| Page Range | 78957-79229 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 79223 - Strengthening the Senior Executive Service | |
| 80 FR 78957 - Bill of Rights Day, 2015 | |
| 80 FR 79039 - Issuance of NPDES General Permits for Wastewater Lagoon Systems Located in Indian Country in Region 8 | |
| 80 FR 79028 - Submission for OMB Review; Comment Request | |
| 80 FR 79066 - Extension of Agency Information Collection Activity Under OMB Review: Airport Security | |
| 80 FR 79056 - Agency Information Collection Activities: Exportation of Used Self-Propelled Vehicles | |
| 80 FR 79067 - Revision of Agency Information Collection Activity Under OMB Review: Secure Flight Program | |
| 80 FR 78979 - Safety Zone; Circle Line Sightseeing Fireworks, Liberty Island, Upper New York Bay, Manhattan, NY | |
| 80 FR 79055 - Cooperative Research and Development Agreement: Diesel Outboard Engine Development | |
| 80 FR 79068 - Extension of Agency Information Collection Activity Under OMB Review: Federal Flight Deck Officer Program | |
| 80 FR 79041 - Environmental Impact Statements; Notice of Availability | |
| 80 FR 79037 - Notice of Intent To Prepare an Environmental Impact Statement and To Conduct Scoping Meetings; and Notice of Floodplain and Wetlands Involvement; Colusa-Sutter 500-Kilovolt Transmission Line Project, Colusa and Sutter Counties, California (DOE/EIS-0514) | |
| 80 FR 79092 - Renewal of Approved Information Collection; OMB Control No. 1004-0029 | |
| 80 FR 79036 - Intent To Compromise Claim Against the State of Washington Department of Services for the Blind | |
| 80 FR 79010 - Safety Zone; JI Mei Design Construction Co., LTD, Hudson River, Manhattan, NY | |
| 80 FR 79045 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 80 FR 79132 - Rutherford Railroad Development Corporation-Abandonment Exemption-in Rutherford County, NC; Southeast Shortlines, Inc. d/b/a Thermal Belt Railway-Discontinuance Exemption-in Rutherford County, NC | |
| 80 FR 78979 - Security Zone; Kailua Bay, Oahu, HI | |
| 80 FR 79076 - Promise Zones Initiative: Third Round Selection Process | |
| 80 FR 79031 - Marine Mammals; File No. 16109 | |
| 80 FR 78977 - Streamlining of Provisions on State Plans for Occupational Safety and Health | |
| 80 FR 79104 - Southern Nuclear Operating Company, Inc.; Establishment of Atomic Safety and Licensing Board | |
| 80 FR 79079 - Notice of Regulatory Waiver Requests Granted for the Third Quarter of Calendar Year 2015 | |
| 80 FR 79127 - Advisory Committee on Historical Diplomatic Documentation-Notice of Closed and Open Meetings for 2016 | |
| 80 FR 79057 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; National Emergency Family Registry and Locator System (NEFRLS) | |
| 80 FR 79100 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection: Office for Victims of Crime Training and Technical Assistance Center (OVC TTAC) Feedback Form Package | |
| 80 FR 78971 - Minimum Value of Eligible Employer-Sponsored Plans and Other Rules Regarding the Health Insurance Premium Tax Credit | |
| 80 FR 79133 - R. J. Corman Railroad Company/Carolina Lines, LLC-Acquisition and Operation Exemption-The Baltimore and Annapolis Railroad Company d/b/a Carolina Southern Railroad Company | |
| 80 FR 79110 - New Postal Product | |
| 80 FR 79134 - CSX Transportation, Inc.-Abandonment Exemption-in Ben Hill County, Ga. | |
| 80 FR 79133 - CSX Transportation, Inc.-Discontinuance of Service Exemption-in Bell and Harlan Counties, Ky. | |
| 80 FR 79043 - Health Insurance MarketplaceSM | |
| 80 FR 79029 - Gulf of Mexico Fishery Management Council; Public Meetings | |
| 80 FR 79030 - Gulf of Mexico Fishery Management Council; Public Meeting | |
| 80 FR 78978 - Drawbridge Operation Regulation; Upper Mississippi River, Rock Island, IL | |
| 80 FR 79031 - Procurement List; Proposed Additions and Deletions | |
| 80 FR 79033 - Information Collection Requirements; Defense Federal Acquisition Regulation Supplement; DFARS Part 242, Contract Administration and Related Clause in DFARS 252 | |
| 80 FR 79034 - Information Collection Requirement; Defense Federal Acquisition Regulation Supplement (DFARS); Contract Financing | |
| 80 FR 79128 - Actions Taken at December 4, 2015, Meeting | |
| 80 FR 79090 - Final Environmental Impact Statement and Draft Record of Decision on the Southern Edwards Plateau Habitat Conservation Plan for Incidental Take of Nine Federally Listed Species in Central Texas | |
| 80 FR 78978 - Drawbridge Operation Regulation; Cheesequake Creek, Morgan, NJ | |
| 80 FR 79028 - North Mt. Baker-Snoqualmie Resource Advisory Committee | |
| 80 FR 79094 - Certain Woven Textile Fabrics and Products Containing Same Institution of Investigation | |
| 80 FR 79127 - Reporting and Recordkeeping Requirements Under OMB Review | |
| 80 FR 79049 - Announcement of Intent To Establish the 2018 Physical Activity Guidelines Advisory Committee and Solicitation of Nominations for Appointment to the Committee Membership | |
| 80 FR 79108 - Information Collection: Domestic Licensing of Source Material | |
| 80 FR 79105 - Information Collection: Nuclear Material Events Database (NMED) for the Collection of Event Report, Response, Analyses, and Follow-Up Data on Events Involving the Use of Atomic Energy Act (AEA) Radioactive Byproduct Material | |
| 80 FR 79102 - Information Collection: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance | |
| 80 FR 79053 - Workshop on Addressing Challenges in the Assessment of Botanical Dietary Supplement Safety; Notice of Public Meeting; Registration Information | |
| 80 FR 79051 - Interagency Coordinating Committee on the Validation of Alternative Methods Communities of Practice Webinar on Fundamentals of Using Quantitative Structure-Activity Relationship Models and Read-across Techniques in Predictive Toxicology; Notice of Public Webinar; Registration Information | |
| 80 FR 79052 - Prospective Grant of Exclusive License: Development of a Small Molecule Farnesoid X Receptor Inhibitor | |
| 80 FR 79134 - Advisory Committee on Former Prisoners of War; Notice of Meeting-Cancellation | |
| 80 FR 79129 - Projects Rescinded for Consumptive Uses of Water | |
| 80 FR 78970 - New Animal Drugs for Use in Animal Feed; Withdrawal of Approval of New Animal Drug Applications; Nitarsone | |
| 80 FR 79032 - Agency Information Collection Activities: Proposed Collection; Comment Request; Fast Track Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery | |
| 80 FR 79047 - Peripheral and Central Nervous System Drugs Advisory Committee; Notice of Meeting | |
