribe apply to withdraw funds?” describes the requirements for application for withdrawal. The Act covers all tribal trust funds including judgment funds as well as some settlements funds, but excludes funds held in Individual Indian Money accounts. Both the Act and the regulations state that upon withdrawal of the funds, the Department of the Interior (and the Federal Government) have no further liability for such funds. Accompanying their application for withdrawal of trust funds, tribes are required to submit a Management Plan for managing the funds being withdrawn, to protect the funds once they are out of trust status.
This information collection allows the Office of the Special Trustee to collect the tribes' applications for withdrawal of funds held in trust by the Department of the Interior. If this information were not collected, the Office of the Special Trustee would not be able to comply with the American Indian Trust Fund Management Reform Act of 1994, and tribes would not be able to withdraw funds held for them in trust by the Department of the Interior.
1200.
The Departments invite comments on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agencies, including whether the information will have practical utility;
(b) The accuracy of the agencies' estimate of the burden of the collection of information and the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on respondents, including through the use of appropriate automated, electronic, mechanical, or other collection techniques or other forms of information technology.
“Burden” means the total time, effort, and financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install, and use technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, and to complete and review the collection of information; and to transmit or otherwise disclose the information.
It is our policy to make all comments available to the public for review. Before including Personally Identifiable Information (PII), such as your address, phone number, email address, or other personal information in your comments(s), you should be aware that your entire comment (including PII) may be made available to the public at any time. While you may ask us in your comment to withhold PII from public view, we cannot guarantee that we will be able to do so. If you wish to view any comments received, you may do so by scheduling an appointment with the Office of the Special Trustee for American Indians by using the contact information in the
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Judicial Conference of the United States, Advisory Committee on Rules of Civil Procedure.
Notice of open meeting.
The Advisory Committee on Rules of Civil Procedure will hold a two-day meeting. The meeting will be open to public observation but not participation. An agenda and supporting materials will be posted at least 7 days in advance of the meeting at:
November 5-6, 2015.
University of Utah, S.J. Quinney College of Law, Flynn Faculty Workshop, 332 S. 1400 E., Salt Lake City, Utah 84112.
Rebecca A. Womeldorf, Rules Committee Secretary, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Federal Bureau of Investigation, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Criminal Justice Information Services (CJIS) Division, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until November 18, 2015.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gerry Lynn Brovey, Supervisory Information Liaison Specialist, FBI, CJIS, Resources Management Section, Administrative Unit, Module C-2, 1000 Custer Hollow Road, Clarksburg, West Virginia, 26306 (facsimile: 304-625-5093). Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
9:00 a.m. to 3:45 p.m., Friday, November 6, 2015.
The offices of the Morris K. Udall and Stewart L. Udall Foundation, 130 South Scott Avenue, Tucson, AZ 85701.
This meeting of the Board of Trustees will be open to the public.
(1) Call to Order & Chair's Remarks; (2) Executive Director's Remarks; (3) Consent Agenda Approval (Minutes of the October 16, 2014, and April 16, 2015, Board of Trustees Meetings; Board Reports submitted for the Education Programs, U.S. Institute for Environmental Conflict Resolution, Udall Center for Studies in Public Policy-Native Nations Institute-Udall Archives & their Workplan, and Communications; and resolutions regarding Allocation of Funds to the Udall Center for Studies in Public Policy and Transfer of Funds to the Native Nations Institute for Leadership, Management, and Policy); (4) Financial & Internal Controls Update; (5) Native Nations Institute Discussion; (6) Parks in Focus Partnership with Western National Parks Association; (7) Native American Alaska Native Sector Discussion; (8) Udall Scholarship & Internship Recruitment Discussion; (9) Appropriations Update; and (10) Chair's Closing Remarks.
Philip J. Lemanski, Executive Director, 130 South Scott Avenue, Tucson, AZ 85701, (520) 901-8500.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Technology, Innovation and Engineering (TI&E) Committee of the NASA Advisory Council (NAC).
Tuesday, November 10, 2015, 8 a.m. to 5 p.m., Local Time.
NASA Headquarters, Room MIC 7A, 300 E Street SW., Washington, DC 20546.
Mr. Mike Green, Space Technology Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-4710, or
The meeting will be open to the public up to the capacity of the room. This meeting is also available telephonically and online via WebEx. Any interested person may call the USA toll-free conference number 1-844-467-6272, passcode 102421, to participate in this meeting by telephone. The WebEx link is
The agenda for the meeting includes the following topics:
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving access to NASA Headquarters. Due to the Real ID Act, Public Law 109-13, any attendees with drivers licenses issued from non-compliant states/territories must present a second form of ID. [Federal employee badge; passport; active military identification card; enhanced driver's license; U.S. Coast Guard Merchant Mariner card; Native American tribal document; school identification accompanied by an item from LIST C (documents that establish employment authorization) from the “List of the Acceptable Documents” on Form I-9]. Non-compliant states/territories are: American Samoa, Arizona, Idaho, Louisiana, Maine, Minnesota, New Hampshire, and New York. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: full name; gender; date/place of birth; citizenship; visa information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee; and home address to Ms. Anyah Dembling via email at
The Members of the National Council on Disability (NCD) will hold a quarterly meeting on Monday, November 2, 2015, 9:00 a.m.-4:30 p.m. (Eastern Daylight Time), and on Tuesday, November 3, 2015, 8:30 a.m.-11:45 a.m. (Eastern Daylight Time) in Concord, New Hampshire.
This meeting will occur at the Capitol Center for the Arts, Governors Hall, 44 South Main Street, Concord, New Hampshire 03301. Interested parties are welcome to join in person or by phone in a listening-only capacity (other than the period allotted for public comment noted below) using the following call-in number: 888-510-1785; Conference ID: 4579660; Conference Title: NCD Meeting; Host Name: Clyde Terry.
The Council will hear policy presentations on the topics of mental health services in higher education, the Help America Vote Act, Medicaid managed care and the direct care workforce, and emerging technology in employment and education. The Council will also release its “Self-Driving Cars: Mapping Access to a Technology Revolution” report; review and vote on a report on monitoring and enforcing the Affordable Care Act; receive reports from its standing committees; and receive public comment during three town halls, on the topics of mental health services in higher education, challenges of the direct care workforce, and emerging technology.
The times provided below are approximations for when each agenda
To better facilitate NCD's public comment, any individual interested in providing public comment is asked to register his or her intent to provide comment in advance by sending an email to
Anne Sommers, NCD, 1331 F Street NW., Suite 850, Washington, DC 20004; 202-272-2004 (V), 202-272-2074 (TTY).
A CART streamtext link has been arranged for this teleconference meeting. The web link to access CART on Monday, November 2, 2015 is:
Those who plan to attend the meeting in-person and require accommodations should notify NCD as soon as possible to allow time to make arrangements. To help reduce exposure to fragrances for those with multiple chemical sensitivities, NCD requests that all those attending the meeting in person refrain from wearing scented personal care products such as perfumes, hairsprays, and deodorants.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act.
Columbia Trust (the “Trust”), Columbia Management Investment Advisers, LLC (the “Adviser”) and Columbia Management Investment Distributors, Inc. (the “Distributor”).
An order granting the requested relief 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 9, 2015, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
The Commission: Brent J. Fields, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants: Columbia Trust, Columbia Management Investment Advisers, LLC, and Columbia Management Investment
Dalia Osman Blass, Assistant Chief Counsel, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Trust will be registered as an open-end management investment company under the Act and is a business trust organized under the laws of Massachusetts. Applicants seek relief with respect to a Fund (as defined below, and the Fund, the “Initial Fund”). The portfolio positions of the Fund will consist of securities and other assets selected and managed by its Adviser or Subadviser (as defined below) to pursue the Fund's investment objective.
2. The Adviser, a Minnesota limited liability company, will be the investment adviser to the Initial Fund. An Adviser (as defined below) will serve as investment adviser to the Fund. The Adviser is, and any other Adviser will be, registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”). The Adviser and the Trust may retain one or more Subadvisers (each a “Subadviser”) to manage the portfolio of the Fund. Any Subadviser will be registered, or not subject to registration, under the Advisers Act.
3. The Distributor is a Delaware corporation and a broker-dealer registered under the Securities Exchange Act of 1934 and will act as the principal underwriter of Shares of the Fund. Applicants request that the requested relief apply to any distributor of Shares, whether affiliated or unaffiliated with the Adviser (included in the term “Distributor”). Any Distributor will comply with the terms and conditions of the Order.
4. Applicants seek the requested Order under section 6(c) of the Act for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act. The requested Order would permit applicants to offer exchange-traded managed funds. Because the relief requested is the same as the relief granted by the Commission under the Reference Order and because the Adviser has entered into, or anticipates entering into, a licensing agreement with Eaton Vance Management, or an affiliate thereof in order to offer exchange-traded managed funds,
5. Applicants request that the Order apply to the Initial Fund and to any other existing or future open-end management investment company or series thereof that: (a) Is advised by the Adviser or any entity controlling, controlled by, or under common control with the Adviser (any such entity included in the term “Adviser”); and (b) operates as an exchange-traded managed fund as described in the Reference Order; and (c) complies with the terms and conditions of the Order and of the Reference Order, which is incorporated by reference herein (each such company or series and Initial Fund, a “Fund”).
6. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or transactions, from any provisions of the Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general purposes of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors.
7. Applicants submit that for the reasons stated in the Reference Order: (1) With respect to the relief requested pursuant to section 6(c) of the Act, the relief is 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; (2) with respect to the relief request pursuant to section 17(b) of the Act, the proposed transactions are reasonable and fair and do not involve overreaching on the part of any person concerned, are consistent with the policies of each registered investment company concerned and consistent with the general purposes of the Act; and (3) with respect to the relief requested pursuant to section 12(d)(1)(J) of the Act, the relief is consistent with the public interest and the protection of investors.
By the Division of Investment Management, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to modify its fee schedule applicable to the Exchange's options platform (“BATS Options”) effective immediately, in order to modify certain standard pricing and to amend the thresholds related to meeting certain pricing tiers, the applicability of certain pricing tiers and the fees and rebates associated with certain pricing tiers, as described below.
The Exchange proposes to modify certain standard pricing applicable to BATS Options, including: (i) The rebate to add liquidity in non-Penny Pilot Securities
• The Exchange currently provides a rebate of $0.40 per contract for Firm, BD and JBO orders that add liquidity in non-Penny Pilot Securities, which yield fee code NF. The Exchange proposes to reduce this rebate to $0.36 per contract.
• The Exchange currently charges a fee of $0.45 per contract for Customer orders that remove liquidity in Penny Pilot Securities, which yield fee code PC. The Exchange proposes to increase this fee to $0.46 per contract.
• The Exchange currently charges a fee of $0.49 per contract or non-Customer orders that remove liquidity in Penny Pilot Securities, which yield fee code PP. The Exchange proposes to increase this fee to $0.50 per contract.
Each of the changes to standard pricing described above is proposed in order to increase revenue generated by the Exchange or to decrease the rebates paid by the Exchange in order to contribute to the overall profitability of the Exchange. The Exchange believes that these changes represent relatively modest increases to fees charged and adjustments to the rebates that are necessary to fund the continued growth of the Exchange.
The Exchange currently offers enhanced rebates under both the Firm, Broker Dealer, and Joint Back Office Penny Pilot Add Volume Tiers (which apply to fee code PF) and the Market Maker and Non-BATS Market Maker Penny Pilot Add Volume Tiers (which apply to fee code PM) to Members with trading activity on BATS Options that meets certain thresholds. More specifically, in Tier 3 of each of these sets of tiers, BATS Options offers an enhanced rebate of $0.47 per contract to orders that yield fee code PF and PM where: (i) The Member has an ADAV
The Exchange also proposes to modify the criteria necessary to qualify for Tier 2 of the Market Maker and Non-BATS Market Maker Penny Pilot Add Volume Tiers, which applies to fee code PM and provides a rebate of $0.42 per contract. Currently, in order to qualify for such Tier, a Member of BATS Options must: (i) Have an ADAV equal to or greater than 1.00% of average TCV; and (ii) have an ADV equal to or greater than 2.00% of average TCV. The Exchange proposes to modify the first prong of this requirement such that a Member must have an ADAV in Market Maker
The Exchange currently offers a total of five Non-Customer Penny Pilot Take Volume Tiers that provide discounted fees for Non-Customer orders in Penny Pilot Securities that remove liquidity from BATS Options under fee code PP. The Exchange proposes various updates to the existing tiers as well as to add an additional tier, as set forth below.
• The Exchange currently charges $0.48 per contract for Members that qualify for Non-Customer Volume Tier 1, which requires that a Member has an ADV equal to or greater than 1.00% of average TCV. The Exchange proposes increasing this fee to $0.49 per contract.
• The Exchange currently charges $0.47 per contract for Members that qualify for Non-Customer Volume Tier 2, which requires that a Member has an ADV equal to or greater than 1.25% of average TCV. The Exchange proposes to increase this fee to $0.48 per contract. The Exchange also proposes to increase the ADV threshold required to reach Non-Customer Volume Tier 2 from 1.25% to 1.50% of average TCV.
• The Exchange currently charges $0.45 per contract for Members that qualify for Non-Customer Volume Tier 3, which requires that a Member: (i) Has an ADAV equal to or greater than 1.00% of average TCV, and (ii) has an ADV equal to or greater than 2.00% of average TCV. The Exchange proposes to increase this fee to $0.47 per contract. The Exchange also proposes to eliminate the first prong of the criteria, which contains an ADAV component, such that a Member would simply be required to reach an ADV equal to or greater than 2.00% of average TCV.
• The Exchange proposes to add a new tier, Non-Customer Take Volume Tier 4, which would charge $0.45 per share for any Member with an ADAV in Customer orders equal to or greater than 0.80% of average TCV. The Exchange notes that this is similar to but easier to attain than current Non-Customer Take Volume Tier 4, which results in a fee of $0.43 per contract for any Member with an ADAV in Customer orders equal to or greater than 2.00% of average TCV. Because the new tier is easier to attain, the Exchange has proposed a higher fee. In connection with this change, the Exchange proposes to rename current Non-Customer Take Volume Tier 4 as Non-Customer Take Volume Tier 5.
The majority of the changes set forth above represent modest increases in rates or higher criteria to obtain such rates and are proposed for reasons consistent with the reason for the changes to Standard Pricing described above, including the generation of additional revenue by the Exchange in order to contribute to the overall profitability of the Exchange and to fund the continued growth of the Exchange. The Exchange notes that the addition of the new Non-Customer Take Volume Tier 4 is intended to incentivize the entry of additional Customer orders to the Exchange.
The Exchange's NBBO Setter Program is a program intended to incentivize aggressive quoting on BATS Options by providing an additional rebate upon execution for all orders that add liquidity that set either the NBB or NBO, subject to certain volume requirements. The Exchange currently operates three NBBO Setter Tiers that provide an additional rebate of either $0.02 per contract or $0.04 per contract to orders from qualifying Members that submit orders that yield PA, PF, PM, NA, NF and NM.
The Exchange is proposing to add a new tier, Tier 4, which would provide an additional rebate of $0.05 per contract to orders yielding fee code PF or PM that establish a new NBBO and are submitted by a Member that has an ADAV in non-Customer orders equal to or greater than 1.00% of average TCV and has an ADV in non-Customer orders equal to or greater than 1.80% of average TCV. The Exchange proposes to limit the applicability of Tier 4 to orders yielding fee code PF and PM, which represent added liquidity in Penny Pilot Securities for Market Maker orders, Non-BATS Market Maker orders, Firm orders, BD orders and JBO orders. Thus, contrary to other NBBO Setter Tiers, Tier 4 would not apply to Professional Customer orders or to orders in non-Penny Pilot Securities. The Exchange believes that this new tier will incentivize additional entry of orders that set a new NBBO, thereby contributing to the availability of aggressively priced liquidity on the Exchange and the price discovery process.
Pursuant to the Quoting Incentive Program (“QIP”) the Exchange currently provides an additional rebate per contract for an order that adds liquidity to the BATS Options order book in options classes in which a Member is a Market Maker registered on BATS Options pursuant to Rule 22.2. A Market Maker must be registered with BATS Options in an average of 20% or more of the associated options series in a class in order to qualify for QIP rebates for that class. The Exchange currently offers two tiers, Tier 1 and Tier 2, which provide an additional rebate of $0.02 per contract or $0.04 per contract, respectively, for Members that satisfy applicable QIP criteria. The Exchange does not propose to modify the criteria necessary to qualify for QIP tiers or the rebates provided thereunder, however the Exchange does propose to limit the applicability of such tiers to fee codes PM and NM, which apply to added liquidity for Market Maker and Non-BATS Market Maker orders. Thus, QIP rebates would no longer be provided to orders yielding fee codes NA or PA, which apply to added liquidity in Professional Customer orders, or to fee codes NF or PF, which apply to added liquidity in Firm, BD and JBO orders. Because QIP rebates are no longer applicable, the Exchange also proposes to eliminate references to footnote 5 for each of these fee codes on the Fee Codes and Associated Fees chart.
The Exchange is also proposing to modify its Firm, BD and JBO Non-Penny Pilot Add Volume Tiers, under which there are three tiers offering enhanced rebates for Firm, BD and JBO orders that add liquidity in non-Penny Pilot Securities. Specifically, the tiers provide the following rebates under the following conditions for Firm, BD and JBO orders that add volume in non-Penny Pilot Securities: Tier 1 provides a $0.50 rebate per contract to a Member that has an ADV equal to or greater than 0.05% of average TCV; Tier 2 provides a $0.60 rebate per contract to a Member that has an ADV equal to or greater than 0.15% of average TCV; and Tier 3 provides a $0.65 rebate per contract to Member that has an ADV equal to or greater than 0.25% of average TCV. The Exchange proposes the following changes to these tiers.
• The Exchange proposes to reduce the rebate provided under Tier 1 from $0.50 per contract to $0.45 per contract and to increase the requirement such that a Member needs to have an ADV equal to or greater than 0.15% of average TCV (rather than 0.05% as currently required).
• The Exchange proposes to eliminate Tier 2 in its entirety.
• The Exchange proposes to rename current Tier 3 as Tier 2.
The Exchange also proposes to amend the Standard Rates table, which summarizes the range of fees at the beginning of the fee schedule, in order to reflect the changes proposed above.
The Exchange proposes to implement these amendments to its Fee Schedule effective immediately.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6 of the Act.
Volume-based rebates and fees such as the ones currently maintained on BATS Options have been widely adopted by equities and options exchanges and are equitable because they are open to all Members on an equal basis and provide additional benefits or discounts that are reasonably related to the value to an exchange's market quality associated with higher levels of market activity, such as higher levels of liquidity provision and/or growth patterns, and introduction of higher volumes of orders into the price and volume discovery processes.
As explained above, the Exchange is proposing various slight increases to fees as well as decreases in rebates in order to contribute to the overall profitability of the Exchange. The Exchange believes that these changes represent relatively modest increases to fees charged and adjustments to the rebates that are necessary to fund the continued growth of the Exchange. For the same reason, the Exchange believes that the modest increases to qualification thresholds for various pricing tiers is reasonable, fair and equitable and non-discriminatory, specifically because such increases will either incentivize participants to further contribute to market quality to the Exchange or the Exchange will be providing fewer or lower enhanced rebates to participants. The Exchange also believes that the proposed fees and rebates remain consistent with pricing previously offered by the Exchange as well as competitors of the Exchange and do not represent a significant departure from the Exchange's general pricing structure.
The Exchange believes that its proposed new Non-Customer Penny Pilot Take Volume Tier 4 is reasonable, fair and equitable, and non-discriminatory in that it is aimed to attract additional liquidity to the Exchange and is consistent with other existing pricing tiers on the Exchange. The Exchange also believes that it is reasonable, fair and equitable, and non-discriminatory to limit the applicability of QIP rebates to Market Maker orders and Non-BATS Market Maker orders because QIP is a program aimed to incentivize active market making on the Exchange. Similarly, the Exchange believes it is reasonable, fair and equitable, and non-discriminatory to modify the Market Maker and Non-BATS Market Maker Penny Pilot Add Tier 2 to require that qualifying ADAV results from Market Maker and Non-BATS Market Maker orders because the tier is intended to incentivize the entry of market orders and the enhanced rebates are provided to such orders (specifically, those yielding fee code PM, which are Market Maker or Non-BATS Market Maker orders in Penny Pilot Securities).
The Exchange believes that new proposed NBBO Setter Tier 4 is reasonable, fair and equitable, and non-discriminatory because it will help to further incentivize the entry of aggressively priced liquidity to the Exchange. The Exchange believes it is reasonable, fair and equitable, and non-discriminatory to limit the new NBBO Setter Tier, Tier 4, to orders yielding fee codes applicable to Penny Pilot Securities (thus excluding non-Penny Pilot Securities) and to orders on behalf of participants that are most likely to actively engage in providing liquidity on the Exchange (thus excluding Customers and Professional Customers).
The Exchange believes that the pricing continues to be reasonable, fair and equitable, and also consistent with or better than other options exchanges that operate similar market models.
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 does not believe that any of the proposed changes to increase fees or decrease rebates burden competition, but instead, that they enhance competition as they are intended to increase the profitability, and thus, competitiveness of BATS Options by allowing the Exchange to create additional pricing incentives and to maintain and improve the infrastructure of the Exchange. Also, the Exchange believes that the increase to certain thresholds necessary to meet tiers offered by the Exchange contributes to rather than burdens competition, as such changes are intended to incentivize participants to increase their participation on the Exchange. Similarly, the introduction of new tiers is intended to provide incentives to Members to encourage them to enter orders to BATS Options, and thus is again intended to enhance competition. Finally, the Exchange does not believe that its proposal to limit the applicability of certain incentives to certain fee codes unnecessarily burdens competition, as each change is intended to more narrowly reward participation by those that are actually the target of the incentive and that are participating on the Exchange accordingly (
As stated above, the Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels to be excessive or providers of routing services if they deem routing fee levels to be excessive.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change 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
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to modify Chapter XV, entitled “Options Pricing,” at Section 2 governing pricing for NASDAQ members using the NASDAQ Options Market (“NOM”), NASDAQ's facility for executing and routing standardized equity and index options. Specifically, NOM proposes to amend certain Penny Pilot Options
While the changes proposed herein are effective upon filing, the Exchange has designated that the amendments be operative 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 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
NASDAQ proposes to modify Chapter XV, entitled “Options Pricing,” at Section 2(1) governing the rebates and fees assessed for option orders entered into NOM. The Exchange proposes to amend the NOM Market Maker Penny Pilot Options Rebates to Add Liquidity to add the iShares Russell 2000 ETF “IWM” to Tiers 3 and 4 of the NOM Market Maker Penny Pilot Options Rebates to Add Liquidity. The Exchange believes that additional rebate opportunities offered by the addition of IWM to Tiers 3 and 4 of the NOM Market Maker Penny Pilot Options Rebates to Add Liquidity will attract additional order flow to NOM to the benefit of all market participants.
Today, the Exchange pays NOM Market Maker Penny Pilot Options Rebates to Add Liquidity based on various criteria in six tiers with rebates which range from $0.20 to $0.42 per contract as noted below.
Today, the Tier 3 NOM Market Maker Penny Pilot Options Rebate to Add Liquidity pays a $0.30 per contract rebate, except in options overlying Apple, Inc. (“AAPL”), PowerShares QQQ (“QQQ”), VIX ST Futures ETN (“VXX”) and SPDR S&P 500 (“SPY”), which pay a $0.40 per contract rebate to Participants that add NOM Market Maker liquidity in Penny Pilot Options and/or Non-Penny Pilot Options above 0.25% to 0.60% of total industry customer equity and ETF option ADV contracts per day in a month. The Exchange proposes to add IWM to the list of symbols that are eligible for the Tier 3 rebate of $0.40 per contract. Today, the Exchange pays a Tier 3 NOM Market Maker Penny Pilot Options Rebate to Add Liquidity of $0.30 per contract in IWM.
Today, the Tier 4 NOM Market Maker Penny Pilot Options Rebate to Add Liquidity pays a $0.32 per contract rebate, except in AAPL, QQQ, VXX and SPY, which pay a $0.40 per contract rebate to Participants that add NOM Market Maker liquidity in Penny Pilot Options and/or Non-Penny Pilot Options of above 0.60% to 0.90% of total industry customer equity and ETF option ADV contracts per day in a month. The Exchange proposes to add IWM to the list of symbols that are eligible for the Tier 4 rebate of $0.40 per contract. Today, the Exchange pays a Tier 4 NOM Market Maker Penny Pilot Options Rebate to Add Liquidity of $0.32 per contract in IWM.
The Exchange believes that paying a higher rebate for IWM transactions will encourage a greater number of transactions in IWM.
NASDAQ believes that the proposed rule changes are consistent with the provisions of Section 6 of the Act,
The Exchange's proposal to amend the NOM Market Maker Penny Pilot Options Rebate to Add Liquidity Tiers 3 and 4 to increase the IWM rebate from $0.30 to $0.40 per contract in Tier 3 and from $0.32 to $0.40 per contract in Tier 4 is reasonable because the proposal seeks to encourage Participants to transact a greater amount of IWM liquidity in order to receive the higher rebate of $0.40 per contract, provided Participants qualify for the Tier 3 or 4
The Exchange's proposal to amend the NOM Market Maker Penny Pilot Options Rebate to Add Liquidity Tiers 3 and 4 to increase the IWM rebate from $0.30 to $0.40 per contract in Tier 3 and from $0.32 to $0.40 per contract in Tier 4 is equitable and not unfairly discriminatory because all NOM Market Makers may qualify for the Tier 3 and Tier 4 NOM Market Maker Penny Pilot Options Rebate to Add Liquidity.
The Exchange believes that it is reasonable, equitable, and not unfairly discriminatory to adopt different pricing for IWM, as compared to other options, because pricing by symbol is a common practice on many U.S. options exchanges as a means to incentivize order flow to be sent to an exchange for execution in the most actively traded options classes, in this case actively traded Penny Pilot Options.
NASDAQ does not believe that the proposed rule changes will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
The Exchange's proposal to amend the Tier 3 and 4 NOM Market Maker Penny Pilot Options Rebates to Add Liquidity to pay a higher rebate for IWM of $0.40 per contract, similar to AAPL, QQQ, SPY and VXX, does not create an undue burden on intra-market competition because all NOM Market Makers may qualify for the Tier 3 or 4 NOM Market Maker Penny Pilot Options Rebate to Add Liquidity.
The Exchange's proposal addressed herein does not impose an inter-market burden on competition because the Exchange operates in a highly competitive market in which many sophisticated and knowledgeable market participants can readily and do send order flow to competing exchanges if they deem fee levels or rebate incentives at a particular exchange to be excessive or inadequate. These market forces support the Exchange belief that the proposed rebate structure and tiers proposed herein are competitive with rebates and tiers in place on other exchanges. The Exchange believes that this competitive marketplace continues to impact the rebates present on the Exchange today and substantially influences the proposals set forth above. Other options markets offer similar rebates to incentivize market participants to direct order flow to their markets. The Exchange believes that continuing to offer rebates and increasing those rebates and providing opportunities to earn higher rebates will benefit the marketplace by continuing to reward liquidity providers and thereby offering other market participants an opportunity to interact with this order flow.
No written comments were either solicited or received.
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 proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
This proposed rule change by The Options Clearing Corporation (“OCC”) would modify OCC's margin methodology by incorporating variations in implied volatility for “shorter tenor” options within the System for Theoretical Analysis and Numerical Simulations (“STANS”).
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The proposed rule change would modify OCC's margin methodology by more broadly incorporating variations in implied volatility within STANS. As explained below, OCC believes that expanding the use of variations in implied volatility within STANS for substantially all
STANS is OCC's proprietary risk management system that calculates Clearing Members' margin requirements in accordance with OCC's Rules.
The STANS margin requirement for an account is composed of two primary components:
Including variations in implied volatility within STANS is intended to ensure that the anticipated cost of liquidating each Shorter Tenor Option position in an account recognizes the possibility that implied volatility could change during the two business day liquidation time horizon in STANS and lead to corresponding changes in the market prices of the options. Generally speaking, the implied volatility of an option is a measure of the expected future volatility of the value of the option's annualized standard deviation of the price of the underlying security, index, or future at exercise, which is reflected in the current option premium in the market. The volatility is
OCC is proposing certain modifications to STANS to more broadly incorporate variations in implied volatility for Shorter Tenor Options. Consistent with its approach for Longer Tenor Options, OCC would model a volatility surface
OCC partnered with an experienced vendor in this area to study implied volatility surfaces and to use back-testing of OCC's margin requirements to build a model that would be appropriately sophisticated and operate conservatively to minimize margin exceedances. The back-testing results support that, over a look-back period from January 2008 to May 2013,
Under OCC's model for Shorter Tenor Options, the volatility surfaces would be defined using tenors of one month, three months, and one year with absolute deltas, in each case, of 0.25, 0.5, and 0.75. This results in the nine implied volatility pivot points. Given that premiums of deep-in-the-money options (those with absolute deltas closer to 1.0) and deep-out-of-the-money options (those with absolute deltas closer to 0) are insensitive to changes in implied volatility, in each case notwithstanding increases or decreases in implied volatility over the two business day liquidation time horizon, those higher and lower absolute deltas have not been selected as pivot points. OCC believes that it is appropriate to focus on pivot points representing at- and near-the-money options because prices for those options are more sensitive to variations in implied volatility over the liquidation time horizon of two business days. Specifically, for SPX index options, four factors explain 99% variance of implied volatility movements: (i) A parallel shift of the entire surface, (ii) a slope or skewness with respect to Delta, (iii) a slope with respect to time to maturity; and, (iv) a convexity with respect to the time to maturity. The nine correlated pivot points, arranged by delta and tenor, give OCC the flexibility to capture these factors.
In the proposed approach to computing margin for Shorter Tenor Options under STANS, OCC would first use its econometric models to simulate implied volatility changes at the nine pivot points that would correspond to underlying price simulations used by STANS.
OCC believes that the proposed rule change would enhance OCC's ability to ensure that in determining margin requirements STANS appropriately takes into account normal market conditions that OCC may encounter in the event that, pursuant to OCC Rule 1102, it suspends a defaulted Clearing Member and liquidates its accounts.
OCC estimates that Clearing Member accounts generally would experience increased margin requirements as compared to those calculated for the same options positions in an account today. OCC estimates the proposed
OCC expects customer accounts to experience the largest margin increases because positions considered under STANS for customer accounts typically consist of more short than long options positions, and therefore reflect a greater magnitude of direction risk than other account types. Positions considered under STANS for customer accounts typically consist of more short than long options positions because, to facilitate Clearing Members' compliance with Commission requirements for the protection of certain customer property under Rule 15c3-3(b),
While overall OCC expects an increase in aggregate margins by about $1.5 billion (9% of expected shortfall and stress-test add-on), OCC does anticipate a decrease in margins in certain clearing member accounts' requirements. OCC anticipates that such a decrease would occur in accounts with underlying exposure and implied volatility exposure in the same direction, such as concentrated call positions, due to the negative correlation typically observed between these two factors. Over the back-testing period, about 28% of the observations for accounts on the days studied had lower margins under the proposed methodology and the average reduction was about 2.7%. Parallel results will be made available to the membership in the weeks ahead of implementation.
To help Clearing Members prepare for the proposed change, OCC has provided Clearing Members with an Information Memo explaining the proposal, including the planned timeline for its implementation,
Section 17A(b)(3)(F) of the Securities Exchange Act of 1934, as amended (“Act”),
The proposed rule is also consistent with Rule 17Ad-22(b)(2),
OCC believes that the proposed rule change would increase margin requirements more significantly with respect to Clearing Member customer accounts than other accounts and would therefore impose a burden on competition.
As discussed above, customer accounts experience higher margin requirements than would otherwise result because long option positions in securities customers' accounts of Clearing Members are generally segregated by OCC, pursuant to its own Rules, to facilitate compliance by Clearing Members with Commission Rule 15c3-3(b).
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.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
(
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Supplementary Material .08 to Chapter IV, Section 6 (Series of Options Contracts Open for Trading), entitled “Mini Options Contracts.” Specifically, the Exchange proposes to replace the name “Google Inc.” with “Alphabet Inc.”
The Exchange requests that the Commission waive the 30-day operative delay period contained in Exchange Act Rule 19b-4(f)(6)(iii).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of
The Exchange proposes to amend Supplementary Material .08 to Chapter IV, Section 6, regarding Mini Options traded on BX, to replace the name “Google Inc.” with “Alphabet Inc.” Google Inc. (“Google”) recently announced plans to reorganize and create a new public holding company, which will be called Alphabet Inc. (“Alphabet”). As a result of the holding company reorganization, each share of Class A Common Stock (“GOOGL”), which the Exchange has listed as a Mini Option, will automatically convert into an equivalent corresponding share of Alphabet Inc. stock.
The Exchange is proposing to make this change to Supplementary Material .08 to Chapter IV, Section 6 to enable the continued trading of Mini Options on Google's, now Alphabet's Class A shares. The Exchange is proposing to make this change because, on October 5, 2015 Google reorganized and as a result underwent a name change.
The purpose of this change is to ensure that Supplementary Material .08 to Chapter IV, Section 6 reflects the intention and practice of the Exchange to trade Mini Options on only an exhaustive list of underlying securities outlined in Supplementary Material .08. This change is meant to continue the inclusion of Class A shares of Google in the current list of underlying securities that Mini Options can be traded on, while continuing to make clear that class C shares of Google are not part of that list as that class of options has not been approved for Mini Options trading. As a result, the proposed change will help avoid confusion.
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 proposed rule change to change the name Google to Alphabet to reflect the new ownership structure is consistent with the Act because the proposed change is merely updating the current name associated with the stock symbol GOOGL to allow for continued mini option trading on Google's class A shares. The proposed change will allow for continued benefit to investors by providing them with additional investment alternatives.
BX 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 change does not impose any burden on intra-market competition because it applies to all members and member organizations uniformly. There is no burden on inter-market competition because the Exchange is merely attempting to continue to permit trading of GOOGL as a Mini Options, as is the case today. As a result, there will be no substantive changes to the Exchange's operations or its rules.
No written comments were either solicited or received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow the Exchange to continue to list mini options on the Google Class A shares, now Alphabet's Class A shares, following Google's reorganization. For this reason, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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 June 25, 2015, ICE Clear Europe Limited (“ICE Clear Europe”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
ICE Clear Europe has proposed amending certain risk policies relating to the CDS product category to incorporate enhancements to the existing CDS risk model. The relevant policies to be modified are the CDS Risk Policy (“CDS Risk Policy”) and the CDS Risk Model Description (“Risk Model Description”). ICE Clear Europe did not propose to make any changes to its Clearing Rules or Procedures in connection with these amendments.
ICE Clear Europe has proposed to, among other matters, (i) modify the credit spread response component of the risk model to devolatilize returns, (ii) enhance the portfolio spread response component of the risk model to limit procyclicality, (iii) establish a new framework for recovery rate sensitivity requirement (“RRSR”) parameters, (iv) modify the CDS Guaranty Fund allocation methodology, (v) modify index liquidity and concentration charges and (vi) revise procedures for intraday margin calls. The Risk Policy Amendments would also include certain other clarifications and conforming changes.
The following is a summary of the principal changes to be made by the Risk Policy Amendments:
ICE Clear Europe has proposed separating the recovery rate stress levels for these two computations in order to introduce more dynamic and appropriate estimations of the recovery rate stress levels for RRSR purposes. Under the revised framework, the recovery rate levels for RRSR purposes will be determined using a 5-day, 99% confidence interval expected shortfall risk measure assuming a distribution of recovery rate fluctuations. The proposal will also eliminate index RRSR, as index recovery rates are assumed under relevant market convention and are thus not subject to market uncertainty. ICE Clear Europe represents that the dynamic feature of the revised stress level estimations is achieved by analyzing historical time series of recovery rates in order to calibrate a statistical model with a time varying volatility. In ICE Clear Europe's view, the proposed enhancements provide a robust and quantitative driven approach for establishing the recovery rate stress scenarios.
ICE Clear Europe has also proposed to modify the procedure for allocating CDS Guaranty Fund requirements among the CDS Clearing Members. Under the existing model, CDS Guaranty Fund allocations reflect a risk “silo” approach, in which a Clearing Member's contribution reflects its uncollateralized exposure for each CDS Guaranty Fund component or “silo”. Under the current approach, allocations can significantly fluctuate in response to position changes in the portfolios of the Clearing Members that drive the CDS Guaranty Fund size, and in response to the distribution of the total CDS Guaranty Fund size across all “silos”. ICE Clear Europe has proposed modifying the methodology, so that the allocations are based on the Clearing Members' total unconditional uncollateralized losses in the CDS product category.
ICE Clear Europe has also proposed revising the CDS Risk Policy's discussion of the initial CDS Guaranty Fund contribution to be consistent with the requirements of the Finance Procedures.
ICE Clear Europe has proposed to modify the concentration charge calculation for index CDS positions. (Again, the existing approach for single-name CDS will not change.) ICE Clear Europe represents that the revised framework provides for calculation of series-specific concentration charges, based on the direction of the 5-year equivalent notional amount or the net notional amount of positions in the particular series and a series threshold limit (above which the concentration charge is imposed). According to ICE Clear Europe, series threshold limits are expected to be higher for the on-the-run and the first off-the-run index series, and are determined based on a formula comparing the open interest in the series to the on-the-run open interest.
Under ICE Clear Europe's proposal, changes to the CDS Risk Policy will be subject to initial approval by the Director of Risk and may be determined in consultation with the RWG and/or the TAC. Any changes that affect the risk profile of ICE Clear Europe will be subject to Board approval on the advice and support of the CDS Risk Committee and the Board Risk Committee. In addition, the CDS Risk Policy will be subject to at least an annual routine approval by the Board, after consultation with the CDS Risk Committee and the Board Risk Committee. CDS risk model performance testing will be subject to review by the Director of Risk and reported to the CDS Risk Committee and the Board Risk Committee.
Section 19(b)(2)(C) of the Act
The Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with Section 17A of the Act
The Commission further finds that the proposed modifications to the CDS Guaranty Fund allocation methodology to reflect the Clearing Member's total uncollateralized losses across all Guaranty Fund components regardless of the fluctuation of the Clearing Member's uncollateralized losses with respect to each Guaranty Fund component should result in more stable attributions of GF contributions to individual Clearing Member or portfolios. The Commission also believes that the proposed rule change to establish series-specific index liquidity and concentration charges should generally apply a more conservative approach to these margin components. Additionally, the Commission believes that the proposed rule change to intraday margin calls, in conjunction with ICE Clear Europe's existing risk policies and other proposed changes to the risk methodology, is reasonably designed to allow ICE Clear Europe to collect sufficient margin to meet its requirements and obligations, including under scenarios where it may have to call for margin on an intraday basis. The Commission also finds that the proposed rule change with respect to governance appropriately engages management and Clearing Member representatives in the oversight of the effectiveness ICE Clear Europe's risk management function. The Commission believes that the proposed additional changes are each designed to enhance ICE Clear Europe's risk management functions and more accurately reflect ICE Clear Europe's current practices. The new provisions in the CDS Risk Policy concerning (i) the responsibilities of the CDS Director of Risk to ensure that the CDS Risk Policy remains up to date and is reviewed in accordance with certain guidelines, to approve changes to the CDS Risk Policy, and to review and report to the CDS Risk Committee and the Board Risk Committee concerning CDS risk model performance testing; and (ii) the roles of the CDS Risk Committee and Board Risk Committee in providing advice on and approving, respectively, changes that affect the risk profile of ICE Clear Europe, improve the clarity of ICE Clear Europe's governance arrangements and promote the effectiveness of the clearing agency's risk management procedures, consistent with Rule 17Ad-22(d)(8).
The Commission therefore believes that the proposed rule change, as modified by Amendment No. 1, is designed to promote the prompt and accurate clearance and settlement of securities transactions and derivative agreements, contracts and transactions cleared by ICE Clear Europe and, in general, to protect investors and the public interest, consistent with Section
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a notice of the Military Reservist Economic Injury Disaster Loan Program (MREIDL), dated 10/01/2015.
Submit completed loan applications to: U.S. Small Business Administration Processing And Disbursement Center 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of Public Law 106-50, the Veterans entrepreneurship and Small Business Development Act of 1999, and the Military Reservist and Veteran Small Business Reauthorization Act of 2008, this notice establishes the application filing period for the Military Reservist Economic Injury Disaster Loan Program (MREIDL).
Effective 10/01/2015, small businesses employing military reservists may apply for economic injury disaster loans if those employees are called up to active duty during a period of military conflict or have received notice of an expected call-up, and those employees are essential to the success of the small business daily operations.
The purpose of the MREIDL program is to provide funds to an eligible small business to meet its ordinary and necessary operating expenses that it could have met, but is unable to meet, because an essential employee was called-up or expects to be called-up to active duty in his or her role as a military reservist. These loans are intended only to provide the amount of working capital needed by a small business to pay its necessary obligations as they mature until operations return to normal after the essential employee is released from active duty. For information/applications contact 1-800-659-2955 or visit
Applications for the Military Reservist Economic Injury Disaster Loan Program may be filed at the above address.
The Interest Rate for eligible small businesses is 4.000.
The number assigned is 14494 0.
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
The FHWA is issuing this notice of cancellation to advise the public that we are no longer preparing an Environmental Impact Statement (EIS) for the proposed Port Manatee Connector in Manatee and Hillsborough Counties, Florida. This is formal cancellation of the Notice of Intent that was published in the
Ms. Cathy Kendall, Senior Environmental Specialist, Federal Highway Administration, 3500 Financial Plaza, Suite 400, Tallahassee, Florida 32312; Telephone: (850) 553-2225.
The Notice of Intent to prepare an EIS was to improve access between Port Manatee and Interstate 75 (I-75). The Notice of Intent to prepare an EIS is rescinded.
Federal Railroad Administration, DOT.
Notice.
In accordance with the Paperwork Reduction Act of 1995 and its implementing regulations, the Federal Railroad Administration (FRA) hereby announces that it is seeking an extension of the following currently approved information collection activities. On May 7, 2014, the Secretary of Transportation issued Emergency Order (EO) Docket No. DOT-OST-2014-0067 requiring affected railroad carriers to provide certain information to the State Emergency Response Commissions (SERCs) for each State in which their trains carrying 1 million gallons or more of Bakken crude oil travel. The information collection activities associated with the Secretary's Emergency Order originally received a six-month emergency approval from OMB on May 10, 2014. On July 10, 2015, OMB again approved the information collection activities associated with the Secretary's Emergency Order until March 31, 2016. FRA is now requesting to continue these
Comments must be received no later than December 18, 2015.
