| Page Range | 63409-63665 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 63663 - Continuation of the National Emergency With Respect to Significant Narcotics Traffickers Centered in Colombia | |
| 80 FR 63591 - National Science Board; Sunshine Act Meetings; Notice | |
| 80 FR 63626 - Accentia Biopharmaceuticals, Inc. and Biostem U.S. Corp., Order of Suspension of Trading | |
| 80 FR 63601 - Life Care Medical Devices Ltd., and New Leaf Brands, Inc.; Order of Suspension of Trading | |
| 80 FR 63624 - Sunshine Act Meeting | |
| 80 FR 63477 - Food Labeling: Revision of the Nutrition and Supplement Facts Labels; Reopening of the Comment Period | |
| 80 FR 63533 - Foreign-Trade Zone (FTZ) 183-Austin, Texas; Notification of Proposed Production Activity; Flextronics America, LLC (Automatic Data Processing Machines); Austin, Texas | |
| 80 FR 63535 - Supercalendered Paper From Canada: Final Affirmative Countervailing Duty Determination | |
| 80 FR 63583 - Notice of Proposed Withdrawal; Sagebrush Focal Areas; Idaho, Montana, Nevada, Oregon, Utah, and Wyoming and Notice of Intent To Prepare an Environmental Impact Statement | |
| 80 FR 63533 - Foreign-Trade Zone 142-Salem/Millville, New Jersey; Application for Subzone; Nine West Holdings, Inc.; West Deptford, New Jersey | |
| 80 FR 63562 - Privacy Act of 1974; System of Records Notice | |
| 80 FR 63635 - Advisory Committee on Public-Private Partnerships; Notice of the Intent To Establish an Advisory Committee | |
| 80 FR 63478 - Negotiated Rulemaking Committee; Negotiator Nominations and Schedule of Committee Meetings-Borrower Defenses | |
| 80 FR 63504 - Final Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012 | |
| 80 FR 63523 - First Responder Network Authority; Final Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012 | |
| 80 FR 63583 - Acceptance of Retrocession of Jurisdiction for the Yakama Nation | |
| 80 FR 63583 - Notice of Inventory Completion: History Colorado, Formerly Colorado Historical Society, Denver, CO | |
| 80 FR 63579 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; National Urban Search and Rescue Response System | |
| 80 FR 63555 - Statement of Organization, Functions, and Delegations of Authority | |
| 80 FR 63580 - Cahaba River National Wildlife Refuge, AL | |
| 80 FR 63585 - Information Collection Activities: Safety and Environmental Management Systems (SEMS); Submitted for Office of Management and Budget (OMB) Review; Comment Request | |
| 80 FR 63576 - Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Cargo Release for Entry Type 52 and Certain Other Modes of Transportation | |
| 80 FR 63428 - Drawbridge Operation Regulation; Arthur Kill, Staten Island, New York | |
| 80 FR 63480 - Removing Net Worth Requirement From Health Care Enrollment | |
| 80 FR 63502 - Census Scientific Advisory Committee | |
| 80 FR 63561 - Agency Information Collection Activities; Proposed Collection; Public Comment Request | |
| 80 FR 63537 - Final Redetermination Pursuant to Court Remand, Wheatland Tube Co. v. United States | |
| 80 FR 63545 - Agency Information Collection Activities; Comment Request; Integrated Postsecondary Education Data System (IPEDS) 2015-2016 Pension Liabilities Update | |
| 80 FR 63553 - Board of Scientific Counselors Sustainable and Healthy Communities Subcommittee; Notification of Public Teleconference Meeting | |
| 80 FR 63552 - Reopening of Request for Scientific Views on the Draft Aquatic Life Ambient Water Quality Criterion for Selenium-Freshwater 2015 | |
| 80 FR 63590 - Notice of Lodging of Proposed Consent Decree Under the Clean Water Act | |
| 80 FR 63635 - Petition for Waiver of Compliance | |
| 80 FR 63638 - Open Meeting of the Federal Advisory Committee on Insurance | |
| 80 FR 63409 - Hearings on Challenges to the Immediate Effectiveness of Orders | |
| 80 FR 63504 - Performance Review Board Membership | |
| 80 FR 63534 - Membership of the Bureau of Industry and Security Performance Review Board | |
| 80 FR 63503 - Membership of the Economic Development Administration Performance Review Board | |
| 80 FR 63485 - Federal Acquisition Regulation: Revision to Standard Forms for Bonds | |
| 80 FR 63601 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Rule 3.20, Influencing or Rewarding Employees of Others, Concerning Gifts and Gratuities in Relation to the Business of the Employer of the Recipient | |
| 80 FR 63632 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 3.22, Concerning Gifts and Gratuities in Relation to the Business of the Employer of the Recipient, and Renaming the Rule “Influencing or Rewarding Employees of Others” | |
| 80 FR 63629 - Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Rule 3.20, Influencing or Rewarding Employees of Others, Concerning Gifts and Gratuities in Relation to the Business of the Employer of the Recipient | |
| 80 FR 63624 - Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 3.22, Concerning Gifts and Gratuities in Relation to the Business of the Employer of the Recipient, and Renaming the Rule “Influencing or Rewarding Employees of Others” | |
| 80 FR 63535 - Membership of the International Trade Administration Performance Review Board | |
| 80 FR 63541 - Membership of the National Telecommunications and Information Administration's Performance Review Board | |
| 80 FR 63543 - Patent Public Advisory Committee Public Hearing on the Proposed Patent Fee Schedule | |
| 80 FR 63589 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Reinstatement, With Change, of a Previously Approved Collection for Which Approval Has Expired: Research To Support the National Crime Victimization Survey (NCVS) | |
| 80 FR 63542 - Trademark Public Advisory Committee Public Hearing on the Proposed Trademark Fee Schedule | |
| 80 FR 63590 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Leased/Charter/Contract Personnel Expedited Clearance Request | |
| 80 FR 63591 - Notice of Intent To Grant a Partially Exclusive License | |
| 80 FR 63554 - Medicare Program; Request for Nominations for Members for the Medicare Evidence Development & Coverage Advisory Committee | |
| 80 FR 63484 - Medicare Program; Request for Information Regarding Implementation of the Merit Based Incentive Payment System, Promotion of Alternative Payment Models, and Incentive Payments for Participation in Eligible Alternative Payment Models | |
| 80 FR 63545 - Defense Science Board; Notice of Advisory Committee Meetings | |
| 80 FR 63541 - Submission for OMB Review; Comment Request | |
| 80 FR 63573 - National Human Genome Research Institute; Notice of Closed Meetings | |
| 80 FR 63565 - National Human Genome Research Institute; Notice of Closed Meeting | |
| 80 FR 63570 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of Closed Meetings | |
| 80 FR 63572 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of Closed Meeting | |
| 80 FR 63571 - National Institute of Mental Health; Amended Notice of Meeting | |
| 80 FR 63566 - National Human Genome Research Institute; Notice of Closed Meetings | |
| 80 FR 63575 - National Human Genome Research Institute; Notice of Closed Meetings | |
| 80 FR 63565 - National Human Genome Research Institute; Notice of Closed Meetings | |
| 80 FR 63573 - National Institute of Dental & Craniofacial Research; Notice of Closed Meeting | |
| 80 FR 63571 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meetings | |
| 80 FR 63574 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meetings | |
| 80 FR 63572 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 63574 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 63565 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed Meeting | |
| 80 FR 63565 - National Institute of General Medical Sciences; Notice of Closed Meetings | |
| 80 FR 63482 - Periodic Reporting | |
| 80 FR 63592 - New Postal Product | |
| 80 FR 63547 - Notice of Staff Attendance at Southwest Power Pool Regional Entity Trustee, Regional State Committee, Members' and Board of Directors' Meetings | |
| 80 FR 63546 - Supplemental Notice of Technical Conference | |
| 80 FR 63551 - Cameron LNG, LLC; Notice of Application | |
| 80 FR 63548 - GB Energy Park, LLC; Notice of Application Tendered for Filing with the Commission and Soliciting Additional Study Requests | |
| 80 FR 63550 - Notice of Cultural Resource Meeting | |
| 80 FR 63551 - Notice of Revised Restricted Service List for a Programmatic Agreement for Managing Properties Included in or Eligible for Inclusion in the National Register of Historic Places | |
| 80 FR 63547 - NRG Power Marketing LLC v. Midcontinent Independent System Operator, Inc.; Notice of Complaint | |
| 80 FR 63549 - Crescent Point Energy U.S. Corp., Eagle Rock Exploration Ltd.; Notice of Application | |
| 80 FR 63539 - Federal Information Processing Standard (FIPS) 186-4, Digital Signature Standard; Request for Comments on the NIST-Recommended Elliptic Curves | |
| 80 FR 63575 - Automated Commercial Environment (ACE) Export Manifest for Vessel Cargo Test; Correction | |
| 80 FR 63634 - South Carolina Disaster Number SC-00031 | |
| 80 FR 63635 - South Carolina Disaster Number SC-00031 | |
| 80 FR 63634 - California Disaster #CA-00240 | |
| 80 FR 63498 - Request for Proposals: 2016 Wood Innovations Funding Opportunity | |
| 80 FR 63579 - Agency Information Collection Activities: Notice of Appeal of Decision Under Section 210 or 245A, Form I-694; Revision of a Currently Approved Collection Title of the Information Collection | |
| 80 FR 63501 - Submission for OMB Review; Comment Request | |
| 80 FR 63502 - Submission for OMB Review; Comment Request | |
| 80 FR 63636 - Agency Information Collection Activities; Proposed Revision; Comment Request; Annual Company-Run Stress Test Reporting Template and Documentation for Covered Institutions With Total Consolidated Assets of $10 Billion to $50 Billion Under the Dodd-Frank Wall Street Reform and Consumer Protection Act | |
| 80 FR 63534 - Environmental Technologies Trade Advisory Committee Public Meeting | |
| 80 FR 63559 - Advisory Committee on Heritable Disorders in Newborns and Children; Notice of Meeting | |
| 80 FR 63558 - Advisory Committee on Organ Transplantation; Notice of Meeting | |
| 80 FR 63560 - Agency Information Collection Activities: Proposed Collection: Public Comment Request | |
| 80 FR 63593 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Amend the Fees Schedule | |
| 80 FR 63598 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to End of Week/End of Month Expirations Pilot Program | |
| 80 FR 63600 - Submission for OMB Review; Comment Request | |
| 80 FR 63603 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of a Proposed Rule Change To Amend FINRA Rule 4210 (Margin Requirements) To Establish Margin Requirements for the TBA Market | |
| 80 FR 63621 - 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 63595 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Provide a Web-Based Delivery Method for Completing the Regulatory Element of the Continuing Education Requirements Pursuant to Rule G-3(i)(i) | |
| 80 FR 63627 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Mini Options | |
| 80 FR 63628 - Submission for OMB Review; Comment Request | |
| 80 FR 63554 - Labor-Management Relations Information Collection Requests | |
| 80 FR 63593 - International Product Change-Global Expedited Package Services-Non-Published Rates | |
| 80 FR 63593 - Product Change-Priority Mail Negotiated Service Agreement | |
| 80 FR 63498 - Submission for OMB Review; Comment Request | |
| 80 FR 63544 - Agency Information Collection Activities Under OMB Review | |
| 80 FR 63588 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection National Standards To Prevent, Detect, and Respond to Prison Rape | |
| 80 FR 63572 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed Meeting | |
| 80 FR 63571 - National Heart, Lung, and Blood Institute; Notice of Closed Meeting | |
| 80 FR 63564 - National Center for Complementary & Integrative Health; Notice of Closed Meeting | |
| 80 FR 63566 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 63573 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed Meeting | |
| 80 FR 63473 - Proposed Amendment of Air Traffic Service (ATS) Routes; Southwest Oklahoma | |
| 80 FR 63503 - Submission for OMB Review; Comment Request | |
| 80 FR 63474 - Space Flight | |
| 80 FR 63567 - Announcement of Requirements and Registration for the Open Science Prize | |
| 80 FR 63639 - Approval and Promulgation of Implementation Plans; Designation of Areas for Air Quality Planning Purposes; California; South Coast Moderate Area Plan and Reclassification as Serious Nonattainment for the 2006 PM2.5 | |
| 80 FR 63451 - Air Plan Approval; Michigan; 2006 PM2. | |
| 80 FR 63483 - Air Plan Approval; Michigan; 2006 PM2.5 | |
| 80 FR 63431 - Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Albuquerque/Bernalillo County; Revisions to State Boards and Conflict of Interest Provisions | |
| 80 FR 63483 - Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Albuquerque/Bernalillo County; Revisions to State Boards and Conflict of Interest Provisions | |
| 80 FR 63429 - Clean Air Act Redesignation Substitute for the Houston-Galveston-Brazoria 1-Hour Ozone Nonattainment Area; Texas | |
| 80 FR 63426 - Amendment of Class D Airspace and Revocation of Class E Airspace; Columbus, Ohio State University Airport, OH, and Amendment of Class E Airspace; Columbus, OH | |
| 80 FR 63425 - Establishment of Class E Airspace; Wakeeney, KS | |
| 80 FR 63420 - Airworthiness Directives; Bombardier, Inc. Airplanes | |
| 80 FR 63636 - Reports, Forms and Recordkeeping Requirements Agency Information Collection Activity Under OMB Review | |
| 80 FR 63422 - Airworthiness Directives; Various Sikorsky-Manufactured Transport and Restricted Category Helicopters | |
| 80 FR 63436 - Air Plan Approval; Minnesota; Infrastructure SIP Requirements for the 2008 Ozone, 2010 NO2 | |
| 80 FR 63454 - Volunteers in Service to America | |
| 80 FR 63427 - Privacy Act Systems of Records |
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National Agricultural Statistics Service
Rural Business-Cooperative Service
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Economic Development Administration
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National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
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Nuclear Regulatory Commission.
Final rule.
The U.S. Nuclear Regulatory Commission (NRC) is amending its regulations regarding challenges to the immediate effectiveness of NRC enforcement orders to clarify the burden of proof and to clarify the authority of the presiding officer to order live testimony in resolving these challenges.
This final rule is effective on November 19, 2015.
Please refer to Docket ID NRC-2013-0132 when contacting the NRC about the availability of information for this final rule. You may obtain publicly-available information related to this final rule by any of the following methods:
•
•
•
Esther Houseman, Office of the General Counsel, telephone: 301-415-2267, email:
The U.S. Nuclear Regulatory Commission (NRC) is amending its regulations regarding the issuance of immediately effective orders to clarify the burden of proof in proceedings on challenges to the immediate effectiveness of such orders and the authority of the presiding officer in such proceedings to order live testimony. In NRC enforcement proceedings, the recipient of an order ordinarily may challenge the validity of that order before its terms become effective at a later specified date. However, in certain circumstances, the NRC may issue orders to regulated entities or individuals that are “immediately effective,” meaning the order's terms are effective upon issuance and remain in effect even during the pendency of a challenge. These amendments confirm that the recipient of the immediately effective order has the burden to initiate a challenge regarding the order's immediate effectiveness and present evidence that the order, including the need for immediate effectiveness, is not based on adequate evidence. The amendments also clarify that the NRC staff ultimately bears the burden of persuasion that immediate effectiveness is warranted. Additionally, these amendments confirm that the presiding officer in a challenge to the immediate effectiveness of an order may order live testimony, including cross examination of witnesses, if it will assist in the presiding officer's decision. These are not substantive changes to the agency's enforcement procedures, but rather confirm existing burdens and presiding officer authority.
In this final rule, the Commission is not adopting the previously proposed amendment
On January 4, 2006, the U.S. Nuclear Regulatory Commission (NRC) issued an immediately effective order to Mr. David Geisen, a former employee at the Davis-Besse Nuclear Power Station, barring him from employment in the nuclear industry for 5 years.
In the parallel NRC enforcement proceeding, brought under the agency's Deliberate Misconduct Rule, § 50.5 of title 10 of the
The lack of certainty as to the specific basis of the jury's verdict was significant, because if the verdict was based on actual knowledge, the Board could have applied collateral estoppel based on the NRC's identical actual knowledge standard and the same facts in the criminal case.
In the Staff Requirements Memorandum (SRM) to SECY-10-0074, “David Geisen, NRC Staff Petition for Review of LBP-09-24 (Aug. 28, 2009),” dated September 3, 2010 (ADAMS Accession No. ML102460411), the Commission directed the NRC's Office of the General Counsel (OGC) to conduct a review of three issues: (1) How parallel NRC enforcement actions and DOJ criminal prosecutions affect each other, (2) the issuance of immediately effective enforcement orders in matters that DOJ is also pursuing, and (3) the degree of knowledge required for pursuing violations against individuals for deliberate misconduct. In 2011, OGC conducted the requested review and provided recommendations to the Commission for further consideration. In response, in 2012, the Commission directed OGC to develop a proposed rule that would incorporate the deliberate ignorance standard into the Deliberate Misconduct Rule. As part of this effort, the Commission directed OGC to examine the definitions of deliberate ignorance from all Federal circuit courts to aid in developing the most appropriate definition of this term for the NRC. The Commission also directed OGC to clarify two aspects of the regulations regarding challenges to immediate effectiveness of NRC orders as part of this rulemaking: (1) The burden of proof and (2) the authority of the presiding officer to order live testimony in resolving such a challenge.
This final rule amends 10 CFR 2.202, which governs challenges to, and the presiding officer's review of, the immediate effectiveness of an order. Currently, the Commission may make orders immediately effective under 10 CFR 2.202(a)(5) if it finds that the public health, safety, or interest so requires or if willful conduct caused a violation of the Atomic Energy Act of 1954, as amended (AEA), an NRC regulation, license condition, or previously issued Commission order. This final rule amends the NRC's regulations by clarifying the following: (1) Which party bears the burden of proof in a hearing on a challenge to the immediate effectiveness of an order, and (2) the authority of the presiding officer to call for live testimony in a hearing on a challenge to the immediate effectiveness of an order. In developing these amendments to 10 CFR 2.202, the NRC reviewed the way in which the Board has interpreted the burden of proof in hearings on challenges to the immediate effectiveness of an order. The NRC also reviewed its current regulations and practices regarding the authority of the presiding officer to call for live testimony in hearings on challenges to the immediate effectiveness of an order.
This final rule also makes conforming amendments to 10 CFR 150.2 by adding a cross reference to 10 CFR 61.9b and replacing the cross reference to 10 CFR 71.11 with a cross reference to 10 CFR 71.8. These conforming amendments are necessary because when the NRC first promulgated the Deliberate Misconduct Rule in 1991, it failed to list 10 CFR 61.9b as a cross reference in 10 CFR 150.2; and, although the NRC listed 10 CFR 71.11, which at the time was the 10 CFR part 70 Deliberate Misconduct Rule, as a cross reference in 10 CFR 150.2, the NRC later redesignated the provision as 10 CFR 71.8 and failed to make a conforming amendment to update 10 CFR 150.2.
As discussed further in the following sections, the Commission is not adopting in this final rule the previously proposed amendment to the Deliberate Misconduct Rule to incorporate the concept of deliberate ignorance as an additional basis upon which the NRC can take enforcement action against an individual for violating the rule.
The NRC's procedures to initiate formal enforcement action are found in subpart B of 10 CFR part 2. These regulations include 10 CFR 2.202,
On the same day that the Commission published the 1990 proposed Deliberate Misconduct Rule, “Willful Misconduct by Unlicensed Persons,”
On July 5, 1990, the Commission published another proposed rule that would make additional changes to 10 CFR 2.202.
In addition, the July 5, 1990, proposed rule provided the following statement regarding the respective burdens of a party filing a motion to challenge the immediate effectiveness of an immediately effective order and of the NRC staff:
The burden of going forward on the immediate effectiveness issue is with the party who moves to set aside the immediate effectiveness provision. The burden of persuasion on the appropriateness of immediate effectiveness is on the NRC staff.
In opposing the immediate effectiveness aspect of an order, the party subject to the order, or respondent, must initiate the proceeding by filing affidavits and other evidence that state that the order and the NRC staff's determination that it is necessary to make the order immediately effective “is not based on adequate evidence but on mere suspicion, unfounded allegations, or error.”
[T]he staff must satisfy a two-part test: It must demonstrate that adequate evidence—
The July 5, 1990, proposed rule's statement of considerations contemplated the possibility of an evidentiary hearing as part of a challenge to immediate effectiveness:
It is expected that the presiding officer normally will decide the question of immediate effectiveness solely on the basis of the order and other filings on the record. The presiding officer may call for oral argument. However, an evidentiary hearing is to be held only if the presiding officer finds the record is inadequate to reach a proper decision on immediate effectiveness. Such a situation is expected to occur only rarely.
This rule amends 10 CFR 2.202(c)(2) to clarify that in any challenge to the immediate effectiveness of an order, the NRC staff bears the burden of persuasion and the party challenging the order bears the burden of going forward.
This rule further amends 10 CFR 2.202(c)(2) to confirm the presiding officer's authority to order live testimony, including cross examination of witnesses, in hearings on challenges to the immediate effectiveness of orders if the presiding officer concludes that taking live testimony would assist in its decision on the motion. Similarly, the rule allows any party to the proceeding to file a motion requesting the presiding officer to order live testimony. The amendments allow the NRC staff, in cases where the presiding officer orders live testimony, the option of presenting its response through live testimony rather than a written response made within 5 days of its receipt of the motion. The NRC does not anticipate that permitting the presiding officer to allow live testimony would cause delay, and even if it were to cause delay, public health and safety would not be affected because the immediately effective order would remain in effect throughout the hearing on immediate effectiveness.
The rule also amends 10 CFR 2.202(c)(2) to clarify that the presiding officer shall conduct any live testimony pursuant to its powers in 10 CFR 2.319, except that no subpoenas, discovery, or referred rulings or certified questions to the Commission shall be permitted for this purpose. Finally, the rule amends 10 CFR 2.202(c)(2) by dividing the paragraph into smaller paragraphs, adding a cross reference to 10 CFR 2.202(a)(5) (the regulation that authorizes the Commission to make an order immediately effective), and making other minor edits to improve clarity and readability.
Section 150.2, “Scope,” provides notice to Agreement State licensees conducting activities under reciprocity in areas of NRC jurisdiction that they are subject to the applicable NRC Deliberate Misconduct Rule provisions. When the NRC first promulgated the Deliberate Misconduct Rule in 1991, it failed to list 10 CFR 61.9b as a cross reference in 10 CFR 150.2. At the time, 10 CFR 150.2 listed 10 CFR 30.10, 40.10, and 70.10 as the Deliberate Misconduct Rule provisions applicable to Agreement State licensees conducting activities under reciprocity in areas of NRC jurisdiction.
On January 13, 1998, the NRC revised its regulations to extend the Deliberate Misconduct Rule to include applicants for or holders of certificates of compliance issued under 10 CFR part 71, “Packaging and Transportation of Radioactive Material.”
This rule makes conforming amendments to 10 CFR 150.2 by adding a cross reference to 10 CFR 61.9b and deleting the cross reference to 10 CFR 71.11 and replacing it with a cross reference to 10 CFR 71.8.
The proposed rule was published on February 11, 2014, for a 90-day public comment period that ended on May 12, 2014.
The NRC received comments from six commenters: The Nuclear Energy Institute, Inc. (NEI), the National Association of Criminal Defense Lawyers (NACDL), STARS Alliance LLC (STARS), Hogan Lovells LLP (Hogan Lovells), Troutman Sanders LLP (Troutman Sanders), and an individual, Mr. James Lieberman. All six provided comments on the proposed amendment to the Deliberate Misconduct Rule incorporating the concept of deliberate ignorance. One commenter, Mr. Lieberman, supported the amendment. The other five commenters opposed the amendment. All comments are summarized in this section, by topic. Additionally, two commenters (NEI and STARS) provided comments on the proposed amendments to 10 CFR
The NEI, NACDL, STARS, Hogan Lovells, and Troutman Sanders commented that deliberate ignorance is an inherently vague and highly subjective criminal knowledge standard and that distinguishing deliberate ignorance from other, non-deliberate states of mind, such as carelessness, recklessness, or negligence, would be difficult in practice. These commenters expressed concern that adoption of the deliberate ignorance standard into the NRC's regulations may confuse NRC staff and could possibly result in enforcement action against individuals who do not commit deliberate violations.
Specifically, Hogan Lovells expressed concern that NRC staff would have difficulty assessing what an individual “subjectively believed” and whether the individual deliberately took action to “avoid learning” a material fact. The NEI commented that the “complex, legalistic deliberate ignorance standard would be difficult to apply and would promote unnecessary and wasteful litigation without a counterbalancing benefit to the public.” The NACDL expressed concern that the “theoretical distinction between a person who is deliberately ignorant and one who is reckless or negligent” would be “almost impossible to maintain” in the NRC enforcement setting. As additional support for these concerns, NEI, STARS, and Hogan Lovells stated that legal scholars and courts, including the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), have cautioned that a “deliberate ignorance” jury instruction in Federal criminal trials should only be used sparingly because of the heightened risk that defendants may be inadvertently or impermissibly convicted on a lesser basis than deliberate ignorance, such as recklessness or negligence. The NACDL, NEI, and Troutman Sanders also argued that in the majority of cases evidence used to support a finding of deliberate ignorance would also serve as circumstantial evidence of actual knowledge, thereby further diminishing the utility of the proposed rule.
One commenter, Mr. Lieberman, expressed support for the incorporation of the deliberate ignorance standard because the text of the rule “clearly” distinguished deliberate ignorance from persons who act with recklessness or careless indifference. Mr. Lieberman recommended that the Commission provide several hypothetical examples of how and under what circumstances the deliberate ignorance standard might be applied in the future to more clearly explain how the NRC staff would differentiate between deliberate ignorance and careless disregard in practice.
The Commission acknowledges Mr. Lieberman's support for the rule and, as previously stated, agrees that the text of the proposed rule accurately distinguishes deliberate ignorance from non-deliberate standards, including recklessness, negligence, and carelessness. However, for the reasons previously stated, the Commission is not adopting in this final rule the proposed amendment to the Deliberate Misconduct Rule.
The NEI, NACDL, STARS, Hogan Lovells, and Troutman Sanders all commented that the proposed rule failed to provide a compelling justification for incorporating the deliberate ignorance standard into the Deliberate Misconduct Rule. Several of these commenters stated that the only justification that the NRC provided for expanding the scope of the rule was the NRC staff's inability to invoke collateral estoppel in the
The NEI and Hogan Lovells also argued that the statement in the proposed rule that “deficiencies in the
The Commission also disagrees with the comment that the
As previously stated, the Commission is not adopting the proposed amendment to the Deliberate Misconduct Rule because the practical difficulties are expected to outweigh the potential benefits gained from the rule.
The NEI stated that the proposed rule would conflict with the Commission's decision in the 1991 Deliberate Misconduct Rule to exclude from the rule violations based on careless disregard and negligence. Hogan Lovells stated that the Commission rejected the deliberate ignorance standard when it promulgated the original Deliberate Misconduct Rule.
The Commission eventually eliminated “careless disregard” from the final rule in response to public comments, which Hogan Lovells characterizes as the Commission's “considered and intentional decision” to exclude deliberate ignorance from the rule. However, the Commission disagrees that this limited discussion amounts to an express rejection of the deliberate ignorance standard. In the 1991 final rule, the Commission did not focus on the applicability of collateral estoppel in a parallel criminal action, which was one of the justifications for the proposed rule. Further, rejection of a proposal under previous rulemaking would not prevent future Commissions from reconsidering the matter and reaching a different conclusion. As previously stated, the NRC is not adopting the proposed amendment to the Deliberate Misconduct Rule over concerns that practical difficulties with its implementation are expected to outweigh the potential benefits.
The NEI, Hogan Lovells, and STARS stated that the proposed rule is premature because of unsettled judicial precedent. The NEI and Hogan Lovells cited as support the D.C. Circuit's statements in
Additionally, NEI and Hogan Lovells stated that the Supreme Court case
In
The Commission disagrees with the comment that it should give the D.C. Circuit's opinion in
Additionally, the Commission disagrees with the comment that the Supreme Court's
As previously stated, the NRC is not adopting the proposed amendment to the Deliberate Misconduct Rule because the practical difficulties with its implementation would likely outweigh the potential benefits.
The NEI and STARS stated that the NRC failed to issue draft guidance with the proposed rule and should not make the final rule effective until after the NRC publishes draft guidance for public comment and then finalizes that guidance. The NEI stated that NRC policy requires that the agency issue draft guidance in parallel with proposed rules, citing the SRM to SECY-11-0032, “Consideration of the Cumulative Effects of Regulation in the Rulemaking Process,” dated October 11, 2011 (ADAMS Accession No. ML112840466). The NEI further stated that the final rule should require the Director of the Office of Enforcement to formally certify to the Commission that he or she has reviewed the staff's application of deliberate ignorance before issuing any violation relying on the standard. The NEI also suggested that the NRC provide examples of circumstances that are categorically excluded (
Mr. Lieberman expressed support for the proposed rule but also suggested that the NRC provide hypothetical examples of conduct that does and does
The NEI commented that the proposed rule would discourage participation in licensed activities and nuclear employment and noted that the Commission acknowledged this concern in the 1991 Deliberate Misconduct Rule.
The NEI commented that the proposed rule is not necessary for deterrent effect because the risk of criminal prosecution is a sufficient deterrent. The commenter also stated that, rather than expanding the Deliberate Misconduct Rule to encompass more individual behavior, the NRC still has the option in situations where an individual engages in improper conduct beyond the reach of the current Deliberate Misconduct Rule to issue sanctions to the company to address the NRC's concerns.
Citing statements from the
The NEI and STARS proposed further changes to 10 CFR 2.202(c)(2)(ii) to clarify that the person challenging an immediately effective enforcement order need not testify in such a hearing because doing so may compromise his or her Fifth Amendment right against self-incrimination. The commenters also advocated including a requirement imposing more stringent requirements and qualifications for persons testifying on behalf of the NRC staff in challenges to immediately effective orders. Additionally, the commenters stated that the final rule should include an additional sentence stating that if the presiding officer orders live testimony, the parties may cross examine witnesses when it would assist the presiding officer's decision on the motion to set aside the immediate effectiveness of the order.
The NEI and STARS commented that the revision to 10 CFR 2.202(c)(2)(iii) should also require that the NRC staff reply to a motion in writing, rather than providing the option to respond orally, in order to prevent the staff's ability to “ambush” or “sandbag” the individual challenging the order. These commenters also stated that the final rule should make clear that NRC staff cannot use this opportunity to expand the scope of arguments set forth in the original immediately effective order.
The NEI and STARS commented that the final rule should revise 10 CFR 2.202(c)(2)(viii) to require that if the presiding officer sets aside an immediately effective order, the order setting aside immediate effectiveness will not be stayed automatically and will only be stayed if the NRC staff files and the Commission grants a motion for a stay under 10 CFR 2.342.
Several of the commenters' proposed changes are either already addressed in this final rulemaking, or the current rules are adequately flexible to address their concerns without adopting their proposed changes. For example, with respect to the comment recommending that if the presiding officer orders live testimony, then the parties may cross examine witnesses when it would assist the presiding officer's decision on the motion to set aside the immediate effectiveness of the order, the presiding officer already has the power to order cross examination pursuant to 10 CFR 2.319. Additionally, 10 CFR 2.319 currently describes the duty of the presiding officer in an NRC adjudication to conduct a fair and impartial hearing and to take the necessary action to regulate the course of the hearing and the conduct of its participants. Parties can direct concerns that the NRC staff is inappropriately expanding the scope of argument to the presiding officer for resolution pursuant to this authority. The Commission does not agree with concerns that the NRC staff should reply in writing in advance of live testimony to prevent it from “ambushing” the individual challenging the order. If testimony of individuals is truthful and complete, knowing the staff's response in advance of testifying should have little bearing on its substance. Further, with respect to the commenters' constitutional concerns, it is well established that the Fifth Amendment privilege against self-incrimination can be asserted in administrative proceedings.
As for the remaining comments, the Commission appreciates the commenters' input on its process for issuing and adjudicating immediately effective orders, but additional substantive changes to 10 CFR 2.202(c)(2) or proposals to significantly overhaul its procedures for challenging immediately effective orders are beyond the scope of this rulemaking. The Commission notes that the commenters are able to submit these recommendations as a petition for rulemaking via the 10 CFR 2.802 petition for rulemaking process. The Commission takes the commenters' concerns with fairness in its adjudicatory procedures seriously; however, the proposed changes to 10 CFR 2.202 were limited to clarifying changes to address specific concerns regarding the application of 10 CFR 2.202(c) in certain circumstances. The multiple additional procedural changes that the commenters recommend would be more appropriately addressed in the context of a comprehensive assessment of the NRC's rules of practice and procedure in 10 CFR part 2, which would ensure compliance with the NRC's obligations under the Administrative Procedure Act to allow for notice and comment on proposed rules before they are adopted. Adopting the commenters' proposed changes in this rulemaking would not allow for sufficient notice-and-comment opportunities for other interested parties, and the NRC therefore declines to do so.
The rule makes several changes to 10 CFR 2.202(c)(2)(i). The rule revises 10 CFR 2.202(c)(2)(i) by dividing it into several smaller paragraphs. The rule revises paragraph 10 CFR 2.202(c)(2)(i) to include only the first two sentences of the current 10 CFR 2.202(c)(2)(i), which concern the right of the party subject to an immediately effective order to challenge the immediate effectiveness of that order. The rule further revises the first sentence to add a cross reference to 10 CFR 2.202(a)(5) and make other minor, clarifying editorial changes to that sentence.
The rule adds a new paragraph 10 CFR 2.202(c)(2)(ii), which allows any party to file a motion with the presiding officer requesting that the presiding officer order live testimony. Paragraph 10 CFR 2.202(c)(2)(ii) also authorizes the presiding officer, on its own motion, to order live testimony.
The rule redesignates the third sentence of the current 10 CFR 2.202(c)(2)(i) as a new paragraph 10 CFR 2.202(c)(2)(iii), which authorizes the NRC staff to present its response through live testimony rather than a written response in those cases where the presiding officer orders live testimony.
The rule adds a new paragraph 10 CFR 2.202(c)(2)(iv), which provides that the presiding officer shall conduct any live testimony pursuant to 10 CFR 2.319.
The rule makes a minor clarifying change to 10 CFR 2.202(c)(2)(ii) and redesignates that paragraph as 10 CFR 2.202(c)(2)(v).
The rule adds a new paragraph 10 CFR 2.202(c)(2)(vi), which clarifies that the licensee or other person challenging the immediate effectiveness of an order bears the burden of going forward, whereas the NRC staff bears the burden of persuasion that adequate evidence supports the grounds for the immediately effective order and that immediate effectiveness is warranted.
The rule makes minor clarifying changes to the fourth and fifth sentences of 10 CFR 2.202(c)(2)(i), which direct the presiding officer's expeditious disposition of the motion to set aside immediate effectiveness and prohibit the presiding officer from staying the immediate effectiveness of the order, respectively, and redesignates those sentences as a new paragraph 10 CFR 2.202(c)(2)(vii).
The rule makes minor clarifying changes to the eighth sentence of 10 CFR 2.202(c)(2)(i), and redesignates the sixth, seventh, and eighth sentences of 10 CFR 2.202(c)(2)(i) as new paragraph 10 CFR 2.202(c)(2)(viii). These sentences (1) direct the presiding officer to uphold the immediate effectiveness of the order if it finds that there is adequate evidence to support immediate effectiveness, (2) address the final agency action status of an order upholding immediate effectiveness, (3) address the presiding officer's prompt referral of an order setting aside immediate effectiveness to the Commission, and (4) states that the order setting aside immediate effectiveness will not be effective pending further order of the Commission.
This rule revises the last sentence of 10 CFR 150.2 by adding a cross reference to 10 CFR 61.9b and replacing the cross reference to 10 CFR 71.11 with a cross reference to 10 CFR 71.8.
Under the Regulatory Flexibility Act, as amended (5 U.S.C. 605(b)), the NRC certifies that this rule does not have a significant economic impact on a substantial number of small entities. This final rule affects a number of “small entities” as defined by the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810). However, as indicated in Section VII, “Regulatory Analysis,” these amendments do not have a significant economic impact on the affected small entities. The NRC received no comment submissions from an identified small entity regarding the impact of the proposed rule on small entities.
The amendments to the rule governing hearings on challenges to immediate effectiveness of orders do not change the existing processes but merely clarify the rule. The final rule makes minor, conforming amendments to 10 CFR 150.2. These amendments do not result in a cost to the NRC or to respondents in hearings on challenges to immediate effectiveness of orders, but a benefit accrues to the extent that potential confusion over the meaning of the NRC's regulations is removed. The NRC believes that this final rule improves the efficiency of NRC enforcement proceedings without imposing costs on either the NRC or on participants in these proceedings.
The final rule revises the immediate effectiveness provisions at 10 CFR 2.202 to state that the respondent bears the burden of going forward with evidence to challenge immediate effectiveness and the NRC staff bears the burden of persuasion on whether adequate evidence supports immediate effectiveness. The final rule also revises 10 CFR 2.202 to clarify that the presiding officer is permitted to order live testimony, either by its own motion, or upon the motion of any party to the proceeding.
The revisions to 10 CFR 2.202 clarify the agency's adjudicatory procedures with respect to challenges to immediate effectiveness of orders. These revisions do not change, modify, or affect the design, procedures, or regulatory approvals protected under the various NRC backfitting and issue finality provisions. Accordingly, the revisions to the adjudicatory procedures do not represent backfitting imposed on any
Cumulative Effects of Regulation do not apply to this final rule because it is an administrative rule. The final rule only (1) makes amendments to the NRC's regulations regarding challenges to the immediate effectiveness of NRC enforcement orders to clarify the burden of proof and to clarify the authority of the presiding officer to order live testimony in resolving these challenges and (2) makes conforming amendments to 10 CFR 150.2.
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).
The NRC has determined that the issuance of this final rule relates to enforcement matters and, therefore, falls within the scope of 10 CFR 51.10(d). In addition, the NRC has determined that the issuance of this final rule is the type of action described in categorical exclusions at 10 CFR 51.22(c)(1)-(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rulemaking.
This final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.
The portion of this action amending 10 CFR 2.202 is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, OMB has not found it to be a major rule as defined in the Congressional Review Act.
Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the
The NRC program elements (including regulations) are placed into four compatibility categories (See the Compatibility Table in this section). In addition, the NRC program elements can also be identified as having particular health and safety significance or as being reserved solely to the NRC. Compatibility Category A are those program elements that are basic radiation protection standards and scientific terms and definitions that are necessary to understand radiation protection concepts. An Agreement State should adopt Category A program elements in an essentially identical manner to provide uniformity in the regulation of agreement material on a nationwide basis. Compatibility Category B are those program elements that apply to activities that have direct and significant effects in multiple jurisdictions. An Agreement State should adopt Category B program elements in an essentially identical manner. Compatibility Category C are those program elements that do not meet the criteria of Category A or B, but the essential objectives of which an Agreement State should adopt to avoid conflict, duplication, gaps, or other conditions that would jeopardize an orderly pattern in the regulation of agreement material on a nationwide basis. An Agreement State should adopt the essential objectives of the Category C program elements. Compatibility Category D are those program elements that do not meet any of the criteria of Category A, B, or C, and, therefore, do not need to be adopted by Agreement States for purposes of compatibility.
Health and Safety (H&S) are program elements that are not required for compatibility but are identified as having a particular health and safety role (
The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or is otherwise impractical. In this rule, the NRC is clarifying two aspects of challenges to the immediate effectiveness of NRC enforcement orders: (1) The burden of proof and (2) the authority of the presiding officer to order live testimony in resolving such a challenge. The NRC is also making conforming amendments to 10 CFR 150.2. This action does not constitute the establishment of a standard that contains generally applicable requirements.
Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Confidential business information; Freedom of information, Environmental protection, Hazardous waste, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
Criminal penalties, Hazardous materials transportation, Intergovernmental relations, Nuclear energy, Nuclear materials, Penalties, Reporting and recordkeeping requirements, Security measures, Source material, Special nuclear material.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 2 and 150 as follows:
Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81, 102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42 U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42 U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act (5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.
Section 2.205(j) also issued under Sec. 31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).
(c) * * *
(2)(i) The licensee or other person to whom the Commission has issued an immediately effective order in accordance with paragraph (a)(5) of this section, may, in addition to demanding a hearing, at the time the answer is filed or sooner, file a motion with the presiding officer to set aside the immediate effectiveness of the order on the ground that the order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error. The motion must state with particularity the reasons why the order is not based on adequate evidence and must be accompanied by affidavits or other evidence relied on.
(ii) Any party may file a motion with the presiding officer requesting that the presiding officer order live testimony. Any motion for live testimony must be made in conjunction with the motion to set aside the immediate effectiveness of the order or any party's response thereto. The presiding officer may, on its own motion, order live testimony. The presiding officer's basis for approving any motion for, or ordering on its own motion, live testimony shall be that taking live testimony would assist in its decision on the motion to set aside the immediate effectiveness of the order.
(iii) The NRC staff shall respond in writing within 5 days of the receipt of either a motion to set aside the immediate effectiveness of the order or the presiding officer's order denying a motion for live testimony. In cases in which the presiding officer orders live testimony, the staff may present its response through live testimony rather than a written response.
(iv) The presiding officer shall conduct any live testimony pursuant to its powers in § 2.319 of this part, except that no subpoenas, discovery, or referred rulings or certified questions to the Commission shall be permitted for this purpose.
(v) The presiding officer may, on motion by the staff or any other party to the proceeding, where good cause exists, delay the hearing on the immediately effective order at any time for such periods as are consistent with the due process rights of the licensee or other person and other affected parties.
(vi) The licensee or other person challenging the immediate effectiveness of an order bears the burden of going forward with evidence that the immediately effective order is not based on adequate evidence, but on mere suspicion, unfounded allegations, or error. The NRC staff bears the burden of persuading the presiding officer that adequate evidence supports the grounds for the immediately effective order and immediate effectiveness is warranted.
(vii) The presiding officer shall issue a decision on the motion to set aside the immediate effectiveness of the order expeditiously. During the pendency of the motion to set aside the immediate effectiveness of the order or at any other time, the presiding officer may not stay the immediate effectiveness of the order, either on its own motion, or upon motion of the licensee or other person.
(viii) The presiding officer shall uphold the immediate effectiveness of the order if it finds that there is adequate evidence to support immediate effectiveness. An order upholding immediate effectiveness will constitute the final agency action on immediate effectiveness. The presiding officer will promptly refer an order setting aside immediate effectiveness to the Commission and such order setting aside immediate effectiveness will not be effective pending further order of the Commission.
Atomic Energy Act of 1954, secs. 11, 53, 81, 83, 84, 122, 161, 181, 223, 234, 274 (42 U.S.C. 2014, 2201, 2231, 2273, 2282, 2021); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); Nuclear Waste Policy Act of 1982, secs. 135, 141 (42 U.S.C. 10155, 10161); 44 U.S.C. 3504 note.
* * * This part also gives notice to all persons who knowingly provide to any licensee, applicant for a license or certificate or quality assurance program approval, holder of a certificate or quality assurance program approval, contractor, or subcontractor, any components, equipment, materials, or
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. This AD was prompted by reports of un-annunciated failures of the direct current (DC) starter generator, which caused caution indicators of the affected systems to illuminate and prompted emergency descents and landings. This AD requires replacing the DC generator control units (GCUs) with new GCUs and replacing the GCU label. We are issuing this AD to prevent a low voltage condition on the left main DC bus, which, during critical phases of flight, could result in the loss of flight management, navigation, and transponder systems, and could affect continued safe flight.
This AD becomes effective November 24, 2015.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 24, 2015.
You may examine the AD docket on the Internet at
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
Assata Dessaline, Aerospace Engineer, Avionics and Services Branch, ANE-172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7301; fax 516-794-5531.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. The NPRM published in the
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2014-31R2, dated November 11, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. The MCAI states:
Four occurrences of un-annunciated failure of the No. 1 Direct Current (DC) Starter Generator prompted emergency descents and landings resulting from the illumination of numerous caution indications of the affected systems. The functionality of the affected systems such as Flight Management System, Navigation, and transponder systems, were reportedly reduced or lost. Investigation determined the failure was a result of a low voltage condition of the Left Main DC Bus. During critical phases of flight, the loss of these systems could affect continued safe flight.
The original issue of this [Canadian] AD mandated the modification [replacing certain DC GCUs with new GCUs and replacing labels] which introduces generator control unit (GCU) undervoltage protection.
Revision 1 of this [Canadian] AD added a GCU part number to the applicability of Part III of this [Canadian] AD, in order to ensure that all units are fitted with a warning label.
Revision 2 of this [Canadian] AD corrects the GCU part number in the applicability of Part III of this [Canadian] AD.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 36493, June 25, 2015) 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 (80 FR 36493, June 25, 2015) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 36493, June 25, 2015).
Bombardier has issued the following service information.
• Service Bulletin 8-24-84, Revision D, dated April 10, 2014, describes incorporating Bombardier Modification Summary (ModSum) 8Q101710 by replacing the GCU with a new GCU, and replacing the GCU label for airplanes having certain Phoenix DC power GCU part numbers.
• Service Bulletin 8-24-89, Revision C, dated November 4, 2014, describes incorporating Bombardier ModSum 8Q101925 by replacing the GCU with a new GCU, and replacing the GCU label for airplanes having certain Goodrich DC power GCU part numbers.
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 estimate that this AD affects 92 airplanes of U.S. registry.
We also estimate that it takes about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.
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 24, 2015.
None.
This AD applies to Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes, certificated in any category, serial numbers 003 through 672 inclusive.
Air Transport Association (ATA) of America Code 24, Electrical Power.
This AD was prompted by reports of un-annunciated failures of the direct current (DC) starter generator, which caused caution indicators of the affected systems to illuminate and prompted emergency descents and landings. We are issuing this AD to prevent a low voltage condition on the left main DC bus which, during critical phases of flight, could result in the loss of flight management, navigation, and transponder systems, and could affect continued safe flight.
Comply with this AD within the compliance times specified, unless already done.
Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first, accomplish the actions specified in paragraphs (g)(1) and (g)(2) of this AD, as applicable.
(1) For airplanes having Goodrich DC GCU part number 51539-008B, 51539-008C, or 51539-008D installed: Incorporate Bombardier Modification Summary (ModSum) 8Q101925 by replacing the GCU with a new GCU, and replacing the GCU label, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 8-24-89, Revision C, dated November 4, 2014.
(2) For airplanes having Phoenix DC GCU part number GC-1010-24-5DIII or GC-1010-24-5DII installed: Incorporate Bombardier ModSum 8Q101710 by replacing the GCU with a new GCU, and replacing the GCU label, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 8-24-84, Revision D, dated April 10, 2014.
For airplanes having Phoenix DC GCU part number GC-1010-24-5DIV or GC-1010-24-5DV installed: Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first, replace the DC GCU label with a new GCU label, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 8-24-84, Revision D, dated April 10, 2014.
(1) This paragraph provides credit for the actions required by paragraph (g)(1) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (i)(1)(i) through (i)(1)(iii) of this AD, as applicable. This service information is not incorporated by reference in this AD.
(i) Bombardier Service Bulletin 8-24-89, dated November 12, 2011.
(ii) Bombardier Service Bulletin 8-24-89, Revision A, dated August 8, 2012.
(iii) Bombardier Service Bulletin 8-24-89, Revision B, dated April 9, 2014.
(2) This paragraph provides credit for actions required by paragraphs (g)(2) and (h) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (i)(2)(i) through (i)(2)(iv) of this AD, as applicable. This service information is not incorporated by reference in this AD.
(i) Bombardier Service Bulletin 8-24-84, dated August 22, 2008.
(ii) Bombardier Service Bulletin 8-24-84, Revision A, dated August 23, 2008.
(iii) Bombardier Service Bulletin 8-24-84, Revision B, dated October 15, 2008.
(iv) Bombardier Service Bulletin 8-24-84, Revision C, dated July 7, 2009.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2014-31R2, dated November 14, 2014, for related information. This MCAI may be found in the AD docket on the Internet at
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (l)(3) and (l)(4) of this AD.
(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) Bombardier Service Bulletin 8-24-84, Revision D, dated April 10, 2014.
(ii) Bombardier Service Bulletin 8-24-89, Revision C, dated November 4, 2014.
(3) 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
(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.
We are superseding Airworthiness Directive (AD) 98-26-02 for certain Sikorsky Aircraft Corporation (Sikorsky) Model S-61A, D, E, L, N, NM, R, and V helicopters. AD 98-26-02 required determining whether the main rotor shaft (MRS) was used in repetitive external lift (REL) operations, performing a nondestructive inspection (NDI) for cracks, replacing any unairworthy MRS, and establishing retirement lives for each REL MRS. This new AD retains some of the requirements of AD 98-26-02 but determines a new retirement life for each MRS, expands the applicability to include additional helicopters, and requires removing from service any MRS with oversized dowel pin bores. This AD was prompted by the manufacturer's reevaluation of the retirement life for the MRS based on torque, ground-air-ground (GAG) cycle, and fatigue testing. We are issuing this AD to prevent MRS structural failure, loss of power to the main rotor, and subsequent loss of control of the helicopter.
This AD is effective November 24, 2015.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 24, 2015.
For service information identified in this AD, contact Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, mailstop s581a, 6900 Main Street, Stratford, Connecticut, telephone (203) 383-4866, email
You may examine the AD docket on the Internet at
Tracy Murphy, Aviation Safety Engineer, Boston Aircraft Certification Office, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, Massachusetts 01803; telephone (781) 238-7172; email
On April 10, 2008, we issued a notice of proposed rulemaking (NPRM) (73 FR 21556, April 22, 2008) proposing to amend 14 CFR part 39 by adding an AD for Sikorsky Aircraft Corporation Model S-61A, D, E, L, N, NM, R, and V; Croman Corporation Model SH-3H; Carson Helicopters, Inc., Model S-61L; Glacier Helicopters, Inc., Model CH-3E; Robinson Air Crane, Inc., Model CH-3E, CH-3C, HH-3C and HH-3E; and Siller Helicopters Model CH-3E and SH-3A helicopters. The NPRM proposed superseding AD 98-26-02 (63 FR 69177, December 16, 1998), which required determining whether the MRS was used in REL operations, performing an NDI for cracks, replacing any unairworthy MRS, and establishing retirement lives for each REL MRS. The NPRM proposed to retain some of the requirements of AD 98-26-02 but also proposed a new retirement life determination for each MRS, removing from service any MRS with oversized dowel pin bores, and expanding the applicability to include certain restricted category models. The NPRM was prompted by the manufacturer's reevaluation of the retirement life for the MRS based on torque, GAG cycle, and fatigue testing.
On April 16, 2013, we issued a supplemental NPRM (SNPRM) (78 FR 24363, April 25, 2013) that proposed to revise the NPRM based on comments received on the NPRM and a reevaluation of the relevant data. The SNPRM proposed retaining the proposals in the NPRM but extending the hours TIS required for identifying the MRS as an REL MRS to coincide with the NDI to prevent repeated disassembly of the shaft. The SNPRM also proposed to extend the time required to replace the MRS and revise calculations for establishing the retirement life.
On September 19, 2014, we issued a second SNPRM (79 FR 60789, October 8, 2014). In addition to retaining previously-proposed requirements, the second SNPRM revised the Cost of Compliance section to reflect an increased cost for parts to replace an MRS and clarified some of the wording for complying with the AD.
Since the SNPRM (79 FR 60789, October 8, 2014) was issued, the FAA Southwest Regional Office has relocated. We have revised the physical address to reflect the new address.
We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the second SNPRM (79 FR 60789, October 8, 2014).
We have reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed except for a minor change. Sikorsky Aircraft was inadvertently omitted as one of the current type certificate holders of some of the applicable model helicopters; we are correcting that error in this AD. This change is consistent with the intent of the proposals in the SNPRM (79 FR 60789, October 8, 2014) and will not increase the economic burden on any operator nor increase the scope of the AD.
Sikorsky issued Alert Service Bulletin No. 61B35-69, dated April 19, 2004, which provides procedures for determining REL and Non-REL status, assigns new REL and Non-REL MRS retirement lives, and provides a method for marking the REL MRS. 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
Sikorsky issued Customer Service Notice (CSN) No. 6135-10, dated March 18, 1987, and Service Bulletin (SB) No. 61B35-53, dated December 2, 1981, both revised with Revision A on April 19, 2004, for Model S-61L, N, and NM (serial number (S/N) 61454), and R series transport category helicopters; and S-61A, D, E, and V series restricted category helicopters. CSN 6135-10A specifies replacing the planetary assembly and MRS assembly attaching hardware with high strength hardware. CSN 6135-10A also specifies reworking the dowel retainer to increase hole chamfer and related countersink diameters. SB 61B35-53A specifies replacing the existing planetary matching plates with new steel matching plates during overhaul at the operator's discretion.
Sikorsky Aircraft Corporation also issued an All Operators Letter CCS-61-AOL-04-0005, dated May 18, 2004, which contains an example and additional information about tracking cycles and the moving average procedure.
We estimate that this AD affects 60 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. It will take about 2.2 work-hours to NDI an REL MRS at $85 per work-hour plus a $50 consumable cost, for a total estimated cost of $237 per helicopter and $14,220 for the U.S. fleet. It will take about 2.2 work-hours to replace an MRS at $85 per work-hour plus parts cost of $81,216, for a total estimated cost of $81,403 per helicopter.
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 have 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 DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that a regulatory distinction is required, 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 applies to Model S-61A, D, E, L, N, NM (serial number (S/N) 61454), R, V, CH-3C, CH-3E, HH-3C, HH-3E, SH-3A, and SH-3H helicopters with main rotor shaft (MRS), part number S6135-20640-001, S6135-20640-002, or S6137-23040-001, installed, certificated in any category.
This AD defines the unsafe condition as MRS structural failure, loss of power to the main rotor, and subsequent loss of control of the helicopter.
This AD supersedes AD 98-26-02, Amendment 39-10943 (63 FR 69177, December 16, 1998).
This AD becomes effective November 24, 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.
(1) Within 10 hours time-in-service (TIS):
(i) Create a component history card or equivalent record for each MRS.
(ii) If there is no record of the hours TIS on an individual MRS, substitute the helicopter's hours TIS or the helicopter's transmission hours TIS if both the shaft and transmission were installed new at the same time.
(iii) If the record of external lift cycles (lift cycles) on an individual MRS is incomplete, add the known number of lift cycles to a number calculated by multiplying the number of hours TIS of the individual MRS by the average lift cycles calculated according to the instructions in Section I of Appendix 1 of this AD or by a factor of 13.6, whichever is higher. An external lift cycle is defined as a flight cycle in which an external load is picked up, the helicopter is repositioned (through flight or hover), and the helicopter hovers and releases the load and departs or lands and departs.
(iv) At the end of each day's operations, record the number of lift cycles performed and the hours TIS.
(2) Within 250 hours TIS, determine whether the MRS is a repetitive external lift (REL) or Non-REL MRS.
(i) Calculate the first moving average of lift cycles by following the instructions in Section I of Appendix 1 of this AD.
(A) If the calculation results in 6 or more lift cycles per hour TIS, the MRS is an REL-MRS.
(B) If the calculation results in less than 6 lift cycles per hour TIS, the MRS is a Non-REL MRS.
(ii) If the MRS is a Non-REL MRS based on the calculation performed in accordance with paragraph (f)(2)(i) of this AD, thereafter at intervals of 50 hour TIS, recalculate the average lift cycles per hour TIS by following the instructions in Section II of Appendix 1 of this AD.
(iii) Once an MRS is determined to be an REL MRS, you no longer need to perform the 250-hour TIS moving average calculation, but you must continue to count and record the lift cycles and number of hours TIS.
(iv) If an MRS is determined to be an REL MRS, it remains an REL MRS for the rest of its service life and is subject to the retirement times for an REL MRS.
(3) Within 1,100 hours TIS:
(i) Conduct a Non-Destructive Inspection for a crack on each MRS. If there is a crack in an MRS, before further flight, replace it with an airworthy MRS.
(ii) If an MRS is determined to be an REL MRS, identify it as an REL MRS by etching “REL” on the outside diameter of the MRS near the part S/N by following the Accomplishment Instructions, paragraph 3.C., of Sikorsky Alert Service Bulletin No. 61B35-69, dated April 19, 2004.
(4) Replace each MRS with an airworthy MRS on or before reaching the revised retirement life as follows:
(i) For an REL MRS that is not modified by following Sikorsky Customer Service Notice (CSN) No. 6135-10, dated March 18, 1987, and Sikorsky Service Bulletin (SB) No. 61B35-53, dated December 2, 1981 (unmodified REL MRS), the retirement life is 30,000 lift cycles or 1,500 hours TIS, whichever occurs first.
(ii) For an REL MRS that is modified by following Sikorsky CSN No. 6135-10, dated March 18, 1987, and Sikorsky SB No. 61B35-53 dated December 2, 1981; or Sikorsky CSN No. 6135-10A and Sikorsky SB No. 61B35-53A, both Revision A, and both dated April 19, 2004 (modified REL MRS), the retirement life is 30,000 lift cycles or 5,000 hours TIS, whichever occurs first.
(iii) For a Non-REL MRS, the retirement life is 13,000 hours TIS.
(5) Establish or revise the retirement lives of the MRS as indicated in paragraphs (f)(4)(i) through (f)(4)(iii) of this AD by recording the new or revised retirement life on the MRS component history card or equivalent record.
(6) Within 50 hours TIS, remove from service any MRS with oversized (0.8860” or greater diameter) dowel pin bores.
(1) The Manager, Boston Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Tracy Murphy, Aviation Safety Engineer, Boston Aircraft Certification Office, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, Massachusetts 01803; telephone (781) 238-7172; 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.
Sikorsky Aircraft Corporation All Operators Letter CCS-61-AOL-04-0005, dated May 18, 2004; Sikorsky Customer Service Notice (CSN) No. 6135-10, dated March 18, 1987; Sikorsky CSN No. 6135-10A, Revision A, dated April 19, 2004; Sikorsky Service Bulletin (SB) No. 61B35-53, dated December 2, 1981; and Sikorsky SB No. 61B35-53A, Revision A, dated April 19, 2004, which are not incorporated by reference, contain additional information about the subject of this AD. For more information about these documents, contact Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, mailstop s581a, 6900 Main Street, Stratford, Connecticut, telephone (203) 383-4866, email
Joint Aircraft Service Component (JASC) Code: 6320, Main Rotor Gearbox.
(1) The Director of the Federal Register approved the incorporation by reference 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.
(i) Sikorsky Alert Service Bulletin No. 61B35-69, dated April 19, 2004.
(ii) Reserved.
(3) For Sikorsky service information identified in this AD, contact Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, mailstop s581a, 6900 Main Street, Stratford, Connecticut, telephone (203) 383-4866, email
(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.
(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:
The first moving average calculation is performed on the main rotor shaft (MRS) assembly when the external lift component history card record reflects that the MRS assembly has reached its first 250 hours TIS. To perform the calculation, divide the total number of lift cycles performed during the first 250 hours TIS by 250. The result will be the first moving average calculation of lift cycles per hour TIS.
Subsequent moving average calculations are performed on the MRS assembly at intervals of 50 hour TIS after the first moving average calculation. Subtract the total number of lift cycles performed during the first 50-hour TIS interval used in the previous moving average calculation from the total number of lift cycles performed on the MRS assembly during the previous 300 hours TIS. Divide this result by 250. The result will be the next or subsequent moving average calculation of lift cycles per hour TIS.
Assume the total number of lift cycles for the first 50 hour TIS interval used in the previous moving average calculation = 450 lift cycles and the total number of lift cycles for the previous 300 hours TIS = 2700 lift cycles. The subsequent moving average of lift cycles per hour TIS = (2700 − 450) divided by 250 = 9 lift cycles per hour TIS.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Wakeeney, KS. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAPs) at Trego Wakeeney Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations at the airport. The airport name also is correctly noted in the airspace description.
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 Trego Wakeeney Airport, Wakeeney, KS.
On June 25, 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 Trego Wakeeney Airport, Wakeeney, KS, to accommodate new Standard Instrument Approach Procedures for IFR operations at the airport. The correct airport name is noted in the airspace description, changing it from Sheridan Municipal 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 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 1050.1F, “Environmental Impacts: Policies and Procedures” paragraph 311a. This airspace action is
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 amends Class D and Class E airspace and removes Class E airspace in the Columbus, OH, area. Decommissioning of the non-directional radio beacon (NDB) and/or cancellation of NDB approaches at Ohio State University Airport, Columbus, OH, has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the airport. Also, the geographic coordinates of the airport, as well as the Port Columbus International Airport, are updated.
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 D and Class E airspace and removes Class E airspace in the Columbus, OH, area.
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 modifies Class D and E airspace in the Columbus, OH, area. Decommissioning of the Dan Scott NDB navigation aid and cancellation of the NDB approach at Ohio State University Airport has made this action necessary. Class E airspace designated as an extension to Class D is removed as it is no longer required. Class E airspace extending upward from 700 feet above the surface at Port Columbus International Airport is reconfigured due to the Dan Scott NDB decommissioning. The geographic coordinates of Ohio State University Airport and Port Columbus International Airport are updated to coincide with the FAAs aeronautical database.
Class D and E airspace designations are published in Paragraphs 5000, 6004, and 6005, respectively, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR
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.
Office of the Director of National Intelligence.
Final rule.
The Office of the Director of National Intelligence (ODNI) is issuing a final rule exempting two (2) new systems of records from subsections (c)(3); (d)(1),(2),(3),(4); (e)(1) and (e)(4)(G),(H),(I); and (f) of the Privacy Act, and invoking subsection (k)(2) as an additional basis for exempting records from these provisions of the Act with respect to one (1) existing system of records. The ODNI published a notice and a proposed rule implementing these exemptions on May 27, 2015. The enumerated exemptions will be invoked on a case by case basis, as necessary to preclude interference with investigatory, intelligence and counterterrorism functions and responsibilities of the ODNI. The ODNI received no comments regarding the proposed rule.
This final rule is effective October 20, 2015.
Jennifer L. Hudson, Director, Information Management Division, 703-874-8085.
On May 27, 2015, the Office of the Director of National Intelligence (ODNI) published notice of two new Privacy Act systems of records: Counterintelligence Trends Analyses Records (ODNI/NCSC-002) and Insider Threat Program Records (ODNI-22). These systems of records contain records that range from Unclassified to Top Secret. Accordingly, in conjunction with publication of these systems notices, and pursuant to exemption authority afforded the head of the agency by the Privacy Act, the ODNI initiated a rulemaking to exempt the systems in relevant part from provisions identified at subsection (k) of the Act (enumerated above). The proposed rulemaking also sought to amend the system of records entitled Information Technology Systems Activity and Access Records (ODNI-19), originally published at 76 FR 42742 (July 19, 2011), by adding subsection (k)(2) of the Privacy Act as a basis for exempting records covered by that system from the provisions noted. The affected systems notices and proposed exemption rule
This final rule differs from the proposed rule in that it deletes from 32 CFR 1701.24 a list of ODNI Systems of Records Notices (SORNs). The proposed rule would have added the newly published SORNs to this listing. In lieu of revising the ODNI Privacy Act Regulation as SORNs are published or rescinded, ODNI will periodically publish a consolidated list of new, updated or deleted SORNs.
None.
Absent comment or objection from any member of the public, the ODNI has determined to issue the proposed exemption rule in final form and to implement the new and amended systems of records as described. The exemptions proposed are necessary and appropriate to protect intelligence equities undergirding ODNI's mission and functions and, narrowly applied, they do so consistent with privacy principles. By restrictively construing the exemptions to apply only to records that satisfy thresholds articulated in subsection (k), ODNI achieves the goal of balancing intelligence-related equities with fair information principles and values.
This rule affects only the manner in which ODNI collects and maintains information about individuals. ODNI certifies that this rulemaking does not impact small entities and that analysis under the Regulatory Flexibility Act, 5 U.S.C. 601-612, is not required.
The Small Business Regulatory enforcement Fairness Act (SBREFA) of 1996 requires the ODNI to comply with small entity requests for information and advice about compliance with statutes and regulations within the ODNI jurisdiction. Any small entity that has a question regarding this document may address it to the information contact listed above. Further information regarding SBREFA is available on the Small Business Administration's Web page at
The Paperwork Reduction Act of 1995 944 U.S.C. 3507(d) requires that the ODNI consider the impact of paperwork and other burdens imposed on the public associated with the collection of information. There are no information collection requirements associated with this rule and therefore no analysis of burden is required.
This rule is not a “significant regulatory action,” within the meaning of Executive Order 12866. This rule will not adversely affect the economy or a sector of the economy in a material way; will not create inconsistency with or interfere with other agency action; will not materially alter the budgetary impact of entitlements, grants, fees or loans or the right and obligations of recipients thereof; or raise legal or policy issues arising out of legal mandates, the President's priorities or the principles set forth in the Executive Order. Accordingly, further regulatory evaluation is not required.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, 109 Stat. 48 (Mar. 22, 1995), requires Federal agencies to assess the effects of certain regulatory actions on State, local and tribal governments, and the private sector. This rule imposes no Federal mandate on any State, local or tribal government or on the private sector. Accordingly, no UMRA analysis of economic and regulatory alternatives is required.
Executive Order 13132 requires agencies to examine the implications for the distribution of power and responsibilities among the various levels of government resulting from their rules. ODNI concludes that this rule does not affect the rights, roles and responsibilities of the States, involves no preemption of State law and does not limit state policymaking discretion. This rule has no federalism implications as defined by the Executive Order.
This rulemaking will not have a significant effect on the human environment under the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347.
This rulemaking is not a major regulatory action under the provisions of the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163) as amended, 42 U.S.C. 6362.
Administrative practice and procedure, Privacy.
For the reasons set forth above, ODNI amends 32 CFR part 1701 as follows:
50 U.S.C. 401-442; 5 U.S.C. 552a.
(a) The ODNI may invoke its authority to exempt systems of records from the requirements of subsections (c)(3); (d)(1), (2), (3) and (4); (e)(1); (e)(4)(G), (H), (I); and (f) of the Privacy Act to the extent that records covered by the systems are subject to exemption pursuant subsection (k) of the Act.
Coast Guard, DHS.
Notice of temporary deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Arthur Kill (AK) Railroad Bridge across Arthur Kill, mile 11.6, between Staten Island, New York and Elizabeth, New Jersey. Under this temporary deviation the bridge may remain in the closed position to facilitate scheduled maintenance. This deviation is necessary to facilitate tie and miter rail replacement on the lift span.
This deviation is effective from 6 a.m. on October 23, 2015 to 2:48 p.m. on December 13, 2015.
The docket for this deviation, [USCG-2015-0925] is
If you have questions on this temporary deviation, call or email Mr. Joe Arca, Project Officer, First Coast Guard District, telephone (212) 514-4336, email
The AK Railroad Bridge, across Arthur Kill, mile 11.6, between Staten Island, New York and Elizabeth, New Jersey has a vertical clearance in the closed position of 31 feet at MHW and 35 feet at MLW. The existing drawbridge operation regulations are listed at 33 CFR 117.702.
The waterway supports both commercial and recreational navigation of various vessel sizes. The operator of the bridge, Conrail, requested a temporary deviation to facilitate scheduled maintenance, tie and miter rail replacement at the bridge. The bridge must remain in the closed position to perform this maintenance.
Under this temporary deviation the draw may remain in the closed position as follows:
On October 23, 2015 from 6 a.m. to 10:26 a.m. and from 12:26 p.m. to 4:11 p.m.
On October 24, 2015 from 7:00 a.m. to 11:22 a.m. and from 1:32 p.m. to 5:13 p.m.
On October 25, 2015 from 7:46 a.m. to 12:17 p.m. and from 2:17 p.m. to 6:09 p.m.
On October 30, 2015 from 5:51 a.m. to 9:58 a.m. and from 11:58 a.m. to 4:36 p.m.
On October 31, 2015 from 6:41 a.m. to 10:56 a.m. and from 12:56 p.m. to 5:28 p.m.
On November 1, 2015 from 6:30 a.m. to 10:54 a.m. and from 12:54 p.m. to 5:25 p.m.
On November 6, 2015, 5:17 a.m. to 9:28 a.m. and from 11:28 a.m. to 3:32 p.m.
On November 7, 2015, from 6:07 a.m. to 10:15 a.m. and from 12:15 p.m. to 4:21 p.m.
On November 8, 2015 from 6:51 a.m. to 11:00 a.m. and from 1:00 p.m. to 5:06 p.m.
On November 13, 2015, from 3:49 a.m. to 7:40 a.m., from 9:40 a.m. to 2:28 p.m., and from 4:28 p.m. to 8:04 p.m.
On November 14, 2015, from 4:24 a.m. to 8:11 a.m. and from 10:11 a.m. to 3:07 p.m.
On November 15, 2015, from 4:59 a.m. to 8:50 a.m. and from 10:50 a.m. to 3:48 p.m.
On November 20, 2015 from 3:24 a.m. to 8:07 a.m., from 10:07 a.m. to 1:42 p.m., and from 3:42 p.m. to 8:36 p.m.
On November 21, 2015 from 4:27 a.m. to 9:09 a.m. and from 11:09 a.m. to 2:49 p.m.
On November 22, 2015 from 5:29 a.m. to 10:06 a.m. and from 12:06 p.m. to 3:53 p.m.
On December 4, 2015 from 3:07 a.m. to 7:23 a.m., from 9:23 a.m. to 1:14 p.m., and from 3:14 p.m. to 7:54 p.m.