| 80 FR 79047 - Determination of Regulatory Review Period for Purposes of Patent Extension; XTANDI | |
| 80 FR 79100 - Proposed Collection, Comment Request | |
| 80 FR 79041 - Drug Testing Compliance Group, LLC; Analysis To Aid Public Comment | |
| 80 FR 79111 - Product Change-Priority Mail Negotiated Service Agreement | |
| 80 FR 79112 - Product Change-Priority Mail Negotiated Service Agreement | |
| 80 FR 79114 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of an Advance Notice, as Modified by Amendment Nos. 1, 2 and 3, Concerning The Options Clearing Corporation's Non-Bank Liquidity Facility | |
| 80 FR 79097 - Certain Ink Cartridges and Components Thereof; Commission's Determination to Review an Initial Determination in Part and, on Review, To Affirm a Finding of a Violation of Section 337; Request for Written Submissions on Remedy, the Public Interest, and Bonding | |
| 80 FR 79096 - Certain Consumer Electronics and Display Devices With Graphics Processing and Graphics Processing Units Therein Commission Decision Not To Review the ALJ's Final Initial Determination Finding No Violation of Section 337; Termination of Investigation | |
| 80 FR 79111 - Product Change-Priority Mail and First-Class Package Service Negotiated Service Agreement | |
| 80 FR 79111 - Product Change-Priority Mail Express Negotiated Service Agreement | |
| 80 FR 79181 - Enterprise Duty To Serve Underserved Markets | |
| 80 FR 79093 - Circular Welded Carbon-Quality Steel Pipe From Oman, Pakistan, the Philippines, the United Arab Emirates, and Vietnam | |
| 80 FR 79097 - Potassium Permanganate From China; Scheduling of an Expedited Five-Year Review | |
| 80 FR 79035 - Intent To Prepare a Draft Feasibility Study and Environmental Impact Statement (EIS) for Navigational Improvements to Manatee Harbor in Manatee County, FL | |
| 80 FR 78984 - Women-Owned Small Business and Economically Disadvantaged Women-Owned Small Business-Certification | |
| 80 FR 79069 - Agency Information Collection Activities: Application for Regional Center Under the Immigrant Investor Program and Supplement, Form I-924 and I-924A; Extension, Without Change, of a Currently Approved Collection | |
| 80 FR 79034 - Notice of Intent To Prepare a Joint Environmental Impact Statement/Environmental Impact Report and Conduct Scoping Meeting for the Corte Madera Creek Flood Control Project General Reevaluation Report and Integrated EIS/EIR, County of Marin, CA | |
| 80 FR 79109 - New Postal Product | |
| 80 FR 79107 - Information Collection: NRC Form 664, “General Licensee Registration” | |
| 80 FR 79103 - Information Collection: Request for Information Regarding Recommendations 2.1, 2.3, and 9.3 of the Near-Term Task Force Review of Insights From the Fukushima Dai-ichi Event | |
| 80 FR 79106 - Information Collection: NRC Form 531 “Request for Taxpayer Identification Number” | |
| 80 FR 79099 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Previously Approved Collection Relief of Disabilities and Application for Restoration of Explosive Privileges | |
| 80 FR 79013 - Cape Lookout National Seashore, Off-Road Vehicle Management | |
| 80 FR 79122 - Self-Regulatory Organizations; National Stock Exchange, Inc.; Order Approving a Proposed Rule Change To Modify and Eliminate Certain Rules and To Enable Trading Activity To Resume on the Exchange | |
| 80 FR 79112 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change To Amend FINRA Rule 0150 To Apply FINRA Rule 2121 and its Supplementary Material .01 and .02 to Transactions in Exempted Securities That Are Government Securities | |
| 80 FR 79117 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change Amending the Seventh Amended and Restated Operating Agreement of the Exchange To Establish a Committee for Review as a Sub-Committee of the ROC and Make Conforming Changes to Rules and the NYSE MKT Company Guide | |
| 80 FR 79124 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Add to the Rules of the Exchange the Ninth Amended and Restated Operating Agreement of New York Stock Exchange LLC | |
| 80 FR 79126 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Arca Options Fee Schedule | |
| 80 FR 78969 - Atlantic Highly Migratory Species; Smoothhound Shark Management Measures | |
| 80 FR 79130 - Request for Comments Concerning an Environmental Review of the Proposed Environmental Goods Agreement | |
| 80 FR 79095 - Certain Iron Mechanical Transfer Drive Components From Canada and China | |
| 80 FR 78981 - Approval and Promulgation of Implementation Plans; Idaho: Interstate Transport of Ozone | |
| 80 FR 79029 - National Saltwater Angler Registry Program | |
| 80 FR 79046 - Submission for OMB Review; Comment Request | |
| 80 FR 79037 - Agency Information Collection Activities; Comment Request; Federal Direct Consolidation Loan Program Application Documents | |
| 80 FR 79052 - National Institute of General Medical Sciences; Notice of Meeting | |
| 80 FR 79052 - National Institute on Aging; Notice of Closed Meeting | |
| 80 FR 79053 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
| 80 FR 79054 - National Institute of Neurological Disorders and Stroke; Notice of Closed Meetings | |
| 80 FR 79050 - National Institute of Nursing Research; Notice of Meeting | |
| 80 FR 79053 - Center for Scientific Review; Notice of Closed Meeting | |
| 80 FR 79102 - Advisory Committee for Biological Sciences; Notice of Meeting | |
| 80 FR 78989 - Motor Vehicle Traffic Supervision | |
| 80 FR 78967 - Debt Collection | |
| 80 FR 78967 - Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities Conducted by the Small Business Administration | |
| 80 FR 78967 - Business Loans | |
| 80 FR 78967 - Standards of Conduct and Employee Restrictions and Responsibilities | |
| 80 FR 78986 - Proposed Amendment of Class E Airspace; Butte, MT | |
| 80 FR 78967 - Establishment of Class E Airspace; Los Angeles, CA | |
| 80 FR 78988 - Proposed Amendment of Class E Airspace, Truckee, CA | |
| 80 FR 79058 - Chemical Facility Anti-Terrorism Standards Personnel Surety Program | |
| 80 FR 79070 - Federal Property Suitable as Facilities To Assist the Homeless | |
| 80 FR 79131 - Notice of Final Federal Agency Actions on Proposed Highways in Colorado | |
| 80 FR 79020 - Rates for Interstate Inmate Calling Services | |
| 80 FR 79135 - Rates for Interstate Inmate Calling Services | |
| 80 FR 78959 - Extensions of Credit by Federal Reserve Banks |
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Board of Governors of the Federal Reserve System.