Submit written comments on any or all of the following proposed activities by mail to either: Mr. Robert Brogan, Information Clearance Officer, Office of Safety, Regulatory Safety Analysis Division, RRS-21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 17, Washington, DC 20590, or Ms. Kimberly Toone, Information Clearance Officer, Office of Information Technology, RAD-20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB control number 2130 -___.” Alternatively, comments may be transmitted via facsimile to (202) 493-6216 or (202) 493-6497, or via email to Mr. Brogan at
Mr. Robert Brogan, Information Clearance Officer, Office of Safety, Regulatory Safety Analysis Division, RRS-21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 17, Washington, DC 20590 (telephone: (202) 493-6292) or Ms. Kimberly Toone, Information Clearance Officer, Office of Information Technology, RAD-20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590 (telephone: (202) 493-6132). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, sec. 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60-days notice to the public for comment on information collection activities before seeking approval for reinstatement or renewal by OMB. 44 U.S.C. 3506(c)(2)(A); 5 CFR 1320.8(d)(1), 1320.10(e)(1), 1320.12(a). Specifically, FRA invites interested respondents to comment on the following summaries of proposed information collection activities regarding: (i) Whether the information collection activities are necessary for FRA to properly execute its functions, including whether the activities will have practical utility; (ii) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (iii) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (iv) ways for FRA to minimize the burden of information collection activities on the public by automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Below are brief summaries of three currently approved information collection requests that FRA will submit for clearance by OMB as required under the PRA:
FRA is seeking regular Clearance of this information collection request that was previously approved under Emergency Processing procedures on September 9, 2015.
Pursuant to 44 U.S.C. 3507(a) and 5 CFR 1320.5(b), 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501-3520.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Denial of Petition.
General Motors, LLC (GM) has determined that certain model year (MY) 2013-2014 Chevrolet Express, GMC Savana, Chevrolet Silverado HD and GMC Sierra HD compressed natural gas (CNG) multipurpose passenger vehicles (MPVs) and trucks manufactured between May 20, 2012, and September 25, 2013, do not comply with the lettering height requirement in paragraph S5.3 of Federal Motor Vehicle Safety Standard (FMVSS) FMVSS No. 303,
For further information on this decision, contact Mr. Ed Chan, Office of Vehicle Safety Compliance, at the National Highway Traffic Safety Administration (NHTSA) by telephone at (202) 493-0335.
I.
The agency published a notice of receipt of the petition, with a 30-day public comment period, on March 11, 2014 in the
II.
III.
IV.
S5.3 Each CNG vehicle shall be permanently labeled, near the vehicle refueling connection, with the information specified in S5.3.1 and S5.3.2 of this section. The information shall be visible to a person standing next to the vehicle during refueling, in English, and in letters and numbers that are not less than 4.76 mm (
S5.3.1 The statement: “Service pressure __kPa (__psig).”
S5.3.2 The statement “See instructions on fuel container for inspection and service life.”
V.
A. The information on the subject CNG labels is correct and entirely legible.
Paragraph S5.4 of FMVSS No. 303 requires that the information required for the label also be included in the owner's manual using “. . . not less than 10 point type.” The 2.5 mm lettering height on the subject labels is 10 point type,
B. The subject CNG label is an “information” label, not a
The subject label is not a “warning” label and does not warn the user of a safety related risk or consequence. Even if the user does not read the label information due to the font size, the user will not miss information about a safety risk.
C. The label font size does not create a risk of misfueling.
Even if the user fails to read the information label due to the reduced font size, there would be no adverse safety consequence. The service pressure of the subject CNG tanks is 3,600 psi. There is no risk of over-pressuring these tanks since CNG filling stations are required to shutoff at 3,600 psi, per ANSI/IAS NGV 4.2-1999 CSA 12.52-M99(R09). Accordingly, there is no risk of a fuel leak.
Even if the shutoff function on a filling station were to malfunction, all CNG tanks on the affected vehicles are equipped with pressure-relief devices designed to deploy at 5,400 psi, which is below the burst pressure of the tank itself.
With regard to under-pressure (under-fill) potential, all affected vehicles are equipped with a CNG fuel gauge in the instrument cluster to inform the driver of the fuel level. While some drivers may estimate the driving range associated with a full fill, most drivers typically rely on fuel gauges, not anticipated range, to determine when to refuel. Some CNG filling stations, primarily in Canada, are designed to shutoff at 3,000 psi, which is below the 3,600 psi service pressure of the affected CNG tanks. However, regardless of whether the CNG tanks on the affected vehicles start out full (3,600 psi) or 83% full (3,000 psi), the driver has ample opportunity to monitor the fuel gauge and refuel prior to the CNG being depleted. Additionally, the owner manual instructs that “the fuel gauge has been calibrated to display full at approximately 24,800 kPa (3,600 psi) . . .”
Finally, there is no risk that a customer would attempt to fuel the CNG tanks from a conventional gasoline pump. The fueling nozzle and filling port for CNG are completely distinct from the corresponding nozzle and port used for gasoline, and the distinctions are obvious. In the extraordinary event that a user attempted to connect a conventional gasoline nozzle to the CNG fueling valve, it would be immediately apparent that the mismatched gasoline nozzle does not attach to or work with the CNG valve. GM also asserts that owners and operators of CNG vehicles (the large majority being fleet purchasers) are well aware that their vehicles use a non-conventional fuel,
In addition, GM stated its belief that NHTSA has previously granted petitions for labeling related inconsequential noncompliances that GM believes can be applied to a decision on its petition.
GM informed NHTSA that it is not aware of any crashes, injuries or customer complaints associated with this condition.
GM also informed NHTSA that it has corrected the noncompliance for all future production.
In summation, GM believes that the described noncompliance of the subject vehicles is inconsequential to motor vehicle safety, and that its petition, to exempt from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
The lettering height required for the CNG vehicle label is greater than that required for similar information in the owner's manual and the alternative one page document (4.76 mm versus 2.5 mm).
1. Not all vehicle operators will have read or have ready access to the vehicle's owner's manual, especially when vehicles have been acquired on the secondary market.
2. Immediately prior to or during vehicle refueling is the most opportune time to provide a person refueling the vehicle with information that may reduce accidental overfilling, and the vehicle refueling connection label is more likely to be read than the owner's manual during vehicle refueling.
3. Vehicle refueling connection label readability and conspicuity are important to help to ensure that the information is actually read and understood by the person refueling the vehicle, the person ultimately responsible for the safe refueling of the vehicle.
NHTSA is currently investigating several incidents where over-pressurization of CNG tanks mounted on vehicles other than the subject vehicles may have contributed to explosions. A lack of understanding related to the rated service pressure and actual working pressure of the fuel containers are factors that NHTSA believes may have contributed to these explosions. This further reinforces NHTSA's belief that label information at the vehicle's filling location must be easy to read.
NHTSA has previously granted inconsequential noncompliance petitions for labeling issues including discrepancies in lettering height, missing information, incorrect information, and misplaced or obscured information. We believe this label is different because of the frequency of filling the fuel tank. Filling the fuel tank can occur on a daily basis whereas labels for other purposes,
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8)
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications delayed more than 180 days.
In accordance with the requirements of 49 U.S.C. 5117(c), PHMSA is publishing the following list of special permit applications that have been in process for 180 days or more. The reason(s) for delay and the expected completion date for action on each application is provided in association with each identified application.
Ryan Paquet, Director, Office of Hazardous Materials Special Permits and Approvals, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of actions on special permit applications.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR part 107, subpart B), notice is hereby given of the actions on special permits applications in (October to October 2014). The mode of transportation involved are identified by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft. Application numbers prefixed by the letters EE represent applications for Emergency Special Permits. It should be noted that some of the sections cited were those in effect at the time certain special permits were issued.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR part 107, subpart B), notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Comments must be received on or before November 18, 2015.
Send comments to Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Ryan Paquet, Director, Office of Hazardous Materials Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for special permit is published in accordance with Part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for modification of special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR part 107, subpart B), notice is hereby given that the Office of Hazardous Materials Safety has received the applications described herein. This notice is abbreviated to expedite docketing and public notice. Because the sections affected, modes of transportation, and the nature of application have been shown in earlier
Comments must be received on or before November 3, 2015.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Ryan Paquet, Director, Office of Hazardous Materials Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for modification of special permit is published in accordance with Part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before November 18, 2015.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7492 or email
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA'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 respondents, including through the use of automated collection techniques or the use of other forms of information technology.
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
By direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 38 U.S.C. App. 2 that the Executive Committee of the VA Voluntary Service (VAVS) National Advisory Committee (NAC) will meet November 3-4, 2015, at the Paralyzed Veterans of America Headquarters, 801 Eighteenth Street NW., 2nd Floor, Carlton Training Center, Washington, DC. The sessions will begin at 8:30 a.m. each day and end at 4:30 p.m. on November 3, and at Noon on November 4, 2015. The meeting is open to the public.
The Committee, comprised of 55 national voluntary organizations, advises the Secretary, through the Under Secretary for Health, on the coordination and promotion of volunteer activities within VA health care facilities. The Executive Committee consists of 20 representatives from the NAC member organizations.
On November 3, agenda topics will include: NAC goals and objectives; review of minutes from the March 2014, NAC annual meeting; VAVS update on the Voluntary Service program's activities; Veterans Health Administration Update, Parke Board update; evaluations of the 2015 NAC annual meeting; review of membership criteria and process; and plans for 2016 NAC annual meeting (to include workshops and plenary sessions).
On November 4, agenda topics will include: Subcommittee reports; review of standard operating procedures; review of Fiscal Year 2014 organization data; 2017 NAC annual meeting plans; and any new business.
No time will be allocated at this meeting for receiving oral presentations from the public. However, the public may submit written statements for the Committee's review to Mrs. Sabrina C. Clark, Designated Federal Officer, Voluntary Service Office (10B2A), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, or email at
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to amend our existing regulations in regards to the export and import of hazardous wastes from and into the United States. EPA is proposing these changes to: Provide greater protection to human health and the environment by making existing export and import related requirements more consistent with the current import-export requirements for shipments between members of the Organization for Economic Cooperation and Development (OECD); enable electronic submittal of all export and import-related documents (
Comments must be received on or before December 18, 2015. Under the Paperwork Reduction Act, comments on the information collection provisions are best assured of having full effect if the Office of Management and Budget (OMB) receives a copy of your comments on or before November 18, 2015.
Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2015-0147, to the
Laura Coughlan, Materials Recovery and Waste Management Division, Office of Resource Conservation and Recovery (5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (703) 308-0005; email:
The information presented in this preamble is organized as follows:
The authority to propose this rule is found in sections 1002, 2002(a), 3001-3004, and 3017 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6901
The revisions to export and import requirements in this proposed rule generally affect four (4) groups: (1) All persons who export or import (or arrange for the export or import) hazardous waste for recycling or disposal, including those hazardous wastes subject to the alternate management standards for (a) universal waste for recycling or disposal, (b) spent lead-acid batteries (SLABs) being shipped for reclamation, (c) industrial ethyl alcohol being shipped for reclamation, (d) hazardous waste samples of more than 25 kilograms being shipped for waste characterization or treatability studies, and (e) hazardous recyclable materials being shipped for precious metal recovery; (2) all recycling and disposal facilities who receive imports of such hazardous wastes for recycling or disposal; (3) all persons who export or arrange for the export of conditionally excluded cathode ray tubes being shipped for recycling; and (4) all persons who transport any export and import shipments described above. Potentially affected entities may include, but are not limited to:
The lists of potentially affected entities in the above tables may not be exhaustive. The Agency's aim is to provide a guide for readers regarding those entities that potentially could be affected by this action. However, this action may affect other entities not listed in these tables. If you have questions regarding the applicability of this proposed rule to a particular entity, consult the person listed in the preceding section entitled
EPA is proposing certain amendments to the current RCRA regulations governing imports and exports of hazardous waste and certain other materials in part 262 in order improve protection of public health and the environment by achieving greater consistency in both procedures and documentation. Specifically, the proposed revisions of the existing regulations will consolidate and streamline some of the requirements and enhance the documentation of the movement and disposition of hazardous wastes and other materials, improving the Agency's ability to monitor compliance with applicable legal requirements; will enable regulated parties and the government to benefit from the electronic submission of data; and will consolidate the notification process with foreign governments for efficiency under a unified regulation, consistent with the requirements of the Organization for Economic Cooperation and Development Council Decision (OECD) controlling transboundary movements of hazardous waste. The proposed rule is one of the Agency's priority actions under its plan for periodic retrospective reviews of existing regulations, as called for by Executive Order 13563. Finally, certain other revisions to the regulations are needed in order to fulfill the direction set forth in Executive Order 13659 concerning the electronic management of international trade data by the U.S. Government as part of the International Trade Data System (ITDS).
EPA's determination that some revisions to the import/export regulations are needed is bolstered by the 2013 Commission for Environmental Cooperation (CEC) report and its recommendations. The CEC report found that U.S. net exports of spent lead acid batteries (SLABs) to Mexico for recycling had increased by an estimated 449-525 percent, and that there were significant discrepancies between summary data on export shipments reported to the EPA annually and individual export shipment data collected under U.S. Census Bureau (Census) authority. Based on its findings, the CEC report recommended that the U.S. require the use of manifests for each international shipment of SLABs, require exporters to obtain a certificate of recovery from foreign recycling facilities, explore establishing an electronic export annual report, and better share import and export data between environmental and border agencies. For a more complete discussion of the report and EPA's related analysis, see Section VII.
EPA is particularly interested in input on this proposed action from persons who import and export hazardous waste, including those persons importing or exporting hazardous wastes managed under the special management standards in 40 CFR part 266 (
This action is proposing to update the IBR source material in § 260.11(g)(1) for the OECD amber and green waste lists, and their associated waste codes, which
EPA's general hazardous waste export and import regulations were originally promulgated in 1986 and are currently found in 40 CFR part 262 subparts E and F. 40 CFR part 262 subpart E established export requirements for manifested hazardous waste. These requirements include submitting an export notice to EPA, receiving EPA's Acknowledgement of Consent (AOC) letter documenting consent by the country of import and any countries of transit, RCRA manifest related requirements for export shipments, submittal of export annual reports summarizing export shipments made in the previous calendar year, and recordkeeping. 40 CFR part 262 Subpart F established manifest related requirements for hazardous waste import shipments. Conforming requirements related to the AOC letter and the RCRA manifest were added to Parts 263 (
The OECD is an international organization established in 1960 to assist Member countries in achieving sustainable economic growth, employment, and an increased standard of living, while simultaneously ensuring the protection of human health and the environment. OECD Member countries are concerned with a host of international socio-economic and political issues, including environmental issues. To address these issues, the OECD Council may negotiate Council Decisions, which, except as otherwise provided, are international agreements that create legally-binding commitments on the United States and other OECD member countries under the terms Article 5 of the Convention on the Organisation for Economic Co-operation and Development (OECD Convention). A series of Council decisions, collectively referred to here as the “Amended 2001 OECD Decision,” addresses the transboundary movement of wastes, which is the subject of this proposed rule. Of the thirty-four Member countries of the OECD, all but Chile participate in the Amended 2001 OECD Decision. These participating Member countries are as follows: Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, Slovenia, South Korea, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States. The OECD country Web site for each Member country may be found at
On March 30, 1992, the OECD Council adopted the “Decision of the Council C(92)39/FINAL Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery” (hereinafter referred to as the 1992 Decision), which applied to the transboundary movements of wastes destined for recovery operations between OECD Member countries. The 1992 Decision provided a framework for OECD Member countries to control the transboundary movement of recoverable wastes in an environmentally sound and economically efficient manner. These revisions were implemented within RCRA in the April 12, 1996 direct final rule (61 FR 16290) that established 40 CFR part 262 subpart H (hereinafter referred to as OECD regulations or Subpart H regulations), and added a section to 40 CFR part 262 subpart E to detail when exporters and importers needed to comply with 40 CFR part 262 subpart H in lieu of complying with 40 CFR part 262 subpart E or F. As with the general RCRA export and import requirements, conforming requirements for exports and imports required to comply with 40 CFR part 262 subpart H were added to 40 CFR parts 263-265.
On June 14, 2001, the OECD Council amended the 1992 Decision by adopting “Revision of Decision C(92)30/FINAL on the Control of Transboundary Movement of Wastes Destined for Recovery Operations”(hereafter referred to as the 2001 OECD Decision). The goal of the 2001 OECD Decision was to harmonize the procedures and requirements of the OECD with those of the Basel Convention
EPA published a final rule in the
The OECD regulations apply to shipments of RCRA hazardous waste
In its comments on the proposed revisions to the OECD regulations in 2008, the Basel Action Network (BAN) commented that the U.S. had not yet implemented the 1986 OECD Decision-Recommendation,
While EPA has updated the RCRA OECD regulations and some limited changes have been made to the general RCRA export and import regulations since 1996, EPA has determined that a more complete revision is needed at this time for a number of reasons.
First, the regulations are quite complex. Different procedures apply depending on whether the shipment is destined for recycling or disposal, whether the other country is a member of the OECD, and if so, whether the U.S. has a separate bilateral agreement with the OECD member country. In addition, the applicability of conforming requirements in 40 CFR parts 263, 264, 265, 266 and 273 related to the general RCRA export and import regulations and the OECD regulations are sometimes unclear. The complexity of having two sets of export and import requirements creates confusion for the regulated community and leads to decreased compliance with RCRA requirements. In general, over ninety percent of the quantity of hazardous waste that is shipped between the United States and other countries occurs between the U.S., Canada and Mexico. Canada and Mexico are both OECD countries and under the same obligation to implement the Amended 2001 OECD Decision. Additionally, hazardous waste shipments between the United States and OECD countries other than Canada and Mexico already follow the Amended 2001 OECD Decision. Only 137 of the 54,152 hazardous waste import and export shipments in 2011 were between the United States and non-OECD countries.
Second, the general RCRA regulations in 40 CFR part 262 Subparts E and F do not provide for complete tracking of individual shipment transport and management. As stated previously, under the OECD regulations an international movement document must accompany the shipment from the
While shipments of RCRA hazardous waste are already required to be accompanied by a RCRA hazardous waste manifest under the general RCRA export and import regulations, the focus of the RCRA manifest is domestic cradle-to-grave tracking. As a result, while it requires listing the foreign generator and U.S. port of entry for imports, and the foreign destination facility and U.S. port of exit for exports, it does not capture all of the information needed to track international shipments moving across two or more countries. For example, the RCRA manifest does not have the capability to capture customs processing in the countries of export, transit and import, and the RCRA manifest requires solely listing RCRA hazardous waste codes and U.S. biennial report management codes rather than requiring listing the applicable domestic and internationally accepted OECD/Basel Convention waste codes and the internationally accepted OECD/Basel Convention disposal/recycling operation codes. Moreover, the RCRA manifest is only required to be initiated for import shipments upon the first act of transportation within the United States or its territories.
Rather than try to further modify the RCRA manifest to capture all the required international items in addition to all the domestic items it already tracks (especially while EPA is in the midst of developing the e-manifest system) EPA is proposing to require the use of an international movement document for all export and import shipments of hazardous waste. This would include universal waste, SLABs being shipped for reclamation, hazardous recyclable materials being shipped for precious metal recovery, industrial ethyl alcohol being shipped for reclamation, and hazardous waste samples of more than 25 kg being shipped for characterization or treatability studies.
Allowing the use of any international movement document, including but not limited to the widely accepted OECD/Basel Convention movement document or the Canadian movement document, will reduce the incremental burden of this requirement and prevent duplicative international tracking requirements. As when using the RCRA manifest, the movement document must list the name, address, telephone, fax numbers, and email of the location from which the export shipment initiates if it is different from that of the exporter. This is currently required in 40 CFR 262.84(b)(2).
As listed above, management (
Taking these factors into consideration along with all the others discussed previously leads EPA to conclude that consolidating the RCRA import-export requirements under a unified regulation wholly consistent with the Amended 2001 OECD Decision is the best approach in this proposed rule. EPA is therefore proposing to make all imports and exports of hazardous waste, whether subject to manifest requirements or not (
Under the proposed revisions, all export and import shipments of RCRA hazardous waste will be required to be shipped using notice and consent procedures, covered by contracts or equivalent arrangements that require the parties (
EPA is proposing to reorganize the regulations in Subpart H of part 262 and clarify certain portions, such as the contract requirements, to articulate more explicitly EPA's original intent in those regulations and to eliminate any confusion on the part of the regulated community. We are also deleting older import and export requirements that are duplicative of or inconsistent with the OECD-based procedures (in the cases of exports to non-OECD countries), and clarifying certain definitions or requirements that are still needed.
An example of a duplicative regulation is 40 CFR 264.12(a)(1) in which a U.S. treatment, storage and disposal facility must submit the one-time notice to the Regional Administrator four weeks before the anticipated delivery of the first shipment of a hazardous waste from a foreign source. This regulation will be deleted, as it is duplicative with the notice and consent requirements that will now be required. More fundamentally, under the regulations in Subpart H of part 262, notice and consent is always required, so EPA currently receives notice of the U.S. facility's intent to receive the hazardous waste import for recycling for those cases where the OECD member country listed in 40 CFR 262.58(a)(1) does not control the proposed shipments as hazardous waste exports under 40 CFR 262.82(a)(2)(ii)(B). Under the proposed rule, U.S. importers will be required to submit an export notice directly to EPA, requesting consent to the proposed shipments in place of the foreign
Because under this proposed rule EPA will get notices for all import and export shipments subject to the regulations in Subpart H of part 262, the 264.12(a)(1) notice is no longer necessary. The requirement for the U.S. importer to submit a notice to EPA should only affect U.S. importers who intend to import shipments of hazardous wastes that are not controlled in Mexico or non-OECD countries as exports of hazardous waste. These countries do not currently submit notices to EPA for such exports. Canadian regulations
Another proposed change is to delete the requirement for an exporter providing a copy of EPA's Acknowledgment of Consent (AOC) letter for the transporter to carry with each shipment in 40 CFR 262.52(c). Instead, under this proposed rule the movement document will list the notification/consent number under which the shipment is covered and include a signed certification statement that all contracts are in place and all necessary consents have been obtained. The information in the movement document will therefore include all the necessary information for the countries of export, transit and import to match the movement documents for the individual shipments with the relevant notification and consent documents. Because RCRA manifests track certain domestic items (
EPA considered proposing to limit the number of RCRA waste codes that can be listed in an export or import notice or an export annual report for a specific hazardous waste. Currently, the regulations do not limit the number of RCRA hazardous waste codes that can be submitted on a notice of intent to export or import or on an export annual report, which means an exporter can submit an export or import notice or an export annual report listing every RCRA hazardous waste code for each specific hazardous waste. Of the 1,684 export notices received by EPA in calendar year 2013, at least 200 notices were submitted with hundreds of RCRA hazardous waste codes listed for each of the hazardous wastes in the notice. EPA does not believe that all (or close to all) of the RCRA hazardous waste codes could actually apply to a single waste stream. Listing more (or all) hazardous waste codes for a waste stream does not appreciably increase the quality of the waste stream data or prevent the destination facility from rejecting a poorly characterized hazardous waste. This practice does impair EPA's oversight and tracking accuracy of exported hazardous wastes.
The export notices and export annual reports where EPA has observed all (or close to all) of the RCRA waste codes have been listed for each waste stream are associated with proposed or actual hazardous waste export shipments to Canada. Canadian import and export regulations require Canadian importers and exporters to list the applicable RCRA hazardous waste code,
EPA also considered proposing to limit the number of notice amendments that an exporter could submit within the one-year period of consent established by EPA's AOC letter. Under the existing notice requirements in 40 CFR 262.53, exporters are required to submit a notice amendment and obtain an amended consent concerning any changes to information listed in the notice other than changes to the exporter's contact phone number, changes to the means of transportation, or decreases to the planned export quantity. Under existing notice requirements in 40 CFR part 262 subpart H and the proposed revisions, the ports of exit and transporter companies the exporter plans to use during the consent period are required to be listed in the export notice, and exporters will have to submit a notice amendment requesting consent before using any additional ports or transporters not listed in the original notice and EPA AOC letter. Because amendments may be necessary, and even multiple amendments may be unavoidable, EPA decided not to propose limiting the number of amendments that an exporter can submit to request changes to the terms of an issued AOC letter during the one-year consent period. However, it is important to note that EPA must prioritize export documents it receives to help ensure that the system continues to operate efficiently and avoid delays in shipments. Because having consent to ship is most critical, processing by EPA of initial export notices to obtain consent to ship is the highest priority, and processing amendments to add ports or transporters to an issued AOC is a much lower priority. EPA therefore encourages exporters to submit notices that contain all potential ports and transporters reasonably expected to be used, to avoid the need to request amendments to add ports or transporters, particularly because there is no limit to the number of transporters or ports that can be listed in the export notice.
EPA is not proposing to expand the applicability of the revised regulations in subpart H of part 262 beyond those RCRA hazardous wastes already subject to the current export requirements in 40 CFR part 262. Under RCRA Section 3017, EPA's authority to prohibit exports and establish regulatory requirements to implement international waste agreements is limited to waste regulated as hazardous under RCRA. This proposed rule does not affect wastes that are not regulated as RCRA hazardous waste (
EPA is also not proposing to address requirements for shipments that transit through the United States beyond what is currently required for return of shipments transiting the United States in 40 CFR part 262 subpart H. The OECD Decision (see Chapter II, Section (D)(2)(Case 1)(j)) and the Basel Convention (see Article 4, Section (7)(c)) both require movement documents from the starting point in the country of export to the recycling or disposal facility in the country of import. Shipments that transit the United States may therefore be accompanied by an international movement document while in transit in the United States under requirements established by the country of export and/or the country of import if those countries are OECD countries or party to the Basel Convention. However, the EPA does not require such transits to be accompanied by an international movement document.
Lastly, EPA would like to note that the existing U.S.-Canada bilateral agreement, the U.S.-Mexico bilateral agreement, and the three import-only bilateral agreements between the United States and Malaysia, Costa Rica, and the Philippines remain in place and are not affected by these proposed revisions. While the proposed revisions, if finalized, would change the applicable requirements for hazardous waste shipments with these countries, the additional requirements being proposed are fully consistent with the bilateral agreements.
Currently all import and export submittals to EPA are paper-based. As part of EPA's Next Generation Compliance initiative and electronic reporting policy,
(a) Export notices for hazardous waste (40 CFR 262.53 and 262.83) or CRTs being shipped for recycling (40 CFR 261.39(a)(5));
(b) Import notices for cases where country of export does not control as hazardous waste export and EPA has not received notice from country of export (40 CFR 262.82(a)(2)(ii)(B));
(c) Export annual reports for hazardous waste (40 CFR 262.56 and 262.87(a)) or CRTs being shipped for recycling (40 CFR 261.39(a)(5)(x));
(d) Export exception reports (40 CFR 262.55 and 262.87(b), in lieu of exception reporting required under 40 CFR 262.42);
(e) Export confirmations of receipt (submittal by foreign recycling facility required in 40 CFR 262.54(f), 262. 84(e), and required implicitly by 40 CFR 262.85);
(f) Export confirmations of completing recovery (submittal by foreign recycling facility required implicitly by 40 CFR 262.85);
(g) Import confirmations of receipt (40 CFR 262.60(e), 262.84(e), 264.12(a)(2), 265.12(a)(2), 264.71(a)(3), 265.71(a)(3), 264.71(d), 265.71(d));
(h) Import confirmations of completing recovery (40 CFR 262.83, 264.12(a)(2), 265.12(a)(2));
(i) Import notifications regarding need to make alternate arrangements or need to return waste shipment (40 CFR 262.82(d)(1), 262.85(c)(1));
(j) Import notifications of expected initial import shipment of a specific hazardous waste from a specific foreign source (40 CFR 264.12(a)(1)); and
(k) Transporter notifications regarding need to return shipment transiting U.S. to country of export (40 CFR 262.83(e)(1)).
Not all of the items listed above occur in sufficient numbers to justify
EPA's waste import/export database is currently used to process and track all import notices annually transmitted to EPA by foreign governments or U.S. importers (when the country of export does not regulate as hazardous waste export subject to notice and consent requirements), and all export notices submitted annually to EPA by U.S. exporters. EPA received 769 import notices and 1,684 export notices in Calendar Year (CY) 2013. When EPA receives a paper export or import notice, an EPA notice officer must first review it for completeness, and then once it is deemed complete, manually enter the data from the notice into the tracking system. The 718 import notices transmitted by Canada and Mexico in CY2013 were received electronically through the Notice and Consent Electronic Data Exchange (NCEDE) using EPA's Central Data Exchange (CDX),
(a) Three initial fields for receiving country, disposal or recovery, and general waste material type, using radio buttons and drop down lists, to determine the required fields for the notice;
(b) Eight required fields on the notice page: First departure date (calendar); last departure date (calendar); technology employed (open text); name of notice signer (open text); signature date (calendar); import, exporter, and receiving facility (drop down list from type ahead feature or open text for facilities not already in the system—open text has roughly nine required fields for each: Company name, address, EPA ID number, zip code, country, city, phone, fax, email);
(c) Six required fields on the transportation page: Mode of transport (drop down list); packaging type (drop down list), shipment frequency (number field); ports of entry (drop down list), ports of exit (drop down list); transporter (drop down list—but allows for manual entry of the nine required fields for transporters not already in the system);
(d) Nine fields (eight required) for each waste stream: Waste material type (drop down list); management method code (drop down list); DOT/UN ID, shipping name, and hazard class (drop down list—one entry selected populates all three); EPA waste codes (drop down list); Basel Convention codes (optional entry, uses drop down list); OECD codes (drop down list); waste description (open text); waste quantity (number); unit of measure for waste quantity (drop down list); and
(e) Three required fields on the transit country page: Transit country (drop down list); port of entry (drop down list); and port of exit (drop down list).
Reduced errors and electronic submittal of notice data will substantially decrease the time needed for EPA to review and process the notices, and the time needed for the U.S. submitter to correct the notice deficiencies, which will make the notice process more efficient for the U.S. exporter and U.S. importer submitting notices to EPA. Additionally, U.S. exporters and importers submitting notices electronically will be able to duplicate previous notices when seeking to renew consent to export with a minimum of changes, and then simply edit the fields which would change. EPA estimates that as many as 60 percent of submitted export notices would benefit from the duplication feature, which would reduce the required data entry down to editing roughly 2 to 14 fields. Additional benefits to the U.S. submitter will be the elimination of mailing or courier fees needed to submit the notices, the elimination of the risk of losing the submittal in the mail, and the ability for the U.S. submitter to log in and obtain information on the status of all submitted notices without needing to request the information from EPA via phone or email. Lastly, electronic export notices will enable the transmittal of all EPA reference data needed to validate consent for each shipment under ITDS (see Section II.C. for more information on ITDS). EPA requests comment on this potential notice entry process, and further requests comment on how many exporters currently use an automated system to generate notices and the estimated burden reduction if EPA developed an option to submit notices electronically using a system-to-system based approach using XML through EPA's CDX.
Export annual reports must be submitted to EPA by March 1 of each year and detail all export shipments made under consent during the previous calendar year. Currently, exporters must generate these reports and submit them in paper form. In order to conduct any meaningful analysis of the quantity and types of waste exported, EPA must review the export annual reports submitted each year for completeness and manually enter the data from the export annual reports. EPA received 378 export annual reports concerning shipments made in CY2011. Converting to electronic submittal of the data will again reduce EPA's review time and manual entry time, and will reduce the time needed for U.S. exporters to correct any export annual report deficiencies. An additional benefit to converting to electronic submittal of the export annual report would be that the tracking system could build a draft report listing the required information regarding all wastes under consent that were approved to ship during the previous calendar year. The exporter could then simply enter the total quantities for each waste using the same reporting units of measurement listed in the notice. The tracking system could potentially also build a draft report listing the total quantities exported for each waste based on the data EPA will receive from the AES on successfully validated export shipments that were cleared for departure during the previous calendar year. The exporter would still need to review the draft report, and either edit it to reflect any returns or corrections needed, or electronically confirm that the generated draft report was accurate
Export exception reports occur less frequently, but the roughly 20 reports submitted to EPA each year must still be matched to the relevant consent and filed by EPA. Converting this submittal to electronic assuming a web-based entry would require entry of the following data fields: (i) Manifest tracking number, (ii) EPA consent number, (iii) check box for one of the three exception report types (see 40 CFR 262.87(b)(1) through (3)), and (iv) an open text field for the exporter to describe the situation. Electronic submittal should save EPA the time needed to match the exception report to the relevant consent and file the paper report, and for the exporter would again save at a minimum the costs of mailing the exception report to EPA, and eliminate the risk of losing the exception report in the mail. EPA asks for comment on the accuracy of the estimated number of exception reports submitted annually, and the expected benefits.
Under the Amended 2001 OECD Decision and the current contract provisions of subpart H in 40 CFR 262.85, the exporter is required to have contract terms with all other parties involved in the transaction to ensure that the OECD procedures are carried out. With respect to export shipments, the contract should therefore require the foreign facility to submit copies of export confirmations of receipt and confirmations of completing recycling to EPA and the U.S. exporter. The foreign facility is supposed to submit the confirmation of receipt within three days of shipment delivery, and submit the confirmation of completing recycling as soon as possible, but no later than thirty (30) days after the completion of recovery and no later than one (1) calendar year following shipment delivery. Based on export annual reports on 2011 export shipments, 2,466 export shipments were subject to part 262 subpart H requirements, and 48,752 export shipments were subject to part 262 subpart E requirements. Under this proposal, EPA expects to receive one confirmation of receipt and one confirmation of completing disposal or recycling for each of the 48,752 shipments that would now be subject to the OECD regulations. Converting submittals to electronic, and assuming a web-based approach, foreign facilities would simply enter the EPA consent number and then upload a PDF copy of the confirmation of receipt or confirmation of completing recycling/disposal. Given that the likelihood that the facility would wish to submit multiple confirmations at a single time, the planned design would include the option to upload multiple confirmations of receipt and multiple confirmations of completing recycling/disposal in one action. Benefits to electronic submittal for EPA would be the reduced time needed to match incoming paper confirmations with the relevant consents and file the paper documents. Benefits to the foreign facility would be more timely submittals to EPA, elimination of the costs for mailing the confirmations to EPA, and elimination of the risk of losing the exception report in the international mail. Importantly, exporters would be able to view all submitted confirmations submitted under their consents, improving their oversight of the foreign facility's compliance with the terms of the contract or equivalent arrangements. EPA asks for comment on the planned approach and expected benefits, and on foreign facilities submitting these confirmations system-to-system using XML through EPA's CDX.
U.S. importers/recycling facilities are similarly required to submit confirmations of receipt and completing recycling to EPA under the current OECD regulations. Based on the RCRA manifests submitted to EPA for import shipments received in CY2011, 62 import shipments were subject to part 262 subpart H requirements, and 2,872 import shipments were subject to part 262 subpart F requirements. Under this proposal, U.S. importers/receiving facilities for all hazardous waste import shipments would become subject to these requirements, resulting in the submittal of confirmations of receipt and completing recycling or disposal for an additional 2,872 shipments. Converting these submittals to electronic would use the same data entry-upload approach as for the export confirmations. Expected benefits to EPA of electronic submittal would be the reduced time needed to match the incoming paper confirmations with the relevant consent and file the documents. Expected benefits to the importer/receiving facility would be more timely submittals to EPA, elimination of the costs for mailing the confirmations to EPA via U.S. mail or courier service, and elimination of the risk of losing the exception report in the mail. EPA asks for comment on the accuracy of the estimated increase in confirmations, the expected benefits, and the possibility of the facilities submitting these confirmations system-to-system using XML through EPA's CDX.
U.S. importers/recycling facilities are required under current subpart H regulations to notify EPA in writing of the need to make alternate arrangements to manage a given shipment of waste or to return the shipment to the country of export when it cannot be managed per the terms of the notice and consent. Based on the three notifications submitted to EPA between 2011 and 2013 concerning the need to make alternate arrangements for a shipment, and the lack of such notifications concerning the need to return a shipment to the country of export, EPA estimates that one such notification will be made each year. Converting this submittal to electronic means would, assuming a web-based approach, require the entry of the following data fields: (i) Manifest tracking number, (ii) EPA consent number, (iii) check box for one of the two notification types (
Electronic submittal would require that all submitters register within EPA's CDX system. Doing so would then register them for any subsequent electronic submittal under any EPA program office's e-reporting requirement. The registration is done for the individual submitting the electronic documents, so any change in the employee submitting the information would require CDX registration for the new submitting employee. But any employee already registered in CDX to submit other program office's e-reporting (
EPA is proposing to require electronic submittal of the nine major import and export documents on or after the effective date of the final rule. This assumes that the necessary system changes will be able to be completed in 2015 and tested by volunteer companies before the issuance of the final rule. Electronic submittals established in the final rule will be compliant with CROMERR to the extent that it applies. Other EPA e-reporting rulemakings, such as the July 30, 2013, proposed rule concerning e-reporting under the National Pollutant Discharge Elimination System (NPDES)
EPA estimates that all exporters and almost all importers have broadband Internet access, given that exporters or U.S. authorized agents currently file data electronically into the AES, and many exporters and importers currently file electronic data under another EPA program such as TRI. But in case there are RCRA exporters or importers that do not have broadband Internet access, or have other unique circumstances that would prevent them from being able to submit RCRA import and export data electronically, or would experience an unreasonable burden or economic impact to their company if required to submit the data electronically after the transition period, EPA is proposing to allow these companies to request a temporary waiver from the electronic reporting requirements being proposed.
Similar to the process established by the Securities and Exchange Commission (SEC) [17 CFR 232.202(a)] to its (rare) granting of continued hardship exemptions for electronic filing, EPA could grant temporary waivers from e-reporting for each exporter or importer that meets criteria demonstrating that such electronic reporting of RCRA export or import information would pose an unreasonable burden or expense to the exporter or importer. The SEC process requires the submission of a written request made at least ten business days before the required due date of the submission. As identified in 17 CFR 232.202(b), this written request shall include, but not be limited to: (i) The reason(s) that the necessary hardware and software are not available without unreasonable burden and expense; (ii) the burden and expense associated with using alternative means to make the electronic submission or posting, as applicable; and/or (iii) the reasons for not submitting the document, group of documents or Interactive Data File electronically, or not posting the Interactive Data File, as well as the justification for the requested time period. Under the SEC process, the temporary exemption is not deemed granted until the SEC notifies the applicant. Although the SEC has successfully required electronic reporting from various sized companies for the majority of its reports since 1993, it is still possible that a small number of RCRA exporters or importers might claim that they either do not have computers on-site, do not have computer-savvy individuals available, or are a considerable distance away from a location where they could get computer access. EPA is therefore considering the possible use of temporary waivers from electronic reporting of RCRA import and export information for such entities, although technological advances and computer access are such that there may be few valid instances of such situations. EPA may consider establishing a similar procedure for such temporary waivers if the criteria for such temporary waivers are broadened, in response to comments, beyond that in the proposed rule.
In addition to these possible temporary “continued hardship” waivers for RCRA exporters and importers from electronic reporting, EPA also recognizes that there may be a need for incident-specific one-time waivers or other adjustments for situations that are beyond the control of the reporting facility (
EPA requests comment on the need for such temporary waivers or exemptions, as well as which criteria should apply for the granting of such temporary exemptions. For comparison, while EPA's August 13, 2010 proposed rule (75 FR 49656) regarding Toxic Substance Control Act (TSCA) Inventory Update Reporting Modifications requested comment on whether there were any circumstances in which a company may not have Internet access to report the required data electronically, the August 16, 2011 final rule (76 FR 50815) required electronic reporting with no exceptions or process for requesting a waiver from electronic reporting.
Recognized traders are those persons that only arrange for the import or export of RCRA waste subject to notice and consent requirements and do not otherwise physically generate, transport, store, treat or dispose of the waste. As
EPA ID numbers are issued by authorized state agencies and EPA Regional Offices, and provide a consistent, reliable way for state agencies and EPA to track companies or individuals based on their site (or business) address and activities declared in EPA's Notification of Regulated Waste Activity (EPA Form 8700-12). Matching company names and addresses in an electronic system is difficult due to the multiple ways a given company's name or address can be entered (
EPA Form 8700-12 and its associated instructions and information collection request (ICR)
In 2006, U.S. Customs and Border Protection (CBP) began automating processes for the import and export of goods to improve the control of what enters and leaves the US, as well as to become much more efficient. Launched under the Security and Accountability for Every Port Act of 2006 (SAFE Port Act, Pub. L. 109-347) and the 2007 Import Safety Executive Order 13439, the multi-agency program called the International Trade Data System (ITDS)
Under ITDS, agencies with existing paper-based import and export clearance procedures at the port of exit or entry are working with CBP to enable electronic filing and processing of the export or import shipments based on one set of submitted data that can then be checked against all relevant U.S. agency requirements.
While RCRA regulates hazardous waste imports, there is no analogous provision in RCRA explicitly prohibiting import of hazardous waste absent consent that would enable EPA to stop entry of possible hazardous waste shipments at the port unless there is an imminent and substantial risk of damage to human health and the environment. As a result, EPA does not currently have paper-based entry procedures for hazardous waste import shipments. Because there are no entry procedures to automate, EPA's import-related ITDS work does not include automating entry procedures for hazardous waste import shipments. However, EPA does have clear authority under RCRA Section 3017 to stop export shipments of RCRA waste subject to notice and consent requirements at the port and we are working with CBP to establish automated checks in the Automated Export System (AES) against EPA consent-based reference data for all shipments declared by the exporter to be subject to RCRA notice and consent requirements.
On February 19, 2014, the White House issued Executive Order 13659 titled “Streamlining the Export/Import Process for America's Businesses”. Under Executive Order 13659, participating agencies must have all requirements in place and in effect to utilize the ITDS and supporting systems like the ACE and the AES for receiving documentation required for the release of imported cargo and the clearance of cargo for export no later than December 31, 2016.
First, EPA proposes to require that exporters or U.S. authorized agents additionally file key export consent data into the Automated Export System (AES) to validate EPA's consent covering each export shipment before each shipment exits the country. (The term “EPA's consent,” in the context of these proposed requirements for exporters to validate key data in the AES, means EPA's AOC letter.) Second, EPA proposes to require that exporters submit electronic export notices into EPA's waste import/export database to enable transmittal of all reference data needed for validation from EPA to AES (for more information on electronic export notices, see Section II.B.6).
As discussed previously, the CEC recommended that the U.S. border and environmental agencies coordinate more closely on export shipments. Part of the difficulty in sharing data with U.S. Customs and Border Protection (CBP) has been that CBP has typically based any export filing errors or flags on information linked to the Commodity classification number, while EPA's authority to prohibit export absent consent under Section 3017 of RCRA is based on RCRA waste type (
Per the Census Bureau's Foreign Trade Regulations (FTR) in 15 CFR part 30, all exporters (or their authorized filers) that ship goods subject to an export license, defined in FTR section
(a) EPA license code (to declare shipment is subject to RCRA export notice and consent requirements).