On December 5, 2015 from 3:54 a.m. to 8:20 a.m. and from 10:20 a.m. to 2:06 p.m.
On December 6, 2015 from 4:48 a.m. to 9:10 a.m. and from 11:10 a.m. to 3:00 p.m.
On December 11, 2015 from 2:45 a.m. to 6:44 a.m., from 8:44 a.m. to 1:26 p.m., and from 3:26 p.m. to 7:08 p.m.
On December 12, 2015 from 3:26 a.m. to 7:17 a.m. and from 9:17 a.m. to 2:07 p.m.
On December 13, 2015 from 4:06 a.m. to 7:54 a.m. and from 9:54 a.m. to 2:48 p.m.
Vessels able to pass through the bridge in the closed positions may do so at anytime.
The Coast Guard will also inform the users of the waterway through our Local Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a redesignation substitute demonstration provided by the State of Texas that the Houston-Galveston-Brazoria 1-hour ozone nonattainment area (HGB area) has attained the revoked 1-hour ozone National Ambient Air Quality Standards (NAAQS) due to permanent and enforceable emission reductions, and that it will maintain that NAAQS for ten years from the date of the EPA's approval of this demonstration.
This final rule is effective on November 19, 2015.
The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2014-0259. All documents in the docket are listed on the
Tracie Donaldson, (214) 665-6633,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
The background for today's action is discussed in detail in our August 18, 2015 proposal (80 FR 49970). In that notice, we proposed to approve the “Redesignation Substitute Report for the Houston-Galveston-Brazoria One-Hour Standard Nonattainment Area” (redesignation substitute report) submitted by TCEQ to EPA on July 22, 2014, that demonstrated attainment with the revoked 1-hour ozone standard. We did not receive any comments regarding our proposal.
Based on the Clean Air Act's criteria for redesignation to attainment (CAA section 107(d)(3)(E)) and the regulation for a redesignation substitute (40 CFR 51.1105(b)), EPA is finding that Texas has successfully demonstrated it has met the requirements for a redesignation substitute. In this final action we are
With this final action, Texas is no longer required to adopt any additional applicable 1-hour ozone NAAQS requirements for the area which have not already been approved into the SIP. Generally, final action would also allow the state to remove or revise the 1-hour ozone NAAQS nonattainment NSR provisions in the SIP and, upon a showing of consistency with the anti-backsliding checks in CAA sections 110(1) and 193 (if applicable), shift 1-hour ozone NAAQS requirements which are contained in the active portion of the SIP to the contingency measures portion of the SIP. We note that because the HGB area was classified as severe nonattainment for the 1997 ozone NAAQS the severe classification NSR requirement would still apply (October 1, 2008, 73 FR 56983).
Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves a demonstration provided by the State of Texas and finds that the HGB area is no longer subject to the anti-backsliding obligations for additional measures for the revoked 1-hour ozone NAAQS; and imposes no additional requirements. Accordingly, I certify 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
The rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The rulemaking does not affect the level of protection provided to human health or the environment because approving the demonstration provided by Texas and finding that the HGB area is no longer subject to the anti-backsliding obligations for additional measures for the revoked 1-hour ozone NAAQS does not alter the emission reduction measures that are required to be implemented in the HGB area, which was classified as Severe nonattainment for the 1997 8-hour ozone standard.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Ozone.
42 U.S.C. 7401
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(j)
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving revisions to the Albuquerque/Bernalillo County, New Mexico State Implementation Plan (SIP). These revisions add administrative updates and clarifying changes to the state board and conflict of interest provisions in Albuquerque/Bernalillo County. The EPA is approving these revisions pursuant to section 110 of the Clean Air Act (CAA).
This rule is effective on December 21, 2015 without further notice unless EPA receives relevant adverse comments by November 19, 2015. If EPA receives such comments, EPA will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-R06-OAR-2013-0614, by one of the following methods:
•
• Email: Mr. John Walser at
• Mail or Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
Mr. John Walser (6PD-L), (214) 665-7128,
Throughout this document, “we,” “us,” and “our” means EPA.
Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that air quality meets the National Ambient Air Quality Standards (NAAQS) established by EPA. The NAAQS are established under section 109 of the CAA and currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. A SIP is a set of air pollution regulations, control strategies, other means or techniques, and technical analyses developed by the state, to ensure that air quality in the state meets the NAAQS. It is required by section 110 and other provisions of the CAA. A SIP protects air quality primarily by addressing air pollution at its point of origin. SIPs can be extensive, containing state regulations or other enforceable documents, and supporting information such as city and county ordinances, monitoring networks, and modeling demonstrations. Each state must submit any SIP revision to EPA for approval and incorporation into the federally-enforceable SIP.
The New Mexico SIP includes a variety of control strategies, including the regulations that outline general provisions applicable to Albuquerque/Bernalillo County Air Quality Control Board (AQCB) regulations and state boards/conflict of interest requirements.
The Act, section 128(a) entitled State Boards, requires each SIP to contain provisions which ensure that: (1) Any board or body which approves permits or enforcement orders under the Act shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under the Act, and (2) any potential conflicts of interest by members of such board or body, or the head of an executive agency with similar powers, be adequately disclosed.
A state may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies, or any other entities which are more stringent than the requirements of
The New Mexico Air Quality Control Act (section 74-2-4) authorizes Albuquerque/Bernalillo County to locally administer and enforce the State Air Quality Control Act by providing for a local air quality control program. Thus, State law views Albuquerque/Bernalillo County and the remainder of the State of New Mexico as distinct air quality control entities. Therefore, each entity is required to submit its own SIP revision in order to completely satisfy the requirements of section 128(a) of the Clean Air Act for the entire State of New Mexico.
The EPA approved the SIP revision for Board composition and conflict of interest disclosure requirements on June 1, 1999 (see 64 FR 29235). Since that time the supporting city and county ordinances have been revised.
The revisions we are approving address City of Albuquerque and Bernalillo County, Code of Ordinances governing Air Quality Control Board (AQCB) composition and conflict of interest provisions required to meet the requirements of section 128(a) of the CAA. These revisions are mostly administrative in nature and/or add clarifying language to the City of Albuquerque and Bernalillo County Ordinances already contained in the SIP. These ordinances and revisions do not apply to Indian lands over which the AQCB lacks jurisdiction. We have prepared a Technical Support Document (TSD) for this action which details our evaluation. Our TSD may be accessed in the docket for this action, at
We are also approving a ministerial change to the Code of Federal Regulations (CFR) at 40 CFR 52.1620(e). The entry titled “City of Albuquerque request for redesignation” was mistakenly placed in the first table of 40 CFR 52.1620(e) under the heading “EPA Approved city of Albuquerque and Bernalillo County Ordinances for State Board Composition and Conflict of Interest Provisions” and belongs in the second table of 40 CFR 52.1620(e) under the heading “EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP.”
On June 13, 2013, New Mexico submitted revisions to the Albuquerque/Bernalillo County SIP. The submittal was adopted consistent with the public notice SIP requirements of CAA section 110(l). The revisions modified various chapters to the City of Albuquerque and Bernalillo County ordinances for the Air Quality Control Board and the Metropolitan Environmental Health Advisory Board. The revisions include all the adopted changes to the ordinances since the last EPA SIP approval in June of 1999. Changes to the ordinances include adding clarifying text regarding conflict of interest, renumbering to account for changes to subsections and other ministerial changes that reflect the correct citations to currently effective versions of the ordinances in use today. Other minor amendments are added or deleted for further clarification. Please see Table 1 below for the list of ordinances, and the TSD for further details:
The Governor's letter dated June 26, 2013 accompanying the submittal indicated that only those portions or sections of the ordinances dealing with state boards or conflict of interest are being submitted for EPA review and action. Therefore, the following revisions, as shown in Table 1 above, are not being considered before EPA for review as they do not address board composition or conflict of interest provisions. The ordinances not being proposed include Exhibit 7c—Article 6: Public Boards, Commissions and Committees and Exhibit 11c—City Code of Conduct, City of Albuquerque, as these ordinances involve personnel rules and regulations, conditions of employment, the conduct and organizational structure of a board, commission or committee and do not specifically address board composition and conflict of interest pursuant to CAA section 128.
Additionally, since the Metropolitan Environmental Health Advisory Board (MEHAB) has effectively ceased to function for over 25 years, as confirmed with the City of Albuquerque,
The remaining Exhibits 5c (only Section 9-5-1-3), 6c (only section 30-32), 8c, 9c, and 10c all involve state
Our evaluation of the submittal finds that the submitted SIP revisions were adopted by Albuquerque/Bernalillo County after reasonable notice, a public comment period, a corresponding public hearing, and that approval of the revisions would not interfere with any CAA requirement, are consistent with the requirements of section 128 of the CAA (see background section of this notice), and are approvable, as discussed below.
Our primary consideration for determining the approvability of the New Mexico submittal is whether these proposed revisions comply with CAA section 110(l) and 128 of the CAA. Section 110(l) of the Act provides that a SIP revision must be adopted by a State after reasonable notice and public hearing. The submitted revisions address the City of Albuquerque and Bernalillo County, Code of Ordinances governing Air Quality Control Board (AQCB) composition and conflict of interest provisions that address the requirements of Section 128 of the CAA. Please see the TSD for our detailed evaluation.
The submitted revisions update the currently the SIP approved versions, and includes revisions that are ministerial in nature and mostly involve renumbering and additions/deletions that add further clarity.
The AQCB is submitting revisions to update the SIP to incorporate the latest City of Albuquerque and Bernalillo County Ordinances and policies regarding board composition and conflict of interest as it applies to the Air Board. The previous SIP-approval dates back to 1999. The proposed revisions incorporate into the SIP with the most current versions of affected ordinances and policies concerning state board composition and conflict of interest.
For Exhibit 5c, the ordinance that deals with the Joint Air Quality Control Board, the revisions in section 9-5-1-3 highlight the requirements for state boards and conflict of interest provisions consistent with federal requirements found in CAA section 128(a)(1). Section 9-5-1-3(B)(4)(a) of Exhibit 5c states that “at least a majority of the membership of the Board shall be individuals who represent the public interest and meet the requirements of the state and federal guidelines set forth in the New Mexico Air Quality Control Act, as amended, and the federal CAA, 42 U.S.C.A. Section 7401,
Therefore, EPA finds that these revisions are consistent with federal requirements, and also are consistent with what is currently in the New Mexico SIP for Albuquerque/Bernalillo County (see 40 CFR 52.1620, paragraph (e)—EPA Approved Nonregulatory Provisions).
For Exhibit 6c, only Section 30-32 of the Exhibit—Joint Air Quality Control Board, is part of the State Boards submittal. The revisions in Exhibit 6c, specifically section 30-32—Joint Air Quality Control Board, establish the creation and authority of the Board, also include the provisions regarding conflict of interest (as discussed above for Exhibit 5c), and are consistent with federal requirements and what is currently in the New Mexico SIP for Albuquerque/Bernalillo County.
For Exhibit 8c, Article 3: Conflict of Interest Ordinance, the revisions to the SIP include renumbering and clarification of the purpose of definitions, meaning that for the purpose of the ordinance, the definitions contained in the ordinance shall apply unless the context clearly indicates or requires a different meaning. The Conflict of Interest Ordinance is already contained in the SIP, therefore, these revisions add clarity and are approvable by EPA. For example, the Conflict of Interest Ordinance (Exhibit 8c) outlines conflict of interest provisions for employees and former employees, and includes details on the prohibition on nepotism and restrictions on outside employment. The 1985 version of this ordinance is currently SIP-approved (see 64 FR 29235).
For Exhibit 9c, Charter of the City of Albuquerque, Article XII: Code of Ethics, Section 4—Conflict of Interest, the ordinance clearly outlines conflict of interest provisions for officials, and includes details on the prohibition on gifts and private financial interest. The previous version of this ordinance (Article XII: Code of Ethics, adopted in 1989) is currently SIP-approved. Therefore, only redlines and strikeouts to Section 4 of that ordinance are submitted as revisions (please see the TSD for this action). The addition of Section 4(b) to the ordinance outlines the prohibition on a member of the City Council from participating in any debate or vote on any matter which will likely result in any benefit to the member which benefit is greater that the benefit to the public in general. The other key revision adds specific criteria for disqualifications as presented in Section 4(c). Both the addition of subsections 4(b) and 4(c) enhance the ordinance by adding further clarity and stringency to the conflict of interest requirements. Section 128 of the CAA states that a State may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies, which are more stringent, and the Administrator shall approve any such requirement as submitted. Other revisions are ministerial in nature and mostly involve renumbering and additions/deletions that add clarity (please see the TSD for details).
For Exhibit 10c, Bernalillo County, New Mexico, Code of Ordinances, Chapter 2—Administration, Article III—Officers and Employees, Division 4—Code of Ethics, the Bernalillo County Commission Ordinance, revises the SIP-approved version (previously Ordinance 85-3) to further enhance the requirements pursuant to section 128 of the CAA. This Code of Ethics Ordinance establishes a code of ethics for all elected officials and employees and volunteers of county government, including members of boards, committees and commissions. For example, in Section 2-130—Standards of conduct, the ordinance clearly indicates that the standards of conduct apply to elected officials, employees and volunteers at all times. Section 128 of the CAA does not require volunteers to be subject to the conflict of interest provisions, and adding them makes the ordinance more stringent. Additionally, the ordinance requires such candidates, elected officials, employees, and volunteers to disclose personal interests, financial or otherwise, in matters of the county. Other revisions include establishing a declaration of policy section, (Section 2-127), standards of conduct including conflict of interest (Section 2-130), disclosure of certain financial interests (Section 2-131), reporting violations of code of ethics
Additionally, CAA section 110(l) states that the EPA cannot approve a SIP revision if that revision would interfere with any applicable requirement regarding attainment, reasonable further progress (RFP) or any requirement established in the CAA. The revisions do not interfere with any applicable requirement, but enhance the current SIP-approved version as discussed above. Additionally, approvability of these actions are also based upon EPA's guidance for state boards and conflict of interest provisions as discussed in the TSD for this rulemaking.
EPA approves the revisions and updates for Exhibits 5c, 6c, 8c, 9c and 10c pursuant to section 110 of the CAA, and has determined they are consistent with the requirements in section 128(a) of the CAA.
Pursuant to section 110 of the Act, EPA is approving through a direct final action, revisions to the New Mexico SIP that were submitted on June 12, 2013. We evaluated the state's submittal and determined that they meet the applicable requirements of the CAA section 128(a). Also, in accordance with CAA section 110(l), the proposed revisions will not interfere with attainment of the NAAQS, reasonable further progress, or any other applicable requirement of the CAA.
EPA is publishing this rule without prior proposal because we view these as non-controversial amendments and anticipate no adverse comments. However, in the proposed rules section of this
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The addition and revisions read as follows:
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve some elements and disapprove other elements of state implementation plan (SIP) submissions from Minnesota regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 ozone, 2010 nitrogen dioxide (NO
This final rule is effective on November 19, 2015.
EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2014-0503. All documents in the docket are listed on the
Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4489,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This
This rulemaking addresses June 12, 2014, submissions and a February 3, 2015, clarification from the Minnesota Pollution Control Agency (MPCA) intended to address all applicable infrastructure requirements for the 2008 ozone, 2010 NO
Under section 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2008 ozone, 2010 NO
EPA has highlighted this statutory requirement in multiple guidance documents. The most recent, entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and (2),” was published on September 13, 2013.
EPA is acting upon the SIP submissions from Minnesota that address the infrastructure requirements of CAA section 110(a)(1) and (2) for the 2008 ozone, 2010 NO
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as SIP submissions that address the nonattainment planning requirements of part D and the PSD requirements of part C of title I of the CAA, and “regional haze SIP” submissions required to address the visibility protection requirements of CAA section 169A.
This rulemaking will not cover three substantive areas because they are not integral to acting on a state's infrastructure SIP submissions: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction (“SSM”) at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public notice or without requiring further approval by EPA, that may be contrary to the CAA; and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these
The public comment period for EPA's proposed actions with respect to Minnesota's satisfaction of the infrastructure SIP requirements for the 2008 ozone NAAQS closed on July 27, 2015. EPA received one comment letter, which was from the Sierra Club. A synopsis of the comments contained in this letter and EPA's responses are provided below.
Our interpretation that infrastructure SIPs are more general planning SIPs is consistent with the statute as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in “air quality control regions” (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with the NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].”
In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of the state were violating the NAAQS (
In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS, with the primary provisions for ozone in section 182. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A).
Additionally, Congress replaced the clause “as may be necessary to insure [sic] attainment and maintenance [of the NAAQS]” with “as may be necessary or appropriate to meet the applicable requirements of this chapter.” Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping-stone in the planning process for a specific NAAQS. And, more detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS.
With regard to the requirement for emission limitations, EPA has interpreted this to mean that, for purposes of section 110, the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013 (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.” Infrastructure SIP Guidance at p. 2.
The commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action “restructuring and consolidating” provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were “beyond the scope” of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. Id. at 40657.
Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SO
The Sierra Club also asserts that EPA stated in its Infrastructure SIP Guidance that states could postpone specific requirements for startup, shutdown, and malfunction (SSM), but did not specify the postponement of any other requirements. The commenter concludes that emissions limits ensuring attainment of the standard cannot be delayed.
EPA also does not agree that any requirements related to emission limits have been postponed. As stated in a previous response, EPA interprets the requirements under 110(a)(2)(A) to include enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations, EPA has interpreted this to mean, for purposes of section 110, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Emission limits providing for attainment of a new standard are
As discussed in detail in the proposed rules, EPA finds that the Minnesota SIPs meet the appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in attaining and/or maintaining the NAAQS, and that Minnesota has demonstrated that they have the necessary tools to implement and enforce a NAAQS.
In
The decision in
At issue in
In
The commenter suggests that
Two of the cases the commenter cites,
Based on the modeling, Sierra Club asserts that the Minnesota SO
EPA's interpretation that infrastructure SIPs are more general planning SIPs is consistent with the CAA as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in AQCRs and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with a new NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].” In 1977, Congress recognized that the existing structure was not sufficient and that many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of a state were violating the NAAQS (
As stated in response to a previous comment, EPA asserts that section 110 of the CAA is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide for “implementation, maintenance and enforcement” to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state must demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as an adequate monitoring network and an enforcement program. As discussed above, EPA has interpreted the requirement for emission limitations in section 110 to mean that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Finally, as EPA stated in the Infrastructure SIP Guidance which specifically provides guidance to states in addressing the 2010 SO
Therefore, EPA continues to believe that the elements of section 110(a)(2) which address SIP revisions for nonattainment areas including measures and modeling demonstrating attainment are due by the dates statutorily prescribed under subparts 2 through 5 under part D of title I. The CAA directs states to submit these 110(a)(2) elements for nonattainment areas on a separate schedule from the “structural requirements” of 110(a)(2) which are due within three years of adoption or revision of a NAAQS. The infrastructure SIP submission requirement does not move up the date for any required submission of a part D plan for areas designated nonattainment for the new NAAQS. Thus, elements relating to demonstrating attainment for areas not attaining the NAAQS are not necessary for states to include in the infrastructure SIP submission, and the CAA does not provide explicit requirements for demonstrating attainment for areas potentially designated as “unclassifiable” (or that have not yet been designated) regarding attainment with a particular NAAQS.
As stated previously, EPA believes that the proper inquiry at this juncture is whether Minnesota has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submittal. Emissions limitations and other control measures needed to attain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure elements. States, like Minnesota, may reference pre-existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission. For example, Minnesota submitted lists of existing emission reduction measures in the SIP that control emissions of SO
Additionally, as discussed in EPA's proposed rule, Minnesota has the ability to revise its SIPs when necessary (
EPA believes the requirements for emission reduction measures for an area designated nonattainment to come into attainment with the 2010 primary SO
The Sierra Club's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits adequate to provide for timely attainment and maintenance of the standard is also not supported. As explained previously in response to the background comments, EPA notes this regulatory provision clearly on its face applies to plans specifically designed to attain the NAAQS and not to infrastructure SIPs which show the states have in place structural requirements necessary to implement the NAAQS. Therefore, EPA finds 40 CFR 51.112 inapplicable to its analysis of the Minnesota SO
As noted in EPA's preamble for the 2010 SO
Minnesota currently has the ability to control emissions of SO
Regarding the air dispersion modeling conducted by Sierra Club pursuant to AERMOD for the coal-fired EGUs, EPA is not at this stage prepared to opine on whether it demonstrates violations of the NAAQS, and does not find the modeling information relevant at this time for review of an infrastructure SIP. While EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations and other actions in which areas' air quality status is determined, EPA has recommended that such modeling was not needed for the SO
In conclusion, EPA disagrees with Sierra Club's statements that EPA must disapprove Minnesota's infrastructure SIP submission because it does not establish at this time specific enforceable SO
The commenter discusses statements made by EPA staff discussing use of modeling and monitoring in setting emission limitations or determining ambient concentrations resulting from sources, discussing performance of AERMOD as a model, and discussing that modeling is capable of predicting whether the NAAQS is attained and whether individual sources contribute to SO
The commenter asserts EPA's use of air dispersion modeling was upheld in
The commenter cites to
Finally, the commenter claims that Minnesota's proposed SO
As discussed previously above and in the Infrastructure SIP Guidance, EPA believes the conceptual purpose of an infrastructure SIP submission is to ensure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS and that the infrastructure SIP submission process provides an opportunity to review the basic structural requirements of the air agency's air quality management program in light of the new or revised NAAQS.
EPA finds Sierra Club's discussion of case law, guidance, and EPA staff statements regarding advantages of AERMOD as an air dispersion model to be irrelevant to our analysis here of the Minnesota infrastructure SIP, as this SIP for section 110(a) is not an attainment SIP required to demonstrate attainment of the NAAQS pursuant to section 172. EPA also finds Sierra Club's comments relating to MPCA's current use of modeling to be likewise irrelevant. In addition, Sierra Club's comments relating to EPA's use of AERMOD or modeling in general in designations pursuant to section 107, are likewise irrelevant as EPA's present approval of Minnesota's infrastructure SIP is unrelated to the section 107 designations process. Nor is our action on this infrastructure SIP related to any new source review (NSR) or PSD permit program issue. As outlined in the August 23, 2010 clarification memo, “Applicability of Appendix W Modeling Guidance for the 1-hour SO
The suggestion that the infrastructure SIP must include measures addressing violations of the standard that did not occur until shortly before or even after the SIP was due and submitted cannot be supported. The CAA provides states with three years to develop infrastructure SIPs and states cannot reasonably be expected to address the annual change in an area's design value for each year over that period. Moreover, the CAA recognizes and has provisions to address changes in air quality over time, such as an area slipping from attainment to nonattainment or changing from nonattainment to attainment. These include provisions providing for redesignation in section 107(d) and provisions in section 110(k)(5) allowing EPA to call on the state to revise its SIP, as appropriate.
We do not believe that section 110(a)(2)(A) requires detailed planning SIPs demonstrating either attainment or maintenance for specific geographic areas of the state. The infrastructure SIP is triggered by promulgation of the NAAQS, not designation. Moreover, infrastructure SIPs are due three years following promulgation of the NAAQS and designations are not due until two years (or in some cases three years) following promulgation of the NAAQS. Thus, during a significant portion of the period that the state has available for developing the infrastructure SIP, it does not know what the designation will be for individual areas of the state.
For all of the above reasons, we disagree with the commenter that EPA must disapprove an infrastructure SIP revision if there are or may be future monitored violations of the standard in the state and the section 110(a)(2)(A) revision does not have detailed plans for demonstrating how the state will bring that area into attainment. Rather, EPA believes that the proper inquiry at this juncture is whether the state has met the basic structural SIP requirements appropriate when EPA is acting upon the submittal.
Minnesota currently has the ability to control emissions of NO
Minnesota currently has the ability to control emissions of PM
Sierra Club asserts that Minnesota's infrastructure SIP must not allow for ambient air incremental increases, variances, exceptions, or exclusions with regard to limits placed on sources of pollutants. The commenter asserts that Minnesota's rules allow exceptions from enforcement, and points to Minn. Stat. 116.07, Minn. R. 7000.7000, and Minn. R. 7007.1850 as examples of methods by which MPCA may grant variances or undermine emission limits.
Additionally, the commentator alleges that Minnesota excludes major sources of emissions from its major permitting program, allowing these sources to emit pollution under fewer restrictions.
EPA disagrees with the commenter's claim that Minnesota's infrastructure SIP fails to meet any requirements regarding variances. As an initial matter, Minn. Stat. 116.07 and Minn. R. 7000.7000 are not regulations that have been approved into the SIP. Minn. R. 7007.1850 grants the source the right to prove a circumstance beyond its control, but does not limit Minnesota's enforcement authority. Thus, any variance granted by the state pursuant to this provision would not modify the requirements of the SIP. Furthermore, for a variance from the state to be approved into the SIP, a demonstration must be made under CAA section 110(l) showing that the revision does not interfere with any requirements of the CAA including attainment or maintenance of a NAAQS. We disagree that the existence of this provision as solely a matter of state law means that the state does not have adequate authority to carry out the implementation plan.
Finally, we find that there is nothing in the record to support the commenter's assertion that Minnesota excludes major sources of emissions from the major permitting requirements required under title I of the CAA, which is the focus of this action. This action is governed by section 110(a)(2), which falls under title I of the CAA and governs the implementation, maintenance, and enforcement of the NAAQS. As noted above, Minnesota implements the Federal major source PSD program through delegated authority from EPA. Since Minnesota already administers Federally promulgated PSD regulations through delegation, it applies the Federal promulgated regulations in 40 CFR 52.21—not the regulations cited in the comment, or any exclusions they may contain—in determining the major sources subject to title I permitting requirements. We also note that the regulations cited in the comment apply to part 70 operating permits issued under title V of the CAA and certain state permits (see MAR section 7007.0200 and section 7007.0250, respectively). Thus, any evaluation of these regulations must be done pursuant to CAA section 502 and 40 CFR part 70 and state law, respectively, and are not subject to our review under section 110(a)(2).
Sierra Club additionally alleges that Minnesota cannot rely on the absence of nonattainment areas within the state, when determining whether Minnesota is contributing to nonattainment or interference with maintenance of the NAAQS in downwind states. The commenter also alleges that Minnesota cannot rely on a Federal implementation plan (FIP) for PSD and an approved NSR permitting program when determining that Minnesota is not contributing to nonattainment or interference with maintenance of the
EPA acknowledges the commenter's concern for the interstate transport of air pollutants and agrees in general with the commenter that sections 110(a)(1) and (a)(2) of the CAA generally require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses cross-state air pollution under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the commenter's argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole.
The commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court's April 2014 decision in
Furthermore, as discussed above, EPA has no obligation to issue a FIP pursuant to 110(c)(1) to address Minnesota's obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds Minnesota failed to make the required submission addressing the element or the State has made such a submission but it is incomplete, or EPA disapproves a SIP submittal addressing that element. Until either occurs, EPA does not have the authority to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the commenter's contention that it must issue a FIP for Minnesota to address 110(a)(2)(D)(i)(I) at this time.
Sierra Club claims that Minnesota may not rely on the absence of nonattainment areas within the state, a FIP for PSD, or an approved nonattainment NSR permitting program when determining that Minnesota is not contributing to nonattainment or interference with maintenance of the NAAQS in downwind states. In fact, EPA is not taking action on 110(a)(2)(D)(i)(I) at this time for the 2008 ozone, 2010 SO
EPA is taking final action to approve most elements of submissions from Minnesota certifying that its current SIP is sufficient to meet the required infrastructure elements under section 110(a)(1) and (2) for the 2008 ozone, 2010 NO
The proposed rulemaking associated with this final action was published on June 26, 2015 (75 FR 36743), and EPA received one comment during the comment period, which ended on July 27, 2015. For the reasons discussed in the proposed rulemaking and in the above response to the public comment, EPA is therefore taking final action to approve most elements and disapprove certain elements, as proposed, of Minnesota's submissions. EPA's actions for the state's satisfaction of infrastructure SIP requirements, by element of section 110(a)(2) and NAAQS, are contained in the table below.
In the above table, the key is as follows:
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving elements of state implementation plan (SIP) submissions from Michigan regarding state board requirements of section 110 of the Clean Air Act (CAA) for the 2006 fine particulate matter (PM
This direct final rule will be effective December 21, 2015, unless EPA receives adverse comments by November 19, 2015. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2014-0657 by one of the following methods:
1.
2.
3.
4.
5.
Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
This rulemaking addresses submissions from the Michigan Department of Environmental Quality (MDEQ) for the 2006 PM
The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.
This specific rulemaking is taking action only on the state board element of the Michigan submittal. The majority of the other infrastructure elements for the 2006 PM
On September 13, 2013, EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (2013 Memo). As noted in the 2013 Memo, pursuant to CAA section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. MDEQ provided public comment opportunities on both submittals on which EPA is acting in this direct final rule. MDEQ provided a detailed synopsis of how various components of its SIP meet each of the applicable requirements in section 110(a)(2) for the 2006 PM
Section 110(a)(2)(E)(ii) requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA. That provision contains two explicit requirements: (1) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (2) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. The 2013 Memo specifies that the provisions that implement CAA section 128 must be contained within the SIP. “EPA would not approve an infrastructure SIP submission that only provides a narrative description of existing air agency laws, rules, and regulations that are not approved into the SIP to address CAA section 128 requirements.” 2013 Memo at 42.
On July 10, 2014, MDEQ submitted Civil Service Rule 2-8.3(a)(1) for incorporation into the SIP, pursuant to section 128 of the CAA. EPA approved this rule as satisfying CAA section 128 requirements on August 31, 2015 (
EPA is approving the state board related infrastructure requirement for Michigan's 2006 PM
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Particulate matter, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Corporation for National and Community Service.
Final rule.
The Corporation for National and Community Service (CNCS) publishes new regulations under the Domestic Volunteer Service Act of 1973, as amended, and the National and Community Service Act of 1990, as amended, for the Volunteers in Service to America (VISTA) program, including certain changes to update existing regulations.
This rule is effective January 19, 2016.
Calvin Dawson, AmeriCorps VISTA, at the Corporation for National and Community Service, 1201 New York Avenue NW., Washington, DC 20525, phone 202-606-6897. The TDD/TTY number is 800-833-3722.
The Economic Opportunity Act of 1964 created the Volunteers in Service to America (VISTA) program. The VISTA program, sometimes referred to as the domestic Peace Corps, has operated since the first VISTA volunteers (VISTAs or VISTA members) were placed in service in December 1964.
In 1971, the VISTA program was transferred from the Office of Economic Opportunity to the former Federal agency, ACTION (the Federal Domestic Volunteer Agency). In 1973, Congress enacted the Domestic Volunteer Service Act of 1973 (DVSA), the VISTA program's enabling legislation. The VISTA program continues to retain its purpose, as stated in the DVSA, “to strengthen and supplement efforts to eliminate and alleviate poverty and poverty-related problems in the United States by encouraging and enabling individuals from all walks of life, all geographical areas, and all age groups, including low-income individuals, elderly and retired Americans, to perform meaningful and constructive volunteer service in agencies, institutions, and situations where the application of human talent and dedication may assist in the solution of poverty and poverty-related problems and secure and exploit opportunities for self-advancement by individuals afflicted with such problems.”
In 1994, the Corporation for National and Community Service (CNCS) was established pursuant to the National and Community Service Trust Act of 1993; at this time, the operations of all service programs previously administered by ACTION, including the VISTA program, began to be administered by CNCS. The VISTA program also became known as the AmeriCorps VISTA program, one of three AmeriCorps programs now administered by CNCS. The other two programs were, and continue to be: (1) The AmeriCorps State and National program; and (2) the AmeriCorps National Civilian Community Corps (NCCC). Since 1994, the VISTA program continues to be primarily operated and administered under the DVSA. The other two AmeriCorps programs are operated under the National and Community Service Act of 1990 (NCSA).
In 2009, Congress enacted the Edward M. Kennedy Serve America Act of 2009 (Serve America Act), which contained certain amendments to both the DVSA and the NCSA. With regard to the VISTA program, the Serve America Act amendments largely related to the Segal AmeriCorps Education Award, a type of end-of-service award for which a VISTA member may be eligible upon successful completion of a term of VISTA service.
This rule covers core aspects of the VISTA program: (a) Entities that are sponsors for VISTA projects; and (b) individuals who are applicants, candidates, and VISTAs (including VISTA leaders and VISTA summer associates), serving at project sites. This rule has four purposes.
First, it conforms the existing regulations to the fact that CNCS administers the VISTA program. References in the existing regulations to the former Federal agency, ACTION, and the administrative structure of ACTION are changed to reflect CNCS and its administrative structure.
Second, this rule codifies the VISTA rules in the same location as the rules for CNCS's other programs. The existing VISTA regulations are codified at 45 CFR parts 1206, 1210, 1211, 1216-1220, 1222, and 1226. This rule places the VISTA regulations within the regulations for CNCS and the other CNCS programs at 45 CFR parts 2505-2556.
On a related note, existing program regulations at 45 CFR parts 1206, 1216,
Third, this rule addresses regulations on the VISTA program's elements. The existing regulations cover a limited range of topics. This rule covers a wide range of topics, and updates the topics covered under existing regulations, including: VISTA application and termination processes, volunteer grievance procedures, competitive service eligibility, payment of volunteer legal expenses, nondisplacement of workers, VISTA leaders and summer associates, restrictions for VISTAs on certain political activities under the Hatch Act and other federal laws, and participation of program beneficiaries. Subpart A gives general program information: Purpose, basic program design, definitions used in the rule, and waiver. Subpart B sets out requirements for a VISTA sponsor, and for a sponsor to support a VISTA. Subpart C pertains to being a VISTA, and the requirements for applying to become a VISTA. Subpart D provides the service terms, protections, and benefits that apply to a VISTA. Subpart E addresses termination for cause procedures. Subparts F and G, concern, respectively, VISTA projects with summer associates, and VISTA projects with VISTA leaders. Subpart H gives restrictions and prohibitions on certain political activities for all VISTAs, sponsors, and project sites.
Fourth, this rule updates the provisions of the existing regulations. These changes are described here:
As it applies to the VISTA program, 45 CFR part 1206, which deals with project suspension and termination, is moved to 45 CFR part 2556, subpart B with most substantive provisions remaining unchanged. Under this final rule, the provisions for suspension remain unchanged, except that the provisions for summary suspension are eliminated and the provisions for suspension on notice are retained. This has the effect of giving notice to sponsors for all suspensions. Under the final rule the provisions for termination remain unchanged, except that a second CNCS review has been eliminated. Experience has shown that a lengthy termination review process is not beneficial to VISTAs at the project in question, unduly consumes the sponsor's staff time and other resources, creates uncertainty for project beneficiaries, and exhausts VISTA resources that could be put to use for the benefit of project beneficiaries.
The regulations at 45 CFR part 1210, which deal chiefly with early termination of a VISTA, are moved to 45 CFR part 2556, subpart E and changed to improve the cost-effectiveness of the provisions and increase efficiency of VISTA program functions. The new provisions for early termination remain substantively the same in many respects. However, the early termination for cause process is modified. While the process retains more than sufficient due process in the form of written notification and appeals at two levels, the inclusion of a hearing examiner in that process is removed. Experience has shown that a multi-layered termination process is protracted, unduly burdensome, and incompatible with a service term that can last no more than a year's time. Such a process creates potential harm to the operations of the project and its beneficiaries where the VISTA had been assigned, prolongs uncertainty for the VISTA subject to the process, and inordinately consumes VISTA program resources that could be put to use for the benefit of project beneficiaries.
Regulations in 45 CFR part 1211 on grievance procedures for VISTAs are moved to 45 CFR 2556.345-2556.365 and updated to reflect the use of electronic communication technology and the speed at which it can operate. At §§ 2556.345 through 2556.365, the rule clarifies when a VISTA may present a grievance, what matters are considered grievances, and specific steps for bringing a grievance and appealing a response, while eliminating the inclusion of a grievance examiner in the process. Longstanding experience has shown that CNCS has used its administrative review and oversight to afford complaining parties more than sufficient due process, and has effectively remedied inappropriate conditions leading to grievances, without need of grievance examiner services. When grievance examiner services have been invoked, the time, resources and expense incurred by the VISTA program have substantially outweighed the value provided to the parties involved.
Regulations at 45 CFR part 1216 on non-displacement of employed workers and non-impairment of contracts for service are moved to 45 CFR 2556.150(b) through (e), and the substantive provisions remain unchanged.
Regulations at 45 CFR part 1217 on leaders are moved to 45 CFR part 2556, subpart G, and clarify primary aspects of the leader position in a project.
Regulations at 45 CFR part 1219 on non-competitive eligibility for VISTAs are moved to 45 CFR 2556.340, and their substantive provisions remain unchanged.
Regulations at 45 CFR part 1220 on payment of legal expenses resulting from service activities are moved to 45 CFR 2556.325 through 2556.335, and their substantive provisions remain unchanged.
Regulations at 45 CFR part 1222 on participation of project beneficiaries are moved to 45 CFR 2556.120, and their substantive provisions remain unchanged.
Regulations at 45 CFR part 1226 on prohibitions and restrictions on certain political activities are moved to 45 CFR part 2556, subpart H and are revised to complement the current limitations and permitted political activities under the Hatch Act, 5 U.S.C. chapter 73, subchapter III. As provided in the DVSA, VISTAs are subject to the requirements of the Hatch Act because they are considered federal employees for purposes of the Hatch Act, 42 U.S.C. 5055(b)(1).
On Tuesday, May 5, 2015, CNCS published a notice of proposed rulemaking. 80 FR 25637. We received fewer than 25 comments on the rule, all of which are addressed below.
We received comments from individuals currently serving as VISTAs, current and former VISTA leaders, staff of VISTA sponsors, a state non-profit association and State Commissions on National and Community Service. We appreciate the thoughtful input provided by these individuals and organizations.
Accordingly, we have made only technical edits to the proposed rule for clarity in the use of the terms “sponsor,” “project,” and “subrecipient.” Additionally, we clarified the applicability of sections 2556.125 and 2556.130.
This rule is effective January 19, 2016.
CNCS has determined that the rule is not an “economically significant” rule within the meaning of E.O. 12866 because it is not likely to result in: (1) An annual effect on the economy of $100 million or more, or an adverse and material effect on a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government or communities; (2) the creation of a serious inconsistency or interference with an action taken or planned by another agency; (3) a material alteration in the budgetary impacts of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) the raising of novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605 (b)), CNCS certifies that this rule will not have a significant economic impact on a substantial number of small entities. This regulatory action will not result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, CNCS has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601
For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, State, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.
This rule addresses the requirement that entities that wish to apply to be VISTA sponsors complete an application to be a VISTA sponsor that manages at least one VISTA project. Consistent with this requirement is a document: The VISTA program's Project Application (
These requirements constitute two sets of information under the Paperwork Reduction Act (PRA), 44 U.S.C. 507
Under the PRA, an agency may not conduct or sponsor a collection of information unless the collections of information displays valid control numbers. This rule's collections of information are contained in 45 CFR 2556.120 and 2556.205 for the Project Application and AmeriCorps Application, respectively.
This information is necessary to ensure that only eligible and qualified entities serve as VISTA sponsors. This information is also necessary to ensure that only eligible and suitable individuals are approved by the VISTA program to serve as VISTAs in the VISTA program.
The likely respondents to these collections of information are entities interested in or seeking to become VISTA sponsors, current VISTA sponsors, and current and prospective VISTAs.
Executive Order 13132,
Volunteers.
Elections, Lobbying, Volunteers.
VISTA program, Volunteers.
For the reasons discussed in the preamble, under the authority of 42 U.S.C. 12651c(c), the Corporation for National and Community Service amends chapters XII and XXV, title 45 of the Code of Federal Regulations as follows:
42 U.S.C. 5052.
(a) This subpart establishes rules and review procedures for the suspension and termination of assistance of National Senior Service Corps grants of assistance provided by the Corporation for National and Community Service pursuant to sections of title II of the Domestic Volunteer Service Act of 1973, Public Law 93-113, 87 Stat. 413 (hereinafter the DVSA) because a recipient failed to materially comply with the terms and conditions of any grant or contract providing assistance under these sections of the DVSA, including applicable laws, regulations, issued program guidelines, instructions, grant conditions or approved work programs.
This subpart applies to programs authorized under title II of the DVSA.
(c) The term
(d) The term
(e) The term
(f) The term
This subpart applies to grantees and contractors receiving financial assistance under title II of the DVSA. The procedures in the subpart do not apply to review of applications for sponsors who receive VISTA members under the DVSA.
As used in this subpart, “Corporation”, “CEO”, and “recipient” are defined in accordance with § 1206.1-3.
(g) If the recipient's budget period expires prior to the final decision by the deciding official, the recipient's authority to continue program operations shall be extended until such decision is made and communicated to the recipient. If a National Senior Service Corps volunteer's term of service expires after receipt by a sponsor of a tentative decision not to refund a project, the period of service of the volunteer may be similarly extended. No volunteers may be reenrolled for a period of service while a tentative decision not to refund is pending. If program operations are so extended, CNCS and the recipient shall provide, subject to the availability of funds, operating funds at the same levels as in the previous budget period to continue program operations.
42 U.S.C. 5044(a).
This part establishes rules to assure that the services of volunteers in the Foster Grandparent Program, the Senior Companion Program, and The Retired and Senior Volunteer Program (RSVP), are limited to activities which would not otherwise be performed by employed workers and which will not supplant the hiring of, or result in the displacement of employed workers or impair existing contracts for service. This part implements section 404(a) of the Domestic Volunteer Service Act of 1973, Public Law 93-113 (the “Act”).
(a) All volunteers in either the Foster Grandparent Program, the Senior Companion Program, or The Retired and Senior Volunteer Program (RSVP), who are assigned, referred or serving pursuant to grants, contracts, or agreements made pursuant to the Act.
42 U.S.C. 5059.
This part implements section 419 of the Domestic Volunteer Service Act of 1973, Public Law 93-113 (the “Act”). This part provides rules to ensure that the Corporation for National and Community Service, which administers the three federal programs, the Foster Grandparent Program (FGP), the Senior Companion Program (SCP), and The Retired and Senior Volunteer Program (RSVP), pays the expenses incurred in judicial and administrative proceedings for the defense of those volunteers serving in those programs. Payment of such expenses by CNCS for those volunteers include payment of counsel fees, court costs, bail or other expenses incidental to the volunteer's defense.
(a)(1) The Corporation for National and Community Service will pay all reasonable expenses for defense of full-time volunteers up to and including the arraignment of Federal, state, and local criminal proceedings, except in cases where it is clear that the charged offense results from conduct which is not related to his service as a volunteer.
(c) Notwithstanding the foregoing, there may be situations in which the criminal proceeding results from a situation which could give rise to a civil claim under the Federal Tort Claims Act. In such situations, the Justice Department may agree to defend the volunteer. In those cases, unless there is a conflict between the volunteer's interest and that of the government, the Corporation for National and Community Service will not pay for additional private representation for the volunteer.
(a) With respect to a part-time volunteer, the Corporation for National and Community Service will reimburse a sponsor for the reasonable expense it incurs for the defense of the volunteer in Federal, state and local criminal proceedings, including arraignment, only under the following circumstances:
(2) The volunteer receives, or is eligible to receive, compensation, including allowances, stipend, or reimbursement for out-of-pocket expenses, under a Corporation for National and Community Service grant project; and
(b) In certain circumstances volunteers who are ineligible for reimbursement of legal expenses by the Corporation for National and Community Service may be eligible for representation under the Criminal Justice Act (18 U.S.C. 3006A).
(a) Immediately upon the arrest of any volunteer under circumstances in which the payment or bail to prevent incarceration or other serious consequences to the volunteer or the retention of an attorney prior to arraignment is necessary and is covered under § 1220.2-1 or § 1220.2-2, sponsors shall immediately notify the appropriate Corporation for National and Community Service state office or if the state office cannot be reached, the appropriate Area Manager.
(b) Immediately after notification of the appropriate state office, and with the approval thereof, the sponsor shall advance up to $500 for the payment of bail or such other legal expenses as are necessary prior to arraignment to prevent the volunteer from being incarcerated. In the event it is subsequently determined that the Corporation for National and Community Service or a sponsor is not responsible under this policy for the volunteer's defense, any such advance may be recovered directly from the volunteer or from allowances, stipends, or out-of-pocket expenses which are payable or become payable to the volunteer. In the case of a grassroots sponsor of full-time volunteers that is not able to provide the $500, the Corporation for National and Community Service state office or Area Manager shall immediately make such sum available to the sponsor.
(d) The General Counsel shall, upon notification by the state office or Area Manager, determine the extent to which the Corporation for National and Community Service will provide funds for the volunteer's defense or reimburse a sponsor for funds it spends on the volunteer's behalf. Included in this responsibility shall be the negotiation of fees and approval of other costs and expenses. State offices and Area Managers are not authorized to commit the Corporation for National and Community Service to the payment of volunteers' legal expenses or to reimburse a sponsor except as provided in this section, without the express consent of the General Counsel. Additionally, the General Counsel shall, in cases arising directly out of the performance of authorized project activities, ascertain whether the services of the United States Attorney can be made available to the volunteer.
The Corporation for National and Community Service will pay reasonable expenses incurred in the defense of full-time volunteers in Federal, state, and local civil judicial and administrative proceedings where:
(a) The complaint or charge against the volunteer is directly related to his volunteer service and not to his personal activities or obligations.
The Corporation for National and Community Service will reimburse sponsors for the reasonable expenses incidental to the defense of part-time volunteers in Federal, state, and local civil judicial and administrative proceedings where:
(a) The proceeding arises directly out of the volunteer's performance of activities pursuant to the Act;
(b) The volunteer receives or is eligible to receive compensation, including allowances, stipend, or reimbursement for out-of-pocket expenses under the Corporation for National and Community Service grant; and
(c) The conditions specified in § 1220.3-1(b) and (c) are met.
Immediately upon the receipt by a volunteer of any court papers or administrative orders making a party to any proceeding covered under § 1220.3-1 or § 1220.3-2, the volunteer shall immediately notify his sponsor who in turn shall notify the appropriate Corporation for National and Community Service state office. The procedures referred to in § 1220.2-3(c) through (e) shall thereafter be followed as appropriate.
42 U.S.C. 5043.
This part implements sections 403(a) and (b) of the Domestic Volunteer Service Act of 1973, Public Law 93-113, as amended, hereinafter referred to as the Act, pertaining to the prohibited use of Federal funds or involvement by certain Corporation for National and Community Service programs and volunteers in electoral and lobbying activities. This part implements those provisions of the Act, as they apply to agency programs and volunteers authorized under title II of the Act.
This part applies to all volunteers serving in a program authorized by title II of the Act, including the Foster Grandparent Program, the Senior Companion Program, and The Retired and Senior Volunteer Program (RSVP). This part also applies to employees or sponsoring organizations, whose salaries, or other compensation, are paid, in whole or in part, with agency funds.
The provisions in this subpart are applicable to full time volunteers as described in § 1226.3(c), and to such part-time volunteers as may be otherwise specified herein. Full time volunteers are deemed to be acting in their capacity as volunteers:
(a) When they are actually engaged in their volunteer assignments; or
Sponsor employees whose salaries or other compensation are paid, in whole or in part, with agency funds are subject to the restrictions described in § 1226.8 and the exceptions in § 1226.9:
(a) Whenever they are engaged in an activity which is supported by Corporation for National and Community Service funds; or
(b) Whenever they identify themselves as acting in their capacity as an official of a project which receives Corporation for National and Community Service funds, or could reasonably be perceived by others as acting in such capacity.
42 U.S.C. 4951-4953; 5 CFR part 734.
(a) The purpose of the VISTA program is to strengthen and supplement efforts to eliminate and alleviate poverty and poverty-related problems throughout the United States and certain U.S. territories. To effect this purpose, the VISTA program encourages and enables individuals from all walks of life to join VISTA to perform, on a full-time basis, meaningful and constructive service to assist in the solution of poverty and poverty-related problems and secure opportunities for self-advancement of persons afflicted by such problems.
(b) The VISTA program objectives are to:
(1) Generate private sector resources;
(2) Encourage volunteer service at the local level;
(3) Support efforts by local agencies and community organizations to achieve long-term sustainability of projects; and
(4) Strengthen local agencies and community organizations to carry out the purpose of the VISTA program.
This part may be of interest to:
(a) Private nonprofit organizations, public nonprofit organizations, state government agencies, local government agencies, federal agencies, and tribal government agencies who are participating in the VISTA program as sponsors, or who are interested in participating in the VISTA program as sponsors.
(b) Individuals 18 and older who are serving as a VISTA, or who are interested in serving as a VISTA.
(1) An election in which none of the candidates is to be nominated or elected as representing a political party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected; or
(2) An election involving a question or issue which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance, or any question or issue of a similar character.
Upon a determination of good cause, the Chief Executive Officer of CNCS may, subject to statutory limitations, waive any provisions of this part.
42 U.S.C. 4953(a), (f), 4954(b), (e), 4955(b), 4956, 5043(a)-(c), 5044(a)-(c), (e), 5046, 5052, 5056, and 5057; 42 U.S.C. 12651b (g)(10); E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 2156.
The following entities are eligible to apply to become VISTA sponsors, and thereby undertake projects in the U.S. and certain U.S. territories:
(a) Private nonprofit organization.
(b) Public nonprofit organization.
(c) State government or state government agency.
(d) Local government or local government agency.
(e) Tribal government or tribal government agency.
(a) An entity is prohibited from being a VISTA sponsor or from otherwise receiving VISTA assistance if a principal purpose or activity of the entity includes any of the following:
(1)
(2)
(3)
(b) Any organization that, subsequent to the receipt of VISTA assistance, makes as one of its principal purposes or activities any of the activities described in paragraph (a) of this section shall be subject to the procedures in §§ 2556.125 through 2556.145.
(a) A sponsor may be approved for one or more VISTA positions.
(b) A sponsor, upon review and approval by CNCS to establish a leader position or positions, and in accordance with criteria set forth at subpart G of this part, may be approved for one or more leader positions.
(c) A sponsor, upon approval by CNCS to establish a summer associate position or positions, and in accordance with criteria set forth at subpart F of this part, may be approved for one or more summer associate positions.
(d) A sponsor may be eligible to receive certain grant assistance under the terms determined and prescribed by CNCS.
(e) A sponsor may receive training and technical assistance related to carrying out purposes of title I of the DVSA.
(a) A sponsor is not required to provide a cash match for any of the assistance listed in § 2556.110.
(b) A sponsor must provide supervision, work space, service-related transportation, and any other materials necessary to operate and complete the VISTA project and support the VISTA.
(a) To the maximum extent practicable, the people of the communities to be served by VISTA members shall participate in planning, developing, and implementing programs.
(b) The sponsor shall articulate in its project application how it will engage or continue to engage relevant communities in the development and implementation of programs.
(a) CNCS may deny or reduce VISTA assistance where a denial or reduction is based on:
(1) Legislative requirement;
(2) Availability of funding;
(3) Failure to comply with applicable term(s) or condition(s) of a contract, grant agreement, or an applicable Memorandum of Agreement;
(4) Ineffective management of CNCS resources;
(5) Substantial failure to comply with CNCS policy and overall objectives under a contract, grant agreement, or applicable Memorandum of Agreement; or
(6) General policy.
(b) In instances where the basis for denial or reduction of VISTA assistance may also be the basis for the suspension or termination of a VISTA project under this subpart, CNCS shall not be limited to the use of this section to the exclusion of the procedures for suspension or termination in this subpart.
(a) CNCS shall notify the sponsor in writing, at least 75 calendar days before the anticipated denial or reduction of VISTA assistance, that CNCS proposes to deny or reduce VISTA assistance. CNCS's written notice shall state the reasons for the decision to deny or reduce assistance and shall provide an opportunity period for the sponsor to respond to the merits of the proposed decision. CNCS retains sole authority to make the final determination whether the VISTA assistance at issue shall be denied or reduced, as appropriate.
(b) Where CNCS's notice of proposed decision is based upon a specific charge of the sponsor's failure to comply with the applicable term(s) or condition(s) of a contract, grant agreement, or an applicable Memorandum of Agreement, the notice shall offer the sponsor an opportunity period to respond in writing to the notice, with any affidavits or other supporting documentation, and to request an informal hearing before a mutually agreed-upon impartial hearing officer. The authority of such a hearing officer shall be limited to conducting the hearing and offering recommendations to CNCS. Regardless of whether or not an informal hearing takes place, CNCS shall retain full authority to make the final determination whether the VISTA assistance is denied or reduced, as appropriate.
(c) If the recipient requests an informal hearing, in accordance with paragraph (b) of this section, such hearing shall be held at a date specified by CNCS and held at a location convenient to the sponsor.
(d) If CNCS's proposed decision is based on ineffective management of resources, or on the substantial failure to comply with CNCS policy and overall objectives under a contract, grant agreement, or an applicable Memorandum of Agreement, CNCS shall inform the sponsor in the notice of proposed decision of the opportunity to show cause why VISTA assistance should not be denied or reduced, as appropriate. CNCS shall retain full authority to make the final determination whether the VISTA assistance at issue shall be denied or reduced, as appropriate.
(e) The recipient shall be informed of CNCS's final determination on whether the VISTA assistance at issue shall be denied or reduced, and the basis for the determination.
(f) The procedure in this section does not apply to a denial or reduction of VISTA assistance based on legislative requirements, availability of funding, or on general policy.
(a) Suspension is any action by CNCS temporarily suspending or curtailing assistance, in whole or in part, to all or any part of a VISTA project, prior to the time that the project term is concluded. Suspension does not include the denial or reduction of new or additional VISTA assistance.
(b) In an emergency situation for up to 30 consecutive days, CNCS may suspend assistance to a sponsor, in whole or in part, for the sponsor's material failure or threatened material failure to comply with an applicable term(s) or condition(s) of the DVSA, the regulations in this part, VISTA program policy, or an applicable Memorandum of Agreement. Such suspension in an emergency situation shall be pursuant to notice and opportunity to show cause why assistance should not be suspended.
(c) To initiate suspension proceedings, CNCS shall notify the sponsor in writing that CNCS is suspending assistance in whole or in part. The written notice shall contain the following:
(1) The grounds for the suspension and the effective date of the commencement of the suspension;
(2) The sponsor's right to submit written material in response to the suspension to show why the VISTA
(3) The opportunity to adequately correct the deficiency, or deficiencies, which led to CNCS's notice of suspension.
(d) In deciding whether to continue or lift the suspension, as appropriate, CNCS shall consider any timely material presented in writing, any material presented during the course of any informal meeting, as well as any showing that the sponsor has adequately corrected the deficiency which led to the initiation of suspension.
(e) During the period of suspension of a sponsor, no new expenditures, if applicable, shall be made by the sponsor's VISTA project at issue and no new obligations shall be incurred in connection with the VISTA project at issue except as specifically authorized in writing by CNCS.
(f) CNCS may, in its discretion, modify the terms, conditions, and nature of the suspension or rescind the suspension action at any time on its own initiative or upon a showing that the sponsor has adequately corrected the deficiency or deficiencies which led to the suspension and that repetition is not foreseeable.
(a) Termination means any action by CNCS permanently terminating or curtailing assistance to all or any part of a sponsor's VISTA project prior to the time that the project term is concluded.
(b) CNCS may terminate assistance to a sponsor in whole or in part for the sponsor's material failure to comply with an applicable term(s) or condition(s) of the DVSA, the regulations in this part, VISTA program policy, or an applicable Memorandum of Agreement.
(c) To initiate termination proceedings, CNCS shall notify the sponsor in writing that CNCS is proposing to terminate assistance in whole or in part. The written notice shall contain the following:
(1) A description of the VISTA assistance proposed for termination, the grounds that warrant such proposed termination, and the proposed date of effective termination;
(2) Instructions regarding the sponsor's opportunity, within 21 calendar days from the date of issuance of the notice, to respond in writing to the merits of the proposed termination and instructions regarding the sponsor's right to request a full and fair hearing before a mutually agreed-upon impartial hearing officer; and
(3) Invitation of voluntary action by the sponsor to adequately correct the deficiency or deficiencies which led to CNCS's notice of proposed termination.
(d) In deciding whether to effect termination of VISTA assistance, CNCS shall consider any relevant, timely material presented in writing; any relevant material presented during the course of any full and fair hearing; as well as, any showing that the sponsor has adequately corrected the deficiency which led to the initiation of termination proceedings.
(e) Regardless of whether or not a full and fair hearing takes place, CNCS shall retain all authority to make the final determination as to whether the termination of VISTA assistance is appropriate.
(f) The sponsor shall be informed of CNCS's final determination on the proposed termination of VISTA assistance, and the basis or bases for the determination.
(g) CNCS may, in its discretion, modify the terms, conditions, and nature of a termination action or rescind a termination action at any time on its own initiative or upon a showing that the sponsor has adequately corrected the deficiency which led to the termination, or the initiation of termination proceedings, and that repetition is not threatened.
The procedures established by this subpart shall not preclude CNCS from pursuing any other remedies authorized by law.
(a) A VISTA may not perform any activities in the project application that do not correspond with the purpose of the VISTA program, as described in § 2556.1, or that the Director has otherwise prohibited.
(b) A VISTA may not perform services or duties as a VISTA member that would otherwise be performed by employed workers or other volunteers (not including participants under the DVSA and the National and Community Service Act of 1990, as amended).
(c) A VISTA may not perform any services or duties, or engage in activities as a VISTA member, that supplant the hiring of or result in the displacement of employed workers or other volunteers (not including participants under the DVSA or the National and Community Service Act of 1990, as amended).
(d) A VISTA may not perform any services or duties, or engage in activities as a VISTA member, which impair existing contracts for service.
(e) The requirements of paragraphs (b) through (d) of this section do not apply when the sponsor requires the service in order to avoid or relieve suffering threatened by, or resulting from, a disaster, civil disturbance, terrorism, or war.
(f) A sponsor or subrecipient shall not request or receive any compensation from a VISTA; from a beneficiary of VISTA project services; or any other source for services of a VISTA.
(a) A sponsor may carry out a VISTA project through one or more subrecipients that meet the eligibility criteria of § 2556.100.
(b) The sponsor must enter into a subrecipient agreement with each subrecipient. A subrecipient agreement must have at least the following elements:
(1) A project plan to be implemented by the subrecipient;
(2) Records to be kept and reports to be submitted;
(3) Responsibilities of the parties and other program requirements; and
(4) Suspension and termination policies and procedures.
(c) The sponsor retains the responsibility for compliance with a Memorandum of Agreement; the applicable regulations in this Part; and all applicable policies, procedures, and guidance issued by CNCS regarding the VISTA program.
(d) A sponsor shall not request or receive any compensation from a subrecipient for services performed by a VISTA.
(e) A sponsor shall not receive payment from, or on behalf of, the subrecipient for costs of the VISTA assistance, except in two limited circumstances:
(1) For reasonable and actual costs incurred by the sponsor directly related to the subrecipient's participation in a VISTA project; and
(2) For any cost share related to a VISTA placed with the subrecipient in the VISTA project.
(a) A sponsor shall enter into a written agreement for cost share as prescribed by CNCS.
(b) A sponsor shall make timely cost share payments as prescribed by CNCS and applicable federal law and regulations.
(c) In addition to other sources of funds, a sponsor may use funds from federal, state, or local government agencies, provided the requirements of those agencies and their programs are met.
(d) Subject to review and approval by CNCS, CNCS may enter into an agreement with another entity to receive and utilize funds to make cost share payments on behalf of the sponsor.
All sponsors and subrecipients that employ laborers and mechanics for construction, alteration, or repair of facilities shall pay wages at prevailing rates as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended, 40 U.S.C. 276a.
(a) An individual with responsibility for the operation of a project that receives CNCS assistance must not discriminate against a participant in, or member of the staff of, such project on the basis of race, color, national origin, sex, age, or political affiliation of such participant or staff member, or on the basis of disability, if the participant or staff member is a qualified individual with a disability.
(b) Any CNCS assistance constitutes Federal financial assistance for purposes of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d
(c) An individual with responsibility for the operation of a project that receives CNCS assistance may not discriminate on the basis of religion against a participant in such project or a member of the staff of such project who is paid with CNCS funds. This provision does not apply to the employment (with CNCS assistance) of any staff member of a CNCS-supported project who was employed with the organization operating the project on the date the CNCS assistance was awarded.
(d) Sponsors must notify all program participants, staff, applicants, and beneficiaries of:
(1) Their rights under applicable federal nondiscrimination laws, including relevant provisions of the national service legislation and implementing regulations; and
(2) The procedure for filing a discrimination complaint. No sponsor or subrecipient, or sponsor or subrecipient employee, or individual with responsibility for the implementation or operation of a sponsor or a subrecipient, shall discriminate against a VISTA on the basis of race, color, national origin, gender, age, religion, or political affiliation. No sponsor or subrecipient, or sponsor or subrecipient employee, or individual with responsibility for the implementation or operation of a sponsor or a subrecipient, shall discriminate against a VISTA on the basis of disability, if the VISTA is a qualified individual with a disability.
(a) A VISTA shall not give religious instruction, conduct worship services or engage in any form of proselytizing as part of his or her duties.
(b) A sponsor or subrecipient may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use any CNCS assistance, including the services of any VISTA or VISTA assistance, to support any inherently religious activities, such as worship, religious instruction, or proselytizing, as part of the programs or services assisted by the VISTA program. If a VISTA sponsor or subrecipient conducts such inherently religious activities, the activities must be offered separately, in time or location, from the programs or services assisted under this Part by the VISTA program.
42 U.S.C. 4953(b)(3), (f), 4954(a)-(c), 5044(e).
An individual may apply to serve as a VISTA if all the following requirements are met:
(a) The individual is at least eighteen years of age upon taking an oath or affirmation, as appropriate, to enter VISTA service. There is no upper age limit.
(b) The individual is a United States citizen or national, or is legally residing within a state. For eligibility purposes, a lawful permanent resident alien is considered to be an individual who is legally residing within a state.
(a) To the maximum extent practicable, the individual must make a full-time commitment to remain available for service without regard to regular working hours, at all times during his or her period of service, except for authorized periods of leave.
(b) To the maximum extent practicable, the individual must make a full-time personal commitment to alleviate poverty and poverty-related problems, and to live among and at the economic level of the low-income people served by the project.
(c) The individual's service cannot be used to satisfy service requirements of parole, probation, or community service prescribed by the criminal justice system.
(d) A VISTA candidate or member agrees to undergo an investigation into his or her criminal history or background as a condition of enrollment, or continued enrollment, in the VISTA program.
CNCS has the final authority to approve or deny VISTA applications for VISTA service.
42 U.S.C. 4954(a), (b), (d), 4955, 5044(e), 5055, and 5059; 42 U.S.C. 12602(c).
(a) Except for the purposes listed here, a VISTA is not considered an employee of the Federal Government. A VISTA is considered a Federal employee only for the following purposes:
(1) Federal Tort Claims Act—28 U.S.C. 1346(b); 28 U.S.C. 2671-2680;
(2) Federal Employees' Compensation Act—5 U.S.C. chapter 81, subchapter 1;
(3) Hatch Act—5 U.S.C. chapter 73, subchapter III;
(4) Internal Revenue Service Code—26 U.S.C. 1
(5) Title II of the Social Security Act—42 U.S.C. 401
(b) A VISTA is not considered a federal employee for any purposes other than those set forth in paragraph (a) of this section.
(c) A VISTA is not covered by Federal or state unemployment compensation related to their enrollment or service in the VISTA program. A VISTA's service is not considered employment for purposes of eligibility for, or receipt of,
(d) Monetary allowances, such as living allowances that VISTAs receive during VISTA service are not considered wages. Monetary allowances, such as living allowances, that VISTAs receive during VISTA service are considered income for such purposes as Federal income tax and Social Security.
(e) A VISTA is not, under any circumstances, considered an employee of the sponsor or subrecipient to which he or she is assigned to serve. No VISTA is in an employment relationship with the sponsor or subrecipient to which he or she is assigned. The sponsor is not authorized to make contributions to any state unemployment compensation fund on a VISTA's behalf.
(a) To serve as a VISTA, an individual makes a full-time commitment for a minimum of one year, without regard to regular working hours.
(b) A VISTA carries out activities in accordance with the purpose of the VISTA program, as described in § 2556.1.
(c) To the maximum extent practicable, the VISTA shall live among and at the economic level of the low-income community served by the project, and actively seek opportunities to engage with that low-income community without regard to regular work hours.
(d) A VISTA carries out service activities in conformance with the sponsor's approved project application, including any description of a VISTA assignment as contained in the project application; and, in conformance with the purpose of title I of the DVSA. In any case where there is a conflict between the project application and the DVSA, the DVSA takes precedence.
(e) Under no circumstances may an individual be enrolled to serve as a VISTA beyond five years.
(a) The VISTA sponsor is responsible for the day-to-day supervision and oversight of the VISTA.
(b) CNCS is responsible for ongoing monitoring and oversight of the VISTA sponsor's project where the VISTA is assigned. CNCS is responsible for selecting the VISTA, assigning the VISTA to a project, removal of a VISTA from a project, and VISTA separation actions such as termination from the VISTA program.
(a) CNCS may provide official travel for a VISTA candidate or a VISTA, as appropriate, to attend CNCS-directed activities, such as pre-service training, placement at the project site, in-service training events, and return from the project site to home of record.
(b) CNCS must approve all official travel of a VISTA candidate or a VISTA, including the mode of travel.
(c) CNCS may provide for official emergency travel for a VISTA in case of a natural disaster or the critical illness or death of an immediate family member.
(a) A VISTA receives a living allowance computed on a daily rate. Living allowances vary according to the local cost-of-living in the project area where the VISTA is assigned.
(b) Subject to a maximum amount, and at the discretion and upon approval of CNCS, a VISTA may receive payment for settling-in expenses, as determined by CNCS.
(c) Subject to a maximum amount, and at the discretion of CNCS, in the event of an emergency (such as theft, fire loss, or special clothing necessitated by severe climate), a VISTA may receive an emergency expense payment in order to resume VISTA service activities, as determined and approved by CNCS.
(d) Subject to a maximum amount, and at the discretion of CNCS, a VISTA may receive a baggage allowance for the actual costs of transporting personal effects to the project site to which the VISTA is assigned to serve, as determined by CNCS.
(e) To the extent eligible, a VISTA may receive health care through a health benefits program provided by CNCS.
(f) To the extent eligible, a VISTA may receive child care support through a child care program provided by CNCS.
(g) To the extent eligible, a VISTA may elect to receive a Segal AmeriCorps Education Award, and upon successful completion of service, receive that award in an amount prescribed by CNCS, in accordance with the applicable provisions of 45 CFR parts 2526, 2527, and 2528.
(1) A VISTA is eligible to elect to receive a Segal AmeriCorps Education Award if he or she is a citizen, national, or lawful permanent resident alien of the United States.
(2) A VISTA who elects a Segal AmeriCorps Education Award is eligible to request forbearance of a student loan from his or her loan-holder. A VISTA who elects a Segal AmeriCorps Education Award may, upon successful completion of service, be eligible to receive up to 100 percent of the interest accrued on a qualified student loan, consistent with the applicable provisions of 45 CFR part 2529.
(3) A VISTA is not eligible to receive more than an amount equal to the aggregate value of two full-time Segal AmeriCorps Education Awards in his or her lifetime.
(4) Other than for a summer associate, the amount of a Segal AmeriCorps Education Award for the successful completion of a VISTA term of service is equal to the maximum amount of a Federal Pell Grant under Section 401 of the Higher Education Act of 1965 (20 U.S.C. 1070a) that a student eligible for such grant may receive in the aggregate for the fiscal year in which the VISTA has enrolled in the VISTA program.
(h) A VISTA who does not elect to receive a Segal AmeriCorps Education Award, upon successful completion of service, receives an end-of-service stipend in an amount prescribed by CNCS.
(i) In the event that a VISTA does not successfully complete a full term of service, a VISTA shall not receive a pro-rated Segal AmeriCorps Education Award or a pro-rated end-of-service stipend, except in cases where the appropriate State Program Director determines the VISTA did not successfully complete a full term of service because of a compelling, personal circumstance. Examples of a compelling, personal circumstance are: Serious medical condition or disability of a VISTA during VISTA service; critical illness or disability of a VISTA's immediate family member (spouse, domestic partner, parent, sibling, child, or guardian) if this event makes completing a term of service unreasonably difficult; or unusual conditions not attributable to the VISTA, such as natural disaster, strike, or premature closing of a project, that make completing a term unreasonably difficult or infeasible.
(j) In the event of a VISTA's death during service, his or her family or others that he or she named as beneficiary in accordance with section 5582 of title 5, United States Code, shall be paid a pro-rated end-of-service stipend for the period during which the VISTA served. If the VISTA had elected to receive the Segal AmeriCorps Education Award for successful completion of a full term of VISTA service, prior to payment to the named beneficiary, CNCS shall convert that election to an end-of-service stipend and pay the VISTA's family, or others that he or she named as beneficiary, a
Under certain circumstances, as set forth in §§ 2556.330 through 2556.335, CNCS may pay reasonable legal defense expenses incurred in judicial or administrative proceedings for the defense of a VISTA serving in the VISTA program. Such covered legal expenses consist of counsel fees, court costs, bail, and other expenses incidental to a VISTA's legal defense.
(a) For the legal defense of a VISTA member who is charged with a criminal offense related to the VISTA member's service, up to and including arraignment in Federal, state, and local criminal proceedings, CNCS may pay actual and reasonable legal expenses. CNCS is not required to pay any expenses for the legal defense of a VISTA member where he or she is charged with a criminal offense arising from alleged activity or action that is unrelated to that VISTA's service.