Final rule.
The Board is adopting amendments to Regulation A (Extensions of Credit by Federal Reserve Banks) to implement the emergency lending authorities provided under the 3rd undesignated paragraph of section 13 of the Federal Reserve Act (the FRA) as amended by sections 1101 and 1103 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act). These provisions of the Dodd-Frank Act require the Board, in consultation with the Secretary of the Treasury, to establish by regulation policies and procedures with respect to emergency lending under section 13(3) of the FRA.
Effective January 1, 2016.
Laurie S. Schaffer, Associate General Counsel (202) 452-2272, Sophia H. Allison, Special Counsel (202) 452-3565, or Jay R. Schwarz, Senior Counsel (202) 452-2970, Legal Division. Board of Governors of the Federal Reserve System, 20th Street and Constitution Ave. NW., Washington, DC 20551. For the hearing impaired only, Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869.
On December 23, 2013, the Board invited public comment on proposed amendments to Regulation A (Extensions of Credit by Federal Reserve Banks) to implement sections 1101 and 1103 of the Dodd-Frank Act (Pub. L. 111-203, 124 Stat. 1376).
Prior to the enactment of the Dodd-Frank Act, section 13(3) provided that the Board may authorize a Federal Reserve Bank to extend credit to any individual, partnership, or corporation subject to four principal conditions. These conditions required that (1) credit be extended only in unusual and exigent circumstances; (2) credit be extended only if the Board authorizes the lending by the affirmative vote of at least five of its members;
Effective on July 21, 2010, the Dodd-Frank Act (Pub. L. 111-203, 124 Stat. 1376) amended section 13(3) to limit this emergency lending authority to broad-based programs and facilities that relieve liquidity pressures in financial markets. To accomplish this, the Dodd-Frank Act amended section 13(3) to remove the general authority to lend to an individual, partnership, or corporation and to replace that general authority with the limited authority to extend emergency credit only to participants in a program or facility with broad-based eligibility designed for the purpose of providing liquidity to the financial system.
The draft rule proposed by the Board for public comment adopted all of the requirements and much of the specific statutory language contained in the Dodd-Frank Act amendments to section 13(3). The Board received fewer than a dozen comments on the proposed rule from financial institutions, policy institutions, individuals, and members of Congress.
While commenters generally expressed support for the proposed rule, most commenters recommended revisions to the proposed rule. Among the suggestions made by the commenters are that the rule:
• Provide a more specific definition of what it means for a program or facility to be “broad-based”;
• adopt a broader definition of insolvency for purposes of the prohibition on lending to insolvent borrowers;
• clarify that solvent firms may not borrow for the purpose of passing the proceeds of emergency loans on to insolvent firms;
• specify that emergency loans would only be made at a penalty rate that exceeds the market rate for such loans;
• include a specific timeline for evaluating whether an emergency lending program or facility should be terminated;
• limit the classes of collateral that can be accepted for emergency loans and require that the collateral be independently appraised; and
• require the Board to seek a joint resolution of Congress prior to granting an emergency loan.
The final rule adopts all of the limitations and revisions required by the Dodd-Frank Act. In addition, in response to the comments, the Board has revised the final rule in a number of significant ways. In particular, as discussed below, the Board modified the final rule to:
• Further limit the definition of a broad-based program by including, in addition to the proposed requirement that the program be designed to provide liquidity to an identifiable market or sector of the financial system and not be for the purpose of assisting a specific firm to avoid bankruptcy or other resolution, a requirement that at least five persons be eligible to participate in the facility and a requirement that the facility not be designed to assist any number of identified firms to avoid bankruptcy or resolution;
• Expand the definition of insolvency to include potential borrowers that are generally not paying their undisputed debts as they become due during the 90 days preceding borrowing from the program, and potential borrowers that are otherwise determined by the Board or the lending Federal Reserve Bank to be insolvent, in addition to the proposal to identify as insolvent any person in a resolution or bankruptcy proceeding;
• Provide that loans may not be made to companies that are borrowing for the purpose of lending to insolvent companies;
• Specify that emergency loans must be extended at a penalty rate;
• Provide that the Board will make public and report to Congress a description of the market or sector of the financial system to which a program or facility with broad-based eligibility is intended to provide liquidity;
• Provide that the Board will review each program or facility at least every six months and that each program or facility will terminate within one year from the date of its first extension of credit or its latest renewal date unless the Board determines, by a vote of at least five members of the Board
• Clarify that, if a company or its representative is found to have made a knowing material misrepresentation regarding its solvency in obtaining emergency credit, the credit plus all applicable interest, fees, and penalties will become immediately due and payable, and the Federal Reserve will refer the matter to the relevant law enforcement authorities for appropriate action.