(b) Commodity classification code (10 digit, numeric description of the commodity).
(c) EPA consent number (specific to waste).
(d) Country of ultimate destination.
(e) Date of export.
(f) RCRA hazardous waste manifest tracking number (if required; universal waste, CRTs being shipped for recycling, industrial ethyl alcohol being shipped for reclamation, and SLABs being shipped for recovery of lead are exempt from RCRA manifest requirements under existing RCRA regulations).
(g) Quantity of waste in shipment and units for reported quantity (units established by commodity classification number).
(h) EPA net quantity and units for reported quantity (if required, must be reported in kilograms if solid waste, and in liters if liquid waste; only required if commodity classification number does not require quantity to be reported in weight or volume units).
Of the items listed above, only the “EPA license code”, “EPA consent number”, “RCRA hazardous waste manifest tracking number”, “EPA net quantity”, and “EPA net quantity units of measurement” are not already required to be filed in the AES under the FTR. Of these five items, one item is only required if the waste is subject to RCRA manifesting requirements and the remaining two items are only required in cases where the commodity classification number-based quantity reporting does not require that the quantity of the commodity in the shipment be reported in weight or volumetric units (
EPA considered attempting to validate exporter names and addresses, but ultimately decided against doing so because of the previously discussed problem of trying to match highly variable text fields for exporter name and address from EPA export notice data with data filed in AES. EPA also considered validating against the commodity classification number expected for the waste stream linked to the consent number, but decided against it due to the difficulty in uniquely mapping the one waste to one commodity classification number in all cases. As discussed in Section VII, the commodity classification numbers may not contain sufficient detail to match with the RCRA waste codes and intended management. If commenters know of ways to reliably match commodity classification numbers with the combination of EPA waste type and intended management, please provide
Requiring electronic export notices and filing the additional items in the AES will ensure that export shipments of declared RCRA wastes subject to RCRA notice and consent requirements only depart the country when going to the approved country within the approved window of export, with a minimum of additional burden to the exporter. It should therefore further reduce illegal exports of hazardous waste and the potential risk to human health and the environment that may result. It will also ensure compliance with Executive Order 13659 that requires implementation of all ITDS requirements by December 31, 2016.
On January 18, 2011, President Obama issued Executive Order 13563, which directed all federal agencies to perform periodic retrospective reviews of existing regulations to determine whether any should be modified, streamlined, expanded, or repealed.
In order to require that anyone acting as an exporter or importer, who does not otherwise physically handle hazardous waste, obtain an EPA ID number prior to arranging for export or import, it is necessary to add a definition that EPA Form 8700-12 can then reference. EPA is therefore proposing to define such persons as recognized traders, specifically as “a person domiciled in the United States, by site of business, who acts to arrange and facilitate transboundary movements of wastes destined for recovery or disposal operations, either by purchasing from and subsequently selling to U.S. and foreign facilities or by acting under arrangements with a U.S. waste facility to arrange for the export or import of the wastes.” EPA believes that this definition is consistent with the Amended 2001 OECD Decision's recognized trader definition of “a person who, with appropriate authorization of countries concerned, acts in the role of principal to purchase and subsequently sell wastes; this person has legal control of such wastes from time of purchase to time of sale; such a person may act to arrange and facilitate transboundary movements of wastes.” EPA had originally considered establishing a definition for “brokers,” but decided to use “recognized trader” to minimize confusion as there are brokers who make manifest-related arrangements for wholly domestic shipments of hazardous waste.
EPA requests comment on these changes and what definitions would be clearest to U.S. stakeholders.
EPA is proposing to replace the obsolete reference to the 1992 OECD Decision waste lists with the correct reference to the Amended 2001 OECD Decision waste lists. This is a necessary technical correction.
EPA is proposing to add an additional condition for samples being exported to a foreign laboratory or imported from a foreign source that the exporter or importer wishes to manage under the waste characterization exclusion of § 261.4(d) or the treatability study exclusion of § 261.4(e). Specifically, EPA is proposing to require that any such samples being exported or imported be limited to a maximum quantity of 25 kilograms in addition to the other conditions already required. This change is being proposed to match the 25 kg limit for samples being excluded from the export and import requirements currently in § 262.82(g) of the OECD regulations, and is thus a clarification and not a new requirement for sample export and import shipments currently subject to 40 CFR part 262 subpart H. It will be a new requirement for sample export and import shipments being exchanged with Canada, Mexico, and any non-OECD country under RCRA regulations. While Canada currently reflects the 25 kg sample exclusion in its exclusion to the definition for hazardous waste recyclables in Section 2(2)(d) of the Canadian regulations
EPA is proposing to revise the text in § 261.6(a)(3)(i) concerning imports and exports of industrial ethyl alcohol being shipped for reclamation to reflect the proposed removal of regulations in 40 CFR part 262 subpart E, and the proposal to require all export and import shipments of RCRA hazardous waste and recyclable materials currently subject to export and import requirements to comply with regulations in 40 CFR part 262 subpart H. This is a conforming amendment.
Similarly, EPA is proposing conforming changes to the text in § 261.6(a)(5) concerning the applicability of 40 CFR part 262 subpart H requirements to all exports and imports of hazardous wastes being shipped for recycling.
EPA is proposing changes to § 261.39(a)(5)(ii), (vi) and (xi) to reflect that export notifications, export renotifications and export annual reports concerning CRTs being shipped for recycling being submitted to EPA
Additionally, EPA is proposing to add the requirement in § 261.39(a)(5)(v) that exporters or U.S. authorized agents must file EPA-required information into the AES prior to departure in accordance with the deadlines specified in 15 CFR 30.4 (
EPA is proposing conforming amendments to § 262.10(d) concerning the applicability of 40 CFR part 262 subpart H requirements to all exports and imports of hazardous wastes.
Additionally, EPA is proposing to add the requirement that all such importers and exporters comply with the EPA ID number requirements in § 262.12. Currently importers and exporters who also generate, transport, treat, store or dispose of hazardous wastes are already required to obtain an EPA ID number because they generate, transport, treat, store or dispose of hazardous wastes. All importers, even those who do not also generate, transport, treat, store or dispose of hazardous wastes, are required to obtain EPA ID numbers because § 262.10(e) explicitly requires all importers to comply with the generator requirements. But it is unclear how many recognized traders arranging for import actually obtain an EPA ID number from the authorized state or EPA Regional office where their place of business is located. Moreover, recognized traders arranging for export that do not otherwise generate, transport, treat, store or dispose of hazardous wastes have no way to obtain an EPA ID number, as EPA Form 8700-12 does not cover such persons. This requirement will therefore impact such persons. EPA requests comment on how many persons arranging for import or export of hazardous wastes, including those wastes under the management standards of 40 CFR parts 266 and 273, do not currently have EPA ID numbers issued by their authorized state or EPA Regional office.
EPA is proposing to add new paragraph (d) to § 262.12 to require that recognized traders arranging for export and import obtain an EPA ID number from their authorized state or EPA Regional office before arranging for export or import. As discussed above, it is unclear how many persons will be affected by this requirement. EPA has assumed 1% of all current exporters and importers are recognized traders, and requests comment on the number of recognized traders that do not currently have EPA ID numbers. EPA further requests comment on how best to include such recognized traders in EPA Form 8700-12 and its associated instructions, and how or whether to reflect the recognized trader role in the EPA ID number itself (
EPA is proposing conforming amendments to § 262.41(b) replacing the current citation to export annual report requirements in § 262.56 with the new location for export annual report requirements in § 262.83(g).
EPA is proposing to remove 40 CFR part 262 subpart E and reserve for future use. The export requirements that are currently in 40 CFR part 262 subpart E that are still needed but not already covered under the current 40 CFR part 262 subpart H regulations are proposed to be moved to, and integrated in, the new 40 CFR part 262 subpart H regulations. For example, the definition in § 262.51 for EPA's AOC letter has been revised to more accurately reflect that the letter documents the consent of the importing country and any transit countries and moved to § 262.81 definitions. While the text of the Amended OECD 2001 Decision and the OECD regulations established in 1996 and amended in 2010 included exporters potentially receiving responses directly back from the countries of import and transit, in practice the notice and consent process under both 40 CFR part 262 subpart E and 40 CFR part 262 subpart H is solely a government to government process and all country responses are sent to EPA, which then documents those consents in the EPA AOC letter to the exporter. To more accurately reflect the actual process currently followed for both 40 CFR part 262 subparts E and H, Sections 262.53(e) and (f) detailing how EPA will forward complete notifications in conjunction with the Department of State as appropriate, address any claims of confidentiality made concerning any of the information listed in the notification, send the AOC letter to the exporter, and similarly send any country's objection or withdrawal of previous consent have been moved to § 262.83(b)(5) and (6). The text was modified slightly to reflect that the Amended 2001 OECD Decision requires that the country of import and the countries of transit all consent to the notification before shipment occurs. The older 40 CFR part 262 subpart E procedures technically allowed for issuance of the AOC letter based solely on the country of import's consent (see Section III.B.1 51 FR 28664 issued August 8, 1986). These changes reflect the actual process that currently takes place and should have no impact on exporters.
In addition, the list of OECD member countries that are party to the Amended 2001 OECD Decision in § 262.58(a)(1) has been moved to a new definition for “OECD Member countries” in § 262.81. The implicit requirement in § 262.52(c) that the exporter obtain an EPA AOC letter prior to shipment has been made explicit and moved to § 262.83(a)(3).
Renotification requirements originally listed in § 262.53(c) have been modified and moved to § 262.83(b)(4) to reflect that OECD notification procedures under the Amended 2001 OECD Decision do not exempt any changes to the original notification from needing consent to the changes. Under 40 CFR part 262 subpart E, changes to the exporter's phone number, decreases to the maximum requested export quantity and changes to the means of transport for the shipment were exempted from requiring renotification so long as nothing else in the notification changed. It is unclear how many such changes would be impacted by this requirement (
Currently, § 262.84(c) requires exporters to comply with § 262.54(a), (b), (c), (e) and (i) of the 40 CFR part 262 subpart E manifest requirements. Section § 262.54 has been moved to § 262.83(c) with some modifications to reflect that (1) the requirement to attach a copy of the EPA AOC letter has been replaced with the requirement to list the consent number specified in the EPA AOC letter for each waste listed on the RCRA manifest; (2) in cases where the exporter must instruct the transporter to return the waste to a facility in the United States and modify the manifest, such instructions must be made via email, fax or mail so that a written record of the instructions exist; and (3) the exporter needs to supply an extra copy of the RCRA manifest to the transporter only for cases where the exporter has chosen to use paper manifests rather than use the e-manifest system, as the requirement for the transporter to give a copy of the paper RCRA manifest to the CBP officer at the port of exit is being replaced with a requirement for the exporter to electronically file EPA-specific data in the AES to validate consent data prior to exit. The extra copy of the paper manifest is needed so that the transporter can send a copy of the manifest to the e-Manifest system using the allowable methods listed in 40 CFR 264.71(a)(2)(v), thus ensuring that the data from the paper manifest is captured in the e-manifest system.
The exception reporting, annual reporting and recordkeeping sections of 40 CFR part 262 subpart E are duplicative of current 40 CFR part 262 subpart H requirements, and so did not additionally need to be moved to the new 40 CFR part 262 subpart H requirements.
EPA requests comments on these proposed changes.
EPA is proposing to remove 40 CFR part 262 subpart F and reserve for future use. The import RCRA manifest requirements in 40 CFR part 262 subpart F are required under the current 40 CFR part 262 subpart H requirements, and are therefore proposed to be moved to § 262.84(c) in the new 40 CFR part 262 subpart H requirements, with the added requirement for the importer to note that the shipment is an import and the shipment's point of entry (
EPA requests comments on these proposed changes.
In general, EPA has reorganized and clarified exporter, importer, transporter and receiving facility requirements under 40 CFR part 262 subpart H. EPA's intent was to more accurately reflect the current procedures, expand applicability to all exports and imports of RCRA hazardous waste, and clearly spell out existing requirements for exports and imports. When the OECD procedures were originally incorporated into RCRA in 1996 and then updated in 2008, EPA largely used the text from the OECD Decision in the 40 CFR part 262 subpart H regulations. While this ensured that OECD procedures required under the 1992 OECD Decision and the Amended 2001 OECD Decision were fully reflected in the 40 CFR part 262 subpart H regulations, the resulting regulatory text made very generic references to country of export and country of import, without always clearly spelling out U.S. exporter and U.S. importer obligations and procedures. For example, under the current § 262.82(a)(2)(ii)(B), U.S. importers are required to assume the duties of the foreign exporter if the proposed waste shipment is RCRA hazardous waste but the country of export does not control the shipment as an export of hazardous waste. But the current 40 CFR part 262 subpart H requirements do not explicitly spell out what the U.S. importer would be required to comply with in such cases. Renotifications are not explicitly prohibited but neither are they explicitly allowed in the current 40 CFR part 262 subpart H, unlike the current 40 CFR part 262 subpart E. In practice, such renotifications have been done for exports subject to 40 CFR part 262 subpart H. EPA's intent in these changes and the others previously discussed is to clarify existing responsibilities for exports and imports, and not to increase requirements beyond that which is currently required in 40 CFR part 262 subpart H.
In the new 40 CFR part 262 subpart H, retitled to reflect covering all transboundary shipments of hazardous waste for recovery or disposal, the sections for general applicability, definitions, and general conditions not specific to exports or imports remain in § 262.80, § 262.81, and § 262.82 respectively. But EPA proposes to amend § 262.83 from covering generic notification and consent to covering exports of hazardous waste, and to amend § 262.84 from covering generic movement document requirements to covering imports of hazardous waste. Within the new § 262.83 are subsections for (a) general export requirements, (b) notification requirements, including renotifications and notifications for re-export to a third country, (c) RCRA manifest instructions for export shipments, (d) OECD movement document requirements for export shipments, (e) the exporter's duty to return or re-export (to a third country) export shipments of waste that cannot be managed in accordance with the terms of the contract or consent and cannot be managed at an alternate facility in the country of import, (f) contract requirements, (g) annual reporting requirements, (h) exception reporting requirements, and (i) recordkeeping requirements. Within the new § 262.84 are subsections for (a) general import requirements, (b) notification requirements that apply only when the country of export does not control the proposed shipment as an export of hazardous waste, (c) RCRA manifest instructions for import shipments, (d) OECD movement document requirements for import shipments, (e) duty to return or re-export (to a third country) import shipments of waste that cannot be managed in accordance with the terms of the contract or consent and cannot be
Under the revised definitions section, the older 40 CFR part 262 subpart H “exporter” definition has been broken into [U.S.] “exporter” and “foreign exporter”. Similarly, the “importer” definition has been split into [U.S.] importer and foreign importer, as has receiving facility. As under the current 40 CFR part 262 subpart H, exporters must be domiciled in the United States. To reflect that Canadian regulations uses wording for several recovery and disposal operation codes that differ from the description used in the OECD recovery and disposal codes, the list of operation codes included in the definitions for recovery and disposal codes have been revised to reflect that such Canada-only codes will start with a “RC” or a “DC”.
For export and import notifications, the use of (1) the ISO standard 3166 country name 2-digit code and (2) OECD/Basel competent authority code are required to be listed for the relevant country of import or export and their respective competent authorities. Use of these codes is widely accepted internationally and the ISO standard 3166 country name 2-digit code is consistent with the country codes required in the AES.
In cases where shipments cannot be delivered to the foreign receiving facility for any reason, the exporter is currently required to submit an exception report to EPA. Under the proposed revisions, the exporter is now required to submit the exception report to EPA within 30 days of the transporter missing the 45-day deadline to confirm the departure of the shipment from the United States or the foreign receiving facility missing the 90-day deadline to confirm receipt of the shipment, and required to submit the exception report to EPA within 30 days of being notified of the need to return the shipment, or one day prior to the initiation of the return shipment, whichever is sooner. EPA requests comments on whether the 30-day period is sufficient to ascertain what has happened to the export shipment.
EPA requests comments on the reorganization and text changes, and whether additional revisions are needed to further clarify requirements for exports and imports while still ensuring compliance with procedures equivalent to those required for shipments currently subject to 40 CFR part 262 subpart H.
As with the proposed changes to part 261 sections, EPA is proposing changes to export and import requirements in 40 CFR part 262 subpart H to reflect that export notifications, export renotifications, export annual reports, export exception reports, export confirmations of receipt, export certifications of recovery or disposal, import notifications, import confirmations of receipt, and import certifications of recovery or disposal being submitted to EPA must be submitted electronically using EPA's hazardous waste import/export database on or after the effective date of the final rule. EPA requests comments on whether any transition period for electronic submittal into EPA's system is needed, an appropriate length for a transition period if one is needed, and whether any exporter would need a waiver from electronic filing requirements due to lack of broadband access or other unique circumstances that would make electronic filing an undue financial burden.
Additionally, EPA is similarly proposing to add the requirement in § 262.83(a)(6) that exporters or U.S. authorized agents must file EPA-required information into the AES prior to departure in accordance with the deadlines specified in 15 CFR 30.4 (
EPA is proposing conforming amendments to revise the instructions for Item 16 of the RCRA manifest instructions to reflect that transporters carrying export shipments will no longer be required to deliver a signed and dated copy of the RCRA manifest to CBP at the port of exit. This requirement is being replaced with the exporter requirement to file EPA consent-specific information as part of their Electronic Export Information filing in the AES so that the consent can be validated within the AES prior to departure.
EPA proposes to delete the last paragraph in the note to § 263.10(a). The last paragraph was included as part of the note in the original 1980 RCRA rulemaking to ease compliance, but was not removed or revised during the 1986 regulation amendments to reflect additional requirements in part 263, such as the export provisions in § 263.20(a). Additionally, the last paragraph cites obsolete regulatory sections in U.S Department of Transportation regulations. EPA consulted with U.S. Department of Transportation (DOT), and DOT approves deleting the last paragraph in the note.
Additionally, EPA proposes conforming amendments to § 263.10(d) to reflect the expanded and clarified applicability of 40 CFR part 262 subpart H requirements and the new 40 CFR part 262 subpart H sections for OECD movement document requirements for export and import shipments. EPA also proposes conforming amendments to § 263.20(a)(2), (c), (e)(2), (f)(2), and (g) to reflect that transporters will only be
EPA requests comments on these changes and whether any additional clarification is needed.
EPA proposes conforming amendments to § 264.12 to reflect the expanded and clarified applicability of 40 CFR part 262 subpart H requirements, and the importer requirements in § 262.84. Additionally, EPA proposes deleting the requirement in § 264.12(a)(1) as it will be duplicative of notifications submitted by either the foreign exporter or the U.S. importer in cases where the country of export does not control the shipment as a hazardous waste export as this requirement would now, in this rule, apply to hazardous waste imports and exports with all foreign countries (including Canada and Mexico), and not just with OECD countries.
Under the manifest requirements in § 264.71, EPA proposes conforming amendments to reflect the expanded applicability of 40 CFR part 262 subpart H, and further proposes replacing the current requirement (to attach a copy of the relevant EPA documentation of consent to the RCRA manifest) with the new requirement (to list the consent number for each waste from the relevant EPA documentation of consent in Item 14 of the RCRA manifest followed by the relevant list number for the waste from block 9b in parentheses) before submitting the manifest within thirty (30) days of shipment delivery to confirm receipt. This conforming amendment should enable compliance even when using the e-manifest system in the future, as the consent numbers could be typed into the text field for Item 14. Facilities using the e-manifest system to submit the RCRA manifest to confirm receipt would not need to send a separate copy to EPA's International Compliance Assurance Division. As under current 40 CFR part 262 subpart H procedures, facilities would need to submit copies of the signed movement document to confirm tracking from the shipment initiation in the country of export to the arrival at the U.S. facility, using the allowable submittal methods listed in 40 CFR part 262 subpart H.
EPA requests comments on these changes and whether any additional clarification is needed.
EPA similarly proposes conforming amendments to § 265.12 to reflect the expanded and clarified applicability of 40 CFR part 262 subpart H requirements, and the importer requirements in § 262.84. Additionally, EPA proposes deleting the requirement in § 265.12(a)(1) as it is duplicative of notifications submitted by either the foreign exporter or the U.S. importer in cases where the country of export does not control the shipment as a hazardous waste export under 40 CFR part 262 subpart H (which will now apply to hazardous waste imports and exports with all foreign countries (including Canada and Mexico), and not with OECD countries only).
Under the manifest requirements in § 265.71, EPA proposes conforming amendments to reflect the expanded applicability of 40 CFR part 262 subpart H, and further proposes replacing the current requirement (to attach a copy of the relevant EPA documentation of consent to the RCRA manifest) with the new requirement (to list the consent number for each waste from the relevant EPA documentation of consent in Item 14 of the RCRA manifest followed by the relevant list number for the waste from block 9b in parentheses) before submitting the manifest within thirty (30) days of shipment delivery to confirm receipt. This conforming amendment should enable compliance even when using the e-manifest system in the future, as the consent numbers could be typed into the text field for Item 14. Facilities using the e-manifest system to submit the RCRA manifest to confirm receipt would not need to send a separate copy to EPA's International Compliance Assurance Division. As under current 40 CFR part 262 subpart H procedures, facilities would need to submit copies of the signed movement document to confirm tracking from the shipment initiation in the country of export to the arrival at the U.S. facility, using the allowable submittal methods listed in 40 CFR part 262 subpart H.
EPA requests comments on these changes and whether any additional clarification is needed.
EPA proposes conforming amendments to § 266.70, § 266.80(a) to reflect the expanded and clarified applicability of 40 CFR part 262 subpart A EPA ID number requirements and 40 CFR part 262 subpart H requirements to exports and imports of precious metal bearing hazardous waste and spent lead-acid batteries. With respect to spent lead-acid batteries, RCRA manifesting will continue to not be required, but the movement document requirements will apply to import and export shipments. Canadian requirements and current 40 CFR part 262 subpart H requirements already impose the movement document requirements upon U.S. recycling facilities, so this change should only result in additional burden for import shipments of spent lead-acid batteries from Mexico and non-OECD countries. SLAB exporters and importers will be required obtain EPA ID numbers, but this should impact only those SLAB exporters and importers who do not otherwise generate, transport, treat, store or dispose of hazardous wastes.
EPA requests comments on these changes, the number of shipments under 40 CFR part 266 subparts F and G impacted by these changes, and whether any additional clarification is needed.
EPA proposes conforming amendments to the manifest requirements in § 267.71 to reflect the expanded applicability of 40 CFR part 262 subpart H, and further proposes requiring the facility to list the consent number for each waste from the relevant EPA documentation of consent in Item 14 of the RCRA manifest (followed by the relevant list number for the waste from block 9b in parentheses) before submitting the RCRA manifest to confirm receipt. This conforming amendment should enable compliance even when using the e-manifest system in the future, as the consent numbers could be typed into the text field for Item 14. Facilities using the e-manifest system to submit the RCRA manifest to confirm receipt would not need to send a separate copy to EPA's International
EPA requests comments on these changes and whether any additional clarification is needed.
EPA proposes conforming amendments to § 271.1, § 271.10 and § 271.11 to reflect the proposed changes to 40 CFR part 262 subparts E, F, and H, and the transfer of required export and import responsibilities to the new 40 CFR part 262 subpart H. For a more detailed discussion on EPA's expected impact to State authorization as a result of the proposed changes, please see the Authorized State discussion in Section V.B of this action.
EPA requests comments on the impact of these changes, and whether any additional clarification is needed.
EPA proposes conforming amendments to § 273.20, § 273.40, § 273.56, and § 273.70 to reflect the proposed expanded and clarified applicability of 40 CFR part 262 subpart H requirements to small and large quantity handlers exporting universal waste, transporters and receiving facilities. Additionally, EPA proposes to revise § 273.39 and § 273.62 to explicitly allow large quantity handlers and destination facilities to use the movement document to comply with the record requirements for individual universal waste shipment tracking.
EPA requests comments on the impact of these changes, the number of universal waste shipments affected by these changes, and whether any additional clarification is needed.
The Agency's economic assessment conducted in support of this proposed action evaluates costs, cost savings, benefits, and other impacts, such as environmental justice, children's health, unfunded mandates, regulatory takings, and small entity impacts. To conduct this analysis, we developed and implemented a methodology for examining impacts, and followed appropriate guidelines and procedures for examining equity considerations, children's health, and other impacts.
This economic analysis assesses the costs and cost savings of the proposed rule. It estimates the unit costs for each provision of the rule and applies these values to the number of affected entities, and it employs a “model entity” approach to estimate the cost and cost savings associated with the proposed rule, applying average costs by entity type (
The analysis conducted for this proposal is a simple cost assessment. We do not attempt to estimate the social costs and benefits associated with this action. This is consistent with Executive Order 12866, which requires a full Regulatory Impact Analysis only for actions having an estimated impact on society of greater than $100 million per year.
Industry will incur costs to familiarize itself with the requirements of the rule and comply with each of the provisions described in the summary of the proposed rule and changes. The most significant costs to industry under the proposed rule are associated with the movement document and the confirmation of recovery/disposal requirements. As a result of the rule, the annualized costs to industry are estimated to be about $1.5 million with roughly $450,000 in annualized cost savings, or $1.0 million in annualized net costs, using a 7 percent discount rate.
EPA will also incur costs review and maintain records of movement documents and confirmations of recovery or disposal, issue EPA ID numbers to recognized traders, and develop and maintain enhancements to WIETS to facilitate electronic submittal of export and import-related documents. The one-time, initial WIETS development costs will be between approximately $230,000 and $380,000. After the electronic system is fully operational (
In addition to the $450k in savings to the industry and $230k to the Agency, there are a number of qualitative benefits associated with the rule. Due to data availability, EPA could not quantify all the benefits, such as human health benefits from increased compliance with the rule. In addition, the rule will:
• Enhance EPA tracking of exporter, importer, and recognized trader activities;
• Reduce risks associated with recovery and disposal of hazardous wastes;
• Improve the ability to acquire information regarding the quantities of hazardous waste shipments exported from the United States and the destination facilities to which the shipments are exported;
• Increase regulatory efficiency;
• Achieve full consistency with export and import requirements for OECD countries for all exports and imports with Canada, Mexico and non-OECD countries; and
• Time savings for industry and EPA related to electronic submittal.
Under section 3006 of RCRA, EPA may authorize qualified States to administer their own hazardous waste programs in lieu of the federal program within the State. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized States have primary enforcement responsibility. The standards and requirements for State authorization are found at 40 CFR part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that State. The federal requirements no longer applied in the authorized State, and EPA could not issue permits for any facilities in that
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized States at the same time that they take effect in unauthorized States. EPA is directed by the statute to implement these requirements and prohibitions in authorized States, including the issuance of permits, until the State is granted authorization to do so. While States must still adopt HSWA related provisions as State law to retain final authorization, EPA implements the HSWA provisions in authorized States until the States do so.
Authorized States are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. RCRA section 3009 allows the States to impose standards more stringent than those in the federal program (see also 40 CFR 271.1). Therefore, authorized States may, but are not required to, adopt federal regulations, both HSWA and non-HSWA, that are considered less stringent than previous federal regulations.
Because of the federal government's special role in matters of foreign policy, EPA does not authorize States to administer Federal import/export functions in any section of the RCRA hazardous waste regulations. This approach of having Federal, rather than State, administering of the import/export functions promotes national coordination, uniformity and the expeditious transmission of information between the United States and foreign countries.
Although States do not receive authorization to administer the Federal government's export functions in 40 CFR part 262 subpart E, import functions in 40 CFR part 262 subpart F, import/export functions in 40 CFR part 262 subpart H, or the import/export relation functions in any other section of the RCRA hazardous waste regulations, State programs are still required to adopt the provisions in this rule to maintain their equivalency with the Federal program (see 40 CFR 271.10(e) which will also be amended in this rule).
This rule contains many amendments to 40 CFR part 262 subpart H, both for clarity and organization, and replaces the regulations that are currently in 40 CFR part 262 subparts E and F with the more stringent 40 CFR part 262 subpart H regulations. The rule also contains conforming import and export-related amendments to 40 CFR parts 260, 261, 262, 263, 264, 265, 266, 267, 271 and 273, almost all of which are more stringent.
The States that have already adopted 40 CFR part 262 subparts E, F and H, 40 CFR part 263, 40 CFR part 264, 40 CFR part 265, and any other import/export related regulations must adopt the provisions listed above.
When a State adopts the import/export provisions in this rule (if final), they must not replace Federal or international references or terms with State references or terms.
The provisions of this rule, if final, would take effect in all States on the effective date of the rule, since these import and export requirements will be administered by the Federal government as a foreign policy matter, and will not be administered by States.
Finally, EPA would make conforming amendments to 40 CFR 271.10(e) of EPA's state authorization regulations to remove the references to 40 CFR part 262 subparts E and F, and to replace them with a reference to 40 CFR part 262 subpart H. As currently written, state programs are required to provide “requirements respecting international shipments which are equivalent to those at 40 CFR part 262 subparts E and F, except that . . .” This current language would no longer be accurate since this rule, if final, would eliminate 40 CFR part 262 subparts E and F and replace them with 40 CFR part 262 subpart H, along with any other import/export related regulations.
This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review, because it may raise novel legal or policy issues [3(f)(4)] arising out of legal mandates, although it is not economically significant. Any changes made in response to OMB recommendations have been documented in the docket. The EPA prepared an economic analysis of the potential costs and benefits associated with this action. This analysis, titled “Economic Assessment: EPA's 2014 RCRA Proposed Rule Hazardous Waste Export-Import Revisions,” is available in the docket. Interested persons, including those persons currently importing and exporting hazardous waste, are encouraged to read and comment on the accuracy of the assumptions and the burden estimates presented in this document (
The information collection activities in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2519.01. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.
The requirements covered in this ICR are necessary for EPA to oversee the international trade of hazardous wastes. EPA is promulgating the above regulatory changes/amendments under the authority of Sections 1006, 1007, 2002(a), 3001 through 3010, 3013 through 3015, and 3017 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6905, 6906, 6912, 6921 through 6930, 6934, and 6938.
The Office of Enforcement and Compliance Assurance, U.S. EPA, uses the information provided by each U.S. exporter, receiving facility, transporter, and recognized trader to determine compliance with the applicable RCRA regulatory provisions. In addition, the information is used to determine the number, origin, destination, and type of exports from and imports to the U.S. for tracking purposes and for reporting to the OECD. This information also is used to assess the efficiency of the program.
Most of the information required by the regulations covered by this ICR is not available from any source but the respondents. In certain occasions, such as the notification of intent to export hazardous waste, EPA allows the primary exporter to submit one notice that covers activities over a period of twelve months.
Except as described below, the proposed rule does not result in the collection of duplicate data. Although some of the information required for the
In certain cases, some of the information on the tracking document also may be collected by the Department of Commerce in its Census Bureau form titled “Shipper's Export Declaration” (15 CFR part 30). This form, which is required for all shipments that have a value in excess of $2,500, must be filed at the U.S. port of exit, similar to the current export requirements. However, the information currently contained in the Census Bureau's form is not adequate for EPA's purpose of tracking and identifying the export of hazardous waste from the U.S. For example, the wastes are identified by tariff codes that are less precise than the waste codes required by the tracking document.
Section 3007(b) of RCRA and 40 CFR part 2, subpart B, which defines EPA's general policy on public disclosure of information, contain provisions for confidentiality. However, the Agency does not anticipate that businesses will assert a claim of confidentiality covering all or part of the proposed rule. If such a claim were asserted, EPA must and will treat the information in accordance with the regulations cited above. EPA also will assure that this information collection complies with the Privacy Act of 1974 and OMB Circular 108.
There are no capital costs associated with the proposed rule.
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.
Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are exporters, importers, transporters, and recognized traders. The Agency has determined that between 30 and 38 percent of exporters, importers, and recognized traders, and approximately 80 percent of transporters, are small entities, for a total of 590 small entities, may experience an impact of approximately $40 to $22,000 per year, or between 0.1 and 0.3 percent of annual revenues. Thus, the average costs of the proposed rule, on a per entity basis, will not exceed one percent of annual revenues for any respondent. Details of this analysis are presented in the document titled “Economic Assessment: EPA's 2014 RCRA Proposed Rule Hazardous Waste Export-Import Revisions,” which is available in the docket.
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. Further, UMRA does not apply to the portions of this action concerning application of OECD import and export procedures because those portions are necessary for the national security or the ratification or implementation of international treaty obligations (
This action does not have federalism implications because the state and local governments do not administer the export and import requirements under RCRA. 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. No exporters, importers or transporters affected by this action are known to be owned by Tribal governments or located within or adjacent to Tribal lands. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. 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. The procedural requirements in this action should prevent mismanagement of hazardous wastes in foreign countries and better document proper management of imported hazardous wastes in the United States.
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 will have little to no effect on the supply, distribution, or use of energy, as this action is intended to prevent mismanagement of hazardous wastes in foreign countries and better
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because this action should prevent mismanagement of hazardous wastes in foreign countries and better document proper management of imported hazardous wastes in the United States. Specifically, this action is designed to increase tracking of individual hazardous waste import and export shipments, improve regulatory efficiency and improve information collection on imports and exports of hazardous wastes subject to RCRA notice and consent requirements.
Executive Order 13659, titled “Streamlining the Export/Import Process for America's Business” (79 FR 10657, February 25, 2014), establishes federal executive policy on improving the technologies, policies, and other controls governing the movement of goods across our national borders. It directs participating agencies to have capabilities, agreements, and other requirements in place by December 31, 2016, to utilize the ITDS and supporting systems as the primary means of receiving from users the standard set of data and other relevant documentation (exclusive of applications for permits, licenses, or certifications) required for the release of imported cargo and clearance of cargo for export. To meet the requirement of the Executive Order, portions of this proposed action directly propose requiring exporters subject to RCRA export consent requirements to electronically file consent related data within the AES, the supporting IT system for exports under the ITDS. Additionally, this action improves regulatory efficiency related to hazardous waste imports and exports by consolidating import and export procedures for hazardous waste into one set of procedures that are widely accepted by other countries, and by replacing existing submittals to EPA of paper documentation related to hazardous waste imports and exports with electronic submittal into EPA's hazardous waste import/export database. Thus, this action is consistent with the purpose of Executive Order 13659, and is a necessary first step in complying with it.
On February 8, 2012, the Secretariat for the CEC
The CEC's review of the EPA and Census data found that the Census data on SLAB exports to Mexico in 2011 was 47.35 million kg lower than the data from EPA, which could indicate that exporters of SLABs may not be correctly applying the proper harmonized tariff code. Additionally, the CEC's review found that 2.1 million kg of SLABs were exported to 47 countries where EPA had no record of having obtained consent from those countries to receive SLABs while 571.55 million kg of SLABs total were exported with EPA and the receiving country's consent.
The final report recommended that the U.S. require the use of manifests for each international shipment of SLABs, and require exporters to obtain a certificate of recovery from recycling facilities to better track individual shipments and thereby ensure that shipments go to the approved destination facility and are recycled in a timely manner. Further, the report recommended that the U.S. explore establishing a system to allow exporters to submit export annual report data electronically to reduce the time and resources needed by the agency to manually enter the data from the paper export annual reports. Lastly, the report recommended that the U.S. work to share the import and export data maintained by its respective environmental and border agencies to identify trends that may require a policy response or that may raise compliance issues.
After reviewing the CEC report, EPA independently compared SLAB export annual report data submitted to EPA and Census data on exports of SLABs being shipped for recovery of lead
Subsequent efforts to compare EPA's export annual report data and U.S. Census Bureau data for other exported hazardous wastes proved to be much more difficult. Exports of a number of chemical industry related wastes are not currently required to report exported quantities based on their Schedule B commodity codes.
When hazardous waste is shipped across multiple countries to be disposed or recycled, there can be a higher risk of mismanagement that could result in damage to the environment and human health in the surrounding communities. This higher risk is due to the increased number of custodial transfers that international shipments incur, the entry and exit procedures (and associated temporary storage) at the ports and border crossings for the countries of export, transit and import, and the varying levels of environmental controls and worker safety practices at the destination facilities. The risk is highest when shipments are sent to unapproved facilities. According to the executive summary for the October 2012 OECD publication titled “Illegal Trade in Environmentally Sensitive Goods”
The concerns with lead exposures from SLAB recycling in other countries have been relatively well documented, and were generally discussed in the October 6, 2008, rulemaking proposing to make SLAB exports subject to notice and consent requirements (see section D.2 in 74 FR 58388). The 2013 CEC report also discussed in some detail the potential damage to human health and the environment when the lead exposures are not kept to a minimum. Domestic examples of damage from mismanagement at recycling operations were examined in the Definition of Solid Waste proposed rule published on July 22, 2011 (see 76 FR 44094), and in the 2014 final rule published on January 13, 2015 (see 80 FR 1694). In Exhibit 8B of the Regulatory Impact Analysis for EPA's 2014 Revisions to the Industrial Recycling Exclusions of the RCRA Definition of Solid Waste,
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Incorporation by reference.
Environmental protection, Hazardous materials, Intergovernmental relations, Recycling, Waste treatment and disposal.
Environmental protection, Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, International organizations, Labeling, Packaging and containers, Recycling, Reporting and recordkeeping requirements.
Environmental protection, Exports, Hazardous materials transportation.
Environmental protection, Hazardous waste, Imports, Packaging and containers, Reporting and recordkeeping requirements.
Environmental protection, Hazardous waste, Imports, Packaging and containers, Reporting and recordkeeping requirements.
Environmental protection, Exports, Hazardous recyclable materials, Imports, Precious metal recovery, Recycling, Spent Lead-Acid Batteries, Waste treatment and disposal.
Environmental protection, Hazardous waste, Imports, Reporting and recordkeeping requirements
Environmental protection, Administrative practice and procedure, Hazardous materials transportation, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
Environmental protection, Exports, Imports, Universal waste.
For the reasons stated in the preamble, title 40, chapter 1 of the Code of Federal Regulations is proposed to be amended as follows.
42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 6937, 6938, 6939, and 6974.
(g) The following materials are available for purchase from the Organization for Economic Cooperation and Development, Environment Directorate, 2 rue André Pascal, F-75775 Paris Cedex 16, France.
(1) The OECD waste lists, as set forth in Annex B (“Green List”) and Annex C (“Amber List”) (collectively “OECD waste lists”) of the 2009 “Guidance Manual for the Implementation of Council Decision C(2001)107/FINAL, as Amended, on the Control of Transboundary Movements of Wastes Destined for Recovery Operations,” IBR approved for 262.82(a), 262.83(b), 262.83(d), 262.83(g), 262.84(b), 262.84(d) of this chapter.
42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 6938.
The revisions and additions read as follows:
(d)
(4) In order to qualify for the exemption in paragraphs (d)(1)(i) and (ii) of this section, samples that will be exported to a foreign laboratory or that will be imported to a U.S. laboratory from a foreign source must weigh no more than 25 kg.
(e)
(4) In order to qualify for the exemption in paragraph (e)(1)(i) of this section, samples that will be exported to a foreign laboratory or testing facility, or that will be imported to a U.S. laboratory or testing facility from a foreign source must weigh no more than 25 kg.
(a) * * *
(3) * * *
(i) Industrial ethyl alcohol that is reclaimed except that exports and imports of such recyclable materials must comply with the requirements of 40 CFR part 262, subpart H.
(5) Hazardous waste that is exported or imported for purpose of recovery is subject to the requirements of 40 CFR part 262, subpart H.
(a) * * *
(5) * * *
(ii) Notifications must be submitted electronically using EPA's hazardous waste import/export database.
(v) The export of CRTs is prohibited unless all of the following occur:
(A) The receiving country consents to the intended export. When the receiving country consents in writing to the receipt of the CRTs, EPA will forward an Acknowledgment of Consent to Export CRTs to the exporter. Where the receiving country objects to receipt of the CRTs or withdraws a prior consent, EPA will notify the exporter in writing. EPA will also notify the exporter of any responses from transit countries.
(B) The exporter or a U.S. authorized agent:
(
(
(
(
(
(
(
(vi) Quantity of waste in shipment and units for reported quantity, if required reporting units established by value for the reported commodity classification number are in units of weight or volume per 15 CFR 30.6(a)(15); or
(vii) EPA net quantity reported in units of kilograms, if required reporting units established by value for the reported commodity classification number are not in units of weight or volume.
(vi) When the conditions specified on the original notification change, the exporter must provide EPA with a written renotification of the change using the allowable methods listed in paragraph (a)(5)(ii) of this section, except for changes to the telephone number in paragraph (a)(5)(i)(A) of this section and decreases in the quantity indicated pursuant to paragraph (a)(5)(i)(C) of this section. The shipment cannot take place until consent of the receiving country to the changes has been obtained (except for changes to information about points of entry and departure and transit countries pursuant to paragraphs (a)(5)(i)(D) and (a)(5)(i)(H) of this section) and the exporter of CRTs receives from EPA a copy of the Acknowledgment of Consent to Export CRTs reflecting the receiving country's consent to the changes.
(xi) Annual reports must be submitted to the office listed using the allowable methods specified in paragraph (a)(5)(ii) of this section. Exporters must keep
42 U.S.C 6906, 6912, 6922-6925, 6937, and 6938.
(d) Any person who exports or imports hazardous wastes must comply with § 262.12 and subpart H of this part.
(d) A recognized trader must not arrange for import or export of hazardous waste without having received an EPA identification number from the Administrator.
(b) Exports of hazardous waste to foreign countries are not required to be reported on the Biennial Report form. A separate annual report requirement is set forth at 40 CFR 262.83(g) for hazardous waste exporters.
(a) The requirements of this subpart apply to transboundary movements of hazardous wastes.
(b) Any person (including exporter, importer, disposal facility operator, or recovery facility operator) who mixes two or more wastes (including hazardous and non-hazardous wastes) or otherwise subjects two or more wastes (including hazardous and non-hazardous wastes) to physical or chemical transformation operations, and thereby creates a new hazardous waste, becomes a generator and assumes all subsequent generator duties under RCRA and any exporter duties, if applicable, under this subpart.
In addition to the definitions set forth at 40 CFR 260.10, the following definitions apply to this subpart.
D1 Release or Deposit into or onto land, other than by any of operations D2 through D5 or D12.
D2 Land treatment, such as biodegradation of liquids or sludges in soils.
D3 Deep injection, such as injection into wells, salt domes or naturally occurring repositories.
D4 Surface impoundment, such as placing of liquids or sludges into pits, ponds or lagoons.
D5 Specially engineered landfill, such as placement into lined discrete cells which are capped and isolated from one another and the environment.
D6 Release into a water body other than a sea or ocean, and other than by operation D4.