(b) A VISTA member's service is clearly unrelated to a charged offense:
(1) When the activity or action is alleged to have occurred prior to the VISTA member's VISTA service.
(2) When the VISTA member is not at his or her assigned project location, such as during periods of approved leave, medical leave, emergency leave, or in administrative hold status in the VISTA program.
(3) When the activity or action is alleged to have occurred at or near his or her assigned project, but is clearly not part of, or required by, the VISTA member's service assignment.
(c) For the legal defense, beyond arraignment in Federal, state, and local criminal proceedings, of a VISTA member who is charged with a criminal offense, CNCS may also pay actual and reasonable legal expenses:
(1) When the charged offense against the VISTA member relates exclusively to his or her VISTA assignment or status as a VISTA member;
(2) When the charge offense against the VISTA member arises from an alleged activity or action that is a part of, or required by, the VISTA member's VISTA assignment;
(3) When the VISTA member has not admitted a willful or knowing violation of law; or
(4) When the charged offense against the VISTA member is not a minor offense or misdemeanor, such as a minor vehicle violation.
(d) Notwithstanding paragraphs (a) through (c) of this section, there may be situations in which the criminal proceedings at issue arise from a matter that also gives rise to a civil claim under the Federal Tort Claims Act. In such a situation, the U.S. Department of Justice may, on behalf of the United States, agree to defend the VISTA. If the U.S. Department of Justice agrees to defend the VISTA member, unless there is a conflict between the VISTA member's interest and that of the United States, CNCS will not pay for expenses associated with any additional legal representation (such as counsel fees for private counsel) for the VISTA member.
For the legal defense in Federal, state, and local civil judicial and administrative proceedings of a VISTA member, CNCS may also pay actual and reasonable legal expenses, where:
(a) The complaint or charge is against the VISTA, and is directly related to his or her VISTA service and not to his or her personal activities or obligations;
(b) The VISTA has not admitted to willfully or knowingly pursuing a course of conduct that would result in the plaintiff or complainant initiating such a proceeding; and
(c) The judgment sought involves a monetary award that exceeds $1,000.
(a) Non-competitive eligibility is a status attained by an individual such that the individual is eligible for appointment by a Federal agency in the Executive branch, into a civil service position in the federal competitive service, in accordance with 5 CFR 315.605.
(b) An individual who successfully completes at least a year-long term of service as a VISTA, and who has not been terminated for cause from the VISTA program at any time, retains non-competitive eligibility status for one year following the end of the term of service as a VISTA.
(c) In addition to the retention of the one year of non-competitive eligibility status as provided in paragraph (b) of this section, an individual's non-competitive eligibility status may extend for two more years to a total of three years if the individual is:
(1) In the military service;
(2) Studying at a recognized institution of higher learning; or
(3) In another activity which, in the view of the federal agency referenced in paragraph (a) of this section, warrants extension.
(a) Under the VISTA program grievance procedure, a grievance may be presented by any individual who is currently enrolled as a VISTA in the VISTA program or who was enrolled as a VISTA in the VISTA program within the past 30 calendar days.
(b) A VISTA's grievance shall not be construed as reflecting on the VISTA's standing, performance, or desirability as a VISTA.
(c) A VISTA who presents a grievance shall not be subjected to restraint, interference, coercion, discrimination, or reprisal because of presentation of views.
(a) Under the VISTA program grievance procedure, grievances are matters of concern, brought by a VISTA, that arise out of, and directly affect, the VISTA's service situation or that arise out of a violation of a policy, practice, or regulation governing the terms or conditions of the VISTA's service, such that the violation results in the denial or infringement of a right or benefit to the VISTA member.
(b) Matters not within the definition of a grievance as defined in paragraph (a) of this section are not grievable, and therefore, are excluded from the VISTA program grievance procedure. Though not exhaustive, examples of matters excluded from the VISTA program grievance procedure are:
(1) Those matters related to a sponsor's or project's continuance or discontinuance; the number of VISTAs assigned to a VISTA project; the increases or decreases in the level of support provided to a VISTA project; the suspension or termination of a VISTA project; or the selection or retention of VISTA project staff.
(2) Those matters for which a separate administrative procedure or complaint process is provided, such as early termination for cause, claims of discrimination during service, and federal worker's compensation claims filed for illness or injury sustained in the course of carrying out VISTA activities.
(3) Those matters related to any law, published rule, regulation, policy, or procedure.
(4) Those matters related to housing during a VISTA member's service.
(5) Those matters which are, by law, subject to final administrative review outside CNCS.
(6) Those matters related to actions taken, or not taken, by a VISTA sponsor
(7) Those matters related to the internal management of CNCS, unless such matters are shown to specifically and directly affect the VISTA's service situation or terms or conditions of his or her VISTA service.
(a) A VISTA is entitled to review any material in his or her official VISTA file and any relevant CNCS records to the extent permitted by the Freedom of Information Act and the Privacy Act, 5 U.S.C. 552, 552a. Examples of materials that may be withheld include references obtained under pledge of confidentiality, official VISTA files of other VISTAs, and privileged intra-agency documents.
(b) A VISTA may review relevant materials in the possession of a sponsor to the extent such materials are disclosable by the sponsor under applicable freedom of information act and privacy laws.
(a)
(2) A VISTA brings a grievance by presenting it in writing to the executive director, or comparable individual, of the sponsoring organization where the VISTA is assigned, or to the sponsor's representative who is designated to receive grievances from a VISTA.
(3) The sponsor shall review and respond in writing to the VISTA's grievance, within 10 calendar days of receipt of the written grievance. The sponsor may not fail to respond to a complaint raised by a VISTA on the basis that it is not an actual grievance, or that it is excluded from coverage as a grievance, but may, in the written response, dismiss the complaint and refuse to grant the relief requested on either of those grounds.
(4) If the grievance brought by a VISTA involves a matter over which the sponsor has no substantial control or if the sponsor's representative is the supervisor of the VISTA, the VISTA may pass over the procedure set forth in paragraphs (a)(1) through (3) of this section, and present the grievance in writing directly to the State Program Director, as described in paragraph (b) of this section.
(b)
(i) Within seven calendar days of receipt of the response of the sponsor; or,
(ii) In the event the sponsor has not issued a response to the VISTA within 10 calendar days of receipt of the written grievance, within 17 calendar days.
(2) If the grievance involves a matter over which either the sponsor or subrecipient has no substantial control or if the sponsor's representative is the supervisor of the VISTA, as described in paragraph (a)(4) of this section, the VISTA may pass over the procedure set forth in paragraphs (a)(1) through (3) of this section, and submit the grievance in writing directly to the State Program Director. In such a case, the VISTA must submit the grievance to the State Program Director within 15 calendar days of the event giving rise to the grievance occurs, or within 15 calendar days after becoming aware of the event.
(3) Within ten working days of receipt of the grievance, the State Program Director shall respond in writing, regardless of whether or not the matter constitutes a grievance as defined under this grievance procedure, and/or is timely submitted. In the response, the State Program Director may determine that the matter submitted as a grievance is not grievable, is not considered a grievance, or fails to meet the time limit for response. If the State Program Director makes any such determination, he or she may dismiss the complaint, setting forth the reason(s) for the dismissal. In such a case, the State Program Director need not address the complaint on the merits, nor make a determination of the complaint on the merits.
(a) The VISTA may appeal in writing to the appropriate Area Manager the response of the State Program Director to the grievance, as set forth in § 2556.360(b)(3). To be eligible to appeal a grievance response to the Area Manager, the VISTA must have exhausted all appropriate actions as set forth in § 2556.360.
(b) A VISTA's grievance appeal must be in writing and contain sufficient detail to identify the subject matter of the grievance, specify the relief requested, and be signed by the VISTA.
(c) The VISTA must submit a grievance appeal to the appropriate Area Manager no later than 10 calendar days after the State Program Director issues his or her response to the grievance.
(d) Certain matters contained in a grievance appeal may be rejected, rather than denied on the merits, by the Area Manager. A grievance appeal may be rejected, in whole or in part, for any of the following reasons:
(1) The grievance appeal was not submitted to the appropriate Area Manager within the time limit specified in paragraph (c) of this section;
(2) The grievance appeal consists of matters not contained within the definition of a grievance, as specified in section § 2556.350(a);
(3) The grievance appeal consists of matters excluded from the VISTA program grievance procedure, as specified in § 2556.350(b); or
(4) The grievance appeal contains matters that are moot, or for which relief has otherwise been granted.
(e) Within 14 calendar days of receipt of the grievance, the appropriate Area Manager shall decide the grievance appeal on the merits, or reject the grievance appeal in whole or in part, or both, as appropriate. The Area Manager shall notify the VISTA in writing of the decision and specify the grounds for the appeal decision. The appeal decision shall include a statement of the basis for the decision and is a final decision of CNCS.
42 U.S.C. 4953(b), (c), (f), and 5044(e).
(a) Termination for cause is discharge of a VISTA from the VISTA program due to a deficiency, or deficiencies, in conduct or performance.
(b) CNCS may terminate for cause a VISTA for any of the following reasons:
(1) Conviction of any criminal offense under Federal, State, or local statute or ordinance;
(2) Violation of any provision of the Domestic Service Volunteer Act of 1973, as amended, or any CNCS or VISTA program policy, regulation, or instruction;
(3) Failure, refusal, or inability to perform prescribed project duties as outlined in the project plan, assignment description, or as directed by the sponsor to which the VISTA is assigned;
(4) Involvement in activities which substantially interfere with the VISTA's performance of project duties;
(5) Intentional false statement, misrepresentation, omission, fraud, or deception in seeking to obtain selection as a VISTA in the VISTA program;
(6) Any conduct on the part of the VISTA which substantially diminishes his or her effectiveness as a VISTA; or
(7) Unsatisfactory performance of an assignment.
(a) CNCS has the sole authority to remove a VISTA from a project where he or she has been assigned.
(b) CNCS has the sole authority to terminate for cause, or otherwise terminate, a VISTA from the VISTA program.
(c) Neither the sponsoring organization nor any of its subrecipients has the authority to remove a VISTA from a project or to terminate a VISTA for cause, or for any other basis, from the VISTA program.
(a) The head of a sponsoring organization, or his or her designee, may request that CNCS remove a VISTA assigned to its project. Any such request must be submitted in writing to the appropriate State Program Director and should state the reasons for the request.
(b) The State Program Director may, at his or her discretion, attempt to resolve the situation with the sponsor so that an alternative solution other than removal of the VISTA from the project assignment is reached.
(c) When an alternative solution, as referenced in paragraph (b) of this section, is not sought, or is not reached within a reasonable time period, the State Program Director shall remove the VISTA from the project.
Of its own accord, CNCS may remove a VISTA from a project assignment without the sponsor's request for removal.
(a) Termination for cause proceedings are initiated by the State Program Director when CNCS removes a VISTA from a project assignment due to an alleged deficiency, or alleged deficiencies, in conduct or performance.
(b) The State Program Director or other CNCS State Office staff, to the extent practicable, communicates the matter with the VISTA who is removed from a VISTA project and the administrative procedures as set forth in paragraphs (c) through (e) of this section.
(c) The State Program Director shall notify VISTA in writing of CNCS's proposal to terminate for cause. The written proposal to terminate him or her for cause must give the VISTA the reason(s) for the proposed termination, and notify him or her that he or she has 10 calendar days within which to answer in writing the proposal to terminate him or her for cause, and to furnish any accompanying statements or written material. The VISTA must submit any answer to the appropriate State Program Director identified in the written proposal to terminate for cause within the deadline specified in the proposal to terminate for cause.
(d) Within 10 calendar days of the expiration of the VISTA's deadline to answer the proposal to terminate for cause, the appropriate State Program Director shall issue a written decision regarding the proposal to terminate for cause.
(1) If the decision is to terminate the VISTA for cause, the decision shall set forth the reasons for the determination and the effective date of termination (which may be on or after the date of the decision).
(2) If the decision is not to terminate the VISTA for cause, the decision shall indicate that the proposal to terminate for cause is rescinded.
(e) A VISTA who does not submit a timely answer to the appropriate State Program Director, as set forth in paragraph (c) of this section, is not entitled to appeal the decision regarding the proposal to terminate for cause. In such cases, CNCS may terminate the VISTA for cause, on the date identified in the decision, and the termination action is final.
(a) Within 10 calendar days of the appropriate State Program Director's issuance of the decision to terminate the VISTA for cause, as set forth in § 2556.420(d), the VISTA may appeal the decision to the appropriate Area Manager. The appeal must be in writing and specify the reasons for the VISTA's disagreement with the decision.
(b) CNCS shall not incur any expenses or travel allowances for the VISTA in connection with the preparation or presentation of the appeal.
(c) The VISTA may have access to records as follows:
(1) The VISTA may review any material in the VISTA's official CNCS file and any relevant CNCS records to the extent permitted by the Freedom of Information Act and the Privacy Act, 5 U.S.C. 552, 552a. Examples of documents that may be withheld include references obtained under pledge of confidentiality, official files of other program participants, and privileged intra-agency documents.
(2) The VISTA may review relevant records in the possession of a sponsor to the extent such documents are disclosable by the sponsor under applicable freedom of information act and privacy laws.
(d) Within 14 calendar days of receipt of any appeal by the VISTA, the Area Manager or equivalent CNCS official shall issue a written appeal determination. The appeal determination shall indicate the reasons for such an appeal determination. The appeal determination shall be final.
(a) Only a VISTA whose early termination from the VISTA program is for cause, and who has answered the proposal to terminate him or her for cause in a timely manner, as set forth in § 2556.420(c), is entitled to appeal the early termination action, as referenced in § 2556.425. A termination for cause is based on a deficiency, or deficiencies, in the performance or conduct of a VISTA.
(b) The following types of early terminations from the VISTA program are not terminations for cause, and are not entitled to appeal under the early termination appeal procedure set forth in §§ 2556.420 and 2556.425:
(1) Resignation from the VISTA program prior to the issuance of a decision to terminate for cause, as set forth in § 2556.420(d);
(2) Early termination from the VISTA program because a VISTA did not secure a suitable reassignment to another project; and
(3) Medical termination from the VISTA program.
42 U.S.C. 4954(d), (e).
(a) From time-to-time, the State Program Director invites sponsors within the state to apply for one or more positions for individuals to serve as summer associates at the sponsor's VISTA project.
(b) Subject to VISTA assistance availability, CNCS approves the establishment of summer associate positions based on the following factors:
(1) The need in the community, as demonstrated by the sponsor, for the performance of project activities by a summer associate(s);
(2) The content and quality of summer associate project plans;
(3) The capacity of the sponsor to implement the summer associate project activities; and
(4) The sponsor's compliance with all applicable parts of the DVSA, VISTA program policy, and the sponsor's Memorandum of Agreement, which incorporates their project application.
Summer associates differ from other VISTAs in the following ways:
(a) Summer associates are not eligible to receive:
(1) Health care through a health benefits program provided by CNCS;
(2) Child care support through a child care program provided by CNCS;
(3) Payment for settling-in expenses; or
(4) Non-competitive eligibility in accordance with 5 CFR 315.605.
(b) Absent extraordinary circumstances, summer associates are not eligible to receive:
(1) Payment for travel expenses incurred for travel to or from the project site to which the summer associate is assigned; or
(2) A baggage allowance for the costs of transporting personal effects to or from the project site to which the summer associate is assigned to serve.
(c) CNCS may discharge a summer associate due to a deficiency, or deficiencies, in conduct or performance. Summer associates are not subject to subpart E of this part, or to the grievance procedures provided to VISTAs set forth in §§ 2556.345 through 2556.365.
42 U.S.C. 4954(b).
(a) At its discretion, CNCS may approve the establishment of a leader position based on the following factors:
(1) The need for a leader in a project of a substantial size and with multiple VISTAs assigned to serve at that project, or the need for leader for multiple projects located within a contiguous geographic region.
(2) The need for a leader to assist with the communication of VISTA policies and administrative procedures to VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.
(3) The need for a leader to assist with the professional development of VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.
(4) The need for a leader to assist with the recruitment and preparation for the arrival of VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.
(5) The capacity of the VISTA supervisor to support and guide the leader.
(b) A sponsor may request, in its project application, that CNCS establish a leader position in its project.
An individual is eligible to apply to serve as a leader if he or she has successfully completed any of the following:
(a) At least one year of service as a VISTA;
(b) At least one full term of service as a full-time AmeriCorps State and National member;
(c) At least one full term of service as a member of the AmeriCorps National Civilian Community Corps (NCCC); or
(d) At least one traditional term of service as a Peace Corps Volunteer.
(a)
(b)
(c)
CNCS reviews the application package for the leader position, considers the recommendation of the sponsor, and approves or disapproves the individual to serve as a leader.
The application process to apply to become a leader, as described in § 2556.610, is separate and distinct from the application process to apply to enroll as a VISTA in the VISTA program:
(a) A leader may receive a living allowance computed at a higher daily rate than other VISTAs, as authorized under section 105(a)(1)(B) of the DVSA.
(b) A leader is subject to all the terms and conditions of service described in § 2556.625.
Though not exhaustive, terms and conditions of service as a leader include:
(a) A leader makes a full-time commitment to serve as a leader, without regard to regular working hours, for a minimum of one year.
(b) To the maximum extent practicable, a leader shall live among and at the economic level of the low-income community served by the project and actively seek opportunities to engage with that low-income community.
(c) A leader aids the communication of VISTA policies and administrative procedures to VISTAs.
(d) A leader assists with the leadership development of VISTAs.
(e) A leader is a resource in the development and delivery of training for VISTAs.
(f) A leader may assist the sponsor with recruitment and preparation for the arrival of VISTAs.
(g) A leader may advise a supervisor on potential problem areas and needs of VISTAs.
(h) A leader aids VISTAs in the development of effective working relationships and understanding of VISTA program concepts.
(i) A leader may aid the supervisor and sponsor in directing or focusing the VISTA project to best address the community's needs.
(j) A leader may serve as a collector of data for performance measures of the project and the VISTAs.
(k) A leader is prohibited from supervising VISTAs. A leader is also prohibited from handling or managing, on behalf of the project, personnel-related matters affecting VISTAs. Personnel-related matters affecting VISTAs must be managed and handled by the project and in coordination with the appropriate CNCS State Office.
42 U.S.C. 4954(a), 5043, and 5055(b).
(a) All VISTAs, including leaders and summer associates, are subject to this subpart.
(b) All employees of VISTA sponsors and subrecipients, whose salaries or other compensation are paid, in whole or in part, with VISTA grant assistance are subject to this subpart.
(c) All VISTA sponsors and subrecipients are subject to this subpart.
For purposes of the regulations in this subpart, “prohibited political activity” means an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.
(a) A VISTA may not use his or her official authority or influence to interfere with or affect the result of an election.
(b) A VISTA may not use his or her official authority or influence to coerce any individual to participate in political activity.
(c) A VISTA may not use his or her official VISTA program title while participating in prohibited political activity.
(d) A VISTA may not participate in prohibited political activities in the following circumstances:
(1) While he or she is on duty;
(2) While he or she is wearing an article of clothing, logo, insignia, or other similar item that identifies CNCS, the VISTA program, or one of CNCS's other national service programs;
(3) While he or she is in any room or building occupied in the discharge of VISTA duties by an individual employed by the sponsor; and
(4) While using a vehicle owned or leased by a sponsor or subrecipient, or while using a privately-owned vehicle in the discharge of VISTA duties.
(a) Provided that paragraph (b) of this section is fully adhered to, a VISTA may:
(1) Express his or her opinion privately and publicly on political subjects;
(2) Be politically active in connection with a question which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance, or any other question or issue of similar character;
(3) Participate in the nonpartisan activities of a civic, community, social, labor, or professional organization, or of a similar organization; and
(4) Participate fully in public affairs, except as prohibited by other Federal law, in a manner which does not compromise his or her efficiency or integrity as a VISTA, or compromise the neutrality, efficiency, or integrity of CNCS or the VISTA program.
(b) A VISTA may participate in political activities set forth in paragraph (a) of this section as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interfere with his or her provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Be a member of a political party or other political group and participate in its activities;
(2) Serve as an officer of a political party or other political group, a member of a national, State, or local committee of a political party, an officer or member of a committee of a political group, or be a candidate for any of these positions;
(3) Attend and participate fully in the business of nominating caucuses of political parties;
(4) Organize or reorganize a political party organization or political group;
(5) Participate in a political convention, rally, or other political gathering; and
(6) Serve as a delegate, alternate, or proxy to a political party convention.
(b) A VISTA may participate in a political organization as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Display pictures, signs, stickers, badges, or buttons associated with political parties, candidates for partisan political office, or partisan political groups, as long as these items are displayed in accordance with the prohibitions set forth in § 2556.710;
(2) Initiate or circulate a nominating petition for a candidate for partisan political office;
(3) Canvass for votes in support of or in opposition to a partisan political candidate or a candidate for political party office;
(4) Endorse or oppose a partisan political candidate or a candidate for political party office in a political advertisement, broadcast, campaign literature, or similar material; and
(5) Address a convention caucus, rally, or similar gathering of a political
(b) A VISTA may participate in a political campaign as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Register and vote in any election;
(2) Act as recorder, watcher, challenger, or similar officer at polling places;
(3) Serve as an election judge or clerk, or in a similar position; and
(4) Drive voters to polling places for a partisan political candidate, partisan political group, or political party.
(5) Participate in voter registration activities.
(b) A VISTA may participate in elections as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Except as provided in paragraph (c) of this section, no VISTA may run for the nomination to, or as a candidate for election to, partisan political office.
(b) In accordance with the prohibitions set forth in § 2556.710, a VISTA may participate in elections as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interference with the provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(c) Provided that paragraphs (a) and (b) of this section are adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Run as an independent candidate in a partisan election in designated U.S. municipalities and political subdivisions as set forth at 5 CFR part 733; and
(2) Run as a candidate in a non-partisan election.
(a) Provided that paragraphs (b) through (d) of this section are fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Make a political contribution to a political party, political group, campaign committee of a candidate for public office in a partisan election;
(2) Attend a political fundraiser; and
(3) Solicit, accept, or receive uncompensated volunteer services for a political campaign from any individual.
(b) A VISTA may participate in fundraising activities as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(c) A VISTA may not knowingly:
(1) Personally solicit, accept, or receive a political contribution from another individual;
(2) Personally solicit political contributions in a speech or keynote address given at a fundraiser;
(3) Allow his or her perceived or actual affiliation with the VISTA program, or his or her official title as a VISTA, to be used in connection with fundraising activities; or
(4) Solicit, accept, or receive uncompensated individual volunteer services from a subordinate, (
(d) Except for VISTAs who reside in municipalities or political subdivisions designated under 5 CFR part 733, no VISTA may accept or receive a political contribution on behalf of an individual who is a candidate for local partisan political office and who represents a political party.
(a) A VISTA may not knowingly solicit or discourage the participation in any political activity of any individual who has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before CNCS or the VISTA program.
(b) A VISTA may not knowingly solicit or discourage the participation of any political activity of any individual who is the subject of, or a participant in, an ongoing audit, investigation, or enforcement action being carried out by or through CNCS or the VISTA program.
A VISTA who is the spouse or family member of either a candidate for partisan political office, candidate for political party office, or candidate for
In accordance with the prohibitions set forth in § 2556.710, VISTAs may participate in lawful demonstrations, political rallies, and other political meetings, so long as such participation is in conformance with all of the following:
(a) Occurs only while on authorized leave or while otherwise off duty;
(b) Does not include attempting to represent, or representing the views of VISTAs or the VISTA program on any public issue;
(c) Could not be reasonably understood by the community as being identified with the VISTA program, the project, or other elements of VISTA service; and
(d) Does not interfere with the discharge of VISTA duties.
(a) No VISTA sponsor or subrecipient shall approve a VISTA to be involved in planning, initiating, participating in, or otherwise aiding or assisting in any demonstration or other political meeting.
(b) If a VISTA sponsor or subrecipient which, subsequent to the receipt of any CNCS financial assistance, including the assignment of VISTAs, approves the participation of a VISTA in a demonstration or other political meeting, shall be subject to procedures related to the suspension or termination of such assistance, as provided in subpart B of this part, §§ 2556.135 through 2556.140.
Violations by a VISTA of any of the prohibitions or restrictions set forth in this subpart may warrant termination for cause, in accordance with proceedings set forth at §§ 2556.420, 2556.425, and 2556.430.
(a) All sponsors and subrecipients are required to:
(1) Understand the restrictions and prohibitions on the political activities of VISTAs, as set forth in this subpart;
(2) Provide training to VISTAs on all applicable restrictions and prohibitions on political activities, as set forth in this subpart, and use training materials that are consistent with these restrictions and prohibitions;
(3) Monitor on a continuing basis the activity of VISTAs for compliance with this subpart; and
(4) Report all violations, or questionable situations, immediately to the appropriate CNCS State Office.
(b) Failure of a sponsor to comply with the requirements of this subpart, or a violation of the requirements contained in this subpart by the sponsor or subrecipient, sponsor or subrecipient's covered employees, agents, or VISTAs, may be deemed to be a material failure to comply with terms or conditions of the VISTA program. In such a case, the sponsor shall be subject to procedures related to the denial or reduction, or suspension or termination, of such assistance, as provided in §§ 2556.125, 2556.130, and 2556.140.
All employees of VISTA sponsors and subrecipients, whose salaries or other compensation are paid, in whole or in part, with VISTA funds are subject to all applicable prohibitions and restrictions described in this subpart in the following circumstances:
(a) Whenever they are engaged in an activity that is supported by CNCS or VISTA funds or assistance; and
(b) Whenever they identify themselves as acting in their capacity as an official of a VISTA project that receives CNCS or VISTA funds or assistance, or could reasonably be perceived by others as acting in such a capacity.
(a) No VISTA sponsor or subrecipient shall assign a VISTA to perform service or engage in activities related to influencing the passage or defeat of legislation or proposals by initiative petition.
(b) No VISTA sponsor or subrecipient shall use any CNCS financial assistance, such as VISTA funds or the services of a VISTA, for any activity related to influencing the passage or defeat of legislation or proposals by initiative petition.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify 3 VHF Omnidirectional Range (VOR) Federal airways (V-140, V-272, and V-440) in the vicinity of Sayre, OK. The FAA is proposing this action due to the scheduled decommissioning of the Sayre, OK (SYO), VOR/Tactical Air Navigation (VORTAC) facility that provides navigation guidance for a portion of the airways listed. This action would enhance the route structure within the National Airspace System.
Comments must be received on or before December 4, 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-2015-3835 and Airspace Docket No. 14-ASW-13 at the beginning of your comments. You may also submit comments through the internet at
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.
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 amend the route structure as required to preserve the safe and efficient flow of air traffic in the vicinity of Sayre, OK.
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-2015-3835 and Airspace Docket No. 14-ASW-13) and be submitted in triplicate to the Docket Management Facility (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-2015-3835 and Airspace Docket No. 14-ASW-13.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified comment closing date 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 comment closing date. 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 in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed
This document proposes to amend 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
The SYO VORTAC facility is scheduled to be decommissioned. With the decommissioning of the SYO VORTAC, the remaining ground-based navigation aid (NAVAID) coverage is insufficient to enable the continuity of the affected airways. The proposed modifications to VOR Federal airways V-140, V-272, and V-440 would result in slightly realigned routes through the Sayre, OK, area by using the Burns Flat, OK (BFV), VORTAC located approximately 22 nautical miles southeast of the SYO VORTAC to replace it. Route segments supported by other NAVAIDs would remain unchanged.
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify VOR Federal airways V-140, V-272, and V-440 in the vicinity of Sayre, OK. These proposed modifications are necessary due to the scheduled decommissioning of the SYO VORTAC. The proposed route modifications are outlined below.
V-140: V-140 extends from the Panhandle, TX (PNH), VORTAC to the Casanova, VA (CSN), VORTAC. The route segment between the PNH VORTAC and Kingfisher, OK (IFI), VORTAC would be realigned to proceed over the BFV VORTAC instead of the SYO VORTAC.
V-272: V-272 extends from the Dalhart, TX (DHT), VORTAC to the Fort Smith, AR (FSM), VORTAC. The route segment between the Borger, TX (BGD), VORTAC and Will Rogers, OK (IRW), VORTAC would be realigned to proceed over the BFV VORTAC instead of the SYO VORTAC.
V-440: V-440 extends from the PNH VORTAC to the IRW VORTAC. The intersecting NAVAID radial information used to describe the BRISC and CARFF fixes would be updated using BFV VORTAC radials instead of SYO VORTAC radials, and the route segment between the BRISC and CARFF fixes would be realigned to proceed over the BFV VORTAC instead of the SYO VORTAC.
All radials in the route descriptions below that do not reflect True (T)/Magnetic (M) degree radial information are unchanged and stated in True degrees.
VOR Federal airways are published in paragraph 6010 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 VOR Federal airways listed in this document would be subsequently published in the Order.
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 subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 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.
From Panhandle, TX; Burns Flat, OK; Kingfisher, OK; INT Kingfisher 072° and Tulsa, OK, 261° radials; Tulsa; Razorback, AR; Harrison, AR; Walnut Ridge, AR; Dyersburg, TN; Nashville, TN; Livingston, TN; London, KY; Hazard, KY; Bluefield, WV; INT Bluefield 071° and Montebello, VA, 250° radials; Montebello; to Casanova, VA.
From Dalhart, TX; Borger, TX; Burns Flat, OK; Will Rogers, OK; INT Will Rogers 113° and McAlester, OK, 286° radials; McAlester; to Fort Smith, AR.
From Panhandle, TX; INT Panhandle 070°(T)/062°(M) and Burns Flat, OK, 288°(T)/280°(M) radials; Burns Flat; INT Burns Flat 103°(T)/095°(M) and Will Rogers, OK, 248°(T)/241°(M) radials; to Will Rogers.
National Aeronautics and Space Administration.
Notice of proposed rulemaking.
The National Aeronautics and Space Administration (NASA) is proposing to amend its regulations that govern International Space Station crewmembers, mementos aboard Orion and Space Launch System (SLS) missions, the authority of the NASA Commander, and removes the Agency's policy on space flight participation and
Submit comments on or before November 19, 2015.
Comments must be identified with RIN 2700-AD98 and may be sent to NASA via the
Craig Salvas at (202)-358-2330,
The Space Shuttle Program formally commenced in 1972. After a total of 135 flights, the last of which occurred in July 2011, the Space Shuttle was officially retired after 30 years of operation. During this period, the fleet and its crews carried out a large and varied number of tasks to meet the goals and objectives of the Nation's space program. These included the launch of large interplanetary probes, the performance of scientific experiments under microgravity conditions, the on-orbit servicing of the Hubble Space Telescope, and the assembly and resupply of the International Space Station. Functions previously performed by the Space Shuttle will now be done by many different spacecraft currently flying or in development, including vehicles owned by both the Government and the private sector.
NASA is currently developing a new human-rated spacecraft, the Orion, and launch system, the Space Launch System (SLS). With the end of the Space Shuttle Program, many sections of this rule are no longer relevant and will be deleted. However, sections which have current or future application will be maintained and updated or amended as required.
Significant elements of Part 1214, in its current form, govern the use and operation of the Space Shuttle and cover a diverse number of areas including requirements for reimbursement for Space Shuttle services to civil U.S. Government and foreign users, the flight of Payload Specialists and Space Flight Participants on Space Shuttle missions, reimbursement terms, and conditions for use of the Spacelab Module. Also covered in Part 1214 are the rules for the NASA Astronaut Candidate Recruitment and Selection Program, the Code of Conduct for the International Space Station Crew, and the Authority of the Space Shuttle Commander.
The intent of these proposed amendments is to repeal those portions of the regulation that, with the ending of the Space Shuttle Program, are no longer relevant. Sections that remain in effect will be amended because they are outdated. Other sections that are applicable to the Orion and SLS will also be amended.
Section 1214 is established under the National Aeronautics and Space Act (Space Act) (51 U.S.C. 20101,
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has been designated as “not significant” under section 3(f) of Executive Order 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
This proposed rule does not contain any information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) requires regulations be reviewed for Federalism effects on the institutional interest of states and local governments, and if the effects are sufficiently substantial, preparation of the Federal assessment is required to assist senior policy makers. The amendments will not have any substantial direct effects on state and local governments within the meaning of the Executive Order. Therefore, no Federalism assessment is required.
Government employees, Government procurement, Security measures, Space transportation and exploration.
For the reason stated in the preamble, NASA is proposing to amend 14 CFR part 1214 as follows:
Pub. L. 111-314, sec. 3, 124 Stat. 3328 (51 U.S.C. 20101,
Pub. L. 111-314, sec. 3, 124 Stat. 3328 (51 U.S.C. 20101,
Pub. L. 111-314, sec. 3, 124 Stat. 3328 (51 U.S.C. 20101,
This subpart establishes policy and procedures for carrying mementos on the NASA missions, with the exception of mementos and personal effects carried onboard the International Space Station (ISS).
(a)
(b)
(a)
(b)
Information on mementos flown on a particular mission will be routinely released by the Associate Administrator of the Office of Communications to the media and to the public upon their request, but only after they have been approved for flight.
(a) Liability. Neither NASA nor the U.S. Government will be liable for the loss or theft of, or damage to, items carried in OFKs or PPKs.
(b) Report of Loss or Theft. Any person who learns that an item contained in an OFK or a PPK is missing shall immediately report the loss to the Johnson Space Center Security Office and the NASA Inspector General.
Any items carried in violation of the requirements of this subpart shall become property of the U.S. Government, subject to applicable Federal laws and regulations, and the violator may be subject to disciplinary action, including being permanently prohibited from use of, or if an individual, from flying aboard a NASA mission.
Pub. L. 111-314, sec. 3, 124 Stat. 3328 (51 U.S.C. 20101,
This subpart establishes the authority of the NASA Commander of a NASA mission, excluding missions related to the ISS and activities licensed under Title 51 U.S.C. Chapter 509, to enforce order and discipline during a mission and to take whatever action in his/her judgment is reasonable and necessary for the protection, safety, and well-being of all personnel and on-board equipment, including the spacecraft and payloads. During the final launch countdown, following crew ingress, the NASA Commander has the authority to enforce order and discipline among all on-board personnel. During emergency situations prior to liftoff, the NASA Commander has the authority to take whatever action in his/her judgment is necessary for the protection or security, safety, and well-being of all personnel on board.
(a) The
(b) A
(c) The
(d) A
(a) During all flight phases, the NASA Commander shall have the absolute authority to take whatever action is in his/her discretion necessary to:
(1) Enhance order and discipline.
(2) Provide for the safety and well-being of all personnel on board.
(3) Provide for the protection of the spacecraft and payloads.
The NASA Commander shall have authority, throughout the mission, to use any reasonable and necessary means, including the use of physical force, to achieve this end.
(b) The authority of the NASA Commander extends to any and all personnel on board the spacecraft including Federal officers and employees and all other persons whether or not they are U.S. nationals.
(c) The authority of the NASA Commander extends to all spaceflight elements, payloads, and activities originating with or defined to be a part of the NASA mission.
(d) The NASA Commander may, when he/she deems such action to be
(a) The NASA
(c) Before each flight, the other flight crewmembers will be designated in the order in which they will assume the authority of the NASA Commander under this subpart in the event that the NASA Commander is not able to carry out his/her duties.
(d) The determinations, if any, that a crewmember in the chain of command is not able to carry out his or her command duties and is, therefore, to be relieved of command, and that another crewmember in the chain of command is to succeed to the authority of the NASA Commander, will be made by the NASA Administrator or his/her designee.
(a) All personnel on board the NASA mission are subject to the authority of the NASA Commander and shall conform to his/her orders and direction as authorized by this subpart.
(b) This regulation is a regulation within the meaning of 18 U.S.C. 799, and whoever willfully violates, attempts to violate, or conspires to violate any provision of this subpart or any order or direction issued under this subpart shall be subject to fines and imprisonment, as specified by law.
Food and Drug Administration, HHS.
Proposed rule; reopening of comment period.
The Food and Drug Administration (FDA or we) is announcing the reopening of the comment period for certain documents associated with the proposed rule to amend FDA's labeling regulations for conventional foods and dietary supplements to provide updated nutrition information on the Nutrition Facts and Supplement Facts labels to assist consumers in maintaining healthy dietary practices. We also are reopening the comment period for a supplemental proposed rule to revise the Nutrition Facts and Supplement Facts labels. We are taking this action due to technical difficulties at the Federal eRulemaking Portal.
Submit either electronic or written comments on the supplemental proposed rule and related documents by October 23, 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.”
• 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
Philip L. Chao, Center for Food Safety and Applied Nutrition (HFS-24), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-2112, email:
In the
More recently, in the
However, on October 13 and 14, 2015, the Federal eRulemaking Portal,
Office of Postsecondary Education, Department of Education.
Intent to establish negotiated rulemaking committee.
We announce our intention to establish a negotiated rulemaking committee to prepare proposed regulations for the Federal Student Aid programs authorized under title IV of the Higher Education Act of 1965, as amended (HEA). The committee will include representatives of organizations or groups with interests that are significantly affected by the topics proposed for negotiations. We request nominations for individual negotiators who represent key stakeholder constituencies for the issues to be negotiated to serve on the committee, and we set a schedule for committee meetings.
We must receive your nominations for negotiators to serve on the committee on or before November 19, 2015. The dates, times, and locations of the committee meetings are set out in the
Please send your nominations for negotiators to Wendy Macias, U.S. Department of Education, 1990 K Street NW., Room 8013, Washington, DC 20006. Telephone: (202) 502-7526 or by email:
For information about the content of this notice, including information about the negotiated rulemaking process or the nomination submission process, contact: Wendy Macias, U.S. Department of Education, 1990 K Street NW., Room 8013, Washington, DC 20006. Telephone: (202) 502-7526 or by email:
For information about negotiated rulemaking in general, see
If you use a telecommunications device for the deaf (TDD) or text telephone (TTY), call the Federal Relay Service (FRS) toll free at 1-800-877-8339.
On August 20, 2015, we published a notice in the
After considering the information received at the regional hearings and the written comments, we have decided to establish a negotiating committee to address for loans made under the William D. Ford Federal Direct Loan (Federal Direct Loan) Program: (1) The procedures to be used for a borrower to establish a defense to repayment; (2) the criteria that the Department will use to identify acts or omissions of an institution that constitute defenses to repayment of Federal Direct Loans, including the creation of a Federal standard; (3) the standards and procedures that the Department will use to determine the liability of the institution for amounts based on borrower defenses; (4) the effect of borrower defenses on institutional capability assessments, and (5) other loan discharges. In addition, the committee may also consider if and how these issues will affect the Federal Family Education Loan (FFEL) Program.
These topics are tentative. Topics may be added or removed as the process continues.
We intend to select negotiators for the committee who represent the interests significantly affected by the topics proposed for negotiations. In so doing, we will follow the requirement in section 492(b)(1) of the HEA that the individuals selected must have demonstrated expertise or experience in the relevant topics proposed for negotiations. We will also select individual negotiators who reflect the diversity among program participants, in accordance with section 492(b)(1) of the HEA. Our goal is to establish a committee that will allow significantly affected parties to be represented while keeping the committee size manageable.
We generally select a primary and alternate negotiator for each constituency represented on the committee. The primary negotiator participates for the purpose of determining consensus. The alternate participates for the purpose of determining consensus in the absence of the primary. Either the primary or the alternate may speak during the negotiations.
The committee may create subgroups on particular topics that may involve individuals who are not members of the committee. Individuals who are not selected as members of the committee will be able to observe the committee meetings, will have access to the individuals representing their constituencies, and may be able to participate in informal working groups on various issues between the meetings.
• Students/borrowers.
• Legal assistance organizations that represent students/borrowers.
• Consumer advocacy organizations.
• Groups representing U.S. military servicemember or veteran Federal loan borrowers.
• Financial aid administrators at postsecondary institutions.
• State attorneys general and other appropriate State officials.
• State higher education executive officers.
• Institutions of higher education eligible to receive Federal assistance under title III, parts A, B, and F, and title V of the HEA, which include Historically Black Colleges and Universities, Hispanic-Serving Institutions, American Indian Tribally Controlled Colleges and Universities, Alaska Native and Native Hawaiian-Serving Institutions, Predominantly Black Institutions, and other institutions with a substantial enrollment of needy students as defined in title III of the HEA.
• Two-year public institutions of higher education.
• Four-year public institutions of higher education.
• Private, nonprofit institutions of higher education.
• Private, for-profit institutions of higher education.
• FFEL Program lenders and loan servicers.
• FFEL Program guaranty agencies and guaranty agency servicers (including collection agencies).
The goal of the committee is to develop proposed regulations that reflect a final consensus of the committee. Consensus means that there is no dissent by any member of the negotiating committee, including the committee member representing the Department. An individual selected as a negotiator will be expected to represent the interests of his or her organization or group and participate in the negotiations in a manner consistent with the goal of developing proposed regulations on which the committee will reach consensus. If consensus is reached, all members of the organization or group represented by a negotiator are bound by the consensus and are prohibited from commenting negatively on the resulting proposed regulations. The Department will not consider any such negative comments on the proposed regulations that are submitted by members of such an organization or group.
• The name of the nominee, the organization or group the nominee represents, and a description of the interests that the nominee represents.
• Evidence of the nominee's expertise or experience in the topics proposed for negotiations.
• Evidence of support from individuals or groups within the constituency that the nominee will represent.
• The nominee's commitment that he or she will actively participate in good faith in the development of the proposed regulations.
• The nominee's contact information, including address, phone number, and email address.
For a better understanding of the negotiated rulemaking process, nominees should review
Nominees will be notified whether or not they have been selected as negotiators as soon as the Department's review process is completed.
The committee will meet for three sessions on the following dates:
Sessions will run from 9 a.m. to 5 p.m.
The January and February committee meetings will be held at the U.S. Department of Education at: 1990 K Street NW., Eighth Floor Conference Center, Washington, DC 20006.
The March committee meetings will be held at: Union Center Plaza (UCP) Learning Center, 830 First Street NE., Lobby Level, Washington, DC 20002.
The meetings are open to the public.
20 U.S.C. 1098a.
Department of Veterans Affairs.
Proposed rule.
This rulemaking proposes to remove the regulatory provision regarding consideration by the Department of Veterans Affairs (VA) of the net worth of a veteran's assets as a factor in determining the veteran's eligibility for lower-cost VA health care. Prior to January 1, 2015, VA considered both the net worth of a veteran's assets and the veteran's annual income when determining a veteran's eligibility. Because of that, certain veterans who would have been eligible for VA health care based on their annual income alone were ineligible for care because the net value of their assets was too high, or they were placed in a less favorable eligibility category. Reporting asset information imposed a significant paperwork burden on veterans, and VA dedicated significant administrative resources to verifying reported information. VA changed its policy to improve access to health care to lower-income veterans and remove the reporting burden from veterans by discontinuing collection of asset information. This rulemaking would amend the regulation to remove the reference to VA's discretionary statutory authority to consider net worth.
Written comments may be submitted through
Kristin J. Cunningham, Director, Business Policy, Chief Business Office, (10NB6), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420; (202) 382-2508. (This is not a toll-free number.)
This rulemaking proposes to amend VA's regulations governing enrollment in the VA health care system by removing the regulatory provision restating VA's discretionary authority to consider the net worth of a veteran's assets when determining eligibility for lower-cost health care.
Pursuant to 38 U.S.C. 1705, VA has established a health care enrollment system with implementing regulations at 38 CFR 17.36. When veterans apply for health care benefits, VA assigns a priority category that reflects the basis for that veteran's eligibility, such as whether the veteran has been rated as having a service-connected disability or would be unable to defray the costs of necessary expenses because of low income. The veteran is placed in the highest priority category possible. These categories are described in § 17.36(b). Priority categories are used by VA to determine which veterans are eligible to enroll in the VA health care system, which VA does on an annual basis, in accordance with § 17.36(c). The priority category is also used to determine the amount of copayments veterans must pay to receive VA medical benefits. Veterans who are not eligible for enrollment in priority categories 1 through 4 but who are unable to defray the expenses of necessary care under 38 U.S.C. 1722(a) are placed in priority category 5. 38 CFR 17.36(b)(5). This rulemaking would affect a regulatory provision related to that category. Veterans are considered to be unable to defray the costs of necessary care if they have a low annual income, qualify for VA pension benefits, or meet other criteria under 38 U.S.C. 1722(a) and 38 CFR 17.47(d). VA has the authority to use net worth asset values to determine whether a veteran is unable to defray the cost of care at 38 U.S.C. 1722(d)(1), but this authority is not mandatory;
In 2013, VA informed the public of its intent to discontinue annual financial assessment reporting by veterans. 78 FR 64065 (Oct. 25, 2013), 78 FR 79564 (Dec. 30, 2013). VA notified the public that it would no longer request annual financial assessments from veterans enrolled in income-based priority categories, and would only request financial assessments for the initial health care enrollment process. Because we received no adverse responses to those notices and for the reasons that follow, as VA announced in March 2015, VA used its discretion under 38 U.S.C. 1722(d)(1) to cease consideration of the net worth of veterans' assets to determine whether they are able to defray the expenses of necessary care and qualify for inclusion in priority category 5, effective January 1, 2015. To avoid potential confusion, this rulemaking would remove the regulatory provision referencing VA's discretionary authority to consider net worth for purposes of priority category 5.
By eliminating consideration of the net worth of a veteran's assets for purposes of health care enrollment, more veterans would qualify for VA health care in a higher priority category, improving access and affordability of health care for many lower-income veterans. VA estimates that in the first year of implementation of this policy, 53,000 veterans would be moved to category 5 from a lower priority category and would be able to make lower copayments for VA care. Over five years, VA expects that 135,000 veterans who previously were ineligible would be able to enroll in the VA health care system because of this change. This change also reduces administrative burdens for veterans and VA. The burden on veterans to supply asset information to VA on an annual basis was considerable. In contrast, the burden is much lower for veterans to provide only an initial report of annual income during the enrollment process and future verification only in those cases where VA identifies a change to the veteran's income that would result in a change to the veteran's priority group status. In past years, VA had expended significant resources on verifying the reported figures because asset values are subjective and difficult to verify. Through established practices with the Internal Revenue Service and Social Security Administration, VA can verify veterans' reported annual income far more efficiently than reported assets. Therefore, this policy has eliminated the significant burden on veterans to report the worth of their assets, and also eliminated the need for VA to use resources to verify that information.
In light of the preceding discussion, we propose to remove § 17.47(d)(5) in its entirety and renumber current § 17.47(d)(6) as § 17.47(d)(5). Current paragraph (d)(5) restates VA's discretionary statutory authority to use the value of a veteran's estate to determine whether he is able to defray the costs of care. By removing the regulatory restatement of VA's discretionary statutory authority to consider a veteran's net worth, VA removes language in the regulation that could be perceived as inconsistent with the policy change, which is favorable to veterans.
The Code of Federal Regulations, as proposed to be revised by this proposed rulemaking, represents the exclusive legal authority on this subject. No contrary rules or procedures would be authorized. All existing or subsequent VA guidance would be read to conform with this rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking.
This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule would directly affect only individuals and would not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care;
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on October 9. 2015, for publication.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Government contracts, Grant programs—health, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Travel and transportation expenses, Veterans.
For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 17 as follows:
38 U.S.C. 501, and as noted in specific sections.
Postal Regulatory Commission.
Notice of proposed rulemaking.
The Commission is noticing a recent Postal Service filing requesting that the Commission initiate an informal rulemaking proceeding to consider a proposed change to analytical principles relating to periodic reports (Proposal Eleven). This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On October 7, 2015, the Postal Service filed a petition pursuant to 39 CFR 3050.11 requesting that the Commission initiate an informal rulemaking proceeding to consider a proposed change in analytical principles relating to periodic reports.
Under Proposal Eleven, beginning Q2 FY2016 (January 1, 2016), the Postal Service seeks to replace the direct expansion estimator for the population of digitally sampled First-Class letter and card mail,
The Postal Service plans to implement the change described in Proposal Eleven on January 1, 2016.
The Commission establishes Docket No. RM2016-1 for consideration of matters raised by the Petition. Additional information concerning the Petition may be accessed via the Commission's Web site at
1. The Commission establishes Docket No. RM2016-1 for consideration of the
2. Comments are due no later than November 24, 2015. Reply comments are due no later than December 7, 2015.
3. Pursuant to 39 U.S.C. 505, the Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in this docket.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve elements of state implementation plan submissions from Michigan regarding state board requirements of section 110 of the Clean Air Act (CAA) for the 2006 fine particulate matter (PM
Comments must be received on or before November 19, 2015.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2014-0657, by one of the following methods:
1.
2.
3.
4.
5.
Please see the direct final rule which is located in the Rules section of this
Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401,
In the Final Rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Albuquerque/Bernalillo County, New Mexico State Implementation Plan for state board composition and conflict of interest provisions. These revisions add administrative updates and clarifying changes to the state board and conflict of interest provisions in the city and county ordinances for the Albuquerque/Bernalillo County Air Quality Control Board. The EPA is proposing to approve these revisions pursuant to sections 110 and 128 of the Clean Air Act (CAA).
Written comments should be received on or before November 18, 2015.
Comments may be mailed to Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
Mr. John Walser, (214) 665-7128,
In the final rules section of this
We are also proposing to approve a ministerial change to the Code of Federal Regulations (CFR) at 40 CFR 52.1620(e). The entry titled “City of Albuquerque request for redesignation” was mistakenly placed in the first table of 40 CFR 52.1620(e) under the heading “EPA Approved city of Albuquerque and Bernalillo County Ordinances for State Board Composition and Conflict of Interest Provisions” and belongs in the second table of 40 CFR 52.1620(e) under the heading “EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP.”
For additional information, see the direct final rule which is located in the rules section of this
Centers for Medicare & Medicaid Services (CMS), HHS.
Request for information; extension of comment period.
This document extends the comment period for the October 1, 2015 document entitled “Request for Information Regarding Implementation of the Merit-based Incentive Payment System, Promotion of Alternative Payment Models, and Incentive Payments for Participation in Eligible Alternative Payment Models” (80 FR 59102, referred to in this document as “the October 1 RFI”). The comment period for the October 1 RFI, which would have ended on November 2, 2015, is extended for an additional 15 days. This document also advises the public and stakeholders of CMS priorities for the information sought in the October 1 RFI, and suggests that commenters may choose to focus their attention and comments accordingly.
The comment period for the October 1, 2015 RFI (80 FR 59102) is extended to November 17, 2015. To be assured consideration, written or electronic comments on the October 1, 2015 RFI must be received at one of the addresses provided below no later than November 17, 2015.
In commenting on the October 1, 2015 RFI, please refer either to file code CMS-3321-NC and comment as indicated in that document (80 FR 59102) or refer to file code CMS-3321-NC2 and comment as provided here. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-9994 in advance to schedule your arrival with one of our staff members.
Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
Molly MacHarris, (410) 786-4461.
Alison Falb, (410) 786-1169.
On October 1, 2015, we published a request for information in the
We have received inquiries from national organizations regarding the 30-day comment period we provided for the October 1 RFI. The organizations stated that they need additional time to respond as a result of the number and depth of questions posed in the October 1 RFI. Since we requested the public to comment on various aspects of MIPS and APMs, we believe that it is important to allow ample time for the public to prepare comments regarding the October 1 RFI. Therefore, we have decided to extend the comment period for an additional 15 days. This document announces the extension of the public comment period to November 17, 2015.
While we continue to welcome comments on all questions asked in the October 1 RFI, we suggest that the public and stakeholders may choose to focus their attention on issues that are a higher priority for CMS. To assist commenters in considering and formulating their comments on the October 1 RFI, we identify the following sections and questions, which we have categorized in descending order of priority for CMS.
• For Section II, Subsection A (The Merit-Based Incentive Program System (MIPS)) of the request for information, each component (sub-subsection) under Subsection A has been prioritized by the following categories, in which all questions listed in the October 1 RFI that are within each component correspond to the specified priority category.
○ Priority Category One:
○ Priority Category Two:
○ Priority Category Three:
• For Section II, Subsection B (Alternative Payment Models) of the October 1 RFI, the following questions have been prioritized.
○ Priority Category:
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
DoD, GSA, and NASA are proposing to revise Standard Forms prescribed by the Federal Acquisition Regulation (FAR) for contracts involving bonds and other financial protections. The revisions are aimed at clarifying liability limitations and expanding the options for organization types.
Interested parties should submit written comments to the Regulatory Secretariat at one of the addresses shown below on or before December 21, 2015 to be considered in the formation of the final rule.
Submit comments in response to FAR Case 2015-025 by any of the following methods:
•
•
Ms. Kathlyn J. Hopkins, Procurement Analyst, at 202-969-7226 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAR Case 2015-025.
DoD, GSA, and NASA are proposing to revise the FAR to clarify liability limitations and to expand the options for organization types on Standard Forms (SFs) 24, 25, 25A, 34, and 35. This case addresses concerns of surety bond producers that may be adversely affected by differing Federal Agency views on the proper type of organization to indicate on these Standard Forms when a business is a limited liability company (LLC), which is an increasingly prevalent form of business in the construction industry. In some cases, companies are being told to leave the “Type of Organization” block blank because there is no good fit; in other cases, they select the closest fit and are challenged on that selection. To address these concerns, this rule proposes to add a box labelled “Other: (Specify)” to the “Type of Organization” block on each of the five forms (SFs 24, 25, 25A, 34, and 35) in order to expand the range of business types to include LLCs and others, as they evolve.
In addition, there have been questions about the appropriate value to report in the “Liability Limit” block on these standard forms (
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD, GSA, and NASA do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act 5 U.S.C. 601,
The reason for this action is to provide more choices for organization types on five Standard Forms and to clarify instructions; the action's objective is to make the forms more reflective of current forms of business in the construction industry. The proposed rule would apply to all entities, both small and other than small, performing as contractors or subcontractors on U.S. Government contracts that require bonds and other financial protections. The Federal Procurement Data System-Next Generation (FPDS-NG) indicates that the U.S. Government awarded 3,495 new construction contracts that required bonds and other financial protections from October 1, 2014 through August 4, 2015. Approximately 78 percent (2,711) of the total awards (3,495) were awarded to small entities (comprised of 1,687 unique small entities). However, the small entities will not be materially affected by this rule, as it simply allows all businesses to choose from a broader array of organization types.
There are no reporting or recordkeeping requirements associated with this rule.
The rule does not duplicate, overlap, or conflict with any other Federal rules.
There were no significant alternatives identified that would meet the objective of the rule.
The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-025), in correspondence.
This rule affects the information collection requirements in the provisions at FAR 28.1 and 28.2; 52.228-1; 52.228-2; 52.228-13, 52.228-15; and 52.228-16, currently approved under OMB Control Number 9000-0045, titled: Bid Guarantees, Performance, and Payments Bonds, in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is negligible, because this rule simply provides additional choices for offerors in characterizing their organization types on SFs 24, 25, 25A, 34, and 35, as well as clarifying what offerors should specify in terms of liability limits.
Government procurement.
Therefore, DoD, GSA, and NASA proposes to amend 48 CFR part 53 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
The following standard forms are prescribed for use for bond and insurance requirements, as specified in part 28 of this chapter:
(a) SF 24 (Rev. (Date)) Bid Bond. (See 28.106-1.) SF 24 is authorized for local reproduction and can be found in the GSA Forms Library at
(b) SF 25 (Rev. (Date)) Performance Bond. (See 28.106-1(b).) SF 25 is authorized for local reproduction and can be found in the GSA Forms Library at
(c) SF 25-A (Rev. (Date)) Payment Bond. (See 28.106-1(c).) SF 25-A is authorized for local reproduction and can be found in the GSA Forms Library at
(d) SF 25-B (Rev. 10/83), Continuation Sheet (For Standard Forms 24, 25, and 25-A). (See 28.106-1(d).) This form can be found in the GSA Forms Library at
(e) SF 28 (Rev. 6/03) Affidavit of Individual Surety. (See 28.106-1(e) and 28.203(b).) SF 28 is authorized for local reproduction and can be found in the GSA Forms Library at
(f) SF 34 (Rev. (Date)), Annual Bid Bond. (See 28.106-1(f).) SF 34 is authorized for local reproduction and can be found in the GSA Forms Library at
(g) SF 35 (Rev. (Date)), Annual Performance Bond. (See 28.106-1.) SF 35 is authorized for local reproduction and can be found in the GSA Forms Library at
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.
Forest Service.
Request for proposals.
The U.S. Forest Service (Forest Service) requests proposals to substantially expand and accelerate wood energy and wood products markets throughout the United States to support forest management needs on National Forest System and other forest lands. The grants and cooperative agreements awarded under this announcement will support the Agricultural Act of 2014 (Pub. L. 113-79), Rural Revitalization Technologies (7 U.S.C. 6601), and the nationwide challenge of disposing of hazardous fuels and other wood residues from the National Forest System and other forest lands in a manner that supports wood energy and wood products markets.
The application deadline is Wednesday, January 13, 2016 at 5:00 p.m. Eastern Time. The Forest Service will hold an informational Pre-Application Webinar on November 10, 2015 at 1:00 p.m. Eastern Standard Time to present this funding opportunity and answer questions. The link is:
Information on application requirements, eligibility, and prerequisites are available at
Please direct questions regarding this announcement to the appropriate Forest Service Regional Biomass Coordinator listed in the table below. If you have questions that a Coordinator is unable to assist you with, please contact Ed Cesa (
An award to a for-profit entity will generate an Internal Revenue Service (IRS) Form 1099 Miscellaneous Income that will be filed with the IRS and provided to the awardee. The Forest Service expresses no opinion on the taxability, if any, of the awarded grant funds.
The Forest Service seeks proposals that significantly stimulate or expand wood energy and wood products markets that support the long-term management of National Forest System and other forest lands.
This Request for Proposals focuses on the following priorities to:
• Reduce hazardous fuels and improve forest health on National Forest System and other forest lands;
• Reduce costs of forest management on all land types; and
• Promote economic and environmental health of communities.
The intent of this category is to stimulate, expand, or support wood energy markets that depend on forest residues or forest byproducts generated from all land types. Preference will be given to projects that make use of wood generated from National Forest System and other forest lands with high wildfire risk.
The most competitive proposals will generate immediate and measurable on-the-ground results or substantially stimulate immediate adoption of wood energy. Proposals incorporating technologies that are not commercially proven will
Grant Category 1 is separated into two main project types:
Expand or support wood energy markets that use wood residues for heating, cooling, or electricity production. Projects can include, but are not limited to the following:
a. Develop a cluster of wood energy projects in a geographic area or specific sector (
b. Evaluate and recommend a commercial, institutional, or industrial sector most suitable for wood energy
c. Conduct a feasibility assessment of several municipalities that would be ideal candidates to construct a district wood energy system for heating, cooling, and electricity.
d. Develop innovative financing or new funding opportunities for wood energy development.
e. Overcome market barriers and stimulate expansion of wood energy in the commercial sector.
f. Establish a Statewide Wood Energy Team that provides technical, financial, and outreach assistance for wood energy projects. Note: Proposals to establish a Statewide Wood Energy Team in the following States will not be considered because a team is already in place: AK, AZ, CA, CO, ID, KY, MA, MI, MN, MT, NH, NM, NY, OR, PA, VA, VT, WA, WI, and WV.
The above list of examples is not exhaustive and merely illustrates the types of projects that can be considered.
Complete engineering designs, cost analyses, permitting, or other requirements that are necessary in the later stages of wood energy project development to secure financing.
Preference will be given to proposals that bundle or address multiple wood energy projects. Projects in early project scoping or planning that need preliminary analyses, pre-feasibility assessments, or other assistance that is typical in the early phases of project development will not be competitive.
The intent of this category is to promote markets that create or expand the demand for non-energy based wood products. Preference will be given to projects that support commercial building markets or other markets that use innovative wood products. Wood energy projects will not be considered under this category because those projects can apply for funding under Grant Category 1. Demonstration projects and applied research will be considered but applicants are strongly encouraged to first consult with their designated Forest Service Regional Biomass Coordinator to determine whether such projects will be competitive.
Projects can include, but are not limited to the following:
a. Develop training or perform outreach about innovative wood construction materials or building designs that incorporate wood into commercial construction (
b. Develop a regional or national strategy to stimulate market demand for wood technology in targeted sectors, especially commercial construction.
c. Establish statewide wood action teams that focus on using wood in support of Forest Service Regional/Area priorities and State Forest Action Plans.
d. Facilitate establishment of new building codes to support expanded use of wood materials.
e. Showcase the quantified environmental and economic benefits of using wood as a green building material in an actual commercial building and the projected benefits achieved if replicated across the United States based on commercial construction market trends.
f. Develop a carbon trading market protocol for wood building materials that accounts for the fossil carbon offset from using wood.
g. Develop manufacturing capacity and markets for wood products that support forest ecosystem restoration.
h. Complete engineering designs, cost analyses, permitting, or other requirements for the final stages of commercial construction projects that use wood as a primary building material.
The above list of examples is not exhaustive and merely illustrates the types of projects that can be considered.
Application information is available at the following two Web sites:
•
•
Applicants should consult with the appropriate Forest Service Regional Biomass Coordinator to develop proposals (see Table 1 of Contacts section). Proposals should align with Forest Service Regional/Area priorities and State Forest Action Plans.
Your Forest Service Region is generally determined by the State where the majority of the proposed work will be conducted. Two Forest Service regions may exist in one State. You can locate your Forest Service region at:
•
•
The applicant must include a DUNS number and register at
Application Parts 1, 2, and 3 can be found at
The Proposal in Application Part 2 must be presented on 8.5 × 11 single-spaced and numbered pages with 1-inch margins using 12-point Times New Roman font. The Proposal cannot exceed 11 pages and must include items #1 through #5 as listed below:
• The project narrative should provide a clear description and anticipated impact of the project, including the following where appropriate: (1) Magnitude of the impact on markets generating renewable energy or creating non-energy wood products; (2) Benefits to National Forest System lands (
• Describe methods and reasoning for selecting areas of focus (
• Specify the number of years requested for the award.
• Describe statement of need, goals, and objectives.
• Describe methods to accomplish goals and objectives.
• Specify projected accomplishments, timeline, and deliverables.
• Discuss communication and outreach activities that create social
• Describe monitoring plan, which must include annual and final reports.
• Discuss all relevant aspects of the project, such as preliminary assessments, resource inventories, and success stories.
• Describe projected impact on wood energy or wood products markets.
• Address proposed expenditures for each key activity or category within the proposed program of work.
• Specify cash and in-kind match, other Federal funds, and staff time that will help accomplish the program of work.
• Describe the fee structure if fee-for-services is planned.
• Include key personnel qualifications, certifications, and relevant experience.
• Describe experience and success of any prior funded Forest Service projects.
• List anticipated project outcomes and accomplishments.
• Describe types of reports, documents, and success stories that will be provided at the end of the project for posting on the Wood Education and Resource Center Web site in addition to mandatory reporting.
Appendices should be well organized with an index so that a reviewer can readily find information of interest. Include only relevant information in the Appendices that will help a review panel better understand and evaluate your project. Below are examples of information to include in the Appendices:
• Feasibility Assessments.
• Woody Biomass Resource Supply Assessment.
• If appropriate, quotes for Professional Engineering Services and rationale for selection of contractor, if already selected.
• Letters of Support from Partners, Individuals, or Organizations, especially those playing a key role or providing matching funds. These letters should display the degree of collaboration occurring between the different entities engaged on the project.
• Miscellaneous, such as schematics, engineering designs, or executive summaries of reports.
• List of all other Federal funds received for this project within the last 3 years (include agency, program name, and dollar amount).
All applications will be screened to ensure basic compliance with the directions in this announcement. Applications not following the directions will be disqualified without appeal. A panel of Federal experts and their designees will perform a thorough technical review of eligible proposals and evaluate the proposals according to the criteria outlined in this announcement. Regional Foresters and the Northeastern Area Director will rank proposals according to regional and area priorities. The panel, Regional Foresters, and Northeastern Area Director will submit their recommendations to the Forest Service national leadership for a final decision.
• Alignment with goals and objectives of this Request for Proposals. (20 points)
• Technical approach, deliverables, and timetable. (30 points)
• Impact on forest management, wood energy markets, or wood products markets. (20 points)
• Qualifications, relevant experience, and roles of team members. (20 points)
• Leveraging of federal funds. (10 points)
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.
Comments regarding this information collection received by November 19, 2015 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20503. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of 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), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Bureau of the Census, Department of Commerce.
Notice of Public Virtual Meeting.
The Bureau of the Census (Census Bureau) is giving notice of a virtual meeting of the Census Scientific Advisory Committee (C-SAC). The Committee will address policy, research, and technical issues relating to the 2020 Census Operational Plan. The C-SAC will meet via teleconference on November 2, 2015. Last-minute changes to the schedule are possible, which could prevent us from giving advance public notice of schedule adjustments. Please visit the Census Advisory Committees Web site for the most current meeting agenda at:
November 2, 2015. The virtual meeting will begin at approximately 1:00 p.m. and end at approximately 3:00 p.m.
The meeting will be held via teleconference. To attend, participants should call the following phone number: 1-877-973-5204. When prompted, please use the following password: 1733620.
Kim Collier, Assistant Division Chief for Stakeholders, Customer Liaison and Marketing Services Office,
The members of the C-SAC are appointed by the Census Bureau's Director. The Committee provides scientific and technical expertise, as appropriate, to address Census Bureau program needs and objectives. The Committee has been established in accordance with the Federal Advisory Committee Act (Title 5, United States Code, Appendix 2, Section 10).
All meetings are open to the public. A brief period will be set aside at the meeting for public comment on November 2. However, individuals with extensive questions or statements must submit them in writing to:
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The data collected on the survey are needed to monitor U.S. trade in services, to analyze the impact of U.S. trade on the U.S. and foreign economies, to compile and improve the U.S. economic accounts, to support U.S. commercial policy on trade in services, to conduct trade promotion, and to improve the ability of U.S. businesses to identify and evaluate market opportunities. The data are used in estimating the financial services component of the U.S. international transactions accounts and national income and product accounts.
The Bureau of Economic Analysis (BEA) is proposing no additions and modifications to the current BE-185 survey. The effort to keep current reporting requirements unchanged is intended to minimize respondent burden while considering the needs of data users. Existing language in the instructions and definitions will be reviewed and adjusted as necessary to clarify survey requirements.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA
Economic Development Administration, Department of Commerce.
Notice of Membership on the Economic Development Administration's Performance Review Board.
In accordance with 5 U.S.C. § 4314(c)(4), the Economic Development Administration (EDA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of EDA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.
The period of appointment for those individuals selected for EDA's Performance Review Board begins on October 20, 2015.
Jennifer Munz, U.S. Department of Commerce, Office of Human Resources Management, Office of Executive Resources, 14th and Constitution Avenue NW., Room 51010, Washington, DC 20230, at (202) 482-4051.
In accordance with 5 U.S.C. 4314(c)(4), the Economic Development Administration (EDA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of EDA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such
The period of appointment for those individuals selected for EDA's Performance Review Board begins on October 20, 2015. The name, position title, and type of appointment of each member of EDA's Performance Review Board are set forth below by organization:
Economics and Statistics Administration, Department of Commerce.
Notice.
Below is a listing of individuals who are eligible to serve on the Performance Review Board (PRB) in accordance with the Economics and Statistics Administration's (ESA) Senior Executive Service and Senior Professional performance management systems:
The purpose of a PRB is to provide fair and impartial review of recommended SES/ST performance ratings, bonuses, and pay adjustments and Presidential Rank Award nominations. The term of each PRB member will expire on December 31, 2017.
Latasha Ellis, Executive Resources Office, 301-763-3727.
First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice; final interpretations.
The First Responder Network Authority (“FirstNet”) publishes this
Effective October 20, 2015.
Eli Veenendaal, First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192; 703-648-4167; or
The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, Title VI, 126 Stat. 256 (codified at 47 U.S.C. 1401
One of FirstNet's initial steps in carrying out this responsibility pursuant to the Act is the issuance of open, transparent, and competitive requests for proposals (“RFPs”) for the purposes of building, operating, and maintaining
As a newly created entity, however, we are also confronted with many complex legal issues of first impression pursuant to the Act that will have a material impact on the RFPs, responsive proposals, and our operations going forward. Generally, the Administrative Procedure Act (“APA”)
Nevertheless, although excluded from these procedural requirements, on March 13, 2015, FirstNet published a public notice entitled “Further Proposed Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012” (hereinafter “the Second Notice”),
The purpose of this
In sum, FirstNet makes the following final interpretations related to topics in the
1. FirstNet interprets 47 U.S.C. 1426(b)(2)(B) as applying to any equipment, including end user devices, used “on” (
2. FirstNet concludes that the Act's goal of “promot[ing] competition in the equipment market” is satisfied by applying the requirements listed in 47 U.S.C. 1426(b)(2)(B)(i) to only those parameters necessary to maintain interoperability (
3. FirstNet concludes that 47 U.S.C. 1426(b)(2)(B) applies regardless of whether the equipment will access or use the NPSBN via a FirstNet-deployed RAN or a State-deployed RAN.
4. FirstNet concludes that the items listed in 47 U.S.C. 1426(c)(1)(A) relating to RFPs are “policies” for purposes of 47 U.S.C. 1426(c)(2) and as the term is generally used in 47 U.S.C. 1426(c).
5. FirstNet concludes that the network policies developed pursuant to 47 U.S.C. 1426(c)(1) apply to all elements of the network, including RANs deployed by individual States pursuant to 47 U.S.C. 1442(e)(3).