Section 201.4(d)(1) of the final rule provides that, in unusual and exigent circumstances, the Board may, upon the affirmative vote of not less than five of its members,
In addition, section 201.4(d)(1) provides that any credit extended under section 13(3) of the FRA is subject to such other conditions as the Board may determine. These could include conditions that govern the timing of, collateral supporting, duration of, consideration for, terms of, counterparties to, and other conditions governing the extension of credit.
Section 201.4(d)(2) of the final rule provides that a program or facility under section 13(3) of the FRA may not be established without the prior approval of the Secretary of the Treasury. This condition implements a requirement of the Dodd-Frank Act.
One commenter suggested that, in addition to this approval, the Board should seek a joint resolution of Congress in connection with the establishment of a program or facility. While Congress in the Dodd-Frank Act imposed a similar requirement as a condition of certain emergency actions by the Federal Deposit Insurance Corporation (FDIC), Congress did not adopt this requirement in connection with emergency lending under section 13(3) of the FRA. Instead, Congress established a number of other specific procedural requirements for emergency lending in section 1101 of the Dodd-Frank Act, including the requirement that the Secretary of the Treasury approve the establishment of a program or facility.
The final rule does not adopt a requirement that Congress ratify a lending program or facility. It is the exclusive prerogative of Congress to determine when and on what matters it will act. However, to further Congressional oversight of emergency lending facilities, the Board's final rule establishes a process by which the Board will promptly provide written notice to Congress of any emergency program or facility established under section 13(3) of the FRA.
Section 201.4(d)(3) of the final rule requires that the Board make publicly available, as soon as is reasonably practicable, and no later than 7 days after the Board authorizes the program or facility, a description of the program or facility, the unusual and exigent circumstances that exist, the intended effect of the program or facility, and the terms and conditions for participation in the program or facility. The final rule also provides that, within the same 7-day period, this information will be provided by the Board to the Committee on Banking, Housing and Urban Affairs of the U.S. Senate and the Committee on Financial Services of the U.S. House of Representatives.
Some commenters suggested that the Board provide additional clarity regarding the scope of the market that must be eligible for a facility to have “broad-based eligibility.” While this is addressed below, as part of its response to this comment, the Board amended section 201.4(d)(3) of the final rule to require that the Board publicly disclose the market or sector of the financial system to which the program or facility is intended to provide liquidity. The Board added this disclosure requirement to help provide transparency regarding the broad-based nature of a program or facility at the time it is created.
The Dodd-Frank Act limits emergency lending under section 13(3) of the FRA to lending conducted through a program or facility “with broad-based eligibility.”
Several commenters expressed concern that the reference in the proposed rule to “a single and specific company” could allow the Board to circumvent the limits imposed by the Dodd-Frank Act by grouping two or more bankrupt or failing firms in a program or facility. Some of these commenters suggested that the Board specify the number of eligible participants that would be required for a program or facility to have broad-based eligibility. One legislative proposal would provide that a program or facility is not broad-based unless at least five persons are eligible to participate in the program or facility.
The Board believes that the requirement that a program or facility have “broad-based eligibility” cannot be avoided by grouping two or more failing or bankrupt firms into a single facility. Thus, section 201.4(d)(4) of the final rule has been modified to make clear that an emergency program or facility has broad-based eligibility under the final rule only if three conditions are met. First, the program or facility must be designed for the purpose of providing liquidity to an identifiable market or sector of the financial system.
Second, the program or facility must not be designed for the purpose of assisting one or more specific companies to avoid bankruptcy or other resolution, including by removing assets from the balance sheet of the company or companies. The original proposal would have adopted the language in the Dodd-Frank Act that a program not be designed for the purpose of assisting “a single and specific company” avoid bankruptcy or resolution. The final rule has been changed to provide that a program or facility may not be designed to assist “one or more” specific companies to avoid bankruptcy or resolution. This change is intended to accent that a program or facility would not qualify as a broad-based program or facility if it is designed for the purpose of assisting any number of specific persons or entities to avoid resolution. A program or facility that is designed to remove assets from a single and specific firm's balance sheet to help the firm avoid bankruptcy or resolution such as was done with regard to Bear Stearns would not be permissible.
Third, the final rule provides that a program or facility would not be considered broad-based if fewer than five persons are eligible to participate in the program or facility. In this context, eligibility would be determined by qualification under all the terms and conditions established for participation in the program or facility.
Together, these limitations are designed to ensure that emergency credit programs and facilities are established only to fulfill the central bank's role as lender of last resort to the financial system and not as a lender to troubled firms seeking to avoid resolution or failure. For example, this approach would permit the Federal Reserve to establish programs or facilities like the Term Asset-backed Securities Loan Facility (TALF), which provided several thousand loans that provided liquidity to fund several billion dollars of student loans, car loans, small business loans and other loans in the securitization market; the Commercial Paper Funding Facility (CPFF), which was a program with broad-based eligibility designed to provide liquidity to the commercial paper market; the Asset-backed Commercial Paper Money Market Mutual Fund Liquidity Facility (AMLF) and the Money Market Investor Funding Facility (MMIFF), which were programs with broad-based eligibility designed to provide liquidity to the money market fund sector; and the Primary Dealer Credit Facility (PDCF), which provided liquidity to all primary dealers in support of trading in the U.S. Government securities market.
However, these restrictions would not permit emergency lending to remove assets from a failing firm as was done in the case of the emergency loan to Bear Stearns, or to provide credit to prevent a firm from entering bankruptcy as was done in the case of the emergency credit facility established for AIG. Importantly, the final rule would not authorize a program or facility that sought to evade these limitations by grouping multiple failing or insolvent firms in a single program or facility. Thus, the revisions in the final rule would not permit the Federal Reserve to extend emergency credit in a case like the Bear Stearns or AIG situation simply by establishing a single program or facility for the purpose of providing credit to both Bear Stearns and AIG, or any other number of specific failing or insolvent firms.