D7 Release into a sea or ocean, including sea-bed insertion, other than by operation D4.
D8 Biological treatment not specified elsewhere in operations D1 through D12, which results in final compounds or mixtures which are discarded by means of any of operations D1 through D12.
D9 Physical or chemical treatment not specified elsewhere in operations D1 through D12, such as evaporation, drying, calcination, neutralization, or precipitation, which results in final compounds or mixtures which are discarded by means of any of operations D1 through D12.
D10 Incineration on land.
D11 Incineration at sea.
D12 Permanent storage.
D13 Blending or mixing, prior to any of operations D1 through D12.
D14 Repackaging, prior to any of operations D1 through D13.
D15 (or DC17 for transboundary movements with Canada only) Interim Storage, prior to any of operations D1 through D12.
DC15 Release, including the venting of compressed or liquified gases, or treatment, other than by any of operations D1 to D12 (for transboundary movements with Canada only).
DC16 Testing of a new technology to dispose of a hazardous waste (for transboundary movements with Canada only).
R1 Use as a fuel (other than in direct incineration) or other means to generate energy.
R2 Solvent reclamation/regeneration.
R3 Recycling/reclamation of organic substances which are not used as solvents.
R4 Recycling/reclamation of metals and metal compounds.
R5 Recycling/reclamation of other inorganic materials.
R6 Regeneration of acids or bases.
R7 Recovery of components used for pollution abatement.
R8 Recovery of components used from catalysts.
R9 Used oil re-refining or other reuses of previously used oil.
R10 Land treatment resulting in benefit to agriculture or ecological improvement.
R11 Uses of residual materials obtained from any of the operations numbered R1 through R10 or RC14 (for transboundary shipments with Canada only).
R12 Exchange of wastes for submission to any of the operations numbered R1 through R11 or RC14 (for transboundary shipments with Canada only).
R13 Accumulation of material intended for any operation numbered R1 through R12 or RC14 (for transboundary shipments with Canada only).
RC14 Recovery or regeneration of a substance or use or re-use of a recyclable material, other than by any of operations R1 to R10 (for transboundary shipments with Canada only).
RC15 Testing of a new technology to recycle a hazardous recyclable material (for transboundary shipments with Canada only).
RC16 Interim storage prior to any of operations R1 to R11 or RC14 (for transboundary shipments with Canada only).
(a)
(1)
(ii) Green wastes that are hazardous wastes are subject to the requirements of this subpart.
(2)
(A) For exports, the exporter must comply with § 262.83.
(B) For imports, the recovery or disposal facility and the importer must comply with § 262.84.
(ii) Amber wastes that are not hazardous wastes, but are considered hazardous by the other country are subject to the Amber control procedures in the country that considers the waste hazardous, and are not subject to the requirements of this subpart. All responsibilities of the importer or exporter shift to the foreign importer or foreign exporter in the other country that considers the waste hazardous unless the parties make other arrangements through contracts.
Some Amber list wastes are not listed or otherwise identified as hazardous under RCRA, and therefore are not subject to the requirements of this subpart. Regardless of the status of the waste under RCRA, however, other Federal environmental statutes (
(3) Mixtures of wastes. (i) A Green waste that is mixed with one or more other Green wastes such that the resulting mixture is not hazardous waste is not subject to the requirements of this subpart.
The regulated community should note that some countries may require, by domestic law, that mixtures of different Green wastes be subject to the Amber control procedures.
(ii) A Green waste that is mixed with one or more Amber wastes, in any amount, de minimis or otherwise, or a mixture of two or more Amber wastes, such that the resulting waste mixture is hazardous waste is subject to the requirements of this subpart.
The regulated community should note that some countries may require, by domestic law, that a mixture of a Green waste and more than a de minimis amount of an Amber waste or a mixture of two or more Amber wastes be subject to the Amber control procedures.
(4) Wastes not yet assigned to an OECD waste list are eligible for transboundary movements, as follows:
(i) If such wastes are hazardous wastes, such wastes are subject to the requirements of this subpart.
(ii) If such wastes are not hazardous wastes, such wastes are not subject to the requirements of this subpart.
(b) General conditions applicable to transboundary movements of hazardous waste:
(1) The hazardous waste must be destined for recovery or disposal operations at a facility that, under applicable domestic law, is operating or is authorized to operate in the country of import;
(2) The transboundary movement must be in compliance with applicable international transport agreements; and
These international agreements include, but are not limited to, the Chicago Convention (1944), ADR (1957), ADNR (1970), MARPOL Convention (1973/1978), SOLAS Convention (1974), IMDG Code (1985), COTIF (1985), and RID (1985).
(3) Any transit of hazardous waste through one or more countries must be conducted in compliance with all applicable international and national laws and regulations.
(c) Duty to return wastes subject to the Amber control procedures during transit through the United States. When a transboundary movement of hazardous wastes transiting the United States and subject to the Amber control procedures does not comply with the requirements of the notification and movement documents or otherwise constitutes illegal shipment, and if alternative arrangements cannot be made to recover or dispose of these wastes in an environmentally sound manner, the waste must be returned to the country of export. The U.S. transporter must inform EPA at the specified mailing address in paragraph 262.82(e) of the need to return the shipment. EPA will then inform the competent authority of the country of export, citing the reason(s) for returning the waste. The U.S. transporter must complete the return within ninety (90) days from the time EPA informs the country of export of the need to return the waste, unless informed in writing by EPA of another timeframe agreed to by the concerned countries.
(d) Laboratory analysis exemption. Export or import of a hazardous waste sample is exempt from the requirements of this subpart if the sample is destined for laboratory analysis to assess its physical or chemical characteristics, or to determine its suitability for recovery or disposal operations, does not exceed twenty-five kilograms (25 kg) in quantity, and is appropriately packaged and labeled, and complies with the conditions of 40 CFR 260.4(d) or (e).
(e) EPA Address for submittals by postal mail or hand delivery. Submittals required in this subpart to be made by postal mail or hand delivery should be sent to the following addresses:
(1) For postal mail delivery, the Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division (2254A), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460.
(2) For hand-delivery, the Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division, Environmental Protection Agency, William Jefferson Clinton South Bldg., Room 6144, 12th St. and Pennsylvania Ave. NW., Washington, DC 20004.
(a)
(1) The exporter complies with the contract requirements in paragraph (f) of this section;
(2) The exporter complies with the notification requirements in paragraph (b) of this section;
(3) The exporter receives an AOC from EPA documenting consent from the countries of import and transit (and original country of export if exporting previously imported hazardous waste);
(4) The exporter ensures compliance with the movement documents requirements in paragraph (d) of this section;
(5) The exporter ensures compliance with the manifest instructions for export shipments in paragraph (c) of this section; and
(6) The exporter or a U.S. authorized agent:
(i) Submits Electronic Export Information (EEI) for each shipment to the Automated Export System (AES), under the International Trade Data System (ITDS) platform, in accordance with 15 CFR 30.4(b).
(ii) Includes the following items in the EEI, along with the other information required under 15 CFR 30.6:
(A) EPA license code;
(B) Commodity classification code for each hazardous waste per 15 CFR 30.6(a)(12);
(C) EPA consent number for each hazardous waste;
(D) Country of ultimate destination code per 15 CFR 30.6(a)(5);
(E) Date of export per 15 CFR 30.6(a)(2);
(F) RCRA hazardous waste manifest tracking number, if required;
(G) Quantity of each hazardous waste in shipment and units for reported quantity, if required reporting units established by value for the reported commodity classification number are in units of weight or volume per 15 CFR 30.6(a)(15); or
(H) EPA net quantity for each hazardous waste reported in units of kilograms if solid or in units of liters if liquid, if required reporting units established by value for the reported commodity classification number are not in units of weight or volume.
(b)
(i) Exporter name and EPA identification number, address, telephone, fax numbers, and email address;
(ii) Foreign receiving facility name, address, telephone, fax numbers, email address, technologies employed, and the applicable recovery or disposal operations as defined in § 262.81;
(iii) Foreign importer name (if not the owner or operator of the foreign receiving facility), address, telephone, fax numbers, and email address;
(iv) Intended transporter(s) and/or their agent(s); address, telephone, fax, and email address;
(v) “US” as the country of export name, “USA01” as the relevant competent authority code, and the intended U.S. port(s) of exit;
(vi) The ISO standard 3166 country name 2-digit code, OECD/Basel competent authority code, and the ports of entry and exit for each country of transit;
(vii) The ISO standard 3166 country name 2-digit code, OECD/Basel competent authority code, and port of entry for the country of import;
(viii) Statement of whether the notification covers a single shipment or multiple shipments;
(ix) Start and End Dates requested for transboundary movements;
(x) Means of transport planned to be used;
(xi) Description(s) of each hazardous waste, including whether each hazardous waste is regulated universal waste under 40 CFR part 273, or the state equivalent, spent lead-acid batteries being exported for recovery of lead under 40 CFR part 266, subpart G, or the state equivalent, or industrial ethyl alcohol being exported for reclamation under 40 CFR 261.6(a)(3)(i), or the state equivalent, estimated total
(xii) Specification of the recovery or disposal operation(s) as defined in § 262.81.
(xiii) Certification/Declaration signed by the exporter that states:
I certify that the above information is complete and correct to the best of my knowledge. I also certify that legally enforceable written contractual obligations have been entered into and that any applicable insurance or other financial guarantee is or shall be in force covering the transboundary movement.
(2) Exports to pre-consented recovery facilities in OECD Member countries. If the recovery facility is located in an OECD member country and has been pre-consented by the competent authority of the OECD member country to recover the waste sent by exporters located in other OECD member countries, the notification may cover up to three years of shipments. Notifications proposing export to a pre-consented facility in an OECD member country must include all information listed in paragraphs (b)(1)(i) through (b)(1)(xiii) and additionally state that the facility is pre-consented. Exporters must submit the notification to EPA using the allowable methods listed in paragraph (b)(1) of this section at least ten days before the first shipment is expected to leave the United States.
(3) Notifications listing interim recycling operations or interim disposal operations. If the foreign receiving facility listed in paragraph (b)(1)(ii) of this section will engage in any of the interim recovery operations R12 to R13 or interim disposal operations D13 through D15, or in the case of transboundary movements with Canada, any of the interim recovery operations R12 to R13, or RC16, or interim disposal operations D13 to D14, or DC17, the notification submitted according to paragraph (b)(1) must also include the final foreign recovery or disposal facility name, address, telephone, fax numbers, email address, technologies employed, and which of the applicable recovery or disposal operations R1 through R11 and D1 through D12, or in the case of transboundary movements with Canada, which of the applicable recovery or disposal operations R1 through R11, RC14 to RC15, D1 through D12, and DC15 to DC16 will be employed at the final foreign recovery or disposal facility.
(4)
(5) For cases where the proposed country of import and recovery or disposal operations are not covered under an international agreement to which both the United States and the country of import are parties, EPA will coordinate with the Department of State to provide the complete notification to country of import and any countries of transit. In all other cases, EPA will provide the notification directly to the country of import and any countries of transit. A notification is complete when EPA receives a notification which EPA determines satisfies the requirements of paragraph (b)(1)(i) through (b)(1)(xiii) of this section. Where a claim of confidentiality is asserted with respect to any notification information required by paragraphs (b)(1)(i) through (b)(1)(xiii) of this section, EPA may find the notification not complete until any such claim is resolved in accordance with 40 CFR 260.2.
(6) Where the countries of import and transit consent to the proposed transboundary movement(s) of the hazardous waste(s), EPA will forward an EPA AOC letter to the exporter documenting the countries' consents. Where any of the countries of import and transit objects to the proposed transboundary movement(s) of the hazardous waste or withdraws a prior consent, EPA will notify the exporter.
(7) Export of hazardous wastes for recycling or disposal operations that were originally imported into the United States for recycling or disposal operations in a third country is prohibited unless an exporter in the United States complies with the export requirements in § 262.83, including providing notification to EPA in accordance with paragraph (b)(1) of this section. In addition to listing all required information in paragraphs (b)(1)(i) through (b)(1)(xiii) of this section, the exporter must provide the original consent number issued for the initial import of the wastes in the notification, and receive an AOC from EPA documenting the consent of the competent authorities in new country of import, the original country of export, and any transit countries prior to re-export.
(8) Upon request by EPA, the exporter must furnish to EPA any additional information which the country of import requests in order to respond to a notification.
(c)
(1) In lieu of the name, site address and EPA ID number of the designated permitted facility, the exporter must enter the name and site address of the foreign receiving facility;
(2) In the International Shipments block, the exporter must check the export box and enter the U.S. port of exit (city and State) from the United States.
(3) In the Special Handling Instructions or Additional Information block, the exporter must list the consent number from the AOC for each hazardous waste listed on the manifest, followed by the relevant list number for the hazardous waste from block 9b in parentheses. If additional space is needed, the exporter should use a Continuation Sheet(s) (EPA Form 8700-22A).
(4) The exporter may obtain the manifest from any source that is registered with the U.S. EPA as a supplier of manifests (
(5) The exporter must require the foreign receiving facility to confirm in writing the delivery of the hazardous waste to that facility and to describe any significant discrepancies (as defined in 40 CFR 264.72(a)) between the manifest and the shipment. A copy of the manifest or the movement document required in paragraph (d) of this section signed by the foreign receiving facility may be used to confirm delivery of the hazardous waste.
(6) In lieu of the requirements of § 262.20(d), where a shipment cannot be delivered for any reason to the foreign receiving facility listed in the EPA AOC, the exporter must instruct the transporter in writing via fax, email or mail to:
(i) Return the hazardous waste to the exporter in the United States or designate another facility within the country of import (if allowed by the country of import) or within the United States; and
(ii) Revise the manifest in accordance with the exporter's instructions.
(d)
(i) For shipments of hazardous waste within the United States solely by water (bulk shipments only), the exporter must forward the movement document to the last water (bulk shipment) transporter to handle the hazardous waste in the United States if exported by water.
(ii) For rail shipments of hazardous waste within the United States which start from the company originating the export shipment, the exporter must forward the movement document to the next non-rail transporter, if any, or the last rail transporter to handle the hazardous waste in the United States if exported by rail.
(2) The movement document must include the following paragraphs (d)(2)(i) through (d)(2)(xv) of this section:
(i) The corresponding consent number(s) and hazardous waste number(s) for the listed hazardous waste from the relevant EPA AOC(s);
(ii) The shipment number and the total number of shipments from the EPA AOC;
(iii) Exporter name and EPA identification number, address, telephone, fax numbers, and email address;
(iv) Foreign receiving facility name, address, telephone, fax numbers, email address, technologies employed, and the applicable recovery or disposal operations as defined in § 262.81;
(v) Foreign importer name (if not the owner or operator of the foreign receiving facility), address, telephone, fax numbers, and email address;
(vi) Description(s) of each hazardous waste, quantity of each hazardous waste in the shipment, applicable RCRA hazardous waste code(s) for each hazardous waste, applicable OECD waste code for each hazardous waste from the list incorporated by reference in § 260.11, and the United Nations/U.S. Department of Transportation (DOT) ID number for each hazardous waste;
(vii) Date movement commenced;
(viii) Name (if not exporter), address, telephone, fax numbers, and email of company originating the shipment;
(ix) Company name, EPA ID number, address, telephone, fax, and email address of all transporters;
(x) Identification (license, registered name or registration number) of means of transport, including types of packaging;
(xi) Any special precautions to be taken by transporter(s);
(xii) Certification/declaration signed and dated by the exporter that the information in the movement document is complete and correct;
(xiii) Appropriate signatures for each custody transfer (
(xiv) Each U.S. person that has physical custody of the hazardous waste from the time the movement commences until it arrives at the foreign receiving facility must sign the movement document (
(xv) As part of the contract requirements per paragraph (f) of this section, the exporter must require that the foreign receiving facility send a copy of the signed movement document to confirm receipt within three working days of shipment delivery to the exporter, to EPA using the allowable methods listed in paragraph (b)(1) of this section, and to the competent authorities of the countries of import and transit.
(e)
(f)
(2) Contracts or equivalent arrangements must specify the name and EPA ID number, where available, of paragraph (f)(2)(i) through (f)(2)(iv) of this section:
(i) The company from where each export shipment of hazardous waste is initiated;
(ii) Each person who will have physical custody of the hazardous wastes;
(iii) Each person who will have legal control of the hazardous wastes; and
(iv) The foreign receiving facility.
(3) Contracts or equivalent arrangements must specify which party to the contract will assume responsibility for alternate management of the hazardous wastes if their disposition cannot be carried out as described in the notification of intent to export. In such cases, contracts must specify that:
(i) The transporter or foreign receiving facility having actual possession or physical control over the hazardous wastes will immediately inform the exporter, EPA, and either the competent authority of the country of transit or the competent authority of the country of import of the need to make alternate management arrangements; and
(ii) The person specified in the contract will assume responsibility for the adequate management of the hazardous wastes in compliance with applicable laws and regulations including, if necessary, arranging the return of hazardous wastes and, as the case may be, shall provide the notification for re-export to the competent authority in the country of import and include the equivalent of the information required in paragraph (b)(1) of this section, the original consent number issued for the initial export of the hazardous wastes in the notification, and obtain consent from EPA and the competent authorities in the new country of import and any transit countries prior to re-export.
(4) Contracts must specify that the foreign receiving facility send a copy of
(5) Contracts must specify that the foreign receiving facility shall send a copy of the signed and dated confirmation of recovery or disposal, as soon as possible, but no later than thirty days after completing recovery or disposal on the waste in the shipment and no later than one calendar year following receipt of the waste, to the exporter, to EPA using the allowable methods listed in paragraph (b)(1) of this section, and to the competent authority of the country of import.
(6) Contracts must specify that the foreign importer or the foreign receiving facility that performed interim recycling operations R12 through R13 or RC16, or interim disposal operations D13 through D15 or DC17, as appropriate, will:
(i) provide the notification required in paragraph (f)(3)(ii) prior to any re-export of the hazardous wastes to a final foreign recovery or disposal facility in a third country; and
(ii) promptly send copies of the confirmation of recovery or disposal that it receives from the final foreign recovery or disposal facility within one year of shipment delivery to the final foreign recovery or disposal facility that performed one of recovery operations R1 through R11, or RC16, or one of disposal operations D1 through D12, DC15 or DC16 to EPA using the allowable methods listed in paragraph (b)(1) of this section, and to the competent authority of the country of import.
(7) Contracts or equivalent arrangements must include provisions for financial guarantees, if required by the competent authorities of the country of import and any countries of transit, in accordance with applicable national or international law requirements.
Financial guarantees so required are intended to provide for alternate recycling, disposal or other means of sound management of the wastes in cases where arrangements for the shipment and the recovery operations cannot be carried out as foreseen. The United States does not require such financial guarantees at this time; however, some OECD Member countries and other foreign countries do. It is the responsibility of the exporter to ascertain and comply with such requirements; in some cases, persons or facilities located in those OECD Member countries or other foreign countries may refuse to enter into the necessary contracts absent specific references or certifications to financial guarantees.
(8) Contracts or equivalent arrangements must contain provisions requiring each contracting party to comply with all applicable requirements of this subpart.
(9) Upon request by EPA, U.S. exporters, importers, or recovery facilities must submit to EPA copies of contracts, chain of contracts, or equivalent arrangements (when the movement occurs between parties controlled by the same corporate or legal entity). Information contained in the contracts or equivalent arrangements for which a claim of confidentiality is asserted in accordance with 40 CFR 2.203(b) will be treated as confidential and will be disclosed by EPA only as provided in 40 CFR 260.2.
(g)
(1) The EPA identification number, name, and mailing and site address of the exporter filing the report;
(2) The calendar year covered by the report;
(3) The name and site address of each foreign receiving facility;
(4) By foreign receiving facility, for each hazardous waste exported:
(i) A description of the hazardous waste;
(ii) The applicable EPA hazardous waste code(s) (from 40 CFR part 261, subpart C or D) for each waste;
(iii) The applicable waste code from the appropriate OECD waste list incorporated by reference in § 260.11;
(iv) The applicable DOT ID number;
(v) The name and U.S. EPA ID number (where applicable) for each transporter used over the calendar year covered by the report; and
(vi) The consent number(s) under which the hazardous waste was shipped, and for each consent number, the total amount of the hazardous waste and the number of shipments exported during the calendar year covered by the report;
(5) In even numbered years, for each hazardous waste exported, except for hazardous waste produced by exporters of greater than 100 kg but less than 1,000 kg in a calendar month, and except for hazardous waste for which information was already provided pursuant to § 262.41:
(i) A description of the efforts undertaken during the year to reduce the volume and toxicity of the waste generated; and
(ii) A description of the changes in volume and toxicity of the waste actually achieved during the year in comparison to previous years to the extent such information is available for years prior to 1984; and
(6) A certification signed by the exporter that states:
I certify under penalty of law that I have personally examined and am familiar with the information submitted in this and all attached documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment.
(h)
(1) The exporter has not received a copy of the RCRA hazardous waste manifest (if applicable) signed by the transporter identifying the point of departure of the hazardous waste from the United States, within forty-five (45) days from the date it was accepted by the initial transporter, in which case the exporter must file the exception report within the next thirty (30) days;
(2) The exporter has not received a written confirmation of receipt from the foreign receiving facility in accordance with paragraph (d) of this section within ninety (90) days from the date the waste was accepted by the initial transporter in which case the exporter must file the exception report within the next thirty (30) days; or
(3) The foreign receiving facility notifies the exporter, or the country of import notifies EPA, of the need to return the shipment to the US, in which case the exporter must file the exception report within thirty (30) days of notification, or one (1) day prior to the date the return shipment commences, whichever is sooner.
(i)
(i) A copy of each notification of intent to export and each EPA AOC for a period of at least three (3) years from the date the hazardous waste was accepted by the initial transporter;
(ii) A copy of each annual report for a period of at least three (3) years from the due date of the report;
(iii) A copy of any exception reports and a copy of each confirmation of delivery (
(iv) A copy of each confirmation of recovery or disposal sent by the foreign receiving facility to the exporter for at least three (3) years from the date that the foreign receiving facility completed interim or final processing of the hazardous waste shipment.
(v) A copy of each contract or equivalent arrangement established per § 262.85 for at least three (3) years from the expiration date of the contract or equivalent arrangement.
(2) The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Administrator.
(a)
(2) In cases where the country of export does not require the foreign exporter to submit a notification and obtain consent to the export prior to shipment, the importer must submit a notification to EPA in accordance with paragraph (b) of this section.
(3) The importer must comply with the contract requirements in paragraph (f) of this section.
(4) The importer must ensure compliance with the movement documents requirements in paragraph (d) of this section; and
(5) The importer must ensure compliance with the manifest instructions for import shipments in paragraph (c) of this section.
(b)
(i) Foreign exporter name, address, telephone, fax numbers, and email address;
(ii) Receiving facility name, EPA ID number, address, telephone, fax numbers, email address, technologies employed, and the applicable recovery or disposal operations as defined in § 262.81;
(iii) Importer name (if not the owner or operator of the receiving facility), EPA ID number, address, telephone, fax numbers, and email address;
(iv) Intended transporter(s) and/or their agent(s); address, telephone, fax, and email address;
(v) “US” as the country of import, “USA01” as the relevant competent authority code, and the intended U.S. port(s) of entry;
(vi) The ISO standard 3166 country name 2-digit code, OECD/Basel competent authority code, and the ports of entry and exit for each country of transit;
(vii) The ISO standard 3166 country name 2-digit code, OECD/Basel competent authority code, and port of exit for the country of export;
(viii) Statement of whether the notification covers a single shipment or multiple shipments;
(ix) Start and End Dates requested for transboundary movements;
(x) Means of transport planned to be used;
(xi) Description(s) of each hazardous waste, estimated total quantity of each hazardous waste, the applicable RCRA hazardous waste code(s) for each hazardous waste, the applicable OECD waste code from the list incorporated by reference in § 260.11, and the United Nations/U.S. Department of Transportation (DOT) ID number for each hazardous waste;
(xii) Specification of the recovery or disposal operation(s) as defined in § 262.81; and
(xiii) Certification/Declaration signed by the importer that states:
I certify that the above information is complete and correct to the best of my knowledge. I also certify that legally enforceable written contractual obligations have been entered into and that any applicable insurance or other financial guarantee is or shall be in force covering the transboundary movement.
The United States does not currently require financial assurance for these waste shipments.
(2) Notifications listing interim recycling operations or interim disposal operations. If the receiving facility listed in paragraph (b)(1)(ii) of this section will engage in any of the interim recovery operations R12 to R13 or interim disposal operations D13 through D15, the notification submitted according to paragraph (b)(1) of this section must also include the final recovery or disposal facility name, address, telephone, fax numbers, email address, technologies employed, and which of the applicable recovery or disposal operations R1 through R11 and D1 through D12, will be employed at the final recovery or disposal facility.
(3)
(4) A notification is complete when EPA determines the notification satisfies the requirements of paragraph (b)(1)(i) through (xiii) of this section. Where a claim of confidentiality is asserted with respect to any notification information required by paragraphs (b)(1)(i) through (xiii) of this section, EPA may find the notification not complete until any such claim is resolved in accordance with 40 CFR 260.2.
(5) Where EPA and the countries of transit consent to the proposed transboundary movement(s) of the hazardous waste(s), EPA will forward an EPA AOC letter to the importer documenting the countries' consents and EPA's consent. Where any of the countries of transit or EPA objects to the proposed transboundary movement(s) of the hazardous waste or withdraws a prior consent, EPA will notify the importer.
(6) Export of hazardous wastes originally imported into the United States. Export of hazardous wastes that were originally imported into the United States for recycling or disposal
(c)
(i) In place of the generator's name, address and EPA identification number, the name and address of the foreign generator and the importer's name, address and EPA identification number must be used.
(ii) In place of the generator's signature on the certification statement, the importer or his agent must sign and date the certification and obtain the signature of the initial transporter.
(2) The importer may obtain the manifest form from any source that is registered with the EPA as a supplier of manifests (
(3) In the International Shipments block, the importer must check the import box and enter the point of entry (city and State) into the United States.
(4) The importer must provide the transporter with an additional copy of the manifest to be submitted by the receiving facility to U.S. EPA in accordance with § 264.71(a)(3) and § 265.71(a)(3) of this chapter.
(5) In lieu of the requirements of § 262.20(d), where a shipment cannot be delivered for any reason to the receiving facility, the importer must instruct the transporter in writing via fax, email or mail to:
(i) Return the hazardous waste to the foreign exporter or designate another facility within the United States; and
(ii) Revise the manifest in accordance with the importer's instructions.
(d)
(1) The importer must ensure that a movement document meeting the conditions of paragraph (d)(2) of this section accompanies each transboundary movement of hazardous wastes from the initiation of the shipment in the country of export until it reaches the receiving facility, including cases in which the hazardous waste is stored and/or sorted by the importer prior to shipment to the receiving facility, except as provided in paragraphs (d)(1)(i) and (d)(1)(ii) of this section.
(i) For shipments of hazardous waste within the United States by water (bulk shipments only), the importer must forward the movement document to the last water (bulk shipment) transporter to handle the hazardous waste in the United States if imported by water.
(ii) For rail shipments of hazardous waste within the United States which start from the company originating the export shipment, the importer must forward the movement document to the next non-rail transporter, if any, or the last rail transporter to handle the hazardous waste in the United States if imported by rail.
(2) The movement document must include the following paragraphs (d)(2)(i) through (d)(2)(xv) of this section:
(i) The corresponding AOC number(s) and waste number(s) for the listed waste;
(ii) The shipment number and the total number of shipments under the AOC number;
(iii) Foreign exporter name, address, telephone, fax numbers, and email address;
(iv) Receiving facility name, EPA ID number, address, telephone, fax numbers, email address, technologies employed, and the applicable recovery or disposal operations as defined in § 262.81;
(v) Importer name (if not the owner or operator of the receiving facility), EPA ID number, address, telephone, fax numbers, and email address;
(vi) Description(s) of each hazardous waste, quantity of each hazardous waste in the shipment, applicable RCRA hazardous waste code(s) for each hazardous waste, the applicable OECD waste code for each hazardous waste from the lists incorporated by reference in § 260.11, and the United Nations/U.S. Department of Transportation (DOT) ID number for each hazardous waste;
(vii) Date movement commenced;
(viii) Name (if not the foreign exporter), address, telephone, fax numbers, and email of the foreign company originating the shipment;
(ix) Company name, EPA ID number, address, telephone, fax, and email address of all transporters;
(x) Identification (license, registered name or registration number) of means of transport, including types of packaging;
(xi) Any special precautions to be taken by transporter(s);
(xii) Certification/declaration signed and dated by the foreign exporter that the information in the movement document is complete and correct;
(xiii) Appropriate signatures for each custody transfer (
(xiv) Each person that has physical custody of the waste from the time the movement commences until it arrives at the receiving facility must sign the movement document (
(xv) The receiving facility must send a copy of the signed movement document to confirm receipt within three working days of shipment delivery to the foreign exporter, to EPA using the allowable methods listed in paragraph (b)(1) of this section, and to the competent authorities of the countries of export and transit.
(e) Duty to return or export hazardous wastes. When a transboundary movement of hazardous wastes cannot be completed in accordance with the terms of the contract or the consent(s) and alternative arrangements cannot be made to recover the hazardous waste in an environmentally sound manner in the United States, the hazardous waste must be returned to the country of export or exported to a third country. The provisions of paragraph (b)(6) of this section apply to any hazardous waste shipments to be exported to a third country. If the hazardous waste must be returned, the importer must inform EPA, using the allowable methods listed in paragraph (b)(1) of this section, and the foreign exporter of the need to return the shipment. EPA will then inform the competent authorities of the original country of export and any countries of transit for the return shipment's route, citing the reason(s) for returning the waste. The importer must complete the return within ninety (90) days from the time EPA informs the country of export of the need to return the waste, unless informed in writing by EPA of another timeframe agreed to by the concerned countries. If the return shipment will cross any transit country, the return shipment may only occur after EPA provides notification to and obtains consent from the competent authority of the country of transit, and provides a copy of that consent to the importer.
(f)
(2) Contracts or equivalent arrangements must specify the name and EPA ID number, where available, of paragraph (f)(2)(i) through (iv) of this section:
(i) The foreign company from where each import shipment of hazardous waste is initiated;
(ii) Each person who will have physical custody of the hazardous wastes;
(iii) Each person who will have legal control of the hazardous wastes; and
(iv) The receiving facility.
(3) Contracts or equivalent arrangements must specify the use of a movement document in accordance with § 262.84(d).
(4) Contracts or equivalent arrangements must specify which party to the contract will assume responsibility for alternate management of the hazardous wastes if their disposition cannot be carried out as described in the notification of intent to export submitted by either the foreign exporter or the importer. In such cases, contracts must specify that:
(i) The transporter or receiving facility having actual possession or physical control over the hazardous wastes will immediately inform the foreign exporter and importer, and the competent authority where the shipment is located of the need to arrange alternate management or return; and
(ii) The person specified in the contract will assume responsibility for the adequate management of the hazardous wastes in compliance with applicable laws and regulations including, if necessary, arranging the return of the hazardous wastes and, as the case may be, shall provide the notification for re-export required in § 262.83(b)(7).
(5) Contracts must specify that the importer or the receiving facility that performed interim recycling operations R12 to R13 or RC16, or interim disposal operations D13 through D15 or DC15 through DC17, as appropriate, will provide the notification required in § 262.83(b)(7) prior to the re-export of hazardous wastes.
(6) Contracts or equivalent arrangements must include provisions for financial guarantees, if required by the competent authorities of any countries concerned, in accordance with applicable national or international law requirements.
Financial guarantees so required are intended to provide for alternate recycling, disposal or other means of sound management of the wastes in cases where arrangements for the shipment and the recovery operations cannot be carried out as foreseen. The United States does not require such financial guarantees at this time; however, some OECD Member countries or other foreign countries do. It is the responsibility of the importer to ascertain and comply with such requirements; in some cases, persons or facilities located in those countries may refuse to enter into the necessary contracts absent specific references or certifications to financial guarantees.
(7) Contracts or equivalent arrangements must contain provisions requiring each contracting party to comply with all applicable requirements of this subpart.
(8) Upon request by EPA, importers or disposal or recovery facilities must submit to EPA copies of contracts, chain of contracts, or equivalent arrangements (when the movement occurs between parties controlled by the same corporate or legal entity). Information contained in the contracts or equivalent arrangements for which a claim of confidentiality is asserted in accordance with 40 CFR 2.203(b) will be treated as confidential and will be disclosed by EPA only as provided in 40 CFR 260.2.
(g)
(1) Send copies of the signed and dated confirmation of recovery or disposal, as soon as possible, but no later than thirty days after completing recovery or disposal on the waste in the shipment and no later than one calendar year following receipt of the waste, to the foreign exporter, to EPA using the allowable methods listed in paragraph (b)(1) of this section, and to the competent authority of the country of export.
(2) If the receiving facility performed any of recovery operations R12, R13, or RC16, or disposal operations D13 through D15, or DC17, the receiving facility shall promptly send copies of the confirmation of recovery or disposal that it receives from the final recovery or disposal facility within one year of shipment delivery to the final recovery or disposal facility that performed one of recovery operations R1 through R11, or RC14 to RC15, or one of disposal operations D1 through D12, or DC15 to DC16 to EPA using the allowable methods listed in paragraph (b)(1) of this section, and to the competent authority of the country of export.
(h)
(ii) A copy of each contract or equivalent arrangement established per paragraph (f) of this section for at least three (3) years from the expiration date of the contract or equivalent arrangement.
(2) The receiving facility shall keep the following records:
(i) A copy of each confirmation of delivery (
(ii) A copy of each confirmation of recovery or disposal that the receiving facility sends to the foreign exporter for at least three (3) years from the date that it completed processing the waste shipment; and
(iii) For the receiving facility that performed any of recovery operations R12 to R13, or RC16, or disposal operations D13 through D15, or DC17, a copy of each confirmation of recovery or disposal that the final recovery or disposal facility sent to it for at least three (3) years from the date that the final recovery or disposal facility completed processing the waste shipment.
(iv) A copy of each contract or equivalent arrangement established per paragraph 262.84(f) of this section for at least three (3) years from the expiration date of the contract or equivalent arrangement.
(3) The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Administrator.
For export shipments, the primary exporter must check the export box, and enter the point of exit (city and state) from the United
42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
The revisions read as follows:
(d) A transporter of hazardous waste that is being imported from or exported to any other country for purposes of recovery or disposal is subject to this Subpart and to all other relevant requirements of subpart H of 40 CFR part 262, including, but not limited to, 40 CFR 262.83(d) and 262.84(d) for movement documents.
(a)(1) * * *
(2)
(c) The transporter must ensure that the manifest accompanies the hazardous waste. In the case of exports, the transporter must ensure that a movement document that includes all information required by § 262.83(d) also accompanies the hazardous waste. In the case of imports, the transporter must ensure that a movement document that includes all information required by § 262.84(d) also accompanies the hazardous waste.
(e) * * *
(2) A shipping paper containing all the information required on the manifest (excluding the EPA identification numbers, generator certification, and signatures) and, for exports or imports, a movement document that includes all information required by 40 CFR 262.83(d) or 40 CFR 262.84(d) accompanies the hazardous waste; and
(f) * * *
(2) Rail transporters must ensure that a shipping paper containing all the information required on the manifest (excluding the EPA identification numbers, generator certification, and signatures) and, for exports or imports, a movement document that includes all information required by 40 CFR 262.83(d) or 40 CFR 262.84(d) accompanies the hazardous waste at all times.
(g) Transporters who transport hazardous waste out of the United States must:
(1) Sign and date the manifest in the International Shipments block to indicate the date that the shipment left the United States;
(2) Retain one copy in accordance with § 263.22(d);
(3) Return a signed copy of the manifest to the generator; and
(4) For paper manifests only, send a copy of the Manifest to the e-Manifest system in accordance with the allowable methods specified in 40 CFR 264.71(a)(2)(v).
42 U.S.C. 6905, 6912(a), 6924, and 6925.
(a) The owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must submit the following required notices:
(1) As per § 262.84(b), for imports where the competent authority of the country of export does not require the foreign exporter to submit to it a notification proposing export and obtain consent from EPA and the competent authorities for the countries of transit, such owner or operator of the facility, if acting as the importer, must provide notification of the proposed transboundary movement in English to EPA using the allowable methods listed in § 262.84(b)(1) at least 60 days before the first shipment is expected to depart the country of export. The notification may cover up to one year of shipments of wastes having similar physical and chemical characteristics, the same United Nations classification, the same RCRA waste codes and OECD waste codes, and being sent from the same foreign exporter.
(2) As per § 262.84(d)(2)(xv), a copy of the movement document bearing all required signatures to the foreign exporter; to EPA using the allowable methods listed in § 262.84(b)(1); and to the competent authorities of the countries of export and transit within three (3) working days of receipt of the shipment. The original of the signed movement document must be maintained at the facility for at least three (3) years.
(3) As per § 262.84(e), if the waste must be returned to the country of export and the owner or operator of the facility is acting as the importer, such owner or operator of the facility must inform EPA, using the allowable methods listed in § 262.84(b)(1) of the need to return the shipment.
(4) As per § 262.84(f), such owner or operator shall:
(i) Send copies of the signed and dated confirmation of recovery or disposal, as soon as possible, but no later than thirty days after completing recovery or disposal on the waste in the shipment and no later than one calendar year following receipt of the waste, to the foreign exporter, to EPA using the allowable methods listed in § 262.84(b)(1), and to the competent authority of the country of export.
(ii) If the facility performed any of recovery operations R12, R13, or RC16, or disposal operations D13 through D15, or DC17, promptly send copies of the confirmation of recovery or disposal that it receives from the final recovery or disposal facility within one year of shipment delivery to the final recovery or disposal facility that performed one of recovery operations R1 through R11, or RC16, or one of disposal operations D1 through D12, to EPA using the allowable methods listed in § 262.84(b)(1), and to the competent authority of the country of export.
(a)(1) * * *
(3) The owner or operator of a facility receiving hazardous waste subject to 40
(i) Additionally list the relevant consent number from consent documentation supplied by EPA to the facility for each waste listed on the manifest, followed by the relevant list number for the waste from block 9b in parentheses. If additional space is needed, the owner or operator should use a Continuation Sheet(s) (EPA Form 8700-22A); and
(ii) Send a copy of the manifest within thirty (30) days of delivery to EPA using the allowable methods listed in § 262.84(b)(1).
(d) As per § 262.84(d)(xv), within three (3) working days of the receipt of a shipment subject to 40 CFR part 262, subpart H, the owner or operator of a facility must provide a copy of the movement document bearing all required signatures to the exporter, to EPA using the allowable methods listed in § 262.84(b)(1), and to the competent authorities of the countries of export and transit. The original copy of the movement document must be maintained at the facility for at least three (3) years from the date of signature.
42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 6935, 6936, and 6937.
(a) The owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must submit the following required notices:
(1) As per § 262.84(b), for imports where the competent authority of the country of export does not require the foreign exporter to submit to it a notification proposing export and obtain consent from EPA and the competent authorities for the countries of transit, such owner or operator of the facility, if acting as the importer, must provide notification of the proposed transboundary movement in English to EPA using the allowable methods listed in § 262.84(b)(1) at least 60 days before the first shipment is expected to depart the country of export. The notification may cover up to one year of shipments of wastes having similar physical and chemical characteristics, the same United Nations classification, the same RCRA waste codes and OECD waste codes, and being sent from the same foreign exporter.
(2) As per § 262.84(d)(xv), a copy of the movement document bearing all required signatures to the foreign exporter; to EPA using the allowable methods listed in § 262.84(b)(1); and to the competent authorities of the countries of export and transit within three (3) working days of receipt of the shipment. The original of the signed movement document must be maintained at the facility for at least three (3) years.
(3) As per § 262.84(e), if the waste must be returned to the country of export and the owner or operator of the facility is acting as the importer, such owner or operator of the facility must inform EPA, using the allowable methods listed in § 262.84(b)(1) of the need to return the shipment.
(4) As per § 262.84(f), such owner or operator shall:
(i) Send copies of the signed and dated confirmation of recovery or disposal, using either block 19 on the OECD/Basel “Movement document for transboundary movements/shipments of waste” or the Canadian “Confirmation of Disposal or Recycling” form, as soon as possible, but no later than thirty days after completing recovery or disposal on the waste in the shipment and no later than one calendar year following receipt of the waste, to the foreign exporter, to EPA using the allowable methods listed in § 262.84(b)(1), and to the competent authority of the country of export.
(ii) If the facility performed any of recovery operations R12, R13, or RC16, or disposal operations D13 through D15, or DC17, promptly send copies of the confirmation of recovery or disposal that it receives from the final recovery or disposal facility within one year of shipment delivery to the final recovery or disposal facility that performed one of recovery operations R1 through R11, or RC16, or one of disposal operations D1 through D12, to EPA using the allowable methods listed in § 262.84(b)(1), and to the competent authority of the country of export.
(a)(1) * * *
(3) The owner or operator of a facility that receives hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must:
(i) Additionally list the relevant consent number from consent documentation supplied by EPA to the facility for each waste listed on the manifest, followed by the relevant list number for the waste from block 9b in parentheses. If additional space is needed, the owner or operator should use a Continuation Sheet(s) (EPA Form 8700-22A); and
(ii) Send a copy of the manifest to EPA using the allowable methods listed in § 262.84(b)(1) within thirty (30) days of delivery.
(d) As per § 262.84(d)(xv), within three (3) working days of the receipt of a shipment subject to 40 CFR part 262, subpart H, the owner or operator of a facility must provide a copy of the movement document bearing all required signatures to the exporter, to EPA using the allowable methods listed in § 262.84(b)(1), and to the competent authorities of the countries of export and transit. The original copy of the movement document must be maintained at the facility for at least three (3) years from the date of signature.
42 U.S.C. 1006, 2002(a), 3001-3009, 3014, 3017, 6905, 6906, 6912, 6921, 6922, 6924-6927, 6934, and 6937.
(b) Persons who generate, transport, or store recyclable materials that are regulated under this subpart are subject to the following requirements:
(1) Notification requirements under section 3010 of RCRA;
(2) Subpart B of part 262 (for generators), §§ 263.20 and 263.21 (for transporters), and §§ 265.71 and 265.72 (for persons who store) of this chapter; and
(3) For precious metals exported to or imported from other countries for recovery, subpart H of part 262 and § 265.12.