6. FirstNet concludes that a required aspect of a State's demonstrations of interoperability to both the Federal Communications Commission (“FCC”) and NTIA under 47 U.S.C. 1442(e)(3), is a commitment to adhering to FirstNet's network policies implemented under 47 U.S.C. 1426(c).
7. FirstNet concludes that it could require compliance with network policies essential to the deployment and interoperable operation of the network for public safety in all States as a condition of entering into a spectrum capacity lease pursuant to 47 U.S.C. 1442(e)(3)(C)(iii)(II).
8. FirstNet interprets 47 U.S.C. 1442(e) to merely require completion of the request for proposal process for the State in question, rather than the nation as a whole, prior to presentation of the plan to the State, assuming that FirstNet can at that stage otherwise meet the requirements for presenting a plan (and its contents) to such State.
9. FirstNet concludes that “completion” of the request for proposal process occurs when FirstNet has obtained sufficient information to present the State plan with the details required pursuant to the Act for such plan, but not necessarily at any final award stage of such a process.
10. FirstNet concludes that the details of the proposed State plan pursuant to 47 U.S.C. 1442(e)(1)(B) should include at least certain outcomes of the RFP process.
11. FirstNet concludes that the FirstNet plan must contain sufficient information to enable NTIA to make comparisons of cost-effectiveness, security, coverage, and quality of service.
12. FirstNet concludes that the decision of the Governor pursuant to 47 U.S.C. 1442(e)(2), for purposes of the Act, is binding on all jurisdictions within such State, and that such a decision must be made for the entire State, and not simply a subset of individual jurisdictions within such State.
13. FirstNet concludes that FirstNet and a State could agree that FirstNet and the State (or sub-State jurisdictions) work together to permit implementation of added RAN coverage, capacity, or other network components beyond the State plan to the extent the interoperability, quality of service, and other goals of the Act are met.
14. FirstNet concludes that the Governor must await notice and presentation of the FirstNet plan prior to making the decision pursuant to 47 U.S.C. 1442(e)(2).
15. FirstNet concludes that a State decision to participate in the FirstNet proposed deployment of the network in such State may be manifested by a State providing either (1) actual notice in writing to FirstNet within the 90-day decision period or (2) no notice within the 90-day period established pursuant to 47 U.S.C. 1442(e)(2).
16. FirstNet interprets the requirement within 47 U.S.C. 1442(e)(3) stating that the notice is to be provided to FirstNet, NTIA, and the FCC as being a contemporaneous (
17. FirstNet concludes that the presentation of a plan to a Governor and his/her decision to either participate in FirstNet's deployment or follow the necessary steps to build a State RAN does not create a contractual relationship between FirstNet and the State.
18. FirstNet concludes that the phrase “complete requests for proposals” means that a State has progressed in such a process to the extent necessary to submit an alternative plan for the construction, maintenance, operation, and improvements of the RAN, that demonstrates the technical and interoperability requirements in accordance with 47 U.S.C. 1442(e)(3)(C)(i).
19. FirstNet concludes that where a State fails to “complete” its request for proposal within the 180-day period pursuant to the Act, the State forfeits its ability to submit an alternative plan pursuant to 47 U.S.C. 1442(e)(3)(C), and the construction, maintenance, operations, and improvements of the RAN within the State shall proceed in accordance with the FirstNet proposed plan for such State.
20. FirstNet concludes that once a plan has been disapproved by the FCC, subject only to the additional review described in 47 U.S.C. 1442(h), the opportunity for a State to conduct its own RAN deployment pursuant to 47 U.S.C. 1442(e)(3) will be forfeited, and FirstNet shall proceed in accordance with its proposed plan for that State.
21. FirstNet concludes, following an FCC-approved alternative State RAN plan, it would have no obligation to construct, operate, maintain, or improve the RAN within such State.
22. FirstNet concludes that if a State, following FCC approval of its alternative plan, is unable or unwilling to implement its alternative plan in accordance with all applicable requirements, then FirstNet may assume, without obligation, RAN responsibilities in the State.
23. FirstNet concludes that the Act provides sufficient flexibility to accommodate many types of customer relationships with public safety entities for States assuming RAN responsibility so long as the relationships meet the interoperability and self-sustainment goals of the Act.
24. FirstNet concludes that the Act does not require that States assuming RAN deployment responsibilities be the customer-facing entity entering into agreements with and charging fees to public safety entities in such States.
25. FirstNet concludes that the Act does not preclude States assuming RAN deployment responsibilities from charging subscription fees to public safety entities if FirstNet and such States agree to such an arrangement in the spectrum capacity lease.
26. FirstNet concludes that the Act provides sufficient flexibility to allow the determination of whether FirstNet or a State plays a customer-facing role to public safety entities in a State assuming RAN responsibilities to be the subject of operational discussions between FirstNet and the State in negotiating the terms of the spectrum capacity lease.
27. FirstNet concludes that it will maintain a flexible approach to such functions and interactions in order to provide the best solutions to each State so long as the agreed upon approach meets the interoperability and self-sustainment goals of the Act.
28. FirstNet concludes, in fulfilling its duties and responsibilities pursuant to the Act, it can and must take into account funding considerations, including the “cost-effectiveness” of an alternative state plan as it may impact the national deployment of the NPSBN, in determining whether and under what terms to enter into a spectrum capacity lease with a State.
29. FirstNet concludes as part of its cost-effectiveness analysis in determining whether and under what terms to enter into a spectrum capacity lease, it (i) must consider the impact of cost-inefficient alternative RAN plans, including inefficient use of scarce spectrum resources, on the NPSBN, and (ii) may require that amounts generated within a State in excess of those required to reasonably sustain the State RAN, be utilized to support the Act's requirement to deploy the NPSBN on a nationwide basis.
30. FirstNet concludes as part of its cost-effectiveness analysis, it must consider State reinvestment and distribution of any user fees assessed to public safety entities or spectrum capacity revenues in determining whether and under what terms to enter into a spectrum capacity lease.
31. FirstNet concludes that the Act requires that States assuming RAN deployment responsibilities and charging user or subscription fees to public safety entities must reinvest such fees into the network.
32. FirstNet concludes it could impose a reinvestment restriction within the terms of a spectrum capacity lease with a State.
33. FirstNet concludes that, in practical effect, the literal statutory differences between a covered leasing agreement and public-private partnership as used in the Act result in no substantive difference between the Act's treatment of FirstNet and States that assume RAN responsibility.
34. FirstNet concludes that any revenues from public-private partnerships, to the extent such arrangements are permitted and different than covered leasing agreements, should be reinvested into the network and that the reinvestment
FirstNet received 70 written comments in response to the
The Act requires FirstNet to “promote competition in the equipment market, including devices for public safety communications, by requiring that equipment for use on the network be: (i) Built to open, non-proprietary, commercially available standards; (ii) capable of being used by any public safety entity and by multiple vendors across all public safety broadband networks operating in the 700 MHz band; and (iii) backward-compatible with existing commercial networks to the extent that such capabilities are necessary and technically and economically reasonable.”
1. FirstNet interprets 47 U.S.C. 1426(b)(2)(B) as applying to any equipment, including end user devices, used “on” (
2. FirstNet concludes that the Act's goal of “promot[ing] competition in the equipment market” is satisfied by applying the requirements listed in 47 U.S.C. 1426(b)(2)(B)(i) to only those parameters necessary to maintain interoperability (
3. FirstNet concludes that 47 U.S.C. 1426(b)(2)(B) applies whether or not the equipment is to access or use the NPSBN via a FirstNet-deployed RAN or a State-deployed RAN.
Summary: The majority of commenters supported FirstNet's proposed interpretations regarding technical requirements relating to equipment for use on the NPSBN, emphasizing, for example, that a contrary interpretation could lead to incompatible equipment, thereby limiting interoperability and resulting in higher-priced end user equipment. In particular, all commenters agreed that 47 U.S.C. 1426(b)(2)(B) applies regardless of whether the equipment will access or use the NPSBN via a FirstNet-deployed RAN or a State-deployed RAN. Interoperability of end-user devices across the entire network was the primary basis for this perspective. As documented below, however, certain commenters disagreed or provided general comments on these interpretations.
Comment #1: Several commenters stated the FirstNet proposed interpretation limiting the applicability of 47 U.S.C. 1426(b)(2)(B) to subscriber equipment (
Response: FirstNet disagrees that its interpretation is not supported by the plain language of the Act or should be applied more broadly to include network components or equipment (
Second, the Act provides a separate standard when discussing equipment constituting the NPSBN versus equipment for use on the network. In particular, the
Finally, this interpretation is supported by the other two elements appearing in 47 U.S.C. 1426(b)(2)(B). For example, 47 U.S.C. 1426(b)(2)(B)(ii) requires that such equipment be “capable of being used by any public safety entity,” which would seem inconsistent with a requirement applicable to complex network routing and other equipment used inside the network. Similarly, 47 U.S.C. 1426(b)(2)(B)(iii) requires such equipment to be “backward-compatible with existing commercial networks” in certain circumstances, which would again make sense in the context of end user devices, but not equipment being used to construct the network. Thus, based on the analysis in the
Comment #2: One commenter stated that it is critical for FirstNet to understand that a paramount concern of the Act is to avoid a replication of the underlying conditions that led to limited participants in the public safety ecosystem, including the use of equipment that is not based on generally accepted commercial standards, but were in fact proprietary technologies that were, in most cases by design, not interoperable with other commercially available alternatives, resulting in limited competition and increased costs.
Response: FirstNet acknowledges the comment and understands the
Comment #3: A few commenters disagreed with the interpretation and suggested further clarity was required around the specific elements that constitute the FirstNet core network and RAN in order to better understand the scope of the proposed interpretation.
Response: FirstNet refers the commenters to the final interpretations to the
Comment #4: One commenter encouraged FirstNet to focus on optimizing options, rather than defining network openness proscriptively. The commenter reasoned that FirstNet should take into consideration the fact that maximizing customer choice and vendor competition on handsets will also require an eye towards RAN equipment open standards to maximize the use of commercially available handsets already in development for commercial cellular networks, and also to ensure maximum interoperability and roaming on commercial cellular networks.
Response: See the response to Comment #2 above.
Comment #5: A few commenters recommended that the application of this provision be performed in full conformance with the recommendation and guidelines on open, non-proprietary, commercially available standards found in the Section 4.1.8 of the Interoperability Board Report.
Response: FirstNet acknowledges the comment and believes its interpretations of 47 U.S.C. 1426(b)(2)(B) are consistent with the relevant Sections of the Interoperability Board Report.
Comment #6: One commenter suggested that characterizing satellite connectivity as equipment “for use on” the network could result in requirements that constrict use of satellite connectivity as a network element, as opposed to an end-user device.
Response: FirstNet acknowledges the comment and will take the suggestion into consideration as it further delineates which specific equipment falls within the network components constituting the core network and RAN.
Comment #7: One commenter recommended that FirstNet should more clearly articulate what it means by “connectivity” so that interested parties can meaningfully evaluate whether the proposed scope of the requirement is reasonable and consistent with the Act's requirements.
Response: FirstNet, as stated in the
Comment #8: One commenter suggested that FirstNet, the National Institute of Standards and Technology (“NIST”), and the FCC should work to ensure that conformity with open, non-proprietary, commercially available standards—such as those developed by the 3rd Generation Partnership Project—is a prerequisite to appearing on the list of certified equipment that the Act instructs to be developed by NIST. The commenter also stated that NIST, FirstNet, and the FCC should work together to ensure rigorous interoperability verification when developing the list.
Response: FirstNet acknowledges the comment and intends to coordinate with NIST and the FCC as required by the Act.
Comment #9: Several commenters stated that the definition of equipment, or its interoperability requirements, should not preclude commercially developed and potentially legally protected materials, such as existing operating systems, from being acceptable platforms for accessing applications and connecting to the NPSBN, but rather, innovation and existing capabilities should be encouraged among the vendor community to reduce device costs and speed to deployment, so long as interoperability among various devices remains.
Response: FirstNet believes its interpretations do not preclude or hinder existing operating systems from being acceptable platforms for accessing applications and connecting to the NPSBN so long as these systems meet the relevant requirements of 47 U.S.C. 1426(b)(2)(B). Specifically, FirstNet concludes that the Act's goal of “promot[ing] competition in the equipment market” is satisfied by applying these requirements to only those parameters necessary to maintain interoperability (
Comment #10: One commenter stated that attributes and features of a particular product should, to the maximum extent possible, be traceable to a set of standard specifications.
Response: See the response to Comment #8 above.
Under the Act, FirstNet is tasked with developing “network policies” in carrying out various obligations related to its mission to ensure the establishment of the NPSBN.
The Act does not expressly state whether only FirstNet, or both FirstNet and a State assuming RAN responsibilities, must follow the network policies required pursuant to 47 U.S.C. 1426(c)(1). Rather, the Act only refers to the “nationwide public safety broadband network” or the “network,” without expressly indicating whether such State RANs are included in the term. Thus, given the provisions of the Act, the Interoperability Board Report, the overall interoperability goals of the Act, and the effect on interoperability of not having the network policies apply to States assuming RAN responsibilities, FirstNet makes the following conclusions relating to the nature and application of the network policies developed pursuant to 47 U.S.C. 1426(c)(1) to both FirstNet and States assuming RAN responsibilities:
1. FirstNet concludes that the items listed in 47 U.S.C. 1426(c)(1)(A) relating to RFPs are “policies” for purposes of 47 U.S.C. 1426(c)(2) and as the term is generally used in 47 U.S.C. 1426(c).
2. FirstNet concludes that the network policies developed pursuant to 47 U.S.C. 1426(c)(1) apply to all elements of the network, including RANs deployed by individual States pursuant to 47 U.S.C. 1442(e)(3).
3. FirstNet concludes that a required aspect of a State's demonstrations of interoperability to both the FCC and NTIA under 47 U.S.C. 1442(e)(3), is a commitment to adhering to FirstNet's network policies implemented under 47 U.S.C. 1426(c).
4. FirstNet concludes that it could require compliance with network policies essential to the deployment and interoperable operation of the network for public safety in all States as a condition of entering into a spectrum capacity lease pursuant to 47 U.S.C. 1442(e)(3)(C)(iii)(II).
Summary: The majority of commenters agreed with FirstNet's interpretation that the topics listed in 47 U.S.C. 1426(c)(1) pertaining to RFPs, while not typically thought of as policies, nonetheless are ” network policies” for purposes of 47 U.S.C. 1426(c)(1).
Comment #11: One commenter disagreed that the RFP-related items
Response: FirstNet acknowledges the comment, but believes its interpretation of this provision as recognized by the commenter, is correct pursuant to the Act.
Summary: The vast majority of commenters also agreed with FirstNet's interpretation that the network policies pursuant to 47 U.S.C. 1426(c) apply regardless of whether FirstNet deploys the RAN or the State takes on that responsibility. These commenters agreed with FirstNet's assessment that universal application of network policies, irrespective of who deploys the RAN, is critical to maintaining interoperability throughout the NPSBN.
Comment #12: A few commenters disagreed with FirstNet's interpretation that all States must comply with FirstNet's network policies, generally arguing that States assuming responsibilities for deploying the RAN are not compelled pursuant to the Act to comply with FirstNet's network policies and thus should have the authority to develop their own policies.
Response: FirstNet disagrees and believes the network policies required to be developed pursuant to 47 U.S.C. 1426(c)(1) to be applicable to the entire NPSBN, including a RAN whether such RAN is deployed by FirstNet or a State.
First, the plain language of the Act suggests that network policies developed pursuant to 47 U.S.C. 1426(c)(1) are intended to apply to all elements of the NPSBN. The Act defines the term “nationwide public safety broadband network” to mean the nationwide, interoperable public safety network described in 47 U.S.C. 1422.
Second, the Act mandates that FirstNet, in carrying out the requirements of the Act, must establish
Third, among other network considerations, the Act describes the process a State seeking to conduct it own RAN deployment must follow in order to receive approval of an alternative RAN plan, a grant for RAN construction, and authority to seek a spectrum capacity lease with FirstNet. These considerations include, among other things, a demonstration of initial and ongoing interoperability with the NPSBN.
In addition, States assuming RAN responsibilities must demonstrate “comparable security, coverage, and quality of service to that of the [NPSBN].”
Comment #13: A few commenters recognized the importance of interoperability, but suggested that States taking on RAN responsibilities should have the flexibility to tailor their policies to their unique circumstances unless it affected interoperability.
Response: FirstNet understands the unique needs of the States and believes the Act, through its extensive consultation requirements and processes regarding network policies developed pursuant to 47 U.S.C. 1426(c)(1), provides a vehicle for States to have substantial opportunities to inform such policies and, as is discussed in the
Comment #14: One commenter advocated that, in order to avoid imposing unnecessary burdens, States assuming RAN responsibilities should be required to comply with only those policies necessary to maintain interoperability.
Response: FirstNet agrees that the primary goal of the Act is to ensure the interoperability of the NPSBN, and, accordingly, paramount among network policies are those that assist in meeting this requirement. However, the Act requires FirstNet to establish policies for other elements critical to establishing the NPSBN, such as those that govern the technical and operational requirements of the network.
Summary: A majority of commenters agreed with FirstNet's related interpretation that adherence to FirstNet's network policies would be an important factor in demonstrating interoperability pursuant to 47 U.S.C. 1442(e)(3) by a State that is seeking to assume RAN responsibilities. Several of these commenters focused on the need for uniformity and consistency in policies to ensure interoperability throughout the lifetime of the network. A few commenters disagreed with this approach, however, suggesting that the interpretation was not supported by the Act.
Comment #15: One commenter contended that the Act neither expressly nor implicitly makes such a pronouncement regarding a State's interoperability demonstration, expressed concern that the interpretation could compromise a State's ability to have control over deployment of its RAN, and proposed instead that a State seeking to assume responsibility for deploying the RAN be required to demonstrate both current and future interoperability capability, but not necessarily be subject to FirstNet's network policies.
Response: See the responses to Comment #1 and Comment #2 above.
Summary: Commenters largely agreed with FirstNet's conclusion that it could require compliance with certain network policies essential to the deployment and interoperable operation of the NPSBN as a condition to entering into a spectrum capacity lease pursuant to 47 U.S.C. 1442(e)(3)(C)(iii)(II). One commenter, for instance, encouraged FirstNet to use all the tools at its disposal to require compliance with network policies to ensure the central goal of the Act of creating a sustainable, interoperable, nationwide network. Another commenter noted that, as the license holder of the spectrum, FirstNet has the right to take measures that ensure the nationwide interoperability of the network. A few commenters disagreed with FirstNet's interpretation that compliance with FirstNet's network policies could be a condition within a State's eventual spectrum capacity lease with FirstNet, challenging FirstNet's authority pursuant to the Act to impose such a condition.
Comment #16: One commenter argued that the only limitations allowed to be placed on access to a spectrum capacity lease are those expressly enumerated in 47 U.S.C. 1442(e)(3)(D), indicating that compliance with FirstNet's network policies are not explicitly included in those requirements.
Response: FirstNet disagrees and notes that as the licensee of the spectrum it must ultimately determine the terms and conditions of a spectrum capacity lease entered into with a State assuming responsibility for RAN deployment.
Comment #17: One commenter contended that requiring compliance with network policies as a condition to obtaining a spectrum capacity lease was a way for FirstNet to gain concessions not required pursuant to the Act from a State seeking to take on responsibilities for deploying the RAN.
Response: FirstNet recognizes the Act strikes a balance between establishing a nationwide network and providing States an opportunity, under certain conditions, to deploy a RAN within their respective State boundaries. One of those conditions explicitly stated within the Act is for the State to obtain a spectrum capacity lease from FirstNet.
Comment #18: A few commenters did not disagree with FirstNet's interpretation, but noted the importance of providing clarity and transparency to the spectrum capacity leasing process.
Response: FirstNet acknowledges the comments and will consider them, as appropriate, in the development of any
The Act requires FirstNet to present its plan for a State to the Governor “[u]pon the completion of the request for proposal process conducted by FirstNet for the construction, operation, maintenance, and improvement of the [NPSBN] . . . .”
FirstNet, in accordance with its analysis in the
1. FirstNet interprets 47 U.S.C. 1442(e) to merely require completion of the RFP process for a particular State, rather than the nation as a whole, prior to presentation of the plan to such State, assuming that FirstNet can at that stage otherwise meet the requirements for presenting a plan (and its contents) to such State.
2. FirstNet concludes that “completion” of the RFP process occurs at such time that FirstNet has obtained sufficient information to present the State plan with the details required pursuant to the Act for such plan, but not necessarily at any final award stage of such a process.
The majority of respondents agreed with FirstNet's interpretation that, so long as FirstNet is able to provide the contents of, and meet the Act's requirements for presenting, a plan to the State, FirstNet need only complete the RFP process for the specific State rather than the nation as a whole.
Several respondents disagreed, however, arguing that the RFP process must be completed nationwide prior to any State plan being presented to the Governor or his designee, while other commenters provided recommendations for implementing these interpretations.
Comment #19: Two commenters were concerned that FirstNet intended to issue individual RFPs for each State, and that such an approach would deprive FirstNet and NTIA of critical information and prevent States from making informed decisions. One commenter stated that whether FirstNet chooses to conduct a single nationwide RFP for the entire network, discrete nationwide RFPs for categories of network procurements, or multiple State or regional RFPs, FirstNet should complete all of its planned RFP processes across the nation before presenting individualized State plans.
Response: FirstNet disagrees that all RFP processes across the nation must be completed prior to presenting a single State plan, and believes that requiring such a process would have the potential to restrict the number and kind of RFPs that FirstNet issues, and could unduly delay the deployment of the NPSBN to the injury of public safety stakeholders and potential partner(s).
The Act provides FirstNet with flexibility in deciding how many and what type of RFPs to develop and issue by not specifying any such required number or type.
Additionally, by requiring FirstNet to wait until all RFP processes are fully complete across the nation prior to issuing a State plan, a single protest regarding a single State or region could substantially delay implementation of the network in many or most States contrary to the Act's emphasis on “speed[ing] deployment of the network.”
Comment #20: Another commenter focused on the potential for diminished spectrum value were FirstNet to issue individual State RFPs and was particularly concerned that there may be a lack of respondents to the RFPs in rural States with less overall spectrum value than those States that have larger, metropolitan areas within their respective borders. This commenter asserted that the only way to meet the Act's requirements to “build out the NPSBN to cover rural America” was to either partner with a large number of rural providers or to have a nationwide partner.
Response: FirstNet acknowledges the comment and will consider it, as appropriate, in the development of any processes or requirements related to RFP(s) regarding the build out of the NPSBN.
Comment #21: An additional commenter was concerned that if complete nationwide data from the RFP process is not available to a State when FirstNet presents the State plan, any alternative plan developed by the State could not be fairly evaluated for its “ `cost-effectiveness' based on a nationwide analysis.”
Response: FirstNet disagrees that full nationwide data is necessary for a State to develop an alternative plan. FirstNet interprets that, in order to present a State plan, FirstNet must have obtained sufficient information to present the State plan with the details required pursuant to the Act for such a plan. The details of the State plan, as discussed in the
Comment #22: Several commenters, while agreeing with FirstNet's legal interpretations that the RFP process is considered complete when FirstNet has enough information to present a State plan for the specific State in question, also suggested that FirstNet try to at least provide State plans at a similar time to members of the surrounding FEMA region due to the close coordination that must take place within FEMA region States.
Response: FirstNet acknowledges this comment and will consider it, as appropriate, as it develops the process for the presentation of State plans.
47 U.S.C. 1442(e)(1) requires that FirstNet provide to the Governor of each State, or a Governor's designee, “details of the proposed plan for build out of the [NPSBN] in such State.” Section 1442 does not include any express guidance as to the “details of the proposed plan” that must be provided.
Other provisions of the Act, however, provide some guidance in this regard and include provisions relating to the outcomes of the RFP process as well as the ability for NTIA to make comparisons of cost-effectiveness, security, coverage, and quality of service. In accordance with the structure and purposes of the Act, FirstNet makes the following interpretations regarding the content of a State plan:
1. FirstNet concludes that the details of the proposed State plan pursuant to 47 U.S.C. 1442(e)(1)(B) should include at least certain outcomes of the RFP process.
2. FirstNet concludes that the FirstNet plan must contain sufficient information to enable NTIA to make comparisons of cost-effectiveness, security, coverage, and quality of service.
The majority of commenters agreed with FirstNet's interpretations regarding the content of a State plan. Many agreed with FirstNet that its interpretations regarding the content of a State plan constituted only the minimum details that FirstNet should provide and that FirstNet may decide to provide more specifics as it deems necessary. A few commenters, while generally agreeing with FirstNet's conclusions, suggested additional details that FirstNet should take into consideration and provide upon the presentation of a State plan.
Comment #23: One commenter suggested that any State plan must also contain information and assumptions regarding the core network, including capacity, accessibility, and interoperability, for a Governor to truly have enough information at hand to make an informed decision.
Response: FirstNet agrees that certain information, as determined by FirstNet, regarding the core network should be included in the State plan in order to enable the FCC and NTIA to effectively evaluate and compare the State's alternative RAN plan should the State decide to deploy its own RAN and not participate in the FirstNet-proposed State plan pursuant to 47 U.S.C. 1442(e)(2).
Comment #24: Several commenters stated that any and all information, data, and analysis that FirstNet uses to develop the State plan must be fully and completely available for a State to completely understand all decisions that went into the State plan and make an informed decision.
Response: FirstNet disagrees and notes that the Act does not require that such information be provided in a State plan.
47 U.S.C. 1442(e)(2), entitled “State decision,” establishes the Governor's role in choosing how the State will proceed regarding FirstNet deployment. FirstNet makes the following interpretations regarding the Governor's role in the State plan process and the ability of FirstNet and the States to implement additional State RAN deployment:
1. FirstNet concludes that the decision of the Governor pursuant to 47 U.S.C. 1442(e)(2), for purposes of the Act, is binding on all jurisdictions within such State, and that such a decision must be made for the entire State in question and not simply a subset of individual jurisdictions.
2. FirstNet concludes that FirstNet and a State could agree that FirstNet and the State (or sub-State jurisdictions) work together to permit implementation of added RAN coverage, capacity, or other network components beyond the State plan to the extent the interoperability, quality of service, and other goals of the Act are met.
Summary: The majority of commenters agreed that the Act specifies the Governor as the State official who makes a final determination regarding FirstNet deployment in the State and agreed that the Governor's decision should be binding on all jurisdictions within the State. Commenters also generally agreed with FirstNet's interpretation that FirstNet and States could work together to potentially expand RAN coverage, capacity, or other network components so long as the goals of the Act were met. A few commenters, as described below, expressed some general concerns about a Governor's authority to make a decision related to RAN deployment within the State.
Comment #25: Several commenters detailed, while agreeing with FirstNet's interpretation that the ultimate decision regarding FirstNet deployment in the State was that of the Governor, that many States may require legislative approval or coordination between political subdivisions or counties and the State before the Governor is able to make such decisions for the State.
Response: FirstNet acknowledges the comment and believes regardless of whether a Governor may need to seek certain approvals prior to making a decision for the State, pursuant to the Act, the final State decision regarding a FirstNet-proposed State plan continues to ultimately rest with the Governor.
Comment #26: One commenter suggested that plans for each State should be developed after appropriate consultation with tribal jurisdictions in order for the plan to be binding on tribal jurisdictions. The commenter stated that in the event of a tribal/State dispute, approval for the State plan should not be delayed for the rest of the State and coverage or level of service for the tribal jurisdiction could be “amended to the FirstNet or Commission approved plan.”
Response: Tribal jurisdictions are expressly included as part of the statutorily mandated consultation process.
Comment #27: One commenter stated that FirstNet wrongly concludes that a Governor's decision would prevent a city or county within the State from deploying its own RAN. The commenter asserts that if a jurisdiction chooses to fund and build its own RAN, it should be allowed to do so and mentions that, regardless, “the jurisdiction would be within its rights to seek licensure and
Response: FirstNet disagrees with the commenter's assertions. 47 U.S.C. 1442(e)(2) clearly states that “the Governor shall choose whether to participate in the deployment of the [NPSBN] as proposed by [FirstNet] or conduct its own deployment of a [RAN] in such State.”
In addition, the Act grants FirstNet the nationwide license for the 700 MHz D block spectrum and existing public safety broadband spectrum
Comment #28: One commenter suggested that, while agreeing with FirstNet's conclusion that it could work with the State to permit State or sub-State implementation of added RAN coverage, capacity, or other network components beyond the FirstNet plan, FirstNet should not enter any agreement on a Statewide or sub-State basis without the concurrence of the State, or otherwise in a manner that would limit or restrict the Governor's discretion and rights with regard to the State decision process pursuant to the Act.
Response: FirstNet agrees with this comment and, as indicated in the
The Act provides that the Governor must make a decision “[n]ot later than 90 days after the date on which the Governor of a State receives notice pursuant to [section 1442(e)(1)].”
Finally, if the Governor decides to assume RAN responsibilities on behalf of the State and create an alternative plan for deployment of the RAN within its borders, the Act provides that “[u]pon making a decision . . . the Governor shall notify [FirstNet], the NTIA, and the [FCC] of such decision.”
After taking into consideration the analysis contained in the
1. FirstNet concludes that the Governor must await notice and presentation of the FirstNet plan prior to making the decision pursuant to 47 U.S.C. 1442(e)(2).
2. FirstNet concludes that a State decision to participate in the FirstNet-proposed deployment of the network in such State may be manifested by a State providing either (1) actual notice in writing to FirstNet within the 90-day decision period or (2) no notice within the 90-day period established pursuant to 47 U.S.C. 1442(e)(2).
3. FirstNet interprets the requirement within 47 U.S.C. 1442(e)(3) stating that the notice is to be provided to FirstNet, NTIA, and the FCC as being an immediate (
The majority of commenters agreed with FirstNet's interpretations regarding the timing and nature of a State's decision. Several commenters affirmed that the Act requires certain findings and comparisons to be made during the process under which a State assumes RAN responsibility and that such a comparison cannot be conducted until the FirstNet plan has been presented.
Some commenters, however, disagreed with FirstNet, stating that a Governor is free to make a decision at any time and should be allowed to make the decision to assume responsibility for the RAN early if the State so chooses, as well as be allowed the full 90 days to inform FirstNet, NTIA, and the FCC of the State's decision regardless of when a decision is actually made within a State. Additionally, some commenters asked that the Governor be allowed time beyond the 90-day limit to make such a decision. Others, while agreeing with FirstNet's legal conclusions, suggested that FirstNet try to provide the States with as much information as possible prior to the official 90-day clock to assist the Governors with their decision. Finally, some commenters disagreed with FirstNet's conclusion that only an affirmative opt-out notice would result in a State not accepting the State plan presented by FirstNet.
Comment #29: Several commenters stated that FirstNet has no authority to instruct a Governor on his or her decision-making process. These commenters stated that FirstNet should not become an obstacle requiring States to wait to make a decision to assume RAN responsibility.
Response: To clarify, FirstNet acknowledges that it has no authority to instruct a Governor on his or her specific decision-making process, but rather only to interpret the requirements with respect to the process for submitting that ultimate decision as provided in the Act.
The Act provides that “[n]ot later than 90 days
For instance, it is logical to conclude that a Governor could wait the full 90 days after he or she receives notice of the State plan before making the decision to assume RAN responsibility and notify the proper parties. Similarly,
Furthermore, it would be counterproductive to notify FirstNet, NTIA, and the FCC of the State's decision earlier than presentation by FirstNet of the State plan as that would necessarily start the 180-day clock regarding submission of an alternative plan without there being any FirstNet proposed plan against which the FCC and NTIA could evaluate and compare the State's alternative plan.
Comment #30: Some commenters suggested that FirstNet should work with States where there are opportunities for early deployment and allow the State to amend their alternative plans at a later stage in the process as needed once the State plan is presented by FirstNet, the goal of which would be to allow the States to move forward with deployment as soon as the State was ready.
Response: The Act explicitly requires a sequential process to be followed prior to any FirstNet network deployment taking place.
The Act does not contemplate any type of retroactive amendment process within section 1442(e)(3) and requires comparisons and evaluations to take place between the FirstNet-proposed State plan and the State's alternative plan that simply cannot occur without the FirstNet proposed State plan first being presented to the Governor as required by the Act. Without a FirstNet plan having been presented, the State's premature decision would not enable the FCC to make the assessments required to approve the State's alternate plan, or if such plan is approved, enable NTIA to review and determine whether to approve an application for grant funds and to seek a spectrum capacity lease from FirstNet.
Comment #31: One commenter stated that FirstNet should make clear that Governors are not prohibited from beginning to develop alternative plans now and that the development of alternative plans in advance could also assist Governors in making informed choices regarding whether to assume RAN responsibility or participate in the FirstNet State plan.
Response: There is no statutory provision preventing States from using their own funds to begin developing alternative plans.
Comment #32: A few commenters asserted that the State must respond in writing with its decision, regardless of the 90-day time limit prior to FirstNet taking any action.
Response: As stated in the
Taking into consideration the Act's emphasis on the need “to speed deployment” of the network for public safety,
Comment #33: Several commenters asked that States be given longer than the 90-day time limit established by the Act due to the complexity of the decision itself and the decision process that many Governors may have to go through prior to making a final determination regarding whether to choose to participate in the FirstNet-proposed State plan or conduct the deployment of the State's own RAN. In addition, some commenters expressed frustration that FirstNet will have several years to decide its approach with the States, whereas the States must provide written notice of its intentions within 90 days.
Response: FirstNet was created by Congress and is bound by the statutory language contained within the Act. The Act explicitly provides for a 90-day period following the presentation of the State plan for a Governor to choose to participate in the State plan as presented by FirstNet or choose to conduct its own deployment of a RAN within the State.
Comment #34: Some commenters suggested that, while FirstNet is unable to provide the Governor with more time following the presentation of the FirstNet-proposed State plan, FirstNet should do everything in its power to provide the States with information that may be contained in the State plan as much in advance of the formal 90-day time clock as possible.
Response: FirstNet acknowledges the comment and plans to continue to coordinate with the States through its ongoing consultation efforts to share details of the proposed State plans as such information comes available as part of the RFP process.
The Act pursuant to 47 U.S.C. 1442(e)(1) requires FirstNet to present a “plan” to the Governor, or to the Governor's designee, of each State. The Governor then must decide whether to participate in the deployment as proposed by FirstNet or to deploy the State's own RAN that interoperates with the NPSBN.
Using the plain language of the Act, a “plan,” as defined by Oxford
Nowhere does the Act use contract terminology, such as “offer,” “execute,” or “acceptance,” in relationship to the FirstNet plan. In fact, the Act speaks only to a Governor's decision to “participate” in the deployment as proposed by FirstNet.
FirstNet concludes that the presentation of a plan to a Governor and his/her decision to either participate in FirstNet's deployment or follow the necessary steps to build a State RAN do not create a contractual relationship between FirstNet and the State.
The majority of commenters agreed with FirstNet's conclusion that the presentation of the State plan and the Governor's decision to (or not to) participate in the plan do not constitute a contractual relationship between the parties. Several commenters expressed their sentiments that any network user fees associated with the network could not be binding on individual public safety entities at the time of the State plan because not all such fees will likely be known at the time a State plan is presented by FirstNet, and therefore a contract could not exist between the parties. Moreover, the vast majority of respondents agreed that it would not be until public safety entities actually subscribe to the NPSBN that contractual relationships would be established between the public safety entities themselves and FirstNet or the State, as applicable.
Comment #35: Several commenters, while agreeing with FirstNet's interpretation that the plan does not constitute a contract, stated that any material alteration of the State plan by FirstNet, such as priority or timing of build-out, should also allow a State to similarly alter its decision that was based on the previous plan.
Response: The Act does not provide for any mechanism whereby a Governor that decides to participate in the FirstNet-proposed State plan pursuant to 47 U.S.C. 1442(e)(2) can then reverse his or her decision for the State and choose to assume RAN responsibility at some unspecified point in the future. Once a Governor is presented with the FirstNet-proposed State plan, he or she then has 90 days with which to make the decision to participate in FirstNet's proposed plan or to choose to conduct its own State RAN deployment.
FirstNet recognizes that after a Governor's decision, changes to the FirstNet State plan could arguably occur due to unforeseen circumstances or even based on further agreements between FirstNet and the impacted State. FirstNet intends to continue to coordinate closely with each State as it plans the deployment in accordance with the State plan to help ensure such plans meet the needs of public safety. It is important to note that as there is no mandate in the Act that public safety purchase services from FirstNet, FirstNet must offer an attractive value proposition to incentivize adoption of the NPSBN by its public safety stakeholders.
Comment #36: One commenter expressed that the Act, specifically 47 U.S.C. 1442(e)(3)(C)-(D), requires that the State demonstrate specific criteria in its alternative plan in order to be approved by the FCC and NTIA and to enter a spectrum capacity lease with FirstNet. Therefore, while the commenter agrees that the FirstNet-proposed State plan does not constitute a contract between the State and FirstNet, the commenter believes that the State should expect certainty regarding these specific criteria for an alternative plan. Without such a guarantee, the commenter asserts that States will not be provided with the information needed to make an appropriate RAN deployment decision.
Response: FirstNet, as discussed in the
Comment #38: Several commenters disagreed that FirstNet's State plan does not form a contract between FirstNet and the State. A few commenters argued that FirstNet's presentation of a State plan to a State constituted an “offer” to the Governor, with “acceptance” of such offer occurring when the Governor chooses to participate in the offered plan. One commenter suggested that FirstNet's State plan in essence creates an “unconscionable contract of adhesion” by not containing what the commenter considered to be “material elements of the contract.” Furthermore, these commenters contended that without the State plan presentation and acceptance being considered a binding contact, the State cannot obtain the necessary certainty with which to make an informed decision pursuant to 47 U.S.C. 1442(e)(2).
Response: FirstNet disagrees with this comment and concludes, as discussed in the
47 U.S.C. 1442(e)(3)(B) requires, not later than 180 days after a Governor provides notice to FirstNet, NTIA, and the FCC pursuant to 47 U.S.C. 1442(e)(3)(A), that the Governor develop and complete RFPs for construction, maintenance, and operation of the RAN within the State. Similar to the requirement that FirstNet must notify the State upon the “completion” of the RFP process,
As stated in the
Accordingly, FirstNet makes the following conclusions regarding the State's development of an alternative plan:
1. FirstNet concludes that the phrase “complete requests for proposals” means that a State has progressed in such a process to the extent necessary to submit an alternative plan for the construction, maintenance, operation, and improvements of the RAN that demonstrates the technical and interoperability requirements in accordance with 47 U.S.C. 1442(e)(3)(C)(i).
2. FirstNet concludes that where a State fails to “complete” its RFP within the 180-day period pursuant to the Act, the State forfeits its ability to submit an alternative plan pursuant to 47 U.S.C. 1442(e)(3)(C), and the construction, maintenance, operations, and improvements of the RAN within the State shall proceed in accordance with the FirstNet proposed State plan for such State.
The majority of respondents agreed with FirstNet's conclusion that, due to the similar nature of the States' responsibility to “complete requests for proposals” and FirstNet's requirement to notify the States upon “completion of the request for proposal process,” States should similarly only need to progress to the point in its RFP process to be able to submit an alternative plan for the construction, maintenance, operation, and improvements of the RAN that also demonstrates the technical and interoperability requirements described in the FCC's evaluation criteria pursuant to section 1442(e)(3)(C)(i). Similarly, the majority of commenters agreed with FirstNet's conclusion that the Act's interest in timely network deployment compels the State and FirstNet to proceed in accordance with FirstNet's proposed State plan if the State is unable to submit an alternative plan within 180 days as required pursuant to section 1442(e)(3)(C)(i).
Several commenters, however, maintained that the 180-day timeline is too short of a period for a State to realistically complete its RFP process and that the State should not have to forfeit its ability to submit an alternative plan if it does not complete the RFP process within the 180 days. Several commenters seemed to suggest that States must be “complete” enough in their RFP process to provide information over and above that which FirstNet had concluded was required within the 180-day timeline.
Comment #39: Numerous commenters expressed their frustration at the short time periods established by the Act, with several suggesting that FirstNet extend the 180-day deadline based on certain factors determined by FirstNet regarding consultation activities.
Response: FirstNet was created by Congress and is bound by the statutory language contained within the Act. The Act explicitly provides for a 180-day period following the Governor's decision to opt-out to “develop and complete requests for proposals for the construction, maintenance, and operation of the [RAN] within the State.”
FirstNet acknowledges the issues regarding timeframes raised in certain of the comments and therefore has concluded that such “completion” required pursuant to section 1442(e)(3)(B) is only required to the extent necessary to be able to submit an alternative plan for the construction, maintenance, operation, and improvements of the RAN that also demonstrates the technical and interoperability requirements in accordance with 47 U.S.C. 1442(e)(3)(C)(i).
Comment #40: Numerous respondents asserted that the State should not be required to forfeit its ability to submit an alternative plan if it fails to submit its alternative plan within the 180-day timeline.
Response: FirstNet disagrees with this statement based on the purpose and language of the Act. Throughout the Act, numerous references express the desire for timely network deployment.
The Act weighs a State's right to conduct its own RAN deployment in the State with public safety's need to expeditiously gain the benefit of interoperable communications across State borders. In doing so, it established a clear process relating to State assumption of RAN deployment. FirstNet does not have the authority to alter this statutory process and must adhere to the express language and intent of the Act to speed deployment of a nationwide broadband network for public safety. In keeping with the language and purpose of the Act, FirstNet concludes that where a State fails to “complete” its RFP in the 180-day period pursuant to the Act, the State forfeits its ability to submit an alternative plan in accordance with section 1442(e)(3)(C), which results in the State proceeding in accordance with the FirstNet-proposed State plan.
Comment #41: One commenter seems to confuse the State's forfeiture of its opportunity to assume RAN responsibilities with the supposition that FirstNet would be, in effect, forcing a State's first responders to subscribe to the NPSBN by proceeding with FirstNet's originally proposed State plan.
Response: FirstNet reiterates that the Act does not mandate public safety use of the NPSBN. Once FirstNet proceeds with the deployment of its proposed State plan, or a State takes on the RAN deployment and operation responsibility, all public safety entities across the country will have the choice whether to subscribe to the NPSBN.
Comment #42: Several commenters maintained that FirstNet must continue to ensure it is providing States with as much information as possible as soon as possible due to the tight timeframes established within the Act.
Response: FirstNet, as previously stated, is committed to continuing its consultation activities and coordinating with the States as it develops and presents the State plans.
Comment #43: One commenter suggested that a State should reasonably be required to sufficiently develop and complete the RFPs during the 180-day period and advance in such process to the extent necessary to not only enable the State to meet the requirements of section 1442(e)(3)(C), but also those of section 1442(e)(3)(D).
Response: FirstNet appreciates the tight timeframes included within the Act and has taken practical steps to help ensure that a State has a reasonable opportunity to proceed with deploying its own RAN in the State. States are not
Under 47 U.S.C. 1442(e)(3)(C)(iii), the FCC's decision to approve a State's alternative plan triggers the State's obligation to apply to NTIA to seek a spectrum capacity lease from FirstNet (while also allowing the State to apply for a grant to assist in the construction of the State's RAN). Several questions with respect to these provisions of the Act are discussed in the
Based on its analysis in the
1. FirstNet concludes that once a plan has been disapproved by the FCC, subject only to the additional review described in 47 U.S.C. 1442(h), the opportunity for a State to conduct its own RAN deployment pursuant to 47 U.S.C. 1442(e) will be forfeited, and FirstNet shall proceed in accordance with its proposed plan for that State.
2. FirstNet concludes, following an FCC-approved alternative State RAN plan, it would have no obligation to construct, operate, maintain, or improve the RAN within such State.
3. FirstNet concludes that if a State, following FCC approval of its alternative plan, is unable or unwilling to implement its alternative plan in accordance with all applicable requirements, then FirstNet may assume, without obligation, RAN responsibilities in the State.
Commenters generally agreed with FirstNet's conclusions regarding the responsibilities of a State and FirstNet following the FCC's decision to approve or disapprove a State's alternative plan. Almost all respondents agreed that if the FCC were to disapprove a State's alternative plan, subject to the judicial review allowed in section 1442(h), the State would proceed according to FirstNet's proposed plan.
Additionally, several commenters stated that it was their belief that FirstNet should provide assurances that it will ensure every State has NPSBN service offerings, whether such State opts-in or fails in its attempt to deploy and operate the RAN. On the other hand, one commenter cautioned FirstNet against adopting interpretations that would allow for the “rescue of opt-out” States without clarifying that such a scenario should not be seen by the States as a “safety net.”
Comment #44: One respondent maintained that the State should not be required to forfeit its ability to conduct its own RAN deployment and proceed with the FirstNet-proposed State plan following an FCC decision to disapprove the State's alternative plan pursuant to section 1442(e)(3)(C)(iv).
Response: FirstNet disagrees with this statement based on the plain language of the Act. Section 1442(e)(3) explicitly states that “[i]f the [FCC] disapproves [a State's alternative plan], the construction, maintenance, operation, and improvements of the network within the State
Comment #45: One commenter expressed that it would be beneficial to have an appeals process following the submission to the FCC, in instances where the State plan was not approved, through which the decision could be referred to an independent third party for adjudication.
Response: Section 1442(h) already specifically designates an appeals process with respect to the FCC's disapproval of an alternative plan, whereby “[t]he United States District Court for the District of Columbia shall have exclusive jurisdiction to review a decision of the [FCC] pursuant to subsection (e)(3)(C)(iv).”
Comment #46: Several commenters asserted that FirstNet's central obligation pursuant to the Act is to ensure the deployment of the NPSBN in every State, and that, even if a State gains all necessary approvals to implement its alternative plan and eventually fails, FirstNet's obligation to deploy the network nationwide is never extinguished and must proceed according to the FirstNet-proposed State plan.
Response: Each Governor is given the option to decide to participate in FirstNet's proposed State plan or to progress through a statutorily-mandated process to assume the obligation for constructing, maintaining, operating, and improving its own State RAN.
Given the timeframes required by the Act to reach the point of the approval of an alternate plan by the FCC, it is critical that thereafter FirstNet and its eventual RFP partner(s) are able to rely on the State decision to proceed with RAN deployment so FirstNet can appropriately plan for the deployment throughout the rest of the nation. FirstNet cannot be in a position to further delay the nationwide availability of the NPSBN due to a single State's inability or unwillingness to deploy the RAN within that State. In addition, the Act does not provide a mechanism requiring FirstNet to assume responsibility for local RAN deployment after a State has elected, and been approved, to do so. Indeed, to the contrary, Congress indicated its clear intent in requiring FirstNet to proceed with its State plan only in the case where a State's alternative plan was disapproved by the FCC. Congress could have just as easily included a requirement that FirstNet proceed with a State plan if a State was unable or unwilling to proceed under its alternative plan. However, we believe Congress created a balance in favor of certainty and speed to deployment, which is consistent with the detailed process and steps Congress implemented in the Act to ensure alternative State plans initially met the necessary criteria for State deployment and operation of the RAN.
Therefore, FirstNet reiterates its conclusion that, following an FCC-approved alternative plan, it would have no obligation to construct, operate, maintain, or improve the RAN within such State, but if the State becomes unable or unwilling to implement its alternative plan in accordance with all applicable requirements, then FirstNet may assume, without obligation, the RAN responsibilities in the State.
The Act does not expressly define which customer-facing roles are assumed by a State or FirstNet with respect to public safety entities in States that have assumed responsibility for RAN construction and operation. Generally speaking, all wireless network services to public safety entities will require technical operation of both the RAN, operated by the State in this case, and the core network, operated by FirstNet. The Act charges FirstNet with ensuring the establishment of the NPSBN, including the deployment of the core network, but provides States an opportunity, subject to certain conditions, to conduct the deployment of a RAN in a State.
1. FirstNet concludes that the Act provides sufficient flexibility to accommodate many types of customer relationships with public safety entities for States assuming RAN responsibility so long as the relationships meet the interoperability and self-sustainment goals of the Act.
2. FirstNet concludes that the Act does not require that States assuming RAN deployment responsibilities be the customer-facing entity entering into agreements with and charging fees to public safety entities in such States.
3. FirstNet concludes that the Act does not preclude States assuming RAN deployment responsibilities from charging subscription fees to public safety entities if FirstNet and such States agree to such an arrangement in the spectrum capacity lease.
4. FirstNet concludes that the Act provides sufficient flexibility to allow the determination of whether FirstNet or a State plays a customer-facing role to public safety entities in a State assuming RAN responsibilities, to be the subject of operational discussions between FirstNet and the State in negotiating the terms of the spectrum capacity lease.
5. FirstNet concludes that it will maintain a flexible approach to such functions and interactions in order to provide the best solutions to each State so long as the agreed upon approach meets the interoperability and self-sustainment goals of the Act.
Summary: All commenters generally agreed with FirstNet's interpretations relating to the nature of customer relationships in States assuming RAN construction and operation. Commenters concurred with the interpretation that by maintaining flexibility in determining whether FirstNet or States will be the customer-facing entity, it allows States to tailor their operations to meet their individual State public safety broadband needs, while still ensuring the achievement of the interoperability and self-sustainment goals of the Act.
FirstNet has number of funding sources, including: (1) Up to $7 billion in cash; (2) user or subscriber fees; (3) fees from excess network capacity leases that allow FirstNet to lease capacity not being used by public safety to commercial entities under covered leasing agreements; and (4) lease fees related to network equipment and infrastructure.
However, States seeking and receiving approval of alternative RAN plans could
Accordingly, FirstNet concludes, based on the language and the intent of the Act, that Congress did not intend to permit alternative RAN plans that inefficiently utilize scarce spectrum resources to hinder the nationwide deployment of the NPSBN by depriving it of needed financial support. FirstNet further concludes that it must thus consider the effect of any such material inefficiencies, among other things, on the NSPBN in determining whether, and under what terms, to enter into a spectrum capacity lease.
Congress's intent in this regard is informed by 47 U.S.C. 1442(e)(3)(D) requiring a State that wishes to assume RAN responsibilities to demonstrate “the cost-effectiveness of the State plan” when applying to NTIA not just for grant funds, but also for spectrum capacity leasing rights from FirstNet, which are necessary for the implementation of a State RAN. Independent of NTIA's determination in assessing such an application, FirstNet, as the licensee of the spectrum and an independent authority within NTIA, must ultimately decide on what terms to enter into a spectrum capacity lease with a State. The conclusions below relate to FirstNet's role and responsibilities in negotiating a spectrum capacity lease with a State seeking to assume responsibilities for deploying its RAN.
1. FirstNet concludes, in fulfilling its duties and responsibilities under the Act, it can and must take into account funding considerations, including the “cost-effectiveness” of an alternative state plan as it may impact the national deployment of the NPSBN, in determining whether and under what terms to enter into a spectrum capacity lease with a State.
2. FirstNet concludes as part of its cost-effectiveness analysis in determining whether and under what terms to enter into a spectrum capacity lease, it (i) must consider the impact of cost-inefficient alternative RAN plans, including inefficient use of scarce spectrum resources, on the NPSBN, and (ii) may require that amounts generated within a State in excess of those required to reasonably sustain the State RAN, be utilized to support the Act's requirement to deploy the NPSBN on a nationwide basis.
3. FirstNet concludes as part of its cost-effectiveness analysis it must consider State reinvestment and distribution of any user fees assessed to public safety entities or spectrum capacity revenues in determining whether and under what terms to enter into a spectrum capacity lease.
Summary: Commenters generally agreed with these interpretations emphasizing, for example, that it would be entirely consistent with the Act for FirstNet to take into account its funding considerations, among other things, and impose conditions on such spectrum capacity leases to ensure that revenue from excess capacity arrangements and subscriber fees will be utilized in a manner that continues to facilitate the deployment of the NSPBN.
Certain commenters either disagreed with, or provided recommendations for, implementing these interpretations, particularly regarding whether and how FirstNet can and must take into account funding considerations, including the “cost-effectiveness” of the State plan, in order to guarantee the viability of a broadband network dedicated to public safety across the nation.
Comment #47: One commenter reasoned that FirstNet's proposed interpretation is unsupported by the Act's plain language, and potentially conflicts with existing federal authority over States.
Response: FirstNet disagrees that the interpretation is unsupported by the plain language of the Act. The Act directs the FCC to reallocate and grant a license to FirstNet for the use of the 700 MHz D block spectrum and existing public safety broadband spectrum.
To assist FirstNet in protecting critical financial resources, the Act requires, among other things, a State seeking to assume RAN responsibilities to demonstrate “the cost-effectiveness of the State plan” when applying to NTIA for spectrum capacity leasing rights from FirstNet, which are necessary for the implementation of a State RAN.
Comment #48: Several commenters reasoned that the proposed interpretation either acts as a tax or assigns additional costs to a State that
Response: FirstNet disagrees that its interpretation acts as a tax or results in any actual or additional costs to a State that assumes deployment for a RAN in the State. Rather, as discussed in the
Comment #49: Several commenters noted generally that the terms of a spectrum capacity lease are vital to preserving the opportunity for a State to choose to conduct its own deployment of a RAN, and accordingly, the terms of the spectrum capacity lease agreement, although negotiated, should be conducted in an open and transparent manner. Such commenters also asserted that the terms should be reasonable and known at the same time FirstNet delivers its State plan in order to maintain a partnership between FirstNet and the States.
Response: FirstNet acknowledges the comments and will consider them, as appropriate, in the development of any processes or requirements related to a spectrum capacity lease.
Comment #50: Three commenters expressed concern that FirstNet would abuse its authority under this interpretation by leveraging its control of the spectrum to demand virtually any concession it wanted during the negotiation of a spectrum capacity lease, thereby creating a set of circumstances in which the opportunity for a State to conduct is own RAN deployment pursuant to the Act is not a meaningful opportunity.
Response: FirstNet recognizes that the Act strikes a balance between establishing a nationwide network and providing States an opportunity, under certain conditions, to maintain and operate the RAN portion of the network in their States. Accordingly, FirstNet intends to act in good faith with each of the States to explore “win-win” solutions with States desiring to assume RAN responsibilities, including in scenarios where potential revenue would materially exceed RAN and related costs in a State consistent with the requirements and intent of the Act.
Comment #51: One commenter, although recognizing FirstNet's responsibility to maximize the build out of a network in all States, disagreed that a State's alternative RAN plan, once approved by the FCC, should be subject to spectrum capacity lease considerations that are outside the geographical area of the State.
Response: The Act expressly charges FirstNet with ensuring the establishment of a
Comment #52: One commenter stated that the benefit of requiring “opt-out” urban States to provide “excess” revenues to FirstNet for rural build out nationwide should not apply to a rural State that may want to take responsibility for its own RAN deployment.
Response: FirstNet's analysis of funding considerations must equally apply to all States that are able to generate value in excess of the reasonable costs of operating and maintaining the RAN when electing to assume RAN responsibility within the State, so as to ensure sufficient resources are available for the national deployment of the NPSBN. However, we acknowledge that likely only a limited number of jurisdictions will generate such excess value, which would be available to help support deployment, for example, in higher cost, rural areas.
Comment #53: One commenter stated it does not support FirstNet's interpretation and proposed that any “cost-effectiveness” evaluation of a State plan must begin and end with the effect on the State and argued that the Governor's obligation is to provide the best possible, most cost-effective, solution for that State's residents.
Response: FirstNet agrees that pursuant to the Act, a State Governor has the right to determine whether it is in the best interest of a State to participate in the State RAN plan as proposed by FirstNet, or instead seek to conduct the deployment of its own RAN within the State. Accordingly, a Governor may choose to independently evaluate whether it is more cost-effective to participate in the State RAN plan as proposed by FirstNet or conduct its own deployment of a RAN in the State. In contrast, FirstNet has an obligation to ensure the establishment of a nationwide network and must take into consideration the interests of all States rather than only a single State. Accordingly, FirstNet, based on the reasoning in the
Comment #54: One commenter recommended that the reinvestment analysis should define more clearly the network to ensure RANs that service both public safety entities and secondary users should be targeted first for reinvestment instead of being limited to a RAN for public safety only.
Response: FirstNet acknowledges this recommendation and will consider it as any applicable decisions are developed on the matter.
Comment #55: One commenter noted that any lease of excess capacity needs to recognize that the amount of such excess may very well vary by State and decrease over time, citing several studies that indicated 20 MHz of spectrum will be needed, and in some very large incidents, may not be totally sufficient for public safety use. Therefore, the commenter suggested that the amount of supplemental funding that can be attained from covered leasing agreements should follow a determination of the spectrum capacity required by public safety instead of having the amount of spectrum available to public safety be determined by the additional funding beyond the $7 billion needed for the network.
Response: FirstNet acknowledges this recommendation and will consider it as any applicable decisions are developed on the matter.
Comment #56: One commenter requested clarification on whether the preliminary interpretation would mean that no excess revenues will ever be allowed to offset, in whole or part, public safety subscriber fees or if all of those revenues will only be reinvested back into the network to maintain or expand infrastructure.
Response: FirstNet's interpretation does not expressly foreclose the potential for excess revenues to offset, in whole or part, public safety user or subscriber fees provided such reinvestment comports with the requirements of 47 U.S.C. 1428(d), 1442(g).
Comment #57: Three commenters, although supporting the goal of ensuring build out in rural areas, requested more
Response: FirstNet acknowledges the comments and will consider them, as appropriate, in the development of any processes or requirements related to a spectrum capacity lease.
Comment #58: One commenter indicated that NTIA, and not FirstNet, has the ultimate decision-making authority over the entry of spectrum capacity leases with States assuming RAN responsibilities. As support, the commenter referenced 47 U.S.C. § 1442(e)(3)(C)(iii), which provides that if the Commission approves a State plan, the State “shall apply to the NTIA to lease spectrum capacity from the First Responder Network Authority.” Accordingly, the Commenter contended that only NTIA has the authority to enter into spectrum capacity leases with opt-out States.
Response: FirstNet disagrees with the commenter and reiterates that independent of NTIA's determination in assessing a spectrum capacity lease application, FirstNet, as the licensee of the spectrum pursuant to section 1421 and an independent authority within NTIA, must ultimately decide on what terms to enter into a spectrum capacity lease with a State, and in doing so, evaluate, for example, the State's demonstration of cost-effectiveness of the State's alternative plan on the national deployment per section 1442(e)(3)(D)(ii). The relevant language regarding spectrum capacity leases for States that assume RAN responsibility can be found at section 1442(e)(3)(C)(iii)(II), which provides that once the FCC approves an alternative State plan, the State “shall
FirstNet has interpreted that the Act provides flexibility for FirstNet and a State assuming RAN responsibilities to reach an agreement regarding who serves as the customer facing entity and ultimately receives such user or subscription fees under the spectrum capacity lease, with respect to the user fees generated from public safety customers in a State. In accordance with the structure and purposes of the Act, which requires that the NSPBN be self-funded, and includes specific provisions requiring reinvestment of revenues in the network, FirstNet makes the following conclusions relating to the use of user or subscription fees assessed and collected by a State assuming responsibility for deploying the RAN:
1. FirstNet concludes that the Act requires that States assuming RAN deployment responsibilities and charging user or subscription fees to public safety entities must reinvest such fees into the network.
2. FirstNet concludes it could impose a reinvestment restriction within the terms of a spectrum capacity lease with a State.
Summary: Commenters generally agreed with the interpretation that user or subscriptions fees must be reinvested in the network, recognizing that to achieve network sustainment, all fees, revenues, etc. would need to be reinvested into the network. The dissenting commenters, as documented below, did not typically disagree that the funds must be reinvested in the network, but rather wanted to limit the reinvestment of the funds solely to RAN construction, operation, and maintenance in the State where the fees were assessed rather than requiring reinvestment to include the nationwide network.
Comment #59: One commenter disagreed with the proposed interpretation that FirstNet could consider or impose a reinvestment restriction as part of a spectrum capacity lease, stating that such a conclusion is not supported by the plain language of the Act.
Response: See the response to Comment #47 discussing the ability of FirstNet to negotiate the specific terms and conditions of a spectrum capacity lease.
Comment #60: One commenter disagreed with the proposed interpretation that a State choosing to conduct its own RAN deployment must pay a part of its subscriber fees to FirstNet, rather than retain and reinvest those funds directly in the State RAN.
Response: FirstNet's interpretations leave flexibility for a State to generate or receive user or subscription fees from public safety customers and reinvest such fees into the RAN in the State. However, the specific arrangement will ultimately depend on many factors, including both a State's proposed reinvestment of such fees and the cost-effectiveness considerations regarding the distribution of such fees that will be evaluated as part of any negotiation between FirstNet and a State seeking to enter into such a spectrum capacity lease. As discussed in the
Comment #61: One commenter suggested the provisions for reinvestment should define more clearly the network to ensure the RAN that services dual purposes (
Response: The RAN, whether deployed by FirstNet or a State, will be capable of being utilized by both public safety entities and secondary users. Thus, any funds reinvested in a State RAN will likely positively impact both public safety and secondary users. However, public safety entities are intended to be the primary users of the network. Therefore, to the extent that a RAN requires special modifications specifically for, or on behalf of public safety entities, such modifications will likely take priority over general investments in the RAN. Nevertheless, FirstNet anticipates gaining a better understanding of these specific needs and priorities as it continues both its ongoing consultation with its various stakeholders as well as part of any negotiation between FirstNet and a State to enter into a spectrum capacity lease.
Comment #62: One commenter disagreed with FirstNet's interpretation of the Act, expressing concern that reinvestments of subscriber fees is a tax on public safety responders and stating that any charges above and beyond what is necessary to maintain and improve a State's RAN should be returned to that State's public safety community in the form of rate reductions, training, and better equipment.
Response: See the responses to Comment #48 and Comment #56 above.
The Act includes certain provisions addressing the reinvestment of covered leasing agreement fees for States assuming RAN deployment opportunities that have both received approval from NTIA and entered into a spectrum capacity lease with FirstNet.
Section 1428(a)(2) authorizes FirstNet to charge lease fees related to covered leasing agreements. Other than such agreements, however, FirstNet is not expressly authorized to enter into other arrangements involving the sale or lease of network capacity. In potential contrast, section 1442(g)(1) precludes States from providing “commercial service to consumers or offer[ing] wholesale leasing capacity of the network within the State
To reconcile the differences in these provisions, FirstNet, in accordance with its analysis in the
1. FirstNet concludes that, in practical effect, the literal statutory differences between a covered leasing agreement and public-private partnership as used in the Act result in no substantive difference between the Act's treatment of FirstNet and States that assume RAN responsibility.
2. FirstNet concludes that any revenues from public-private partnerships, to the extent such arrangements are permitted and different than covered leasing agreements, should be reinvested into the network and that the reinvestment provision of 47 U.S.C. § 1442(g) should be interpreted to require such reinvestment.
Commenters generally supported the interpretation, agreeing that through the provisions of and overall framework and policy goals of the Act, Congress intended that any revenues from public-private partnership, to the extent such arrangements are permitted and different than covered leasing agreements, should be subject to the reinvestment requirements of the Act. However, a few commenters, as discussed below, disagreed with the interpretation.
Comment #63: One commenter suggested the proposed interpretation regarding public-private partnerships is too narrow and will only serve to inhibit creative, customized solutions for RAN build out and maintenance within a State. Specifically, the commenter noted that the Act allows FirstNet to lease spectrum capacity to commercial providers who are free to offer commercial service and to profit from the arrangement, and likewise, the Act should be interpreted to permit opt-out States in connection with selected partners to have this same economic opportunity.
Response: FirstNet disagrees that its interpretation inhibits or limits customized solutions for RAN build out and maintenance within a State. The Act allows both FirstNet and States that have received approval of an alternative plan and entered into a spectrum capacity lease with FirstNet to enter into covered leasing agreements.
Comment #64: One commenter provided a general comment about covered leasing agreements and public-private partnerships, stating that the negotiating entity should seek to maximize the profit it can obtain from the 700 MHz spectrum allotted to public safety by leasing the spectrum capacity
Response: FirstNet agrees that it should evaluate various funding and deployment options in order to help speed deployment and ensure the establishment of a self-sustaining broadband network dedicated to public safety throughout the nation.
Comment #65: One commenter suggested that, although revenue generated from a covered leasing agreement is an important financial contribution to the construction and maintenance of the nationwide network, FirstNet should not allow the promise of secondary leasing agreements to single-handedly drive its strategic decisions.
Response: FirstNet acknowledges the comment and intends to analyze and determine the most efficient and effective way to utilize its various funding streams to ensure the deployment and operation of a nationwide broadband network for public safety.
Comment #66: One commenter suggested that State law, not FirstNet, should determine the ability of an opt-out State to profit from public-private partnerships or covered leasing agreements.
Response: The Act authorizes States to enter into covered leasing agreements with secondary users through public-private arrangements and establishes the parameters of those arrangements.
First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice; final interpretations.
The First Responder Network Authority (“FirstNet”) publishes this
Effective October 20, 2015.
Eli Veenendaal, First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192; 703-648-4167; or
The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, Title VI, 126 Stat. 256 (codified at 47 U.S.C. 1401
One of FirstNet's initial steps in carrying out this responsibility under the Act is the issuance of open, transparent, and competitive requests for proposals (“RFPs”) for the purposes of building, operating, and maintaining the network. We have sought—and will continue to seek—public comments on many technical and economic aspects of these RFPs through traditional procurement processes, including requests for information (“RFIs”) and potential draft RFPs and Special Notices, prior to issuance of RFPs.
As a newly created entity, however, we are also confronted with many complex legal issues of first impression under the Act that will have a material impact on the RFPs, responsive proposals, and our operations going forward. Generally, the Administrative Procedure Act (“APA”)
Nevertheless, although exempted from these procedural requirements, on September 24, 2014, FirstNet published a public notice entitled “Proposed Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012” (hereinafter “the
The purpose of this
1. FirstNet defines the core network in accordance with 47 U.S.C. 1422(b) of the Act, relevant sections of the Interoperability Board Report, and commercial standards, as including, without limitation, the standard Evolved Packet Core elements under the 3rd Generation Partnership Project (“3GPP”) standards (including the Serving and Packet Data Network Gateways, Mobility Management Entity, Home Subscriber Server, and the Policy and Charging Rules Function), device services, location services, billing functions, and all other network elements and functions other than the radio access network.
2. FirstNet defines the radio access network in accordance with 47 U.S.C. 1422(b) of the Act, commercial standards, and the relevant sections of the Interoperability Board Report, as consisting of the standard E-UTRAN elements (
3. FirstNet concludes that a State choosing to conduct its own deployment of a radio access network under 47 U.S.C. 1442(e) must use the FirstNet core network to provide public safety services within the State.
4. FirstNet defines a “secondary user” as any user that seeks access to or use of the NPSBN for non-public safety services.
5. The definition of “consumers” as used in 47 U.S.C. 1432 does not include:
a. any public safety entity as defined in the Act;
b. States when seeking access to or use of the core network, equipment, or infrastructure; or
c. entities when seeking access to or use of equipment or infrastructure.
6. The language of the Act under 47 U.S.C. 1432 prohibiting FirstNet from directly serving “consumers” does not limit potential types of public safety entities that may use or access the NPSBN for commercial telecommunications or information services.
7. The Act under 47 U.S.C. 1432 does not prohibit or act as a limit on secondary users with which FirstNet may enter into a covered leasing agreement.
8. The Act under 47 U.S.C. 1432 does not limit the pool of secondary users that may gain access to or use of the network on a secondary basis.
9. FirstNet, to the extent it utilizes the FAR, concludes that complying with the FAR satisfies the open, transparent, and competitive requirements of 47 U.S.C. 1426(b)(1)(B).
10. FirstNet concludes that it may make non-material changes or additions/subtractions to the minimal technical requirements developed by the Interoperability Board, including as necessary to accommodate advancements in technology as required by the Act.
11. FirstNet defines “rural,” for the purposes of the Act, as having the same meaning as “rural area” in Section 601(b)(3) of the Rural Electrification Act of 1936, as amended (“Rural Electrification Act”). Section 601(b)(3) of the Rural Electrification Act provides that “[t]he term `rural area' means any area other than—(i) an area described in clause (i) or (ii) of Section 1991(a)(13)(A) of this title [section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act]; and (ii) a city, town, or incorporated area that has a population of greater than 20,000 inhabitants.” In turn, the relevant portion of Section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act explains that the “terms `rural' and `rural area' mean any area other than—(i) a city or town that has a population of greater than 50,000 inhabitants; and (ii) any urbanized area contiguous and adjacent to a city or town described in clause (i).” Thus, as defined herein, the term “rural” means any area that is
• A city, town, or incorporated area that has a population of greater than 20,000 inhabitants
• any urbanized area contiguous and adjacent to a city or town that has a population of greater than 50,000 inhabitants
12. FirstNet concludes that a lower boundary (
13. FirstNet interprets that 47 U.S.C. 1426(b)(1)(B) is intended to require FirstNet to encourage, through its requests, that responsive
14. FirstNet interprets 47 U.S.C. 1426(b)(3) as requiring FirstNet to include in its RFPs that such proposals leverage partnerships with commercial mobile providers where economically desirable.
15. FirstNet concludes that factors other than, or in addition to, cost may be utilized in assessing whether existing infrastructure is “economically desirable,” including:
a. infrastructure type/characteristics
b. security (physical, network, cyber, etc.)
c. suitability/viability (ability to readily use, upgrade, and maintain)
d. readiness for reuse (
e. scope of use (
f. availability/accessibility (time/obstacles to acquiring access/use)
g. any use restrictions (
h. relationships with infrastructure owners/managers (
i. available alternatives in the area
16. FirstNet interprets each of the fees authorized by the Act, including user or subscription fees authorized by 47 U.S.C. 1428(a)(1), covered leasing agreement fees authorized by 47 U.S.C. 1428(a)(2), lease fees related to network equipment and infrastructure authorized by 47 U.S.C. 1428(a)(3), and the fee for State use of elements of the core network authorized by 47 U.S.C. 1442(f), as distinct and separate from each other and may be assessed individually or cumulatively, as applicable.