The Board is adopting section 201.4(d)(4)(iv) as proposed. That section authorizes the Board to determine the type of mechanism or vehicle used to extend credit, so long as the facility is broad-based. For example, liquidity facilities may extend credit directly to participants in those facilities in some cases, or through a special purpose vehicle in other cases. In any case, the extensions of credit would be subject to all of the requirements related to the provision of liquidity under section 13(3) of the FRA.
As noted above, section 1101 of the Dodd-Frank Act requires the Board to “establish procedures to prohibit borrowing from programs and facilities by borrowers that are insolvent.” Section 1101 also provides that a borrower “shall be considered insolvent” if the borrower “is in bankruptcy, resolution under Title II of [the Dodd-Frank Act], or any other Federal or State insolvency proceeding.”
As an initial matter, the final rule adopts the insolvency constraint as provided in the Dodd-Frank Act. Section 201.4(d)(5) provides that a Federal Reserve Bank may not extend credit through a program or facility established under section 13(3) of the FRA to any person or entity that is in bankruptcy, resolution under Title II of the Dodd-Frank Act, or any other Federal or State insolvency proceeding.
In response to these comments, the Board has amended the final rule to acknowledge that there may be situations that are not identified
Section 201.4(d)(5) of the final rule requires the Board or the lending Federal Reserve Bank, prior to extending credit, to obtain evidence that the person or entity is not insolvent. As provided by the Dodd-Frank Act, the final rule provides that the Board and a Federal Reserve Bank may rely on a written certification from the person, the chief executive officer of the entity or another authorized officer of the entity, at the time the person or entity initially borrows under a program or facility, that the person or entity is not in bankruptcy or in a resolution or other insolvency proceeding. The Board has broadened this part of the final rule to require that the certification also state that the potential borrower has not failed to generally pay its undisputed debts as they become due during the 90 days preceding the date of borrowing.
The statute specifically permits the Board to rely on a certification to establish solvency. Use of a certification is particularly important in the context of programs and facilities with broad-based eligibility because these programs and facilities have the potential to involve numerous borrowers seeking credit in unusual periods of severe illiquidity. A binding certification aids in quickly and effectively making liquidity available on safe and reasonable terms in these difficult economic circumstances.
The final rule contains a number of provisions designed to ensure the continued accuracy of the certification. First, the final rule provides that a person or entity that submits a written certification must immediately notify the lending Federal Reserve Bank if the information in the certification changes. Section 201.4(d)(5)(vi) of the final rule also provides that a participant that is or has become insolvent would be prohibited from receiving any new extension of credit under the program or facility.
Moreover, to improve the reliability of a certification, the final rule provides that, if a participant or a person has provided a certification under section 201.4(d)(5) or (8) that includes a knowing material misrepresentation, all emergency credit extended to the borrower immediately becomes due and payable, and the Federal Reserve will promptly refer the matter to appropriate law enforcement authorities for action under applicable criminal and civil law.
Some commenters expressed concern that third-party conduits would be used to evade any insolvency restrictions in the rule by passing borrowed funds on to an entity that is insolvent. Section 201.4(d)(5)(i) of the final rule provides that a Federal Reserve Bank may not extend credit through a program or facility to any person that is borrowing for the purpose of lending the proceeds of the loan to an insolvent entity.
Another commenter suggested that the final rule clarify whether conservatorships are eligible to participate in broad-based facilities. Section 13(3) as amended by the Dodd-Frank Act prohibits lending to an insolvent borrower or to aid a failing firm. As a general matter, conservators are appointed to conserve a failing company's assets.
Prior to the Dodd-Frank Act, section 13(3) provided that any extension of credit under that section must be “indorsed or otherwise secured to the satisfaction of the Federal Reserve bank.”
Protecting taxpayers from losses as a result of emergency lending has always been an important concern for the Board, and the Board notes that the extensions of credit under the emergency lending programs it authorized during the recent financial crisis were all repaid in full with interest. The proposed rule incorporated the new statutory requirements from the Dodd-Frank Act into Regulation A.
Some commenters argued that the Board should limit the types of collateral the Federal Reserve Banks may accept in support of an emergency credit. Several commenters argued that the Federal Reserve should establish haircuts for collateral accepted by programs and facilities that extend emergency credit.
The final rule continues to emphasize the importance of ensuring that the security for emergency loans is sufficient to protect taxpayers from losses. As proposed and as adopted in the final rule, section 201.4(d)(6) provides that all credit extended under emergency lending programs and facilities must be indorsed or otherwise secured to the satisfaction of the lending Federal Reserve Bank.
The final rule also requires the Federal Reserve Bank, no later than at the time the credit is initially extended, to assign a lendable value to all collateral for the program or facility, consistent with sound risk management practices and to ensure protection for the taxpayer. The Federal Reserve Banks have long assigned a lendable value to collateral at the time credit is extended. Much of the collateral accepted as security for emergency lending has a readily available market value. In connection with assigning a lendable value to other collateral, Reserve Banks readily take into account independent appraisals of the collateral that may be available. In all cases, the Reserve Bank applies appropriate discounts or “haircuts” to the value of the collateral. The haircuts applied to collateral are described in the Federal Reserve Discount Window & Payment System Risk Collateral Margins Table and the Federal Reserve Collateral Guidelines, available on the Federal Reserve Discount Window & Payment System Risk Web site.
The Board believes that these provisions allow the Federal Reserve to impose collateral and other requirements to protect the taxpayer from loss and address the statutory requirement for policies and procedures that are designed to ensure protection for the taxpayer.
Section 13(3) of the FRA has always provided that emergency credit extended under that section shall be at rates established in accordance with the provisions of section 14(d) of the FRA. Commenters suggested that the Board amend the proposed rule to require that extensions of emergency credit be subject to a penalty rate of interest.