The revisions and additions to the table read as follows:
(a) * * *
42 U.S.C. 6902, 6912(a), 6924-6926, and 6930.
The revisions and additions read as follows:
(a) * * *
(4) Within 30 days after the delivery, send a copy of the manifest to the generator;
(5) Retain at the facility a copy of each manifest for at least three years from the date of delivery; and
(6) If a facility receives hazardous waste subject to 40 CFR part 262, subpart H from a foreign source, the receiving facility must:
(i) Additionally list the relevant consent number from consent documentation supplied by EPA to the facility for each waste listed on the manifest, followed by the relevant list number for the waste from block 9b in parentheses. If additional space is needed, the receiving facility should use a Continuation Sheet(s) (EPA Form 8700-22A); and
(ii) Mail a copy of the manifest to EPA using the allowable methods listed in § 262.84(b)(1) within thirty (30) days of delivery.
(d) As per § 262.84(d)(xv), within three (3) working days of the receipt of a shipment subject to 40 CFR part 262, subpart H, the owner or operator of a facility must provide a copy of the movement document bearing all required signatures to the exporter, to EPA using the allowable methods listed in § 262.84(b)(1), and to the competent authorities of the countries of export and transit. The original copy of the movement document must be maintained at the facility for at least three (3) years from the date of signature.
42 U.S.C. 6905, 6912(a), and 6926.
The additions read as follows:
(j) * * *
(2) * * *
The revision reads as follows:
(e) The State program shall provide requirements respecting international shipments which are equivalent to those at 40 CFR part 262 subpart H, and other import and export regulations, except that States shall not replace EPA or international references with State references.
(c) * * *
(4) For exports of hazardous waste, the state must require the transporter to refuse to accept hazardous waste for export if the exporter has not provided the movement document, a manifest listing the consent numbers for the hazardous waste shipment, and the ITN number for the hazardous waste shipment, to carry a movement document and manifest with the shipment, to sign and date the International Shipments Block of the manifest to indicate the date the shipment leaves the U.S. and to send a copy of the manifest, if in paper form, to the e-Manifest system using the allowable methods listed in § 264.71(a)(2)(v).
(i) * * *
(2) To EPA using the allowable methods listed in § 262.84(b)(1) to indicate the receipt of a shipment of hazardous waste imported into the U.S. from a foreign source.
42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.
A small quantity handler of universal waste who sends universal waste to a foreign destination is subject to the requirements of 40 CFR part 262, subpart H.
(a)
(b)
A large quantity handler of universal waste who sends universal waste to a foreign destination is subject to the requirements of 40 CFR part 262, subpart H.
A universal waste transporter transporting a shipment of universal waste to a foreign destination is subject to the requirements of 40 CFR part 262, subpart H.
(a) The owner or operator of a destination facility must keep a record of each shipment of universal waste received at the facility. The record may take the form of a log, invoice, manifest, bill of lading, movement document or other shipping document. The record for each shipment of universal waste received must include the following information:
Persons managing universal waste that is imported from a foreign country into the United States are subject to the requirements of 40 CFR part 262 subpart H and the applicable requirements of this part, immediately after the waste enters the United States, as indicated in paragraphs (a) through (c) of this section:
(a) A universal waste transporter is subject to the universal waste transporter requirements of subpart D of this part.
(b) A universal waste handler is subject to the small or large quantity handler of universal waste requirements of subparts B or C, as applicable.
(c) An owner or operator of a destination facility is subject to the destination facility requirements of subpart E of this part.
Federal Communications Commission.
Final rule.
The Commission initiated this rulemaking in January 2015 to help guide and accelerate the technological revolutions that are underway involving the transitions from networks based on TDM circuit-switched voice services running on copper loops to all-IP multi-media networks using copper, co-axial cable, wireless, and fiber as physical infrastructure. This rulemaking and order on reconsideration is only one of a series of Commission actions to protect core values and ensure the success of these technology transitions. In this item, we take steps to ensure that competition continues to thrive and to protect consumers during transitions. These steps will help to ensure that the technology transitions continue to succeed.
Effective November 18, 2015, except for 47 CFR 51.325(a)(4) and (e), 51.332, and 51.333(b) and (c), which contain information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the
Michele Levy Berlove, Wireline Competition Bureau, Competition Policy Division, (202) 418-1477, or send an email to
This is a summary of the Commission's Report and Order and Order on Reconsideration in GN Docket No. 13-5, RM-11358, and WC Docket No. 05-25, RM-10593, FCC 15-97, adopted August 6, 2015 and released August 7, 2015. The full text of this document is available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It is available on the Commission's Web site at
1. Communications networks are rapidly transitioning away from the historic provision of time-division multiplexed (TDM) services running on copper to new, all-Internet Protocol (IP) multimedia networks using copper, co-axial cable, wireless, and fiber as physical infrastructure. Our actions today further the technology transitions underway in our Nation's fixed communications networks that offer the prospect of innovative and improved services to consumers and businesses alike. The core goals of the January 2014
2. Industry is investing aggressively in modern telecommunications networks and services. Overall, according to data supplied by USTelecom and AT&T, capital expenditures by broadband providers topped $75 billion in 2013 and continue to increase. AT&T recently announced that by the year 2020, 75 percent of its network will be controlled by software. To do this, AT&T is undergoing a massive effort to train about 130,000 of its employees on software-defined networking architecture and protocols. AT&T has also expanded its wireline IP broadband network to 57 million customer locations, as well as extended fiber to 725,000 business locations. Moreover, Verizon passes more than 19.8 million premises with its all-fiber network—the largest such network in the country—and it projects that soon about 70 percent of the premises in its landline territory will have access to all-fiber facilities. Verizon too has announced an SDN-based strategy “to introduce new operational efficiencies and allow for the enablement of rapid and flexible service delivery to Verizon's customers.” And CenturyLink has announced the launch of 1 Gbps broadband service to 16 cities. According to recent reports, CenturyLink's national fiber network upgrade has expanded availability of CenturyLink's gigabit broadband services to nearly 490,000 business locations. These are just a few of many examples in which industry is investing heavily to bring the benefits of new networks and services to customers of all sizes.
3. We recognize that the success of the technology transitions is dependent, among other things, on clear and certain direction from the Commission that preserves the historic values that Congress has incorporated in the Communications Act of 1934, as amended (the Act). In the November 2014
4. Building on our proposals in the
5.
•
•
6.
• We update the process by which incumbent LECs notify interconnecting entities of planned copper retirements. Among other things, we require incumbent LECs to provide at least six months' advance notice of proposed copper retirements to interconnecting carriers in order to provide such carriers adequate time to prepare their networks for the changes.
• To fulfill our statutory obligation to ensure that changes to telecommunications services that negatively affect the public occur with proper oversight, we clarify that a carrier must obtain Commission approval before discontinuing, reducing, or impairing a service used as a wholesale input, but only when the carrier's actions will discontinue, reduce, or impair service to end users, including a carrier-customer's retail end users. We emphasize that carriers must consider the impact of their actions on end user customers, including the end users of carrier-customers.
• The Commission has long intended to conduct a comprehensive evaluation of dedicated high-capacity connections used daily and intensively by businesses and institutions to transmit their voice and data traffic, known traditionally as “special access.” That evaluation will enable us to address critical long-term questions about the state of competition for business data connections and the role of regulation in facilitating competitive markets. Today, we adopt an interim rule to preserve competitive access while the special access proceeding remains pending and to maintain incentives for all parties to rapidly transition to IP. We conclude that to receive authority to discontinue, reduce, or impair a legacy TDM-based service that is used as a wholesale input by competitive providers, an incumbent LEC must as a condition to obtaining discontinuance authority commit to providing competitive carriers
7. The Commission initiated this rulemaking in November 2014 to help guide and accelerate the technological revolutions that are underway involving the transitions from networks based on TDM circuit-switched voice services running on copper loops to all-IP multi-media networks using copper, co-axial cable, wireless, and fiber as physical infrastructure. This rulemaking is only one of a series of Commission actions to protect core values and ensure the success of these technology transitions. The Commission also is undertaking a comprehensive evaluation of the correct policies for the long-run concerning access to a key form of competitive inputs and technology change—special access. The Commission will use the data and public comment addressing the data to develop the long-term policies that will supersede the reasonably comparable wholesale access requirements adopted today. However, we recognize that for them to succeed, we need to ensure competition continues to thrive and we protect consumers, especially those in vulnerable populations, who rely on POTS and other legacy services.
8. Recent data indicates that 30 percent of all residential customers choose IP-based voice services from cable, fiber, and other providers as alternatives to legacy voice services. Moreover, 44 percent of households were “wireless-only” during January-June of 2014. The growth of “wireless-only” homes will necessitate more backhaul services than ever before, and these services are increasingly IP-based. Overall, almost 75 percent of U.S. residential customers (approximately 88 million households) no longer receive telephone service over traditional copper facilities. As consumer demand for faster service speeds continues, wireless providers and their customers have benefited from the transition to Ethernet, which is more easily scalable to increasing user demands compared to copper; and, by the end of 2014, certain incumbent LECs have dropped between 30 to 60 percent of their copper-based DS1 special access circuits, replacing these special access circuits with IP offerings. Similar change is occurring in the supply of mass-market services. Moreover, advancements in technology and interconnection have changed the relationship between broadband Internet access and Voice over Internet
9. At the same time, competitive carriers today continue to rely on incumbent LEC TDM-based DS1 and DS3 special access services to serve a large number of utility, residential, and enterprise customer locations throughout the United States. Commenters assert that many areas across the country have few viable alternatives to currently-available incumbent LEC copper loop or TDM-based wholesale inputs. Competitive LECs have submitted evidence in this record and in other proceedings that, in such areas, the prices incumbent LECs charge for these replacement wholesale inputs (
10. The Commission received comments from over 65 parties in response to the
11. Today, we significantly update our copper retirement rules for the first time in over a decade to address the increasing pace of copper retirement and its implications for consumers and competition. We do so to facilitate the smoothest possible transition of the Nation's legacy communications networks to newer technologies while ensuring this transition happens free from the obstacles that might arise were this transition not handled responsibly. We believe the updated rules that we adopt today will benefit the entire ecosystem of industry and consumers by ensuring that everyone has the information they need to adapt to an evolving communications environment. Interconnecting entities will be able to accommodate the planned network changes without disruption of service to their customers. Competitive opportunities will be ensured, resulting in greater consumer choice. Government departments and agencies will not be left unable to respond to changes in the networks over which their vital communications services are provided. Customer confusion regarding the impact of planned copper retirements, and possible complaints arising from such confusion, will be minimized. And incumbent LECs will be able to move forward with highly beneficial planned network changes with greater comfort and certainty. Verizon, for instance, estimates that the cost of maintaining parallel copper facilities and the consumer welfare benefits from its existing fiber deployment each run in the hundreds of millions of dollars.
12. The Commission issued the current rules governing copper retirement in 2003 in the
13. We clarify at the outset that the revisions we adopt today to the network change disclosure rules are not intended to change the nature of the process from one based on notice to one based on approval. The current network change disclosure process applies to situations in which an incumbent LEC makes a change in its network facilities, such as when it replaces copper facilities with fiber. If this change in facilities does not result in a discontinuance, reduction, or impairment of service, then the carrier need not file an application under Section 214(a) seeking Commission authorization for the planned network change. Rather, it must only provide notice in compliance with the Commission's network change disclosure rules. However, some changes in network facilities can result in a discontinuance, reduction, or impairment of service for which Commission authorization is needed. For instance, in one prominent example, Verizon filed an application under Section 214(a) when it sought to replace the copper network serving Fire Island that was damaged by Superstorm Sandy with a wireless network over which it would provide its VoiceLink wireless service. We expect all carriers to consider carefully whether a proposed copper retirement will be accompanied by or be the cause of a discontinuance, reduction, or impairment of service provided over that copper such that they must file a discontinuance application pursuant to Section 63.71 of our rules. If the answer to that question is no, then the carrier need only comply with the Commission's network change disclosure process as revised herein.
14.
15.
16. We conclude that receipt of the additional information and the extended notice period we adopt today will allow interconnecting entities to work more closely with their customers to ensure minimal disruption to service as a result of any planned copper retirements. Contrary to some commenters' assertions, the record in this proceeding contains significant evidence that our existing rules are insufficient to ensure adequate notice to interconnecting carriers. We wish to avoid situations such as the one recounted by XO, where it received notice that one of its customers—a group of nursing homes—would be losing service the next day as a result of glitches in the copper retirement process (a result XO narrowly managed to avoid). Although some commenters claim that our rule changes will discourage copper retirements, we find that retaining a time-limited notice-based process ensures that our rules strike a sensible and fair balance between meeting the needs of interconnecting carriers and allowing incumbent LECs to manage their networks.
17. Also contrary to some commenters' assertions, we find that the revised notice requirements do not serve to conflate the Section 251(c)(5) network change disclosure process and Section 214(a) discontinuance process. Other commenters, however, are concerned that incumbent LECs are themselves “blur[ring] the distinction between mere retirement of copper facilities (while the carrier continues to offer the same service(s) using other facilities), on the one hand, and the discontinuance, reduction, or impairment of service on the other.” Consistent with the proposal in the
18.
19. Based on the record before us, we conclude that we should adopt these proposed requirements, modified to require notice to “each entity” within the affected service area that directly interconnects with the incumbent LEC's network. We find that doing so constitutes “reasonable public notice” under Section 251(c)(5) of the Act because it will ensure that all entities potentially affected by a planned copper retirement, be they telephone exchange service providers, information service providers, or other types of providers that may or may not yet have been classified by the Commission, receive the information necessary to allow them to accommodate the copper retirement with minimal impact on their end user customers. We do not, however, similarly expand the pool of entities to whom incumbent LECs must provide direct notice of network changes outside of the copper retirement context. The record does not contain any evidence sufficient to justify such an expansion.
20. We are not persuaded by the arguments of incumbent LEC commenters that this requirement “would impose onerous and unnecessary administrative burdens.” AT&T argues that this requirement, in conjunction with expansion of the copper retirement notice requirement to encompass retirement of copper feeder plant, would necessitate providing direct notice to potentially hundreds of competitive LECs that do not have any facilities implicated by the planned network change. Because under existing requirements incumbent LECs must notify potentially large numbers of directly interconnected telephone exchange service providers as part of the copper retirement process, we do not find that argument supports the claim that the revisions we adopt today are unreasonable. Under the predecessor rules to those we adopt today, copper retirements were already subject to the “short term notice provisions” set forth in Section 51.333(a). Unless otherwise specified or dictated by context, citations in this Order to specific sections of the Commission's rules governing network change disclosures are to the version of those rules as they exist prior to the effective date of the rules adopted herein. Under Section 51.333(a), which applies “[i]f an incumbent LEC wishes to provide less than six months' notice of planned network changes,” the incumbent LEC must file with the Commission a certificate of service that includes a statement that, at least five business days in advance of its filing with the Commission, the incumbent LEC served a copy of its public notice upon each telephone exchange service provider that directly interconnects with the incumbent LEC's network; and the name and address of each such telephone exchange service provider upon which the notice was served. Such certificates of service reflect that incumbent LECs have been obligated to provide notice to large numbers of interconnecting carriers.
21. Incumbent LECs have not provided sufficient detail to establish that providing the direct notice described in those certificates of service was burdensome or specifically how expanding the pool of recipients as proposed in the
22. The rule that we adopt today requires notice to the Commission and omits the option to provide written public notice through industry fora, industry publications, or the carrier's publicly accessible Internet site. This is merely a technical modification of our proposal, under which some form of notification to the Commission would have been required in all prior cases and publication-based notice would have been optional and thus not required. Therefore, this change streamlines our rules and emphasizes that notice to the Commission initiates the copper retirement process. We find this change warranted to ensure that the Commission is notified promptly of all planned copper retirements and to streamline the rule. We nonetheless encourage incumbent LECs to provide notice through industry fora, industry publications, and the carrier's publicly accessible Internet site as a good practice.
23.
24. We are unpersuaded by incumbent LEC commenters' assertions that the proposed expanded copper retirement notice requirements would impose an undue burden on them because it is impossible to determine how a planned change can be expected to impact various interconnecting entities. Section 51.327(a) already requires that incumbent LEC network change public notices include “changes planned” and “the reasonably foreseeable impact of the planned changes.” We conclude that the proposed expanded content requirement, which is limited to a description of any changes in prices, terms, or conditions that will accompany the planned retirement, is a narrow and targeted extension of the existing requirement to provide notice of the “reasonably foreseeable impact of the planned changes” already required by Section 51.327(a)(6) of our rules. We address commenter concerns regarding our legal authority to require this information in copper retirement notices
25. We decline, however, to require that the descriptions of the potential impact of the planned changes be specific to each interconnecting carrier to whom an incumbent LEC must give notice, as requested by the Competitive Carriers Association. We conclude that such a requirement would impose an unreasonable burden on incumbent LECs. We also decline to require, as suggested by Windstream, that copper retirement notices include information regarding impacted circuits and wholesale alternatives. Section 51.327(a) already requires that notices of planned network changes include references to technical specifications, protocols, and standards regarding transmission, signaling, routing, and facility assignment as well as references to technical standards that would be applicable to any new technologies or equipment, or that may otherwise affect interconnection. And as discussed below, the rule we adopt today requires that incumbent LECs work in good faith with interconnecting entities to provide information necessary to assist them in accommodating planned copper retirements without disruption of service to their customers. We conclude that these requirements, included in proposed new Section 51.332, already ensure that enough information will be provided to address Windstream's concerns and ensure sufficient protection to interconnecting carriers. We further conclude that such requirements will adequately address the concerns raised by Cincinnati Bell that incumbent LECs cannot “know what type of alternative arrangements might suit any impacted carriers.”
26. We conclude that the content requirements we adopt today capture the needs of competitive providers for information that allows them to plan for and accommodate the planned network change while providing incumbent LECs the flexibility to provide that information in the form best suited to the particulars of their situation. We therefore require only that copper retirement notices include the information set forth in new Section 51.332(c). We decline to adopt a particular required format for copper retirement notices. We are not persuaded that the Commission's rules should mandate a particular format for copper retirement notices. Rather, we believe that a specified format could prove problematic. As noted by the California PUC, “a uniform format may not cover all aspects of each provider's copper retirement plans. The FCC should require that all necessary components of the incumbent LEC's planned retirement be contained in any notice, but also allow each provider to include additional information about options available to customers.”
27.
28. We conclude that a notice period of at least 180 days (
29. We are not persuaded by Verizon that our existing requirements provide more than sufficient notice. It is the incumbent LEC itself that controls the timing of the decision to make or procure a product whose design necessitates the network change. This is a business decision on the part of the incumbent LEC, and, as such, there is no reason to assume that the timing it chooses will coincide with the needs of interconnecting carriers—indeed, as stated above, the record reflects that it does not. We agree with Verizon, however, that where facilities are no longer being used to serve any customers, whether wholesale or retail, a shorter notice period is appropriate. Accordingly, we do not apply the new notice period of at least 180 days to such situations and instead adopt a notice period of at least 90 days, which is similar to the baseline under the prior rules.
30. Finally, we find that in light of the longer notice period we adopt today, we will discard the objection procedures as they apply to copper retirements. Specifically, we will modify the proposed rule as it pertains to objection procedures to delete the references to implementation dates in proposed paragraphs (g), (h), and (i) in their entirety. We do not, however, remove the objection procedures pertaining to short-term notices of non-copper retirement network changes in Section 51.333 because we are not creating a fixed six-month notice period for such planned network changes and because there is no evidence in the record that the concerns pertaining to copper retirements apply equally to other types of network changes. The extended notice period we adopt today will provide to interconnecting entities a notice period similar to the six months they previously would have been afforded if they successfully objected to the timing of a planned network change. Under the current rules, an interconnecting provider can object to the timing of a copper retirement and, if successful, delay the implementation of that retirement to six months from the date the incumbent LEC gave its original notice. This fixed period following the Commission's release of public notice will provide parties sufficient opportunity to work together to allow for any accommodations needed to maintain uninterrupted service to end users. And by fixing a single time period following the Commission's release of public notice, we provide all parties certainty and avoid the costs inherent in the objection process, which itself will be beneficial to all concerned.
31. We recognize the importance of information flow to competitors' abilities to ensure that a retirement of copper facilities does not disrupt service to their end users. We therefore include a good faith communication requirement in the modified rule we adopt today. Under the prior rules, an interconnecting provider could request “specific technical information or other assistance” to enable it to accommodate the planned network change. And in the
32. We conclude that the good faith communication requirement that we adopt today is consistent with the First Amendment because it compels disclosure of factually accurate information in a commercial context. Compelled commercial disclosures are not afforded the same protections as prohibitions on speech. Indeed, the Supreme Court has held that “[b]ecause the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides,” the commercial speaker's “constitutionally protected interest in
33.
34.
35. We also decline to adopt the proposal of certain commenters that incumbent LECs should provide competitive providers with an annual forecast of copper retirements. We understand that competitive LECs would find this type of information useful in planning for the effects copper retirements might have on their respective networks and customer contracts. However, incumbent LECs maintain that this type of information can constitute some of their most competitively sensitive information, and that such an advance disclosure requirement may risk putting them at a competitive disadvantage. We note that information contained in a forecast can change over time as circumstances change. Thus, the inclusion of a particular wire center in a copper retirement forecast does not guarantee that such a change in facilities will in fact occur or that it will occur within that timeframe. Thus, based on the record before us, we are skeptical of the value of such a requirement.
36. Finally, we decline to adopt a requirement that incumbent LECs establish and maintain a publicly available and searchable database of all their copper plant, whether it has been or will be retired, whether it will be removed, or a database of where copper retirements have occurred. Incumbent LECs oppose such a requirement because it “would divert vital resources away from the deployment of new fiber” and because “CLECs seeking to purchase UNEs . . . already have access to preorder systems that identify loop availability.” It simply is not clear based on the record available that creation of any such databases would be feasible or cost-effective. We are persuaded by commenters that such a requirement could impose an expensive and potentially duplicative, and therefore unnecessary, burden.
37.
38.
39. We conclude the benefits of providing customers with the information needed to make informed decisions regarding the services they receive from incumbent LECs outweigh any additional burdens these new notice requirements may impose on the incumbent LECs. Indeed, incumbent LEC commenters note the importance of working with their customers in connection with copper-to-fiber transitions. CenturyLink has even made sure in at least one instance to send postcards to its own customers, as well as to advise competitive LECs when their end user customers would be affected by a planned network change. And under the rules we adopt today, which we have modified from the rules proposed in the
40. We disagree with commenters who assert that rules mandating such notice are unnecessary. Although some incumbent LECs assert that they already provide such notice, it is not clear that many or all provide such notice, and as noted above the record reflects numerous instances in which notice has been unreliable absent a regulatory mandate. We thus find unpersuasive Cincinnati Bell's argument that because a carrier that will discontinue a service after a copper retirement will have to file a Section 214 application, to also requirement a copper retirement notice “would be redundant and confusing to consumers.” The simple, clear notice that we require is necessary because the record reflects that consumers are not receiving sufficient notice in all cases. Some incumbent LECs assert that they already must contact customers who need to have new terminal equipment installed as a result of a network change so that they may obtain access to the customers' premises. But this merely shows that incumbent LECs have incentives to communicate to a degree sufficient to obtain access to a consumer's premises; this does not demonstrate any incentive to educate consumers about issues such as whether existing services will remain available.
41. We also find unpersuasive the assertion that a notice requirement is unnecessary because the Commission's current rules already provide for notice to the public of planned network changes via Sections 51.325 and 68.110(b). First, we note that Section 68.110(b)'s notice requirements are not always triggered by a planned copper retirement. More importantly, however, we find that the general public notice now provided by incumbent LECs under Section 51.325, which typically takes the form of a general notice posted on the carrier's Web site, is not sufficient to give actual notice to those customers most likely to be affected by planned copper retirements. Until recently, consumers generally would not be directly affected in serious ways by most network changes because copper retirements in favor of fiber-only facilities were largely voluntary. In that environment, reasonable public notice could be effectuated indirectly by posting on the carrier's Web site where those most affected (
42. We disagree with commenters who assert that our proposed notice requirement would impose an unnecessary burden because most customers are ultimately happy with an upgrade from copper to fiber facilities. This line of argument reflects a fundamental misunderstanding of the purpose of the notice requirement, which in no way reflects a view that fiber services are inferior to copper— indeed, the Commission has embraced the transition to fiber and other high-capacity transmission media. First, even the many customers who are ultimately happy with a copper-to-fiber transition are likely to benefit from understanding the change that will be occurring. Moreover, there remains a segment of the population, however comparatively small, that is resistant to changes in technology or for whom the new technology proves to be inferior to the old, and that will benefit from information that might ease the transition for them or that will allow them to seek out service from another provider. In the case of copper, such individuals may prefer a line-powered transmission medium, they may be comfortable with a long-standing technology that “just works,” or they may not understand the benefits of alternative technologies. As noted by the Pennsylvania PUC, “copper retirements under the existing rule apparently has the potential to reduce wholesale, incumbent, or competitor access, thereby reducing retail customer choice.” And as noted by the City of New York, “absent clear, direct notice to
43.
44. We also believe modifying the proposed class of recipients in this way will make it easier for incumbent LECs to comply with their notice obligations by (1) limiting the circumstances under which they must provide notice to retail customers, and (2) removing the need for the incumbent LEC to make an independent determination regarding whether particular customers will require new or modified CPE or whether particular customers will be negatively impacted by the planned network change. This also obviates the need for the New York PSC's proposed requirement that incumbent LECs define “impacted customers” in their certifications. Notice to customers will not be required in those instances where operational copper remains in place. While under the rule that we adopt notice of a given copper retirement may be provided to more customers than would have received notice under the proposed rule, the notice requirement will be triggered less often because it will not be required if copper continues to reach the premises. Further, we conclude that this approach strikes the right balance in providing clarity, ensuring no customers are inadvertently excluded from the pool of recipients, and ensuring that notice is provided where it is most needed. Incumbent LEC commenters expressed concern regarding what they perceive as ambiguity about the proposed definition of “affected customers.” Another incumbent LEC feels that “ `affected customers' should be limited to those who must take some action in response to a network change, or whose service is affected due to a change in price, service feature or function, or equipment.” We emphasize that, consistent with our proposal set forth in the
45.
46. After review of the record in this proceeding, we conclude that it is warranted and appropriate to adopt the content requirements proposed in the
47. The rule we adopt today is modified from the proposal in the
48.
49. After reviewing the record before us, we conclude that we should require incumbent LECs to include in copper retirement notices to retail customers a neutral statement of the various service options that they make available to retail customers affected by the planned copper retirement. We also conclude that the notice that we require must be free from any statement attempting to encourage a customer to purchase a service other than the service to which the customer currently subscribes, but that this prohibition will apply
50. This neutral statement requirement and limited prohibition will better enable retail consumers to make informed choices about their services and will give them the necessary tools to determine what services to purchase without swaying them towards new or different offerings. We believe that this strikes the right balance between allowing incumbent LECs to advise their customers regarding the availability of advanced services and preventing potentially aggressive marketing tactics that might lead to consumer confusion. To be clear, nothing in the requirements that we adopt prohibits marketing new or different services in communications other than the notice that we require.
51. The record reflects extensive support for these requirements, and that they will carry clear value for consumers. As ADT observes, “[t]he Commission should not permit ILECs to use the technology transition to create new marketing opportunities for themselves.” Contrary to some assertions, we are not inserting ourselves in carriers' marketing strategies—indeed, carriers remain free to engage in unlimited marketing with the exception of the single neutral notice that we require.
52. Certain commenters assert that there is no record evidence to support the Commission's expressed concerns regarding the pressure certain carriers have allegedly brought to bear on customers to switch services. However, the record belies this assertion. For example, NASUCA pointed to a news story in Montgomery County, Maryland describing a consumer's experience with pressure to move from copper not just to fiber but to a package of digital services offered over the fiber network. And public interest commenters cite to various incumbent LEC actions that raise the concern that incumbent LECs' motivation to sell bundles may discourage the kind of neutral communication that we require. According to the Director of Montgomery County's Office of Consumer Protection, that office received complaints from consumers alleging that the carrier in question was engaged in “deceptive marketing practices” as it transitioned customers to the fiber network. That article also points to nationwide complaints filed with the Federal Trade Commission. The assertions about lack of evidence in the record also ignore the sources of support cited in the
53. We are not persuaded by the argument that prohibiting incumbent LECs from discussing the availability of advanced services prevents carriers from educating consumers regarding the benefits of fiber. The only thing our new rule prevents is the inclusion of such discussions in copper retirement notices issued pursuant to our rules, which could lead to confusion regarding the continued availability of the type of service to which the consumer currently subscribes. Incumbent LECs are free to provide information regarding advanced
54. Aside from the neutral statement requirement discussed above and the related requirement to make available a toll-free number and contact information, we decline to adopt any further content requirements. Certain commenters want the notices to retail customers to include detailed information regarding all possible changes that could result from a planned copper retirement, including “the impact on continuity of service in an electrical power outage” and the availability of substitute services. And one commenter proposes that notices to retail customers also “inform customers of their avenues to appeal to their Public Utilities Commission, Office of Consumer's Counsel, or the Federal Communications Commission if the change would bring about negative consequences for consumers.” We decline to adopt these proposed expanded content requirements. In an effort to minimize our regulation, we additionally decline to adopt the “separate postage” rule proposed by ADT, which would prohibit notices to retail customers from being included “in the same envelope” as any material marketing advanced services. The modified rule we adopt today will require incumbent LECs to identify “any changes to the service(s) and the functionality and features thereof,” which would include continuity of power. And as discussed below, the updated rule will require that incumbent LECs certify their compliance with Section 68.110(b)'s requirement that carriers notify customers when a planned change in facilities will affect the compatibility of CPE. With respect to the proposal that we require incumbent LECs to identify the availability of substitute services, we proposed in the
55.
56. The “one neutral notice” requirement that we adopt today largely addresses incumbents' arguments in opposition to the proposed prohibition on upselling contained in the
57. It is well-established that government may impose time, place, and manner restrictions on protected speech “provided the restrictions `are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a substantial government interest, and that they leave open ample alternative channels for communication of the information.' ” The Commission's upselling prohibition and neutral statement requirement are reasonable time, place, and manner restrictions given the low burden that these requirements place on providers and the substantial government interest they serve. Incumbent LECs will still be free to seek to inform customers about new or upgraded services in separate communications using whatever means they so choose, even during a network upgrade. Instead, the requirement of a neutral statement of product offerings and the prohibition on attempts at upselling in a copper retirement notice are intended to promote the substantial government interest of protecting retail customers, especially vulnerable ones such as the elderly, from aggressive and confusing upselling by incumbent LECs at the same time the carriers are informing those customers of changes in facilities. We are not seeking to control what incumbent LECs say to their customers or to impose our own view of appropriate upselling; rather, we seek to ensure that retail customers are fairly informed of the effect of a planned copper retirement without the possible added confusion of contemporaneous communications by their providers to attempt to sell them other, possibly more expensive services. The objective is to better enable retail consumers to make informed choices about their services. We conclude that this significant government interest would be achieved less effectively absent implementation of the prohibition and the neutral statement requirement.
58. The customer notice that we require is consistent with the First Amendment because it merely requires the provision of true factual information in a commercial context and therefore is consistent with
59.
60. However, we are cognizant of concerns that permitting customers to directly reply to emails containing copper retirement notices could impose a heavy administrative burden on them. Because we retain the notice-based process for copper retirement network change disclosures, we find that there is little reason to require incumbent LECs to allow customers to reply directly to these email notices. On the other hand, we find that the benefits to consumers of the other requirements we proposed in the
61.
62.
63. In addition, we emphasize and support the role of state commissions and Tribal governments to support consumer education around copper retirement. States traditionally have played a critical role in consumer protection, and we strongly encourage carriers engaging in copper retirement that affects consumers directly to partner with state public service commissions, Tribal entities, and other state and local entities to ensure consumers understand and are prepared for the transition. We note that the record reflects the benefit of cooperation between state commissions and carriers during the copper retirement process—including by ensuring minimal disruption to consumers. For instance, the Massachusetts Department of Telecommunications and Cable reports on its “recent experience with the transition of the Town of Lynnfield, Massachusetts to an all fiber network”
64.
65. We also decline to adopt the proposal of the Communications Workers of America that we should impose different notice requirements for network upgrades (
66. Finally, we decline to adopt the City of New York's proposal that we require proof of notice acknowledged by individual customers before allowing changes. We are concerned that such a requirement would unfairly penalize incumbent LECs for the failure of their customers to act. End users typically would not have an incentive to provide such an acknowledgement.
67. After consideration of the record and other avenues for input, we find that avenues to communicate with the Commission are sufficient and that formalizing a right to comment is not needed. We therefore decline to adopt the proposal to revise the network change disclosure rules to provide “the public, including retail customers and industry participants, with the opportunity to comment on planned network changes.” We are persuaded that a formalized comment process could be confusing to consumers because there is no approval process associated with copper retirements. Certain commenters support the Commission's proposal to provide retail customers with the formal right to comment on planned copper retirements, although at least one commenter urged the Commission to at least make clear how it will use comments submitted by the public. However, various commenters on both sides of this issue note that providing the public the right to submit comments formally (1) does not provide additional advantage beyond use of the existing email address, and (2) will confuse consumers and lead to dissatisfaction, because we did not propose to convert the network change disclosure process to one requiring Commission approval. As stated above, we reject requests that the Commission convert the current notice-based network change disclosure process to a process in which an incumbent LEC must obtain Commission approval before implementing a proposed copper retirement. The public, including consumers and competitive carriers, have multiple means with which to communicate with us regarding copper retirements. Since we adopted the
68. In the
69. After reviewing the record before us, we conclude that “reasonable public notice” in the context of copper retirements includes providing notice of the planned copper retirements directly to state authorities (the governor and the state PUC), the Department of Defense, and federally recognized Tribal Nations where the copper retirement will occur within their Tribal lands. Throughout this document, “Tribal Nations” and “Tribal governments” include any federally recognized Indian tribe's reservation, pueblo of colony, including former reservations in Oklahoma; Alaska Native regions established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688); Indian allotments; and Hawaiian Home Lands—areas held in trust for Native Hawaiians by the State of Hawaii, pursuant to the Hawaiian Homes Commission Act, 1920, Act July 9, 1921, 42 Stat. 108,
70. No commenters in this proceeding have brought to our attention any concrete difficulties that incumbent LECs would experience due to compliance with this proposed requirement. And various states already require carriers to file notices of network change with their public utility commissions. Moreover, various state commission commenters support this requirement, undercutting incumbent LEC arguments that states will be flooded with notices they do not necessarily want. Commenters opposed to the proposed rules argue that requiring additional notice to affected states and the Department of Defense could “introduce new and unwarranted complexity into the process” since such agencies will already receive notice to the extent they are customers who will receive notice in the regular course, pursuant to the
71. In the
72. After reviewing the record before us, we conclude that we should adopt the proposal, as modified below. In particular, we adopt a rule that requires an incumbent LEC to file with the Commission at least ninety (90) days before retirement is permissible a certificate of service, signed by an officer of the company and complying with Section 1.16 of the Commission's rules, that includes the following information:
• A statement that identifies the proposed changes;
• A statement that notice has been given in compliance with paragraph (b)(1) of the Section;
• A statement that the incumbent LEC timely served a copy of its notice filed pursuant to paragraph (b)(1) of the Section upon each entity within the affected service area that directly interconnects with the incumbent LEC's network;
• The name and address of each entity referred to in paragraph (d)(3) of the Section upon which written notice was served;
• A statement that the incumbent LEC timely notified and submitted a copy of its public notice to the public utility commission and to the Governor of the State in which the network change is proposed, to any federally recognized Tribal Nations with authority over the Tribal lands in which the network change is proposed, and to the Secretary of Defense in compliance with paragraph (b)(4) of the Section;
• If customer notice is required by paragraph (b)(3) of the Section, a statement that the incumbent LEC timely served the customer notice required by paragraph (b)(3) of the Section upon all retail customers to whom notice is required;
• If a customer notice is required by paragraph (b)(3) of the Section, a copy of the written notice to be provided to retail customers;
• A statement that the incumbent LEC has complied with the notification requirements of Section 68.110(b) or that the notification requirements of Section 68.110(b) do not apply;
• A statement that the incumbent LEC has complied with the good faith communication requirements of paragraph (g) of the Section and that it will continue to do so until implementation of the planned copper retirement is complete; and
• The docket number and NCD number assigned by the Commission to the incumbent LEC's notice.
73. Requiring this information is reasonable and necessary to ensure compliance with our rules, will assist with enforcement if any inaccuracies were subsequently found, and is consistent with the current requirement applicable to short-term notices in Section 51.333(a). Numerous commenters support this requirement. Incumbent LEC commenters, however, believe such a requirement is unwarranted. As previously noted, under the existing rules, notices of copper retirements must comply with the short-term notice provisions. We require identification of the docket number and NCD number to facilitate our processing of the certification. Monitoring compliance with the rules we adopt today would be difficult without incumbent LECs confirming for us that they have complied. And the consumer complaints brought to our attention by public interest commenters as well as the concerns raised by various competitive providers highlight the need for the Commission to be able to monitor compliance with the requirements we adopt today. The at least ninety-day time period we adopt is appropriate because it is as prompt as possible after all possible notification duties have been completed. We decline to require multiple staggered certifications to minimize the regulatory burden on incumbent LECs. The Enforcement Bureau will investigate potential carrier violations of the rules we adopt today governing the copper retirement process and will pursue enforcement action when necessary.
74. We conclude that Section 68.110(b)'s notice requirements and the customer notice requirements we adopt today are complementary. Section 68.110(b) requires that telecommunications providers give customers “adequate notice” of changes in network facilities if such changes will render CPE incompatible. Certain commenters argue that the protections afforded by Section 68.110(b)'s notice requirements, in conjunction with Section 51.325's public notice requirements for network changes, afford sufficient protections. Others argue for cross-referencing Section 68.110(b)'s notice requirements in any revised rules we adopt. We note, however, that Section 68.110(b)'s notice requirements will not always be triggered when public notice of a planned copper retirement is required under revised Section 51.325. We therefore also conclude that requiring incumbent LECs to certify their compliance with Section 68.110(b)'s notice requirements, when applicable, will ensure that incumbent LECs have evaluated the effect of any planned copper retirements on customers' terminal equipment. We are not persuaded by Cincinnati Bell that requiring incumbent LECs to certify that they have directly notified all interconnecting carriers “may be an impossible burden to meet.” As discussed above, under the predecessor rules to those we adopt today, copper retirements have been subject to the “short term notice provisions” set forth in Section 51.333(a); and under Section 51.333(a), which applies “if an incumbent LEC wishes to provide less than six months' notice of planned network changes,” the incumbent LEC already must certify that they have provided the public notice required by Section 51.325(a) directly to interconnecting telephone exchange service providers. As previously noted, incumbent LECs in fact include such certificates of service when filing their copper retirement notices with the Commission. The accelerated pace of broadband deployment and technology transitions warrant the Commission's reevaluation of the role of network change disclosures in protecting core values. Moreover, we conclude that the certification requirement embodied in Section 51.333(a), which we carry over to new Section 51.332(d), provides important protections. It ensures that all affected parties receive the appropriate notification.
75.
76. The updated network change disclosure rules we adopt today are crucial to protecting the core values of the Act, specifically the promotion of competition and protection of consumers. We disagree with
77. Finally, we reject arguments that Section 706 of the 1996 Act counsels against the actions we take today. Section 706(a) is a grant of authority to “utilize, in a manner consistent with the public interest, convenience, and necessity . . . measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.” Additionally, if the Commission determines that “advanced telecommunications capability” is not being deployed in a “reasonable and timely fashion,” Section 706(b) requires that the Commission “take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.” Our actions are consistent with these provisions. Contrary to Cincinnati Bell's assertion, it simply is not true that we are “forc[ing] [incumbent LECs] to preserve their copper networks.” In fact, we retain a notice-based process that provides a clear path to copper retirement. By promoting an environment in which all parties are more able to accept transitions away from copper, creating a more predictable retirement notification process, and retaining a notice-based process that does not erect additional regulatory barriers, the Commission acts to facilitate the deployment of advanced telecommunications services and remove potential barriers to infrastructure investment in a manner consistent with the public interest. We also promote competition by ensuring that interconnecting entities have the information that they need to continue to serve customers, and thus retain income needed for further investment, when copper facilities with which they interconnect are retired.
78.
79. Due to the current frequency and scope of copper network retirement, it is critical that industry participants and stakeholders clearly understand when our copper retirement notice process is triggered so that the momentum of prompt, responsible transitions is not abated. Therefore, it is necessary to clarify when a “copper retirement” occurs. We endeavor to catalyze further fiber deployment and find that eliminating this uncertainty removes one potential source of industry resistance or hesitation to retiring copper. Further, we find that providing additional clarity is critical for properly informing the public of network changes in accordance with Section 251(c)(5) of the Act and also for maintaining the Commission's core values. Our actions build on the
80. For the reasons set forth below, we adopt the expanded definition proposed in the
81. Section 251(c)(5) of the Act imposes on incumbent LECs “[t]he duty to provide reasonable public notice of changes in the information necessary for the transmission and routing of services using that local exchange carrier's facilities or networks, as well as of any other changes that would affect the interoperability of those facilities and networks.” Although our rules require this statutorily mandated notice in the event of “retirement” of copper facilities, we have not specified what constitutes “retirement,” and we have not revisited the issue of when copper retirement triggers a network change notification requirement in over a decade. Given the increasing pace and
82. The current network change disclosure rules do not include the feeder portion of loops within the relevant provisions, but they do include “retirement of copper loops or copper subloops, and the replacement of such loops with fiber-to-the-home loops or fiber-to-the-curb loops.” In the
83. We agree with the Pennsylvania Public Utility Commission that if the feeder portion is unavailable to competitive LECs, the practical difficulty of accessing the remaining portion of the loop for retail purposes is insurmountable. In many cases, replacement of copper feeder can have the same harmful effects as removal or replacement of the home run loops and sub loops, which are explicitly covered under the current rules. Therefore, we disagree with the incumbent LECs' argument regarding the supposed lack of benefits to consumers and competition. Incumbent LECs should not be permitted to avoid the network change notification requirements simply because they are replacing one portion of the loop instead of another equally critical portion. We also agree with XO Communications that specifying in our rules that retirement of copper feeder is a “retirement” will avoid confusion in the marketplace among both incumbent and competitive carriers. We therefore adopt our proposal that the feeder portion of the loop should be one of the copper facilities captured within the concept of retirement.
84. The existing network change notification rules do not define what actions constitute “retirement” and thus what actions trigger the notification duty under Section 251(c)(5). To address this lack of a definition, we proposed defining the term “copper retirement” as “the removal or disabling of” covered copper facilities,
85. We find that the phrase “removing or disabling” is appropriate because it captures the typical activities by which incumbent LECs have transitioned away from copper networks. Notably, no commenters argued against the use of the phrase “removal or disabling.” Moreover, it is straightforward enough to indicate that providers should understand the type of activity that implicates the notification process.