17. FirstNet concludes it may charge a user or subscription fee under 47 U.S.C. 1428(a)(1) to any user that seeks access to or use of the NPSBN.
18. FirstNet concludes that the fees assessed on States assuming RAN responsibilities for use of the core network authorized by 47 U.S.C. 1442(f)
19. FirstNet concludes that a covered leasing agreement under 47 U.S.C. 1428(a)(2) does not require a secondary user to “construct, manage, and operate” the entire FirstNet network, either from a coverage perspective or exclusively within a specific location.
20. FirstNet concludes that multiple covered leasing agreement lessees could coexist and be permitted access to excess network capacity in a particular geographic area.
21. FirstNet interprets that a covered leasing agreement lessee satisfies the definition under 47 U.S.C. 1428(a)(2) so long as the lessee does more than a nominal amount of constructing, managing, or operating the network.
22. FirstNet concludes that an entity entering into a covered leasing agreement under 47 U.S.C. 1428(a)(2) is not required to perform all three functions of constructing, managing, and operating a portion of the network, so long as one of the three is performed as part of the covered leasing agreement.
23. FirstNet interprets the reference to “network capacity” in the definition of covered leasing agreement under 47 U.S.C. 1428(a)(2)(B)(i) as a generic statement referring to the combination of spectrum and network elements, as defined by the Act, and including the core network as well as the radio access network of either FirstNet alone or that of the secondary user under a covered leasing agreement, whereby the core and radio access network are used for serving both FirstNet public safety entities and the secondary user's commercial customers.
24. FirstNet interprets the term “secondary basis” under 47 U.S.C. 1428(a)(2)(B)(i) to mean that network capacity will be available to the secondary user unless it is needed for public safety entities as defined in the Act.
25. FirstNet interprets the phrase “spectrum allocated to such entity” found in 47 U.S. § 1428(a)(2)(B)(ii) as allowing all or a portion of the spectrum licensed to FirstNet by the Federal Communications Commission (“FCC”) under call sign “WQQE234” to be allocated for use on a secondary basis under a covered leasing agreement.
26. FirstNet concludes that the reference to “dark fiber” in 47 U.S.C. 1428(a)(2)(B)(ii) cannot literally be interpreted as such, and the reference should be interpreted to allow the covered leasing agreement lessee to transport such traffic on otherwise previously dark fiber facilities.
27. FirstNet interprets 47 U.S.C. 1428(a)(3) as being limited to the imposition of a fee for the use of static or isolated equipment or infrastructure, such as antennas or towers, rather than for use of FirstNet spectrum or access to network capacity.
28. FirstNet interprets the phrase “constructed or otherwise owned by [FirstNet]” under 47 U.S.C. 1428(a)(3) as meaning that FirstNet ordered or required the construction of such equipment or infrastructure, paid for such construction, simply owns such equipment, or does not own but, through a contract has rights to sublease access to, or use of, such equipment or infrastructure.
FirstNet received 63 written comments to the
The Act requires FirstNet to “ensure the establishment of a nationwide, interoperable public safety broadband network” that is “based on a single national network architecture.”
In the
(1) FirstNet defines the core network in accordance with 47 U.S.C. 1422(b) of the Act, relevant sections of the Interoperability Board Report, and commercial standards, as including, without limitation, the standard Evolved Packet Core elements under the 3GPP standards (including the Serving and Packet Data Network Gateways, Mobility Management Entity, Home Subscriber Server, and the Policy and Charging Rules Function), device services, location services, billing functions, and all other network elements and functions other than the radio access network.
(2) FirstNet defines the radio access network in accordance with 47 U.S.C. 1422(b) of the Act, commercial standards, and the relevant sections of the Interoperability Board Report, as consisting of the standard E-UTRAN elements (
Summary: The majority of commenters agreed with FirstNet's proposed definitions of “core network” and “radio access network” and supported FirstNet considering
Comment #1: A few commenters suggested that FirstNet simply use the definitions of the terms “core network” and “radio access network” that are provided in the statute. For example, one commenter recommended FirstNet use its wide discretion to consider other interpretations as it carries out its responsibilities to implement these network components and not use the Interoperability Board Report to help derive any legal interpretations of the Act.
Response: FirstNet agrees that the Act provides it with broad discretion to carry out its mission. In view of that discretion, FirstNet has determined that it is important to provide additional clarity around certain delineation points between the core network and RAN as defined in the Act. These delineation points become especially important in light of the provisions of 47 U.S.C. 1442(e) that allow a State the opportunity, under certain conditions, to conduct the deployment of a RAN within that State and require that State to pay a fee for use of elements of the core network. In response to the specific example, the Act commissioned the development of the Interoperability Board Report to provide recommended technical requirements to ensure a nationwide level of interoperability for the NPSBN.
Comment #2: One commenter suggested the proposed definition of the core network is too expansive and recommended that FirstNet remove the language “device services” and “all other network elements and functions other than the radio access network” from its proposed definition of the core network.
Response: FirstNet disagrees that the proposed definition of core network is too expansive and believes its proposed interpretation, including the language “device services” and “all other network elements and functions other than the radio access network,” is consistent with both the intent of the Act as well as commercially accepted standards for elements generally comprising a core network. Additionally, FirstNet's inclusion of these terms and phrases in its interpretation assist in providing clarity relating to the definitions of core network and RAN that are critical to establishing the NPSBN and providing the scope of responsibility a State will assume should it decide to conduct its own RAN deployment. In delivering a plan to a Governor for a determination of whether to assume responsibilities for RAN construction, FirstNet must delineate between what elements of the network in the proposed plan comprise the core network versus the elements that comprise the RAN. Accordingly, an understanding of the elements that make up the core network and RAN are critical for a Governor to make an effective determination about whether the State should have FirstNet conduct the RAN deployment or seek to conduct its own RAN deployment.
Comment #3: One commenter expressed concern that the proposed definitions conflate issues of policy and technology and suggested FirstNet avoid rigid definitions of “core network” or “radio access network” and align their technical and business development efforts with standards that evolve with the long term evolution (“LTE”) broadband network.
Response: FirstNet acknowledges the comment, but believes its proposed definitions of core network and RAN provide additional certainty that is necessary in order to build, operate, and maintain the NPSBN, while, at the same time, preserving, as contemplated by the Act, the necessary flexibility to take into account new and evolving technological advancements. For example, FirstNet's interpretations of both the core network and RAN are inclusive of the language of 47 U.S.C. 1422(b) that specifically states the national architecture must “
Comment #4: Several commenters, although not disagreeing with the proposed definitions, expressed concerns that many of the key elements of the network were either not referenced or did not meet the criteria described in the proposed core network and radio access network definitions. To illustrate this point, multiple commenters reasoned that backhaul transport connecting the radio access network with the core network or the backhaul connecting the core network with geographically distributed databases and application servers, which are critical components of network integration, need to be addressed in the definitions.
Response: FirstNet acknowledges the comments and has modified its interpretation of the “core network” to include the Mobility Management Entity within the Evolved Packet Core elements under the 3GPP standards and its interpretation of “radio access network” to include backhaul to FirstNet designated consolidation points. To the extent additional clarity is necessary to provide, for example, more specific demarcation points or the services and facilities that will be provided by the various network elements, FirstNet intends to address such matters, as appropriate, in the development of relevant network policies.
As discussed above, the Act charges FirstNet with the duty to “ensure the establishment of a nationwide, interoperable public safety broadband network . . . based on a single, national network architecture” and defines the architecture of the network as initially consisting of a “core network” and a “radio access network.”
As analyzed in the
FirstNet concludes that a State choosing to conduct its own deployment of a radio access network under 47 U.S.C. 1442(e) must use the FirstNet core network to provide public safety services within the State.
Summary: The majority of commenters agreed with FirstNet's proposed interpretation that a State choosing to conduct its own deployment of a radio access network must use the FirstNet core network to provide services to public safety entities.
Comment #5: One commenter did not support FirstNet's preliminary conclusion, asserting that direct connectivity between the core network and the RAN is excluded from FirstNet's definitions and that such network element should be explicitly identified and included either in the definition of core network or radio access network.
Response: FirstNet acknowledges the comment and notes that, as detailed above, it has clarified the definition of RAN to include backhaul to FirstNet consolidation points.
Comment #6: One commenter agreed with the interpretation, but suggested FirstNet should remain open to the concept of a local “back-up” core network, particularly for States or localities with a high population density, with this “back-up” core network being designed and purposed to protect against a total loss of connectivity to the FirstNet nationwide core network.
Response: The Act requires FirstNet to establish a network with adequate hardening, security, reliability, and resiliency requirements, including by addressing special considerations for areas and regions with unique homeland security or national security needs.
The Act in 47 U.S.C. 1428(a)(1) authorizes FirstNet to charge “user or subscription” fees to a “secondary user . . . that seeks access to or use of the [NPSBN].” Additionally, under 47 U.S.C. 1428(a)(2), FirstNet may enter into a covered leasing agreement with a “secondary user” that permits “access to network capacity on a secondary basis for non-public safety purposes.”
FirstNet defines a “secondary user” as any user that seeks access to or use of the NPSBN for non-public safety services.
Summary: The majority of commenters agreed with the interpretation of a “secondary user” as a user that accesses network capacity on a secondary basis for non-public safety services. One such commenter noted that while secondary users are not public safety entities, they are important to the financial sustainability of the network. Similarly, another commenter remarked that such non-public safety secondary users are necessary to implement a sophisticated and expansive network.
Comment #7: One commenter expressed concern that FirstNet's proposed definition, as formulated, could be misconstrued and sought to clarify that “secondary user” captures those using the NPSBN for services that are not related to public safety.
Response: FirstNet has attempted to clearly state in its final definition of “secondary user” (identified above) that such term refers to those users who access the NPSBN
Comment #8: One commenter expressed concern not about FirstNet's definition of “secondary user,” but about the potential for secondary users to adversely impact the performance of the NPSBN at the expense of public safety.
Response: FirstNet is committed to ensuring the establishment of a network that meets the needs of public safety and believes that the 20 MHz of available spectrum along with the expected priority/preemption capabilities of the network will allow secondary users to access the NPSBN without negatively impacting public safety's use of the NPSBN.
Comment #9: One commenter asserted that any user of the NPSBN that is not a “public safety entity” should be considered a “consumer” rather than a “secondary user.” These “consumers” would use the network on a secondary basis and yield to the primary user public safety entities.
Response: While FirstNet certainly agrees with the general concept of public safety entities being the primary users of the NPSBN, we do not agree that the term “consumer” (which is also undefined in the Act) encompasses all other such users of the network on a secondary basis. First, the Act explicitly uses the term “secondary user” when referring to those entities or individuals that access or use the network “on a secondary basis for non-public safety services.”
The Act in 47 U.S.C. 1432(a) specifies that FirstNet “shall not offer, provide, or market commercial telecommunications or information services directly to consumers.” The Act does not define
(1) The definition of “consumers” as used in 47 U.S.C. 1432 does not include:
a. Any public safety entity as defined in the Act;
b. States when seeking access to or use of the core network, equipment, or infrastructure; or
c. entities when seeking access to or use of equipment and infrastructure.
(2) The language of the Act under 47 U.S.C. 1432 prohibiting FirstNet from directly serving “consumers” does not limit potential types of public safety entities that may use or access the NPSBN for commercial telecommunications or information services.
(3) The Act under 47 U.S.C. 1432 does not prohibit or act as a limit on secondary users with which FirstNet may enter into a covered leasing agreement.
(4) The Act under 47 U.S.C. 1432 does not limit the pool of secondary users that may gain access to or use of the network on a secondary basis.
Summary: The vast majority of commenters supported FirstNet's conclusions that the prohibition in 47 U.S.C. 1432 on FirstNet offering, providing, or marketing commercial telecommunications or information services to consumers does not apply to public safety entities, secondary users, States seeking access to or use of the FirstNet core network, or entities or States seeking access to or use of network equipment and infrastructure. These commenters agreed that the intent of this provision, whether explicit or implicit, is to exclude these entities from the definition of consumer.
Comment #10: One commenter, while not disagreeing with FirstNet's conclusions, expressed concern regarding the potential for network capacity to become saturated from non-public safety use.
Response: As noted above, FirstNet is committed to ensuring the establishment of a network that meets the needs of public safety and believes that the 20 MHz of available spectrum along with the expected priority/preemption capabilities of the network will allow secondary users to access the NPSBN without negatively impacting public safety's use of the NPSBN.
The Act in 47 U.S.C. 1426(b)(1)(B) requires FirstNet to issue “open, transparent, and competitive” RFPs. The procedural requirements for issuing such RFPs to meet the “open, transparent, and competitive” standard, however, are not defined in the Act. The Federal Acquisition Regulation (“FAR”), codified in 48 CFR parts 1-99, is the primary regulation used by federal executive agencies in their acquisition of supplies and services with appropriated funds. Thus, FirstNet makes the following conclusion with respect to its compliance with this provision:
FirstNet, to the extent it utilizes the FAR, concludes that complying with the FAR satisfies the open, transparent, and competitive requirements of 47 U.S.C. 1426(b)(1)(B).
Summary: The overwhelming majority of commenters agreed with FirstNet's proposed interpretation that using the FAR satisfies FirstNet's statutory obligation to issue “open, transparent, and competitive requests for proposals to private sector entities for the purposes of building, operating, and maintaining the network . . . ” In addition to commenting that compliance with the FAR is a reasonable way of meeting the Act's requirements for an “open, transparent, and competitive” RFP process, commenters noted that the FAR is a well understood process, and that by using it, FirstNet will save time by not having to develop a new process for issuing RFPs. Given the size and scope of FirstNet's task, commenters agreed that using the FAR was the most logical option. Some commenters agreed with using the FAR generally, but encouraged the use of only certain sections.
Comment #11: Some commenters suggested that FirstNet exceed the FAR's requirements and reminded FirstNet of its authority to make agreements with States to use existing infrastructure.
Response: FirstNet believes that using the FAR satisfies the Act's requirements. FAR Part 1.102 provides guiding principles of the Federal Acquisition System, namely “promoting competition, and conducting business with integrity, fairness and openness.” The policies and procedures of the FAR embody these principles. Adherence to the FAR, therefore, ensures compliance with the Act's mandate to issue “open, transparent, and competitive” RFPs. With respect to existing infrastructure, FirstNet plans to leverage such assets for the NPSBN to the extent it is economically desirable, as required by the Act (see below for a further discussion regarding existing infrastructure).
Comment #12: One commenter disagreed with FirstNet's proposed interpretation, observing that the guidance in 47 U.S.C. 1426(b)(1)(B) would be unnecessary if Congress intended FirstNet to comply with the FAR, and that there is not a single reference to the FAR in the Act, despite the extensive statutory guidance the Act provides to FirstNet concerning the RFP process.
Response: FirstNet acknowledges this comment and notes that its final conclusion is
47 U.S.C. 1426(b)(1)(B) requires FirstNet to issue RFPs for the purposes of building, operating, and maintaining the network that use,
FirstNet concludes that it may make non-material changes or additions/subtractions to the minimal technical requirements developed by the
Summary: Commenters were virtually unanimous in agreeing with FirstNet's proposed interpretation regarding changes to the minimum technical requirements established by the Interoperability Board. Several commenters reasoned that such changes are necessary and fully contemplated (by Congress and the Interoperability Board itself) in order to keep pace with evolutions in technology, address issues that the Interoperability Board may not have considered, and fulfill requirements under the Act.
Comment #13: One commenter maintained that the minimum technical requirements developed by the Interoperability Board are so fundamental that they should be utilized in their entirety regardless of advancements in technology.
Response: FirstNet fully appreciates the value of the minimum technical requirements developed by the Interoperability Board and the critical role such requirements will have in the development and maintenance of the NPSBN. However, at the same time, FirstNet seeks to ensure that the most robust and technologically advanced network as possible is established for public safety in accordance with its statutory mission, and FirstNet is specifically directed by the Act to consider advancements in technology in the development and maintenance of the NPSBN.
Comment #14: Multiple commenters urged FirstNet to use open standards in the implementation of advancements in technology, focusing on 3GPP architecture and interfaces that ensure operability, interoperability, and backwards compatibility. Some of these commenters pointed out that the Interoperability Board Report contemplates advancements in technology and supports the open standards process.
Response: This comment is outside the scope of this notice. However, FirstNet acknowledges this recommendation and will consider it as any applicable decisions are developed on the matter. We note that the Act requires that the NPSBN be based on commercial standards, including those developed by 3GPP and that comply with the Interoperability Board Report.
Comment #15: A few commenters suggested that FirstNet rely on the Interoperability Board or a similar independent technical advisory board going forward to establish and maintain ongoing minimum technical requirements and compliance with those requirements, in light of technological advances.
Response: This comment is outside the scope of this notice. However, FirstNet acknowledges this recommendation and will consider it as any applicable decisions are developed on the matter.
Comment #16: Some commenters offered input as to what delineates non-material versus material changes in the minimum technical requirements. Most commenters focused on critical features or functions being backwards compatible, as well as avoiding any reduction in the quality of mission critical service to end users.
Response: FirstNet acknowledges these recommendations and will consider them as any applicable decisions are developed on the matter. FirstNet's goal is to ensure that the NPSBN operates in a manner that satisfies public safety's critical communication needs and is consistent with the material terms of the Interoperability Board report.
The Act directs that FirstNet “shall require deployment phases with substantial
Since the Act does not define “rural,” we found it necessary to define this term in order to fulfill our duties with respect to the above noted statutory rural coverage requirements.
(1) FirstNet defines “rural,” for the purposes of the Act, as having the same meaning as “rural area” in Section 601(b)(3) of the Rural Electrification Act of 1936, as amended (“Rural Electrification Act” or “REA”). Section 601(b)(3) of the Rural Electrification Act provides that “[t]he term `rural area' means any area other than—(i) an area described in clause (i) or (ii) of Section 1991(a)(13)(A) of this title [section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act]; and (ii) a city, town, or incorporated area that has a population of greater than 20,000 inhabitants.” In turn, the relevant portion of Section 343(a)(13)(A) of the Consolidated Farm and Rural Development Act explains that the “terms `rural' and `rural area' mean any area other than—(i) a city or town that has a population of greater than 50,000 inhabitants; and (ii) any urbanized area contiguous and adjacent to a city or town described in clause (i).” Thus, as defined herein, the term “rural” means any area that is
• A city, town, or incorporated area that has a population of greater than 20,000 inhabitants
• any urbanized area contiguous and adjacent to a city or town that has a population of greater than 50,000 inhabitants.
FirstNet also inquired whether there should be a lower boundary separate from the definition of “rural,” such as “wilderness” or “frontier.” Based in part on the comments received, FirstNet has reached the following final conclusion:
(2) FirstNet concludes that a lower boundary (
Summary: Several commenters agreed with FirstNet's proposed definition of “rural,” pointing to the logic in using the Rural Electrification Act definition. Many of these commenters noted that the Rural Electrification Act definition is widely known and used. Some specifically agreed that adopting the Rural Electrification Act definition makes sense in light of U.S. Department of Agriculture's (“USDA”) use of the definition in the Rural Broadband Access Loan and Loan Guarantee Program.
However, several other commenters disagreed with FirstNet's proposed definition of rural, suggesting that the Rural Electrification Act definition was inadequate. Multiple commenters expressed concerns that the Rural Electrification Act definition would not accurately measure or reflect the rural areas of a State.
Comment #17: One commenter suggested that the geography of a State could complicate the Rural Electrification Act's application due to many remote, small but densely populated communities and areas without any defined government or established limits.
Response: FirstNet acknowledges this comment and recognizes that certain States may not agree that the Rural Electrification Act definition (or any other definition for that matter) adequately defines rural areas for that State due to unique geographic or other circumstances. However, because FirstNet's mission is to ensure the establishment of a
It is also important to note that the primary purpose of the definition of “rural” under the Act is to measure whether the statutory requirement to include “substantial rural coverage milestones” in each phase of network deployment has been met. The definition does not determine a state or territory's ultimate coverage, which instead will be determined by the input obtained through the consultation process along with FirstNet's available resources.
Comment #18: Some commenters suggested that FirstNet adopt a modified or simplified aggregate population-derived definition utilizing various alternative methodologies. Specifically, a couple of commenters proposed the use of the U.S. Census Bureau's definition of “rural”—
Response: FirstNet recognizes that there are alternative definitions of “rural” utilized by other federal and state government entities and acknowledges that such definitions could be applied in the context of the nationwide public safety broadband network. Consistent with its analysis in the
Comment #19: Another commenter proposed the adoption of the definition used by USDA's Rural Business Service, indicating that rural areas under such definition are those with 50,000 persons or less excluding areas adjacent to communities larger than 50,000 persons.
Response: See the response to Comment #18 above.
Comment #20: Based on concerns expressed regarding the omission of unincorporated areas and the potential confusion caused by the “adjacent and contiguous” clause in the definition, an additional commenter recommended that “rural” be defined as a city, town, incorporated area, or unincorporated area that has a population of 20,000 or less.
Response: FirstNet acknowledges the comment. To provide some additional clarity, we note that in identifying cities, towns, incorporated areas, and urbanized areas, FirstNet intends to leverage the U.S. Census definition of “places,” which is inclusive of towns, cities, villages, boroughs, and Census Designated Places (CDPs) (which in turn are inclusive, at least in part, of unincorporated areas).
Comment #21: A few commenters advocated for a definition based on population density on a per county basis, with varying formulations. For instance, one such commenter proposed to define rural as a county with a population density of less than 160 persons per square mile, while another commenter proffered any county (i) with a population density of 100 or fewer inhabitants or (ii) of less than 225 square miles. A couple of other commenters suggested using a density of 5/7 to 159 persons per square mile on a county-by-county basis. Similarly, another commenter recommended adopting the definition used by the School-to-Work Opportunities program (
Response: See the response to Comment #18 above.
Comment #22: Multiple commenters maintained that instead of adopting the Rural Electrification Act (or any other single definition), the definition of “rural” should be determined on a state-by-state basis.
Response: FirstNet recognizes the Act strikes a balance between establishing a nationwide network and providing States an opportunity to make certain decisions about local implementation. As noted above, however, the primary purpose of the definition of “rural” is for measuring whether “substantial rural coverage milestones” have been included in each phase of deployment, which is required on a national basis. Thus, as a practical matter, there must be a single, uniform, and objective definition of “rural” that can be applied nationwide to assess whether such milestones have been met by FirstNet deployment.
Multiple provisions of the Act direct FirstNet to leverage existing infrastructure when “economically desirable.”
Similarly, 47 U.S.C. 1426(b)(3)—in addressing rural coverage and referring to FirstNet's duty and responsibility to issue RFPs—requires that “[t]o the maximum extent economically desirable, such proposals shall include partnerships with existing commercial mobile providers to utilize cost-effective opportunities to speed deployments in rural areas.”
Finally, 47 U.S.C. 1426(c)(3) requires that in carrying out its various requirements related to the deployment and operation of the NPSBN, “the First Responder Network Authority shall enter into agreements to utilize, to the maximum extent economically desirable, existing (A) commercial or other communications infrastructure; and (B) Federal, State, tribal, or local infrastructure.” The Act, however, does not define or establish any criteria for determining economic desirability. FirstNet reaches the following conclusions regarding its obligations to leverage existing infrastructure under 47 U.S.C. 1426:
1. FirstNet interprets that 47 U.S.C. 1426(b)(1)(B) is intended to require FirstNet to encourage, through its requests, that responsive
2. FirstNet interprets 47 U.S.C. 1426(b)(3) as requiring FirstNet to include in its RFPs that such proposals leverage partnerships with commercial mobile providers where economically desirable.
3. FirstNet concludes that factors other than, or in addition to, cost may be utilized in assessing whether existing infrastructure is “economically desirable,” including:
a. Infrastructure type/characteristics
b. security (physical, network, cyber, etc.)
c. suitability/viability (ability to readily use, upgrade, and maintain)
d. readiness for reuse (
e. scope of use (
f. availability/accessibility (time/obstacles to acquiring access/use)
g. any use restrictions (
h. relationships with infrastructure owners/managers (
i. available alternatives in the area
Summary: All commenters on the subject agreed with FirstNet's above interpretations of 47 U.S.C. 1426(b)(1)(C) and (b)(3) that the provisions are intended to require FirstNet to encourage, through its RFPs, that such responsive
Comment #23: Some commenters provided input regarding the factors to be considered in making an economic desirability determination, focusing largely on cost.
Response: Although FirstNet agrees that cost is a major factor in assessing economic desirability, we do not believe it is the sole consideration. There are several other factors, as noted above, that are critical to making an informed determination as to whether the infrastructure should be leveraged. For instance, it is essential to understand the infrastructure's suitability for FirstNet's purposes, as well as its availability and readiness for use. Likewise, FirstNet's financial sustainability model is based in large part on its ability to lease excess spectrum capacity to commercial entities for secondary use, and thus consideration of any limitations on commercial use of the infrastructure is imperative.
Comment #24: A couple of commenters suggested other factors besides cost in making an economic desirability determination of whether to leverage infrastructure. One such commenter recommended the consideration of geography and breadth of coverage in addition to cost. Another commenter urged that the requirements of public safety should be considered as a factor.
Response: FirstNet acknowledges these recommendations and believes they are encompassed within FirstNet's final conclusion above regarding economic desirability factors.
FirstNet is required by the Act to be a self-funding entity and has been authorized to assess and collect certain fees for use of the network.
(1) FirstNet interprets each of the fees authorized by the Act, including user or subscription fees authorized by 47 U.S.C. 1428(a)(1), covered leasing agreement fees authorized by 47 U.S.C. 1428 (a)(2), lease fees related to network equipment and infrastructure authorized by 47 U.S.C. 1428(a)(3), and the fee for State use of elements of the core network authorized by 47 U.S.C. 1442(f), as distinct and separate from each other and may be assessed individually or cumulatively, as applicable.
(2) FirstNet concludes it may charge a user or subscription fee under 47 U.S.C. 1428(a)(1) to any user that seeks access to or use of the nationwide public safety broadband network.
(3) FirstNet concludes that the fees assessed on States assuming RAN responsibilities for use of the core network authorized by 47 U.S.C. 1442(f) are distinct from and can be assessed in addition to any other fees authorized under the Act.
(4) FirstNet concludes that a covered leasing agreement under 47 U.S.C. 1428(a)(2) does not require a secondary user to “construct, manage, and operate” the entire FirstNet network, either from a coverage perspective or exclusively within a specific location.
(5) FirstNet concludes that multiple covered leasing agreement lessees could coexist and be permitted access to excess network capacity in a particular geographic area.
(6) FirstNet interprets that a covered leasing agreement lessee satisfies the definition under 47 U.S.C. 1428(a)(2) so long as the lessee does more than a nominal amount of constructing, managing, or operating the network.
(7) FirstNet concludes that an entity entering into a covered leasing agreement under 47 U.S.C. 1428(a)(2) is not required to perform all three functions of constructing, managing, and operating a portion of the network, so long as one of the three is performed as part of the covered leasing agreement.
(8) FirstNet interprets the reference to “network capacity” in the definition of covered leasing agreement under 47 U.S.C. 1428(a)(2)(B)(i) as a generic statement referring to the combination of spectrum and network elements, as defined by the Act, and includes the core network as well as the radio access network of either FirstNet alone or that of the secondary user under a covered leasing agreement whereby the core and radio access network are used for serving both FirstNet public safety entities and the secondary user's commercial customers.
(9) FirstNet interprets the term “secondary basis” under 47 U.S.C. 1428(a)(2)(B)(i) to mean that network capacity will be available to the secondary user unless it is needed for public safety entities as defined in the Act.
(10) FirstNet interprets the phrase “spectrum allocated to such entity” found in 47 U.S.C. 1428(a)(3)(B)(ii) as allowing all or a portion of the spectrum licensed to FirstNet by the FCC under call sign “WQQE234” to be allocated for use on a secondary basis under a covered leasing agreement.
(11) FirstNet concludes the reference to “dark fiber” in 47 U.S.C. 1428(a)(2)(B)(ii) cannot literally be interpreted as such, and the reference should be interpreted to allow the covered leasing agreement lessee to transport such traffic on otherwise previously dark fiber facilities.
(12) FirstNet interprets 47 U.S.C. 1428(a)(3) as being limited to the imposition of a fee for the use of static or isolated equipment or infrastructure, such as antennas or towers, rather than for use of FirstNet spectrum or access to network capacity.
(13) FirstNet interprets the phrase “constructed or otherwise owned by [FirstNet]” under 47 U.S.C. 1428(a)(3) as meaning that FirstNet ordered or required the construction of such equipment or infrastructure, paid for such construction, simply owns such equipment, or does not own but, through a contract has rights to sublease access to, or use of, such equipment or infrastructure.
Summary: The majority of commenters agreed with the various interpretations related to the assessment and collection of fees by FirstNet. The commenters generally understood the authority the Act gives FirstNet to assess and collect fees and the importance of such fees as a key funding resource necessary to build, operate, and maintain the NPSBN. However, a few commenters, as described and responded to below, either disagreed with certain interpretations or provided general comments relating to the assessment and collection of the various fees under the Act.
Comment #25: Two commenters agreed that FirstNet is authorized to assess a fee for use of the core network, but suggested that States assuming RAN deployment responsibilities should only pay the costs associated with using the core network and spectrum lease; they should not have to pay a network user or subscription fee, and that FirstNet is not allowed to, or should not, impose `user' fees on opt-out States in a cumulative manner as interpreted by FirstNet.
Response: FirstNet disagrees and believes the Act authorizes FirstNet to assess a user or subscription fee to each entity, including a State choosing to deploy its own radio access network, that seeks access to or use of the network. Specifically, the Act authorizes FirstNet to collect a “user or subscription fee from
Comment #26: One commenter suggested that all public safety user fees should include nationwide coverage, and should be for unlimited use of the NPSBN. For example, a flat fee for unlimited usage (and no roaming fees) should be charged within each State, similar to today's carrier billing model.
Response: This comment is outside the scope of this notice. However, FirstNet acknowledges the comment and will consider the recommendation as it continues planning for the deployment of the NPSBN.
Comment #27: One commenter suggested that while the Act is unambiguous on allowing FirstNet to assess a fee to States assuming RAN responsibilities for use of the core network, it is important that this fee not be set so high so as to discourage States from opting out of the NPSBN. The commenter further noted that the ability of States to construct their own RAN is clearly permissive under the Act and, in fact, could enable significant growth and adoption of the NPSBN as long as the user fees for opt-out states are reasonable and contemplate the budgets of State and local public safety entities.
Response: This comment is outside the scope of this notice. However, FirstNet acknowledges the comment and will consider the recommendation as it continues planning for the deployment of the NPSBN.
Comment #28: Two commenters disagreed that “all” of the FirstNet Band 14 spectrum can be allocated for secondary use under a covered leasing agreement.
Response: FirstNet believes its interpretation that the Act allows all or part of the spectrum licensed to FirstNet by the FCC under call sign “WQQE234” to be allocated for secondary use is supported by language of the Act. FirstNet is the entity created by the Act to ensure the establishment of the NPSBN, and as such has a duty to ensure the efficient use of the funding resources available to fulfill this duty, including the ability to permit access to spectrum capacity on a secondary basis. To best utilize these funding resources, the Act authorizes FirstNet to enter into covered leasing agreements which permit an entity entering into such an agreement to have access to, or use of, network capacity on a secondary basis for non-public safety services. The Act, as analyzed in the
Comment #29: One commenter suggested that the States should determine how much capacity/spectrum is made available within its borders under a covered leasing agreement—rather than FirstNet making the determination.
Response: FirstNet is the entity created by the Act to ensure the establishment of the NPSBN and is also the sole licensee of the 700 MHz D block spectrum and the existing public safety broadband spectrum.
Comment #30: One commenter cautioned FirstNet to ensure there is not an undue expectation by the covered leasing agreement lessee that its lease of the spectrum supersedes public safety's access to, and use of, that spectrum as a priority in all cases, and at all times.
Response: FirstNet acknowledges the comment and reiterates that its primary mission is to ensure the establishment of a nationwide, interoperable network for public safety. Accordingly, public safety will always have priority use of the NPSBN over any non-public safety user that gains access to, or use of, the network on a secondary basis through a covered leasing agreement.
Comment #31: One commenter recommended that FirstNet interpret 47 U.S.C. § 1428(a)(3) to only apply to the RAN hardware in States that choose to participate in the NPSBN as proposed by FirstNet.
Response: FirstNet interprets the phrase “constructed or otherwise owned by [FirstNet]” under 47 U.S.C. 1428(a)(3) as meaning that FirstNet ordered or required the construction of such equipment or infrastructure, paid for the construction, owns the equipment, or does not own the equipment, but, through a contract, has the right to sublease the equipment or infrastructure. Thus, unless the RAN hardware in any State falls within the criteria above, FirstNet would not have the authority to assess and collect a fee for use of such infrastructure or equipment.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the South Jersey Port Corporation, grantee of FTZ 142, requesting subzone status for the facilities of Nine West Holdings, Inc., located in West Deptford, New Jersey. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on October 14, 2015.
The proposed subzone would consist of the following sites:
In accordance with the FTZ Board's regulations, Kathleen Boyce of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is November 30, 2015. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to December 14, 2015.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
For further information, contact Kathleen Boyce at
Flextronics America, LLC (Flextronics) submitted a notification of proposed production activity to the FTZ Board for its facility in Austin, Texas within Subzone 183C. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on October 9, 2015.
Flextronics already has authority to produce automatic data processing machines within Subzone 183C. The current request would add finished products and foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Flextronics from customs duty payments on the foreign status materials/components used in export production. On its domestic sales, Flextronics would be able to choose the duty rates during customs entry procedures that apply to: Video card subassemblies; CPU and video card connector subassemblies; external power and USB port card subassemblies; main controller board subassemblies; and, internal power supply subassemblies (duty-free) for the foreign status materials/components noted below and in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
The materials/components sourced from abroad include: Copper alloy screws; and, lithium batteries (duty rate ranges from 3.0 to 3.4%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Elizabeth Whitman at
Bureau of Industry and Security, Department of Commerce.
Notice of membership on the Bureau of Industry and Security's Performance Review Board.
In accordance with 5 U.S.C. 4314(c)(4), the Bureau of Industry and Security (BIS), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of BIS's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.
The period of appointment for those individuals selected for BIS's Performance Review Board begins on October 20, 2015.
Ruthie B. Stewart, Department of Commerce, Office of Human Resources Management, Office of Executive Resources, 14th and Constitution Avenue NW., Room 51010, Washington, DC 20230, at (202) 482-3130.
In accordance with 5 U.S.C. 4314(c)(4), the Bureau of Industry and Security (BIS), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of BIS's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.
The period of appointment for those individuals selected for BIS's Performance Review Board begins on October 20, 2015 The name, position title, and type of appointment of each member of BIS's Performance Review Board are set forth below by organization:
International Trade Administration, DOC.
Notice of Federal Advisory Committee meeting.
This notice sets forth the schedule and proposed agenda of a meeting of the Environmental Technologies Trade Advisory Committee (ETTAC).
The meeting is scheduled for Thursday, November 12, 2015, at 8:30 a.m. Eastern Standard Time (EST).
The meeting will be held in Room 1412 at the U.S. Department of Commerce, Herbert Clark Hoover Building, 1401 Constitution Avenue NW., Washington, DC 20230.
Ms. Maureen Hinman, Office of Energy & Environmental Industries (OEEI), International Trade Administration, Room 4053, 1401 Constitution Avenue NW., Washington, DC 20230 (Phone: 202-482-0627; Fax: 202-482-3835; email:
The meeting will take place from 8:30 a.m. to 3:30 p.m. EDT. The general meeting is open to the public and time will be permitted for public comment from 3:00-3:30 p.m. EDT. Those interested in attending must provide notification by Monday, November 2, 2015 at 5:00 p.m. EDT, via the contact information provided above. Written comments concerning ETTAC affairs are welcome any time before or after the meeting. Minutes will be available within 30 days of this meeting.
International Trade Administration, Department of Commerce.
Notice of membership on the International Trade Administration's Performance Review Board.
In accordance with 5 U.S.C. § 4314(c)(4), the International Trade Administration (ITA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of ITA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.
The period of appointment for those individuals selected for ITA's Performance Review Board begins on October 20, 2015.
Jennifer Munz, U.S. Department of Commerce, Office of Human Resources Management, Office of Executive Resources, 14th and Constitution Avenue NW., Room 51010, Washington, DC 20230, at (202) 482-4051.
In accordance with 5 U.S.C. § 4314(c)(4), the International Trade Administration (ITA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of ITA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.
The period of appointment for those individuals selected for ITA's Performance Review Board begins on October 20, 2015. The name, position title, and type of appointment of each member of ITA's Performance Review Board are set forth below by organization:
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) determines that countervailable subsidies are being provided to producers and exporters of supercalendered paper (SC paper) from Canada. The period of investigation is January 1, 2014, through December 31, 2014.
Dana Mermelstein or David Neubacher, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1391 and (202) 482-5823, respectively.
The petitioner in this investigation is the Coalition for Fair Paper Imports. The Coalition for Fair Paper Imports is composed of Madison Paper Industries and Verso Corporation. In addition to the Government of Canada, the mandatory respondents in this investigation are (1) Port Hawkesbury Paper LP, 6879900 Canada Inc., Port Hawkesbury Investments Ltd., Port Hawkesbury Paper GP, Port Hawkesbury Paper Holdings Ltd., Port Hawkesbury Paper Inc., and Pacific West Commercial Corporation (collectively, Port Hawkesbury); and (2) Resolute FP Canada Inc., Fibrek General Partnership, Forest Products Mauricie LP, Produits Forestiers Petit-Paris Inc., and Société en Commandite Scierie Opitciwan (collectively, Resolute).
The events that have occurred since the Department published the
The product covered by this investigation is SC paper. For a complete description of the scope of the investigation,
The Department conducted this countervailing duty investigation in accordance with section 701 of the Tariff Act of 1930, as amended (the Act). The subsidy programs under investigation and the issues raised in the case and rebuttal briefs by parties in this investigation are discussed in the Issues and Decision Memorandum, which is hereby adopted by this notice. A list of the issues that parties have raised, and to which we responded in the Issues and Decision Memorandum, is attached to this notice as Appendix 2. Based on our analysis of the comments received and our findings at verification, we made certain changes to the respondents' subsidy rate calculations since the
For this determination, we have relied partially on facts available for Resolute. Further, we have drawn an adverse inference in selecting from among the facts otherwise available to calculate the
In accordance with section 705(c)(1)(B)(i) of the Act, we calculated a rate for each individually investigated respondent company. Section 705(c)(5)(A)(i) of the Act states that, for companies not individually investigated, we will determine an “all others” rate equal to the weighted-average countervailable subsidy rates established for exporters and producers individually investigated, excluding any zero and
Notwithstanding the language of section 705(c)(5)(A)(i) of the Act, we have calculated the “all others” rate as a weighted average of the rates of Port Hawkesbury and Resolute, using the publicly ranged values for each company's exports of subject merchandise to the United States to calculate the weighted average, because to use the actual sales values risks disclosure of proprietary information.
We determine the countervailable subsidy rates to be:
As a result of our
In accordance with section 705(c)(1)(B)(ii) of the Act, we are directing CBP to continue to suspend liquidation of all imports of the subject merchandise from Canada that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
We will issue a countervailing duty order pursuant to section 706(a) of the Act if the United States International Trade Commission (ITC) issues a final affirmative injury determination. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.
In accordance with section 705(d) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information related to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order (APO), without the written consent of the Assistant Secretary for Enforcement and Compliance.
In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to an APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This determination is issued and published pursuant to sections 705(d) and 777(i) of the Act.
The merchandise covered by this investigation is supercalendered paper (SC paper). SC paper is uncoated paper that has undergone a calendering process in which the base sheet, made of pulp and filler (typically, but not limited to, clay, talc, or other mineral additive), is processed through a set of supercalenders, a supercalender, or a soft nip calender operation.
The scope of this investigation covers all SC paper regardless of basis weight, brightness, opacity, smoothness, or grade, and whether in rolls or in sheets. Further, the scope covers all SC paper that meets the scope definition regardless of the type of pulp fiber or filler material used to produce the paper.
Specifically excluded from the scope are imports of paper printed with final content of printed text or graphics.
Subject merchandise primarily enters under Harmonized Tariff Schedule of the United States (HTSUS) subheading 4802.61.3035, but may also enter under subheadings 4802.61.3010, 4802.62.3000, 4802.62.6020, and 4802.69.3000. Although the HTSUS subheadings are provided for convenience and customs purposes, the
On August 3, 2015, the U.S. Court of International Trade (CIT or Court) granted the request of the Department of Commerce (Department) for a voluntary remand in the above-referenced proceeding.
The CIT granted the Department's request for a voluntary remand “in light of Commerce's remand redetermination in
In light of the CVD Remand Redetermination, we have reconsidered our finding regarding the double remedies adjustment afforded to respondents in the underlying AD proceeding, and found that there is no basis for making an adjustment to the AD rates under 19 U.S.C. 1677f-1(f). As such, in the draft redetermination, we denied the adjustment that we granted the respondents in the Final Determination Memorandum.
The Department offered interested parties an opportunity to comment on the Draft Remand.
We support the Department's determination to “deny { } the adjustment that we granted respondents in the CWP AD Section 129 determination.” We have no other comments.
No other interested party submitted comments.
For the reasons discussed below, our Draft Remand remains unchanged, and we continue to deny the adjustment that we granted the respondents in the Final Determination Memorandum.
On July 22, 2008, upon final affirmative determinations by the Department and the U.S. International Trade Commission, the Department published AD and CVD orders on CWP from the PRC.
The U.S. Trade Representative then announced the United States' intention to comply with the WTO's rulings and recommendations, and requested that the Department make a determination “not inconsistent with” the WTO AB Report.
Based upon its preliminary findings in the companion CVD proceeding using the non-CWP specific information mentioned above, the Department issued a preliminary determination memorandum on May 31, 2012, granting a double remedies adjustment to all respondents.
After allowing parties to the proceeding an opportunity to submit factual information and comment on the Preliminary Determination Memorandum, the Department on July 31, 2012, issued its Final Determination Memorandum in the Section 129 proceeding on,
{A} subsidy-(variable) cost-price link in the case of input price subsidies (
As a result, the Department issued amended AD cash deposit rates, which reduced the weighted-average dumping margin for separate rate companies from 69.2 percent to 45.35 percent.
Wheatland, U.S. Steel Corporation, and Plaintiff-Intervenors Allied Tube and Conduit and TMK IPSCO Tubulars (collectively, the Domestic Interested Parties) challenged the Department's AD and CVD Section 129 CWP determinations. In the litigation concerning the CVD determination (CVD Litigation), the Domestic Interested Parties challenged the Department's decision that an adjustment to the AD duty on U.S. CWP imports from the PRC is warranted to account for remedies that overlap those imposed by the CVD order.
In November 2014, the CIT issued an opinion and order in the CVD Litigation remanding the CWP CVD Section 129 determination to the Department for further consideration of its finding that certain countervailable subsidies reduced the average price of U.S. CWP imports, such that the reduction warranted a “double remedies” adjustment to the companion AD rates.
In the CVD Remand Redetermination, the Department found “that there is no basis for making an adjustment to the companion AD rates under” 19 U.S.C. 1677f-1(f)(1)(b).
In May 2015, the CIT sustained the Department's CVD Remand Redetermination and entered a final judgment in the CVD case.
On January 2, 2013, the CIT issued an order staying the litigation concerning the CWP AD Section 129 determination (AD Litigation), “pending the final disposition of
In light of the CVD Remand Redetermination, we have reconsidered our finding regarding the double remedies adjustment granted to respondents in the CWP AD Section 129 determination. In the CVD Remand Redetermination, we found that an adjustment under 19 U.S.C. 1677f-1(f) requires a demonstration of a reduction in the average price of imports, for which the Department, in part, examines the links between the countervailed subsidy programs and the impact on the respondents' costs.
Without the requested information from respondents in the CVD Remand Redetermination, the Department determined that such a demonstration has not been made at the CWP industry-specific level and there is no basis for making an adjustment to the AD rates under 19 U.S.C. 1677f-1(f). As such, for this final redetermination, we are denying the adjustment that we granted respondents in the CWP AD Section 129 determination.
Accordingly, we have revised the AD rates that we calculated in the CWP AD Section 129 determination. The revised AD rates are listed in the attached Appendix, “Revised Antidumping Duty
National Institute of Standards and Technology (NIST), Commerce.
Notice and request for comments.
The National Institute of Standards and Technology (NIST) requests comments on Federal Information Processing Standard (FIPS) 186-4, Digital Signature Standard, which has been in effect since July 2013. FIPS 186-4 specifies three techniques for the generation and verification of digital signatures that can be used for the protection of data: the Rivest-Shamir-Adleman Algorithm (RSA), the Digital Signature Algorithm (DSA), and the Elliptic Curve Digital Signature Algorithm (ECDSA), along with a set of elliptic curves recommended for government use. NIST
Comments on FIPS 186-4 must be received on or before December 4, 2015.
Comments on FIPS 186-4 may be sent electronically to
The current FIPS 186-4 can be found at
Comments received in response to this notice will be published electronically at
Dr. Lily Chen, Computer Security Division, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8930, Gaithersburg, MD 20899-8930, email:
FIPS 186 was initially developed by NIST in collaboration with the National Security Agency (NSA), using the Digital Signature Algorithm (DSA). Later versions of the standard approved the use of the Elliptic Curve Digital Signature Algorithm (ECDSA) and the Rivest-Shamir-Adleman (RSA) algorithm. American Standards Committee (ASC) X9 developed standards specifying the use of both ECDSA and RSA, including methods for generating key pairs, which were used as the basis for the later versions of FIPS 186.
The ECDSA was included by reference in FIPS 186-2, the second revision to FIPS 186, which was announced in the
In the fifteen years since FIPS 186-2 was published, elliptic curve cryptography (ECC) has seen slow adoption outside certain communities. Past discussions on this topic have cited several possible reasons for this, including interoperability issues, performance characteristics, and concerns over intellectual property.
In addition, advances in the understanding of elliptic curves within the cryptographic community have led to the development of new elliptic curves and algorithms whose designers claim to offer better performance and are easier to implement in a secure manner. Some of these curves are under consideration in voluntary, consensus-based Standards Developing Organizations.
In 2014, NIST's primary external advisory board, the Visiting Committee on Advanced Technology (VCAT), conducted a review of NIST's cryptographic standards program. As part of their review, the VCAT recommended that NIST “generate a new set of elliptic curves for use with ECDSA in FIPS 186.”
In June 2015, NIST hosted the technical workshop on Elliptic Curve Cryptography Standards to discuss possible approaches to promote the adoption of secure, interoperable and efficient elliptic curve mechanisms. Workshop participants expressed significant interest in the development, standardization and adoption of new elliptic curves. As a result of this input, NIST is considering the addition of new elliptic curves to the current set of recommended curves in FIPS 186-4. Comments received in response to this solicitation will be used to identify the needs, processes and goals for possible future standards activities.
NIST requests comments on the following questions regarding the elliptic curves recommended in FIPS 186-4, but comments on other areas of the FIPS will also be considered. The responses to this solicitation will be used to plan possible improvements to the FIPS, including the set of algorithms and elliptic curves specified in the FIPS.
a. Do the digital signature schemes and key sizes specified in FIPS 186-4 satisfy the security requirements of applications used by industry?
b. Are there other digital signature schemes that should be considered for inclusion in a future revision to FIPS 186? What are the advantages of these schemes over the existing schemes in FIPS 186?
a. Do the NIST-recommended curves satisfy the security requirements of applications used by industry?
b. Are there any attacks of cryptographic significance on Elliptic Curve Cryptography that apply to the NIST-recommended curves or other widely used curves?
a. Is there a need for new elliptic curves to be considered for standardization?
b. If there is a need, what criteria should NIST use to evaluate any curves to be considered for inclusion?
c. Do you anticipate a need to create, standardize or approve new elliptic curves on an ongoing basis?
a. Which of the approved digital signature schemes and NIST-recommended curves have been used in practice?
b. Which elliptic curves are accepted for use in international markets?
a. If new curves were to be standardized, what would be the impact of changing existing implementations to allow for the new curves?
b. What is the impact of having several standardized curves on interoperability?
c. What are the advantages or disadvantages of allowing users or applications to generate their own elliptic curves, instead of using standardized curves?
a. Do the performance characteristics of existing implementations of the digital signatures schemes approved in FIPS 186-4 meet the requirements of applications used by industry?
a. What are the desired intellectual property requirements for any new
b. What impact has intellectual property concerns had on the adoption of elliptic curve cryptography?
In accordance with the Information Technology Management Reform Act of 1996 (Pub. L. 104-106) and the Federal Information Security Management Act of 2002 (FISMA) (Pub. L. 107-347), the Secretary of Commerce is authorized to approve FIPS. NIST activities to develop computer security standards to protect federal sensitive (unclassified) information systems are undertaken pursuant to specific responsibilities assigned to NIST by Section 20 of the National Institute of Standards and Technology Act (15 U.S.C. 278g-3), as amended.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The National Marine Fisheries Service (NMFS) proposes to collect information about annual base fishing expenses in the American Samoa longline fishery with which to conduct economic analyses that will improve fishery management in those fisheries; satisfy NMFS' legal mandates under Executive Order 12866, the Magnuson-Steven Fishery Conservation and Management Act (U.S.C. 1801
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Pursuant to the High Seas Driftnet Fishing Moratorium Protection Act (Moratorium Protection Act), if certain fish or fish products of a nation are subject to import prohibitions to facilitate enforcement, the National Marine Fisheries Service (NMFS) requires that other fish or fish products from that nation that are not subject to the import prohibitions must be accompanied by documentation of admissibility. A duly authorized official/agent of the applicant's Government must certify that the fish in the shipments being imported into the United States (U.S.) are of a species that are not subject to an import restriction of the U.S. If a nation is identified under the Moratorium Protection Act and fails to receive a certification decision from the Secretary of Commerce, products from that nation that are not subject to the import prohibitions must be accompanied by the documentation of admissibility.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Telecommunications and Information Administration, Department of Commerce.
Notice of Membership on the National Telecommunications and Information Administration's Performance Review Board.
In accordance with 5 U.S.C. § 4314(c)(4), the National Telecommunications and Information Administration (NTIA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of NTIA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of
The period of appointment for those individuals selected for NTIA's Performance Review Board begins on October 20, 2015.
Ruthie B. Stewart, Department of Commerce, Office of Human Resources Management, Office of Executive Resources, 14th and Constitution Avenue NW., Room 51010, Washington, DC 20230, at (202) 482-3130.
In accordance with 5 U.S.C. § 4314(c)(4), the National Telecommunications and Information Administration (NTIA), Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of NTIA's Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and rating of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards for SES members. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.
United States Patent and Trademark Office, Commerce.
Notice of Public Hearing.
Under Section 10 of the America Invents Act (AIA), the United States Patent and Trademark Office (USPTO) may set or adjust by rule any patent or trademark fee established, authorized, or charged under Title 35 of the United States Code or the Trademark Act of 1946, respectively. The USPTO currently is planning to set or adjust trademark fees pursuant to its Section 10 fee setting authority. As part of the rulemaking process to set or adjust trademark fees, the Trademark Public Advisory Committee (TPAC) is required under Section 10 of the AIA to hold a public hearing about any proposed trademark fees, and the USPTO is required to assist TPAC in carrying out that hearing. To that end, the USPTO will make its proposed trademark fees available as set forth in the Supplementary Information section of this Notice before any TPAC hearing and will help the TPAC to notify the public about the hearing. Accordingly, this document announces the dates and logistics for the TPAC public hearing regarding USPTO proposed trademark fees. Interested members of the public are invited to testify at the hearing and/or submit written comments about the proposed trademark fees and the questions posed on the USPTO TPAC Web site page about the proposed fees.
Brendan Hourigan, Office of the Chief Financial Officer, by phone (571) 272-8966, or by email at
Requests to testify should indicate the following: (1) The name of the person wishing to testify; (2) the person's contact information (telephone number and email address); (3) the organization(s) the person represents, if any; and (4) an indication of the amount of time needed for the testimony. Requests to testify must be submitted by email to Pamela Lloyd at
Effective September 16, 2011, with the passage of the AIA, the USPTO is authorized under Section 10 of the AIA to set or adjust by rule all patent and trademark fees established, authorized, or charged under Title 35 of the United States Code and the Trademark Act of 1946, respectively. Patent and trademark fees set or adjusted by rule under Section 10 of the AIA may only recover the aggregate estimated costs to the Office for processing, activities, services, and materials relating to patents and trademarks, respectively, including administrative costs of the Office with respect to each as the case may be.
Congress set forth the process for the USPTO to follow in setting or adjusting patent and trademark fees by rule under Section 10 of the AIA. Congress requires the relevant advisory committee to hold a public hearing about the USPTO fee proposals after receiving them from the agency. Congress likewise requires the relevant advisory committee to prepare a written report on the proposed fees and the USPTO to consider the relevant advisory committee's report before finally setting or adjusting the fees. Further, Congress requires the USPTO to publish its proposed fees and supporting rationale in the
Presently, the USPTO is planning to exercise its fee setting authority to set or adjust trademark fees. The USPTO will publish a proposed trademark fee schedule and related supplementary information for public viewing no later than October 27, 2015, on the USPTO Internet Web site (address:
Following the TPAC public hearing, the USPTO will publish a Notice of Proposed Rulemaking in the
United States Patent and Trademark Office, Department of Commerce.
Notice of Public Hearing.
Under Section 10 of the America Invents Act (AIA), the United States Patent and Trademark Office (USPTO) may set or adjust by rule any patent or trademark fee established, authorized, or charged under Title 35 of the United States Code or the Trademark Act of 1946, respectively. The USPTO currently is planning to set or adjust patent fees pursuant to its Section 10 fee setting authority. As part of the rulemaking process to set or adjust patent fees, the Patent Public Advisory Committee (PPAC) is required under Section 10 of the AIA to hold a public hearing about any proposed patent fees, and the USPTO is required to assist PPAC in carrying out that hearing. To that end, the USPTO will make its proposed patent fees available as set forth in the Supplementary Information section of this Notice before any PPAC hearing and will help the PPAC to notify the public about the hearing. Accordingly, this document announces the dates and logistics for the PPAC public hearing regarding USPTO proposed patent fees. Interested members of the public are invited to testify at the hearing and/or submit written comments about the proposed patent fees and the questions posed on PPAC's Web site about the proposed fees.
Brendan Hourigan, Office of the Chief Financial Officer, by phone (571) 272-8966, or by email at
Requests to testify should indicate the following: (1) The name of the person wishing to testify; (2) the person's contact information (telephone number and email address); (3) the organization(s) the person represents, if any; and (4) an indication of the amount of time needed for the testimony. Requests to testify must be submitted by email to Jennifer Lo at
Effective September 16, 2011, with the passage of the AIA, the USPTO is authorized under Section 10 of the AIA to set or adjust by rule all patent and trademark fees established, authorized, or charged under Title 35 of the United States Code and the Trademark Act of 1946, respectively. Patent and trademark fees set or adjusted by rule under Section 10 of the AIA may only recover the aggregate estimated costs to the Office for processing, activities, services, and materials relating to patents and trademarks, respectively, including administrative costs of the Office with respect to each as the case may be.
Congress set forth the process for the USPTO to follow in setting or adjusting patent and trademark fees by rule under Section 10 of the AIA. Congress requires the relevant advisory committee to hold a public hearing about the USPTO fee proposals after receiving them from the agency. Congress likewise requires the relevant advisory committee to prepare a written report on the proposed fees and the USPTO to consider the relevant advisory committee's report before finally setting or adjusting the fees. Further, Congress requires the USPTO to publish its proposed fees and supporting rationale in the
Presently, the USPTO is planning to exercise its fee setting authority to set or adjust patent fees. The USPTO will publish a proposed patent fee schedule and related supplementary information for public viewing no later than November 12, 2015, on the USPTO Internet Web site (address:
Following the PPAC public hearing, the USPTO will publish a Notice of Proposed Rulemaking in the
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 19, 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
Duane C. Andresen, Associate Director, Division of Market Oversight, Commodity Futures Trading Commission, (202) 418-5492; email:
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 Commission's regulations were published on December 30, 1981.
44 U.S.C. 3501
Department of Defense.
Notice of Advisory Committee Meetings.
The Defense Science Board will meet in closed session on November 4-5, 2015, from 8:00 a.m. to 5:00 p.m. at the Pentagon, Room 3E863, Washington, DC.
November 4-5, 2015, from 8:00 a.m. to 5:00 p.m.
The Pentagon, Room 3E863, Washington, DC.
Ms. Debra Rose, Executive Officer, Defense Science Board, 3140 Defense Pentagon, Room 3B888A, Washington, DC 20301-3140, via email at
This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At this meeting, the Board will discuss interim findings and recommendations resulting from ongoing Task Force activities. The Board will also discuss plans for future consideration of scientific and technical aspects of specific strategies, tactics, and policies as they may affect the U.S. national defense posture and homeland security.
In accordance with section 10(d) of the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. App. 2) and 41 CFR 102-3.155, the Department of Defense has determined that the Defense Science Board meeting for November 4-5, 2015, will be closed to the public. Specifically, the Under Secretary of Defense (Acquisition, Technology, and Logistics), in consultation with the DoD Office of General Counsel, has determined in writing that all sessions of meeting for November 4-5, 2015, will be closed to the public because it will consider matters covered by 5 U.S.C. 552b(c)(1) and (4).
In accordance with 41 CFR 102-3.140 and section 10(a)(3) of the Federal Advisory Committee Act, interested persons may submit a written statement for consideration by the Defense Science Board. Individuals submitting a written statement must submit their statement to the Designated Federal Official at the address detailed in
Institute of Education Sciences (IES)/National Center of Education Statistics (NCES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction of 1995 (44 U.S.C. chapter 3507(j)), ED is requesting the Office of Management and Budget (OMB) to conduct an emergency review
An emergency review has been requested in accordance with the Act (44 U.S.C. chapter 3507 (j)), due to an unanticipated event. Approval by the Office of Management and Budget (OMB) has been requested by November 20, 2015; therefore, comments are requested on or before November 10, 2015. A regular clearance process is also hereby being initiated. Interested persons are invited to submit comments on or before December 21, 2015.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Kashka Kubzdela at 202-502-7411 or by email
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
As announced in the notice issued on October 1, 2015, the Federal Energy Regulatory Commission will hold a technical conference on October 20, 2015, at the offices of the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, between 9:00 a.m. and 4:15 p.m. (EST). An updated agenda identifying panelists for this conference is attached.
The technical conference will be transcribed. Transcripts will be available for a fee from Ace-Federal Reports, Inc. (202-347-3700).
There will be a free webcast of the conference. The webcast will allow persons to listen to the technical conference, but not participate. Anyone with internet access who wants to listen to the conference can do so by navigating to the Calendar of Events at
Advance registration is not required but is highly encouraged. If you have not already done so, those who plan to attend may register in advance at the following Web page:
Discussions at the conference may address matters at issue in the following Commission proceeding(s) that are either pending or within their rehearing period: Midcontinent Independent System Operator, Inc., Docket No. ER11-4081-000,
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
Following the technical conference, the Commission will consider post-technical conference comments regarding the matters discussed at the conference submitted on or before November 4, 2015.
For more information about this technical conference, please contact Elizabeth Shen, 202-502-6545,
Take notice that on October 9, 2015, pursuant to sections 206 and 306 of the Federal Power Act, 16 U.S.C. 824(e) and 825(e) and Rule 206 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206, NRG Power Marketing LLC (Complainant), filed a formal complaint against Midcontinent Independent System Operator, Inc. (MISO or Respondent), alleging that the Respondent violated its Open Access Transmission, Energy and Operating Reserve Markets Tariff by collapsing the Commercial Pricing Nodes in the MISO South region, thereby nullifying the value of Financial Transmission Rights purchased by the Complainant, as more fully explained in the complaint.
The Complainant certifies that copies of the complaint were served on the contacts for the Respondent as listed on the Commission's list of corporate officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
The Federal Energy Regulatory Commission (Commission) hereby gives notice that members of its staff may attend the meetings of the Southwest Power Pool, Inc. (SPP) Regional Entity Trustee (RE), Regional State Committee (RSC), SPP Members Committee and Board of Directors, as noted below. Their attendance is part of the Commission's ongoing outreach efforts.
All meetings will be held at the Southwest Power Pool Corporate Center, 201 Worthen Drive, Little Rock, AR 72223.
October 26, 2015 (8:00 a.m.-2:00 p.m.)
October 26, 2015 (1:00 p.m.-5:00 p.m.)
October 27, 2015 (8:00 a.m.-3:00 p.m.)
The discussions may address matters at issue in the following proceedings:
These meetings are open to the public.
For more information, contact Patrick Clarey, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (317) 249-5937 or
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. Cooperating agencies: Federal, state, local, and tribal agencies with jurisdiction and/or special expertise with respect to environmental issues that wish to cooperate in the preparation of the environmental document should follow the instructions for filing such requests described in item l below. Cooperating agencies should note the Commission's policy that agencies that cooperate in the preparation of the environmental document cannot also intervene.
k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
l. Deadline for filing additional study requests and requests for cooperating agency status: November 30, 2015.
The Commission strongly encourages electronic filing. Please file additional study requests and requests for cooperating agency status using the Commission's eFiling system at
m. The application is not ready for environmental analysis at this time.
n. The Gordon Butte Pumped Storage Project would consist of the following new facilities: (1) A manually operated head gate on an existing irrigation canal that provides initial fill and annual make-up water to the lower reservoir from the existing irrigation canal; (2) a 3,000-foot-long, 1,000-foot-wide upper reservoir created by a 60-foot-high, 7,500-foot-long concrete-faced rockfill dam; (3) a reinforced concrete intake/outlet structure at the upper reservoir with six gated intake bays converging into a central 18-foot-diameter, 750-foot-long vertical shaft; (4) an 18-foot-diameter, 3,000-foot-long concrete and steel-lined penstock tunnel leading from the upper reservoir to the lower reservoir; (5) a 2,300-foot-long, 1,900-foot-wide lower reservoir created by a combination of excavation and two 60-foot-high, 500- and 750-foot-long concrete-faced rockfill dams; (6) a partially buried 338-foot-long, 109-foot-wide, 74-foot-high reinforced concrete and steel powerhouse with four 100-megawatt (MW) ternary Pelton turbine/pump/generators; (7) a 600-foot-long, 200-foot-wide substation at the powerhouse site with 13.8- kilovolt (kV) to 230-kV step-up transformers; (8) a 5.7-mile-long, 230-kV transmission line; (9) a substation with a 230-kV to 500-kV step-up transformer, connecting to an existing non-project 500-kV transmission line; and (11) appurtenant facilities. The project is estimated to provide 1,300 gigawatt-hours annually. No federal lands are included in the project.
o. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
p. Procedural schedule: The application will be processed according to the following preliminary Hydro Licensing Schedule. Revisions to the schedule will be made as appropriate.
Take notice that on September 29, 2015, Crescent Point Energy U.S. Corp. (Crescent Point), 555 17th Street, Suite 1800, Denver, Colorado 80202 and Eagle Rock Exploration Ltd. (Eagle Rock), 300, 340-12th Avenue SW., Calgary, Alberta T2R IL5, filed a joint application in the above-referenced docket seeking authorization under section 3 of the Natural Gas Act (NGA) and Part 153 of the Commission's regulations to: (i) Transfer to Crescent Point the NGA section 3 authorization and Presidential Permit that were issued to Eagle Rock on August 5, 2008, in Docket No. CP08-90-000; and (ii) amend the section 3 Authorization and Permit so that it reflects Crescent Point as the current owner and operator of the existing border crossing facility located at the international boundary between Glacier County, Montana, and the Province of Alberta, Canada (Border Crossing Facility). Additionally, Crescent Point
Any questions concerning this application may be directed to Marcus Sisk, Dorsey & Whitney LLP, 1801 K Street NW., Suite 750, Washington, DC 20006, by telephone at (202) 442-3000, or by email at
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit five copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
a.
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f. A summary of the meeting will be prepared and filed in the Commission's public file for the project.
g. All local, state, and federal agencies, Indian tribes, and other interested parties are invited to participate by phone. Please contact Colleen Corballis at
On September 10, 2015, the Federal Energy Regulatory Commission (Commission) issued notice of a proposed restricted service list for the preparation of a programmatic agreement for managing properties included in, or eligible for inclusion in, the National Register of Historic Places at each of the following proposed projects: (1) Beverly Lock & Dam Water Power Project No. 13404; (2) Devola Lock & Dam Water Power Project No. 13405; (3) Malta Lock & Dam Water Power Project No. 13406; (4) Lowell Lock & Dam Water Power Project No. 13407; (5) Philo Lock & Dam Water Power Project No. 13408; (6) and Rokeby Lock & Dam Water Power Project No. 13411. Rule 2010(d)(1) of the Commission's Rules of Practice and Procedure, 18 CFR 385.2010(d)(1) (2014), provides for the establishment of such a list for a particular phase or issue in a proceeding to eliminate unnecessary expense or improve administrative efficiency. Under Rule 385.2010(d)(4), persons on the official service list are to be given notice of any proposal to establish a restricted service list and an opportunity to show why they should also be included on the restricted service list or why a restricted service list should not be established.
On October 2, 2015, Robin Dushane, Tribal Historic Preservation Officer for the Eastern Shawnee, requested that the Eastern Shawnee Tribe be added to the restricted service list for the above referenced projects.
On October 8, 2015, Jay Toth, Tribal archaeologist for the Seneca Nation, requested that the Seneca Nation be added to the restricted service list and be included as a consulting party in the section 106 of the National Historic Preservation Act consultation process so that it may stay apprised and provide project input.
Under Rule 385.2010(d)(2), any restricted service list will contain the names of each person on the official service list, or the person's representative, who, in the judgment of the decisional authority establishing the list, is an active participant with respect to the phase or issue in the proceeding for which the list is established. The Eastern Shawnee Tribe and the Seneca Nation have identified an interest in issues relating to the management of historic properties at the Beverly Lock and Dam Water Power Project, Devola Lock and Dam Water Power Project, Malta/McConnelsville Lock and Dam Water Power Project, Lowell Lock and Dam Water Power Project, Philo Lock and Dam Water Power Project, and Rokeby Lock and Dam Water Power Project. Therefore, they and their representatives will be added to the restrictive service list.
Accordingly, the restricted service list issued on September 10, 2015, for Projects Nos. 13404, 13405, 13406, 13407, 13408, and 13411 is revised to add the following persons:
Robin Dushane or representative, Historic Preservation Officer, Eastern Shawnee Tribe, 12705 S. 705 Rd., Wyandotte, OK 74370.
Jay Toth, or representative, Tribal Archaeologist, Seneca Nation, 90 Ohiyo Way, Salamanca, NY 14779.
In addition, the zip code for the following address from the restricted service list issued on September 10, 2015 is corrected as follows:
John Eddins or Representative, Advisory Council on Historic Preservation, 401 F Street NW., Suite 803, Washington, DC 20001-2637.
Take notice that on September 28, 2015, Cameron LNG, LLC (Cameron LNG) filed an application in Docket No. CP15-560-000 pursuant to section 3(a) of the Natural Gas Act (NGA), and Parts 153 and 380 of the Commission's regulations, for authority to site, construct, and operate facilities to provide additional natural gas processing, storage, and liquefaction capability at the site of the existing Cameron LNG liquefied natural gas terminal located in Cameron and Calcasieu Parishes, Louisiana. The expansion project would increase the Cameron LNG terminal's maximum natural gas liquefaction and export capabilities from 14.95 to 24.92 million tonnes per annum (MPTA), all as more fully set forth in the application, which is on file with the Commission and open to public inspection. This filing may also be viewed on the web at
Any questions regarding this application should be directed to Blair Woodward, General Counsel, Cameron LNG, LLC, 2925 Briarpark Drive, Suite 1000, Houston, Texas 77042, or by calling (832) 783-5582 (telephone), or email
On March 2, 2015, the Commission staff granted Cameron LNG's request to use the pre-filing process and assigned Docket No. PF15-13-000 to staff
Pursuant to section 157.9 of the Commission's regulations, 18 CFR 157.9, within 90 days of this Notice, the Commission's staff will either complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission's staff issuance of the EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to reach a final decision on a request for federal authorization within 90 days of the date of issuance of the Commission staff's EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 7 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Environmental Protection Agency (EPA).
Notice; reopening of comment period.
The Environmental Protection Agency (EPA) is reopening the comment period for the Agency's draft recommended aquatic life water quality chronic criterion for selenium in freshwater. The draft criterion was announced in a July 27, 2015 notice entitled “Request for Scientific Views: Draft Recommended Aquatic Life Ambient Water Quality Chronic Criterion for Selenium—Freshwater 2015.” In response to stakeholder request, EPA is reopening the comment period and will accept scientific views until October 30, 2015.
Comments must be received on or before October 30, 2015. Scientific views postmarked after this date may not receive the same consideration. The previous public comment period ended on October 10, 2015.