The practice of the Federal Reserve in extending emergency credit has been to set the relevant interest rate at a penalty rate designed to encourage borrowers to repay emergency credit as quickly as possible once the unusual and exigent circumstances that justify the program or facility have receded and financial conditions have normalized. This approach has also ensured that the taxpayer is compensated by a higher interest rate than would be charged during normal times for the increased risk taken in extending emergency credit. Indeed, while the Federal Reserve adopted different rates for the various broad-based facilities that it established during the recent financial crisis, in each case, the rate set for the facility exceeded the rate for comparable instruments during normal times. As a result of this practice, emergency broad-based credit facilities established by the Federal Reserve under section 13(3) terminated and wound down as economic conditions normalized.
In keeping with this practice, section 201.4(d)(7) of the final rule provides that a penalty rate will be imposed on emergency extensions of credit. Because the appropriate interest rate depends on a number of factors, such as the duration of the credit, the collateral requirements, and the other terms and conditions for the credit, it is not feasible to establish a single penalty rate for all emergency facilities or to set penalty rates in advance of designing the facility. Consequently, the final rule provides that the interest rate for credit extended under section 13(3) must be at a level that is a premium to the market rate in normal circumstances, affords liquidity in unusual and exigent circumstances, and encourages repayment and discourages use of the program as unusual and exigent circumstances normalize.
Section 201.4(d)(7)(iii) of the final rule sets forth a non-exhaustive list of factors that the Board will take into account when establishing the penalty rate. These factors include the condition of the affected markets and the financial system generally, the historical rate of interest for loans of comparable terms and maturity during normal times, the purpose of the program or facility, the risk of repayment, the collateral supporting the credit, the duration, terms and amount of the credit, and other factors relevant to ensuring the taxpayer is appropriately compensated for the risks associated with the emergency credit. The final rule also explains that the rate on emergency credit under section 13(3) may be set by auction or other method consistent with section 14(d) of the FRA. Such an auction could be structured with a minimum stop out rate to ensure that the resulting rate would satisfy the requirements of a penalty rate.
Section 13(3) has always required that a Federal Reserve Bank, prior to extending credit to any participant in a program or facility under that section, obtain evidence that such participant is unable to secure adequate credit accommodations from other banking institutions. The proposed rule incorporated this requirement and provided that this evidence may include evidence based on economic conditions in the market or markets addressed by the program or facility or evidence obtained from other sources, including facility or market participants and certifications from borrowers. In response to comments, the Board has amended the final rule to add as relevant evidence a certification from the participant that it is unable to secure adequate credit accommodations from other banking institutions.
The Dodd-Frank Act requires that the Board's policies and procedures with respect to section 13(3) extensions of credit be designed to ensure that any such program is terminated in a timely and orderly fashion.
Some commenters suggested that a specific time period for review be adopted. The Board has amended the draft proposal to adopt this suggestion. Section 201.4(d)(9)(i) of the final rule provides that a program or facility will terminate no later than one year after the date of the first extension of credit under the program or facility. The rule allows the Board to renew the program or facility if it finds, by a vote of five members,
The final rule has been amended to provide that the Board will, not less frequently than every six months, review whether each emergency lending program or facility should be terminated. The final rule provides that the Board may terminate an emergency lending program or facility at any time, and will terminate an emergency program or facility upon finding that conditions no longer warrant continuation of the program or facility.
The final rule retains the provisions of the proposed rule providing factors for the Board to consider in conducting this review, with some additional modifications. Specifically, the final rule provides that the Board will consider such factors as the continued existence of unusual and exigent circumstances; the extent of usage of the program or facility; the extent to which the continuing authorization of the program or facility facilitates restoring or sustaining confidence in the identified financial markets; the ongoing need for the liquidity support provided by such program or facility; and other appropriate factors.
One commenter suggested that the final rule include procedures for the orderly unwinding of a program or facility, including how the Board will cover any associated losses. The Board expects, as it has with past facilities, to evaluate the appropriate methods for an orderly unwinding of any emergency credit facility at the time the facility is unwound.
The Dodd-Frank Act contains detailed reporting requirements with respect to section 13(3) extensions of credit.
Section 201.4(d)(11) of the proposed rule provided that Federal Reserve Banks have no obligation to extend credit to any particular person or entity through an emergency lending program or facility. This provision mirrors the provision applicable to lending to depository institutions set forth in section 201.3(b) of Regulation A. No comments were received on this provision, and the Board is adopting it as proposed.
The final rule reflects existing legal requirements that participation in any program or facility under section 13(3) of the Federal Reserve Act will not be limited or conditioned on the basis of any legally prohibited basis, such as the race, religion, color, gender, national origin, age or disability of the borrower. Moreover, in accordance with existing law, the selection of third-party vendors used in the design, marketing or implementation of any program or facility under this subsection will be without regard to the race, religion, color, gender, national origin, age or disability of the vendor or any principal shareholder of the vendor, and, to the extent possible and consistent with law, will involve a process designed to support equal opportunity and diversity.
Section 201.4(d)(13) of the proposed rule retained, but relocated, a provision in current Regulation A that authorizes a Federal Reserve Bank to extend credit under section 13(13) of the FRA if the collateral used to secure the credit consists solely of obligations of, or obligations fully guaranteed as to principal and interest by, the United States or an agency of the United States. Section 201.4(d)(13) of the final rule retains the provision that extensions of credit under this section be at a rate above the highest rate in effect for advances to depository institutions. As set forth in section 13(13) of the FRA, section 201.4(d)(13) of the final rule also provides that credit extended under this provision may not be extended for a term exceeding 90 days.
One commenter suggested that section 201.4(d)(13) should be revised to limit the number of times a loan issued pursuant to its provisions may be rolled over. However, the commenter did not provide a suggested limit on roll overs and acknowledged that there would need to be exceptions made to any limit imposed. Instead of imposing such a limit, the Board will rely on its ability to assess whether unusual and exigent circumstances continue to exist at the time that the loan is renewed in order to appropriately limit roll overs of such loans. Therefore, the Board is retaining section 201.4(d)(13) as written.