86. We conclude that “disabling” should be further defined to include rendering the copper facilities inoperable. We also agree with the California PUC that “disabling” should only refer to long term or permanent periods of time and that instances where facilities are temporarily inoperable due to a catastrophe or for repair should not constitute “disabling” under the new rule. We do not intend for the retirement definition to encompass the downtime associated with scheduled upgrades and repairs. However, we caution that a sufficiently long disabling of facilities (or the functional equivalent thereof) with no end in sight, even if ostensibly temporary, may constitute retirement for which a carrier must undergo our network change notification process. Because each circumstance will require careful analysis of the particular facts at issue—including but not limited to the length of time in which the facilities have been unavailable, the announced plans of the incumbent LEC with respect to the facilities, and the extent of unavailability—we decline to adopt any bright line time limits and instead clarify that we will resolve each issue on a case-by-case basis.
87. We also clarify that the term “disabling” does not, however, mean only affirmative acts by incumbent LECs. As discussed below, acts of omission, such as the failure to repair or maintain copper facilities, can also render those facilities inoperable. A sufficient and long-term level of neglect can therefore constitute retirement.
88. As for “removal,” we conclude it should be defined as the physical removal of copper. Cincinnati Bell suggests that the Commission consider creating two categories for retirement—one for physical removal and one for non-physical removal. It argued there are several reasons that incumbent LECs should have an option to retire copper in place without physically removing it, such as: The provision of structural support for fiber optic cables and the provision of line power (from the copper) to other equipment in the field. We agree with Cincinnati Bell that copper that remains physically deployed but no longer performs its vestigial telecommunications function may nonetheless retain utility, but we find it necessary for such facilities to go through the copper retirement notification process so that the public is notified that the facilities no longer function. We conclude, however, there is no need for a non-physical definition of removal because if copper remains physically present but is no longer capable of providing telecommunications services (
89. The
90. We find that the practice of deliberately allowing copper networks to deteriorate is harmful to competition, negatively impacting end users, and that
91. We agree with competitive LECs, state PUCs, and consumer advocates that the copper retirement definition should be expanded to include
92. We remind carriers that where they neglect copper facilities in a manner that constitutes
93.
94. The clarification we provide above provides carriers with sufficient flexibility to manage service calls by moving customers from a copper to a fiber network. We therefore do not believe it is necessary or appropriate to adopt the “safe harbors” from the copper retirement notice requirements we adopt today requested by Verizon—one “in which an incumbent LEC will not be considered to have engaged in
95. The modest clarification addresses the underlying concern that carriers will be unable to transition customers to fiber when service issues arise, while still achieving the Commission's pro-consumer goals. We understand TelePacific's concerns regarding involuntary transitions from copper to fiber, and the rules that we adopt strongly promote transparency regarding such transitions. However, we also recognize the need for carriers, when faced with exigent circumstances, to manage their networks and ensure that their customers do not have their service disrupted while their provider goes through the copper retirement network change disclosure process. Nor do we intend to subject carriers to liability for
96.
97.
98. We continue to “believe that sale of copper facilities could be a win-win proposition that permits incumbent LECs to manage their networks as they see fit while ensuring that copper remains available as a vehicle for competition.” We are pleased that incumbent LECs such as AT&T and Cincinnati Bell have expressed willingness to consider selling copper facilities that they intend to retire. Although we recognize that there may be difficulties involved, we encourage other incumbent LECs to consider selling copper facilities that they intend to retire.
99. While the potential benefits of sales of to-be-retired copper facilities are clear, we are not persuaded based on the record before us that we should mandate the sale of copper that an incumbent LEC intends to retire and/or establish for ourselves a supervisory role in the sale process. First, we agree with a number of commenters that Commission oversight of sales could be intrusive, costly, potentially a barrier to technology transitions, and would tax limited Commission resources. Second, the record has not revealed sufficient demand by competitive LECs or others for retired copper to warrant addressing the challenging legal and policy issues that likely would be raised. Third, as noted above, there is reason to expect that there will be willing incumbent LEC sellers in at least some markets without the need for regulatory action. Finally, we note that some state regulators are already active in this area, which mitigates at least somewhat the need for further Commission action.
100. We reject the argument that Commission intervention is necessary because incumbent LECs will refuse to sell facilities that they intend to retire to thwart competition or exercise market
101. We further facilitate technology transitions by addressing the service discontinuance requirements set forth in Section 214(a) of the Act. Section 214(a) mandates that the Commission must ensure that the public is not adversely affected when carriers discontinue, reduce, or impair services on which communities rely. Today, we act to ensure that transitions in the technologies used to provide service do not undercut the availability of competitively-provided services that benefit communities and enterprise customers of all sizes that serve those communities. Our actions encourage technology transitions that could otherwise be delayed if enterprise customers lose the option to make comparable purchases at comparable rates to those which are presently available, including through supply from competitive carriers. First, we clarify that consistent with our longstanding precedent, a carrier must seek our approval if its elimination of a wholesale service results in the discontinuance, reduction, or impairment of service to a community. This clarification will minimize further disputes and carrier uncertainty as to what Section 214(a) requires as technology transitions continue in the marketplace, thereby facilitating the ability of carriers and consumers to successfully navigate this transition. Second, we require
102.
103. We provide clarity and certainty for carriers seeking to transition technologies while continuing to protect the public in the manner mandated by Congress. We find that this clarification is necessary to fortify the Commission's ability to fulfill its critical statutory role in overseeing service discontinuances under Section 214 of the Act, which requires carriers to obtain a certificate from the Commission “that neither the present nor future public convenience and necessity will be adversely affected” by the carrier's plan to discontinue service to a community or part of a community. Section 214(a) and our implementing rules were designed to protect retail customers from the adverse impacts associated with discontinuances of service, and they ensure that service to communities will not be discontinued without advance notice to affected customers, opportunity to comment, and Commission authorization. Section 214(a) and our implementing rules ensure that the Commission has the information needed to determine whether the present or future public convenience and necessity will be adversely affected by the carrier's action. Our rules are designed to ensure that customers are fully informed of any proposed change that will reduce or end service, ensure appropriate oversight by the Commission of such changes, and provide an orderly transition of service, as appropriate. As the Commission has stated in a prior enforcement action related to the Section 214 discontinuance process, “[u]nless the
104. Our actions will help to ensure that before service that benefits a community is discontinued, reduced, or impaired, the Commission is able to conduct a careful evaluation of whether that action is consistent with the public interest. Competitive LECs are concerned that they will lose the ability to access the last-mile facilities necessary to serve their customers if incumbent LECs discontinue TDM-based services when transitioning from TDM to IP-based services. Several commenters state that discontinuance of wholesale services used by competitive LECs will necessarily, or is likely to, result in a discontinuance of service to retail end users. We address these concerns in the context of Section 214(a) and precedent by emphasizing that carriers must consider the impact of their actions on end user customers, including the end users of carrier-customers.
105. We reiterate that our intent is to fulfill our statutory duty to safeguard the public interest while also facilitating technology transitions and that “[t]o say that section 214 applies does not mean that section 214 approval will be withheld.” We also recognize that a carrier's discontinuance, reduction, or impairment of a wholesale service may not always discontinue, reduce, or impair service to retail end users. Rather, we emphasize that a carrier must undertake a meaningful evaluation of the situation, as discussed in greater detail below.
106. Our decision will ensure that the Commission is informed and able to fulfill its statutory duty with respect to discontinuances, reductions, or impairments of service used as a wholesale input, but it also ensures that carriers need not file an application where no such discontinuance, reduction, or impairment occurs. In addition, Section 214(a) states that no authorization is required “for any installation, replacement, or other changes in plant, operation, or equipment, other than new construction, which will not impair the adequacy or quality of service provided.” Thus, our action is not in tension with commenter assertions that retail services are not necessarily discontinued, reduced, or impaired by changes in wholesale service, and that there is little evidence to support a conclusion that retail services are discontinued, reduced, or impaired by such changes. We note that we find AT&T's assertion that discontinuance of service to competitive LECs' customers would “rarely be true” to be in tension with its separate statement that it cannot be expected to know how its wholesale customers' end users would be affected by a service discontinuance. We further address commenters' arguments that replacement services may be available to carrier-customers such that service to retail end users may not be affected
107. Because our careful review of Section 214(a) and precedent leads us to adopt the clarification articulated above, we find it unnecessary to adopt the rebuttable presumption proposed in the
108.
109. In
110. In
111. In
112. Our clarification finds especially strong support in
113. Therefore, we reject arguments that a carrier need not ever seek Commission approval for discontinuance of service to a carrier-customer. As explained above, these arguments ignore the fact-specific nature of the conclusions in those proceedings, and they overlook
114.
115. The framework articulated above maintains the distinction between discontinuances, reductions, and impairments that affect a community or part of a community (
116. When assessing whether a carrier's actions will result in discontinuance, reduction, or impairment of service to a carrier-customer's retail end users, consideration of whether replacement wholesale services are available to the carrier-customer from other sources is warranted. If such replacement services are reasonably available to the carrier-customer, retail end users may not necessarily experience a discontinuance, reduction, or impairment of service. However, we caution that bare speculation will not be sufficient to establish the necessary evaluation has occurred, and the carrier must have some basis for concluding that such alternatives will not result in discontinuance, reduction, or impairment of service to the carrier-customer's end users. Some commenters assert that retail customers will not be affected because adequate replacement or alternative services will typically be available independent of the wholesale service being discontinued, reduced or impaired. AT&T also argues that competitive LECs can “purchase or provide for itself a substitute,” for example by obtaining bare copper loops and utilizing their own electronics to provide service. We caution that such unsupported, blanket assertions will not be sufficient to establish the necessary evaluation has occurred. Moreover, the fact that there are other carriers in the market and other services are, or may be, available to a carrier-customers' end users does not eliminate a carrier's obligation to seek Commission approval and provide notice when its actions will discontinue, reduce, or impair service to retail customers. Consistent with precedent, any discontinuance, reduction, or impairment of service to the using public must be approved by the Commission pursuant to Section 214, and the Commission will consider whether there are adequate substitutes in the market; in such cases, the existence of alternative services “does not obviate the need for a section 214 finding.”
117. For example, many enterprise customers receive nationwide voice and other low-speed services from competitive LECs that depend upon wholesale voice inputs that combine local loops, switching, and transport. If such commercial wholesale platform services are discontinued, then this would constitute a discontinuance, reduction, or impairment to the enterprise end users if the competitive LEC carrier-customer cannot readily obtain a replacement input that would allow it to maintain its existing service without reduction or impairment. If, on the other hand, the competitive LEC could maintain its existing service through use of alternative inputs without material difficulty or costs that would necessitate discontinuance, reduction, or impairment as to its end users, then the incumbent LEC's action would not constitute a discontinuance for which an application is necessary to that set of end users. We recognize that rate increases alone do not trigger a Section 214 application and that the issue of whether rates for a service are just and reasonable is distinct from the issue of whether a discontinuance requires Commission approval. However, we disagree with commenter assertions that this principle is in conflict with our decision here, which addresses a carrier's Section 214 obligations only when: (1) The carrier ceases to provide service used by a carrier-customer as a wholesale input; (2) that discontinuance potentially adversely impacts a community; and (3) the carrier is not merely implementing a rate change for services that will remain available. Other commenters also assert that rate increases that simply increase a customer-carrier's costs do not discontinue, reduce, or impair service to a community or part of a community and are not a basis for requiring Section 214 applications. In these circumstances, prior Commission approval may be required if the increased cost to the carrier-customer due to the loss of a service input is such that it causes the carrier-customer to exit the market or materially and negatively change the services offered in the market such that there is a discontinuance, reduction, or impairment of service to end users. As the Commission has previously stated, “where the technical or financial impact on the carrier customer is such that it would lead to discontinuance or impairment of service to its customers, such considerations may establish that Section 214 authorization is required.” The Commission further found that the decision in
118. We disagree with commenters who assert that incumbent LECs are not in a position to determine whether discontinuing wholesale service will discontinue service to competitive LEC retail customers or are otherwise unsure of the impact on the community when they seek to discontinue wholesale service. These commenters further argue that, if we were to adopt the rebuttable presumption proposed in the
119. We emphasize that carriers must evaluate whether an application is required using all information available, including information obtained from carrier-customers. To be a thorough evaluation that would support a conclusion that no application is required, this must include at a minimum examining all information reasonably available to the carrier and reasonable efforts to ascertain the impact on retail end users. Nevertheless, we recognize that there may be times when a carrier, even after a thorough examination, is unable to determine the impact of its actions on a carrier-customer's end users. As a result, we clarify that when such information cannot be obtained from any sources, including carrier-customers, after an exercise of reasonable effort, the carrier may permissibly conclude that its actions do not constitute a discontinuance, reduction, or impairment of service to a community or part of a community with respect to end users of its carrier-customers and need not file an application for Commission approval on that basis. We anticipate that in an enforcement proceeding concerning whether a carrier discontinued, reduced, or impaired service without approval required by Section 214(a) (whether in response to a complaint from a third party or on our own motion), such efforts would be at issue. Some commenters argue that the proposed rebuttable presumption would require applications in many cases, but the statutory command of Section 214(a) does not depend on the frequency with which it applies (and, in any event, more frequent submission of applications would tend to show the importance of the statute's application in order to ensure that communities are protected in the event of a discontinuance, reduction, or impairment of service). In any event, more frequent submission of applications would tend to show the importance of the statute's application in order to ensure that communities are protected in the event of a discontinuance, reduction, or impairment of service). As noted above, we do not adopt the rebuttable presumption or a “process for rebutting the presumption.” Rather, we are providing greater clarity regarding the scope of the existing duty under Section 214. The Commission will continue to address such applications expeditiously. The Commission will continue to address such applications expeditiously. We note that some commenters argue that this process should be modified, and we seek comment on proposed changes to this process in the attached FNPRM.
120. Our clarification is necessary to ensure that all carriers—including both incumbent LECs
121. We find AT&T's assertion that carrier-customers should bear the burden of persuasion that discontinuance of wholesale service will discontinue service to a community to be inconsistent with the language of Section 214(a) and precedent, which put the burden on the carrier discontinuing service. Carriers must fully evaluate the impact of their actions and determine whether Section 214 requires that they file applications prior to implementation. The clarification we provide acknowledges that carrier-customers have information that will likely be useful to carriers when determining the impact of their actions on carrier-customers' retail end users. Nevertheless, the statute clearly places the compliance obligation on the carrier to seek approval if necessary before it proceeds. Evaluating whether approval
122. Moreover, we disagree with AT&T's assertion that the Commission's decision in
123. That said, we do not agree with commenters that argue we should adopt more prescriptive requirements to ensure that carriers have met their obligations under Section 214(a). For example, some commenters have proposed requirements that: The carrier submit documentation or a certification to the Commission identifying and providing the basis for its conclusion that the carrier has adequately rebutted the presumption, the carrier submit
124. Our decision today will be less burdensome for carriers than the proposed rebuttable presumption and properly balances burdens with our goals of protecting the public interest and supporting technology transitions. AT&T argues that the proposed rebuttable presumption would impose enormous costs on incumbent LECs to the detriment of the public and will “tax the resources of both carriers and the Commission.” AT&T also argues that this will cause unacceptable delay that will strand incumbents' resources while the Commission rules on each application and will cause adverse effects on the deployment of next-generation services that will ultimately harm consumers. AT&T seems to base its arguments on the erroneous assumption that every discontinuance of wholesale service will require Commission approval. We have articulated above the circumstances in which an application is not required. AT&T further includes the procedural burden of a “case-by-case adjudication to rebut the presumption” in its burden assessment. We do not adopt the rebuttable presumption or procedures to rebut the presumption and, in fact, we allow the carrier to determine through its own internal processes whether Commission approval of its actions is necessary. We have also sought to minimize burdens and cost, and facilitate technology transitions, by not requiring carriers to submit documentation or certifications to the Commission regarding their determination that no Section 214 filing is required.
125.
126. We find unwarranted the concern that the proposed rebuttable presumption would provide an opportunity for incumbent LECs' competitors “to abuse the section 214 process to challenge changes in service that have little impact on end-user customers” and are inappropriate for adjudication under Section 214. Under our decision, nothing in the Commission's Section 214 process will materially change: Carriers must assess the impact of their actions on the community and determine whether an application for Commission approval is required, the Commission will oversee the 214 process and ensure that any abuses are swiftly addressed, and the Commission will not consider objections to discontinuance applications that our precedent makes clear are not appropriate. The only change is that we have made clear that carriers cannot assume their actions have no impact on the community; they must undertake some internal process to determine whether a Section 214 filing is required.
127. In addressing the proposed rebuttable presumption, some incumbent LECs expressed concern that costs and delays associated with waiting for Commission approval may impede their plans to move to IP-based services and assert that this process, and its accompanying costs and delays, are not in the public interest. However, concerns about delays are misplaced. First, as we make clear, all situations
128. We reject the suggestion that we should not “equate the robustness of retail competition with the availability of retail service” when interpreting Section 214(a). This sets up a false dichotomy. AT&T attempts to suggest that the extent of retail competition is beyond the ambit of Section 214, based on the fact that “Congress added the `discontinue, reduce, or impair' portion of section 214(a) during World War II, when telephone service was still provided to communities on a monopoly basis.” But Congress enacted a forward-looking statute that does not tie the relevant evaluation to the specific market conditions of the monopoly era. The text of the statute simply states that “[n]o carrier shall discontinue, reduce, or impair service to a community” absent approval. The statute does not say, as it could, that “no carrier shall discontinue, reduce, or impair
129. We reject ITTA's proposal that we “adopt a safe harbor to limit liability” pursuant to which “if the ILEC [or other carrier] determines in the process of conducting its evaluation that” its action “would not impact its own retail end users (assuming, hypothetically, that it had retail end users that would be implicated), then no discontinuance application would be required.” Adopting such a safe harbor would be tantamount to reversing the clarification that we adopt because it would foreclose a carrier's duty to consider the full impact of its discontinuance of service on the community of end users and improperly permit it to consider only the slice of the community that it serves directly.
130. We decline to adopt the suggestions of commenters to make other modifications to the Section 214 process to benefit competitive LECs at this time. Thus, we do not interpret the statutory phrase “community, or part of a community” to include platform providers and other competitive LECs, in addition to retail customers, as suggested by some commenters. Such an interpretation would be inconsistent with precedent, and we decline to do so at this time. We continue to believe that our touchstone under Section 214(a) is the ultimate impact on the community served. Competitive LECs play an important role in providing (at least some of) the benefits of competition in enterprise services to many communities, but within the framework of Section 214(a) ensuring that competitive LECs remain able to compete is a means to ensure that our communications landscape serves the public, rather than an end in itself.
131. Adoption of an interim rule to ensure continued access to necessary wholesale inputs will facilitate continued availability of existing competing options, reduce disputes, and provide the clarity and certainty that all carriers need to accelerate their transition to all-IP infrastructure while the Commission grapples with longer-term questions. At the same time, adoption of a flexible, balanced framework will facilitate prompt transitions by incumbent LECs. Our ultimate goal is to ensure that both incumbent and competitive LECs are able to transition to IP as promptly and effectively as possible. The central issue underlying the arguments of all stakeholders on this issue is whether incumbent LECs are subject to substantial competition in the provision of the packet-based services that will replace the services being discontinued and therefore have every incentive to price competitively to retain the wholesale business. Whether and where such competitive alternatives exist sufficient to constrain rates, terms, and conditions to just and reasonable levels is strongly disputed and the subject of complex analysis we currently are conducting in the special access proceeding. By the interim rule that we adopt today, which will remain in place only until the special access proceeding is resolved, we are establishing a balanced, flexible principle that will facilitate the ability of carriers and customers alike to navigate the transition successfully and ensure that small- and medium-sized business, schools, libraries, and other enterprise customers continue to enjoy the benefits of competition.
132. Accordingly and for the reasons discussed below, we adopt an interim rule that incumbent LECs that seek Section 214 authority prior to the resolution of the special access proceeding to transition to all-IP by discontinuing, reducing, or impairing a TDM-based special access or commercial wholesale platform service (as specified further herein) that is currently used as a wholesale input by competitive carriers must as a condition to obtaining discontinuance authority provide competitive carriers reasonably comparable wholesale access on reasonably comparable rates, terms, and conditions. Although Section 214 applies to all carriers, the reasonably comparable wholesale access condition apply only to the services specified herein. The interim condition to which incumbent LECs must commit to obtain discontinuance authority will remain in place only for a limited time—specifically, the Commission will have adopted and implemented the rules and policies that end the reasonably comparable wholesale access interim rule when: (1) It identifies a set of rules and/or policies that will ensure rates, terms, and conditions for special access services are just and reasonable; (2) it provides notice such rules are effective in the
133. The Commission received many comments on maintaining wholesale access. Competitive LECs, industry and consumer advocacy organizations, several state commissions and other government entities, businesses, schools, and healthcare facilities support the Commission's tentative conclusion to require incumbent LECs that seek Section 214 authority to provide competitive carriers wholesale access on equivalent rates, terms, and conditions. These parties also generally support the principles proposed by Windstream as an appropriate method to evaluate whether incumbent LECs satisfy the equivalency requirement for wholesale access. Some parties support the Windstream principles with modifications, as discussed below. Many incumbent LECs, ITTA, Corning, and USTelecom and other industry groups oppose the Commission's tentative conclusion and adoption of specific factors to define “equivalent wholesale access.” Incumbent LEC commenters argue there is sufficient competition in the wholesale access marketplace that such use of the Section 214 discontinuance process is unnecessary and will stifle the technology transitions and harm innovation. USTelecom argues that the FCC could establish a presumption that incumbent LECs are no longer dominant in most or all voice markets nationwide because competitive LECs and cable providers control over 45 percent of the market for business voice services, attempting to draw a parallel with the FCC's finding that there is effective competition for cable companies in the market for multichannel video programming (MVPD) services because the direct broadband satellite (DBS) providers have captured 34 percent of MVPD subscribers. However, we find USTelecom's comparison to be inapposite because, despite the relatively similar degrees of market share, the DBS providers do not rely on incumbent cable operators to provide their products to customers whereas competitive LECs rely on the networks and services of incumbent LECs. In addition, “effective competition” for cable systems is a term of art established in the Communications Act via specific tests, and such tests do not apply in the context of competition between incumbent LECs and competitive LECs.
134. We recognize the importance of preserving opportunities to continue to provide the competition that competitive LECs have brought to the enterprise market. Competitive LECs are the primary source of competition for wireline communications services purchased by enterprise customers, including government, healthcare, schools, and libraries. We note that according to the Commission's most recent Local Telephone Competition Report, competitive LECs using leased copper and fiber facilities provide substantially more business lines than cable operators. COMPTEL explains that Ethernet over Copper (EoC) services built using DS1s and DS3s as wholesale inputs allow small and medium-sized businesses to realize many of the same efficiencies of Ethernet technology that previously only were available to larger enterprise customers. Moreover, XO states that it currently provides EoC from over 565 local serving offices and to approximately 953,000 buildings. The continued existence of these competitive options enhances the ability of enterprise customers to choose the most cost-effective option for their business or organization.
135. The record contains compelling comments alleging that competitive LECs will be unable to serve their retail customers at competitive rates, terms, and conditions without reasonable access to incumbent LEC last-mile inputs. As such, their end-user customers could potentially face higher communications costs and less competitive choice. We seek to avoid the situation where a competitive LEC may irrevocably lose business as a result of the technology transitions and loss of wholesale inputs even though such wholesale inputs may ultimately be made available as a result of the special access proceeding. Although some commenters disagree, competitive LECs maintain they are still dependent on incumbent LEC last-mile inputs to serve small- and medium-sized customers. In particular, competitive LECs, which often serve their customers pursuant to long-term contracts, question whether they may continue to serve these
136. We conclude that in the absence of any interim protection, competition from competitive LECs could be irrevocably lost depending on the answers to key factual questions that we are not yet able to answer. To the extent the wholesale prices of replacement packet-based services are unreasonably high, competitive LECs may be unable to modify the terms of their long-term retail contracts to recover the increased cost of the wholesale inputs without losing customers or losing revenue and potentially exiting the market, to the detriment of its customers and the public they serve. Moreover, in offering new contracts to customers, competitive LECs could in these circumstances be forced to raise their prices, so a switch to packet-based services could weaken the constraint competitive LECs place on incumbent LEC market power. These results would delay the positive effects of the technology transitions on competition and the economy. Thus, without our interim reasonably comparable wholesale access rule, the prices competitive LECs must pay for wholesale inputs could substantially increase, thereby substantially increasing the costs to their customers. We want to ensure that technology transitions continue to positively affect competition to the benefit of end-user retail customers and the economy at large. Therefore, we conclude we should limit potential temporary disruptions by requiring that wholesale inputs continue to be offered on reasonably comparable rates, terms, and conditions until the Commission develops longer-term policies for such services after a full analysis of the special access market.
137. The reasonably comparable wholesale access interim rule will ensure existing competition is not diminished by bridging the gap until the Commission's special access proceeding is complete. As stated above, data show that competitive LECs currently are the principal source of competition to incumbent LECs in the enterprise market. Competitive LECs provide broadband services that “are vital inputs for small and medium business and enterprise users, including mobile carriers.” The Commission recognizes the critical role that wholesale access to last-mile inputs plays in promoting competition and has emphasized the “technology transitions should not be used as an excuse to limit competition that exists.” In addition, the City of New York expressed concern about the cost of replacement services, “both in its role as a consumer advocate and in its role as a large customer.” Ad Hoc Telecommunications Users Committee also expresses concern about continued availability of competitive services from the perspective of retail customers. Moreover, Public Knowledge, NASUCA and state public service commissions also recognize that retail customers will be harmed if competitive LECs do not have sufficient access to wholesale inputs. We find these arguments persuasive that action is needed.
138. In the
139. We agree with CenturyLink that incumbent LECs should be required to provide no more than a “reasonably comparable” alternative.” Our interim rule adopts such an approach. We recognize concerns that temporarily basing rates for higher speed IP-based services that replace discontinued TDM wholesale inputs on legacy rates, terms, and conditions may create disincentives for innovation, and we find that a moderated “reasonably comparable” approach best balances ensuring ongoing competition with minimizing disincentives for incumbent LECs.
140. As stated above, the record convinces us that there is a substantial risk that competition could be lost in the absence of the interim wholesale access condition that we adopt. However, we recognize that we are
141. If we were to fail to adopt any wholesale access requirement, we risk allowing the benefits of competition to be lost irrevocably. At the same time, we have come to the conclusion that adopting an “equivalent wholesale access” requirement would go too far in advance of determinations yet to be made in the special access proceeding by exporting in its entirety the complex tariffed framework currently applicable to incumbent LEC DS1 and DS3 services and applying it to replacement services. Given the factual disputes that underpin the parties' arguments, which we will examine in the special access policies. access proceeding, we find that the middle course that we adopt today strikes the correct balance between preserving competition and promoting transitions by all parties during the interim period of factual uncertainty before the resolution of the special access proceeding. We agree with the New York PSC that “legacy policies regarding wholesale access and obligations should be reviewed so as not to burden ILEC investment in more reliable, robust and innovative networks.” We find that the standard that we adopt accomplishes this goal. We also disagree with ITTA that our actions are “premature” in light of any actions the Commission may take as part of that proceeding. We do not attempt to prejudge any findings in the special access proceeding in this Order. Rather, by limiting the duration and stringency of the equivalent wholesale access requirement proposed in the
142. We reject arguments that adopting a wholesale requirement is bad policy. These arguments misconstrue the modest, time-limited nature of the requirements we adopt and fail to take into account the “reasonably comparable” standard that we adopt. CenturyLink cautions that “exit approval requirements are among the very most intrusive forms of regulation . . . [and] are only appropriate when retail customers will be left without any reasonably comparable alternative.” Since our interim rule is specifically designed to ensure the availability of reasonably comparable offerings to retail customers by ensuring competitors maintain access to reasonably comparable wholesale inputs, we find it appropriate to avoid precisely the situation that CenturyLink describes as warranting action. As discussed above, it is not yet clear whether (or where) competitive alternatives exist that are sufficient to constrain a discontinuing incumbent LEC's rates, terms, and conditions for replacement services. Absent such alternatives, competitive LECs and their customers could be left with less choice and higher prices. To ensure technology transitions do not harm our core value of competition, prophylactic action is necessary to ensure that the competition that exists today is not undermined, at least until the Commission completes its full, data-driven evaluation of the special access market.
143. Some commenters further assert that a wholesale access condition will “micromanage” technology decisions or network upgrades. We disagree. As discussed herein, the interim rule the Commission has established is flexible in nature and avoids rigid prescriptions. It also is limited in duration and scope so as not to overburden the incumbent LECs or impede their technology transitions. Of note, the condition applies only when an incumbent LEC discontinues a TDM special access or commercial wholesale platform service used as a wholesale input (as opposed to when it offers that service alongside new IP-based services). And within those bounds, this rule will ensure that competitive LECs continue to access wholesale last-mile inputs at reasonably comparable rates, terms, and conditions during the technology transitions while the Commission continues its review of special access market.
144. Some commenters also claim that there is sufficient intermodal competition so an interim wholesale access condition is not necessary to ensure businesses, government, and other organizations have choice, competitive prices, and innovative service offerings. Verizon and USTelecom point to the growing broadband market share of mobile and cable providers as proof that competitors are successfully serving the enterprise market over their own last-mile facilities or wholesale arrangements and therefore no additional regulation is necessary. We are encouraged by the growth in intermodal competition; however, we do not wish to prejudge the special access proceeding's comprehensive data evaluation. As discussed above, competitive LECs are dependent on incumbent LEC last mile wholesale inputs to provide service to enterprise customers, governments, schools and libraries, and other organizations. Our goal, as reiterated throughout this Order,
145. We also decline to adopt a presumption in favor of approving discontinuance of a retail service if at least one competitive alternative is available. Under our precedent, the Commission evaluates a range of factors to determine whether to grant a discontinuance application. In evaluating an application for discontinuance authority under Section 214(a), the Commission considers five factors that are intended to balance the interests of the carrier seeking discontinuance authority and the affected user community: (1) The financial impact on the common carrier of continuing to provide the service; (2) the need for the service in general; (3) the need for the particular facilities in question; (4) the existence, availability, and adequacy of alternatives; and (5) increased charges for alternative services, although this factor may be outweighed by other considerations. As explained above, the reasonably comparable wholesale access interim rule applies as an interim condition in addition to and separate from the multifactor evaluation of whether to grant the application. We do not see a reason to deviate from these longstanding and clearly articulated criteria by which we evaluate Section 214(a) applications, which already take into account whether alternatives are available. Moreover, our existing criteria better capture and balance the public interest than would CenturyLink's proposal to give the availability of a competitive alternative new primacy. Thus, we are not convinced that this proposal is in the best interest of the public that consumes communications services, which must be our primary consideration. Further, at present we grant the vast majority of applications within 31 or 60 days of release of the Commission's public notice of the application filing, and we are not currently convinced that this process needs to be further expedited.
146.
147. While we categorically exclude special access DS0s from the reasonably comparable wholesale access interim rule, we recognize the importance of competition in basic voice service to businesses and other enterprises. If an incumbent LEC discontinues a TDM-based wholesale voice arrangement that includes DS0 local loops, switching, and transport in a commercial unbundled network element platform (UNE-P) replacement arrangement, such as AT&T's Local Service Complete and Verizon's Wholesale Advantage (commercial wholesale platform service), under the interim rule the incumbent LEC must offer the replacement service at reasonably comparable rates, terms, and conditions. AT&T argues that before the Commission can condition the withdrawal of commercial wholesale platform services on the availability of reasonably comparable replacement services, it must address the basis for its jurisdiction over wholesale voice platform services because they are local in nature, do not appear in any interstate tariffs, and are not classified as Section 251 unbundled network elements. However, the interim reasonably comparable condition will apply to commercial wholesale platform services only in the limited context of Section 214(a) discontinuances, thereby obviating AT&T's concern about our overall jurisdiction over such services. Large, well-known companies—including Starbucks, Sears, Bed Bath and Beyond, Panera, Tory Burch, Domino's, Simon, and Scholastic—and education, community, and governmental organizations—such as YMCA of San Francisco, Scholastic, and Washington Metropolitan Area Transit Authority—have filed letters with the Commission expressing concern about the lack of competitive options if competitive LECs lose access to commercial wholesale platform service. Based on the record, we conclude that these IP-replacements services should be subject to the reasonably comparable wholesale access condition so competitive LECs may continue to serve multi-location business customers that have modest demands for voice service.
148. Certain competitive LECs depend significantly on commercial wholesale platform services. These competitive LECs offer multi-location businesses voice services at each location by combining value-added services with underlying TDM-based telephone services purchased at wholesale from incumbent LECs. These competitors also argue that the combined platform services are necessary as a complete wholesale input to serve customers with lower bandwidth needs. We are persuaded by evidence in the record that competitive LECs are unable to offer their multi-location services without access to the wholesale platform replacement service pursuant to agreements that are reasonably comparable to the entire wholesale platform agreements for the discontinued service with incumbent LECs. Moreover, the information in the record does not suggest that the costs of providing this commercial wholesale platform replacement service are significantly different than those of the TDM-based service. However, with respect to the cost to provide DS0 service, Verizon claims “that necessary
149. This extension of our reasonably comparable wholesale access condition is necessary to further the technology transitions underway. Verizon argues that the fact that incumbent LECs offer on a “voluntary” basis commercial wholesale platform service “is the best evidence these customers will continue to have options.” We note that Section 214(a) requires carriers to obtain Commission authority to discontinue, reduce, or impair service to a community, or part of a community, without respect to whether the service was initially provided on a voluntary basis. We are encouraged by the availability of these TDM offerings in the marketplace. However, we note that Section 214(a) requires carriers to obtain Commission authority to discontinue, reduce, or impair service to a community, or part of a community, without respect to whether the service was initially provided on a voluntary basis. Our Section 214 authority addresses AT&T's assertion that before including commercial wholesale platform services under the revised Section 214 discontinuance regulations, the Commission must “address the fact that the ILECs have been providing these services on a voluntary basis under commercially negotiated contracts since the obligation to provide the unbundled network element platform was struck down by the Courts.” Pursuant to this Section 214 framework, we are persuaded that the temporary condition we adopt today for commercial wholesale platform services is warranted in order to provide certainty and clarity during these stages of the technology transitions, in which the perceived, looming sunset of TDM service raises questions as to whether end-user customers will continue to receive competitive options for their multi-location, low-bandwidth businesses.
150. In reaching these conclusions, we reject the argument that the interim reasonably comparable wholesale access condition “must be limited to DS1 and DS3 special access services.” With respect to special access, we include within the scope of the condition all special access services at or above DS1 speed to provide both competitive and incumbent LECs with greater flexibility than would be available if we limited speed intervals more rigidly. And for the reasons stated above, we reject the argument that we should exclude commercial wholesale platform services, which provide a crucial input for services on which many multi-location businesses depend.
151.
152. We seek comment in the FNPRM about whether or not the reasonably comparable wholesale access condition, as it applies to the commercial wholesale platform service, should be extended beyond the completion of the special access proceeding. Even though commercial wholesale platform services are not special access services, the timing we adopt is appropriate because the special access proceeding provides a foreseeable and definitive point in the future at which we can reassess the efficacy and necessity of the requirement that we adopt and will entail a comprehensive evaluation of competition pursuant to which the Commission intends to adopt a set of rules and/or policies that may have wide-ranging effects on telecommunications competition. We reject Granite's argument that we should not specify the term for the condition as to commercial wholesale platform services at this time and instead merely seek comment on the appropriate term. We find that this approach would leave a key aspect of our requirements too vague and that the lack of predictability inherent in this approach risks deterring
153.
154. Further, we find that our authority under Section 214(a) supports adoption of the reasonably comparable wholesale access interim rule. As discussed above, consistent with Section 214(a) and precedent, a carrier must obtain Commission approval before discontinuing, reducing, or impairing a service used as a wholesale input when the carrier's actions will discontinue, reduce, or impair service to retail end users, including a carrier-customer's retail end users. We find that as incumbent LECs transition from TDM-based services to IP, competitive LECs may be unable to obtain wholesale replacement services at reasonably comparable rates, terms, and conditions, and lack of wholesale alternatives will adversely affect its retail customers and harm the public interest. And, as discussed above, as a matter of statutory interpretation, these retail customers are part of the community identified in Section 214(a) and thus it is consistent with precedent to address their needs through Section 214 when services are discontinued. This is the best interpretation of the relevant statutory language and helps us to ensure that technology transitions do not thwart the public policy objective, enshrined in the Telecommunications Act of 1996, to promote competition. The rule changes we adopt in this rulemaking process ensure that Section 214 of the Act continues to be implemented in an effective manner throughout the technology transitions process. For these reasons, we are not persuaded by the argument that the Commission's application of Section 214 conditions to wholesale services exceeds its statutory authority.
155. Some commenters claim that our interpretation of Section 214 cannot be squared with other provisions of the Act. That is, they claim that there are statutory provisions directed to competition between carriers, including Sections 201, 202, 251, and 252, and they claim that the Commission cannot impute competition provisions into Section 214. We are not persuaded by this argument. The mere fact that the Act contains provisions designed to open markets to competition does not preclude the Commission from considering competition in the wholesale last-mile input market as part of its Section 214 public interest analysis. The wholesale access condition and requirements we adopt in this Order ensure that Section 214 is implemented in a way that maintains its effectiveness in the technology transition context. Moreover, we consider the pro-competition provisions of the 1996 Act as a whole, and thus disagree that competition is considered as a factor in Sections 251, 201, and 203 but not 214, as competitive access to wholesale inputs ultimately affects end users. We further disagree with ITTA that “established law” prohibits the reasonably comparable wholesale access interim condition. The Commission's “public convenience and necessity” mandate includes pro-competition considerations more strongly now than prior to enactment of the Telecommunications Act of 1996.
156. It is not necessary for us to satisfy the substantive and procedural requirements of Section 205 to adopt the interim reasonably comparable wholesale access condition, contrary to AT&T's assertion otherwise. Sections 205 and 214 are distinct and independent sources of authority. The DC Circuit has confirmed that “Section 214(c) does, in [the court's] judgment, authorize the Commission to restrict” Section 214 applicants outside of the tariffing process “in derogation of the legislative compromise embodied in Sections 203-205” so long as “it has affirmatively determined that `the public convenience and necessity [so] require.' ” AT&T asserts that the 1977
157. It would be incongruous for Section 205 to restrict our authority under Section 214 given the different scope of the two provisions—while our Section 205 authority applies to “any charge, classification, regulation, or practice of any carrier or carriers,” the reasonably comparable wholesale access condition applies
158.
159. Because of the flexible nature of our reasonably comparable wholesale access standard, we recognize the need for a similarly flexible case-by-case approach to evaluating the reasonable comparability of rates, terms, and conditions. This approach also is beneficial because it recognizes that circumstances in each market will vary, as will the rates, terms, and conditions associated with the discontinued service and the replacement service. We therefore adopt a “totality of the circumstances” test for evaluating compliance with the “reasonably comparable wholesale access” condition. Notwithstanding the flexible approach that we adopt, we are cognizant of the importance of providing guidance to parties. In the
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160. We adopt these specific questions to provide guidance as to what constitutes reasonably comparable
161. For the reasons set forth below, as part of any evaluation of compliance with the reasonably comparable wholesale access condition, we would inquire, “Will the price per Mbps of the IP replacement product exceed the price per Mbps of the TDM product that otherwise would have been used to provide comparable special access service at 50 Mbps or below?” A positive response would weigh toward a conclusion that reasonably comparable rates, terms, and conditions are not being offered, particularly if there is not a sound reason for a given rate increase.
162. Competitive LECs argue that this inquiry (framed as a requirement by Windstream) is necessary to ensure the continued availability of wholesale access to last-mile inputs at a cost to competitive LECs that will enable them to remain effective competitors. In addition, Windstream and Birch et al. assert that many small- and medium-sized businesses and multi-location businesses benefit from the availability of TDM-based special access services. As discussed above, incumbent LECs and other commenters object to a wholesale access condition as a whole, but do not address this specific issue. They argue that pricing conditions attached to a Section 214 discontinuance application are unlawful and would impede deployment of next generation services. However, as discussed above, we find that requiring reasonably comparable levels of wholesale access to services when incumbent LECs transition their legacy networks is necessary to preserve the Commission's core value of competition during the pendency of the special access proceeding. This specific question that we will ask goes to the price relationship between TDM and IP products that is the heart of the interim reasonably comparable wholesale access condition that we adopt.
163. We ask this question on a “price per Mbps” basis to emphasize flexibility for both incumbent and competitive LECs. Unlike DS1s, Ethernet services do not have to be offered in 1.5 Mbps increments. We agree with CenturyLink and other incumbent LECs that IP-based technologies allow greater flexibility in speed offerings compared to TDM. We wish to preserve this flexibility for incumbent LECs so that they can respond to market demands in deciding speeds for their Ethernet service offerings. But to preserve this flexibility and to avoid rendering the reasonably comparable wholesale access condition toothless, it is necessary to ask whether price comparability is available across the speeds that the incumbent LEC offers. This specific question that we will ask goes to the price relationship between TDM and IP products that is the heart of the interim reasonably comparable wholesale access condition that we adopt. Moreover, because we recognize speed offerings between TDM and IP may vary, incumbent LECs are able to offer IP speeds that have no TDM predecessor offering at exactly equal speeds. Because it is not possible to calculate rates solely on a “one-to-one” basis, it is necessary to inquire about the rate to be calculated based on a “per Mbps” speed of service denominator.
164. We will generally limit our inquiry regarding price per Mbps to replacement services at or below 50 Mbps. Based on the record, 50 Mbps appears to be the closest standard speed offering to a DS3 offering of 44.736 Mbps. In doing so, we reject arguments by the Wholesale DS-0 Coalition, Granite, and others that this inquiry (framed as a requirement in the
165. With respect to special access services, we believe that the incumbent LECs' DS1and DS3 generally available tariffed rates at the time of discontinuance, including discounts associated with three- and five-year term and volume discount plans, are the appropriate interim benchmark for measuring the rate relationship between IP-based replacement service and the discontinued service during our inquiry and will provide an efficient and objective measure for both incumbent LECs and their wholesale customers to determine rate comparability. We specifically will inquire about the rates, terms, and conditions associated with three- and five-year term and term-and-volume discount plans as a pricing benchmark given the fact that a significant share of special access purchases takes place at those terms and that they therefore function as reasonably representative interim pricing arrangements. We acknowledge that these pricing options still encompass a variety of different pricing arrangements. Rather than attempt to address all aspects of these varied arrangements, we will evaluate these issues as they arise and leave it to the parties to resolve these details in good faith in their negotiations. We expect that, other things being equal, we would deem it to be reasonably comparable and thus compliant with the wholesale access condition for parties to treat existing pricing arrangements as a default setting for rates for replacement services. This approach will facilitate technology transitions in the interim until the Commission completes its current review of special access regulation. To ensure that current levels of competition are not curtailed as we facilitate technology transitions, we also include within the scope of our reasonably comparable wholesale access requirement new customers and existing customers who wish to purchase additional services; reasonably comparable rates, terms, and conditions must be offered to such entities and not only to existing customers as to existing services. Finally, we will inquire whether purchasers that make volume commitments under tariffed special access discounts are being penalized through loss of a discount or through shortfall or early termination penalties
166.