Written comments on the notice may be submitted to the EPA electronically, by mail, by facsimile or through hand delivery/courier. Please refer to the proposal (80 FR 44350-44354) for the addresses and detailed instructions.
Kathryn Gallagher at U.S. EPA, Office of Water, Health and Ecological Criteria Division (4304T), 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone: (202) 564-1398; or email:
On July 27, 2015, EPA announced the availability of the draft recommended aquatic life water quality criterion for selenium in a previous notice entitled “Request for Scientific Views: Draft Recommended Aquatic Life Ambient Water Quality Chronic Criterion for Selenium—Freshwater 2015” in the
EPA is reopening the public comment period for the Draft Aquatic Life Ambient Water Quality Criterion for Selenium—Freshwater 2015 (EPA-822-P-15-001). The original 60-day comment period deadline was September 25, 2015. On September 24, 2015, EPA announced in the
Following closure of the public comment period, EPA will consider the public comments and revise the document as necessary. EPA will then publish a
Environmental Protection Agency (EPA).
Notice of public teleconference meeting and public comment.
The U.S. Environmental Protection Agency, Office of Research and Development (ORD), hereby provides notice that the Board of Scientific Counselors (BOSC) Sustainable and Healthy Communities (SHC) Subcommittee will host a public teleconference meeting on Wednesday, November 4, 2015, from 11:00 a.m. to 2:00 p.m., Eastern Time. Deliberations will focus on a draft report summarizing the SHC Subcommittee findings and recommendations from its September 2015 meeting. Documents from the September meeting are available for viewing and downloading at
There will be a public comment period from 11:45 a.m. to 12:00 p.m. Eastern Time. Members of the public are encouraged to provide comments. For additional information about registering to attend the meeting or to provide public comment, please see the
The BOSC SHC Subcommittee teleconference meeting on Wednesday, November 4, 2015, will begin promptly at 11:00 a.m. The conference call may adjourn early if all business is finished or may adjourn late if additional time is needed. Preregistration for the teleconference meeting closes at noon, Monday, November 2, 2015. The deadline to sign up to speak during the public comment period, or to submit written public comment, is also noon, Monday, November 2, 2015. All times noted are Eastern Time.
Participation in the conference call will be by teleconference only; meeting rooms will not be used. Members of the public may obtain the call-in number and access code for the call from Jace Cujé, the Designated Federal Officer (DFO), via any of the contact methods listed in the
Submitting Comments: Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2015-0611, by one of the following methods:
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The Designated Federal Officer (DFO) via mail at: Jace Cujé, Mail Code 8104R, Office of Science Policy, Office of Research and Development, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; via phone/voice mail at: (202) 564-1795; or via email at:
The Charter of the BOSC states that the advisory committee shall provide advice and recommendations on all aspects (technical and management) of the ORD's research program. The BOSC is federal advisory committee chartered under the Federal Advisory Committee Act (FACA), 5 U.S.C., App. 2. Additional information about the BOSC is available at:
This meeting is open to the public. Any member of the public interested in receiving a draft agenda, joining the teleconference, or making a presentation during the teleconference may contact Jace Cujé, DFO, via any of the contact methods listed in the
Federal Mediation and Conciliation Service.
Submission for OMB Review: Request for Comments.
The Federal Mediation and Conciliation Service (FMCS) hereby announces the submission of the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The information collection request is the Notice to Mediation Agencies (Agency Form F-7), OMB control number 3076-0004. No comments were received pursuant to FMCS's prior 60-day notice in the
OMB is interested in comments on specific aspects of the collection. The OMB is particularly interested in comments that:
(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) Evaluates the accuracy of the agency's estimates of the burden of the proposed collection information;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic collection technologies or other forms of information technology.
Comments must be submitted on or before November 19, 2015.
Submit written comments to: Email:
For additional information, see the related 60-day notice published in the
Centers for Medicare & Medicaid Services, HHS.
Notice.
This notice announces the request for nominations for membership on the Medicare Evidence Development & Coverage Advisory Committee (MEDCAC). Among other duties, the MEDCAC provides advice and guidance to the Secretary of the Department of Health and Human Services (the Secretary) and the Administrator of the Centers for Medicare & Medicaid Services (CMS) concerning the adequacy of scientific evidence available to CMS in making coverage determinations under the Medicare program.
The MEDCAC reviews and evaluates medical literature and technology assessments, and hears public testimony on the evidence available to address the impact of medical items and services on health outcomes of Medicare beneficiaries.
Nominations must be received by Monday, December 7, 2015.
You may mail nominations for membership to the following address: Centers for Medicare & Medicaid Services, Center for Clinical Standards and Quality, Attention: Maria Ellis, 7500 Security Boulevard, Mail
Maria Ellis, Executive Secretary for the MEDCAC, Centers for Medicare & Medicaid Services, Center for Clinical Standards and Quality, Coverage and Analysis Group, S3-02-01, 7500 Security Boulevard, Baltimore, MD 21244 or contact Ms. Ellis by phone (410-786-0309) or via email at
The Secretary signed the initial charter for the Medicare Coverage Advisory Committee (MCAC) on November 24, 1998. A notice in the
The MEDCAC is governed by provisions of the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. App. 2), which sets forth standards for the formulation and use of advisory committees, and is authorized by section 222 of the Public Health Service Act as amended (42 U.S.C. 217A).
We are requesting nominations for candidates to serve on the MEDCAC. Nominees are selected based upon their individual qualifications and not solely as representatives of professional associations or societies. We wish to ensure adequate representation of the interests of both women and men, members of all ethnic groups, and physically challenged individuals. Therefore, we encourage nominations of qualified candidates who can represent these interests.
The MEDCAC consists of a pool of 100 appointed members including: 94 at-large standing members (6 of whom are patient advocates), and 6 representatives of industry interests. Members generally are recognized authorities in clinical medicine including subspecialties, administrative medicine, public health, biological and physical sciences, epidemiology and biostatistics, clinical trial design, health care data management and analysis, patient advocacy, health care economics, medical ethics or other relevant professions.
The MEDCAC works from an agenda provided by the Designated Federal Official. The MEDCAC reviews and evaluates medical literature and technology assessments, and hears public testimony on the evidence available to address the impact of medical items and services on health outcomes of Medicare beneficiaries. The MEDCAC may also advise the Centers for Medicare & Medicaid Services (CMS) as part of Medicare's “coverage with evidence development” initiative.
As of June 2016, there will be 35 membership terms expiring. Of the 35 memberships expiring, 1 is an industry representative, 4 are patient advocates, and the remaining 30 membership openings are for the at-large standing MEDCAC membership.
All nominations must be accompanied by curricula vitae. Nomination packages should be sent to Maria Ellis at the address listed in the
We are looking particularly for experts in a number of fields. These include cancer screening, genetic testing, clinical epidemiology, psychopharmacology, screening and diagnostic testing analysis, and vascular surgery. We also need experts in biostatistics in clinical settings, dementia treatment, minority health, observational research design, stroke epidemiology, and women's health.
The nomination letter must include a statement that the nominee is willing to serve as a member of the MEDCAC and appears to have no conflict of interest that would preclude membership. We are requesting that all curricula vitae include the following:
In the nomination letter, we are requesting that nominees specify whether they are applying for a patient advocate position, for an at-large standing position, or as an industry representative. Potential candidates will be asked to provide detailed information concerning such matters as financial holdings, consultancies, and research grants or contracts in order to permit evaluation of possible sources of financial conflict of interest. Department policy prohibits multiple committee memberships. A federal advisory committee member may not serve on more than one committee within an agency at the same time.
Members are invited to serve for overlapping 2-year terms. A member may continue to serve after the expiration of the member's term until a successor is named. Any interested person may nominate one or more qualified persons. Self-nominations are also accepted. Individuals interested in the representative positions must include a letter of support from the organization or interest group they would represent.
Administration for Children and Families, HHS.
Notice of reorganization.
Statement of Organization, Functions, and Delegations of Authority. The Administration for Children and Families (ACF) has reorganized. The reorganization adds
I. Under Chapter K, Administration for Children and Families, delete K.00 Mission in its entirety and replace with the following:
K.00 Mission. The Administration for Children and Families (ACF) provides national leadership and direction to plan, manage, and coordinate the nationwide administration of comprehensive and supportive programs for vulnerable children and families. The Administration oversees and finances a broad range of programs for children and families, including Native Americans, persons with developmental disabilities, refugees, and legalized aliens, to help them develop and grow toward a more independent, self-reliant life. These programs, carried out by state, county, city, and tribal governments, and public and private local agencies, are designed to promote stability, economic security, responsibility, and self-sufficiency.
The Administration coordinates development and implementation of family-centered strategies, policies, and linkages among its programs, and with other federal and state programs serving children and families. The Administration's programs assist families in financial crisis, emphasizing short-term financial assistance, and education, training and employment for the long term. Its programs for children and youth focus on those children and youth with special problems, including children of low-income families, abused and neglected children, those in institutions or requiring adoption or foster family services, runaway youth, children with disabilities, migrant children, and Native American children. The Administration promotes the development of comprehensive and integrated community and home-based modes of service delivery where possible. The Administration provides national leadership to develop and coordinate public and private programs and serves as a focal point for states in the provision of financial assistance and intervention programs that promote and support permanence for children and family stability. The Administration advises the Secretary on issues pertaining to children and families, including Native Americans, refugees, and legalized aliens.
II. Under Chapter K, Administration for Children and Families, delete K.10 Organization in its entirety and replace with the following:
K.10 Organization. The Administration for Children and Families (ACF) is a principal operating division of the Department of Health and Human Services (HHS). The Administration is headed by the Assistant Secretary for Children and Families, who reports directly to the Secretary. The Assistant Secretary also serves as the Director of Child Support Enforcement. In addition to the Assistant Secretary, the Administration consists of the Principal Deputy Assistant Secretary, the Chief of Staff, the Deputy Assistant Secretary for Administration, the Deputy Assistant Secretary for Policy, the Deputy Assistant Secretary for Early Childhood Development, the Deputy Assistant Secretary for External Affairs, and Staff and Program Offices. ACF is organized as follows:
III. Under Chapter KA, Office of the Assistant Secretary for Children and Families, delete KA.20 Functions, Paragraph A in its entirety and replace with the following:
KA.20 Functions. A. Office of the Assistant Secretary for Children and Families: The Office of the Assistant Secretary for Children and Families is responsible to the Secretary for carrying out ACF's mission and provides executive supervision of the major components of ACF. These responsibilities include providing executive leadership and direction to plan and coordinate ACF program activities to ensure their effectiveness; approving instructions, policies, publications, and grant awards issued by ACF; and representing ACF in relationships with governmental and non-governmental organizations. The Principal Deputy Assistant Secretary serves as an alter ego to the Assistant Secretary for Children and Families on program matters and acts in the absence of the Assistant Secretary for Children and Families. The Chief of Staff advises the Assistant Secretary for Children and Families and provides executive leadership and direction to the operations of ACF. The Deputy Assistant Secretary for External Affairs provides executive leadership and direction to the Offices of Regional Operations and Communications. The Deputy Assistant Secretary for Early Childhood Development serves as a key liaison and representative to the Department for early childhood development on behalf of the Assistant Secretary, ACF, and to other agencies across the government on behalf of the Department. The Deputy Assistant Secretary for Policy has responsibility for cross-program coordination of ACF initiatives, including efforts to promote interoperability and program integration.
IV. Under Chapter KJ, Office of Regional Operations, delete KJ in its entirety and replace with the following:
KJ.00 Mission. The Office of Regional Operations (ORO) advises the Assistant Secretary for Children and Families through the Deputy Assistant Secretary for External Affairs on all strategic and operational activities related to implementation of agency goals and priorities at the regional level. ORO oversees the performance of the Offices of the Regional Administrators (ORA) on coordination of cross-cutting and special emphasis programs and initiatives, emergency preparedness, tribal government relations, state, and local ACF-related affairs, and administrative functions in Regions I-X, Offices of the Regional Administrators (ORA).
The ORAs are located in the ten HHS Regional Offices: Region I (Boston), Region II (New York), Region III (Philadelphia), Region IV (Atlanta), Region V (Chicago), Region VI (Dallas), Region VII (Kansas City), Region VIII (Denver), Region IX (San Francisco), and Region X (Seattle). Each ORA, through the Director, ORO, and in coordination with ACF Program Directors, represents ACF to states, counties, cities, or towns, territories, and tribal governments, grantees, and public and private local organizations. The ORA coordinates issues that may have significant regional or national impact. The ORA develops plans in conjunction with the
KJ.10 Organization. The Office of Regional Operations (ORO) is headed by a Director who reports to the Assistant Secretary through the Deputy Assistant Secretary for External Affairs. The ORO is organized as follows:
KJ.20 Functions. A. Office of the Director (KJA): The Office of the Director (OD) provides executive leadership and assistance on all strategic and operational activities related to implementation of the agency's national goals and priorities at the regional level. The Director is the principal advisor to the Assistant Secretary for Children and Families through the Deputy Assistant Secretary for External Affairs on regional matters involving special emphasis programs and initiatives, emergency preparedness, tribal government relations, state and local ACF partnership activities, and regional administrative functions. The Director represents the Assistant Secretary for Children and Families within HHS and with other federal agencies and task forces on regional activities.
The OD: (1) Oversees the Regional Administrators in administering regional activities and implementing cross-cutting program initiatives; (2) serves as a focal point for operational and long-range planning; and (3) coordinates with the ACF Central Office components to ensure that the Regional Administrators can help coordinate certain national priorities and initiatives, state and local partnership activities, special programs, and emergency preparedness and response operations.
B. Regional Operations Staff (KJB): The Regional Operations Staff: (1) Develops and manages liaison processes between ACF Regional Offices and the Assistant Secretary for Children and Families; (2) supports the Offices of the Regional Administrators (ORA) of each region by implementing and overseeing the management systems and procedures for communication and workload that emanate from ACF national priorities and initiatives, special emphasis programs, emergency preparedness, tribal government relations, and state and local ACF partnership activities; (3) monitors and evaluates ORA operations and makes plans for the utilization of regional resources to accomplish approved objectives; and (4) manages administrative and human resources functions, and salaries and expenses for the ORA.
C. Offices of the Regional Administrators (KJDI-X): Each of the ORAs is headed by a Regional Administrator who reports to the Deputy Assistant Secretary for External Affairs through the Director, ORO. Each Office: (1) Helps support ACF's key national goals and priorities; (2) communicates ACF's regional interests, concerns, and relationships within HHS and among other federal agencies and focuses on state agency culture change, more effective partnerships, and improved customer service; (3) manages special and sensitive projects; (4) serves as a focal point for public affairs and contacts with the media, public awareness activities, information dissemination, and education campaigns in coordination with the ACF Office of Communications and in conjunction with the HHS Regional Director; (5) assists the ACF Regional Administrator in the management of cross-cutting initiatives and activities among the regional components; and (6) as appropriate, and in coordination with the ACF Central Office components, assists with activities relating to developmental disabilities, refugee resettlement, economic and community development, tribal and special initiative activities.
The Regional Administrators: (1) Oversee the management of ACF regional staff in the ORA; (2) coordinate activities across regional programs; (3) ensure that goals and objectives are carried out; and (4) alert the Assistant Secretary for Children and Families through the Director, ORO, the DAS of External Affairs, and/or Central Office ACF Program Directors to problems and issues that may have significant regional or national impact.
As requested by the Director of Regional Operations or Central Office ACF Program Directors, the ORA represents ACF at the regional level in executive communications within ACF, with the HHS Regional Director, other HHS Operating Divisions, other federal agencies, and public or private local organizations.
Within the ORA, an administrative staff: (1) develops regional work plans, in coordination with Central Office Program Directors, related to the overall ACF strategic plans, and tracks, monitors, and reports on regional progress in the attainment of ACF national goals and objectives; (2) coordinates routine budget, administrative, and human resource functions as required, including Executive Secretariat, ACF-controlled space, computer and computer peripheral equipment, and health and safety for the ORA; (3) coordinates ACF programs during emergencies in the regions, including natural disasters, pandemic flu, or other disasters; (4) serve as ACF's focal point for Continuity of Operations Program planning, implementation, and coordination; (5) coordinates regional ACF deployments of human services assessments and action teams during state and/or federally declared emergencies and disasters; and (6) coordinates resources for regional special emphasis activities with the HHS Regional Director's office.
V. Under Chapter KN, Office of Public Affairs, delete KN in its entirety and replace with the following:
KN.00 Mission. The Office of Communications (OC) develops, directs, and coordinates public affairs and communication services for ACF. It provides leadership, direction and oversight in promoting ACF's public affairs policies, programs, and initiatives. OC oversees Freedom of Information Act requests, digital communications, and also provides printing and distribution services for ACF.
KN.10 Organization. OC is headed by a Director who reports to the Assistant Secretary through the Deputy Assistant Secretary for External Affairs. The Office is organized as follows:
KN.20 Functions. A. The Office of Director provides leadership and direction to the Office of Communications in administering its responsibilities. The Office provides direction and leadership in the areas of public relations policy and internal and external communications services. It serves as advisor to the Assistant Secretary for Children and Families through the Deputy Assistant Secretary for External Affairs in the areas of public affairs; provides advice on strategies and approaches to be used to improve public understanding of and access to ACF programs and policies; and coordinates and serves as ACF liaison with the Assistant Secretary for Public Affairs. The Office serves as Regional Liaison on public affairs issues.
B. Division of News and Media develops and implements public affairs strategies to achieve ACF program objectives in coordination with other ACF components. It coordinates news media relations strategy; responds to all media inquiries concerning ACF programs and related issues; develops fact sheets, news releases, feature articles for magazines and other publications on ACF programs and initiatives; and manages preparation and clearance of speeches and official statements on ACF programs. It coordinates regional public affairs policies and public affairs activities pertaining to ACF programs and initiatives.
C. Division of Digital Information manages the ACF Web site, social media accounts, audio-visual, publications, and printing management systems for ACF. It manages preparation and clearance of all ACF audio-visual product, publications, and graphic designs, including planning, budget oversight, and technical support. It provides centralized graphics design services to ACF. It reviews requests for proposals for contracts and grants that involve publications, audio-visual materials and/or public information, and education activity. It manages all ACF Web site content, 508 compliance, and other federal laws and regulations governing digital media.
D. Division of Freedom of Information Act (FOIA) implements elements of ACF's Open Government Initiative. The FOIA division receives requests under the FOIA statue, elicits the requested records from program offices, reviews the records and redacts accordingly, and provides responses to the requestor.
VI. Under Chapter KW, Create the Office of Human Services Emergency Preparedness and Response:
KW.00 Mission. The Office of Human Services Emergency Preparedness and
OHSEPR coordinates ACF's work in emergency preparedness, response, and recovery planning, policy, and operations, working in close partnership with ACF Program Offices and the Immediate Offices of the Regional Administrators. OHSEPR supports fulfillment of disaster human services within the integrated response and recovery operations of the Department of Health and Human Services (HHS). OHSEPR administers the Human Services Immediate Disaster Case Management Program, which is the FEMA HHS alternate of the Disaster Case Management Program.
KW.10 Organization. OHSEPR is headed by a Director, who reports to the Assistant Secretary, and consists of:
KW.20 Functions. A. The OD is responsible for the administrative oversight and strategic direction of all OHSEPR programs, projects, and activities. The Office of the Director implements the strategic vision of the Director, manages budgetary and legal matters affecting OHSEPR, administers human resources and program evaluation functions, and assures alignment of activities by all OHSEPR divisions with the Director's strategy and applicable laws, policies, doctrines, and frameworks related to the provision of HHS ACF disaster human services.
The Administrative Team provides administrative and budget support to OHSEPR. These responsibilities include, but are not limited to: (1) serving as the Executive Secretariat for OHSEPR, including managing correspondence, correspondence systems, and public requests; (2) coordinating human resources activities; and (3) as appropriate, development of internal policies and procedures relating to these activities.
B. Division of Disaster Case Management is responsible for administration of the Human Services Disaster Case Management Program to assist states, tribes, and territories in establishing the capacity to coordinate and provide case management services in the event of a presidentially declared disaster for which Individual Assistance is approved. This Division develops and maintains the capability to deploy Immediate Disaster Case Management (IDCM) teams upon activation by the Federal Emergency Management Agency (FEMA). The Division manages contracts for IDCM staffing assets and infrastructure, and for electronic case record to support provision of IDCM services to survivors in states and tribes as tasked by FEMA.
C. Division of Emergency Planning, Policy and Operations is responsible for administration of ACF human services preparedness, response, and recovery for disasters and public health emergencies, as well as “steady state” capabilities necessary to maintain readiness for response or recovery operations to future events. The Division manages deployable and non-deployable capabilities for operations, including ACF's Watch Desk and threat analysis, situational awareness reporting, deployment of requested emergency response and recovery staffing assets, coordination of ACF support for federal emergency missions, and liaison with federal interagency and other partners in response and recovery. This Division is responsible for administration of OHSEPR's activities to promote emergency preparedness of ACF programs, community resilience to the human services impacts of disasters and public health emergencies, and participation in HHS-wide and government-wide emergency planning and policymaking. The Division manages preparedness activities and messaging. The Division coordinates fulfillment of ACF participation in Departmental and federal policy workgroups related to disasters, tools and guidance intended to promote preparedness of ACF programs and community resilience for ACF served populations, and training and exercise programs to continually improve ACF's capacity to support disaster human services for affected populations.
VII. Continuation of Policy
Except as inconsistent with this reorganization, all statements of policy and interpretations with respect to organizational components affected by this notice within the Administration for Children and Families, heretofore issued and in effect on this date of this reorganization are continued in full force and effect.
VIII. Delegation of Authority
All delegations and re-delegations of authority made to officials and employees of affected organizational components will continue in them or their successors pending further re-delegations, provided they are consistent with this reorganization.
IX. Funds, Personnel, and Equipment
Transfer of organizations and functions affected by this reorganization shall be accompanied in each instance by direct and support funds, positions, personnel, records, equipment, supplies, and other resources.
This reorganization will be effective upon date of signature.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting:
After Committee discussions, members of the public will have an opportunity to comment. Because of the Committee's full agenda and timeframe in which to cover the agenda topics, public comment will be limited. All public comments will be included in the record of the ACOT meeting. Meeting summary notes will be posted on Department's organ donation Web site at
The draft meeting agenda will be posted on
The public can join the meeting by:
1. (Audio Portion) Calling the Conference P hone Number (1-800-832-0736) and providing the Participant Code (1337210); and
2. (Visual Portion) Connecting to the ACOT Adobe Connect Pro Meeting using the following URL
Participants should call and connect 15 minutes prior to the meeting for logistics to be set up. If you have never attended an Adobe Connect meeting, please test your connection using the following URL:
Call 202-289-8322 or send an email to
The allocation of time may be adjusted to accommodate the level of expressed interest. Persons who do not file an advance request for a presentation, but desire to make an oral statement, may request it during the public comment period. Public participation and ability to comment will be limited to time as it permits.
Patricia Stroup, MBA, MPA, Executive Secretary, Healthcare Systems Bureau, Health Resources and Services Administration, 5600 Fishers Lane, Room 17W65, Rockville, MD 20857; telephone 301-443-1127.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, codified at 5 U.S.C. App.), notice is hereby given of the following meeting:
Name: Advisory Committee on Heritable Disorders in Newborns and Children.
Dates and Times: November 3, 2015, 9:00 a.m. to 4:00 p.m.
Place: Webinar.
Status: The meeting will be open to the public. Please register at
Purpose: The Advisory Committee on Heritable Disorders in Newborns and Children (Committee), as authorized by the Public Health Service Act (PHS), Title XI, § 1111 (42 U.S.C. 300b-10), was established to advise the Secretary of the Department of Health and Human Services about the development of newborn screening activities, technologies, policies, guidelines, and programs for effectively reducing morbidity and mortality in newborns and children having, or at risk for, heritable disorders. In addition, the Committee's recommendations regarding additional conditions/inherited disorders for screening that have been adopted by the Secretary are included in the Recommended Uniform Screening Panel (RUSP) and constitute part of the comprehensive guidelines supported by the Health Resources and Services Administration. Pursuant to section 2713 of the Public Health Service Act, codified at 42 U.S.C. 300gg-13, non-grandfathered health plans and group and individual health insurance issuers are required to cover screenings included in the HRSA-supported comprehensive guidelines without charging a co-payment, co-insurance, or deductible for plan years (
Agenda: The meeting will include: (1) Discussion and vote on the statutory Committee's proposed bylaws, (2) a discussion of nomination process for prospective organizational representatives, (3) a presentation on the Notice of Proposed Rulemaking on Federal Policy for the Protection of Human Subjects and the potential impact on newborn screening research, (4) updates from the Pilot Study Workgroup, Cost Analysis Workgroup, and Timeliness Workgroup, (5) a presentation on transition models from pediatric to adult health care using innovative strategies, and (6) a presentation on current education activities within newborn screening and impact on families and children. There are no votes that involve proposed additions of a condition to the RUSP scheduled for this meeting.
Agenda items are subject to change as necessary or appropriate. The agenda, webinar information, Committee Roster, Charter, presentations, and other meeting materials will be located on the Advisory Committee's Web site at
Registration: Registration information will be on the Committee Web site at
Public Comments: Members of the public may present oral comments and/or submit written comments. Comments are part of the official Committee record. Advance registration is required to present oral comments and/or submit written comments. Oral public comments are tentatively scheduled for November 3, 2015. Individuals who wish to present oral public comments must indicate this when registering. Written comments may be uploaded on the registration Web site and must be received by the registration deadline (October 30, 11:59 p.m. Eastern Time), as this will allow them to be included in the November meeting briefing book. Individuals who wish to present oral comments and/or provide written comments should identify on the registration Web site the individual's name, address, email, telephone number, professional or business affiliation, type of expertise (
Contact Person: Anyone interested in obtaining other relevant information should contact Debi Sarkar, Maternal and Child Health Bureau, Health Resources and Services Administration, Room 18W68, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857; email:
More information on the Advisory Committee is available at
Health Resources and Services Administration, HHS.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects (Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995), the Health Resources and Services Administration (HRSA) announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this Information Collection Request must be received no later than December 21, 2015.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
When submitting comments or requesting information, please include the information request collection title for reference.
The purpose of this revision is to include an addendum to the PPA to incorporate the administrative requirement for manufacturer integrity provisions directly addressed in the Affordable Care Act.
I. “Each such agreement shall require that the manufacturer furnish the Secretary with reports, on a quarterly basis, of the price for each covered outpatient drug subject to the agreement that, according to the manufacturer, represents the maximum price that covered entities may permissibly be required to pay for the drug (referred to in this section as the “ceiling price”) and
II. “. . . shall require that the manufacturer offer each covered entity covered outpatient drugs for purchase at or below the applicable ceiling price if such drug is made available to any other purchaser at any price.”
These requirements shall be included in the PPA addendum to be signed by manufacturers participating in the 340B Program to ensure that the provisions of the 340B statute requiring inclusion in the PPA are satisfied. The execution of the addendum by manufacturers will fulfill the administrative requirement of the statute that these provisions be included in the PPA. The burden imposed on manufacturers by the proposed requirement of the PPA is minimal because the addendum does not impose requirements beyond review and a signature by the manufacturer.
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Office of the Secretary, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). The ICR is for extending the use of the approved information collection assigned OMB control number 0945-0002, which expires on 12/31/2015. Prior to submitting the ICR to OMB, OS seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on the ICR must be received on or before December 21, 2015.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the document identifier HHS-OS-0945-0002-60D for reference.
OMB No. 0945-0002—Extension—Office of Civil Rights.
OS specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Office of the Secretary (OS), Department of Health and Human Services (HHS).
Notice to establish a new Privacy Act system of records.
In accordance with the requirements of the Privacy Act of 1974, as amended (5 U.S.C. 552a), the Office of Medicare Hearings and Appeals (OMHA) within the Office of the Secretary of Health and Human Services (HHS) is establishing a new system of records, System No. 09-90-1501, entitled “Administrative Law Judge (ALJ) Working File, Office of Medicare Hearings and Appeals,” to cover OMHA ALJ working files previously maintained as part of the Social Security Administration's (SSA) ALJ Working File system of records 60-0005 (last published at 74 FR 19617). The working files covered under new System of Records Notice (SORN) 09-90-1501 are created and used by OMHA ALJs and members of their staffs for internal purposes, to document actions taken by OMHA at the hearing level in each Medicare appeal case that OMHA reviews. The working files are separate from the official case files, which are covered under other SORNs (
This system notice is effective immediately, with the exception of the routine uses. The routine uses will be effective 30 days after publication, unless HHS receives comments that warrant a revision to this Notice.
Send public comments by mail or email to: Andrea Monson, Director, Division of Information Management and Systems, 1700 North Moore Street, Suite 1800, Arlington, VA 22209, 703-235-0635,
Andrea Monson, Director, Division of Information Management and Systems, 1700 North Moore Street, Suite 1800, Arlington, VA 22209, 703-235-0635,
The Medicare claims appeals process consists of four levels of administrative review within HHS, and a fifth level of review with the federal district courts after administrative remedies within HHS have been exhausted. The first two levels of review are administered by the Centers for Medicare & Medicaid Services (CMS) and conducted by Medicare contractors. The third level of review is administered by OMHA and is conducted by ALJs. Subsequent reviews are conducted at the fourth level of appeal within the Departmental Appeals Board (DAB), and at the fifth level by the federal district courts.
The Medicare entitlement and premium appeals process consists of three levels of administrative review, and a fourth level of review with the federal district courts after administrative remedies have been exhausted. The first level is the reconsideration level conducted by SSA. The second level of review is administered by OMHA and is conducted by ALJs. Subsequent reviews are conducted at the third level of appeal within the DAB and at the fourth level by the federal district courts.
The Department established OMHA in June, 2005, pursuant to section 931 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Pub. L. 108-173) (MMA), which required the transfer of responsibility for the ALJ hearing function of the Medicare claims and entitlement appeals process from SSA to HHS. The MMA requires a unified case tracking system that facilitates the maintenance and transfer of case-specific data across both the fee-for-service and managed care components of the Medicare program. HHS' CMS operates the unified case tracking system required by MMA, which is covered by CMS System of Record Notice No. 09-70-0566, entitled “Medicare Appeals System” (MAS SORN).
OMHA's adjudication process uses a “case file” comprising the official agency record, and an ALJ working file. The case file will continue to be covered by CMS' MAS SORN for Medicare claims appeals. The case file for Medicare entitlement and premium appeals will continue to be covered by the SSA Claims Folders System, Social Security Administration Claims Folders System, Social Security Administration, Office of the General Counsel, Office of Public Disclosure (60-0089). The case file is used throughout the administrative appeals process by the various levels of review.
Only OMHA's ALJ working files will now be covered in the new system of records established by this Notice, to reflect that they are used only by OMHA.
The Privacy Act (5 U.S.C. 552a) governs the means by which the U.S. Government collects, maintains, and uses information about individuals in a system of records. A “system of records” is a group of any records under the control of a federal agency from
Administrative Law Judge (ALJ) Working File, Office of Medicare Hearings and Appeals (OMHA).
Unclassified.
Records are maintained at OMHA headquarters and field offices. Address information is available by accessing the OMHA Web site:
Records pertain to individuals involved in Medicare appeals adjudicated by OMHA, including Medicare beneficiaries or enrollees; physicians; providers; practitioners; suppliers; State Medicaid agencies; other individuals involved in furnishing items and services to health insurance beneficiaries or enrollees; and authorized or appointed representatives of such individuals.
OMHA administers nationwide ALJ hearings for appeals of Medicare Part A and Part B claim determinations, Part C organization determinations, Part D coverage determinations that are made by CMS contractors, and appeals of Medicare entitlement and monthly premium determinations made by SSA.
OMHA establishes ALJ working files as a record of actions taken on each particular appeal. The file may contain copies of information from the administrative record, such as the request for hearing, hearing recording, notice of hearing, decision, and exhibit list, as well as copies of post-adjudicative material received and any responses made. Official copies of these materials are placed in the official agency record (case file). The ALJ working file also may contain deliberative working papers such as notes taken during the hearing by the ALJ; case analyses prepared by field office employees; attorney work product; working papers of field office staff; and other case developmental and decision-related notes and instructional sheets. Information in these records that could pertain to individuals includes protected health information; Health Insurance Claim Number (HICN); Social Security Number (SSN); Provider Number, name, address, and other contact information; and billing, tax, and other financial information.
Authority for maintenance of the system is given under § 205 of Title II, §§ 1155 and 1156 of Title XI, §§ 1812, 1814, 1816, 1842, 1869, and 1872 of Title XVIII of the Social Security Act (the Act), as amended (42 United States Code (U.S.C.) sections 405, 1320c-4, 1320c-5, 1395d, 1395f, 1395h, 1395u, 1395ff, and 1395ii). Additional authority for this system is given under Title IX, Subtitle D of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Public Law (Pub. L.) 108-173).
OMHA uses the records in this system of records to reference the actions OMHA takes in a particular case at the hearing level. For example, during the course of adjudication at the ALJ hearing level, ALJs and members of their staff often construct documents for internal purposes only regarding the evidence, testimony, legal theories, merits of the case, and opinions and advice regarding other factors involved in the case.
Relevant information about an individual may be disclosed from this system of records to parties outside HHS, without the individual's prior, written consent, pursuant to these routine uses.
Note: Any information defined as “return or return information” under 26 U.S.C. 6103 of the Internal Revenue Code (IRC) will not be disclosed unless authorized by the IRC, the Internal Revenue Service (IRS), or IRS regulations.
1. To a Member of Congress or to a Congressional staffer in response to a written inquiry of the Congressional office made at the written request of the constituent about whom the record is maintained. The Member of Congress does not have any greater authority to obtain records than the individual would have if requesting the records directly.
2. To the Department of Justice (DOJ), a court or other tribunal, or another party before such tribunal, when:
(a) HHS or any component thereof; or
(b) any HHS employee in his or her official capacity; or
(c) any HHS employee in his or her individual capacity where DOJ (or HHS where it is authorized to do so) has agreed to represent the employee; or
(d) the United States Government,
is a party to litigation or has an interest in such litigation and, by careful review, HHS determines that the records are both relevant and necessary to the litigation and that, therefore, the use of such records by DOJ, the court or other tribunal, or another party before such tribunal is deemed by HHS to be compatible with the purpose for which HHS collected the records.
3. To IRS, as necessary, for the purpose of auditing HHS's compliance with safeguard provisions of the IRC, as amended.
4. To contractors and other federal agencies that have been engaged by HHS to assist in accomplishment of an HHS function relating to the purposes of the system of records and that have a need to have access to the records in order to assist HHS in performing the activity. Any contractor will be required to comply with the requirements of the Privacy Act of 1974.
5. To the National Archives and Records Administration (NARA) in records inspections conducted under the authority of 44 U.S.C. 2901
6. To student volunteers and other workers performing functions for HHS but technically not having the status of agency employees, if they need access to the records in order to perform their assigned functions.
7. To federal, state, and local law enforcement agencies and private security contractors, as appropriate, if information is necessary
(a) to enable them to protect the safety of HHS employees and customers, the security of the HHS workplace, and the operation of HHS facilities; or
(b) to assist investigations or prosecutions with respect to activities that affect such safety and security or activities that disrupt the operation of HHS facilities.
8. To appropriate federal agencies and Department contractors that have a need to know the information for the purpose
Information about an individual may also be disclosed to parties outside HHS without the individual's prior, written consent for any of the uses authorized directly in the Privacy Act at 5 U.S.C. 552a(b)(2) and (b)(4)-(11).
STORAGE: Records are maintained in electronic and paper form. Currently, OMHA headquarters and field offices keep ALJ working files in paper form. New technology will allow OMHA to store information electronically in the Electronic Case Adjudication and Processing Environment (ECAPE). As a result, records in this system may be paper and electronic.
RETRIEVABILITY: Information is retrieved by name, Social Security Number (SSN), Health Insurance Claim Number (HICN), and assigned provider number or appeal number.
SAFEGUARDS: Only authorized OMHA personnel that have a need for the information in the performance of their official duties are permitted access to the information.
Security measures for electronic access include a minimum of a two-factor authentication solution (such as the use of a Personal Identity Verification (PIV) Card and Personal Identification Number (PIN)) to enter the computer system that will maintain the data, and storage of the computerized records in secured areas that are accessible only to employees who require the information in performing their official duties. Manually maintained records are kept in locked cabinets or in otherwise secure areas.
Personnel allowed access to the records have been trained in the Privacy Act and information security requirements. Employees who maintain records in this system of records are instructed not to release data to an authorized recipient until the intended recipient agrees to implement appropriate management, operational and technical safeguards sufficient to protect the confidentiality, integrity and availability of the information and information systems and to prevent unauthorized access.
This system will conform to all applicable federal laws and regulations and federal and HHS policies and standards as they relate to information security and data privacy. These laws and regulations may apply but are not limited to: The Privacy Act of 1974; the Federal Information Security Management Act of 2002; the Computer Fraud and Abuse Act of 1986; the Health Insurance Portability and Accountability Act of 1996; the E-Government Act of 2002, the Clinger-Cohen Act of 1996; the Medicare Modernization Act of 2003, and the corresponding implementing regulations. OMB Circular A-130, Management of Federal Resources, Appendix III, Security of Federal Automated Information Resources also applies. Federal and HHS policies and standards include but are not limited to: All pertinent National Institute of Standards and Technology publications; the HHS Information Systems Program Handbook and the CMS Information Security Handbook.
RETENTION AND DISPOSAL: OMHA will destroy electronic and paper records by deleting or shredding them 3 years after the final action is taken (see NARA-approved records schedule DAA-0468-2012-0003).
Andrea Monson, Director, Division of Information Management and Systems, 1700 North Moore Street, Suite 1800, Arlington, VA 22209.
An individual can determine if this system contains a record about him or her by making a written notification request to the System Manager, showing proof of identity, and providing the system name, the subject individual's name, HICN, address, date of birth, and gender. Furnishing the SSN is voluntary.
An individual can obtain access to a record about him or her by using the same procedures outlined in Notification Procedures above and specifying the record contents sought.
The requesting individual should contact the System Manager named above, and reasonably identify the records and specify the information contested. In addition, the individual should state the corrective action sought and the reasons for the correction and provide supporting justification.
Information in this system of records is obtained from individuals who complete a form requesting a Medicare hearing or appeal, from CMS and its contractors, and from SSA.
This system of records is not a type of system eligible to be exempted from certain Privacy Act requirements under subsections (j) and (k) of the Privacy Act (5 U.S.C. 552a(j)(k)); however, to the extent that records contained in the ALJ working files constitute material compiled in reasonable anticipation of a civil action or proceeding, they will be exempt from the Privacy Act's access requirement under 5 U.S.C. 552a(d)(5).
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.
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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning
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 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.
15 U.S.C. 3719
The National Institutes of Health (NIH) Office of the Associate Director for Data Science (ADDS) announces a collaboration with the Wellcome Trust (WT) and the Howard Hughes Medical Institute (HHMI) to launch the “Open Science Prize” (the “Challenge”) to encourage and support the prototyping and development of services, tools and/or platforms that enable open content—including publications, datasets, code and other research outputs—to be discovered, accessed and re-used in ways that will advance research, spark innovation, and generate new societal benefits. The Challenge is necessary to accelerate the field of “open” biomedical research beyond what current funding mechanisms can achieve. For the NIH, this Challenge is being launched under the America COMPETES Reauthorization Act of 2010.
February 29, 2016: Phase I submissions due
April 30, 2016: Announce Phase I winners; Phase II begins
December 1, 2016: Phase II submissions due
February 28, 2017: Phase II winner announced
The NIH will announce any changes to the timeline by amending this
To register for this Challenge, Challenge participants may access the registration on the Challenge Web site (
Audie A. Atienza, Ph.D. (NIH),
In order to stimulate innovation, the National Institutes of Health (NIH) Office of the Associate Director for Data Science (ADDS), in conjunction with Challenge Partners, the Wellcome Trust (WT) and the Howard Hughes Medical Institute (HHMI), is launching the “Open Science Prize” (the “Challenge”); a prize competition to inspire the prototyping and development of services, tools, or platforms that enable open content—including publications, datasets, code and other research outputs—to be discovered, accessed and re-used in ways that will advance research, spark innovation and generate new societal benefits. The NIH is using the America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science (COMPETES) Reauthorization Act of 2010 to support this Challenge.
The goal of this Challenge is to stimulate the development of novel and ground-breaking tools and platforms to enable the reuse and repurposing of open digital research objects (
This Challenge provides a new and innovative avenue for developing the best ideas in this arena. Through the Challenge, the NIH, WT, and HHMI hope to encourage novel ideas and innovations that seek to unlock the vast potential benefits of making biomedical/health content and data open and re-useable, to demonstrate the huge potential value of open science approaches, and to generate excitement, momentum, and further investment. This Challenge also encourages international collaborations among technology innovators, health researchers, and biomedical informatics entities to address “Open Science” development. In building partnerships between innovators in the U.S. and abroad, unique resources can be combined and leveraged to facilitate global health research objectives relevant to the mission of the NIH, increase rapid adoption of Open Science research tools across the globe, and enhance the generalizability of data sharing among researchers and practitioners internationally.
The NIH, WT, and HHMI are seeking to utilize the developer challenge model in the area of “Open Science” that is as open, flexible, and interactive as possible, so as to encourage the development of new collaborations as well as new ideas. Solvers are invited to use innovative approaches to develop applications and platforms that integrate, repurpose and/or repackage open digital resources relevant to health and biomedical research. The Challenge is open both to those who have new ideas and require some funding to take it to the prototype stage, and those with initial early-stage prototypes who wish to develop them further for cross-national or international adoption.
There will be two (2) phases to this Challenge. For Phase I, Solvers will submit written proposals for prototype designs and development plans to enable the reuse and repurposing of open digital research objects relevant to biomedical or health applications. For Phase II, Solvers (
Pursuant to Section 402 of the Public Health Service Act, 42 U.S.C. 282(b)(12), the NIH is authorized to reserve funds to provide for research on matters that have not received significant funding relative to other matters, to respond to new issues and scientific emergencies, and to act on research opportunities of high priority. The Open Science Prize is designed to incentivize innovation at the intersection of Open Science (
1. To Participate. This Challenge is open to any “Solver” where “Solver” is defined as (a) a group of individuals where at least one individual is a citizen or permanent resident of the United States, and at least one individual is citizen or permanent resident from a country other than the United States; or (b) a group of two or more public or private entities where at least one entity is incorporated in and maintains a primary place of business in the United States, and at least one entity is incorporated in and maintains a primary place of business in a country other than the United States. Phase II of this Challenge is open to Phase I winners only. Individuals participating in the Challenge who are younger than 18 years of age, whether as part of a team of individuals or a team of entities, must have their parent or legal guardian complete the Parental Consent Form found at
2. Eligibility Rules for Winning the Challenge. To be eligible to win a prize for this Challenge, the Solver and its members, as applicable, shall have complied with all the Official Rules.
3. In addition to satisfying the above eligibility requirements—
a. The Solver shall have registered to participate in the Challenge under the rules promulgated by the sponsoring organizations (NIH, WT, HHMI) (as published in this notice);
b. The Solver shall have complied with all the requirements under this section;
c. The Solver, including each entity member, may not be a U.S. federal entity;
d. The Solver, including each individual member, may not be a U.S. federal employee acting within the scope of his or her employment and further, in the case of the U.S. Department of Health and Human Services employees may not work on their Entries during assigned duty hours. Note: Federal ethical conduct rules may restrict or prohibit U.S. federal employees from engaging in certain outside activities, so any federal employee not excluded under the prior paragraph seeking to participate in this Challenge outside the scope of employment should consult his/her agency's ethics official prior to developing an Entry; and
e. The Solver, including each individual member, may not be an employee of the NIH, a judge of the Challenge, or any other party involved with the design, production, execution, or distribution of the Challenge or the immediate family member of such a party (
f. Note on Awards: Monetary prizes provided by the WT and HHMI for the Challenge will be awarded separately from the NIH monetary prizes.
i. NIH monetary prizes: In the case of individuals participating on a team of individuals, only individuals who are citizens or permanent residents of the United States are eligible for the NIH monetary prizes. Individuals who are not citizens or permanent residents of the United States can participate as a member of a team that otherwise satisfies the eligibility criteria but will not be eligible to win an NIH monetary prize (in whole or in part); however, their participation as part of a winning team, if applicable, may be recognized by the NIH when results are announced. In the case of private entities participating on a team of entities, only entities incorporated in and maintaining a primary place of business in the United States are eligible for the NIH monetary prizes. Private entities that are not incorporated in and do not maintain a primary place of business in the United States will not be eligible to win an NIH monetary prize (in whole or in part); however, should such an entity collaborate with a winning, and otherwise eligible, team such an entity may be recognized by the NIH when results are announced.
ii. WT/HHMI monetary prizes. U.S. citizenship/residency (for individuals) or U.S. incorporation/place of business (for entities) is not a requirement to be eligible for the monetary prizes awarded by WT/HHMI.
4. Federal grantees may not use federal funds (
5. Federal contractors may not use federal funds from a contract (
6. Any Solver that is or has a member currently on the Excluded Parties List (
7. Entries must not infringe upon any copyright or any other rights of any third party.
8. A Solver shall not be deemed ineligible to win because the Solver used U.S. federal facilities or consulted with U.S. federal employees during the Challenge, provided that such facilities and/or employees, as applicable, are made available on an equitable basis to all Solvers participating in the Challenge.
9. Each Solver agrees to follow applicable local, state, and federal laws, regulations, and policies.
10. Each Solver must comply with all terms and conditions of these rules, and participation in this Challenge constitutes each such Solver's full and unconditional agreement to abide by these rules, which may also be found on the Challenge Web site (
11. The NIH reserves the right, in its sole discretion, to (a) cancel, suspend, or modify the Challenge, and/or (b) not award prizes if no Entries are deemed worthy.
All questions regarding the Challenge should be directed to Dr. Atienza, Dr. Pai, or Mr. Carr identified above, and answers will be posted and updated as necessary at (
To register for this Challenge, Solvers may access the registration on the Challenge Web site (
1. Each team must have two team leaders; one from the U.S. and one from outside of the U.S.
2. All members of the team need to be listed during registration.
3. There is no maximum team size.
As used in this notice, “Entry” is the information submitted in the manner and format specified on the “Open Science Prize” Web site (
Entries may be submitted on behalf of a team by any of its members. It is up to each team to organize its Entry(ies) and to follow the Challenge submission requirements. On submission of an Entry of the Challenge, the Solver must include the team name under which the Entry is submitted.
All final Entries must be submitted through the Challenge Web site, following Web site instructions and should provide necessary and sufficient detail and annotation for reproduction of the submitted results.
Information accompanying each
Information accompanying each
Only complete Entries, which follow application instructions, will be reviewed and eligible to win. The NIH and Challenge Partners reserve the right to disqualify any Challenge participants in instances where cheating or other misconduct is identified. Details regarding the dispute resolution process are provided on the Challenge Web site (
By submitting an Entry to the Challenge, each Solver represents and warrants that all information provided in the Entry and as a result of the Challenge registration process is true and complete, that Solver has the right and authority to submit such Entry on the Solver's own behalf or on behalf of the persons and entities specified within the Entry, and that the Entry:
During Phase I, up to six (6) winners may be identified. The NIH may award up to three (3) winning teams monetary prizes of $80,000 per team. The WT/HHMI may award up to three (3) winning teams monetary prizes of $80,000 per team.
During Phase II, one (1) Entry will be awarded a grand prize of up to $230,000. The NIH will award $115,000 to the U.S. member(s) of the winning team, and the WT/HHMI will award $115,000 to the winning team. For the NIH awards, prizes will be awarded by the NIH Contractor, Capital Consulting Corporation.
The top 6 Entries (grand prize winner and the 5 runner-ups) may be highlighted on the Challenge and the NIH ADDS Web sites pending selection by the NIH.
The NIH reserves the right to cancel, suspend, and/or modify this Challenge at any time through amendment to this
Entries will be scored by the Challenge Judges using the criteria listed below.
• Advancement of Open Science—To what extent does the proposal/prototype advance the goals of open science in biomedical/health research, and fulfill the goals of openness in terms of the product and way of working? To what extent would it move the field forward?
• Impact—What level of impact and benefit could the proposal—if successful—deliver to the research enterprise and health research? Does the proposal/prototype address implementation in multiple settings in a cross-national manner?
• Innovation—What level of creativity and technological innovation does the entrant demonstrate?
• Originality—Is the technology or service genuinely novel and targeting an unmet need? Has the applicant evaluated other existing or alternative approaches, or delineated their approach in comparison to existing approaches (if applicable)?
• Technological viability—Is the approach proposed viable? Can the proposed technology deliver?
• Resource feasibility—Does the team have the required skills and resources?
Judges will rate each entry on five-point scale from Not-fundable (1) to Outstanding (5). The NIH and WT will hold separate judging panels, and then will discuss priorities for selection of the respective winners (in Phase I), and the final winner (in Phase II).
For Phase II, public voting will select the top 3 prototypes of the 6 Phase I finalist, followed by a review of the prototypes for feasibility and technical merit by external advisors with expertise in Open Science. Prototypes will then be scored by Judges using the initial Phase I criteria.
By submitting an Entry, each Solver warrants that he or she is the sole author and owner of any copyrightable works that the Entry comprises (or has obtained sufficient rights in any copyrightable works owned by third parties to satisfy its obligations set forth herein), that the works are wholly original with the Solver (or is an improved version of an existing work that the Solver has sufficient rights to use and improve), and that the Entry does not infringe any copyright or any other rights of any third party of which Solver is aware.
To receive an award, Solvers will not be required to transfer their intellectual property rights to the NIH or the Challenge Partners. Each Solver retains title to their Entry, including object and source code, and expressly reserves all intellectual property rights (
Solvers are free to discuss their Entry and the ideas or technologies that it contains with other parties, encouraged to share ideas/technologies publicly, and are free to contract with any third parties, as long as they do not sign any agreement or undertake any obligation that conflicts with the Challenge rules set forth herein. For the purpose of clarity, Solvers acknowledge that the intent of the Challenge is to encourage people to collaborate and share ideas and innovations.
By participating in this Challenge, each Solver agrees to assume any and all risks and waive claims against the U.S. federal government and its related entities (as defined in the COMPETES Act), including Capital Consulting Corporation, the Challenge Expert Science Advisors and Judges, except in the case of willful misconduct, for any injury, death, damage, or loss of property, revenue, or profits, whether direct, indirect, or consequential, arising from participation in this Challenge, whether the injury, death, damage, or loss arises through negligence or otherwise. By participating in this Challenge, each Solver agrees to indemnify the federal government and the Capital Consulting Corporation against third party claims for damages arising from or related to Challenge activities.
Based on the subject matter of the Challenge, the type of work that it will possibly require, as well as an analysis of the likelihood of any claims for death, bodily injury, or property damage, or loss potentially resulting from competition participation, Solvers are not required to obtain liability insurance or demonstrate financial responsibility in order to participate in this Challenge.
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.
Notice is hereby given of a change in the meeting of the National Institute of Mental Health Special Emphasis Panel, October 26, 2015, 01:30 p.m. to October 26, 2015, 05:00 p.m., National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852 which was published in the
This meeting is being amended to add a panel name. The panel name is “Fellowships and Dissertation Grants.” The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the National Institute of Mental Health Special Emphasis Panel, October 14, 2015, 3:00 p.m. to October 14, 2015, 5:00 p.m., National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852 which was published in the
This meeting is being amended to add a panel name. The panel name is “Career Award.” The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in section 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
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
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.
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 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
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.
U.S. Customs and Border Protection, DHS.
General notice; correction.
U.S. Customs and Border Protection (CBP) published in the
Vincent C. Huang, Cargo and Conveyance Security, Office of Field Operations, U.S. Customs & Border Protection, via email at
U.S. Customs and Border Protection (CBP) published in the
The August 20, 2015 notice stated that prospective ACE Export Manifest for Vessel Cargo Test participants must have the technical capability to electronically submit data to CBP and receive response message sets via Cargo-IMP, AIR CAMIR, XML, or Unified XML, and must successfully complete certification testing with their client representative. However, the correct acceptable message sets are Ocean CAMIR, ANSI X12, or Unified XML. Prospective ACE Export Manifest for Vessel Cargo Test participants must have the technical capability to electronically submit data to CBP and receive response message sets via Ocean CAMIR, ANSI X12, or Unified XML, and must successfully complete certification testing with their client representative.
In notice document FR Doc. 2015-20614 published on August 20, 2015 (80 FR 50644), make the following correction on page 50647, third column, second full paragraph, third sentence in the “
Remove “Cargo-IMP, AIR CAMIR, XML, or Unified XML,” and add in its place, “Ocean CAMIR, ANSI X12, or Unified XML,”. The revised sentence reads as follows: “Prospective ACE Export Manifest for Vessel Cargo Test participants must have the technical capability to electronically submit data to CBP and receive response message sets via Ocean CAMIR, ANSI X12, or Unified XML, and must successfully complete certification testing with their client representative.”
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces U.S. Customs and Border Protection's (CBP's) plan to modify the National Customs Automation Program (NCAP) test concerning Cargo Release in the Automated Commercial Environment (ACE) to allow importers and brokers to file electronically entry type 52, in addition to entry types 01, 03, and 11 that are already available for electronic filing, for merchandise arriving by truck, rail, vessel, and air, as well as arriving by mail, pedestrian, and passenger (hand-carried).
The ACE Cargo Release test modifications set forth in this document will begin on or about November 19, 2015. This test will continue until concluded by way of a document published in the
Comments concerning this notice and any aspect of this test may be submitted at any time during the test via email to Josephine Baiamonte, Director, Business Transformation, ACE Business Office, Office of International Trade, at
For technical questions related to the Automated Commercial Environment (ACE) or Automated Broker Interface (ABI) transmissions, contact your assigned client representative. Interested parties without an assigned client representative should direct their questions to Steven Zaccaro at
The National Customs Automation Program (NCAP) was established by Subtitle B of Title VI—Customs Modernization (Customs Modernization Act) in the North American Free Trade Agreement Implementation Act, Public Law 103-182, 107 Stat. 2057 (19 U.S.C. 1411). Through NCAP, the initial thrust of customs modernization was on trade compliance and the development of the Automated Commercial Environment (ACE), the planned successor to the Automated Commercial System (ACS). ACE is an automated and electronic system for processing commercial trade data which is intended to streamline business processes, facilitate growth in trade, ensure cargo security, and foster participation in global commerce, while ensuring compliance with U.S. laws and regulations and reducing costs for U.S. Customs and Border Protection (CBP) and all of its communities of interest. The ability to meet these objectives depends on successfully modernizing CBP's business functions and the information technology that supports those functions.
CBP's modernization efforts are accomplished through phased releases of ACE component functionality designed to replace specific legacy ACS functions. Each release will begin with a test and, if the test is successful, will end with the mandatory use of the new ACE feature, thus retiring the legacy ACS function. Each release builds on previous releases and sets the foundation for subsequent releases.
For the convenience of the public, a chronological listing of
The Customs Modernization Act provides the Commissioner of CBP with authority to conduct limited test programs or procedures designed to evaluate planned components of the NCAP. The ACE Cargo Release Test, as modified in this notice, is authorized pursuant to § 101.9(b) of title 19 of the Code of Federal Regulations (19 CFR 101.9(b)), which provides for the testing of NCAP programs or procedures.
On November 9, 2011, CBP published in the
This notice announces that CBP will modify the ACE Cargo Release test in order to allow brokers and importers, who are also ACE participants, to file electronically, for air, ocean, rail, and truck modes of transportation as well as for mail, pedestrian, and passenger (hand-carried) modes of transportation, a simplified entry for the release of cargo for entry type 52 (
To be eligible to apply for this test, the applicant must: (1) Be a self-filing importer or broker who has the ability to file ACE Cargo Release, the corresponding entry summary in ACE, and to file ACE Entry Summary certified for cargo release; or (2) have shown the intent to file ACE Cargo Release, the corresponding entry summary in ACE, and to file ACE Entry Summary certified for cargo release.
Parties seeking to participate in this test must use a software package that has completed Automated Broker Interface (ABI) certification testing for ACE and offers the ACE Cargo Release (SE) message set prior to transmitting data under the test. For a complete discussion on procedures for obtaining an ACE Portal Account, please see the General Notice, 73 FR 50337 (August 26, 2008). Any importers not self-filing must ensure its broker has the capability to file entry summaries in ACE.
The ACE Cargo Release test is open to all importers and customs brokers filing ACE Entry Summaries for cargo transported by air, ocean, rail, and truck modes of transportation, as well as by mail, pedestrian, and passenger (hand-carried) modes of transportation. If the volume of eligible applicants exceeds CBP's administrative capabilities, CBP will reserve the right to select importer and exporter participants based upon entry filing volume, diversity of clients or of industries represented, while giving consideration to the order in which CBP received the requests to participate.
Any party seeking to participate in this test must provide CBP, as part of its request to participate, its filer code and the port(s) at which it is interested in filing ACE Cargo Release transaction data. ACE Cargo Release data may be submitted at all ports of entry for entry type 52 as of November 19, 2015, and for authorized entry types,
Applicants will be notified by a CBP client representative if they have been selected to participate in this test.
The filing capabilities and functionalities for the ACE Cargo Release tests that are set forth in the above-mentioned
Upon receipt of the ACE Cargo Release data, CBP will process the submission and will subsequently transmit its cargo release decision to the importer or entry filer. If a subsequent submission is submitted to CBP, CBP's decision regarding the original submission will no longer be controlling. The merchandise will then be considered to be entered upon its arrival in the port of entry with the intent to unlade, as provided by current 19 CFR 141.68(e).
This modified ACE Cargo Release test will begin on or about November 19, 2015. This test will conclude by way of a document published in the
All interested parties are invited to comment on any aspect of this test at any time. CBP requests comments and feedback on all aspects of this test, including the design, conduct and implementation of the test, in order to determine whether to modify, alter, expand, limit, continue, end, or fully implement this program.
For purposes of this test, any provision in title 19 of the Code of Federal Regulations including, but not limited to, the provisions found in parts 18, 141, 142, and 143 thereof relating to entry filing and processing that are inconsistent with the requirements set forth in this notice are waived for the duration of the test.
All requirements, terms and conditions, and aspects of the ACE test discussed in previous notices are hereby incorporated by reference into this notice and continue to be applicable, unless changed by this notice.
The collection of information for the ACE Cargo Release Test and ISF have been approved by the Office of Management and Budget (OMB) in accordance with the requirements of the Paperwork Reduction Act (44 U.S.C. 3507). The OMB information collection number for the ACE Cargo Release Test is 1651-0024 and the OMB information collection number for ISF is 1651-0001. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB.
All data submitted and entered into ACE is subject to the Trade Secrets Act (18 U.S.C. 1905) and is considered confidential, except to the extent as otherwise provided by law. As stated in previous notices, participation in this or any of the previous ACE tests is not confidential and upon a written Freedom of Information Act (FOIA) request, a name(s) of an approved participant(s) will be disclosed by CBP in accordance with 5 U.S.C. 552.
A test participant may be subject to civil and criminal penalties, administrative sanctions, liquidated damages, or discontinuance from participation in this test for any of the following:
(1) Failure to follow the terms and conditions of this test;
(2) Failure to exercise reasonable care in the execution of participant obligations;
(3) Failure to abide by applicable laws and regulations that have not been waived; or
(4) Failure to deposit duties or fees in a timely manner.
If the Director, Business Transformation, ACE Business Office (ABO), Office of International Trade, finds that there is a basis for discontinuance of test participation privileges, the test participant will be provided a written notice proposing the discontinuance with a description of the facts or conduct warranting the action. The test participant will be offered the opportunity to appeal the Director's decision in writing within 10 calendar days of receipt of the written notice. The
The Acting Executive Director will issue a decision in writing on the proposed action within 30 working days after receiving a timely filed appeal from the test participant. If no timely appeal is received, the proposed notice becomes the final decision of the Agency as of the date that the appeal period expires. A proposed discontinuance of a test participant's privileges will not take effect unless the appeal process under this paragraph has been concluded with a written decision adverse to the test participant.
In the case of willfulness or those in which public health, interest, or safety so requires, the Director, Business Transformation, ABO, Office of International Trade, may immediately discontinue the test participant's privileges upon written notice to the test participant. The notice will contain a description of the facts or conduct warranting the immediate action. The test participant will be offered the opportunity to appeal the Director's decision within 10 calendar days of receipt of the written notice providing for immediate discontinuance. The appeal must be submitted to Acting Executive Director, ABO, Office of International Trade, by emailing
A chronological listing of
• ACE Portal Accounts and Subsequent Revision Notices: 67 FR 21800 (May 1, 2002); 69 FR 5360 and 69 FR 5362 (February 4, 2004); 69 FR 54302 (September 8, 2004); 70 FR 5199 (February 1, 2005).
• ACE System of Records Notice: 71 FR 3109 (January 19, 2006).
• Terms/Conditions for Access to the ACE Portal and Subsequent Revisions: 72 FR 27632 (May 16, 2007); 73 FR 38464 (July 7, 2008).
• ACE Non-Portal Accounts and Related Notice: 70 FR 61466 (October 24, 2005); 71 FR 15756 (March 29, 2006).
• ACE Entry Summary, Accounts and Revenue (ESAR I) Capabilities: 72 FR 59105 (October 18, 2007).
• ACE Entry Summary, Accounts and Revenue (ESAR II) Capabilities: 73 FR 50337 (August 26, 2008); 74 FR 9826 (March 6, 2009).
• ACE Entry Summary, Accounts and Revenue (ESAR III) Capabilities: 74 FR 69129 (December 30, 2009).
• ACE Entry Summary, Accounts and Revenue (ESAR IV) Capabilities: 76 FR 37136 (June 24, 2011).
• Post-Entry Amendment (PEA) Processing Test: 76 FR 37136 (June 24, 2011).
• ACE Announcement of a New Start Date for the National Customs Automation Program Test of Automated Manifest Capabilities for Ocean and Rail Carriers: 76 FR 42721 (July 19, 2011).
• ACE Simplified Entry: 76 FR 69755 (November 9, 2011).
• National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Document Image System (DIS): 77 FR 20835 (April 6, 2012).
• National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Simplified Entry: Modification of Participant Selection Criteria and Application Process: 77 FR 48527 (August 14, 2012).
• Modification of NCAP Test Regarding Reconciliation for Filing Certain Post-Importation Preferential Tariff Treatment Claims under Certain FTAs: 78 FR 27984 (May 13, 2013).
• Modification of Two National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Document Image System (DIS) and Simplified Entry (SE): 78 FR 44142 (July 23, 2013).
• Modification of Two National Customs Automation Program (NCAP) Tests Concerning Automated Commercial Environment (ACE) Document Image System (DIS) and Simplified Entry (SE); Correction: 78 FR 53466 (August 29, 2013).
• Modification of NCAP Test Concerning Automated Commercial Environment (ACE) Cargo Release (formerly known as Simplified Entry): 78 FR 66039 (November 4, 2013).
• Post-Summary Corrections to Entry Summaries Filed in ACE Pursuant to the ESAR IV Test: Modifications and Clarifications: 78 FR 69434 (November 19, 2013).
• National Customs Automation Program (NCAP) Test Concerning the Submission of Certain Data Required by the Environmental Protection Agency and the Food Safety and Inspection Service Using the Partner Government Agency Message Set Through the Automated Commercial Environment (ACE): 78 FR 75931 (December 13, 2013).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Cargo Release for Ocean and Rail Carriers: 79 FR 6210 (February 3, 2014).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Cargo Release to Allow Importers and Brokers to Certify From ACE Entry Summary: 79 FR 24744 (May 1, 2014).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Cargo Release for Truck Carriers: 79 FR 25142 (May 2, 2014).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Document Image System: 79 FR 36083 (June 25, 2014).
• Announcement of eBond Test: 79 FR 70881 (November 28, 2014).
• eBond Test Modifications and Clarifications: Continuous Bond Executed Prior to or Outside the eBond Test May Be Converted to an eBond by the Surety and Principal, Termination of an eBond by Filing Identification Number, and Email Address Correction: 80 FR 899 (January 7, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning Automated Commercial Environment (ACE) Document Image System Relating to Animal and Plant Health Inspection Service (APHIS) Document Submissions: 80 FR 5126 (January 30, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning the use of Partner Government Agency Message Set through the Automated Commercial Environment (ACE) for the Submission of Certain Data Required by the Environmental Protection Agency (EPA): 80 FR 6098 (February 4, 2015).
• Announcement of Modification of ACE Cargo Release Test to Permit the Combined Filing of Cargo Release and Importer Security Filing (ISF) Data: 80 FR 7487 (February 10, 2015).
• Modification of NCAP Test Concerning ACE Cargo Release for Type 03 Entries and Advanced Capabilities for Truck Carriers: 80 FR 16414 (March 27, 2015).
• Automated Commercial Environment (ACE) Export Manifest for
• National Customs Automation Program (NCAP) Concerning Remote Location Filing Entry Procedures in the Automated Commercial Environment (ACE) and the Use of the Document Image System for the Submission of Invoices and the Use of eBonds for the Transmission of Single Transaction Bonds: 80 FR 40079 (July 13, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning the Automated Commercial Environment (ACE) Partner Government Agency (PGA) Message Set Regarding Types of Transportation Modes and Certain Data Required by the National Highway Traffic Safety Administration (NHTSA): 80 FR 47938 (August 10, 2015).
• Modification of National Customs Automation Program (NCAP) Test Concerning the Submission of Certain Data Required by the Food and Drug Administration (FDA) Using the Partner Government Agency (PGA) Message Set Through the Automated Commercial Environment (ACE): 80 FR 52051 (August 27, 2015).
• Automated Commercial Environment (ACE) Export Manifest for Rail Cargo Test: 80 FR 54305 (September 7, 2015).
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission will describe the nature of the information collection, the categories of respondents, the estimated burden (
Comments must be submitted on or before November 19, 2015.
Submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via electronic mail to
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 500 C Street SW., Washington, DC 20472-3100, or email address
This information collection previously published in the
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until November 19, 2015. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Laura Dawkins, Chief, 20 Massachusetts Avenue NW., Washington, DC 20529-2140, Telephone number (202) 272-8377 (comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of a draft comprehensive conservation plan and environmental assessment (Draft CCP/EA) for Cahaba River National Wildlife Refuge (NWR) in Bibb County, Alabama for public review and comment. In this Draft CCP/EA, we describe the alternative we propose to use to manage this refuge for the 15 years following approval of the Final CCP.
To ensure consideration, we must receive your written comments by November 19, 2015.
You may obtain a copy of the Draft CCP/EA by downloading the document from our Internet Site at
Ms. Sarah Clardy, Refuge Manager, Cahaba River NWR, P.O. Box 5087, Anniston, AL 36205; or
With this notice, we continue the CCP process for Cahaba River NWR started through a notice in the
Cahaba River NWR was established in 2002 under the authority of the Cahaba River National Wildlife Refuge Establishment Act, Public Law 106-331, dated October 19, 2000. This legislation directed the Secretary of the Interior to acquire up to 3,500 acres of lands and waters to establish the refuge. In 2004, the Regional Director of the Service (Southeast Region) authorized the expansion of the acquisition boundary of the refuge to include an additional 340 acres of property at the confluence of the Cahaba and Little Cahaba Rivers. In 2006, Pub. Law 109-363 was signed by the President, authorizing further expansion of the acquisition boundary by 3,600 acres. In 2008, the Regional Director authorized a 360-acre expansion of the acquisition boundary. As of 2015, the refuge has an approved acquisition boundary of 7,784 acres of which 3,689.63 acres have been acquired in fee-title in Bibb County.
The refuge was established to: (1) Conserve, enhance, and restore the native aquatic and terrestrial community characteristics of the Cahaba River (including associated fish, wildlife, and plant species); (2) conserve, enhance, and restore habitat to maintain and assist in the recovery of plants and animals that are listed under the Endangered Species Act of 1973; (3) provide opportunities for compatible wildlife-dependent recreation; and (4)
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Administration Act.
Priority resource issues addressed in the Draft CCP/EA include: Fish and Wildlife Populations, Habitat Management, Resource Protections, Visitor Services, and Refuge Administration.
We developed three alternatives for managing the refuge (Alternatives A, B, and C), with Alternative B as our proposed alternative. A full description of each alternative is in the Draft CCP/EA. We summarize each alternative below.
There would be no management of riverine and Cahaba lily/water willow shoals habitats and exotic aquatic plants and Beaver Pond would not be managed.
There would be no management of the following habitats: Beech, oak, laurel and azalea forest; Cahaba riverwash herbaceous vegetation; canebrake; oak, beech and sedge forest; oak, hickory, and iris forest; oak, holly, and sparkleberry forest; and tuliptree and sensitive fern forest. For interior longleaf pine woodland and longleaf pine plantations, prescribed fire would be applied to approximately 250 acres every few years to help reduce encroachment of hardwoods and support a more diverse groundcover. No management of planted loblolly pine stands to restore to longleaf pine historically found in the watershed would occur. There would be no management of invasive or exotic species within the refuge boundaries.
Genetic and population monitoring of Georgia aster that began in 2012 by the Atlanta Botanical Garden will continue. Ecological Services (FWS) would monitor and provide recommendations for management opportunities for Georgia rockcress or glades, however there would be no management implemented.
There would be no active management by the refuge of federally-listed fish, mussels, and snails, with the exception of management via communication and education with local landowners about sedimentation and nutrient loading of aquatic habitats and providing sediment control through regular road maintenance of River Trace Road. Additionally, we would coordinate access to potential aquatic animal release sites by the State or other partners for reintroduction purposes.