Section 201.3(b) of the final rule reflects a technical change to conform the language of that section with the language of section 201.4(d)(11) of the final rule.
The Regulatory Flexibility Act (5 U.S.C. 601
The Board solicited public comment on the rule in a notice of proposed rulemaking. The Board did not receive any comments regarding burden to small banking organizations.
In accordance with section 1101 and 1103 of the Dodd-Frank Act, the Board is amending Regulation A (12 CFR part 201
As discussed in the
In light of the foregoing, the Board does not believe that the final rule would have a significant negative economic impact on a substantial number of small entities.
Certain provisions of the final rule contain “collection of information” requirements within the meaning of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521). In accordance with the requirements of the PRA, the Board may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control number for the Board is 7100-NEW. The Board reviewed the final rule under the authority delegated to the Board by OMB. The final rule contains requirements subject to the PRA. The reporting requirements are found in section 201.4(d)(5)(iv)(A). The Board indicated in the proposed rule that the reporting requirements associated with the Regulation A would be minimal and no PRA burden was taken. The Board received no comments on this aspect of the proposal. However, based on the comments received for clarifying the proposed rule to prohibit solvent firms from passing the proceeds of emergency loans on to insolvent firms and adopting a broader definition of insolvency, the Board will take reporting burden for this section.
The Board has a continuing interest in the public's opinions of collections of information. At any time, comments regarding the burden estimate, or any other aspect of this collection of information, including suggestions for
Section 201.4(d)(5)(iv)(A) provides that a Federal Reserve Bank may rely on a written certification from the person or from the chief executive officer or other authorized officer of the entity, at the time the person or entity initially borrows under the program or facility, that the person or entity is not in bankruptcy, resolution under Title II of Public Law 111-203 (12 U.S.C. 5381
Section 722 of the Gramm-Leach Bliley Act of 1999 requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000.
Banks, Banking, Federal Reserve System, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Board amends 12 CFR part 201 (Regulation A) as follows:
12 U.S.C. 248(i)-(j) and (s), 343
(b)
(d)
(2)
(3)
(4)
(ii) For purposes of this paragraph (d), a program or facility has broad-based eligibility only if the program or facility is designed to provide liquidity to an identifiable market or sector of the financial system;
(iii) A program or facility will not be considered to have broad-based eligibility for purposes of this paragraph (d) if:
(A) The program or facility is designed for the purpose of assisting one or more specific companies avoid bankruptcy, resolution under Title II of Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, 12 U.S.C. 5381
(B) The program or facility is designed for the purpose of aiding one or more failing financial companies; or
(C) Fewer than five persons or entities would be eligible to participate in the program or facility.
(iv) A Federal Reserve Bank may extend credit through a program or facility with broad-based eligibility established under this paragraph (d) through such mechanism or vehicle as the Board determines would facilitate the extension of such credit.
(5)
(ii) Before extending credit through a program or facility established under this paragraph (d) to any person or entity, the Federal Reserve Bank must obtain evidence that the person or entity is not insolvent.
(iii) A person or entity is “insolvent” for purposes of this paragraph (d) if:
(A) The person or entity is in bankruptcy, resolution under Title II of Public Law 111-203 (12 U.S.C. 5381
(B) The person or entity is generally not paying its undisputed debts as they become due during the 90 days preceding the date of borrowing under the program or facility; or
(C) The Board or Federal Reserve Bank otherwise determines that the person or entity is insolvent.
(iv) For purposes of meeting the requirements of this paragraph (d)(5), the Board or Federal Reserve Bank, as relevant, may rely on:
(A) A written certification from the person or from the chief executive officer or other authorized officer of the entity, at the time the person or entity initially borrows under the program or facility, that the person or entity is not in bankruptcy, resolution under Title II of Public Law 111-203 (12 U.S.C. 5381
(B) Recent audited financial statements of the person or entity; or
(C) Other information that the Board or the Federal Reserve Bank may determine to be relevant.
(v) A person or officer (or successor of either) that submits a written certification under this subparagraph must immediately notify the lending Federal Reserve Bank if the information in the certification changes.
(vi) Upon a finding by the Board or a Federal Reserve Bank that a participant, including a participant that has provided a certification under this paragraph (d)(5), is or has become insolvent, that participant is not eligible for any new extension of credit from a program or facility established under this paragraph (d) until such time as the Board or a Federal Reserve Bank determines that such participant is no longer insolvent.
(vii) If a participant or person has provided a certification under this paragraph (d)(5) or paragraph (d)(8)(ii) of this section that includes a knowing material misrepresentation in the certification, all extensions of credit made pursuant to this paragraph (d) that are outstanding to the relevant participant shall become immediately due and payable, and all accrued interest, fees and penalties shall become immediately due and payable. The Board or the lending Federal Reserve Bank will also refer the matter to the relevant law enforcement authorities for investigation and action in accordance with applicable criminal and civil law.
(6)
(ii) In determining whether an extension of credit under any program or facility established under this paragraph (d) is secured to its satisfaction, a Federal Reserve Bank must, prior to or at the time the credit is initially extended, assign a lendable value to all collateral for the program or facility, consistent with sound risk management practices and to ensure protection for the taxpayer.
(7)
(ii) The interest rate established for credit extended through a program or facility established under this section will be set at a penalty level that:
(A) Is a premium to the market rate in normal circumstances;
(B) Affords liquidity in unusual and exigent circumstances; and
(C) Encourages repayment of the credit and discourages use of the program or facility as the unusual and exigent circumstances that motivated the program or facility recede and economic conditions normalize.
(iii) In determining the rate, the Board will consider the condition of affected markets and the financial system generally, the historical rate of interest for loans of comparable terms and maturity during normal times, the purpose of the program or facility, the risk of repayment, the collateral supporting the credit, the duration, terms and amount of the credit, and any other factor that the Board determines to be relevant to ensuring that the taxpayer is appropriately compensated for the risks associated with the credit extended under the program or facility and the purposes of this paragraph (d) are fulfilled.