167. For the reasons set forth below, as part of any evaluation of compliance with the reasonably comparable wholesale access condition, we would inquire, “Will an incumbent's wholesale charges for the IP replacement product exceed its retail rates for the corresponding offering?” A positive response would weigh toward a conclusion that reasonably comparable rates, terms, and conditions are not being offered, particularly if the rate disparity is significant or if there is not a sound reason for any differences in offerings. It remains an open question whether there are suburban, remote, rural and other areas not served by cable or other modes of service where the only competition that exists at the retail level is between an incumbent LEC and a competitive LEC that needs wholesale access from the incumbent LEC in order to compete at the retail level. We recognize that competitive LECs continue to play the most significant role in competing with incumbent LECs for enterprise telecommunications business. As a result, depending on the competitive state of various markets, there may be an incentive for the incumbent to charge higher rates at the wholesale level in order to prevent or disadvantage competition at the retail level. Whether and where such competitive alternatives exist is precisely the analysis we are conducting in the special access proceeding. Absent such alternatives, competitive LECs and their customers will likely be left with less choice and higher prices.
168. We find that this inquiry is necessary to verify the offering of reasonably comparable wholesale access, which ensures that competitive LECs are able to compete. We further find that this inquiry concerning discrimination includes related costs such as the imposition of special construction charges and timing of provisioning. The guarantee of competitive wholesale access free of unreasonable discrimination has played a bedrock role in facilitating the market competition that exists today. Until we are able to reach appropriate long-term conclusions about the state of the wholesale access market in the special access proceeding, we find it necessary, as an interim measure, to inquire whether and to what degree discrimination exists between retail and wholesale customers to determine whether reasonably comparable rates, terms, and conditions are being offered.
169. For the reasons set forth below, as part of any evaluation of compliance with the reasonably comparable wholesale access condition, we would inquire, “Will the price (net of any and all discounts) of wholesale voice service purchased under a commercial wholesale platform service be higher than the price of the existing TDM wholesale voice service it replaces, and the price (net of any and all discounts) for the lowest capacity level of special access service at or above the capacity of a DS1 increase?” A positive response to any of these questions would weigh toward a conclusion that reasonably comparable rates, terms, and conditions are not being offered, particularly if there is not a sound reason for a rate increase. We emphasize that this pricing-related factor—given that pricing is at the heart of commercial negotiations—will be extremely important in our analysis.
170.
171. This question is distinct from the first question articulated above because it is not calculated on a per Mbps basis; we simply ask whether the lowest capacity level at or above DS1 to be offered is offered at the DS1 rate. This more stringent component of any evaluation will help to obviate the risk that an incumbent LEC would only offer higher speed services and thereby cutoff any replacement similar to DS1s because such a change would be unlikely to constitute reasonably comparable rates, terms, and conditions. Without any focus on the price relationship of the closest IP equivalent to the current pricing for basic service, incumbent LECs could avoid a rate standard “by simply offering only high capacity (and therefore higher priced wholesale inputs).” We expect the efficiencies inherent in the provision of IP service will ensure that even if incumbent LECs maintain rates equal to or below TDM rates for the DS1 replacement service, the resulting rates will allow incumbent LECs to recover their investment in marginally faster IP services.
172.
173. We find this additional inquiry to evaluate the comparability of rates, terms, and conditions for commercial wholesale platform arrangements builds on the other inquiries that we adopt and our proposals in the
174. For the reasons set forth below, as part of any evaluation of compliance with the reasonably comparable wholesale access condition, we would inquire, “Will wholesale bandwidth options include the same services retail business service customers receive from the incumbent LEC?” A negative response would weigh toward a conclusion that reasonably comparable rates, terms, and conditions are not being offered, particularly if the range of offerings is significantly more limited or if there is not a sound reason for any differences in offerings. We recognize that any wholesale access standard could be obviated “by simply offering only high capacity (and therefore higher priced wholesale inputs).” We will therefore ask this question as a part of our totality of the circumstances inquiry to facilitate a determination of whether rates, terms, and conditions of replacement services are reasonably comparable. We find that the existing services an incumbent LEC makes available to retail business service customers provides baseline from which to conduct our evaluation because incumbent LECs find it convenient to provide these services in the market. Sprint argues that an incumbent LEC, at a minimum, should be required to offer the same variety of speed offerings that it currently offers in TDM-based services, “or the speed offerings of its retail IP services, whichever is greater.” While we agree that we should evaluate the relationship between the speeds of IP offerings to retail business customers and to competitive LECs, we decline to focus our inquiry on whether incumbent LECs retain TDM-based speeds. Such an inquiry may improperly lock incumbent LECs into legacy speed offerings, which is contrary to the purpose of the flexible reasonably comparable wholesale access condition that we adopt.
175. For the reasons set forth below, as part of any evaluation of compliance with the reasonably comparable wholesale access condition, we will inquire, “Will service functionality and quality, OSS efficiency, and other elements affecting service quality be equivalent or superior compared to what is provided for TDM inputs today? Will installation intervals and other elements affecting service delivery be equivalent or superior compared to what the incumbent LEC delivers for its own or its affiliates' operations?” A negative response to either question would weigh toward a conclusion that reasonably comparable rates, terms, and conditions are not being offered, particularly if the level of difference is significant or if there is not a sound reason for any impairment. We are persuaded that quality of service and reliable installation and delivery are important so that wholesale customers can continue to compete. Therefore, in considering whether reasonably comparable rates, terms, and conditions are available, we will examine the factors identified by the question above. As discussed herein, competitive LECs are dependent on wholesale inputs to serve their retail customers and if the service delivery or quality of the IP replacement service is unduly impaired, these carriers likely will be unable to provide competitive services to their customers. We note the Commission addressed discrimination issues with respect to broadband Internet access service in its
176. We agree with competitive LECs and enterprise customers that at least in areas where incumbent LECs face competition only from their wholesale customers, the incumbent LECs may have an incentive to disadvantage their wholesale customers by degrading the quality of the wholesale service. Given the inherent efficiencies of IP-based service, we do not believe that this component of our inquiry—or the overall reasonably comparable wholesale access condition—will be unduly burdensome, and we anticipate that the costs of compliance generally will be lower than (or at a minimum
177. Although the Commission will consider the questions discussed above as part of the totality of the circumstances test, the Commission is not limited to these questions in its analysis and may consider other evidence. For example, in the 2011
178.
179.
180. We also decline to include additional requirements to our evaluation of the reasonably comparable wholesale access condition. Specifically we decline to impose a certification requirement proposed by some commenters as it is unclear the timing of certification, and requiring certification is inherently backward-looking,
181. On December 23, 2014, the United States Telecom Association (USTelecom) filed a Petition for Reconsideration of the Declaratory Ruling (
182. Along with the
183. In the
184. In its Petition, USTelecom first asserts that the
185. Several commenters support USTelecom's Petition, arguing that the
186. Opposing commenters argue the
187. We find that USTelecom's arguments are meritless. First, the
188. USTelecom claims that the analysis set forth in the
189. As stated in the
190.
191.
192. USTelecom argues that the Supreme Court's decision in
193. For example, USTelecom references several D.C. Circuit cases where the court distinguishes between interpretative rules and legislative rules. Yet in each case USTelecom cites, the court found the agency in question departed from previous rules that were well-defined. In each case, the court found the agency's shift in policy was the critical factor transforming what was ostensibly an interpretation into a legislative rule. However, in this matter, USTelecom has not identified the prior rule or decision that is purportedly inconsistent with the
194. The
195. As we have explained, USTelecom identified no previous Commission rules, interpretations, or adjudications from which the
196. We also disagree with USTelecom's contention that the
197.
198.
199.
200.
201. In sum, the standard for discontinuance review set forth in the
202. This proceeding shall continue to be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
203. The
204. The Commission will send a copy of this
205. As required by the Regulatory Flexibility Act of 1980 (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the
206. The fixed communications networks in this country are undergoing several technology transitions that are rapidly bringing innovative and improved services to consumers and the marketplace. As a nation, we are steadily moving from voice networks based on time-division multiplexed (TDM) services running on copper, to all-Internet Protocol (IP) multimedia networks running on a range of physical infrastructures. At the same time, the success of these technology transitions depends on the technologically-neutral preservation of longstanding principles embodied in the Communications Act, including those of competition and consumer protection. Towards that end, this Order adopts rules and policies to preserve our pro-consumer and pro-competition policies as communications facilities and services change. In addition to ensuring that interconnecting carriers and consumers are adequately informed when copper facilities are retired and that carriers comply with Section 214(a) and obtain Commission approval prior to discontinuing service used by carrier-customers as a wholesale input if the carrier's actions will discontinue, reduce, or impair service to a community or part of a community, this Order revises the Commission's Section 214 discontinuance rules to preserve competitive access to wholesale inputs during the pendency of our special access proceeding.
207.
208. In light of the extended notice period adopted in the
209. The
210. The
211. The
212. The
213. The rules adopted in the Order allow incumbent LECs to use written or electronic notice such as postal mail or email to provide notice to retail customers of a planned copper retirement. This requirement should be sufficient to ensure that retail customers receive notice, without imposing unnecessary additional burdens on carriers. The rules adopted in the
214. The
215. The
216. Given the frequency and scope of copper network retirement, it is essential that industry participants and stakeholders alike have a clear understanding of what retirement entails so that the public is properly informed of network changes. To the end, the Order expands the definition of copper retirement to encompass the “removal or disabling of copper loops, subloops, or the feeder portion of such loops or subloops, or the replacement of such loops with fiber-to-the-home loops or fiber-to-the-curb loops.” Copper retirement also includes
217.
218. The
219. Establishing the reasonably comparable wholesale access requirement is necessary to protect the competition that exists today for the provision of telecommunications services to small-and medium-sized
220. Service by competitive carriers that depend on wholesale inputs offers the benefits of additional competitive choice to an enormous number of small and medium-sized businesses, schools, government entities, healthcare facilities, libraries, and other enterprise customers. The
221. There were no comments filed that specifically addressed the rules and policies proposed in the IRFA. To the extent we received comments raising general small business concerns during this proceeding, those comments are addressed throughout the
222. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by adopted rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
223. The majority of the rules and policies adopted in the
224. A small business is an independent business having less than 500 employees. Nationwide, there are a total of approximately 28.2 million small businesses, according to the SBA. Affected small entities as defined by industry are as follows.
225.
226.
227.
228. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that,
229.
230.
231.
232.
233.
234.
235.
236. The Census Bureau defines this industry as including “establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or Voice over Internet Protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.” The SBA has developed a small business size standard for this category; that size standard is $32.5 million or less in average annual receipts. According to Census Bureau data for 2007, there were 2,383 firms in this category that operated for the entire year. Of these, 2,346 firms had annual receipts of under $25 million and 37 firms had annual receipts of $25 million or more. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action.
237. The
238.
239. The
240. The
241. The
242. The
243. The
244. In tandem with their public notice, incumbent LECs must file a certification identifying the proposed changes, the name and address of each entity upon which written notification was served, and a copy of the written notice provided to affected retail customers, among other information.
245. The
246.
247. The
248. The
249. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.
250. The Commission is aware that some of the rules adopted in this Order will impact small entities by imposing costs and administrative burdens. For this reason, in reaching its final conclusions and taking action in this proceeding, the Commission has taken a number of measures to minimize or eliminate the costs and burdens generated by compliance with the adopted regulations.
251. Although the
252. In light of the extended notice period adopted in the
253. Although we considered a proposal that, for a network change to qualify as a copper retirement as opposed to a service discontinuance, a carrier must present the same standardized interface to the end user as it did when it used copper, we ultimately concluded that this requirement was unnecessary. We find that this proposal would go far beyond the mandate of Section 68.110(b) of the Commission's rules, which speaks to the effect of changes in facilities, equipment, operations, or procedures on customer's terminal equipment.
254. We similarly declined to require incumbent LECs to provide competitive providers with an annual forecast of copper retirements. This type of information can constitute some of an incumbent LEC's most competitively sensitive information, and such an advance disclosure requirement may risk putting them at a competitive disadvantage. Moreover, the information contained in a forecast can change over time as circumstances change, and we are thus skeptical of the value of such a requirement. We also declined to adopt a requirement that incumbent LECs establish and maintain a publicly available and searchable database of all their copper plant. It is not clear based on the record that such a database would be feasible or cost-effective, and such a requirement could impose an expensive and potentially duplicative burden.
255. The
256. While the
257. While incumbent LECs are required to provide direct notice of planned copper retirements to all of their retail customers within the affected service area(s), this notice need not include the information required by Section 51.327(a)(5) of our rules, nor a provision regarding the opportunity for customers to comment on planned network changes. Section 51.327(a)(5) requires provision of technical specifications that are unlikely to be of use to most retail customers. Aside from the neutral statement requirement, we decline to adopt any further content requirements with regards to the direct notice of planned copper retirements. We do not believe it is necessary or appropriate to require more than this in the context of a copper retirement that does not rise to the level of a discontinuance, reduction, or impairment of service for which a carrier would need to seek Commission authorization.
258. The
259. We decline to adopt a rural exemption to the notice rule. While the rules necessarily impose some burden on carriers, that burden is not greater for rural LECs. We also decline to impose different notice requirements for network upgrades, network downgrades, and the complete abandonment of facilities. We do not believe such differentiation is necessary, and would impose a greater burden on incumbent LECs. We also refuse to require proof of notice to be acknowledged by individual customers before allowing changes. Such a requirement would unfairly penalize incumbent LECs for the failure of their customers to act.
260. We also decline to adopt a proposal to revise the network change disclosure rules to provide the public with the opportunity to comment on planned network changes. We find that avenues to communicate with the Commission are sufficient and formalizing a right to comment is not needed. And while the
261. We decline to establish a process for situations where a network is damaged after a natural disaster and a carrier decides to permanently replace that network with a new technology. The discontinuance and network change notification requirements proposed in the FNPRM and adopted in the
262. The
263. While the
264. The
265. We further decline to adopt an irrebuttable presumption that discontinuance of a wholesale service necessarily results in a discontinuance, reduction, or impairment to end users. Such an approach would be highly burdensome for carriers. We also decline to adopt a presumption in favor of approving discontinuance of a retail service if at least one competitive alternative is available. We see no reason to deviate from our longstanding and clearly articulated criteria by which we evaluate Section 214(a) applications, which already take into account whether alternatives are available.
266. To ensure clarity and assist small entities with regulatory compliance, we codify the reasonably comparable wholesale access condition adopted in the
267. Although we considered obligating carriers to provide “equivalent” wholesale access on “equivalent” rates, terms, and conditions, we ultimately found it preferable to impose a more flexible “reasonably comparable” standard. We also imposed a time limit on the requirement that we adopted. This flexible standard and time-limited approach minimizes the regulatory burden on incumbent LECs while advancing the Commission's goal of preserving competition and promoting technology transitions. We also declined to adopt as mandatory requirements any of the six objective requirements for which we sought comment in the
268. Although the
269. The Commission will send a copy of the
270. Accordingly,
271.
272.
273.
274.
275.
276.
Communications, Communications common carriers, Defense communications, Telecommunications, Telephone.
Cable television, Communications common carriers, Radio, Reporting and recordkeeping requirements, Telegraph, Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 51 and 63 as follows:
Sections 1-5, 7, 201-05, 207-09, 218, 220, 225-27, 251-54, 256, 271, 303(r), 332, 706 of the Telecommunication Act of 1996, 48 Stat. 1070, as amended, 1077; 47 U.S.C. 151-55, 157, 201-05, 207-09, 218, 220, 225-27, 251-54, 256, 271, 303(r), 332, 1302, 47 U.S.C. 157
(a) * * *
(4) Will result in the retirement of copper, as defined in § 51.332.
(e) Notices of network changes involving the retirement of copper, as defined in § 51.332, are subject only to the requirements set forth in this section and §§ 51.329(c), 51.332, and 51.335.
(a)
(1) Removal or disabling of copper loops, subloops, or the feeder portion of such loops or subloops;
(2) The replacement of such loops with fiber-to-the-home loops or fiber-to-the-curb loops, as those terms are defined in § 51.319(a)(3); or
(3) The failure to maintain copper loops, subloops, or the feeder portion of such loops or subloops that is the functional equivalent of removal or disabling.
(b)
(1) The incumbent LEC must file a notice with the Commission.
(2) The incumbent LEC must provide each entity within the affected service area that directly interconnects with the incumbent LEC's network with a copy of the notice filed with the Commission pursuant to paragraph (b)(1) of this section.
(3) If the copper retirement will result in the retirement of copper loops to the premises, the incumbent LEC must directly provide notice through electronic mail or postal mail to all retail customers within the affected service area who have not consented to the retirement;
(i) The copper facilities being retired under the terms of paragraph (a) of this section are no longer in use in the affected service area; or
(ii) The retirement of facilities pursuant to paragraph (a)(3) of this section is undertaken to resolve a service quality concern raised by the customer to the incumbent LEC.
(iii) The contents of any such notice must comply with the requirements of paragraph (c)(2) of this section.
(iv) Notice to each retail customer to whom notice is required shall be in writing unless the Commission authorizes in advance, for good cause shown, another form of notice. If an incumbent LEC uses email to provide notice to retail customers, it must comply with the following requirements in addition to the requirements generally applicable to the notice:
(A) The incumbent LEC must have previously obtained express, verifiable, prior approval from retail customers to send notices via email regarding their service in general, or planned network changes in particular;
(B) Email notices that are returned to the carrier as undeliverable must be sent to the retail customer in another form before carriers may consider the retail customer to have received notice; and
(C) An incumbent LEC must ensure that the subject line of the message clearly and accurately identifies the subject matter of the email.
(4) The incumbent LEC shall notify and submit a copy of its notice pursuant to paragraph (b)(1) of this section to the public utility commission and to the Governor of the State in which the network change is proposed, to the Tribal entity with authority over the Tribal lands in which the network change is proposed, and to the Secretary of Defense, Attn. Special Assistant for Telecommunications, Pentagon, Washington, DC 20301.
(c)
(2)
(A) The information required by § 51.327(a)(1) through (4) and (a)(6);
(B) A statement that the retail customer will still be able to purchase the existing service(s) to which he or she subscribes with the same functionalities and features as the service he or she currently purchases from the incumbent LEC,
(C) A neutral statement of the services available to the retail customers from the incumbent LEC, which shall include a toll-free number for a customer service help line, a URL for a related Web page on the provider's Web site with relevant information, contact information for the Federal Communications Commission including the URL for the Federal Communications Commission's consumer complaint portal, and contact information for the relevant state public utility commission.
(ii) If any portion of a notice is translated into another language, then all portions of the notice must be translated into that language.
(iii) An incumbent LEC may not include in the notice required by paragraph (b)(3) of this section any statement attempting to encourage a customer to purchase a service other than the service to which the customer currently subscribes.
(iv) For purposes of this section, a statement is “clear and conspicuous” if it is disclosed in such size, color, contrast, and/or location that it is readily noticeable, readable, and understandable. In addition:
(A) The statement may not contradict or be inconsistent with any other information with which it is presented.
(B) If a statement materially modifies, explains or clarifies other information with which it is presented, then the statement must be presented in proximity to the information it modifies, explains or clarifies, in a manner that is readily noticeable, readable, and understandable, and not obscured in any manner.
(C) Hyperlinks included as part of the message must be clearly labeled or described.
(d)
(1) A statement that identifies the proposed changes;
(2) A statement that notice has been given in compliance with paragraph (b)(1) of this section;
(3) A statement that the incumbent LEC timely served a copy of its notice filed pursuant to paragraph (b)(1) of this section upon each entity within the affected service area that directly interconnects with the incumbent LEC's network;
(4) The name and address of each entity referred to in paragraph (d)(3) of this section upon which written notice was served;
(5) A statement that the incumbent LEC timely notified and submitted a copy of its public notice to the public utility commission and to the Governor of the State in which the network change is proposed, to any federally recognized Tribal Nations with authority over the Tribal lands in which the network change is proposed, and to the Secretary of Defense in compliance with paragraph (b)(4) of this section;
(6) If customer notice is required by paragraph (b)(3) of this section, a statement that the incumbent LEC timely served the customer notice required by paragraph (b)(3) of this section upon all retail customers to whom notice is required;
(7) If a customer notice is required by paragraph (b)(3) of this section, a copy of the written notice provided to retail customers;
(8) A statement that the incumbent LEC has complied with the notification requirements of § 68.110(b) of this chapter or that the notification requirements of § 68.110(b) do not apply;
(9) A statement that the incumbent LEC has complied with the good faith communication requirements of paragraph (g) of this section and that it will continue to do so until implementation of the planned copper retirement is complete; and
(10) The docket number and NCD number assigned by the Commission to the incumbent LEC's notice provided pursuant to paragraph (b)(1) of this section.
(e)
(2) Where the copper facilities being retired under the terms of paragraph (a) of this section are no longer being used to serve any customers, whether wholesale or retail, in the affected service area, an incumbent LEC must provide the notices required by paragraphs (b)(2) and (4) of this section no later than ninety (90) days after the Commission's release of the public notice identified in paragraph (f) of this section.
(3) An incumbent LEC must provide any notice required by paragraph (b)(3) of this section to all non-residential customers to whom notice must be provided no later than the same date on which it files the notice required by paragraph (b)(1) of this section.
(4) An incumbent LEC must provide any notice required by paragraph (b)(3) of this section to all residential customers to whom notice must be provided no later than ninety (90) days after the Commission's release of the public notice identified in paragraph (f) of this section.
(f)
(g)
(b)
(c)
(1) State specific reasons why the objector cannot accommodate the incumbent LEC's changes by the date stated in the incumbent LEC's public notice and must indicate any specific technical information or other assistance required that would enable the objector to accommodate those changes;
(2) List steps the objector is taking to accommodate the incumbent LEC's changes on an expedited basis;
(3) State the earliest possible date (not to exceed six months from the date the incumbent LEC gave its original public notice under this section) by which the objector anticipates that it can accommodate the incumbent LEC's changes, assuming it receives the technical information or other assistance requested under paragraph (c)(1) of this section;
(4) Provide any other information relevant to the objection; and
(5) Provide the following affidavit, executed by the objector's president, chief executive officer, or other corporate officer or official, who has appropriate authority to bind the corporation, and knowledge of the details of the objector's inability to adjust its network on a timely basis:
“I, (name and title), under oath and subject to penalty for perjury, certify that I have read this objection, that the statements contained in it are true, that there is good ground to support the objection, and that it is not interposed for purposes of delay. I have appropriate authority to make this certification on behalf of (objector) and I agree to provide any information the Commission may request to allow the Commission to evaluate the truthfulness and validity of the statements contained in this objection.”
Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless otherwise noted.
(c)(1) If an incumbent LEC, as that term is defined in § 51.5 of this chapter, obtains authority to discontinue, reduce, or impair a time-division multiplexing (TDM) service listed in this paragraph (c)(1) and if the incumbent LEC offers an Internet Protocol (IP) service in the same geographic market(s) as the TDM service following the discontinuance, reduction, or impairment of such TDM service, then as a condition on such authority, the incumbent LEC shall provide any requesting telecommunications carrier wholesale access reasonably comparable to the level of wholesale access it previously provided on reasonably comparable rates, terms, and conditions. This condition shall expire when all of the following have occurred:
(i) The Commission identifies a set of rules and/or policies that will ensure rates, terms, and conditions for special access services are just and reasonable;
(ii) The Commission provides notice such rules are effective in the
(2) The requirements of this paragraph apply to:
(i) A special access service that is used as a wholesale input by one or more telecommunications carriers; and
(ii) A service that is used as a wholesale input by one or more telecommunications carriers to provide end users with voice service and that includes last-mile service, local circuit switching, and shared transport.
Department of Homeland Security.
Notice of proposed rulemaking.
The Department of Homeland Security (DHS) proposes to amend its F-1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Specifically, the proposal would allow such F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months (STEM OPT extension). This 24-month extension would effectively replace the 17-month STEM OPT extension currently available to certain STEM students. The rule also improves and increases oversight over STEM OPT extensions by, among other things, requiring the implementation of formal mentoring and training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools.
As with the current 17-month STEM OPT extension, the proposed rule would authorize STEM OPT extensions only for students employed by employers enrolled in U.S. Citizenship and Immigration Services' (USCIS') E-Verify employment eligibility verification program. The proposal also includes the “Cap-Gap” relief first introduced in 2008 for any F-1 student with a timely filed H-1B petition and request for change of status. This Cap-Gap relief allows such students to automatically extend the duration of F-1 status and any current employment authorization until October 1 of the fiscal year for which such H-1B visa is being requested.
In addition to improving the integrity and value of the STEM OPT program, this proposed rule also responds to a court decision that vacated a 2008 DHS regulation on procedural grounds. The proposed rule includes changes to the policies announced in the 2008 rule to further enhance the academic benefit provided by STEM OPT extensions and increase oversight, which will better ensure that students gain valuable practical STEM experience that supplements knowledge gained through their academic studies, while preventing adverse effects to U.S. workers. By earning a functional understanding of how to apply their academic knowledge in a work setting, students will be better positioned to begin careers in their fields of study. These on-the-job educational experiences would be obtained only with those employers that commit to developing students' knowledge and skills through practical application. The proposed changes would also help ensure that the nation's colleges and universities remain globally competitive in attracting international STEM students to study and lawfully remain in the United States.
Comments must be received by DHS on or before November 18, 2015. Comments on the information collection provisions proposed in this rule must be received by DHS and the Office of Management and Budget (OMB) on or before November 18, 2015.
You may submit comments, identified by the DHS docket number to this rulemaking, Docket No. ICEB-2015-0002, to the Federal Docket Management System (FDMS), a government-wide, electronic docket management system, by one of the following methods:
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See the Public Participation portion of the
Katherine Westerlund, Policy Chief (Acting), Student and Exchange Visitor Program, U.S. Immigration and Customs Enforcement, 500 12th Street SW., Washington, DC 20536; telephone (703) 603-3400; email
We encourage you to participate in this rulemaking by submitting
If you submit comments, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and materials online or by mail, but please use only one of these means. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. ICE will file all comments sent to our docket address, as well as items sent to the address or email under the
To submit your comments online, go to
We will consider all comments and materials received during the comment period and may change this proposed rule based on your comments. The docket is available for public inspection before and after the comment closing date.
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. DHS may withhold information provided in comments from public viewing that it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of
We do not currently plan to hold a public meeting, but you may submit a request for one on or before November 18, 2015 using one of the methods specified under the
This proposed rule would affect F-1 nonimmigrant students who seek to obtain a STEM OPT extension, as well as F-1 nonimmigrant students who seek so-called Cap-Gap relief. The F-1 nonimmigrant classification is available to certain academic students seeking temporary admission to the United States as full-time students at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program. To obtain F-1 nonimmigrant classification, the student must be enrolled in a full course of study at a qualifying institution and have sufficient funds to self-support during the entire proposed course of study. Such course of study must occur at a school authorized by the U.S. government to accept international students.
OPT is a form of temporary employment available to F-1 students (except those in English language training programs) that directly relates to and complements a student's study in the United States. A student can apply to engage in OPT during their academic program, known as “pre-completion OPT,” or after completing the academic program, known as “post-completion OPT.” A student can apply for 12 months of OPT at each education level (
This notice of proposed rulemaking (NPRM) would make changes to the current OPT program by lengthening the extension of the OPT period for certain F-1 students who have earned STEM degrees. DHS first introduced an extension of OPT for STEM graduates in a 2008 interim final rule (2008 IFR).
The proposal would again provide for an extension of OPT for certain F-1 students with STEM degrees. As compared to the 2008 IFR, the proposed rule includes the following changes:
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In addition to these changes (as compared to the 2008 IFR), the proposal would retain other provisions of the 2008 IFR, as follows:
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The anticipated costs of compliance with the proposed rule, as well as the benefits, are discussed at length in section VI, entitled “Statutory and Regulatory Requirements—Executive Orders 12866 and 13563.” A combined Regulatory Impact Analysis (RIA) and an Initial Regulatory Flexibility Analysis (IRFA) are available in the docket as indicated under the Public Participation section of this preamble. A summary of the analysis follows.
As shown in the Summary Table below, DHS estimates that the costs of the standards proposed in this rule would be approximately $503.3 million over the period 2016-2025, discounted at 7 percent, or $71.7 million per year when annualized at a 7 percent discount rate.
With respect to benefits, making the STEM OPT extension available to additional students and extending the current 17-month extension will enhance students' ability to achieve the objectives of their courses of study by gaining valuable knowledge and skills through on-the-job training that is often unavailable in their home countries. The proposed changes will also benefit
Furthermore, strengthening the STEM OPT extension by implementing requirements for training and mentoring, tracking objectives, reporting on program compliance, and accreditation of participating schools would further prevent abuse of the limited on-the-job training opportunities provided by this program. These and other proposals would also improve program oversight, strengthen the requirements for program participation, and better ensure that U.S. workers are protected.
The Summary Table below presents a summary of the benefits and costs of the proposed rule. The costs are discounted at seven percent. Students will incur costs for completing application forms and paying application fees; reporting to designated school officials (DSOs); preparing, with their employers, the Mentoring and Training Plan required by this rule; and periodically submitting updates to employers and DSOs. DSOs will incur costs for reviewing information and forms submitted by students, inputting required information into the Student and Exchange Visitor Information System (SEVIS), and complying with other oversight requirements related to prospective and participating STEM OPT students. Employers of STEM OPT students will incur burdens for preparing the Mentoring and Training Plan with students, evaluating whether the students are receiving on-the-job learning experiences as outlined in the Mentoring and Training Plan, enrolling in (if not previously enrolled) and using the E-Verify system to verify employment eligibility for all new hires, and complying with additional requirements related to the E-Verify system.
The Secretary of Homeland Security (Secretary) has broad authority to administer and enforce the nation's immigration laws.
Federal agencies dealing with immigration have long interpreted section 101(a)(15)(F)(i) of the INA and related authorities to encompass on-the-job-training that supplements classroom training.
ICE manages and oversees significant elements of the F-1 nonimmigrant student process, including the certification of schools and institutions in the United States that enroll nonimmigrant students. In overseeing these institutions, ICE uses SEVIS to track and monitor foreign students, and communicate with the schools that enroll them, while they are in the United States and participating in educational opportunities. This tracking
A student in F-1 status may remain in the United States for the duration of his or her education if otherwise meeting the requirements for the maintenance of status. 8 CFR 214.2(f)(5)(i). Once an F-1 student has completed his or her academic program and any subsequent period of OPT, the student must generally leave the United States unless he or she: enrolls in another academic program, either at the same school or at another SEVP-certified school; changes to a different nonimmigrant status; or otherwise legally extends his or her period of authorized stay in the United States. As noted, DHS regulations have long defined an F-1 student's duration of status to include a foreign student's practical training.
Unless an F-1 student meets certain limited exceptions, he or she may not be employed in the United States during the term of his or her F-1 status. DHS permits an F-1 student who has been enrolled on a full-time basis for at least one full academic year in a college, university, conservatory, or seminary certified by SEVP, and who has otherwise maintained his or her status, to apply for practical training to work for a U.S. employer in a job directly related to his or her major area of study. 8 CFR 214.2(f)(10). DHS had previously limited the duration of OPT to a period of up to 12 months at a given educational level. An F-1 student may seek employment through OPT either during his or her academic program (pre-completion OPT) or immediately after graduation (post-completion OPT). The student remains in F-1 nonimmigrant status throughout the OPT period. Thus, an F-1 student in post-completion OPT does not have to leave the United States within 60 days after graduation, but instead has authorization to remain for the entire post-completion OPT period. 8 CFR 214.2(f)(5)(i). This initial post-completion OPT period (
On April 8, 2008, DHS published an interim final rule in the
The 2008 IFR also addressed the so-called “Cap-Gap” problem, which resulted when the expiration of an F-1 student's OPT authorization occurred prior to the commencement of the validity of an H-1B petition filed on his or her behalf. Specifically, F-1 students on initial post-completion OPT frequently complete their period of authorized practical training in June or July of the year following graduation. If such students are beneficiaries of H-1B petitions and requests for change of status for H-1B classification commencing in the following fiscal year (beginning on October 1), they will be unable to obtain their H-1B status before their OPT period expires. Prior to the 2008 IFR, such students were often required to leave the country for a few months until they were able to obtain their H-1B status on October 1. The 2008 IFR addressed this problem through a Cap-Gap provision that briefly extended the F-1 nonimmigrant's authorized period of stay and employment authorization to enable the student to remain in the United States until they could obtain their H-1B status.
DHS received over 900 comments in response to the 2008 IFR. Such comments were submitted by a range of entities and individuals, including schools and universities, students, professional associations, labor organizations, advocacy groups, and businesses. In addition, DHS engaged the public and affected schools in a series of meetings held across the
As described immediately below, in light of the period of time that has elapsed since the 2008 IFR, and due to the
On August 12, 2015, the U.S. District Court for the District of Columbia issued an order in the case of
With respect to DHS's interpretation of the F-1 student visa provisions in the INA, the court found ample support for DHS's longstanding practice of “permit[ting F-1 student] employment for training purposes without requiring ongoing school enrollment.”
As noted above, the court ultimately vacated the 2008 IFR on procedural grounds. Recognizing the disruption and uncertainty that an immediate
Litigation in this matter is ongoing, as the plaintiff has appealed a portion of the court's August 12, 2015 decision. It is thus unclear what the final disposition of the case may be. Nevertheless, it is clear that if DHS does not act before the court's
With this proposed rule, DHS proposes to provide an extension of OPT for certain STEM students, but with significant revisions as compared to the 2008 IFR. DHS thanks the public for its helpful input and engagement during the public comment period related to the 2008 IFR. In light of the aforementioned developments, however, DHS has determined that it will replace the 2008 IFR in its entirety and seek a fresh round of public comment via this proposed rule. As described in more detail throughout this preamble, the revisions proposed by this rule are intended to continue and further enhance the academic benefit of the STEM OPT extension, while protecting STEM OPT students and U.S. workers. DHS welcomes public input on all aspects of this proposal and will consider and respond to comments on the newly proposed rule following the comment period.
As noted above, ICE's SEVP serves as the central liaison between the U.S. educational community and U.S. government agencies that have an interest in information regarding F and M nonimmigrants.
ICE's SEVP carries out its programmatic responsibilities through SEVIS, a Web-based data entry, collection and reporting system. DHS, DOS, and other government agencies, as well as SEVP-certified schools and DOS-designated exchange visitor programs, use SEVIS data to monitor F, J, and M nonimmigrants for the duration of their admission in the United States. ICE and DOS require certified schools and designated exchange visitor programs to update information on their approved F, J, and M nonimmigrants regularly after their admission into the United States and throughout their stay. SEVIS data is also used to verify the eligibility of individuals applying for F, J, and M nonimmigrant status, to expedite port of entry screening by U.S. Customs and
As noted above, this proposed rule would effectively reinstitute portions of the 2008 IFR, with significant modifications and enhancements. Public comments received on the 2008 IFR were overwhelmingly positive. Although, as described in more detail below, many commenters recommended specific changes to the STEM OPT extension and some commenters objected to the 2008 IFR altogether, the vast majority of commenters—including students, educational institutions, advocacy groups, and STEM employers—expressed strong support for the rule's main provisions. DHS continues to believe that practical training is frequently a key element of F-1 students' educational experience, and that STEM students in particular may benefit from an extended period of time in practical training. For the reasons discussed below, DHS also believes that attracting and retaining such students is in the short-term and long-term economic, cultural, and security interests of the nation.
DHS also recognizes that it must quickly address the imminent
In proposing this rule, DHS recognizes the substantial economic, scientific, technological, and cultural benefits provided by the F-1 nonimmigrant program generally, and the STEM OPT extension in particular. As described below, international students have historically made significant contributions to the United States, both through the payment of tuition and other expenditures in the U.S. economy, as well as by significantly enhancing academic discourse and cultural exchange on campuses throughout the United States. In addition to these general benefits, STEM students further contribute through research, innovation, and the provision of knowledge and skills that help maintain and grow increasingly important sectors of the U.S. economy.
Foreign students, for example, regularly contribute a significant amount of money into the U.S. economy. According to statistics compiled by the Association of International Educators (NAFSA), foreign students made a net contribution of $26.8 billion to the U.S. economy in the 2013-2014 academic year.
Foreign students also increase the benefits of academic exchange, while reinforcing ties with foreign countries and fostering increased understanding of American society.
Accordingly, foreign students provide substantial benefits to their U.S. colleges and universities, including beneficial economic and cultural impacts. A study by Duke University in 2013 analyzing 5,676 alumni surveys showed that “substantial international interaction was positively correlated with U.S. students' perceived skill development in a wide range of areas across three cohorts.”
Foreign STEM students, of course, contribute to the United States in all the ways mentioned above. But they also contribute more specifically to a number of advanced and innovative fields that are critical to national prosperity and security. By conducting scientific research, developing new technologies, advancing existing technologies, and creating new products and industries, for example, STEM workers diversify the economy and drive economic growth, while also producing increased employment opportunities and higher wages.
DHS recognizes that the United States has long been a global leader in international education. The number of foreign students affiliated with U.S. colleges and universities grew by 72 percent between 1999 and 2013 to a total of 886,052.
For example, Canada also recognizes that educational institutions need international students to compete in the “global race for research talent.”
In light of the United States' decrease in the percentage of international students received, and increased global efforts to attract them, DHS believes that the United States must take additional steps to improve these students' educational experience (both academic and practical) to ensure that we do not continue to lose ground. This is particularly true for foreign STEM students, who have comprised a significant portion of students in STEM degree programs in the United States, particularly at the graduate degree level.
The difference is particularly stark at the doctoral level, where foreign students earned 56.9 percent of all doctoral degrees in engineering; 52.5 percent of doctoral degrees in computer and information sciences; and approximately half the doctoral degrees in mathematics and statistics in the 2012-2013 academic year.
With this proposed rule, DHS also recognizes the need to strengthen the existing STEM OPT extension to enhance the academic benefit of the program and maintain the nation's economic, scientific, and technological competitiveness. DHS is working to find new and innovative ways to encourage international STEM students to choose the United States as a destination for their studies. This proposal, in addition to including a modified version of the STEM OPT extension from the 2008 IFR, would increase the maximum training time period for STEM students, require a formal mentoring and training plan for each STEM OPT extension, and take steps to strengthen protections for F-1 nonimmigrant students and U.S. workers. Providing an on-the-job educational experience through a U.S. employer qualified to develop and enhance skills through practical application has been DHS's primary guiding objective.
Many of the elements of this proposed rule have been the result of public comment on the 2008 IFR, which contained input from a range of stakeholders, including students and the broader academic community. This proposal also incorporates recommendations from the Homeland Security Academic Advisory Committee (HSAAC).
The changes will help improve the ability of F-1 STEM students to gain valuable on-the-job training from employers qualified to develop and enhance skills through practical application. Maintaining and improving practical training for STEM students provides these students with an improved ability to absorb a full range of project-based practical skills and knowledge directly related to their study.
The proposed changes will also help the nation's colleges and universities remain globally competitive, including by improving their ability to attract foreign STEM students to study in the United States. As noted above, these students enrich the cultural and academic life of college and university campuses throughout the United States and make important contributions to the U.S. economy and academic sector. The changes proposed in this rule will help strengthen the overall F-1 program in the face of growing international competition for the world's most promising international students.
Additionally, safeguards such as employer attestations, requiring employers to enroll in E-Verify, providing for DHS site visits, and requiring that STEM training opportunities provide commensurate terms and conditions to those provided to U.S. workers will help protect both STEM OPT students and U.S. workers. Implementing the changes proposed in this rule thus will more effectively assist STEM OPT students with achieving the objectives of their courses of study while also benefiting U.S. academic institutions and guarding against adverse effects on U.S. workers.
Finally, DHS notes that the focus of this rule on the extension of OPT for STEM students also represents a step by the agency to improve a discrete portion of the practical training program.
As referenced above, DHS is taking this action to include a STEM OPT extension as part of the OPT program under the F-1 nonimmigrant classification in order to better ensure, among other important national interests, that the U.S. academic sector can remain competitive globally. Enabling continued extended OPT for qualifying students with experience in STEM fields is consistent with DHS's “Study in the States” initiative, announced after the 2008 IFR in September 2011 to encourage international students to study in the United States. That initiative particularly focused on enhancing our nation's economic, scientific and technological competitiveness by finding new ways to encourage talented international students to become involved in expanded post-graduate opportunities in the United States. The initiative has taken various steps to enhance and improve the Nation's nonimmigrant student programs.
The proposed rule would enhance the ability of F-1 students to achieve the objectives of their courses of study while also benefiting the U.S. economy. More students will return home confident in their training, ready to begin a career in their field of study; others may take advantage of other provisions proposed herein to request to
As noted above, in the 2008 IFR, DHS implemented a 17-month STEM OPT extension to provide STEM students and employers with improved OPT opportunities beyond the initial year of practical training. The 17-month period was intended to allow STEM students to receive additional practical experience aligned with their educational degree, and it would generally terminate near the beginning of the fiscal year. Following seven years of experience with the STEM OPT extension, DHS has decided in this rule to re-evaluate its length. Consistent with the discussion above, DHS believes the STEM OPT extension should first and foremost be targeted to complement the student's academic experience. The length of any extension should aim to produce an optimal educational experience in the relevant field of study, particularly given the complex nature of STEM projects and associated skill-development that require relatively lengthy time frames. The length should be conditioned on full compliance with the other requirements set forth in this preamble.
DHS proposes in this rule to increase the STEM OPT extension period to 24 months for students meeting the qualifying requirements. This 24-month extension, when combined with the 12 months of initial post-completion OPT, would effectively allow STEM students up to 36 months of practical training. DHS would also provide, for students who subsequently attain another STEM degree at a higher educational level, the ability to participate in an additional 24-month extension of any post-completion OPT based upon that second STEM degree.