With the exception of occasional surveys and periodic management activities in select pine-dominated forest stands, no additional management would likely be conducted for migratory birds. For the endangered gray bat, surveys would be conducted sporadically.
All hunting, fishing, environmental education, interpretation, wildlife observation, and wildlife photography opportunities would remain the same. Canoeing and kayaking would continue to occur on the refuge. The concrete basin used to launch boats upstream of the refuge would not be replaced if damaged.
Several water resource management activities would likely continue. Currently, four water quality monitoring points are sampled quarterly (testing for heavy metals) as part of mine reclamation efforts. Testing would continue to occur from 2013 through 2015. In terms of protecting lands, the refuge would continue to explore conservation options with only willing landowners within acquisition boundary as funding and opportunities arise. These could include fee-title purchases or less-than-fee options, such as easement purchases, management agreements, etc.
Currently, there are no known cultural resources, and a comprehensive assessment would probably not be conducted. However, if sites are identified, the refuge will ensure cultural resource management and protection strategies are implemented.
The refuge manager would continue to be stationed in Anniston, AL, with oversight duties also including Mountain Longleaf and Watercress Darter NWRs. A deputy manager position would likely not be filled. The zone officer would continue to conduct periodic law enforcement patrols and respond to reported incidents on the refuge.
On an as-needed basis, work crews from Wheeler NWR and possibly other refuges would periodically maintain and repair roads and unpaved parking areas, replace culverts, and maintain boundary markers. The refuge would solicit the help of volunteers to assist with maintenance of trails and repairing benches, etc. No facilities would be built on or near the refuge under this alternative.
The refuge would continue relationships with current partners to expand the refuge's capacity to protect and monitor biological resources, implement habitat improvement projects, enhance interaction and education of refuge visitors through on and off site events and encourage cooperative programs with academic institutions and nongovernmental organizations
The refuge would monitor the health and distribution of the Cahaba Lily population and work to educate the public about the fragility of these habitats to human disturbance. We would chemically control alligator weed on an annual basis.
The refuge would re-inventory and create maps for the following habitats: Beech, oak, laurel and azalea forest; Cahaba riverwash herbaceous vegetation; canebrake; oak, beech and sedge forest; oak, hickory, and iris forest; oak, holly, and sparkleberry forest; and tuliptree and sensitive fern forest. The refuge would work to re-establish viable canebrake communities.
For interior longleaf pine woodland; loblolly pine plantation; and longleaf
For Georgia aster, we would work with partners to conduct additional surveys and create a GIS database to map Georgia aster distribution. We would work with partners to continue surveys for Georgia rockcress and implement management strategies (including timber management and invasive species removal) to increase population size and the number of locations.
The refuge would develop an educational program and evaluate overutilization of recreational use on the refuge and restore stream habitat that potentially impacts federally-listed mussels, snails, and fish. We would also work with partners to identify and provide access for reintroductions of these species.
For neotropical migratory birds, we would resume biotic inventories utilizing refuge staff, local universities and partners. Habitats would be restored for focal species where appropriate. In addition, use of prescribed fire would be utilized to improve conditions for focal species that are dependent upon pine-dominated habitats.
The refuge would inventory and monitor for gray bats, bald eagles, and other surrogate species.
Opportunities for wildlife observation, wildlife photography, environmental education, and interpretation would be expanded. The refuge would maintain bicycle riding opportunities and the current launch site for canoeing and kayaking.
The refuge would participate as stakeholder on regional water quality improvement efforts within the upper Cahaba Basin; work to improve water quality of refuge tributary streams through partnerships with adjacent land owners; and establish cooperative programs and partnerships with the University of Alabama for lands along the western refuge boundary. The refuge would also install a stream gage within the refuge boundary. Testing would continue to occur on four water quality monitoring points as part of mine reclamation efforts.
We would work with partners to identify and provide assistance to landowners to conserve priority lands within the Cahaba River watershed by providing long term protection of valued resources within the watershed. The refuge would work with the regional archaeologist to complete a comprehensive historical and archaeological resource survey.
Seven additional complex staff would be needed to carry out the proposed projects. These positions include: An assistant refuge manager, biologist, equipment operator, park ranger, forester, law enforcement officer and biological technician.
The refuge would improve River Trace Road (
No facilities would be built on or near the refuge however, a new complex office and maintenance shop would be constructed in Anniston, AL.
The refuge would train volunteers to conduct interpretive programs (emphasizing the need for wildlife and habitat and wildlife management) and implement projects (interpretive signs, invasive species control, biological monitoring, etc.). The volunteer program would be expanded to include an Americorp team.
Management of riverine and Cahaba lily/water willow shoals habitats would remain the same as Alternative A. For Beaver Pond, we would evaluate feasibility for restoring its natural hydrology.
There would be no change in management for the following habitats: Beech, oak, laurel and azalea forest; Cahaba riverwash herbaceous vegetation; canebrake; oak, beech and sedge forest; oak, hickory, and iris forest; oak, holly, and sparkleberry forest; and tuliptree and sensitive fern forest. We would replace planted loblolly pine plantation stands, with longleaf pine, on an opportunistic basis. For interior longleaf pine woodland and longleaf pine plantation, we would use prescribed fire only to minimize threat of wildfire. There would be no surveys conducted for glades and no active management for Georgia aster.
Management for federally listed aquatic species, neotropical migratory birds, gray bat, bald eagle, and other surrogate species would be the same as under Alternative B.
River Trace Road would be closed to motor vehicles and converted to a trail. We would work with partners to develop and present educational programs that emphasize the role of natural ecological processes in shaping wildlife habitats.
We would develop interpretive materials and messages that emphasize the role of natural and primitive processes in shaping wildlife habitats. We would remove the concrete basin that is used to launch canoes and kayaks.
For water quality, management would be similar to Alternative B, but we would also ensure that mine tailings do not contaminate groundwater through removal or other means. We would restore the natural hydrology on the refuge in areas where there is the greatest need.
Land protection efforts would focus on tracts within the acquisition boundary based on their potential role in creating a more connected and functional ecosystem.
Under this alternative, the following three additional staff would be required: Biologist, biological technician, and equipment operator.
We would evaluate which road-side ditches and culverts would need to be altered to restore the former hydrology and reduce sedimentation. No facilities would be leased, acquired, or built under this alternative.
We would offer our volunteers training to conduct interpretive programs that emphasize the role of natural and primitive processes in shaping wildlife habitat.
After the comment period ends, we will analyze the comments and address them in the Final CCP.
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
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd
Bureau of Indian Affairs, Interior.
Notice.
The Department of Interior (Department) has accepted retrocession to the United States of partial civil and criminal jurisdiction over the Yakama Nation from the State of Washington.
The Department accepted retrocession on October 19, 2015. Complete implementation of jurisdiction will be effective April 19, 2016.
Mr. Darren Cruzan, Deputy Director—Office of Justice Services, Bureau of Indian Affairs, (202) 208-5787.
Under the authority of 25 U.S.C. 1323, vested in the Secretary of the Interior by Executive Order No. 11435 of November 21, 1968, 33 FR 17339, and re-delegated to the Assistant Secretary—Indian Affairs, the United States accepts partial civil and criminal jurisdiction over the Yakama Nation which was acquired by the State of Washington, under Public Law 83-280, 67 Stat. 588, codified as amended at 18 U.S.C. 1162, 28 U.S.C. 1360, and as provided in Revised Code of Washington 37.12.010, 37.12.021, 37.12.030, 37.12.040, and 37.12.060 (1963), and 37.12.050 (1957).
This retrocession was offered by the State of Washington in Proclamation by the Governor 14-01, signed on January 17, 2014, and transmitted to the Assistant Secretary-Indian Affairs in accordance with the process in Revised Code of Washington 37.12.160 (2012), and as provided by Tribal Council Resolution No. T-117-12, dated July 5, 2012, in which the Yakama Nation requested that the State of Washington retrocede partial civil and criminal jurisdiction to the Tribe.
Bureau of Land Management, Interior.
Correction Notice.
This action corrects the language found in the
On page 57636, column 2, beginning on line 9, the text which reads “The Sagebrush Focal Areas include all public and National Forest System lands identified in the townships below:”, is hereby corrected to read, “The Sagebrush Focal Areas consist of those public and National Forest System lands within the townships below that are identified as Sagebrush Focal Areas on the map posted on the BLM Web site at
National Park Service, Interior.
Notice.
History Colorado, formerly Colorado Historical Society, has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is 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 History Colorado. 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 History Colorado at the address in this notice by November 19, 2015.
Sheila Goff, NAGPRA Liaison, History Colorado, 1200 Broadway, Denver, CO 80203, telephone (303) 866-4531, 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 History Colorado, Denver, CO.
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 History Colorado professional staff in consultation with representatives of the Arapaho Tribe of the Wind River Reservation, Wyoming; Cheyenne and Arapaho Tribes, Oklahoma (previously listed as the Cheyenne-Arapaho Tribes of Oklahoma); Comanche Nation, Oklahoma; Fort Sill Apache Tribe of Oklahoma; Jicarilla Apache Nation, New Mexico; Kiowa Indian Tribe of Oklahoma; Mescalero Apache Tribe of
On November 13, 2013, human remains representing, at minimum, one individual were discovered in Weld County, CO. The Office of the State Archaeologist (OSAC) was notified that volunteers in St. Vrain Park in Weld County had discovered a cranium and a small number of post-cranial elements while cleaning flood debris following floods. There was no burial context. In January 2014, the human remains were transferred to OSAC by the Weld County Coroner, who ruled out forensic interest. They are identified as OAHP 302. Osteological analysis determined that the human remains are of Native American ancestry. No known individuals were identified. No associated funerary objects are present.
At the time of the discovery, the land on which the remains were discovered was not the tribal land of any Indian tribe. Between September and December 2014, History Colorado consulted with Indian tribes who are recognized as aboriginal to the area from which these Native American human remains were removed. These tribes are the Arapaho Tribe of the Wind River Reservation, Wyoming; Cheyenne and Arapaho Tribes, Oklahoma (previously listed as the Cheyenne-Arapaho Tribes of Oklahoma); and the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana. None of these Indian tribes agreed to accept control of the human remains. They requested in writing that this individual be dispostioned according to the Process for Consultation, Transfer and Reburial of Culturally Unidentifiable Native American Human Remains and Associated Funerary Objects Originating From Inadvertent Discoveries on Colorado State and Private Lands (Process). Consultation with the additional tribes listed under Consultation in this notice was conducted February to May 2015, to determine disposition. Under the Process, the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado, and the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah agreed to accept disposition of the human remains.
History Colorado, in partnership with the Colorado Commission of Indian Affairs, Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado, and the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah, conducted tribal consultations among the tribes with ancestral ties to the State of Colorado to develop the process for disposition of culturally unidentifiable Native American human remains and associated funerary objects originating from inadvertent discoveries on Colorado State and private lands. As a result of the consultation, a process was developed, Process for Consultation, Transfer, and Reburial of Culturally Unidentifiable Native American Human Remains and Associated Funerary Objects Originating From Inadvertent Discoveries on Colorado State and Private Lands, (2008, unpublished, on file with the Colorado Office of Archaeology and Historic Preservation). The tribes consulted are those who have expressed their wishes to be notified of discoveries in the Great Plains Consultation Region as established by the Process, where this individual originated.
The Native American Graves Protection and Repatriation Review Committee (Review Committee) is responsible for recommending specific actions for disposition of culturally unidentifiable human remains. On November 3-4, 2006, the Process was presented to the Review Committee for consideration. A January 8, 2007, letter on behalf of the Review Committee from the Designated Federal Officer transmitted the provisional authorization to proceed with the Process upon receipt of formal responses from the Jicarilla Apache Nation, New Mexico, and the Kiowa Indian Tribe of Oklahoma, subject to forthcoming conditions imposed by the Secretary of the Interior. On May 15-16, 2008, the responses from the Jicarilla Apache Nation, New Mexico, and the Kiowa Indian Tribe of Oklahoma were submitted to the Review Committee. On September 23, 2008, the Assistant Secretary for Fish and Wildlife and Parks, as the designee for the Secretary of the Interior, transmitted the authorization for the disposition of culturally unidentifiable human remains according to the Process and NAGPRA, pending publication of a Notice of Inventory Completion in the
43 CFR 10.11 was promulgated on March 15, 2010, to provide a process for the disposition of culturally unidentifiable Native American human remains recovered from tribal or aboriginal lands as established by the final judgment of the Indian Claims Commission or U.S. Court of Claims, a treaty, Act of Congress, or Executive Order, or other authoritative governmental sources. As there is no evidence indicating that the human remains reported in this notice originated from tribal land and the tribes with aboriginal land ties did not wish to accept disposition, they are eligible for disposition under the Process.
Officials of History Colorado have determined that:
• Based on osteological analysis, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• Pursuant to 43 CFR 10.11(c)(2)(ii) and the Process, the disposition of the human remains may be to the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado, and the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah.
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 Sheila Goff, NAGPRA
History Colorado is responsible for notifying The Consulted and Invited Tribes that this notice has been published.
30-day notice.
To comply with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Safety and Environmental Enforcement (BSEE) is notifying the public that we have submitted to OMB an information collection request (ICR) to renew approval of the paperwork requirements in the regulations under subpart S,
You must submit comments by November 19, 2015.
Submit comments by either fax (202) 395-5806 or email (
• Electronically go to
• Email
Cheryl Blundon, Regulations and Standards Branch, (703) 787-1607, to request additional information about this ICR. To see a copy of the entire ICR submitted to OMB, go to
In addition to the general rulemaking authority of the OCSLA at 43 U.S.C. 1334, section 301(a) of the Federal Oil and Gas Royalty Management Act (FOGRMA), 30 U.S.C. 1751(a), grants authority to the Secretary to prescribe such rules and regulations as are reasonably necessary to carry out FOGRMA's provisions. While the majority of FOGRMA is directed to royalty collection and enforcement, some provisions apply to offshore operations. For example, section 108 of FOGRMA, 30 U.S.C. 1718, grants the Secretary broad authority to inspect lease sites for the purpose of determining whether there is compliance with the mineral leasing laws. Section 109(c)(2) and (d)(1), 30 U.S.C. 1719(c)(2) and (d)(1), impose substantial civil penalties for failure to permit lawful inspections and for knowing or willful preparation or submission of false, inaccurate, or misleading reports, records, or other information. Because the Secretary has delegated some of the authority under FOGRMA to BSEE, 30 U.S.C. 1751 is included as additional authority for these requirements.
Regulations governing Safety and Environmental Management Systems (SEMS) are covered in 30 CFR 250, subpart S and are the subject of this collection.
Information on Form BSEE-0131 includes company identification, number of company/contractor injuries and/or illnesses suffered, company/contractor hours worked, EPA National Pollutant Discharge Elimination System (NPDES) permit noncompliances, and oil spill volumes for spills less than 1 barrel. All pieces of information are reported annually as collected during 1 calendar year and the information broken out quarterly. The information is used to develop industry average incident rates that help to describe how well the offshore oil and gas industry is performing. Using the produced data allows BSEE to better focus our regulatory and research programs on areas where the performance measures indicate that operators are having difficulty meeting our expectations. BSEE will be more effective in leveraging resources by redirecting research efforts, promoting appropriate regulatory initiatives, and shifting inspection program emphasis based on performance results.
In this ICR we have removed form BSEE-0130. BSEE has found that there have been no instances of organizations using form BSEE-0130 and that equivalent information can be submitted by organizations following the instructions in § 250.1922(a)(1), “. . . submit documentation to BSEE describing the process for assessing an ASP for accreditation and approving, maintaining, and withdrawing the accreditation of an ASP.” BSEE's Office of Offshore Regulatory Programs will then review the information, request other supporting documents as needed, and propose terms of BSEE oversight, in order to ensure conformance with the entirety of § 250.1922. Therefore, BSEE believes the intent of the form BSEE-0130 is already incorporated in the regulations and will remove the
Regulations implementing these responsibilities are among those delegated to BSEE.
Responses are mandatory. No questions of a sensitive nature are asked. BSEE protects information considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and DOI's implementing regulations (43 CFR 2), and under regulations at 30 CFR part 250.197,
The information collected under subpart S is critical for us to monitor industry's operations record of safety and environmental management of the OCS. The subpart S regulations hold the operator accountable for the overall safety of the offshore facility, including ensuring that all employees, contractors, and subcontractors have safety policies and procedures in place that support the implementation of the operator's SEMS program and align with the principles of managing safety. The SEMS program describes management commitment to safety and the environment, as well as policies and procedures to assure safety and environmental protection while conducting OCS operations (including those operations conducted by all personnel on the facility). BSEE will use the information obtained by submittals and observed via SEMS audits to ensure that operations on the OCS are conducted safely, as they pertain to both human and environmental factors, and in accordance with BSEE regulations, as well as industry practices. The ultimate work authority (UWA) and other recordkeeping will be reviewed diligently by BSEE during inspections/audits, etc., to ensure that industry is correctly implementing the documentation and that the requirements are being followed properly.
§ 250.1925(a)—Pay for all costs associated with a BSEE directed audit due to deficiencies.
§ 250.1920(a)—ASP audits conducted for High, Moderate, and Low Activity Operator.
We have not identified any other non-hour cost burdens associated with this collection of information.
To comply with the public consultation process, on July 8, 2015, we published a
Bureau of Justice Assistance, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Assistance, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional days until November 19, 2015.
If you have additional comments on the estimated burden to facilities covered by the standards to comply with the regulation's reporting requirements, suggestions, or need additional information, please contact Emily Niedzwiecki, Policy Advisor, Bureau of Justice Assistance, 810 Seventh Street NW., Washington, DC 20531 (phone: 202-305-9317). 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.
Bureau of Justice Statistics, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for 30 days until November 19, 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 Jennifer Truman, Statistician, Bureau of Justice Statistics, 810 Seventh Street NW., Washington, DC 20531 (email:
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.
On October 15, 2015, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of Rhode Island in the lawsuit entitled
In the Complaint filed in this action, the United States, on behalf of the U.S. Environmental Protection Agency, alleges that the defendant Rhode Island Department of Transportation (“RIDOT”) has failed to comply with certain conditions and limitations of the municipal separate storm sewer system (“MS4”) permit applicable to it under the Clean Water Act, 33 U.S.C. 1251,
The Consent Decree requires RIDOT to (a) develop and implement storm water control plans to address RIDOT's discharges to water-quality impaired waters, including impaired waters both with and without Total Maximum Daily Load determinations, (b) develop and implement an adequate program to detect and eliminate illicit discharges into the RIDOT MS4, (c) implement a street sweeping tracking system and sweep all RIDOT roads as required by the permit, with increased frequency street sweeping required in specified areas, and (d) implement a program to inspect, clean, and, as necessary, repair components of RIDOT's storm water drainage system, including catch basins, manholes, outfalls, and storm water treatment units, and to provide for tracking of the inspection and maintenance work.
The Consent Decree also provides that RIDOT will pay a civil penalty of $315,000 and perform two supplemental environmental projects (“SEPs”) valued, collectively, at $234,600. The SEPs provide for the preservation of two forested parcels of land in watersheds of impaired waterways. The first parcel is approximately 55 acres and is located in Johnston, RI, abutting the Powder Mill Ledges Wildlife Refuge, in the watershed of Assapumpset Brook and the Woonasquatucket River. The other parcel is approximately 25 acres and is located in Lincoln, RI, in the vicinity of Olney Pond in Lincoln Woods State Park, in the watershed of the Moshassuck River.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $33.50 (25 cents per page reproduction cost) payable to the United States Treasury.
U.S. Marshals Service, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), U.S. Marshals Service (USMS), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until November 19, 2015.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Nicole Feuerstein, Publications Specialist, U.S. Marshals Service, CS-3, 10th Floor, Washington, DC 20530-0001 (phone: 202-307-5168). Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention
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:
Overview of this information collection:
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.
National Aeronautics and Space Administration.
U.S. Non-Provisional Patent Application Serial Number corrected from 13/178,661 to 13/785,661 and Title corrected to say Automatic Dependent Surveillance Broadcast (ADS-B) System For Ownship and Traffic Situational Awareness.
This notice 015-079 was previously published on September 23, 2015 and was issued in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant a partially exclusive license in the United States to practice the invention described and claimed in U.S. Non-Provisional Patent Application Serial No. 13/785,661, titled “Automatic Dependent Surveillance Broadcast (ADS-B) System For Ownship and Traffic Situational Awareness,” NASA Case No. DRC-011-012, and any, divisional applications, continuation-in-part applications, or issued patents resulting therefrom, to Vigilant Aerospace Systems Inc., having its principal place of business in Oklahoma City, Oklahoma. Certain patent rights in this invention have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective partially exclusive license will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7.
The prospective partially exclusive license may be granted unless, within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated partially exclusive license.
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Objections relating to the prospective license may be submitted to Patent Counsel, NASA Management Office, M/S 180-200, 4800 Oak Grove Drive, Pasadena, CA 91109; (818) 354-7770 (phone), (818) 393-3160 (fax).
Mark Homer, Patent Counsel, Office of Chief Counsel, NASA Management Office, M/S 180-200, 4800 Oak Grove Drive, Pasadena, CA 91109; (818) 354-7770 (phone), (818) 393-3160 (fax). Information about other NASA inventions available for licensing can be found online at
The National Science Board's
Friday, October 23, 2015 at 12 noon to 1 p.m. EDT
Closed.
This meeting will be held by teleconference originating at the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230.
Task Force Chair's opening remarks; approval of minutes; review of NPP charge; interim update on NPP activities; NSB/NPP next steps; and Chair's closing remarks.
Please refer to the National Science Board Web site (
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Global Expedited Package Services—Non-Published Rates Contract 8 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
To support its Request, the Postal Service filed the following attachments:
• Attachment 1, an application for non-public treatment of materials filed under seal;
• Attachment 2A, a redacted version of Governors' Decision No. 11-6;
• Attachment 2B, a revised version of the Mail Classification Schedule section 2510.8 GEPS-NPR;
• Attachment 2C, a redacted version of GEPS-NPR 8 Management Analysis;
• Attachment 2D, Maximum and Minimum Prices for Global Express Guaranteed (GXG), Priority Express Mail International (PMEI), Priority Mail International (PMI), and First-Class Package International (FCPIS) under GEPS-NPR 8 Contracts;
• Attachment 2E, the certified statement concerning the prices for applicable negotiated service agreements under GEPS-NPR 8, required by 39 CFR 3015.5(c)(2);
• Attachment 3, a Statement of Supporting Justification, which is filed pursuant to 39 CFR 3020.32; and
• Attachment 4, a redacted version of the GEPS—NPR 8 model contract.
In the Statement of Supporting Justification, Giselle Valera, Managing Director and Vice President, Global Business, asserts the product is designed to increase efficiency of the Postal Service's process, as well as enhance its ability to compete in the marketplace. Request, Attachment 3 at 1. She contends GEPS—NPR 8 belongs on the competitive product list as it is part of a market over which the Postal Service does not exercise market dominance,
The Postal Service included a redacted version of the GEPS—NPR 8 model contract with the Request.
The Postal Service represents it will notify each GEPS-NPR 8 customer of the contract's effective date no later than 30 days after receiving the signed agreement from the customer.
The Postal Service filed much of the supporting materials, including an unredacted model contract, under seal. Request at 7. It maintains that the redacted portions of the materials should remain confidential as sensitive business information.
The Commission establishes Docket Nos. MC2016-5 and CP2016-5 to consider the Request pertaining to the proposed GEPS—NPR 8 product and the related model contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than October 21, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints JP Klingenberg to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-5 and CP2016-5 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, JP Klingenberg is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than October 21, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 14, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add Global Expedited Package Services—Non-Published Rates 8 (GEPS—NPR 8) to the Competitive Products List.
Christopher C. Meyerson, 202-268-7820.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642, on October 9, 2015, it filed with the Postal Regulatory Commission a
Documents are available at
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
C2 Options Exchange, Incorporated (the “Exchange” or “C2”) proposes to amend the Fees Schedule. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the Fees Schedule. Specifically, the Exchange proposes to make changes to the Continuing Education Fees section of the Fees Schedule to provide that continuing education for all registration except the Series 56 will be $55 if conducted via Web-delivery. Continuing education for all registration except the Series 56 will remain $100 if conducted at a testing center.
On August 8, 2015, the Securities and Exchange Commission approved SR-FINRA-2015-015 relating proposed changes to FINRA Rule 1250 to provide a Web-based delivery method for completing the Regulatory Element of the continuing education requirements.
The Exchange currently utilizes FINRA's Continuing Education Programs for its own continuing education requirements. Consistent with SR-FINRA-2015-015, the Exchange [sic] recently filed SR-CBOE-2015-084
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Web-based delivery method for continuing education is in the interest of investors and free and open markets. In general, Web-based delivery will remove time parameters that exist with respect to taking continuing education at testing centers. Having additional time to take continuing education may result in better learning outcomes, which should enhance investor protection. In addition, the option to have Web-based delivery of the Regulatory Element of the S106, S201, and S901 Continuing Education Programs at a reduced cost lowers barriers to entry and removes impediments to a free and open market and national market system by making it easier and less costly for Trading Permit Holders to participate in the market. Accordingly, the Exchange believes that Web-based delivery of the Regulatory Element of the S106, S201, and S901 Continuing Education Programs and reducing the costs of continuing education in general are goals that are consistent with the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. As FINRA has stated, the proposed rule change is specifically intended to reduce the burdens of continuing education on market participants while preserving the integrity of the S106, S201, and S901 Continuing Education Programs. In general, reduction in cost and removal of barriers to entry encourages competition among market participants, particularly in situations where such rules are employed universally across the markets. By bringing the Exchange's fees structure in line with that of FINRA, the Exchange believes it is removing impediments to free and open markets and encouraging competition between the Exchange and other markets that use the S106, S201, and S901 Continuing Education Programs. Accordingly, the Exchange further believes that the proposed rule change will relieve burdens on, and otherwise promote competition.
The Exchange neither solicited nor received written comments on the proposed rule change.
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 (the “Act” or “Exchange Act”)
The MSRB filed with the Commission proposed amendments to Rule G-3(i)(i), Continuing Education Requirements, Regulatory Element, to facilitate the Web-based delivery method for meeting the requirements of Rule G-3(i)(i) (the “proposed rule change”). The proposed rule change, which is based on Financial Industry Regulatory Authority (“FINRA”) Rule 1250, has been filed for immediate effectiveness.
The text of the proposed rule change is available on the MSRB's Web site at
In its filing with the Commission, the MSRB 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 MSRB has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The MSRB has established a professional qualifications program that establishes competency standards for municipal securities brokers and municipal securities dealers (collectively, “dealers”) and their associated persons. Section 15B(b)(2)(A) of the Act provides that the rules of the MSRB shall require associated persons of dealers to meet such standards of training, experience, competence, and such other qualifications as the MSRB finds necessary or appropriate in the public interest or for the protection of investors and municipal entities or obligated persons.
The requirements for compliance with the Regulatory Element component of the MSRB's CE requirements are identical to the requirements for the Regulatory Element component of FINRA's CE requirements. Both the MSRB and FINRA require certain registered persons,
On June 11, 2015 FINRA proposed changes to its CE requirements under FINRA Rule 1250(a)(6) to permit the Regulatory Element program to be administered through Web-based delivery or such other technological manner and format as specified by FINRA and to eliminate the requirements for in-firm and test center delivery of the Regulatory Element.
The CE Council believes that, with the advances in Web-based technology, in-firm delivery can be stream-lined, making it easier for registered persons to complete the Regulatory Element without having to travel to a testing center. The Board supports the CE Council's initiative and accordingly approved the proposed rule change. The proposed rule change is wholly consistent with FINRA's rule proposal amending FINRA Rule 1250 (Continuing Education Requirements) to provide a Web-based delivery method for completing the Regulatory Element of the CE Requirements, which was filed with the SEC on June 4, 2015 and approved by the SEC on July 31, 2015.
The proposed Web-based delivery method will provide registered persons the flexibility to meet the Regulatory Element requirement of MSRB Rule G-3(i)(i) at a location of their choosing, including their private residence, at any time during their 120-day window for completion of the Regulatory Element.
In its rule filing, FINRA outlined a timeline for phasing in Web-based delivery and guidance for any firms that currently utilize in-firm delivery for CE delivery.
The MSRB endorses FINRA's timeline for phasing in the new Web-based delivery method and phasing-out the in-firm delivery of the Regulatory Element.
The MSRB believes that the proposed rule change is consistent with the provisions of Section 15B(b)(2)(A) of the Act,
The MSRB believes that the proposed rule change will permit registered persons to utilize the time saved attending test centers to focus on the content and learning objectives set-forth in the CE modules, potentially leading to a better understanding of the modules and thus enhanced investor protections. The proposed rule change is designed to preserve the integrity of the Regulatory Element of the CE requirements while making compliance with the Regulatory Element less burdensome on firms by giving them and their covered associated persons additional flexibility and, as a result, a reduction in the cost of the Regulatory Element requirement.
The MSRB does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The MSRB notes that the proposed rule change is specifically intended to reduce the burden on firms while preserving the integrity of the Regulatory Element program. Web-based delivery will allow registered persons the flexibility to complete the Regulatory Element at any location and at any time during their 120-day window for completion of the Regulatory Element and offers cost savings over test centers.
Written comments were neither solicited nor received on the proposed rule change.
Pursuant to Section 19(b)(3)(A)
The MSRB has provided that the proposed rule change is based on FINRA Rule 1250, which was filed for effectiveness commencing October 1, 2015 and approved by the Commission on July 31, 2015.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
For the Commission, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
CBOE proposes to amend Rule 24.9(e) (End of Week/End of Month Expirations Pilot Program (“Program”)) by clarifying the maximum numbers of expirations permitted to be listed under the Program and by deleting outdated text from Rule 24.9(e). The Exchange is not proposing to change the substantive content of Rule 24.9(e).
The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On September 14, 2010, the Commission approved CBOE's proposal to establish a pilot program under which CBOE is permitted to list P.M.-settled options on broad-based indexes to expire on (a) any Friday of the month, other than the third Friday-of-the-month, and (b) the last trading day of the month.
This current filing proposes to amend Rule 24.9(e) by clarifying the maximum numbers of expirations permitted to be listed under the Program. In support of this change, CBOE states that EOWs and EOMs are subject to the same rules governing standard options on the same broad-based index class. In the filing to establish the Program, CBOE provided example expirations for EOWs and EOMs and cited to Rule 24.9(a)(2) as the specific rule governing the expiration
Respecting EOWs, CBOE proposes to amend Rule 24.9(e)(1) by adding the following rule text:
The maximum numbers of expirations that may be listed for EOWs is the same as the maximum numbers of expirations permitted in Rule 24.9(a)(2) for standard options on the same broad-based index. EOW expirations shall be for the nearest Friday expirations from the actual listing date, other than the third Friday-of-the-month or that coincide with an EOM expiration. If the last trading day of a month is a Friday, the Exchange will list an EOM and not an EOW. Other expirations in the same class are not counted as part of the maximum numbers of EOW expirations for a broad-based index class.
In support of this change, CBOE states that under Rule 24.9(a)(2), the maximum numbers of expirations varies depending on the type of class or by specific class. Therefore, the maximum number of expirations permitted for EOWs on a given class would be determined based on the specific broad-based index option class. For example, if the broad-based index option class is used to calculate a volatility index, the maximum number of EOWs permitted in that class would be 12 expirations (as is permitted in Rule 24.9(a)(2)). For EOWs, CBOE proposes to require that the expirations be for weeks that are in the nearest Friday from the actual listing date, other than the third Friday-of-the-month or that coincide with an EOM expiration. CBOE proposes to set forth the listing hierarchy described in the original Program filing, which provides that if the last trading day of a month
Respecting EOMs, CBOE proposes to amend Rule 24.9(e)(2) by adding the following rule text:
The maximum numbers of expirations that may be listed for EOMs is the same as the maximum numbers of expirations permitted in Rule 24.9(a)(2) for standard options on the same broad-based index. EOM expirations shall be for the nearest end of month expirations from the actual listing date. Other expirations in the same class are not counted as part of the maximum numbers of EOM expirations for a broad-based index class.
In support of this change, CBOE states that under Rule 24.9(a)(2), the maximum numbers of expirations varies depending on the type of class or by specific class. Therefore, the maximum number of expirations permitted for EOMs on a given class would be determined based on the specific broad-based index option class. For example, if the broad-based index option class is used to calculate a volatility index, the maximum number of EOMs permitted in that class would be 12 expirations (as is permitted in Rule 24.9(a)(2)). For EOMs, CBOE proposes to require that the expirations be for the nearest end of month expirations from the actual listing date. Finally, CBOE proposes to clarify that other expirations in the same class would not be counted as part of the maximum numbers of EOM expirations for a broad-based index class. CBOE states that this provision is similar to one recently adopted in connection with weekly VIX expirations, in that standard VIX expirations are not counted toward the maximum number of expirations permitted for weekly expiration in VIX options.
The above described changes hard code into CBOE's rule its existing listing practice as to the maximum numbers of expirations permitted under the Program. Currently, the maximum numbers of expirations are not populated for EOWs and EOMs; however, the same is true for standard expirations in certain broad-based index option classes. As a result, CBOE believes that setting forth the maximum potential of a rule is non-controversial and is consistent with how CBOE has treated EOWs and EOMs under the Program since its adoption in 2010. In any event, CBOE has analyzed its capacity and represents that it believes the Exchange and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle any additional traffic associated with the listing the maximum numbers of expirations permitted under the Program.
The Exchange proposes to make non-substantive changes to Rule 24.9(e) by deleting rule text that references items with dates in 2011 and 2015 that have passed. The Exchange represents that this rule text language is obsolete. Also, the Exchange is proposing to replace references to “regular options” with “standard options” to conform references to third-Friday expiring options (standard) between Rule 24.9(a) (which uses “standard” when referring to third-Friday expiring options) and Rule 24.9(e).
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder, including the requirements of Section 6(b) of the Act.
Specifically, the Exchange believes that some ambiguity may exist as to the maximum numbers of EOWs and EOMs that may be listed under the Program. Setting forth the numbers of expirations permitted under the Program would benefit market participants by making that Program clearer on its face by eliminating any potential ambiguity about the maximum numbers of expirations permitted under the Program. The Exchange also believes that the current proposal is designed to promote just and equitable principles of trade because it would hard code into CBOE's rule its existing listing practice as to the maximum numbers of expirations permitted under the Program.
This proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, CBOE believes that providing clarification about the numbers of expirations permitted under the Program would benefit all market participants who trade expirations listed under the Program and does not impose any burden on competition.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17Ad-13 requires an annual study and evaluation of internal accounting controls under the Securities Exchange Act of 1934 (15 U.S.C. 78a
Approximately 100 independent, professional transfer agents must file the independent accountant's report annually. We estimate that the annual internal time burden for each transfer agent to comply with Rule 17Ad-13 by submitting the report prepared by the independent accountant to the Commission is minimal. The time required for the independent accountant to prepare the accountant's report varies with each transfer agent depending on the size and nature of the transfer agent's operations. The Commission estimates that, on average, each report can be completed by the independent accountant in 120 hours, resulting in a total of 12,000 external hours annually (120 hours × 100 reports). The burden was estimated using Commission review of filed Rule 17Ad-13 reports. The Commission estimates that, on average, 120 hours are needed to perform the study, prepare the report, and retain the required records on an annual basis. Assuming an average hourly rate of an independent accountant of $60, the average total annual cost of the report is $7,200. The total annual cost for the approximate 100 respondents is approximately $720,000.
The retention period for the recordkeeping requirement under Rule 17Ad-13 is three years following the date of a report prepared pursuant to the rule. The recordkeeping requirement under Rule 17Ad-13 is mandatory to assist the Commission and other regulatory agencies with monitoring transfer agents and ensuring compliance with the rule. This rule does not involve the collection of confidential information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following Web site,
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Life Care Medical Devices Ltd. (CIK No. 1508363), a defaulted Nevada corporation with its principal place of business listed as New Smyrna Beach, Florida, with stock quoted on OTC Link (previously, “Pink Sheets”) operated by OTC Markets Group, Inc. (“OTC Link”) under the ticker symbol LCMD, because it has not filed any periodic reports since the period ended January 31, 2013. On October 22, 2014, the Division of Corporation Finance sent Life Care Medical Devices a delinquency letter requesting compliance with its periodic filing obligations, but the letter was returned because of Life Care Medical Devices' failure to maintain a valid address on file with the Commission, as required by Commission rules (Rule 301 of Regulation S-T, 17 CFR 232.301 and Section 5.4 of EDGAR Filer Manual).
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of New Leaf Brands, Inc. (CIK No. 806175), a revoked Nevada corporation with its principal place of business listed as Southbury, Connecticut, with stock quoted on OTC Link under the ticker symbol NLEF, because it has not filed any periodic reports since the period ended September 30, 2012. On June 9, 2014, New Leaf Brands received a delinquency letter sent by the Division of Corporation Finance requesting compliance with its periodic filing obligations.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on October 16, 2015, through 11:59 p.m. EDT on October 29, 2015.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to adopt Rule 3.20 to conform to the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) for purposes of an agreement between the Exchange and FINRA pursuant to Rule 17d-2 under the Act.
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.
Pursuant to Rule 17d-2 under the Act,
The 17d-2 Agreement included a certification by the Exchange that states that the requirements contained in certain Exchange rules are identical to, or substantially similar to, certain FINRA rules that have been identified as comparable. The Exchange does not currently maintain a rule similar to FINRA Rule 3220 governing a Member's giving of gifts. To conform to comparable FINRA rules for purposes of the 17d-2 Agreement, the Exchange
The Exchange believes that these changes will help to avoid confusion among Members of the Exchange that are also members of FINRA by further aligning the Exchange Rules with FINRA Rule 3220. The proposed adoption of Rule 3.20 is designed to enable the Exchange to incorporate Rule 3.20 into the 17d-2 Agreement, further harmonizing regulation of Members that are also members of FINRA. For the avoidance of doubt, Rule 3.20 would equally apply to Exchange-only Members as the Exchange believes it appropriately protects against improprieties that might arise when substantial gifts or monetary payments are given to certain persons. The Exchange will issue a Regulatory Notice to its Members, including Exchange-only Members that may not also be FINRA Members, and those Members registered with FINRA, clarifying that FINRA's interpretive guidance related to FINRA Rule 3220 is considered part of Exchange Rule 3.20, and that all Members are required to regulate their conduct according to Rule 3.20 and the interpretive guidance related to FINRA Rule 3220.
As amended, like FINRA Rule 3220(a), proposed paragraph (a) of Rule 3.20 would prevent gifts in excess of $100.00 per individual per year where the gift or gratuity is in relation to the business of the employee
The Rule would also require each Member to maintain a separate record of all gifts or gratuities. Like FINRA Rule 3220(c), proposed paragraph (c) of Rule 3.20 would require a separate record of all payments or gratuities in any amount known to the member, the employment agreement referred to in proposed paragraph (b) of Rule 3.20 and any employment compensation paid as a result thereof shall be retained by the member for the period specified by Exchange Act Rule 17a-4.
In early 2014, the Exchange and its affiliate, EDGA Exchange, Inc. (“EDGA”) received approval to effect a merger (the “Merger”) of the Exchange's parent company, Direct Edge Holdings LLC, with BATS Global Markets, Inc., the parent of BZX and the BYX (together with BZX, EDGA and EDGX, the “BGM Affiliated Exchanges”).
The Exchange believes that proposed rule change is consistent with Section 6(b)(5) of the Act,
In addition, the proposed rule change would provide greater harmonization between rules of similar purpose on the BGM Affiliated Exchanges, resulting in greater uniformity and less burdensome and more efficient regulatory compliance and understanding of Exchange Rules. As such, the proposed rule change would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system. Similarly, the Exchange also believes that, by harmonizing the rules across each BGM Affiliated Exchange, the proposal will enhance the Exchange's ability to fairly and efficiently regulate its Members, meaning that the proposed rule change would promote just and equitable principles of trade in accordance with Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather to provide greater harmonization among Exchange and FINRA rules of similar purpose, resulting in less burdensome and more efficient regulatory compliance for common members and facilitating FINRA's performance of its regulatory functions under the 17d-2 Agreement. In addition, allowing the Exchange to implement substantively identical rules that apply to all members of the BGM Affiliated Exchanges across each of the BGM Affiliated Exchanges does not present any competitive issues, but rather is designed to provide greater
The Exchange has neither solicited nor received written comments on the proposed rule change.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend FINRA Rule 4210 (Margin Requirements) to establish margin requirements for (1) To Be Announced (“TBA”) transactions, inclusive of adjustable rate mortgage (“ARM”) transactions, (2) Specified Pool Transactions, and (3) transactions in Collateralized Mortgage Obligations (“CMOs”), issued in conformity with a program of an agency or Government-Sponsored Enterprise (“GSE”), with forward settlement dates, as further defined herein (collectively, “Covered Agency Transactions,” also referred to, for purposes of this filing, as the “TBA market”). The proposed rule change redesignates current paragraph (e)(2)(H) of FINRA Rule 4210 as new paragraph (e)(2)(I), adds new paragraph (e)(2)(H), makes conforming revisions to paragraphs (a)(13)(B)(i), (e)(2)(F), (e)(2)(G), (e)(2)(I), as redesignated by the rule change, and (f)(6), and adds to the rule new Supplementary Materials .02 through .05.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA is proposing amendments to FINRA Rule 4210 (Margin Requirements) to establish requirements for (1) TBA transactions,
Most trading of agency and GSE MBS takes place in the TBA market, which is characterized by transactions with forward settlements as long as several months past the trade date.
Historically, the TBA market is one of the few markets where a significant portion of activity is unmargined, thereby creating a potential risk arising from counterparty exposure. Futures markets, for example, require the posting of initial margin for new positions and, for open positions, maintenance and mark to market (also referred to as “variation”) margin on all exchange cleared contracts. Market convention has been to exchange margin in the repo and securities lending markets, even when the collateral consists of exempt securities. With a view to this gap between the TBA market versus other markets, the TMPG recommended standards (the “TMPG best practices”) regarding the margining of forward-settling agency MBS transactions.
The TMPG best practices are recommendations and as such currently are not rule requirements.
Accordingly, to establish margin requirements for Covered Agency Transactions, FINRA is proposing to redesignate current paragraph (e)(2)(H) of Rule 4210 as new paragraph (e)(2)(I), to add new paragraph (e)(2)(H) to Rule 4210, to make conforming revisions to paragraphs (a)(13)(B)(i), (e)(2)(F), (e)(2)(G), (e)(2)(I), as redesignated by the rule change, and (f)(6),
The proposed rule change, as revised in response to comment on the
The proposed rule change is intended to reach members engaging in Covered Agency Transactions with specified counterparties. The core requirements of the proposed rule change are set forth in new paragraph (e)(2)(H).
Proposed paragraph (e)(2)(H)(i)c. of the rule defines Covered Agency Transactions to mean:
• TBA transactions, as defined in FINRA Rule 6710(u),
• Specified Pool Transactions, as defined in FINRA Rule 6710(x),
• CMOs, as defined in FINRA Rule 6710(dd),
The proposed definition of Covered Agency Transactions is largely as published in the
In addition to Covered Agency Transactions, the proposed rule change establishes the following key definitions for purposes of new paragraph (e)(2)(H) of Rule 4210:
• The term “bilateral transaction” means a Covered Agency Transaction that is not cleared through a registered clearing agency as defined in paragraph (f)(2)(A)(xxviii) of Rule 4210;
• The term “counterparty” means any person that enters into a Covered Agency Transaction with a member and includes a “customer” as defined in paragraph (a)(3) of Rule 4210;
• The term “deficiency” means the amount of any required but uncollected maintenance margin and any required but uncollected mark to market loss;
• The term “gross open position” means, with respect to Covered Agency Transactions, the amount of the absolute dollar value of all contracts entered into by a counterparty, in all CUSIPs; provided, however, that such amount shall be computed net of any settled position of the counterparty held at the member and deliverable under one or more of the counterparty's contracts with the member and which the counterparty intends to deliver;
• The term “maintenance margin” means margin equal to two percent of the contract value of the net long or net short position, by CUSIP, with the counterparty;
• The term “mark to market loss” means the counterparty's loss resulting from marking a Covered Agency Transaction to the market;
• The term “mortgage banker” means an entity, however organized, that engages in the business of providing real estate financing collateralized by liens on such real estate;
• The term “round robin” trade means any transaction or transactions
• The term “standby” means contracts that are put options that trade OTC, as defined in paragraph (f)(2)(A)(xxvii) of Rule 4210, with initial and final confirmation procedures similar to those on forward transactions.
The specific requirements that would apply to Covered Agency Transactions are set forth in paragraph (e)(2)(H)(ii). These requirements address the types of counterparties that are subject to the rule, risk limit determinations, specified exceptions from the proposed margin requirements, transactions with exempt accounts,
•
Paragraph (e)(2)(H)(ii)a. of the rule provides that all Covered Agency Transactions with any counterparty, regardless of the type of account to which booked, are subject to the provisions of paragraph (e)(2)(H) of the rule. However, paragraph (e)(2)(H)(ii)a.1. of the rule provides that with respect to Covered Agency Transactions with any counterparty that is a Federal banking agency, as defined in 12 U.S.C. 1813(z) under the Federal Deposit Insurance Act,
•
Paragraph (e)(2)(H)(ii)b. of the rule provides that members that engage in Covered Agency Transactions with any counterparty shall make a determination in writing of a risk limit for each such counterparty that the member shall enforce.
○ If a member engages in transactions with advisory clients of a registered investment adviser, the member may elect to make the risk limit determination at the investment adviser level, except with respect to any account or group of commonly controlled accounts whose assets managed by that investment adviser constitute more than 10 percent of the investment adviser's regulatory assets under management as reported on the investment adviser's most recent Form ADV;
○ Members of limited size and resources that do not have a credit risk officer or credit risk committee may designate an appropriately registered principal to make the risk limit determinations;
○ The member may base the risk limit determination on consideration of all products involved in the member's business with the counterparty, provided the member makes a daily record of the counterparty's risk limit usage;
○ A member shall consider whether the margin required pursuant to the rule is adequate with respect to a particular counterparty account or all its counterparty accounts and, where appropriate, increase such requirements.
•
Paragraph (e)(2)(H)(ii)c. provides that the margin requirements specified in paragraph (e)(2)(H) of the rule shall not apply to:
○ Covered Agency Transactions that are cleared through a registered clearing agency, as defined in FINRA Rule 4210(f)(2)(A)(xxviii),
○ any counterparty that has gross open positions in Covered Agency Transactions with the member amounting to $2.5 million or less in aggregate, if the original contractual settlement for all such transactions is in the month of the trade date for such transactions or in the month succeeding the trade date for such transactions and the counterparty regularly settles its Covered Agency Transactions on a Delivery Versus Payment (“DVP”) basis or for cash; provided, however, that such exception from the margin requirements shall not apply to a counterparty that, in its transactions with the member, engages in dollar rolls, as defined in FINRA Rule 6710(z),
As discussed further in Items II.B and II.C of this filing, FINRA is establishing the $2.5 million per counterparty exception to address commenter concern that the scope of Covered Agency Transactions subject to the proposed margin requirements would unnecessarily constrain non-risky business activity of market participants or otherwise unnecessarily alter participants' trading decisions. FINRA believes that transactions that fall within the proposed amount and that meet the specified conditions do not pose systemic risk. Further, many of such transactions involve smaller counterparties that do not give rise to risk to the firm. Accordingly, FINRA believes it is appropriate to establish the exception.
•
Paragraph (e)(2)(H)(ii)d. of the rule provides that, on any net long or net short position, by CUSIP, resulting from bilateral transactions with a counterparty that is an exempt account, no maintenance margin shall be required.
•
Paragraph (e)(2)(H)(ii)e. of the rule provides that, on any net long or net short position, by CUSIP, resulting from bilateral transactions with a counterparty that is not an exempt account, maintenance margin,
As discussed further in Item II.B and Item II.C of this filing, commenters expressed concern regarding the potential impact of the proposed maintenance margin requirement and its implications for non-exempt accounts versus exempt accounts. FINRA believes that the maintenance margin requirement is appropriate because it aligns with the potential risk as to non-exempt accounts engaging in Covered Agency Transactions and the specified two percent amount is consistent with other measures in this area. By the same token, to tailor the requirement more specifically to the potential risk, and to ameliorate potential burdens on market participants, FINRA has revised the proposed maintenance margin requirement vis-à-vis the version published in the
•
Paragraph (e)(2)(H)(ii)f. of the rule provides that any deficiency, as set forth in paragraph (e)(2)(H)(ii)e. of the rule, or mark to market losses, as set forth in paragraph (e)(2)(H)(ii)d. of the rule, with a single counterparty shall not give rise to any margin requirement, and as such need not be collected or charged to net capital, if the aggregate of such amounts with such counterparty does not exceed $250,000 (“the de minimis transfer amount”). The rule provides that the full amount of the sum of the required maintenance margin and any mark to market loss must be collected when such sum exceeds the de minimis transfer amount.
FINRA has revised the proposed de minimis transfer provisions vis-à-vis the proposal as published in the
•
Paragraph (e)(2)(H)(ii)g. of the rule provides that unrealized profits in one Covered Agency Transaction position may offset losses from other Covered Agency Transaction positions in the same counterparty's account and the amount of net unrealized profits may be used to reduce margin requirements. With respect to standbys, only profits (in-the-money amounts), if any, on long standbys shall be recognized. The proposed language is largely as proposed in the
The proposed rule change makes a number of revisions to paragraphs (e)(2)(F) and (e)(2)(G) of FINRA Rule 4210 in the interest of clarifying the rule's structure and otherwise conforming the rule in light of the proposed revisions to new paragraph (e)(2)(H) as discussed above:
• The proposed rule change revises the opening sentence of paragraph (e)(2)(F) to clarify that the paragraph's scope does not apply to Covered Agency Transactions as defined pursuant to new paragraph (e)(2)(H). Accordingly, as amended, paragraph (e)(2)(F) states: “Other than for Covered Agency Transactions as defined in paragraph (e)(2)(H) of this Rule . . .” FINRA believes that this clarification will help demarcate the treatment of products subject to paragraph (e)(2)(F) versus new paragraph (e)(2)(H). For similar reasons, the proposed rule change revises paragraph (e)(2)(G) to clarify that the paragraph's scope does not apply to a position subject to new paragraph (e)(2)(H) in addition to paragraph (e)(2)(F) as the paragraph currently states. As amended, the parenthetical in the opening sentence of the paragraph states: “([O]ther than a position subject to paragraph (e)(2)(F) or (e)(2)(H) of this Rule).”
• Current, pre-revision paragraph (e)(2)(H)(i) provides that members must maintain a written risk analysis methodology for assessing the amount of credit extended to exempt accounts pursuant to paragraphs (e)(2)(F) and (e)(2)(G) of the rule which shall be made available to FINRA upon request. The proposed rule change places this language in paragraphs (e)(2)(F) and (e)(2)(G) and deletes it from its current location. Accordingly, FINRA proposes to move to paragraphs (e)(2)(F) and (e)(2)(G): “Members shall maintain a written risk analysis methodology for assessing the amount of credit extended to exempt accounts pursuant to [this paragraph], which shall be made available to FINRA upon request.” Further, FINRA proposes to add to each: “The risk limit determination shall be made by a designated credit risk officer or credit risk committee in accordance with the member's written risk policies and procedures.”
• The proposed rule change revises the references in paragraphs (e)(2)(F) and (e)(2)(G) to the limits on net capital deductions as set forth in current
Under current paragraph (e)(2)(H) of FINRA Rule 4210, in brief, a member must provide prompt written notice to FINRA and is prohibited from entering into any new transactions that could increase the member's specified credit exposure if net capital deductions taken by the member as a result of marked to the market losses incurred under paragraphs (e)(2)(F) and (e)(2)(G), over a five day business period, exceed: (1) For a single account or group of commonly controlled accounts, five percent of the member's tentative net capital (as defined in SEA Rule 15c3-1); or (2) for all accounts combined, 25 percent of the member's tentative net capital (again, as defined in SEA Rule 15c3-1). As discussed earlier, the proposed rule change redesignates current paragraph (e)(2)(H) of the rule as paragraph (e)(2)(I), deletes current paragraph (e)(2)(H)(i), and makes conforming revisions to paragraph (e)(2)(I), as redesignated, for the purpose of clarifying that the provisions of that paragraph are meant to include Covered Agency Transactions as set forth in new paragraph (e)(2)(H). In addition, the proposed rule change clarifies that de minimis transfer amounts must be included toward the five percent and 25 percent thresholds as specified in the rule, as well as amounts pursuant to the specified exception under paragraph (e)(2)(H) for gross open positions of $2.5 million or less in aggregate.
Accordingly, as revised by the rule change, redesignated paragraph (e)(2)(I) of the rule provides that, in the event that the net capital deductions taken by a member as a result of deficiencies or marked to the market losses incurred under paragraphs (e)(2)(F) and (e)(2)(G) of the rule (exclusive of the percentage requirements established thereunder), plus any mark to market loss as set forth under paragraph (e)(2)(H)(ii)d. of the rule and any deficiency as set forth under paragraph (e)(2)(H)(ii)e. of the rule, and inclusive of all amounts excepted from margin requirements as set forth under paragraph (e)(2)(H)(ii)c.2. of the rule or any de minimis transfer amount as set forth under paragraph (e)(2)(H)(ii)f. of the rule, exceed:
• For any one account or group of commonly controlled accounts, 5 percent of the member's tentative net capital (as such term is defined in SEA Rule 15c3-1),
• for all accounts combined, 25 percent of the member's tentative net capital (as such term is defined in SEA Rule 15c3-1),
• such excess as calculated in paragraphs (e)(2)(I)(i)a. or b. of the rule continues to exist on the fifth business day after it was incurred,
If the Commission approves the proposed rule change, FINRA will announce the effective date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. As discussed above, FINRA published
The proposed rule change aims to reduce firm exposure to counterparty credit risk stemming from unsecured credit exposure that exists in the market today. A significant portion of the TBA market is non-centrally cleared, exposing parties extending credit in a transaction to significant counterparty risk between trade and settlement dates.
The unmargined positions in the TBA market may also raise systemic concerns. Were one or more counterparties to default, the interconnectedness and concentration in the TBA market may lead to potentially broadening losses and the possibility of substantial disruption to financial markets and participants.
The repercussions of unmargined bilateral credit exposures were demonstrated in the Bear Stearns and Lehman Brothers failures in 2008. Since the financial crisis of 2008-09, margining regimes on bilateral credit transactions have been strengthened by regulatory bodies and adopted as a part of best practices by industry groups. For example, margining has become a widespread practice—especially after the adoption of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act)
As discussed above, the proposed rule change would require member firms to collect, as to exempt accounts, mark to market margin and, as to non-exempt accounts, both mark to market margin and maintenance margin, as specified by the rule. Based on discussions with industry participants, FINRA expects that very few accounts would be treated as non-exempt accounts under the rule, and hence most would not be subject to the maintenance margin requirement.
To better understand the TBA market, FINRA analyzed data from two sources. The first dataset contains approximately 2.06 million TBA market transactions reported to TRACE by 223 broker-dealers from March 1, 2012 to July 31, 2013. Of the 2.06 million trades, approximately 1.10 million were interdealer trades, and 960,000 were dealer-to-customer trades.
Based on FINRA's analysis of the transactions in the TRACE dataset, market participation by broker-dealers is highly concentrated, as the top ten broker-dealers account for more than approximately 77% of the dollar trading volume in the trades analyzed. These are primarily broker-dealers affiliated with large bank holding companies and include FINRA's ten largest members. Five are members of the TMPG.
FINRA understands that most interdealer transactions in the TBA market are subject to mark to market margin between members of the Mortgage-Backed Securities Division (“MBSD”) of the Fixed Income Clearing Corporation (“FICC,” a subsidiary of the Depository Trust & Clearing Corporation (“DTCC”)), which acts as a central counterparty. Also, FINRA understands that, as of June, 2014, TMPG member firms had, on average, margining agreements with approximately 65% of their counterparties.
To assess the likely impact of the proposal, FINRA estimated the daily margin requirement that broker-dealers and their customers would have had to post under the proposed requirement, using transaction data in the TBA market that are available from TRACE and were made available by a major clearing broker. FINRA notes that there are several limitations to the analysis due to data availability. Among these, the data are not granular enough to contain sufficient detail on contractual settlement terms, with respect to which the proposed rule change establishes parameters for specified exceptions to apply,
The second dataset, containing TBA transactions, was provided to FINRA by a major clearing broker and contains 5,201 open positions as of May 30, 2014, in 375 customer accounts from ten introducing broker-dealers. These data represent 4,211 open short positions and 990 open long positions. The mean sizes for long and short positions were $2.02 million and $1.69 million, respectively, while the median open position size was $1.00 million for both long and short positions. In the sample, an account had a mean of 13.87 open positions (a median of 10) where the mean gross exposure was $24.31 million (a median of $12 million). This dataset enables FINRA to make inferences about the potential margin obligations that individual customer accounts would incur, which is not possible using TRACE, since unique customer identifications are not available. As such, these customer accounts may provide better understanding of customer, particularly mortgage banker, activity. However, the data do not identify whether trades include a special financing technique, such as dollar roll or other financing techniques, or whether the trades are settled DVP or for cash.
The proposed rule change is expected to enhance sound risk management practices for all parties involved in the TBA market. Further, the standardization of margining practice should create a fairer environment for all market participants. Ultimately, the proposed rule change is expected to mitigate counterparty risk to protect both sides to a transaction from a potential default.
As discussed earlier, FINRA has made revisions to the proposed rule change as published in the
FINRA understands that there will likely be direct and indirect costs of compliance associated with the proposed rule change as revised. Some of the direct costs are largely fixed in nature, and mostly include initial start-up costs, such as acquiring systems, software or technical support, and allocating staff resources to manage a margining regime. Direct costs would also entail developing necessary procedures and establishing monitoring mechanisms. FINRA anticipates that a significant cost of the proposed rule change is the commitment of capital to meet the margin requirements. The magnitude of this cost depends on the trading activity of each party, each party's access to capital, and each party's having the capital reserves necessary to fulfill margin obligations. FINRA's experience with supervision of risk controls at larger firms suggests that at present substantially all such firms have systems in place for managing the margining of Covered Agency Transactions, and thus the system costs of the proposed rule change would result from extending the systems to the margining of transactions covered by the proposed rule change for those firms. In addition, as discussed above, FINRA understands that TMPG members at present require a substantial portion of their counterparties to post mark to market margin, implying that those firms should already have the systems and staff to facilitate margining practices and manage capital allocated. Therefore, FINRA believes that most start-up costs are likely to be incurred by smaller market participants that might have to establish the necessary systems for the first time.
FINRA understands that the margin requirements for TBA market transactions may also impose indirect costs. These costs may result from changed market behavior of some participants. Some parties who currently transact in the TBA market may choose to withdraw from or limit their participation in the TBA market. Reduced participation may lead to decreased liquidity in the market for certain issues or settlement periods, potentially restricting access to end users and increasing costs in the mortgage market. These market-wide impacts on liquidity would be limited if exiting market participants represent a small proportion of market transactions while market participants that choose to remain, or new participants that choose to enter the market, increase their activities and thereby offset the impact of participants that exit the market.
The potential impacts of the proposed rule change on mortgage bankers, broker-dealers, investors and consumers of mortgages are discussed in turn below.
Based on discussions with market participants and other regulators, FINRA understands that mortgage bankers are among the largest group of customers in the TBA market—following institutional buyers—as the forward-settling nature of MBS transactions provides mortgage bankers with the opportunity to lock in interest rates as new loans are originated. These transactions give mortgage lenders an opportunity to hedge their exposures to interest rate risk between the time of origination and the sale of the home loan in the secondary market.
To estimate the potential burden on mortgage bankers, FINRA analyzed the data described above that was provided by a major clearing broker. As discussed earlier, the proposed rule change establishes a $250,000 de minimis transfer amount below which the member need not collect margin, subject to specified conditions,
For these data, FINRA finds that only nine of the 375 accounts would have an obligation to post margin on a total of 35 days for their open positions as of May 30, 2014 if subject to the proposed rule change. By this analysis, less than 0.01% of the 14,001 account-day combinations in the sample would be required to provide margin on their TBA positions. For those accounts that would be required to post margin on any day during the period studied, FINRA estimates the average (median) net daily margin to be posted on these 35 days to be $595,191 ($384,180) for an average (median) gross exposure of $246,901,235 ($253,111,500).
To the extent that the sample considered in this analysis is representative, it appears that mortgage bankers have smaller gross exposures, on average, and more positions that would generate margin obligations that are less than the $250,000 de minimis transfer amount. Accordingly, FINRA expects that the majority of the mortgage bankers' positions would be excepted from the proposed margin requirements.
The
In response, FINRA understands the importance of the role of mortgage bankers in the mortgage finance market and for that reason designed the proposed rule change to include the provision for members to treat mortgage bankers as exempt accounts with respect to their hedging. However, FINRA believes that it would work against the rule's overall purposes to create a pathway for a mortgage banker that is not otherwise an exempt account to engage in speculation in the TBA market, which could create incentives leading to distortions in trading behavior. In the presence of such incentives, FINRA believes it reasonable to expect a party to more frequently enter into transactions that are primarily speculative in nature. In fact, where other market participants would be constrained by the rule, these types of transactions might be more profitable than they are today. As noted earlier, the proposed rule change accommodates the business of mortgage bankers by providing exempt account treatment to the extent the member has conducted sufficient due diligence to determine that the mortgage banker is hedging its pipeline of mortgage production. Again, as discussed earlier, FINRA notes that the current Interpretations under Rule 4210 already contemplate that members evaluate the loan servicing portfolios of counterparties that are being treated as exempt accounts.
FINRA believes that currently broker-dealers are the main providers of liquidity in the TBA market and their trading behavior impacts nearly all market participants. While the direct costs of margin requirements will be similar to those of mortgage bankers, the initial costs are likely much lower in aggregate as many of these firms have systems in place to manage margining practices.
FINRA understands that, currently, there are 153 members of MBSD that already follow mark to market margining procedures required by MBSD. Of those 153 firms, 38 are FINRA members, including the ten most active broker-dealers in the TBA market, who collectively account for approximately 77% of the dollar trading volume reported in TRACE. FINRA believes that start-up costs will likely be incurred by smaller and regional members that are not MBSD members. Some of these smaller and regional firms may already be in the process of establishing in-house solutions or outsourcing margining management in order to follow the TMPG recommendations.
FINRA computed bilateral interdealer TBA exposures using approximately 1.10 million TBA trades between March 1, 2012 and July 31, 2013 reported to TRACE and estimated the mark to market margin that counterparties would have been required to post if the proposed margin requirements existed during the sample period. The mean (median) interdealer trade size is $33.98 million ($5.31 million) and the mean (median) difference between the trade date and contractual settlement date is 25.2 days (20 days).
TRACE has a specific flag that identifies certain transactions as dollar rolls, a type of financing trade to which specified exceptions under the proposed rule change are not available. But dollar rolls are not the only type of financing
Using the same method employed above,
In response to the
FINRA is sensitive to the concerns expressed by firms. However, as discussed earlier, FINRA believes that to assert that no degradation has been observed in the TBA market (other than that associated with the collapse of Lehman) does not of itself demonstrate that there is no credit risk in this market. TBA market participants have exposure to significant counterparty credit risk, defined as the potential failure of the counterparty to meet its financial obligations.
With respect to the specific cost amounts suggested by commenters, FINRA notes that, though compliance with the proposed amendments will involve regulatory costs, as noted above, most of these would be incurred as variable costs as margin obligations or fixed startup costs for purchase or upgrading of software. FINRA believes, based on discussions with providers, that the proffered estimates by commenters are plausible but fall towards the higher end of the cost range for building, upgrading or outsourcing the necessary systems. Further, FINRA believes that, particularly for smaller firms, the proposed $250,000 de minimis amount and $2.5 million per counterparty exception should serve to mitigate these costs.
In response to the
In response, FINRA notes that the purpose of the margin rules is to protect the market participants from losses that could stem from increased volatility and the ripple effects of failures. This is a by-product that provides direct protection to the customers of members.
Other commenters drew attention to potential negative impacts to the consumer market, suggesting that the amendments would chill the mortgage market and impose liquidity constraints because mortgage bankers would face higher costs that would be passed on to consumers of mortgages.
The historically low and stable interest rates that the United States has experienced over the last several years might lead FINRA to underestimate the margin that market participants would have to post in a more volatile market, and thus underestimate the impact of the rule proposal.
To assess the likely impact of the rule on the margin obligation in a more volatile interest rate environment, FINRA has estimated the volatility
There are several provisions in the proposal that may potentially alter market participants' behavior in order to minimize the anticipated costs associated with the proposed rule. Such changes in behavior could potentially make trading more difficult for some settlement periods or contract sizes.
As proposed in the
With respect to the $2.5 million per counterparty exception, FINRA notes that the parameters for the settlement periods specified in the proposed rule may create an incentive to time trading (so that the original contractual settlement is in the month of the trade date or in the month succeeding the trade date, as provided in the rule) and thereby alter trading patterns in order to avoid margin obligations. For example, FINRA identified 582,435 trades from TRACE where the difference between the settlement date and the trade date is longer than 30 days but less than 61 days. Assuming that these trades meet all other conditions specified in the rule, approximately 78% of them would qualify for the $2.5 million per counterparty by virtue of settling within the specified timeframes. In the presence of the proposed rule, FINRA anticipates that some traders might alter the timing of their trades, others might incur higher costs to achieve the same economic exposure, and others yet might choose not to enter into trades with those costs.
As discussed further in Item II.C of this filing, some commenters in response to the
FINRA considered a number of alternatives in developing the proposed rule change. As discussed further in Item II.C of this filing, FINRA considered, among other things, alternative formulations with respect to concentration limits, excepting certain product types from the margin requirements, excepting trades with longer settlement cycles from the margin requirements, modifications to the de minimis transfer provisions, modifications to the proposed risk limit determination provisions and establishing exceptions for mortgage brokers from some or all provisions of the proposed rule. For example, FINRA considered establishing an exception from the proposed margin requirements for transactions settling within an extended settlement cycle. However, FINRA has been advised by market participants and other regulators, including the staff of the FRBNY, that such an exception could potentially result in clustering of trades around the specified settlement cycles in an effort to avoid margin expenses. Such a practice would fundamentally undermine FINRA's goal of improving counterparty risk management. Accordingly, as discussed further in Item II.C, FINRA determined to retain the specified settlement cycles in the
FINRA also evaluated various options for the proposed maintenance margin requirement. FINRA analyzed maintenance margin requirements imposed by regulators for other forward settling contracts. These regulators have adopted margin requirements that reflect the risk in these products, while balancing the cost of the margin requirements. Based on this analysis, as discussed above, FINRA has determined to propose 2% as the appropriate maintenance margin rate, as specified in the proposed rule.
The proposed rule change was published for comment in
As proposed in the
Commenters expressed concern that the scope of products proposed to be covered by the rule change is overbroad, that the TBA market has not historically posed significant risk and that regulation in this area is not necessary.
As discussed earlier, in response to commenter concerns, FINRA has engaged in extensive discussions with market participants and other supervisors, including staff of the FRBNY. To ameliorate potential burdens on members, FINRA considered, among other things, various options for narrowing the covered product types. The FRBNY staff has advised FINRA that, such modifications to the proposal would result in a mismatch between FINRA standards and the TMPG best practices, thereby resulting in perverse incentives in favor of non-margined products and leading to distortions of trading behavior.
FINRA is proposing, as an alternative approach in response to commenter concerns, to establish an exception from the proposed margin requirements that would apply to any counterparty that has gross open positions
Though FINRA shares commenters' concerns regarding the potential effects of margin in the TBA market, FINRA believes that margin is needed because the unsecured credit exposures that exist in the TBA market today can lead to financial losses by members. Permitting counterparties to participate in the TBA market without posting margin can facilitate increased leverage by customers, thereby posing risk to the
As proposed in the
Commenters expressed concerns about the proposed maintenance margin requirement. Some suggested that imposing a maintenance margin requirement would place FINRA members at a competitive disadvantage because investors, rather than bear these types of disproportionate costs, would prefer to leave the TBA market entirely or would take their business to banks or other entities not subject to the requirement.
In response to commenter concerns, FINRA is revising the proposed maintenance margin requirement for non-exempt accounts. Specifically, the member would be required to collect maintenance margin equal to two percent of the contract
The TMPG recommendations do not include maintenance margin. FINRA understands, however, that the TMPG does not oppose the proposed maintenance margin requirements. Commenters opposed maintenance margin because of its impact on non-exempt accounts.
By the same token, in order to tailor the requirement more specifically to the potential risk, and to address commenters' concerns, FINRA believes that it is appropriate to create the exception for transactions where the original contractual settlement is in the month of the trade date for the transaction or in the month succeeding the trade date for the transaction and the customer regularly settles its Covered Agency Transactions DVP or for cash. FINRA believes that transactions that settle DVP or for cash in this timeframe pose less risk, thereby lessening the need for maintenance margin and reducing potential burdens on members. As discussed earlier, FINRA believes that the exception would not be appropriate for counterparties that, in their transactions with the member, engage in dollar rolls, round robin trades or trades involving other financing techniques for the specified positions given that these transactions generate the types of exposure that the rule is meant to address.
As proposed in the
Commenters voiced various concerns about the proposed de minimis transfer provisions. Some commenters said that members should be permitted to set their own thresholds or to negotiate the de minimis transfer amounts with the counterparties with which they deal.
In response, FINRA has revised the de minimis transfer provisions to provide that any deficiency or mark to market loss, as set forth under the proposed rule change, with a single counterparty
As proposed in the
Some commenters said that the proposed provisions regarding risk limit determinations would be burdensome, that members should be permitted flexibility, that the proposal should allow risk limits to be determined across all product lines (and not be limited to Covered Agency Transactions), and that members should be permitted to define risk limits at the investment adviser or manager level rather than the sub-account level.
In response, FINRA has revised proposed Supplementary Material .05 to provide that, if a member engages in transactions with advisory clients of a registered investment adviser, the member may elect to make the risk limit determinations at the investment adviser level, except with respect to any account or group of commonly controlled accounts whose assets managed by that investment adviser constitute more than 10 percent of the investment adviser's regulatory assets under management as reported on the investment adviser's most recent Form ADV. The member may base the risk limit determination on consideration of all products involved in the member's business with the counterparty, provided the member makes a daily record of the counterparty's risk limit usage.
Separately, not in response to comment, as noted earlier
As proposed in the
Commenters expressed concern that exempt account determination and margining at the sub-account level would be onerous, especially for managers advising large numbers of clients.
Under current (pre-revision) paragraph (e)(2)(H) of Rule 4210, a member must provide written notification to FINRA and is prohibited from entering into any new transactions that could increase credit exposure if net capital deductions, over a five day business period, exceed: (1) For a single account or group of commonly controlled accounts, five percent of the member's tentative net capital; or (2) for all accounts combined, 25 percent of the member's tentative net capital. As proposed in the
Several commenters said that the five percent and 25 percent thresholds are too restrictive, that they would be easily reached in volatile markets, that they would have the effect of reducing market access by smaller firms, and that the limits should be raised.
In response, FINRA notes that the five percent and 25 percent thresholds are not new requirements. The thresholds are currently in use and are designed to address
As proposed in the
In response, as noted earlier
The proposed rule change, with minor revision vis-à-vis the version as set forth in the
Commenters suggested that the proposed five-day timeframe is too short, that the appropriate timeframe is 15 days, as set forth in current Rule 4210(f)(6), that firms may not be able to collect the margin within the specified timeframe, and that firms should be permitted to negotiate the timeframe with their customers.
In response, FINRA believes that the five-day period as proposed is appropriate in view of the potential counterparty risk in the TBA market.
One commenter suggested that the proposed amendments should apply to Covered Agency Transactions cleared through a registered clearing agency.
One commenter sought clarification as to whether introducing firms or carrying/clearing firms would be responsible for calculating, collecting and holding custody of the customer's margin under the proposed amendments.
Three commenters sought clarification as to whether members would be required to margin fails to deliver.
Several commenters suggested that FINRA should clarify that the proposal is not specifying what type of collateral a firm should accept and that there should be flexibility for parties to negotiate collateral via the terms of the Master Securities Forward Transaction Agreement (MSFTA).
One commenter suggested that, in light of the Bankruptcy Court decision concerning TBA products in the Lehman case,
In response, though FINRA is supportive of enhanced customer protection wherever possible, implementation of such requirements at this time could impose substantial additional burdens on members, or otherwise raise issues that are beyond the scope of the proposed rule change. FINRA is considering the issue of tri-party arrangements but does not propose to address it as part of the proposed rule change. Further, FINRA supports the use of two-way margining as a means of managing risk but does not propose to address such a requirement as part of the rule change.
The proposed rule change, with minor revision vis-à-vis the version as set forth in the
One commenter sought clarification as to whether for long standbys only profits, not losses, may be factored into the setoff.
One commenter suggested FINRA should revise the definition of “exempt” account under Rule 4210 to include the non-US equivalents of the types of entities set forth under the definition.
One commenter suggested FINRA should suggest standardized sources for pricing and a calculation methodology for the TBA market.
One commenter sought clarification as to whether FINRA would require a member to have an executed MSFTA in place prior to engaging in any Covered Agency Transactions.
Commenters suggested implementation periods ranging from six to 24 months for the proposed rule change once adopted.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the 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.
On April 17, 2014, the Exchange filed a proposal to adopt rules to create a Lead Market Maker Program (the “Program”) on an immediately effective basis.
The Exchange proposes to modify its fee schedule applicable to use of the Exchange in order to provide pricing for orders that add displayed liquidity in LMM Securities entered by LMMs that meet the Minimum Performance Standards (a “Qualified LMM”). The Exchange is proposing to implement a tiered rebate structure that is based on the consolidated average daily volume (“CADV”) of the LMM Security.
As is the case for all Members, in the event that a Qualified LMM is ever eligible to receive a higher per share rebate or lower per share fee under other pricing, the Qualified LMM will receive such higher rebate or fee rather than the applicable LMM Rebate or LMM Fee. For example, as proposed and further described below, an LMM may be eligible to receive a higher rebate per share under the LMM Credit Tiers in combination with other incentives offered by the Exchange.
Under the proposal, CADV is calculated based on the three calendar months preceding the month for which the fees apply, meaning that when calculating the rebates that apply to a particular LMM Security, the CADV will be based on the three calendar months prior to the current trading month. For example, in calculating the rebates that will apply to an LMM for a particular LMM Security for October, the Exchange will look to the average daily volume reported for the LMM Security by all exchanges and trade reporting facilities to a consolidated transaction reporting plan for July, August, and September. If that LMM Security was an initial listing on BATS (not a transfer listing from another listing market) and was listed beginning on September 15, the calculation of CADV used for October pricing would include all days from July 1 through September 14 with zero volume each trading day. For transfer listings, the determination of the rebates for a month will be based on the CADV for the past three months, regardless of where the ETP was listed during that period.
The Exchange notes that all volume, including volume in LMM Securities, will continue to be included in all volume calculations as it relates to other rebates and fees on the Exchange.
In connection with the changes described above, the Exchange proposes to add definitions of Qualified LMM and CADV to the fee schedule consistent with the definitions provided above. As the proposed rebates and fees
The Exchange proposes to adopt tier-based incremental credits for Members that are LMMs for their orders that provide displayed liquidity in Tape B securities. Specifically, Members that are LMMs for LMM Securities would receive an additional credit (an “LMM Credit”) for orders that provide displayed liquidity in Tape B securities traded on the Exchange, including non-BATS-listed securities, except that such LMM Credits will not be applied to the LMM Rebates proposed above. As proposed, the LMM Credits and volume thresholds associated therewith would be as follows: (i) An LMM Credit of $0.0001 per share where an LMM is a Qualified LMM in at least 50 ETPs; (ii) an LMM Credit of $0.0002 per share where an LMM is a Qualified LMM in at least 75 ETPs; (iii) an LMM Credit of $0.0003 per share where an LMM is a Qualified LMM in at least 150 ETPs; and (iv) an LMM Credit of $0.0004 per share where an LMM is a Qualified LMM in at least 250 ETPs. The number of ETPs in which the Member is a Qualified LMM for the billing month will be based on whether the LMM met the Minimum Performance Standards for an LMM Security during the applicable billing month.
For example, a Member that is a Qualified LMM in 100 ETPs would be eligible to receive an LMM Credit of $0.0002 per share in Tape B securities for which it is not a Qualified LMM, in addition to the rebate it would normally receive in accordance with the Exchange's fee schedule (“Normal Rebate”). For securities in which the Member is a Qualified LMM, the Member would instead receive the LMM Rebates proposed above. Where the LMM Credit plus the Normal Rebate would be greater than the LMM Rebate, the Member will receive this higher rebate instead of the LMM Rebate, which is consistent with the treatment of all other fees and rebates, as provided in the General Note that states “to the extent a Member qualifies for higher rebates and/or lower fees than those provided by a tier for which such Member qualifies, the higher rebates and/or lower fees shall apply.” For instance, a Member could be eligible to receive a Normal Rebate of $0.0032 per share along with an additional $0.0004 per share in LMM Credit for an LMM Security with a CADV greater than 5,000,000. For such security the LMM Rebate would be $0.0035 per share. In such an instance, because the Normal Rebate combined with the LMM Credit would be $0.0036 per share and greater than the LMM Rebate of $0.0035 per share, the Member would receive a $0.0036 per share rebate in the LMM Security.
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.
The Exchange believes that the proposed LMM Rebates are equitable and not unfairly discriminatory because they will incentivize and reward LMMs that make tangible commitments to enhancing market quality for securities listed on the Exchange. The Exchange also believes that the proposed LMM Rebates are reasonable because they are substantially similar to the rebates offered in a comparable lead market maker program currently offered by NYSE Arca, Inc. (“Arca”). The Exchange further believes that the proposal will provide a better trading environment for investors in ETPs and generally encourage greater competition between listing venues.
As described above, the Exchange proposes to provide rebates to Qualified LMMs for adding displayed liquidity ranging from $0.0035 to $0.0045 per share. This range is based on an LMM Security's CADV such that as the CADV increases, the proposed rebate decreases. Typically, the lower a security's CADV, the higher the risks and costs to a market maker associated with making markets in the security, such as holding inventory in the security. As the CADV for a security increases, and thus the liquidity increases, typically these same costs associated with making markets in a security decrease. Similarly, the lower a security's CADV, the wider the bid-ask spread in that security will typically be, which means that anyone that wants to buy (sell) the security will have to pay a higher (receive a lower) price for the security. As a security's CADV increases, the narrower the bid-ask spread typically becomes, which means that a buyer (seller) pays (receives) a lower (higher) price when buying (selling) the security. As such, the Exchange's proposal to pay rebates between $0.0035 and $0.0045 per share to Qualified LMMs as the CADV of the LMM Security increases is designed to provide higher rebates to Qualified LMMs for meeting the Minimum Quoting Standards in securities that are most likely to cost them the most to make a market, which the Exchange believes will have the effect of shrinking the bid-ask spread in such securities and reducing (increasing) the price for anyone that wants to buy (sell) the security. As the CADV of a security increases, the cost of making markets in the security decreases, which is why the Exchange is proposing to offer smaller rebates to Qualified LMMs for LMM Securities with higher CADV, while still having the effect of tightening spreads. The Exchange believes that the tightened spreads and the increased liquidity from the proposal will benefit all investors by deepening the Exchange's liquidity pool, offering additional flexibility for all investors to enjoy cost savings, supporting the quality of price discovery, promoting market transparency and improving investor protection. Similarly, the Exchange believes that providing the proposed LMM Fee and the ability to participate in closing auctions without charge will incentivize LMMs to participate in the program generally and will assist them in actively providing liquidity on the Exchange consistent with the Minimum Performance Standards.
Based on the foregoing, the Exchange believes that these rebates and fees will incent Qualified LMMs to narrow
The Exchange notes that the proposed pricing structure is not dissimilar from volume-based rebates and fees (“Volume Tiers”) that have been widely adopted, including those maintained on the Exchange, and are equitable and not unfairly discriminatory because they are open to all members on an equal basis and provide higher rebates and lower fees that are reasonably related to the value to an exchange's market quality. While Volume Tiers are generally designed to incentivize higher levels of liquidity provision and/or growth patterns on the Exchange across all securities, the proposal is designed to more precisely garner the same benefits specifically in LMM Securities. Stated another way, while Volume Tiers aim to enhance market quality generally, the proposed rebates are designed to enhance market quality on a security by security basis and particularly in securities with a lower CADV. As such, the Exchange believes that the proposed changes will strengthen its market quality for BATS-listed securities by enhancing the quality of quoting in such securities and will further assist the Exchange in competing as a listing venue for issuers seeking to list ETPs. Accordingly, the Exchange believes that the proposal will complement the Exchange's program for listing securities on the Exchange, which will, in turn, provide issuers with another option for raising capital in the public markets, thereby promoting the principles discussed in Section 6(b)(5) of the Act.
The proposed fee change to adopt the LMM Credit Tiers for Tape B is intended to encourage Members to promote price discovery and market quality across all BATS-listed securities for the benefit of all market participants. The Exchange believes that the proposed credits are reasonable and appropriate in that they are based on the amount of business transacted on the Exchange. The Exchange notes that the proposed fee change is similar to market quality incentive programs already in place on other markets, such as the Qualified Market Maker incentive on the NASDAQ Stock Market LLC (“NASDAQ”), which requires a member on that exchange to provide meaningful and consistent support to market quality and price discovery by quoting at the NBBO in a large number of securities. In return, NASDAQ provides such member with an incremental rebate.
The Exchange believes that the proposed incremental credits are equitable and not unfairly discriminatory because they are open to all Members on an equal basis and provide discounts that are reasonably related to the value to the Exchange's market quality associated with higher volumes. The Exchange further believes that the proposed incremental rebate is not unfairly discriminatory because it is consistent with the market quality and competitiveness benefits associated with the proposed fee program and because the magnitude of the additional rebate is not unreasonably high in comparison to the rebate paid with respect to other displayed liquidity-providing orders. The Exchange does not believe that it is unfairly discriminatory to offer increased rebates to LMMs as LMMs are subject to additional requirements and obligations (such as quoting requirements) that other market participants are not. The Exchange believes that it is also not unfairly discriminatory to provide increased rebates to Members based on the number of securities for which they are registered as an LMM because it will encourage broader registration as LMMs in all BATS-listed ETPs which will enhance liquidity and market quality in such BATS-listed ETPs to the benefit of all participants.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. With respect to the proposed new LMM Rebates, LMM Fee, pricing for LMMs participating in Exchange closing auctions, and the proposed LMM Credit Tier, the Exchange does not believe that the changes burden competition, but instead, enhance competition, as these changes are intended to increase the competitiveness of the Exchange's listings program. The Exchange also believes the proposed changes would enhance competition because they are similar to pricing incentives provided by both Arca and NASDAQ, as noted 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 the deem fee structures to be unreasonable or excessive. The proposed changes are generally intended to enhance the fees and rebates in LMM Securities for Qualified LMMs and for those Members that are Qualified LMMs in multiple ETPs, which is intended to enhance market quality in BATS-listed securities. As such, the proposal is a competitive proposal that is intended to add additional liquidity to the Exchange, which will, in turn, benefit the Exchange and all Exchange participants.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the 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.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, October 22, 2015 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the Closed Meeting.
Commissioner Aguilar, as duty officer, voted to consider the items listed for the Closed Meeting in closed session.
The subject matter of the Closed Meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Formal orders of investigation; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rule 3.22, Gratuities, to conform to the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) for purposes of an agreement between
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.
Pursuant to Rule 17d-2 under the Act,
The 17d-2 Agreement included a certification by the Exchange that states that the requirements contained in certain Exchange rules are identical to, or substantially similar to, certain FINRA rules that have been identified as comparable. To conform to comparable FINRA rules for purposes of the 17d-2 Agreement, the Exchange proposes [sic] delete the current text of Rule 3.22, Gratuities, and adopt text that is identical to FINRA Rule 3220 and to rename the rule “Influencing or Rewarding Employees of Others”. The proposed rule text is also identical to New York Stock Exchange, Inc. (“NYSE”) Rule 3220, which has been approved by the Commission.
Currently, Exchange Rule 3.22 is excluded from the 17d-2 Agreement because it is not identical, or substantially similar to, FINRA Rules 3220. Exchange Rule 3.22 prohibits Members from giving any compensation or gratuity in any one year in excess of $50.00 to any employee of the Exchange or in excess of $100.00 to any employee of any other Member or of any non-Member broker, dealer, bank or institution, without the prior consent of the employer and of the Exchange. FINRA Rule 3220 currently prevents gifts in excess of a fixed amount, currently $100.00, where the gifts or gratuity is in relation to the business of the employee
The Exchange believes that these changes will help to avoid confusion among Members of the Exchange that are also members of FINRA by further aligning the Exchange Rule 3.22 with FINRA Rule 3220. The proposed changes to Rule 3.22 are designed to enable the Exchange to incorporate Rule 3.22 into the 17d-2 Agreement, further reducing duplicative regulation of Members that are also members of FINRA. For the avoidance of doubt, Rule 3.22 would equally apply to Exchange-only Members as the Exchange believes it appropriately protects against improprieties that might arise when substantial gifts or monetary payments are given to certain persons. The Exchange will issue a Regulatory Notice to its Members, including Exchange-only Members that may not also be FINRA Members, and those Members registered with FINRA, clarifying that FINRA's interpretive guidance related to FINRA Rule 3220 is considered part of Exchange Rule 3.22, and that all Members are required to regulate their conduct according to Rule 3.22 and the interpretive guidance related to FINRA Rule 3220.
As amended, like FINRA Rule 3220(a), proposed paragraph (a) of Rule 3.22 would prevent gifts in excess of $100.00 per individual per year where the gift or gratuity is in relation to the business of the employee of the recipient. A gift of any kind would be considered a gratuity. The Rule would also contain an express exclusion for payments made pursuant to bona fide, written employment contracts. Specifically, like FINRA Rule 3220(b), proposed paragraph (b) of Rule 3.22 would state that the rule would not apply to contracts of employment with or to compensation for services rendered by persons enumerated in paragraph (a) of the Rule, provided that there is in existence prior to the time of employment or before the services are rendered, a written agreement between the member and the person who is to be employed to perform such services. Proposed paragraph (c) would require such agreement to include the nature of the proposed employment, the amount of the proposed compensation, and the written consent of such person's employer or principal.
The Rule would also require each Member to maintain a separate record of all gifts or gratuities. Like FINRA Rule 3220(c), proposed paragraph (c) of Rule 3.22 would require a separate record of all payments or gratuities in any amount known to the member, the employment agreement referred to in proposed paragraph (b) of Rule 3.22 and any employment compensation paid as a result thereof shall be retained by the member for the period specified by Exchange Act Rule 17a-4.
The Exchange believes that proposed rule change is consistent with Section 6(b)(5) of the Act,
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather to provide greater harmonization among Exchange and FINRA rules of similar purpose, resulting in less burdensome and more efficient regulatory compliance for common members and facilitating FINRA's performance of its regulatory functions under the 17d-2 Agreement.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Accentia Biopharmaceuticals, Inc. (CIK No. 1310094), a dissolved Florida corporation with its principal place of business listed as Tampa, Florida, with stock quoted on OTC Link (previously, “Pink Sheets”) operated by OTC Markets Group, Inc. (“OTC Link”) under the ticker symbol ABPI, because it has not filed any periodic reports since the period ended December 31, 2012. On October 27, 2014, Accentia Biopharmaceuticals received a delinquency letter sent by the Division of Corporation Finance requesting compliance with their periodic filing obligations.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Biostem U.S. Corp. (CIK No. 1455380), a revoked Nevada corporation with its principal place of business listed as Clearwater, Florida, with stock quoted on OTC Link under the ticker symbol HAIR, because it has not filed any periodic reports since the period ended November 30, 2012. On November 7, 2014, the Division of Corporation Finance sent Biostem U.S. a delinquency letter requesting compliance with their periodic filing obligations, but the letter was returned because of Biostem U.S.'s failure to maintain a valid address on file with the Commission, as required by Commission rules (Rule 301 of Regulation S-T, 17 CFR 232.301 and Section 5.4 of EDGAR Filer Manual).
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on October 16, 2015, through 11:59 p.m. EDT on October 29, 2015.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ 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 most significant aspects of such statements.
The Exchange proposes to amend Supplementary Material .08 to Chapter IV, Section 6, regarding Mini Options traded on Nasdaq, 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
NASDAQ 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.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 3a68-2 creates a process for interested persons to request a joint interpretation by the SEC and the Commodity Futures Trading Commission (“CFTC”) (together with
The SEC expects 25 requests pursuant to Rule 3a68-2 per year. The SEC estimates the total paperwork burden associated with preparing and submitting each request would be 20 hours to retrieve, review, and submit the information associated with the submission. This 20 hour burden is divided between the SEC and the CFTC, with 10 hours per response regarding reporting to the SEC and 10 hours of response regarding third party disclosure to the CFTC.
The SEC estimates that the total costs resulting from a submission under Rule 3a68-2 would be approximately $12,000 for outside attorneys to retrieve, review, and submit the information associated with the submission. The SEC estimates this would result in aggregate costs each year of $300,000 (25 requests × 30 hours/request × $400).
Rule 3a68-4(c) establishes a process for persons to request that the Commissions issue a joint order permitting such persons (and any other person or persons that subsequently lists, trades, or clears that class of mixed swap) to comply, as to parallel provisions only, with specified parallel provisions of either the Commodity Exchange Act (“CEA”) or the Securities Exchange Act of 1934 (“Exchange Act”), and related rules and regulations (collectively “specified parallel provisions”), instead of being required to comply with parallel provisions of both the CEA and the Exchange Act.
The SEC expects ten requests pursuant to Rule 3a68-4(c) per year. The SEC estimates that nine of these requests will have also been made in a request for a joint interpretation pursuant to Rule 3a68-2, and one will not have been. The SEC estimates the total burden for the one request for which the joint interpretation pursuant to 3a68-2 was not requested would be 30 hours, and the total burden associated with the other nine requests would be 20 hours per request because some of the information required to be submitted pursuant to Rule 3a68-4(c) would have already been submitted pursuant to Rule 3a68-2. The burden in both cases is evenly divided between the SEC and the CFTC.
The SEC estimates that the total costs resulting from a submission under Rule 3a68-4(c) would be approximately $20,000 for the services of outside attorneys to retrieve, review, and submit the information associated with the submission of the one request for which a request for a joint interpretation pursuant to Rule 3a68-2 was not previously made (1 request × 50 hours/request × $400). For the nine requests for which a request for a joint interpretation pursuant to Rule 3a68-2 was previously made, the SEC estimates the total costs associated with preparing and submitting a party's request pursuant to Rule 3a68-4(c) would be $6,000 less per request because, as discussed above, some of the information required to be submitted pursuant to Rule 3a68-4(c) already would have been submitted pursuant to Rule 3a68-2. The SEC estimates this would result in an aggregate cost each year of $126,000 for the services of outside attorneys (9 requests × 35 hours/request × $400).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following Web site:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to adopt Rule 3.20 to conform to the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) for purposes of an agreement between the Exchange and FINRA pursuant to Rule 17d-2 under the Act.
The text of the proposed rule change is available at the Exchange's Web site
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
Pursuant to Rule 17d-2 under the Act,
The 17d-2 Agreement included a certification by the Exchange that states that the requirements contained in certain Exchange rules are identical to, or substantially similar to, certain FINRA rules that have been identified as comparable. The Exchange does not currently maintain a rule similar to FINRA Rule 3220 governing a Member's giving of gifts. To conform to comparable FINRA rules for purposes of the 17d-2 Agreement, the Exchange proposes [sic] adopt Rule 3.20, Influencing or Rewarding Employees of Others, that is identical to FINRA Rule 3220. The proposed rule text is also identical to New York Stock Exchange, Inc. (“NYSE”) Rule 3220, which has been approved by the Commission.
The Exchange believes that these changes will help to avoid confusion among Members of the Exchange that are also members of FINRA by further aligning the Exchange Rules with FINRA Rule 3220. The proposed adoption of Rule 3.20 is designed to enable the Exchange to incorporate Rule 3.20 into the 17d-2 Agreement, further harmonizing regulation of Members that are also members of FINRA. For the avoidance of doubt, Rule 3.20 would equally apply to Exchange-only Members as the Exchange believes it appropriately protects against improprieties that might arise when substantial gifts or monetary payments are given to certain persons. The Exchange will issue a Regulatory Notice to its Members, including Exchange-only Members that may not also be FINRA Members, and those Members registered with FINRA, clarifying that FINRA's interpretive guidance related to FINRA Rule 3220 is considered part of Exchange Rule 3.20, and that all Members are required to regulate their conduct according to Rule 3.20 and the interpretive guidance related to FINRA Rule 3220.
As amended, like FINRA Rule 3220(a), proposed paragraph (a) of Rule 3.20 would prevent gifts in excess of $100.00 per individual per year where the gift or gratuity is in relation to the business of the employee
The Rule would also require each Member to maintain a separate record of all gifts or gratuities. Like FINRA Rule 3220(c), proposed paragraph (c) of Rule 3.20 would require a separate record of all payments or gratuities in any amount known to the member, the employment agreement referred to in proposed paragraph (b) of Rule 3.20 and any employment compensation paid as a result thereof shall be retained by the member for the period specified by Exchange Act Rule 17a-4.
In early 2014, the Exchange and its affiliate, EDGX Exchange, Inc. (“EDGX”) received approval to effect a merger (the “Merger”) of the Exchange's parent company, Direct Edge Holdings LLC, with BATS Global Markets, Inc., the parent of BZX and the BYX (together with BZX, EDGA and EDGX, the “BGM Affiliated Exchanges”).
The Exchange believes that proposed rule change is consistent with Section 6(b)(5) of the Act,
In addition, the proposed rule change would provide greater harmonization between rules of similar purpose on the BGM Affiliated Exchanges, resulting in greater uniformity and less burdensome and more efficient regulatory compliance and understanding of Exchange Rules. As such, the proposed rule change would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system. Similarly, the Exchange also believes that, by harmonizing the rules across each BGM Affiliated Exchange, the proposal will enhance the Exchange's ability to fairly and efficiently regulate its Members, meaning that the proposed rule change would promote just and equitable principles of trade in accordance with Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather to provide greater harmonization among Exchange and FINRA rules of similar purpose, resulting in less burdensome and more efficient regulatory compliance for common members and facilitating FINRA's performance of its regulatory functions under the 17d-2 Agreement. In addition, allowing the Exchange to implement substantively identical rules that apply to all members of the BGM Affiliated Exchanges across each of the BGM Affiliated Exchanges does not present any competitive issues, but rather is designed to provide greater harmonization among Exchange, BZX, BYX, and EDGA rules of similar purpose.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rule 3.22, Gratuities, to conform to the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) for purposes of an agreement between the Exchange and FINRA pursuant to Rule 17d-2 under the Act.
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.
Pursuant to Rule 17d-2 under the Act,
The 17d-2 Agreement included a certification by the Exchange that states that the requirements contained in certain Exchange rules are identical to, or substantially similar to, certain FINRA rules that have been identified as comparable. To conform to comparable FINRA rules for purposes of the 17d-2 Agreement, the Exchange proposes [sic] delete the current text of Rule 3.22, Gratuities, and adopt text that is identical to FINRA Rule 3220 and to rename the rule “Influencing or Rewarding Employees of Others”. The proposed rule text is also identical to New York Stock Exchange, Inc. (“NYSE”) Rule 3220, which has been approved by the Commission.
Currently, Exchange Rule 3.22 is excluded from the 17d-2 Agreement because it is not identical, or substantially similar to, FINRA Rules 3220. Exchange Rule 3.22 prohibits Members from giving any compensation or gratuity in any one year in excess of $50.00 to any employee of the Exchange or in excess of $100.00 to any employee of any other Member or of any non-Member broker, dealer, bank or institution, without the prior consent of the employer and of the Exchange. FINRA Rule 3220 currently prevents gifts in excess of a fixed amount, currently $100.00, where the gifts or gratuity is in relation to the business of the employee
The Exchange believes that these changes will help to avoid confusion among Members of the Exchange that are also members of FINRA by further aligning the Exchange Rule 3.22 with FINRA Rule 3220. The proposed changes to Rule 3.22 are designed to enable the Exchange to incorporate Rule 3.22 into the 17d-2 Agreement, further reducing duplicative regulation of Members that are also members of FINRA. For the avoidance of doubt, Rule 3.22 would equally apply to Exchange-only Members as the Exchange believes it appropriately protects against improprieties that might arise when substantial gifts or monetary payments are given to certain persons. The Exchange will issue a Regulatory Notice to its Members, including Exchange-only Members that may not also be FINRA Members, and those Members registered with FINRA, clarifying that FINRA's interpretive guidance related to FINRA Rule 3220 is considered part of Exchange Rule 3.22, and that all Members are required to regulate their conduct according to Rule
As amended, like FINRA Rule 3220(a), proposed paragraph (a) of Rule 3.22 would prevent gifts in excess of $100.00 per individual per year where the gift or gratuity is in relation to the business of the employee of the recipient. A gift of any kind would be considered a gratuity. The Rule would also contain an express exclusion for payments made pursuant to bona fide, written employment contracts. Specifically, like FINRA Rule 3220(b), proposed paragraph (b) of Rule 3.22 would state that the rule would not apply to contracts of employment with or to compensation for services rendered by persons enumerated in paragraph (a) of the Rule, provided that there is in existence prior to the time of employment or before the services are rendered, a written agreement between the member and the person who is to be employed to perform such services. Proposed paragraph (c) would require such agreement to include the nature of the proposed employment, the amount of the proposed compensation, and the written consent of such person's employer or principal.
The Rule would also require each Member to maintain a separate record of all gifts or gratuities. Like FINRA Rule 3220(c), proposed paragraph (c) of Rule 3.22 would require a separate record of all payments or gratuities in any amount known to the member, the employment agreement referred to in proposed paragraph (b) of Rule 3.22 and any employment compensation paid as a result thereof shall be retained by the member for the period specified by Exchange Act Rule 17a-4.
The Exchange believes that proposed rule change is consistent with Section 6(b)(5) of the Act,
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather to provide greater harmonization among Exchange and FINRA rules of similar purpose, resulting in less burdensome and more efficient regulatory compliance for common members and facilitating FINRA's performance of its regulatory functions under the 17d-2 Agreement.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for the State of South Carolina (FEMA-4241-DR), dated 10/05/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of SOUTH CAROLINA, dated 10/05/2015 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of California (FEMA-4240-DR), dated 10/08/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 10/08/2015, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 144995 and for economic injury is 145005.
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for the State of South Carolina (FEMA-4241-DR), dated 10/05/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of South Carolina, dated 10/05/2015 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of South Carolina (FEMA-4241-DR), dated 10/05/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of South Carolina, dated 10/05/2015 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
This is notice of the intent to establish the Advisory Committee on Public-Private Partnerships. The Committee will serve the United States government in a solely advisory capacity concerning the development of public-private partnerships that promote shared value with the private sector worldwide. Functions will include, but will not be limited to, providing information and advice on how the Department of State can effectively explore and form public-private partnerships with the private sector on foreign policy issues, and reviewing and recommending public-private partnership opportunities for advancing foreign policy objectives. The Department of State affirms that establishment of the Committee is necessary and in the public interest.
The Committee will consult with other interested parties, agencies, and interagency committees and groups of the United States Government, foreign governments, and with national and international private sector organizations and individuals, as the Department of State and the Committee decides are necessary or desirable.
The Committee will be comprised of up to twenty-five distinguished citizens from the private sector, including leaders of for-profit businesses who are in a senior management role or who lead corporate social responsibility units; academics, scientists and innovators; diaspora, faith-based and community organizations; foundations and philanthropic organizations; and non-governmental organizations, providing the Secretary with a fresh perspective and insight apart from and independent of the State Department organization. It will not perform the function of any existing Department staff or committee.
For further information, please contact the Committee's Designated Federal Officer, Thomas Debass, at
In accordance with part 211 of Title 49 Code of Federal Regulations (CFR), this provides the public notice that by a document dated September 22, 2015, the Peninsula Corridor Joint Powers Board (JPB) has petitioned the Federal Railroad Administration (FRA) for a modification to its existing waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 238. FRA assigned the petition Docket Number FRA-2009-0124.
JBP, located in San Carlos, CA, seeks an amendment to its permanent waiver of compliance from 49 CFR 238.203,
Specifically, JPB requests that Condition 1 (that EMUs that are the subject of this waiver meet or exceed the crashworthiness performance levels identified and presented in the petition) be modified to align with proposed rule text for alternatively compliant Tier I equipment developed through the Railroad Safety Advisory Committee and its Engineering Task Force. Secondly, JPB requests removal of Condition 7 (that JPB submit a comprehensive temporal separation plan to FRA for approval before the EMUs are operated).
JPB states that the proposed rule text does not require temporal separation because trains built to these new rules are considered as safe or safer in collisions than trains built to current Federal standards. In addition, JPB states that it is currently implementing Positive Train Control and new EMUs will be compatible with the system, thereby reducing the risk of an impact between freight and passenger trains.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (
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Communications received by December 4, 2015 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Maritime Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments for this notice must be submitted on or before November 19, 2015.
Send comments regarding these information collections to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 Seventeenth Street NW., Washington, DC 20503, Attention: MARAD Desk Officer. Alternatively, comments may be sent via email to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, at the following address:
Deveeda Midgett, (202) 366-2354, Office of Sealift Support, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590.
Maritime Administration (MARAD).
49 CFR 1:93.
Office of the Comptroller of the Currency, Treasury (OCC).
Notice.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on this continuing information collection, as required by the Paperwork Reduction Act of 1995. Under the Paperwork Reduction Act, Federal agencies are required to publish notice in the
The OCC is soliciting comment on proposed revisions to the collection titled “Annual Company-Run Stress Test Reporting Template and Documentation for Covered Institutions with Total Consolidated Assets of $10 Billion to $50 Billion under the Dodd-Frank Wall Street Reform and Consumer Protection.”
Comments must be received by December 21, 2015.
Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by email, if possible. Comments may be sent to: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557-0311, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219. In addition, comments may be sent by fax to (571) 465-4326 or by electronic mail to
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Shaquita Merritt or Mary H. Gottlieb, Clearance Officers, (202) 649-5490 or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219. In addition, copies of the templates referenced in this notice can be found on the OCC's Web site under Tools and Forms (
The OCC is requesting comment on a revision to the following information collection:
The OCC proposes the following revisions and clarifications for the OCC DFAST 10-50 report, effective for the 2016 stress test cycle: Changing the dates on the reporting templates to match the revised “as of” date from September 30 to December 31, changing the reporting submission due date from March 31 to July 31, and modifying the reporting instructions to clarify a number of items.
The OCC has worked closely with the Board and the Federal Deposit Insurance Corporation to make the agencies' respective rules implementing the annual stress testing requirements under the Dodd-Frank Act consistent and comparable by requiring similar standards for scope of application, scenarios, data collection and reporting forms. The OCC also has worked to minimize any potential duplication of effort related to the annual stress test requirements.
The burden for each $10 to $50 billion covered institution that completes the revised results template was estimated to be 445 hours for a total of 14,685 hours. This burden included 20 hours to input these data and 425 hours for work related to modeling efforts. The estimated revised burden for each $10 to $50 billion covered institution that completes the annual DFAST Scenarios Variables Template was estimated to be 24 additional hours for a total of 792 hours.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and,
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Departmental Offices, U.S. Department of the Treasury.
Notice of open meeting.
This notice announces that the Department of the Treasury's Federal Advisory Committee on Insurance (“Committee”) will convene a meeting on Wednesday, November 4, 2015, in the Cash Room, 1500 Pennsylvania Avenue NW., Washington, DC 20220, from 1:00-5:00 p.m. Eastern Time. The meeting is open to the public, and the site is accessible to individuals with disabilities.
The meeting will be held on Wednesday, November 4, 2015, from 1:00-5:00 p.m. Eastern Time.
The Federal Advisory Committee on Insurance meeting will be held in the Cash Room, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220. The meeting will be open to the public. Because the meeting will be held in a secured facility, members of the public who plan to attend the meeting must either:
1. Register online. Attendees may visit
2. Contact the Federal Insurance Office (FIO), at (202) 622-5892, by 5:00 p.m. Eastern Time on Thursday, October 29, 2015, and provide registration information.
Brett D. Hewitt, Policy Advisor, FIO, Room 1410, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220, at (202) 622-5892 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Relay Service at (800) 877-8339.
Notice of this meeting is provided in accordance with the Federal Advisory Committee Act, 5 U.S.C. App. II, 10(a)(2), through implementing regulations at 41 CFR 102-3.150.
• Send electronic comments to
• Send paper statements in triplicate to the Federal Advisory Committee on Insurance, Room 1410, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220.
U.S. Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve state implementation plan (SIP) revisions submitted by California to address Clean Air Act (CAA or Act) requirements for the 2006 24-hour fine particulate matter (PM
Any comments must arrive by November 19, 2015.
Submit comments, identified by docket number EPA-R09-OAR-2015-0204, by one of the following methods:
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Wienke Tax, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region 9, (415) 947-4192,
Throughout this document, “we,” “us,” and “our” refer to the EPA.
On October 17, 2006, the EPA revised the 24-hour national ambient air quality standards (NAAQS or standard) for PM
Following promulgation of a new or revised NAAQS, the EPA is required by CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. On November 13, 2009, the EPA designated the South Coast as nonattainment for the 2006 PM
The South Coast PM
Ambient PM
The local air district with primary responsibility for developing a plan to attain the 2006 PM
In April 2007, the EPA issued the Clean Air Fine Particle Implementation Rule (“2007 PM
In March of 2012, the EPA issued a guidance document to aid states in preparing SIPs to meet the Act's attainment planning requirements for the 2006 24-hour PM
California had three years from the December 14, 2009 effective date of the South Coast's designation as nonattainment for the 2006 PM
On January 4, 2013, several weeks after the District's adoption of the Plan, the U.S. Court of Appeals for the DC Circuit issued its decision in a challenge to the EPA's 2007 PM
Consistent with the
On February 6, 2015, the District adopted the “Supplement to the 24-Hour PM
The EPA provided its preliminary views on the CAA's requirements for particulate matter plans under part D, title I of the Act in “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 16, 1992) (“General Preamble”) and “State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (59 FR 41998, August 16, 1994) (“Addendum”). The General Preamble at 13538 discusses the relationship of subpart 1 and subpart 4 SIP requirements, and notes that attainment plans for moderate nonattainment areas must meet the general provisions in subpart 1 to the extent that these provisions are not otherwise “subsumed by, or integrally related to, the more specific [subpart 4] requirements.” Some subpart 1 provisions have no subpart 4 equivalent (
Additionally, in a proposed rule published March 23, 2015 (80 FR 15340), the EPA provided further interpretive guidance on the statutory SIP requirements that apply to areas designated nonattainment for the PM
We are proposing action on two California SIP submittals. The first is the “2012 PM
CAA sections 110(a)(1) and (2) and 110(l) require each state to provide reasonable public notice and opportunity for public hearing prior to the adoption and submittal of a SIP or SIP revision. To meet this requirement, every SIP submittal should include evidence that adequate public notice was given and an opportunity for a public hearing was provided consistent with the EPA's implementing regulations in 40 CFR 51.102.
Both the District and CARB satisfied applicable statutory and regulatory requirements for reasonable public notice and hearing prior to adoption and submittal of the 2012 PM
The District adopted the 2015 Supplement after reasonable public notice and hearing.
CAA section 110(k)(1)(B) requires the EPA to determine whether a SIP submittal is complete within 60 days of receipt. This section also provides that any plan that the EPA has not affirmatively determined to be complete or incomplete will become complete by operation of law six months after the date of submittal. The EPA's SIP completeness criteria are found in 40 CFR part 51, Appendix V. A completeness review allows us to determine if the submittal includes all the necessary items and information we need to evaluate and act on it for substantive compliance with applicable requirements.
The February 13, 2013 submittal of the 2012 PM
We summarize our evaluation of the 2012 PM
CAA section 172(c)(3) requires that each SIP include a “comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in [the] area . . . .” By requiring an accounting of actual emissions from all sources of the relevant pollutants in the area, this section provides for the base year inventory to include all emissions that contribute to the formation of a particular NAAQS pollutant. For the 2006 24-hour PM
A state should include in its SIP submittal documentation explaining how the emissions data were calculated. In estimating mobile source emissions, a state should use the latest emissions models and planning assumptions available at the time the SIP is developed. At the time the 2012 PM
In addition to the base year inventory submitted to meet the requirements of CAA section 172(c)(3), the state must also submit future “baseline inventories” for the projected attainment year and each reasonable further progress (RFP) milestone year, and any other year of significance for meeting applicable CAA requirements. By “baseline inventories” (also referred to as “projected baseline inventories”), we mean projected emissions inventories for future years that account for, among other things, the ongoing effects of economic growth and adopted emissions control requirements. The SIP submission should include documentation explaining how the emissions projections were calculated.
The annual average planning inventories for direct PM
Each inventory includes emissions from point, area, on-road, and non-road sources. Stationary sources include point and area sources. Point sources in the South Coast air basin that emit 4 tons per year or more of VOC, NO
Emissions inventories are constantly being revised and improved. Between the finalization of the South Coast 2007 AQMP and the development of the 2012 PM
The on-road mobile inventories use EMFAC2011 for estimating motor vehicle emissions (2012 PM
Off-road emissions such as construction, mining, gardening and agricultural equipment emissions were calculated using CARB's 2011 In-Use Off-Road Fleet Inventory Model. The off-road equipment population was adjusted due to the recession, and equipment hours of use were adjusted based on reported activity. Equipment load factors were updated using a 2009 academic study and information provided by engine manufacturers. External adjustments were made to CARB's off-road emissions estimates for locomotives, large-spark ignition engines, and nonagricultural internal combustion engines. CARB also calculated emissions from ocean-going vessels, commercial harbor craft, locomotives, and cargo handling equipment. Locomotive emissions reflect EPA regulations effective in 2008 and adjustments due to economic activity. The District estimated aircraft emissions. Future emissions forecasts are based largely on growth forecasts (demographic and economic information) from SCAG.
A summary of the Plan's 2008 base year inventory and the 2014 projected inventory is provided in Table 1 below. For a more detailed discussion of the inventories, see the 2012 PM
The emissions inventories in the 2012 PM
The inventories in the South Coast 2012 PM
CAA section 189(a)(1)(B) requires each State in which a Moderate area is located to submit a plan that includes a demonstration either (i) that the plan will provide for attainment by the applicable attainment date, or (ii) that attainment by that date is impracticable. The 2012 PM
Air quality modeling is used to establish attainment emissions targets, the combination of emissions of PM
For demonstrating attainment, the EPA's recommendations for model input preparation, model performance evaluation, use of the model output for the attainment demonstration, and modeling documentation are described in
The EPA has not issued modeling guidance specific to impracticability demonstrations but believes that a state seeking to make such a demonstration generally should provide air quality modeling similar to that required for an attainment demonstration. The main difference is that for an impracticability demonstration, the implementation of the SIP control strategy (including RACM) does not result in attainment of the standard by the Moderate area attainment date.
For an attainment demonstration, a thorough review of all modeling inputs and assumptions (including consistency with EPA guidance) is especially important, since the modeling must ultimately support a conclusion that the plan (including its control strategy) will provide for timely attainment of the applicable NAAQS. In contrast, for an impracticability demonstration, the end point is a reclassification to Serious, which triggers the requirement for a new Serious Area attainment plan with a new air quality modeling analysis, and a new control strategy.
The 2012 PM
In a letter dated July 28, 2015, the SCAQMD requested that EPA reclassify the South Coast Air Basin as Serious nonattainment for the 2006 24-hour PM
Based on the request from the SCAQMD, the modeled attainment demonstration provided in the Plan, the 2015 Supplement, and the monitoring data provided in the July 28, 2015 letter, we are evaluating the State's submittal as a demonstration that attainment by the Moderate area attainment date is impracticable. We provide a more detailed evaluation of the air quality modeling in the Plan in section II.B. of our TSD.
Given the Plan's extensive discussion of modeling procedures, tests, and performance analyses consistent with EPA's guidance in the Modeling Protocol, and the good model performance, EPA finds that the modeling is adequate for purposes of supporting the RACM demonstration, the RFP demonstration, and the demonstration of impracticability in the 2012 PM
The composition of PM
The 2007 PM
In
The provisions of subpart 4 do not define the term “precursor” for purposes of PM
Section 189(e) of the Act requires that the control requirements for major stationary sources of direct PM
We are evaluating the South Coast PM
The 2012 PM
The 2012 PM
The general subpart 1 attainment plan requirement for RACM and RACT is described in CAA section 172(c)(1), which requires that attainment plan submissions “provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment” of the NAAQS. The attainment planning requirements specific to PM
The terms RACM and RACT are not specifically defined in the Act, nor do the provisions of subpart 4 specify how states are to meet the RACM and RACT requirements. In longstanding guidance, however, the EPA has interpreted the RACM requirement to include any potential control measure for a point, area, on-road and non-road emission source that is technologically and economically feasible (General Preamble at 13540). The EPA has historically defined RACT as the lowest emission limitation that a particular stationary source is capable of meeting by the application of control technology (
An evaluation of technological feasibility should include consideration of factors such as a source's process and operating conditions, raw materials, physical plant layout, and non-air quality and energy impacts (
An evaluation of economic feasibility should include consideration of factors such as cost per ton of pollution reduced (cost-effectiveness), capital costs, and annualized cost (57 FR 18070, 18074). Absent other indications, the EPA presumes that it is reasonable for similar sources to bear similar costs of emissions reductions. Economic feasibility of RACM and RACT is thus largely informed by evidence that other sources in a source category have in fact applied the control technology, process change, or measure in question in similar circumstances.
The 2012 PM
The evaluation of potential controls is presented by pollutant and then by rule type/source category. For stationary and area source categories, the comparison to recently-issued EPA CTGs is broken down by the current District rule or rules that apply to that source category.
For the 2012 PM
The District conducted a multi-step process to identify candidate RACM measures for the South Coast 2012 PM
• Promote zero or near-zero emission technologies and provide incentives for mobile source and goods movement equipment upgrades,
• further reduce VOC emissions from coatings, solvents, and various consumer products focusing on reformulations or alternatives to VOC-based solvents,
• conduct a technology review for NO
• address energy-climate change and co-benefits, the need for electricity storage, or new fossil-fueled peaking plants, to compensate for fluctuation in renewable energy supply, and use outreach to promote energy efficiency, influence consumer behavior, expand carpools, increase gas taxes, and promote multiagency collaboration.
The second step in the District's RACM process was to look at the EPA's list of suggested control measures for PM
The third step in the District's RACM process involved analyzing the District's rules for compliance with the RACT standard. The results of this analysis are summarized in Table VI-4, Appendix VI (page VI-10) of the 2012 PM
As part of these evaluations, the District compared its SIP rules with current rules, regulations and control measures implemented in other nonattainment areas. Specifically, the District re-evaluated all of its source category-specific rules and compared the requirements in these rules to more than 100 rules from four other air districts in California (San Joaquin Valley, Sacramento Metropolitan, Ventura, and San Francisco Bay Area), the Dallas-Fort Worth and Houston-Galveston areas in Texas, New York, and New Jersey. A summary of this analysis is presented in the 2012 PM
According to the District, several of the requirements in South Coast Rule 1115, Motor Vehicle Assembly Line Coating Operations, are not as stringent as the recommendations in the 2008 EPA CTG for a few coating processes emitting >15 lbs/day. The two facilities subject to Rule 1115, however, have very small emissions, a total of about 0.02 tpd of VOC.
The RACM analyses and demonstrations conducted by CARB and SCAG for transportation and mobile source control measures are included in Appendix IV-C and its Attachment as well as the Attachment to Appendix VI of the 2012 PM
SCAG focused its analysis on transportation control measures (TCMs) in the 2012-2035 Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS), and the analysis and results are described in Appendix IV-C of the 2012 PM
The inventory for ammonia, provided in Appendix V of the 2012 PM
• Rule 223, Emissions Reduction Permits from Large Confined Animal Feeding Operations (LCAF), is a work practice rule to control VOC and ammonia emissions from LCAFs. It requires operators and/or owners to implement management practices (
The EPA approved Rule 223 into the SIP on July 13, 2015 (see 80 FR 39966).
• Rule 1105.1, Reductions of PM
• Rule 1127, Emissions Reductions from Livestock Waste, requires dairies (and other types of dairy-cattle
• Rule 1133.2, Emission Reductions from Co-Composting Operations, requires all new or existing co-composting operations to compost in an enclosure that meets certain technical requirements (
• Rule 1133.3, Emission Reductions from Greenwaste Composting Operations, requires all new or existing greenwaste (includes foodwaste) composting facilities to cover, water and turn active phase compost piles according to specific requirements (
In addition, for livestock waste, the 2012 PM
We are proposing to reclassify the South Coast from Moderate to Serious nonattainment for the 2006 PM
EPA's 2007 PM
We find that the process followed in the 2012 PM
We have reviewed the District's determination in the 2012 PM
Finally, we have reviewed the analysis of current and potentially available controls for both on-road and off-road mobile sources in Appendices IV-C and VI, as well as the Attachment to Appendix VI. As we have noted in previous actions on South Coast plans,
For the foregoing reasons, we propose to find that the 2012 PM
CAA section 189(e) specifically requires that the control requirements applicable to major stationary sources of direct PM
In a separate rulemaking to approve revisions to SCAQMD's NNSR permit program, the EPA evaluated the District's discussion of control requirements applicable to major stationary sources (Attachment E of the 2015 Supplement) and determined that the District's SIP-approved NNSR program satisfies the requirements of CAA section 189(e) for direct PM
CAA section 110(a)(2)(A) provides that each SIP “shall include enforceable emission limitations and other control measures, means or techniques . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirement of the Act.” Section 172(c)(6) of the Act, which applies to nonattainment area SIPs, is virtually identical to section 110(a)(2)(A).
Commitments approved by the EPA under CAA section 110(k)(3) are enforceable by the EPA and citizens under CAA sections 113 and 304, respectively. In the past, the EPA has approved enforceable commitments and courts have enforced actions against states that failed to comply with them.
Once the EPA determines that circumstances warrant use of an enforceable commitment, the EPA considers three factors in determining whether to approve the use of an enforceable commitment to meet a CAA requirement: (a) Does the commitment address a limited portion of the CAA-required program; (b) is the state
For purposes of evaluating the 2012 PM
As the term is used here, baseline measures are federal, State, and District rules and regulations adopted prior to June of 2012 for District rules, and prior to August of 2011 for CARB rules (
Control strategy measures are the new rules, rule revisions, commitments, and other measures that provide the additional increment of emissions reductions needed beyond the baseline measures to provide for attainment (when applicable), to demonstrate RFP, to meet the RACM/RACT requirement, or to provide for contingency measures.
The District included several new measures in the 2012 PM
The Plan provides for the majority of the emissions reductions necessary for attainment to be achieved from baseline measures. These reductions come from
The State's mobile source measures fall into two categories: Measures for which the State has obtained or has applied to obtain a waiver of federal pre-emption under CAA section 209 (“section 209 waiver measures” or “waiver measures”) and those for which the State is not required to obtain a waiver (“non-waiver measures” or “SIP measures”).
Under the CAA, the EPA is charged with establishing national emission limits for mobile sources. States are
Historically, the EPA has allowed California to take credit for such “waiver” measures even though the waiver measures themselves (
In response to the court's decision, CARB has adopted the necessary waiver measures as revisions to the California SIP and submitted them to EPA for approval.
Non-waiver measures include improvements to California's inspection and maintenance (I/M) program, SmogCheck, and cleaner burning gasoline and diesel regulations as well as the District's stationary source and mobile source rules.
As discussed above, we generally consider three factors in determining whether to approve the use of enforceable commitments to meet a CAA requirement. In this case, however, the 2012 PM
We are proposing to approve the District's commitments to adopt and implement specific control measures identified in Table 4-2 in the South Coast 2012 AQMP (as amended March 4, 2015 by Table F-1 in Attachment F of the 2015 Supplement) and to achieve specified NO
With respect to the commitments to adopt Rules 444 and 445 and to achieve 11.7 tpd of direct PM
CAA section 189(a)(1)(B) requires that each Moderate area attainment plan include a demonstration that the plan provides for attainment by the latest applicable Moderate area deadline or, alternatively, that attainment by the latest applicable attainment date is impracticable. A demonstration that the plan provides for attainment must be based on air quality modeling, and the EPA generally recommends that a demonstration of impracticability also be based on air quality modeling consistent with EPA's modeling guidance (General Preamble at 13538).
CAA section 188(c) states, in relevant part, that the Moderate area attainment date “shall be as expeditiously as practicable but no later than the end of the sixth calendar year after the area's designation as nonattainment. . . .” For the South Coast area, which was initially designated as nonattainment for the 2006 PM
In SIP submissions to demonstrate impracticability, the State should document that its required control strategy in the attainment plan represents the application of RACM/RACT to existing sources. The EPA believes it is appropriate to require adoption of all available control measures that are reasonable (
By letter dated July 28, 2015, the District requested that the EPA reclassify the South Coast Air Basin to
Based in part on the information contained in this letter and in the 2012 PM
The EPA calculated the maximum allowed 2015 concentrations for all monitors in the area, and compared them to the estimated 2015 98th percentile. If the estimated 2015 98th percentile was greater than the maximum allowed 2015 98th percentile concentration, the EPA considered attainment at that monitoring site impracticable. For each monitor, the EPA estimated the 2015 98th percentile from the 2015 data available in AQS as of August 2015, based a number of assumptions.
The EPA's analysis showed that during 2015, two monitoring sites (Rubidoux and Mira Loma-Van Buren) had estimated 98th percentiles greater than the maximum allowed 98th percentile concentration for 2015, which indicates that attainment of the 2006 24-hour PM
In a separate analysis, EPA assumed that Rubidoux and Mira Loma-Van Buren collected a minimum of 351 daily samples (
Our conservative assessment of recent PM
Based on this evaluation, we propose to approve the State's demonstration in the 2012 PM
CAA section 172(c)(2) requires nonattainment area plans to provide for reasonable further progress (RFP). In addition, CAA section 189(c) requires PM
RFP has historically been met by showing annual incremental emission reductions sufficient generally to maintain at least linear progress toward attainment by the applicable deadline (Addendum at 42015). As discussed in the Addendum, requiring linear progress in reductions of direct PM
• The pollutant is emitted by a large number and range of sources,
• the relationship between any individual source or source category and overall air quality is not well known,
• a chemical transformation is involved (
• the emission reductions necessary to attain the PM
The EPA's guidance in the Addendum at 42015 recommends that requiring linear progress is less appropriate in other situations, such as:
• Where there are a limited number of sources of direct PM
• where the relationships between individual sources and air quality are relatively well defined, and/or
• where the emission control systems utilized (
In nonattainment areas characterized by any of these latter conditions, RFP may be better represented as step-wise progress as controls are implemented and achieve significant reductions soon thereafter. For example, if an area's nonattainment problem can be attributed to a few major sources, EPA guidance indicates that “RFP should be met by `adherence to an ambitious compliance schedule' which is likely to periodically yield significant emission reductions of direct PM
Plans for PM
Section 189(c) provides that the quantitative milestones submitted by a state for an area also must be consistent with RFP for the area. Thus, the EPA determines an area's compliance with RFP in conjunction with determining its compliance with the quantitative milestone requirement. Because RFP is an annual emission reduction requirement and the quantitative milestones are to be achieved every 3 years, when a state demonstrates an area's compliance with the quantitative milestone requirement, it will demonstrate that RFP has been achieved during each of the relevant 3 years. Quantitative milestones should consist of elements that allow progress to be quantified or measured. Specifically, states should identify and submit quantitative milestones providing for the amount of emission reductions adequate to achieve the NAAQS by the applicable attainment date (Addendum at 42016). Implementation of control measures comprising the RFP plan may provide a means for satisfying the quantitative milestone requirement (see
South Coast's 2012 PM
Following the D.C. Circuit's January 2013 decision remanding the 2007 PM
As a result of the
The 2012 PM
With respect to quantitative milestones, the EPA is proposing to establish December 31, 2014 as the starting point for the first 3-year period under CAA section 189(e) for the 2006 PM
Under CAA section 172(c)(9), PM
The purpose of contingency measures is to continue progress in reducing emissions while the SIP is being revised to meet the missed RFP milestone or to provide for attainment.
The principal requirements for contingency measures are:
• Contingency measures must be fully adopted rules or control measures that are ready to be implemented quickly upon failure to meet RFP or failure of the area to meet the standard by its attainment date.
• The SIP should contain trigger mechanisms for the contingency measures, specify a schedule for implementation, and indicate that the measures will be implemented without further action by the state or by the EPA. In general, we expect all actions needed to effect full implementation of the measures to occur within 60 days after the EPA notifies the state of a failure.
• The contingency measures should consist of control measures for the area that are not relied on to demonstrate attainment or RFP.
• The measures should provide for emissions reductions equivalent to approximately one year of reductions needed for RFP calculated as the overall level of reductions needed to demonstrate attainment divided by the number of years from the base year to the attainment year. (General Preamble at 13543 and Addendum at 42014).
Contingency measures for failure to attain are described in Chapter 6, pages 6-7 to 6-13 of the 2012 PM
Because we are proposing to approve the State's demonstration that attainment by the applicable Moderate area attainment date of December 31, 2015 is impracticable in the South Coast and to reclassify the area to serious, contingency measures for failure to attain are not required as part of this Moderate area plan. Upon reclassification of the South Coast area as a Serious area, California will be required to adopt attainment contingency measures as part of the Serious area attainment plan for the 2006 PM
We propose to find that the RFP contingency measure requirement for any RFP milestone year prior to 2014 is now moot as applied to the South Coast PM
CAA section 176(c) requires Federal actions in nonattainment and maintenance areas to conform to the SIP's goals of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of the standards. Conformity to the SIP's goals means that such actions will not: (1) Cause or contribute to violations of a NAAQS, (2) worsen the severity of an existing violation, or (3) delay timely attainment of any NAAQS or any interim milestone.
Actions involving Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the EPA's transportation conformity rule, codified at 40 CFR part 93, subpart A. Under this rule, MPOs in nonattainment and maintenance areas coordinate with state and local air quality and transportation agencies, the EPA, FHWA, and FTA to demonstrate that an area's RTP and transportation improvement program (TIP) conform to the applicable SIP. This demonstration is typically done by showing that estimated emissions from existing and planned highway and transit systems are less than or equal to the motor vehicle emissions budgets (budgets) contained in all control strategy SIPs. An attainment, maintenance, or RFP SIP should include budgets for the attainment year, each required RFP year, or the last year of the maintenance plan, as appropriate. Budgets are generally established for specific years and specific pollutants or precursors and must reflect all of the motor vehicle control measures contained in the attainment and RFP demonstrations (40 CFR 93.118(e)(4)(v)).
PM
The 2015 Supplement revised the attainment demonstration in the 2012 PM
The direct PM
We are not acting on the motor vehicle emission budgets for direct PM
Conformity is required under CAA section 176(c) to ensure that federal actions are consistent with (“conform to”) the purpose of the SIP. Conformity to the purpose of the SIP means that federal activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant NAAQS or interim reductions and milestones. Conformity applies to areas that are designated nonattainment and to maintenance areas.
Section 176(c)(4) of the CAA establishes the framework for general conformity. The EPA first promulgated general conformity regulations in November 1993 (40 CFR part 51, subpart W, 40 CFR part 93, subpart B). Subsequently we revised the general conformity regulations on April 5, 2010 (75 FR 17254). Besides ensuring that federal actions not covered by the transportation conformity rule will not interfere with the SIP, the general conformity regulations encourage consultation between the federal agency and the state or local air pollution control agencies before and during the environmental review process, as well as public notification of and access to federal agency conformity determinations, and allows for air quality review of individual federal actions.
The general conformity regulations provides three phases: (A) Applicability analysis, (B) conformity determination, and (C) review process. The applicability analysis phase under 40 CFR 93.153
In an area with a SIP, conformity to the applicable SIP can be demonstrated in one of several ways. For actions where the direct and indirect emissions exceeds the rates in 40 CFR 93.153(b), the federal action can include mitigation efforts to bring emissions to levels below the thresholds or can show that the action will conform by meeting any of the following requirements:
• By showing that the net emission increases caused by an action are included in the SIP,
• by documenting that the State agrees to include the emission increases in the SIP,
• through offsetting the action's emissions in the same or nearby area of equal or greater classification, or
• through an air quality modeling demonstration in some circumstances.
The general conformity regulations at 40 CFR 93.161 allow state and local air quality agencies working with federal agencies with large facilities (
According to 40 CFR 93.161, the state or local agency responsible for implementing and enforcing the SIP can develop and adopt an emissions budget to be used for demonstrating conformity under 40 CFR 93.158(a)(1). The facility-wide budget must (1) be for a set time period; (2) cover the pollutants or precursors of the pollutants for which the area is designated nonattainment or maintenance; (3) the budgets are specific about what can be emitted on an annual or seasonal basis; (4) the emissions from the facility along with all other emissions in the area will not exceed the total SIP emissions budget for the nonattainment or maintenance area; (5) specific measures are included to ensure compliance with the facility-wide budget, such as periodic reporting requirements or compliance demonstrations when the Federal agency is taking an action that would otherwise require a conformity determination; (6) the budget must be submitted to EPA as a SIP revision; and (7) the SIP revision must be approved by EPA. Having or using a facility-wide emissions budget does not preclude a Federal agency from demonstrating conformity in any other manner allowed by the conformity rule.
The 2012 PM
We propose to approve the general conformity budgets in the 2012 PM
Section 188 of the Act outlines the process for classification of PM
We have reviewed recent PM
In accordance with section 188(b)(1) of the Act, the EPA is proposing to reclassify the South Coast area from Moderate to Serious nonattainment for the 2006 24-hour PM
Under section 188(c)(2) of the Act, the attainment date for a Serious area “shall be as expeditiously as practicable but no later than the end of the tenth calendar year beginning after the area's designation as nonattainment. . . .” The South Coast area was designated nonattainment for the 2006 PM
Under section 188(e) of the Act, a state may apply to EPA for a single extension of the Serious area attainment date by up to 5 years, which the EPA may grant if the State satisfies certain conditions. Before the EPA may extend the attainment date for a Serious area under section 188(e), the State must: (1) Apply for an extension of the attainment date beyond the statutory attainment date; (2) demonstrate that attainment by the statutory attainment date is impracticable; (3) have complied with all requirements and commitments pertaining to the area in the implementation plan; (4) demonstrate to the satisfaction of the Administrator that the plan for the area includes the most stringent measures that are included in the implementation plan of any State or are achieved in practice in any State, and can feasibly be implemented in the area; and (5) submit a demonstration of attainment by the most expeditious alternative date practicable.
Upon reclassification as a Serious nonattainment area for the 2006 PM
The Serious area SIP elements that California will be required to submit are as follows:
1. Provisions to assure that the best available control measures (BACM), including best available control technology (BACT) for stationary sources, for the control of direct PM
2. a demonstration (including air quality modeling) that the plan provides for attainment as expeditiously as practicable but no later than December 31, 2019, or where the State is seeking an extension of the attainment date under section 188(e), a demonstration that attainment by December 31, 2019 is impracticable and that the plan provides for attainment by the most expeditious alternative date practicable and no later than December 31, 2024 (CAA sections 188(c)(2) and 189(b)(1)(A));
3. plan provisions that require reasonable further progress (RFP) (CAA 172(c)(2));
4. quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate RFP toward attainment by the applicable date (CAA section 189(c));
5. provisions to assure that control requirements applicable to major stationary sources of PM
6. a comprehensive, accurate, current inventory of actual emissions from all
7. contingency measures to be implemented if the area fails to meet RFP or to attain by the applicable attainment date (CAA section 172(c)(9)); and
8. A revision to the nonattainment new source review (NSR) program to lower the applicable “major stationary source”
Final reclassification of the South Coast area as Serious nonattainment for the 2006 PM
In March of 2015, the EPA issued a proposed rulemaking to provide guidance to states on the attainment planning requirements in subparts 1 and 4 of part D, title I of the Act that apply to areas designated nonattainment for PM
For an area reclassified as a Serious nonattainment area before the applicable attainment date under CAA section 188(b)(1), section 189(b)(2) requires the State to submit the required BACM provisions “no later than 18 months after reclassification of the area as a Serious Area” and to submit the required attainment demonstration “no later than 4 years after reclassification of the area to Serious.” Section 189(b)(2) establishes outer bounds on the SIP submission deadlines and does not preclude the EPA's establishment of earlier deadlines as necessary or appropriate to assure consistency among the required submissions and to implement the statutory requirements.
If a final reclassification of the South Coast PM
The EPA proposes to require the State to submit the attainment demonstration required under section 189(b)(1)(A) and the remaining attainment-related plan elements no later than three years after the effective date of final reclassification or by December 31, 2018, whichever is earlier. The attainment-related plan elements that we propose to require within the same 3-year timeframe as the attainment demonstration are: (1) The RFP demonstration required under section 172(c)(2); (2) the quantitative milestones required under section 189(c); (3) any additional control measures necessary to meet the requirements of section 172(c)(6); and (4) the contingency measures required under section 172(c)(9). Although section 189(b)(2) generally provides for up to 4 years after a discretionary reclassification for the State to submit the required attainment demonstration, it is appropriate in this case for the EPA to establish an earlier SIP submission deadline to assure timely implementation of the statutory requirements.
The EPA designated the South Coast area as nonattainment for the 2006 PM
Our proposal to require the State to submit the attainment demonstration and other attainment-related plan elements no later than three years after reclassification or by December 31, 2018, whichever is earlier, is supported by the overall structure and purpose of the attainment planning requirements in part D, title I of the Act. Section 188(b)(1) provides the EPA with discretionary authority to reclassify an area as Serious nonattainment at any time before the applicable attainment date, based on a determination that the
Upon reclassification as Serious, the South Coast PM
Therefore, it is appropriate for the EPA to require California to submit the required attainment demonstration and other attainment-related plan elements no later than 3 years after final reclassification or by December 31, 2018, whichever is earlier, so that the EPA has adequate time to review and act on the State's submission prior to the latest permissible attainment date for the area under section 188(c)(2), which is December 31, 2019. This timeframe for the required Serious area plan submissions is appropriate to assure consistency among the required submissions and to implement the statutory requirements in a timely manner.
Finally, the EPA proposes to require that the State submit revised nonattainment NSR program requirements no later than 18 months after final reclassification. The Act does not specify a deadline for the State's submission of SIP revisions to meet nonattainment NSR program requirements to lower the “major stationary source” threshold from 100 tons per year (tpy) to 70 tpy (CAA section 189(b)(3)) and to address the control requirements for major stationary sources of PM
Seven Indian tribes are located within the boundaries of the South Coast PM
We have considered the relevance of our proposal to reclassify the South Coast area as Serious nonattainment for the 2006 PM
Directly-emitted PM
Uniformity of classification throughout a nonattainment area is thus a guiding principle and premise when an area is being reclassified. Equally, if the EPA believes it is likely that a given nonattainment area will not attain the PM
In light of the considerations outlined above that support retention of a uniformly-classified PM
The effect of reclassification would be to lower the applicable “major source” threshold for purposes of the nonattainment new source review program and the Title V operating permit program from its current level of 100 tpy to 70 tpy (CAA sections 189(b)(3) and 501(2)(B)), thus subjecting more new or modified stationary sources to these requirements. The reclassification may also lower the
Given the potential implications of the reclassification, the EPA has contacted tribal officials to invite government-to-government consultation on this rulemaking effort.
Under CAA section 110(k)(3), the EPA is proposing to approve the following elements of the 2012 PM
1. The 2008 base year emissions inventories as meeting the requirements of CAA section 172(c)(3);
2. the reasonably available control measures/reasonably available control technology demonstration as meeting the requirements of CAA sections 172(c)(1) and 189(a)(1)(C);
3. the reasonable further progress demonstration as meeting the requirements of CAA section 172(c)(2);
4. the demonstration that attainment by the Moderate area attainment date of December 31, 2015 is impracticable as meeting the requirements of CAA section 189(a)(1)(B)(ii); and
5. SCAQMD's commitments to adopt and implement specific rules and measures in accordance with the schedule provided in Chapter 4 of the 2012 PM
In addition, the EPA is proposing to approve the general conformity budgets for NO
Finally, pursuant to CAA section 188(b)(1), the EPA is proposing to reclassify the South Coast PM
In addition, because the EPA is proposing to similarly reclassify reservation areas of Indian country and any other area of Indian country where EPA or a tribe has demonstrated that the
We will accept comments from the public on these proposals for the next 30 days. The deadline and instructions for submission of comments are provided in the
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA because it does not contain any information collection activities.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This proposed action would approve State law as meeting Federal requirements and would not impose additional requirements beyond those imposed by State law. Additionally, the proposed rule would reclassify the South Coast nonattainment area as Serious nonattainment for the 2006 PM
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, and does not significantly or uniquely affect small governments. This proposed action would approve State law as meeting Federal requirements and would not impose additional requirements beyond those imposed by State law. Additionally, the proposed action would reclassify the South Coast nonattainment area as Serious nonattainment for the 2006 PM
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes.”
Seven Indian tribes are located within the boundaries of the South Coast nonattainment area for the 2006 PM
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The EPA has concluded that this proposed rule might have tribal implications for the purposes of Executive Order 13175, but would not impose substantial direct costs upon the tribes, nor would it preempt Tribal law. We note that only one of the tribes located in the South Coast nonattainment area (the Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation) has requested eligibility to administer programs under the CAA. The proposed rule would affect the EPA's implementation of the new source review program because of the lower “major source” threshold triggered by reclassification (70 tons per year for direct PM
Given the potential implications, the EPA contacted tribal officials during the process of developing this proposed rule to provide an opportunity to have meaningful and timely input into its development. On September 4, 2015, we sent letters to leaders of the seven tribes with areas of Indian country in the South Coast nonattainment area inviting government-to-government consultation on the rulemaking effort. We requested that the tribal leaders, or their designated consultation representatives, provide input or request government-to-government consultation by October 4, 2015. We intend to continue communicating with all seven tribes located within the boundaries of the South Coast nonattainment area for the 2006 PM
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 proposed action is not subject to Executive Order 13045 because it would approve a state action implementing a federal standard, and reclassify the South Coast nonattainment area as Serious
This proposed action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA has determined that this action will not have potential disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This proposed action would only approve a state action implementing a federal standard, and reclassify the South Coast nonattainment area as Serious nonattainment for the 2006 PM
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Oxides of nitrogen, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
| 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 |