DHS considered many factors in determining the proposed length for an improved STEM OPT extension period. An important consideration was the general duration of projects to be pursued by students on STEM OPT extensions. DHS believes that students participating in practical training in STEM fields should be encouraged to pursue meaningful projects that contribute to a deeper understanding of their field of study and help develop the practical skills necessary to advance their careers. This type of significant project—often involving a grant or fellowship application, management of grant money, focused research, and publication of a report—typically requires several years to complete. Stakeholders have indicated, moreover, that this process often takes longer in the STEM community than in other academic or business areas. For example, the National Science Foundation (NSF) typically funds projects through grants that last for up to three years.
Fostering integration of research and education through the types of programs, projects, and activities described above will help recruit, train, and prepare a diverse STEM workforce to advance the frontiers of science and participate in the U.S. technology-based economy.
DHS anticipates that the 24-month extension would significantly enhance the academic benefit of a STEM student's OPT experience. As noted above, many research projects take years to complete, and under the new STEM OPT extension, a student would have increased opportunities to learn how to apply for a grant or fellowship, become a responsible steward of grant money, initiate a study or project, see the study or project through to conclusion, write a report and obtain peer review, and have the report published.
DHS also proposes to allow a student who has completed a STEM OPT extension pursuant to previous study in the United States and who obtains another qualifying degree at a higher degree level (or has a qualifying prior degree, as discussed in more detail below), to qualify for eligibility for a second 24-month STEM OPT extension upon the expiration of the general period of OPT based on that additional degree.
As a transitional measure, DHS is also proposing to allow a subset of students already on a 17-month extension to take advantage of the proposed 24-month program, consistent with the requirements set forth in this proposed rule. Qualifying students would be able to request the balance of the modified extension up to 120 days before the end of the student's 17-month period. Such requesting students would have to meet all requirements of the new STEM OPT extension proposal, including submission of the Mentoring and Training Plan described below.
With respect to applications for STEM OPT extension currently pending before DHS or submitted prior to the effective date of any final rule, DHS intends to adjudicate the application consistent with the regulations that existed at the time the application was submitted (
DHS is making every effort to have a final rule take effect prior to February 13, 2016, when the stay on the vacatur of the 2008 IFR is currently set to expire. In the event, however, that a final rule resulting from this rulemaking does not take effect before the vacatur of the 2008 IFR, DHS will lack clear regulatory authority to grant pending applications for STEM OPT extensions. In that case, DHS will evaluate options to address pending applications, such as returning such applications and requiring re-filing upon completion of a final rule. DHS seeks comments on these and other options for addressing pending applications if a final rule is not in place prior to the court's vacatur, including comments on the harm that such a gap may cause.
The 2008 IFR first introduced the STEM Designated Degree Program list, which includes all Department of Education CIP codes that are eligible for the current 17-month extension. The 2008 IFR noted that any future changes to the list would be posted on SEVP's Web site, but did not set forth a formal definition for “STEM fields” or a public notice process regarding updates to the list. Many commenters on the 2008 IFR indicated that the STEM OPT extension should be available to students in all fields of study, or that the list promulgated at that time be expanded to include various other degree programs. DHS has taken these concerns into consideration in crafting a proposed approach for this rule that seeks to strike a reasonable balance between the current understanding of STEM needs and potential future changes in these fields. The approach focuses on generally understood STEM degree fields that are of particular academic and practical demand for the U.S. and international community, while also ensuring flexibility for potential changes as fields of study in STEM sectors evolve with changes in technology, as well as in academic programs, interests and trends.
DHS proposes in this rulemaking a general definition of “STEM fields” and proposes a process for public notification in the
To provide a clear definition to guide changes to the STEM Designated Degree Program list, DHS proposes to utilize the description referenced by the Department of Education's National Center for Education Statistics (NCES), Institute of Education Services, to define “STEM fields.” DHS would define “STEM field” as a field included in the Department of Education's CIP taxonomy within the summary groups containing mathematics, natural sciences (including physical sciences and biological/agricultural sciences), engineering/engineering technologies, and computer/information sciences, and related fields. DHS believes the NCES definition provides a sound basis because it not only encompasses many of the fields already contained on the current STEM Designated Degree Program list, but draws on the Department of Education's expertise in the area of higher education and academic studies generally. ICE often defers to the Department of Education's definitions or processes in the area of higher education. DHS therefore proposes that the definition of STEM fields encompass mathematics, natural sciences (including physical sciences and biological/agricultural sciences), engineering/engineering technologies, and computer/information sciences, as well as related fields.
DHS believes that its definition of STEM fields should be tailored to capture those STEM fields of study for which an extension of practical training is most beneficial.
Multiple commenters to the 2008 IFR highlighted the important academic benefits associated with OPT participation. Commenters emphasized that real-world experience is a vital part of the educational experience, and that the opportunity for OPT participation draws high-quality students to the United States from around the world. Other commenters noted that the 2008 IFR did not include an explicit mechanism to inform employers of the purpose of or requirements associated with practical training.
The proposed rule seeks to ensure that the STEM OPT extension more effectively enables STEM OPT students to obtain valuable practical work experience directly related to their fields of study. To achieve this aim, the proposed rule requires that employers incorporate a formal mentoring and training program for STEM OPT students. Mentoring is a time-tested and widely used strategic approach to developing professional skills. The mentor should be an experienced employee or group of employees who would teach and counsel the student. As part of this mentoring and training program, the employer would agree to take responsibility for the student's training and ensure that skill enhancement is the primary goal. The student would be required to prepare a formalized Mentoring and Training Plan with the employer and to submit the plan to the student's DSO before the DSO could recommend a STEM OPT extension in the student's SEVIS record. This would generally provide review of the Mentoring and Training Plan by the educational institution granting the degree related to the training. In cases where the student intends to use the newly proposed option of requesting an extension based on a previously-obtained degree, the review would come from the institution that provided the student's most recent degree (
To better ensure that the STEM OPT extension fulfills the specific practical training needs of STEM students, the employer that intends to provide a STEM OPT opportunity to a student would work with the student to design a customized training plan to enhance the practical skills and methods the student studied while attaining his or her degree. Such training plans would require specific training goals, as well as a description of how those goals will be achieved.
DHS also proposes that the student provide his or her DSO with an evaluation of his or her STEM OPT every six months, as well as a final evaluation at the conclusion of the OPT period. These evaluations would document the student's progress toward the agreed-upon training goals and thus better ensure that such goals are being met. The factors to be evaluated would be included on the Mentoring and Training Plan, which must be signed by both the student and the immediate supervisor at the student's workplace. The student's school of most recent enrollment would be responsible for ensuring ICE has access to records of student evaluations for a period of three years following completion of the student's STEM OPT training.
DHS plans to incorporate the submission of the Mentoring and Training Plan into SEVIS at a later date. Until that time DHS may require the submission of the Plan to ICE or USCIS, including to USCIS when the student seeks certain benefit requests from USCIS, such as an application for employment authorization. Under 8 CFR 103.2(b)(8)(iii), USCIS may issue a Request for Evidence or Notice of Intent to Deny if all required initial evidence has been submitted, but the evidence submitted does not establish eligibility. Accordingly, USCIS may request a copy of the Mentoring and Training Plan, in addition to other documentation, when such documentation is necessary to determine an applicant's eligibility for the benefit, including instances when there is suspected fraud in the application.
The 2008 IFR provided that the STEM OPT extension would only be available to those students seeking employment or seeking to maintain employment with employers that are enrolled and in good standing in USCIS' E-Verify program. A number of commenters to the 2008 IFR addressed this provision. Some commenters believed that this provision would unduly limit the opportunities available to STEM OPT students; others expressed concern about reported inaccuracies in E-Verify-related databases. Finally, some commenters stated that the E-Verify provision would not ensure electronic verification of all STEM OPT students, because the E-Verify program only applies to new hires and therefore would not apply to students who are using the STEM OPT extension to extend their employment with the same employer. A number of commenters acknowledged, however, that the program was improving and that participation in the E-Verify program was rapidly growing.
DHS continues to believe that the E-Verify program is an important measure to ensure the integrity of the STEM OPT extension. The E-Verify program is an Internet-based service operated by USCIS, in partnership with the Social Security Administration (SSA). E-Verify is currently free to employers and is available in all 50 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. E-Verify electronically compares information contained on the Employment Eligibility Verification Form I-9 (herein Form I-9) with records contained in government databases to help employers verify the identity and employment eligibility of newly-hired employees. This program currently is the best means available for employers to determine employment eligibility of new hires and, in some cases, existing employees.
Before an employer can participate in the E-Verify program, the employer must enter into a Memorandum of Understanding (MOU) with DHS and SSA. This memorandum requires employers to agree to abide by current legal hiring procedures and to follow required procedures in the E-Verify process to ensure that E-Verify maximizes the reliability and ease of use of the system, while preventing unauthorized disclosure of personal information and unlawful discriminatory practices based on national origin or citizenship status. Violation of the terms of this agreement by the employer is grounds for immediate termination of its participation in the program.
Employers participating in E-Verify must still complete a Form I-9 for each newly hired employee, as required under current law. Following completion of the Form I-9, the employer must enter the newly hired worker's information into the E-Verify system, which would then check that information against information
It is important to note that once an employer enrolls in E-Verify, that employer is responsible for verifying all new hires, including newly hired students with STEM OPT extensions, at the hiring site(s) identified in the MOU executed between the employer and DHS. The earliest an employer may use E-Verify with respect to an individual is after the individual accepts an offer of employment and the employee and employer complete the Form I-9. The verification must be made no later than the end of three business days after the new hire's first day of employment. If, however, an employer enrolls in E-Verify to retain a student already employed pursuant to an initial 12-month grant of OPT, the employer would reverify the student's STEM OPT extension on Form I-9 but may not verify the employment eligibility of the employee in E-Verify, as the MOU generally prohibits the use of E-Verify with respect to existing employees.
Additional information on enrollment and responsibilities under E-Verify can be found at
Commenters to the 2008 IFR inquired about eligibility for a STEM OPT extension in instances where a student earns a bachelor's degree in a STEM field but a master's degree in a non-STEM field, or two degrees at the same education level, one of which is in a STEM field. Since the 2008 IFR, DHS has found that some F-1 students approved for OPT in STEM-related fields remain unable to extend their OPT, even if they have a prior STEM degree. This is because the regulations have effectively required that the OPT be directly related to the student's most recent major area of study and that the DSO certify that the student's degree that is the basis for his or her current period of OPT is a degree contained on the current STEM Designated Degree Program list.
Stakeholders, including the academic community and the HSAAC, have requested the elimination of this restriction, such that a STEM OPT extension would be available to a student with a prior qualifying STEM degree, even if the student's most recent degree would not qualify. Stakeholders assert that such a modification would broaden the educational and training benefits of the STEM OPT extension to additional students with STEM backgrounds and would further benefit the U.S. economy by enhancing our nation's ability to compete and innovate in these fields.
DHS agrees and is accordingly proposing to permit students to use a previously obtained and directly related STEM degree from an accredited school as a basis to apply for a STEM OPT extension. This previously obtained degree would make the STEM OPT extension available to students who have a prior background in STEM but who are currently engaging in OPT that has been authorized based on their study towards a different degree. Such an OPT extension, however, would be available only to such students who seek to develop and utilize STEM skills from their prior STEM degree during the extended OPT period.
Under this proposal, students would not be able to use a previously obtained degree to obtain a STEM OPT extension immediately subsequent to another STEM OPT extension. In other words, the proposed changes would not provide students the ability to obtain two immediately consecutive STEM OPT extensions. Under the proposed rule, the second extension would be available to students only upon completion of a new initial post-completion OPT period.
DHS proposes to permit DSOs at the student's school of most recent enrollment to certify prior STEM degrees, so long as the STEM degree was earned at a school accredited by an accrediting agency recognized by the Department of Education.
Finally, due to the difficulty in determining the equivalency of a degree obtained at a foreign institution, and because the purpose of OPT is to further one's course of study in the United States, STEM degrees from foreign schools will not be permitted to qualify under the proposed program.
DHS requests comment on all aspects of this proposal.
Many commenters to the 2008 IFR agreed with the Department's assessment that the 17-month STEM OPT extension would benefit both students and the U.S. economy. Commenters noted that the STEM labor shortage described in the 2008 IFR was well documented and that the United States faced stiff competition from other countries for high-skilled STEM workers. One commenter stated that the IFR provided “small, but helpful steps” towards addressing a critical need for
A number of commenters, however, objected to the 17-month STEM OPT extension on the basis of potential negative impacts on U.S. workers in STEM fields. For instance, a commenter stated that demand for technical workers was very weak in engineering occupations and growing modestly in computing and mathematics occupations. The same commenter stated that, especially when combined with H-1B, L-1, and other skilled workers, the number of students taking advantage of the STEM OPT extension would distort the domestic labor market. Some commenters specifically stated that employers would prefer to hire F-1 students on STEM OPT extensions because these students would work for lower wages. Some commenters noted that some U.S. firms had previously advertised STEM positions as being available only to OPT students. Commenters requested that DHS consider written reports, testimony, and other sources describing the state of the U.S. STEM workforce. Commenters also questioned the veracity of studies and reports cited in the preamble to the 2008 IFR, and some questioned whether DHS had interpreted that information correctly in assessing the then-prevailing STEM labor market. Some commenters stated that the STEM OPT extension was contrary to the academic purpose of the F-1 statute. In general, commenters who made these and similar points requested that DHS eliminate the STEM OPT extension and the Cap Gap provision in their entirety.
DHS's initial assessment, consistent with many of the public comments and following consultation with the U.S. Departments of Education and Labor, is that the direct benefit to the academic experience resulting from the STEM OPT extension is significant, and that on the whole, positive indirect effects on educational institutions and academic exchange support the availability of a STEM OPT extension at this time. Nevertheless, DHS recognizes the concerns expressed above and proposes to modify the terms and conditions for employer participation in the STEM OPT extension in order to protect U.S. workers from possible employer abuses of these programs.
For instance, any employer wishing to hire a student participating in the STEM OPT extension would, as part of a newly required Mentoring and Training Plan, be required to sign a sworn attestation affirming that, among other things: (1) The employer has sufficient resources and personnel available and is prepared to provide appropriate mentoring and training in connection with the specified opportunity; (2) the employer will not terminate, lay off, or furlough a U.S. worker as a result of providing the STEM OPT to the student; and (3) the student's opportunity assists the student in attaining his or her training objectives. As with all affirmations contained in the Mentoring and Training Plan, the employer would attest that these commitments are true and correct to the best of the employer's knowledge, information and belief.
Additionally, the proposed rule would require that the terms and conditions of an employer's STEM practical training opportunity—including duties, hours and compensation
With regard to the requirement to provide commensurate compensation, DHS anticipates that employers would be able to show compliance through a variety of existing real-world practices. So long as the attestation is made in good faith and to the best of the employer's knowledge, information and belief, employers would be able to continue relying on many of the same resources they already use, such as local associations or national or local wage surveys, to set compensation for their U.S. workers. The rule would also permit employers to rely on other bases for establishing compensation levels. For example, employers hiring high-skilled STEM OPT students would be able to refer to prevailing wages provided by the Department of Labor's Office of Foreign Labor Certification for employees in the same occupation in the same area of employment.
To help gauge compliance, employers would be required to provide DHS with student compensation information, which would better situate the agency to monitor whether STEM OPT students are being compensated fairly. This would both protect such students and ensure the practical training has no appreciable adverse consequences on the U.S. labor market. Additionally, the proposed rule would authorize a recurrent evaluation process that would allow ICE to monitor student progress during the OPT period. These evaluations would ensure continuous focus on the student's development throughout the student's training period, consistent with the Mentoring and Training Plan.
With the added assurances that a student will be enhancing his or her course of study through training-based
Some commenters to the 2008 IFR also expressed concern that the STEM OPT extension could be exploited by entities that hope to profit from the program but that may not have an actual STEM opportunity available for a student at the time of the student's application for the extension. To the extent that this comment refers to temporary placement agencies, DHS does not envision that such “temp” agencies will generally be able to provide eligible opportunities under the proposed STEM OPT extension, including by complying with the Mentoring and Training Plan process and requirements.
Moreover, under this rule, DSOs would be prohibited from recommending a student for a STEM OPT extension if the employer has not provided the assurances required by this rule or is otherwise not in compliance with the relevant reporting, evaluation and other requirements described in this rule. Additionally, DHS has the ability to deny STEM OPT extensions with employers that the agency determines have failed to comply with the regulatory requirements, including the requirement to formerly execute the student's Mentoring and Training Plan and the requirement to comply with the assurances contained therein. ICE may investigate an employer's compliance with these assurances, based on a complaint or otherwise, consistent with the proposed employer site visit provision discussed in the following section. These safeguards will more effectively ensure that STEM OPT students achieve the objectives of their courses of study, while benefiting U.S. academic institutions and protecting U.S. workers.
DHS recognizes that many university personnel submitted comments on the 2008 IFR highlighting the significant administrative burdens faced by DSOs in helping to coordinate participation in the F-1 program, including OPT. DHS acknowledges that the aforementioned proposals may impose additional resource burdens on DSOs, and may require universities to invest further in DSOs in order to take full advantage of the F-1 program.
With this rule, DHS proposes that in order for a student to be eligible for a STEM OPT extension, the student's STEM degree must be received from an educational institution accredited by an accrediting agency recognized by the Department of Education.
ICE's SEVP currently performs an examination and assessment of all schools applying for certification and re-certification to accept F-1 students. 8 CFR 214.3(b). Although SEVP has procedures “in lieu of accreditation” to establish the validity and quality of schools in certain cases, accreditation is preferred and given significant weight in the overall certification assessment. Increasingly, schools are choosing to obtain accreditation. In the past five years, less than one percent of students participating in a STEM OPT extension had graduated from non-accredited schools.
DHS also proposes to clarify that ICE, at its discretion, may conduct “on-site reviews” to ensure that employers meet program requirements, including that they are complying with assurances and that they possess the ability and resources to provide structured and guided work-based learning experiences according to the individualized Mentoring and Training Plans. The combination of requiring school accreditation and conducting discretionary ICE inspections of employers will reduce the potential for any fraudulent use of F-1 nonimmigrant status during the period of STEM OPT training.
This proposed rule includes additional requirements to track STEM OPT students, mitigate the potential for fraud, and ensure that students are truly furthering their course of study. As discussed in the 2008 IFR, DHS' ability to track nonimmigrant students in the United States relies on reporting by the students' DSOs, who obtain required information from the school's recordkeeping systems and through contact with the students. Students on OPT, however, are often away from the
Accordingly, this proposed rule includes a number of compliance requirements established in the 2008 IFR for the current 17-month STEM OPT extension and adds additional measures that would supplement the goal of ensuring that the STEM OPT extension is directly related to a student's field of study. Requirements from the 2008 IFR that are proposed to be included in the STEM OPT extension under this rule include the following:
• The employer must report to the relevant DSO when an F-1 student on a STEM OPT extension terminates or otherwise leaves his or her employment prior to the end of the authorized period of OPT and must do so no later than 48 hours after the student leaves employment. Employers must report this information to the DSO unless DHS announces, through a
• Students who are granted the STEM OPT extension are required to report to their DSO every six months, confirming the validity of their SEVIS information, including legal name, residential or mailing address, employer name and address, and/or loss of employment.
These six-month requirements ensure adequate DHS oversight of the STEM OPT program by enhancing DHS's knowledge of the student's activities and whereabouts.
The proposed rule also includes several other requirements to provide additional oversight over the STEM OPT extension, consistent with the proposed change to the duration of the extension. The proposed rule would require any employer providing a STEM practical training opportunity to have an employer identification number (EIN) used for tax purposes. Access to this EIN will help DHS better ensure program compliance. The proposed rule would also require students who are granted the STEM OPT extension to provide, at six-month intervals, an evaluation on their training progress and an update on the extent that their training goals are being met.
The proposed rule would also limit the maximum period in which a student may be unemployed to 90 days during his or her initial period of post-completion OPT, and permit an additional 60 days, for an aggregate of 150 days, for students whose OPT includes a 24-month STEM OPT extension. The 90-day aggregate period during initial post-completion OPT would remain at the level proposed in the 2008 IFR. Such a safeguard prevents OPT students from taking improper advantage of the program by, for instance, remaining in the United States without attempting to complement their learning through training. DHS proposes to revise the aggregate maximum allowed period of unemployment to 150 days for an F-1 student having an approved STEM OPT extension consistent with the lengthened 24-month period for such an extension.
In comments received on the 2008 IFR, many commenters opposed, or requested revising, the limits on unemployment during OPT. Some commenters suggested that unemployment limits pose significant burdens and that students should be able to maintain their status by simply seeking employment. Other commenters offered suggestions for revising the unemployment limits by allowing 120, 150, or 180 days of unemployment during initial post-completion OPT and a longer period during any STEM OPT extension. DHS believes that removing unemployment limits would be inconsistent with the agency's role of overseeing and ensuring OPT program integrity. DHS also believes that the proposed 150 days for students granted a STEM OPT extension would provide additional flexibility when compared to the 120 days permitted under the current program's 17-month extension. With this change, DHS acknowledges the concerns of commenters who described the challenges that international students face in locating and obtaining training experiences in the United States.
An additional newly proposed aspect of the STEM OPT extension is that a student seeking an extension would be required to properly file his or her Application for Employment Authorization with USCIS within 60 days of the date the DSO enters the recommendation for the STEM OPT extension into the SEVIS record. Under the 2008 IFR, students were required to file their Application for Employment Authorization with USCIS within 30 days of the DSO recommendation. By expanding the application filing period, applicants would be afforded additional flexibility. Among other things, a longer application filing window would reduce: (1) The number of USCIS denials on Forms I-765 that result from expired Forms I-20, (2) the number of associated data corrections needed in SEVIS, and (3) the number of students who would otherwise need to ask DSOs for updated Forms I-20 to replace those that have expired.
Additionally, ICE is working toward technology that would allow students to update their basic information in SEVIS without gaining access to restricted areas of the system where student access would be inappropriate. Once this technology is implemented, students would have increased ability to maintain their own records. This would also decrease the workload on DSOs, who would no longer be required to update student information while students are participating in practical training.
As noted elsewhere in this preamble, the 2008 IFR included provisions, such as 8 CFR 214.2(f)(5)(vi) and 8 CFR 274a.12(b)(6)(v), that allowed for automatic extension of status and employment authorization for any F-1 student with a timely filed H-1B petition and request for change of status, if the student's petition has an employment start date of October 1 of the following fiscal year. The 2008 IFR made these extensions available only until the beginning of the succeeding fiscal year. The extensions were intended to avoid situations where F-1 students who are affected by the H-1B cap are required to leave the country or terminate employment at the end of their authorized period of stay, even though they have an approved H-1B petition that would again provide status to the student in a few months' time.
Many comments on the 2008 IFR were supportive of the “Cap-Gap” extension provided in that rule. Some commenters, however, objected to the Cap-Gap provision for reasons related to its potential impact on U.S. workers.
The “Cap-Gap” provision is intended to avoid the inconvenience of temporary gaps in status, which would normally require individuals to leave the country and thereby suffer significant disruption to their careers and family. With respect to comments requesting elimination of the provision, DHS continues to believe that the Cap-Gap provision is a
DHS developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. The below sections summarize our analyses based on a number of these statutes or executive orders.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, as well as distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is a “significant regulatory action,” and has been determined to be an economically significant regulatory action, under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has reviewed this regulation.
This proposed rule, if made final, would permit eligible STEM graduates to receive a maximum STEM OPT extension of 24 months; permit eligible STEM graduates who have obtained a second qualifying STEM degree to obtain a second STEM OPT extension of 24 months; permit eligibility for the extension based on a STEM degree that is not the student's most recently obtained degree; limit eligibility for STEM OPT extensions to students that graduate from accredited institutions; require that students on STEM OPT extensions receive conditions of employment, including compensation, commensurate with similarly situated U.S. workers; require the disclosure of additional information, such as the student's compensation, to ICE; implement a formal process to update the STEM Designated Degree Program list; implement a formal mentoring requirement for students on STEM OPT extensions; and require employers of students applying for STEM OPT extensions to enroll in and use E-Verify on all new hires.
The cost estimates set forth in this analysis represent the costs of compliance with, and implementation of, the proposed standards within the scope of the proposed rulemaking. The following quantified costs include time burdens for initial implementation of the student training and mentoring plan, six-month evaluations, reporting student information updates in SEVIS, eligibility verifications for new hires for employers of STEM OPT students using the E-Verify program, and filing Form I-675 applications. Additional quantified costs for students include fees for filing Form I-765, and some employers may incur implementation costs for the E-Verify program. Compared to the 2008 IFR criteria for STEM OPT, qualitative costs for the proposed rule include reduced opportunities for students due to proposed restrictions on unaccredited school programs and not allowing volunteer work to be eligible for the extension. Additionally, compared to the 2008 IFR requirements for employers, there would be employer costs for paying STEM OPT students commensurate compensation, if the employer previously did not pay such compensation. DHS does not have data to support a cost estimate for this proposed requirement.
The proposed rule would affect four categories of STEM OPT students: (1) Students who would have previously been eligible for participation in the 17-month STEM OPT extension under the 2008 IFR and would be, based on this NPRM, eligible for a 24-month extension; (2) students who would be eligible based upon a STEM degree earned prior to their most recent degree; (3) students who would be eligible based upon a second, and more advanced, qualifying STEM degree; and (4) students who would be eligible with a potential change to the current STEM-Designated Degree Program List. Additionally, students currently on 17-month extensions would be able to apply for the balance of the 24-month extension, depending on how much time remained in their current 17-month extension and the effective date of a final regulation. DHS estimates that the population of current 17-month STEM OPT students who could apply for the expanded extension is 18,210. DHS provided an explanation on the methodology and data for the population estimates in the accompanying RIA published on the NPRM docket folder.
The proposed rule would also affect schools and employers of the students seeking STEM OPT extensions. A description of the impacts to schools and employers is included in the following section on the estimated costs of the proposed rule. The Regulatory Flexibility Analysis also provides a detailed description of the estimated number of schools and employers affected by the proposed rule.
Table 2 displays the estimated number of affected employers that could be impacted by the proposed E-verify enrollment and ongoing implementation requirements.
The cost estimates set forth in this analysis represent the costs of compliance with the proposed rule. This analysis concludes that compliance with the proposed requirements would be approximately $503.3 million, discounted at 7 percent, over the period 2016-2025, or $71.7 million per year when annualized at a 7 percent discount rate. The total cost, discounted at 7 percent, consists of $455.7 million for compliance with the STEM OPT program, and $47.6 million for compliance with E-Verify requirements. Table 3 below presents a 10-year summary of the estimated benefits and costs of the NPRM.
Continuing the STEM OPT extension, making it available to additional students, and lengthening the current 17-month extension will enhance students' ability to achieve the objectives of their courses of study by gaining valuable knowledge and skills through on-the-job training that is often unavailable in their home countries. The proposed changes will also benefit the U.S. educational system, U.S. employers, and the United States. The rule will benefit the U.S. educational system by helping ensure that the nation's colleges and universities remain globally competitive in attracting international students in STEM fields. U.S. employers will benefit from the increased ability to rely on the skills acquired by STEM OPT students while studying in the United States, as well as their knowledge of markets in their home countries. Moreover, the nation will benefit from the increased retention of such students in the United States, including through increased research, innovation, and other forms of productivity that enhance the nation's economic, scientific, and technological competitiveness.
New safeguards for the STEM OPT program, including accreditation,
In preparing the preferred regulatory approach proposed in the NPRM, DHS examined three options:
1. Under the first option, DHS would take no regulatory action. The STEM OPT extension would no longer be available to F-1 STEM students after February 2016.
2. The second, and proposed, option would strengthen the 2008 IFR by establishing a program requiring employers and students to prepare Mentoring and Training Plans and to present those plans to the relevant DSOs. The program would require that the proposed practical training be directly related to the student's course of study. Employers would be required to provide certain information, including: Learning objectives for the employment, how those objectives will be achieved and measured, and place of employment. DSOs would be required to review submissions for the STEM OPT extension in SEVIS. DHS may require the submission of the Mentoring and Training Plan to ICE and/or USCIS. As noted elsewhere in this preamble, a STEM OPT extension would be available to a student with a prior qualifying STEM degree, even if the student's most recent degree would not qualify. And a second STEM OPT extension would be available to students who earn an additional advanced STEM degree.
3. The third option is similar to option two in all respects except for the duration of the STEM OPT extension, which would be limited to a one-time extension of 17 months, as in the 2008 IFR.
DHS provides an analysis of these alternatives in the accompanying RIA provided in the NPRM docket folder.
The following table summarizes the total monetized costs of each alternative regulatory option. Although the proposed rule option does have higher monetized costs than the third option, DHS has not quantified the benefits of the increased extension period under the proposed option because DHS does not have specific data to quantify the month-to-month economic benefits of the STEM OPT extension. DHS believes that the proposed option would have higher benefits to students and employers and increase attractiveness for U.S. academic programs.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small business, 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.
DHS has published an IRFA, in the accompanying RIA, to aid the public in commenting on the small entity impact of the proposed requirements. The following discussion is a summary of the IRFA and a more detailed description of these findings is available in the RIA. DHS presents the number of estimated entities which would be impacted by the proposed rule, the number of small entities from a sample of the estimated impacted population, the estimated annual average cost impact per entity, and the estimated ratio of annual costs to revenue for sampled small entities.
During the period from 2010 through 2014, a total of 1,109 approved and accredited
During the period from 2010 through 2014, a total of 26,260 employers employed STEM OPT students.
Schools would incur costs for providing oversight and reporting STEM OPT students' information as well as reviewing required documentation. DSOs would be required to ensure the form has been completed and signed prior to making a recommendation in SEVIS. Schools would be required to ensure that SEVP has access to student evaluations (electronic or hard copy) for a period of at least three years following the completion of each STEM practical training opportunity. The 2008 IFR previously required six-month student validation check-ins with DSOs, and this proposed rule would maintain the validation requirement. While the DSO would be in communication with the student during a six-month validation check-in, DHS proposes to add an additional requirement that DSOs would also check to ensure the six-month evaluation has been properly completed and retain a copy. The NPRM proposes to maintain the 2008 IFR requirements for periodic information reporting requirements on students, which would result in a burden for DSOs.
Schools not accredited by a Department of Education-recognized accrediting agency may incur unquantified costs from the proposed prohibition on participation in STEM OPT extensions by students attending unaccredited schools. A few schools may choose to seek accreditation, or may potentially lose future foreign students and associated revenue. DHS requests comment from unaccredited institutions on this provision, including the potential effect of the requirement on your school and any data associated with the impact, such as the cost of accreditation or potential revenue loss.
DHS summarizes the estimated annual first and second year costs for schools in the following table. DHS requests comments on burdens described below if additional data or
DHS estimates the annual impact to the schools based on the school cost of compliance as a percentage of annual revenue. Second year costs account for new additional STEM OPT extension students. For not-for-profit schools, DHS multiplied the tuition per full-time first-year student with total enrollment numbers to estimate their revenue.
Employers would be required to provide information for certain fields, review the completed form, and attest to the certifications on the form. The proposed rule also ensures that students would be unable to complete their STEM OPT extensions as volunteers by requiring commensurate compensation, and additionally requires that students work at least 20 hours per week while on their STEM OPT extension. DHS
The proposed rule indicates that ICE, at its discretion, may conduct a site visit of an employer. The employer on-site review is intended to ensure that each employer meets program requirements, including that they are complying with assurances and that they possess the ability and resources to provide structured and guided work-based learning experiences outlined in students' Mentoring and Training Plans. Site visits would not be a requirement for each STEM OPT student employer or a regularly scheduled occurrence, but would rather be performed at the discretion of DHS either randomly or when DHS determines that such an action is needed. The length and depth of such a visit would be determined on a case-by-case basis. For law enforcement reasons, DHS does not include an estimate of the basis for initiating a site visit and is unable to estimate of the number of site visits that may be conducted, and thus is unable to provide a total annual estimated cost for such potential occurrences. However, based on on-site-reviews of schools, DHS estimates that an employer site visit may include review of records and questions for the supervisor, and would take two hours per employer. Therefore, DHS estimates that if an employer were to receive such an on-site review, it may cost the employer approximately $394.80 (5 hours × $78.96).
DHS summarizes the estimated annual first and second year costs for potential employers of STEM OPT students in the following table. DHS requests comments on burdens described below if additional data or information is available. DHS acknowledges there may be additional regulatory compliance implementation costs
DHS estimates the annual impact to employers based on the employer cost of compliance as a percentage of annual revenue. Second year costs include initial submission of Mentoring and Training Plans and evaluations for new STEM OPT students who would be hired in the second year. For not-for-profit school employers without revenue data, DHS multiplied the tuition per full-time first-year student with total enrollment numbers to estimate their revenue. Based on the results of the sampled small entities with sufficient data, almost all had first and second year annual impacts less than 1 percent, with the first-year average annual revenue impact being 0.13 percent and second-year annual revenue impact being 0.15 percent. Additionally, the cost impact per employer included a compliance site visit in year two; therefore, costs could be less for employers that do not receive a site visit. Employers of STEM OPT students would determine if the benefits of hiring such students exceed program requirements costs. To the extent that the benefits do not exceed costs, employers may choose not to hire STEM OPT students.
Due to additional employer requirements that must be met in order to receive the benefit of training STEM OPT extension opportunity, it may be possible that some employers (such as temporary employment agencies) would no longer participate in STEM OPT extensions. DHS does not present the quantitative burden or cost associated with this possible impact on employers due to lack of available information on employers that would fall under this category and the associated economic impacts. DHS will consider data or information provided by commenters to assess such an impact upon employers.
In particular, DHS requests information and data that would assist with better understanding the impact of this rule on small entities. DHS also seeks any alternatives that will accomplish the objectives of this rulemaking and minimize the proposed rule's economic impact on small entities. After receiving comments on small entity concerns, data and information on impacts, and suggestions that could reduce negative or cost impacts to small entities, DHS would consider possible alternatives in a final rule. After publication of a final rule, DHS would engage in outreach and provide small entity stakeholders assistance or clarification regarding how to implement the new proposed requirements. At this time, DHS is unable to certify that the proposed rule will not have a significant economic impact on a substantial number of small entities.
Pursuant to section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult ICE using the contact information provided 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 year. Although this proposed rule would not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
The Congressional Review Act (5 U.S.C. 801
Federal agencies are required to submit to OMB, for review and approval, any reporting or recordkeeping requirements inherent in a rule under the Paperwork Reduction Act of 1995, as amended (PRA), Public Law 104-13, 109 Stat. 163 (1995), 44 U.S.C. 3501-3520. Under the PRA, 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.
DHS has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the review procedures of the PRA. The proposed information collection requirements are outlined in this proposed rule to obtain comments from the public and affected entities. The proposed rule would maintain the 2008 IFR revisions to previously approved information collections. The 2008 IFR impacted information collections for Form I-765, Application for Employment Authorization (OMB Control No. 1615-0040); Student and Exchange Visitor Information System (SEVIS) and Form I-20, Certificate of
As part of this NPRM, DHS is creating a new information collection instrument for the Mentoring and Training Plan. This information collection is necessary to enable reporting of and attesting to specified information relating to STEM OPT extensions, to be executed by STEM OPT students and their employers. Such reporting would include goals and objectives, progress, hours, and compensation. Assurances would ensure proper training opportunities for students and safeguard interests of U.S. workers in related fields.
Additionally, DHS will require some minor changes to the Application for Employment Authorization, Form I-765, instructions to reflect proposed changes to the F-1 regulations allowing for: (a) a longer period of F-1 OPT STEM extension, and (b) an applicant to file an Application for Employment Authorization, Form I-765, with USCIS within 60 days (rather than 30 days) from the date the DSO endorses his/her F-1 OPT STEM extension. Accordingly, USCIS will be submitting an OMB 83-C, Correction Worksheet, to OMB for review and approval of the minor edits to the Application for Employment Authorization, Form I-765, instructions during the final rule stage. USCIS seeks comments on whether Form I-765 should be modified as a direct result of the changes in the proposed rule. See the
(1) Evaluate 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;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected;
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
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(5) An estimate of the total annual average number of respondents, annual average number of responses, and the total amount of time estimated for respondents in an average year to collect, provide information, and keep the required records is:
• 43,970 STEM OPT student respondents; 1,109 accredited schools endorsing STEM OPT students; and 16,891 employers of STEM OPT students.
• 43,970 average responses annually at 4.00 hours per initial Mentoring and Training Plan response.
• 87,941 average responses annually at 1.75 hours per 6-month evaluation response by STEM OPT students.
(6) An estimate of the total public burden (in hours) associated with the collection: 330,174 hours.
The recordkeeping requirements set forth by this rule are new requirements that will require a new OMB Control Number. DHS is seeking comment on these new requirements as part of this NPRM.
A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this proposed rule under that
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is a “significant regulatory action” under Executive Order 12866 but is not likely to have a significant adverse effect of the supply, distribution, or use of energy.
The U.S. Department of Homeland Security Management Directive (MD) 023-01 Rev. 01 establishes procedures that DHS and its Components use to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4375, and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508. CEQ regulations allow federal agencies to establish categories of actions, which do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 40 CFR 1508.4. The MD 023-01 Rev. 01 lists the Categorical Exclusions that DHS has found to have no such effect. MD 023-01 Rev. 01 Appendix A Table 1.
For an action to be categorically excluded, MD 023-01 Rev. 01 requires the action to satisfy each of the following three conditions:
(1) The entire action clearly fits within one or more of the Categorical Exclusions.
(2) The action is not a piece of a larger action.
(3) No extraordinary circumstances exist that create the potential for a significant environmental effect. MD 023-01 Rev. 01 section V.B(1)-(3).
Where it may be unclear whether the action meets these conditions, MD 023-01 Rev. 01 requires the administrative record to reflect consideration of these conditions. MD 023-01 Rev. 01 section V.B.
DHS has analyzed this proposed rule under MD 023-01 Rev. 01. DHS has made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule clearly fits within the Categorical Exclusion found in MD 023-01 Rev. 01, Appendix A, Table 1, number A3(a): “Promulgation of rules . . . of a strictly administrative or procedural nature;” and A3(d): “Promulgation of rules . . . that interpret or amend an existing regulation without changing its environmental effect.” This proposed rule is not part of a larger action. This proposed rule presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this proposed rule is categorically excluded from further NEPA review.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule would not cause a taking of private property or otherwise have takings implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
DHS has analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule would not create an environmental risk to health or risk to safety that might disproportionately affect children.
The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (
Administrative practice and procedure, Aliens, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.
Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Department of Homeland Security proposes to amend parts 214 and 274a of Chapter 1 of Title 8 of the Code of Federal Regulations as follows:
8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.
The revisions read as follows:
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(
(B) The automatic extension of an F-1 student's duration of status and employment authorization under paragraph (f)(5)(vi)(A) of this section shall immediately terminate upon the rejection, denial, or revocation of the H-1B petition filed on such F-1 student's behalf.
(C) In order to obtain the automatic extension of stay and employment authorization under paragraph (f)(5)(vi)(A) of this section, the F-1 student, according to 8 CFR part 248, must not have violated the terms or conditions of his or her nonimmigrant status.
(D) An automatic extension of an F-1 student's duration of status under paragraph (f)(5)(vi)(A) of this section also applies to the duration of status of any F-2 dependent aliens.
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(A) Prior to making a recommendation, the DSO at the educational institution of the student's most recent enrollment must ensure that the student is eligible for the given type and period of OPT and that the student is aware of the student's responsibilities for maintaining status while on OPT. Prior to recommending a 24-month OPT extension under paragraph (f)(10)(ii)(C) of this section, the DSO at the educational institution of the student's most recent enrollment must certify that the student's degree being used to qualify that student for the 24-month OPT extension, as shown in SEVIS or official transcripts, is a bachelor's, master's, or doctorate degree with a degree code that is contained within a category on the current STEM Designated Degree Program List at the time the recommendation is made. A DSO may only recommend a student for a 24-month OPT extension under paragraph (f)(10)(ii)(C) of this section if the Mentoring and Training Plan described in paragraph (f)(10)(ii)(C)(
(B) The DSO must update the student's SEVIS record with the DSO's recommendation for OPT before the student can apply to USCIS for employment authorization. The DSO will indicate in SEVIS whether the OPT employment is to be full-time or part-time, or for a student seeking a recommendation for a 24-month OPT extension under paragraph (f)(10)(ii)(C) whether the OPT employment meets the minimum hours requirements described in paragraph (f)(10)(ii)(C)(
(C) The DSO must provide the student with a signed, dated Form I-20, or successor form, indicating that OPT has been recommended.
(iii)
(A) If granted, the employment authorization period for post-completion OPT begins on the requested date of commencement or the date the employment authorization application is approved, whichever is later, and ends at the conclusion of the remaining time period of post-completion OPT eligibility. The employment authorization period for a 24-month OPT extension under paragraph (f)(10)(ii)(C) of this section begins on the day after the expiration of the initial post-completion OPT employment authorization and ends 24 months thereafter, regardless of the date the actual extension is approved.
(B) USCIS will notify the applicant of the decision on the application for employment authorization in writing, and, if the application is denied, of the reason or reasons for the denial.
(C) The applicant may not appeal the decision.
(12)
(ii)
(A) Within 10 days of the change, the student must report to the student's DSO a change of legal name, residential or mailing address, employer name, employer address, and/or loss of employment.
(B) The student must make a validation report and submit his or her
Note to paragraph (f)(12)(ii)(B): The supervisor-approved recurrent evaluation, described in paragraph (f)(10)(ii)(C)(
(g) * * *
(2) * * *
(ii) * * *
(F) For F-1 students authorized by USCIS to engage in a 24-month extension of OPT under § 214.2(f)(10)(ii)(C):
(
(
8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR part 2.
(b) * * *
(6) * * *
(iv) An employment authorization document under paragraph (c)(3)(i)(C) of this section based on a 24-month STEM Optional Practical Training extension, and whose timely filed employment authorization request is pending and employment authorization issued under paragraph (c)(3)(i)(B) of this section has expired. Employment is authorized beginning on the expiration date of the authorization issued under paragraph (c)(3)(i)(B) of this section and ending on the date of USCIS' written decision on the current employment authorization request, but not to exceed 180 days; or
(v) Pursuant to 8 CFR 214.2(h) is seeking H-1B nonimmigrant status and whose duration of status and employment authorization have been extended pursuant to 8 CFR 214.2(f)(5)(vi).
(c) * * *
(3) * * *
(i)(A) Is seeking pre-completion practical training pursuant to 8 CFR 214.2(f)(10)(ii)(A)(
(B) Is seeking authorization to engage in post-completion Optional Practical Training (OPT) pursuant to 8 CFR 214.2(f)(10)(ii)(A)(
(C) Is seeking a 24-month STEM OPT extension pursuant to 8 CFR 214.2(f)(10)(ii)(C);
| 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 |