(iv) In addition to the rate established and charged under this paragraph (d)(7), the Board may require the payment of any fees, penalties, charges or other consideration the Board determines to be appropriate to protect and appropriately compensate the taxpayer for the risks associated with the credit extended under the program or facility.
(8)
(ii) Evidence required under this paragraph (d)(8) may be based on economic conditions in the market or markets intended to be addressed by the program or facility, a written certification from the person or from the chief executive officer or other authorized officer of the entity at the time the person or entity initially borrows under the program or facility, or other evidence from participants or other sources.
(9)
(ii) A program or facility may be renewed upon the vote of not less than
(iii) The Board shall make the disclosures required under paragraph (d)(3) of this section to the public and the relevant congressional committees no later than 7 days after renewing a program or facility under this paragraph (d)(9).
(iv) The Board may at any time terminate a program or facility established under this paragraph (d). To ensure that the program or facility under this paragraph (d) is terminated in a timely and orderly fashion, the Board will periodically review, no less frequently than once every 6 months, the existence of unusual and exigent circumstances, the extent of usage of the program or facility, the extent to which the continuing authorization of the program or facility facilitates restoring or sustaining confidence in the identified financial markets, the ongoing need for the liquidity support provided by such program or facility, and such other factors as the Board may deem to be appropriate. The Board will terminate lending under a program or facility promptly upon finding that conditions no longer warrant the continuation of the program or facility or that continuation of the program or facility is no longer appropriate.
(v) A program or facility that has been terminated will cease extending new credit and will collect existing loans pursuant to the applicable terms and conditions.
(10)
(11)
(12)
(ii) The selection of any third-party vendor used in the design, marketing or implementation of any program or facility under this paragraph (d) shall be without regard to the race, religion, color, gender, national origin, age or disability of the vendor or any principal shareholder of the vendor, and, to the extent possible and consistent with law, shall involve a process designed to support equal opportunity and diversity.
(13)
In Title 13 of the Code of Federal Regulations, revised as of January 1, 2015, on page 34, in § 105.401, in paragraph (b)(3), remove “Director of Human Resources” and add in its place “Chief Human Capital Officer”.
In Title 13 of the Code of Federal Regulations, revised as of January 1, 2015, on page 307, in § 120.802, in the definition of
In Title 13 of the Code of Federal Regulations, revised as of January 1, 2015, on page 665, in § 140.11, in paragraph (i)(3)(ii), remove the term “the SBA” and add “the Agency” in its place.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E surface area airspace designated as an extension at Whiteman Airport, Los Angeles, CA. The FAA found it necessary to establish the airspace area for the safety and management of Instrument Flight Rules (IFR) operations for arriving and departing aircraft at the airport.
Effective 0901 UTC, February 4, 2016. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Steve Haga, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4563.
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 surface area airspace at Whiteman Airport, Los Angeles, CA.
On October 16, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation 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 establishes Class E airspace designated as an extension to surface area airspace at Whiteman Airport, Los Angeles, CA. The airspace extends from the 3-mile radius of Whiteman Airport to 6.6 miles northwest of the airport for the safety and management of IFR operations.
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 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface within 1.1 miles each side of the 304° bearing from the Whiteman Airport, extending from the 3-mile radius of Whiteman Airport to 6.6 miles northwest of the airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; effective date of OMB control numbers.
NMFS announces approval by the Office of Management and Budget (OMB) of collection-of-information requirements contained in regulations pertaining to the U.S. Atlantic smoothhound shark fisheries in a final rule that was published on November 24, 2015. The intent of this final rule is to inform the public of the effectiveness of the collection-of-information requirements associated with the commercial smoothhound shark permit.
This final rule is effective on March 15, 2016.
Written comments regarding burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted by email to
Steve Durkee by phone at 202-670-6637 or email at
Atlantic sharks, including smoothhound sharks, are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the authority to promulgate regulations under the Magnuson-Stevens Act has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA. On October 2, 2006, NMFS published in the
The final rule implementing Amendment 9 to the 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) (Amendment 9) was published on November 24, 2015 (80 FR 73128) and included measures to bring smoothhound sharks under Federal management. Among these measures was a commercial smoothhound shark permit requirement for Federal smoothhound shark fishermen in the Atlantic Ocean and Gulf of Mexico. At the time of publication of the final rule implementing Amendment 9, collection-of-information requirements associated with the smoothhound shark permit were pending approval by OMB.
OMB approved the collection-of-information requirements contained in the final rule on December 10, 2015. Additionally, the application for the smoothhound shark permit is now available.
This rule makes effective a collection-of-information requirement subject to the Paperwork Reduction Act. The collection of this information has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0648-0205. This collection is revised to add a commercial smoothhound shark permit in association with Amendment 9 to the HMS FMP (Amendment 9). Among other things, Amendment 9 implements a commercial smoothhound shark permit requirement for vessels retaining smoothhound sharks caught in Federal waters of the Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea. This permit requirement will aid in identifying the participants in the smoothhound shark fishery to facilitate information gathering for fishery management and quota monitoring, facilitate enforcement of fishing regulations, and help maintain a sustainable fishery. The commercial smoothhound shark permitting requirement will become effective on March 15, 2016. NMFS estimates up to 500 applicants for the new permit with each response taking 30 minutes. Thus, this revision will add 500 respondents, 500 responses, and 250 burden hours to fill out and submit an application for a commercial smoothhound shark permit. Additionally, a $25 application fee will result in a total of $12,500 additional cost to OMB Control Number 0648-0205.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and opportunity for public comment for this action because notice and comment would be unnecessary and contrary to the public interest. This action simply provides notice of OMB's approval of the reporting requirements at issue, which has already occurred, and renders those requirements effective. Thus, this action does not involve any further exercise of agency discretion and no comment received at this time would impact any decision by NMFS or OMB. In addition, the public has had the opportunity to comment on both the substance of the reporting requirements, at the time NMFS adopted them, and on NMFS' request to OMB for revision of the information collection. The reporting requirements at issue were detailed in a proposed rule on which NMFS accepted public comment. The reporting provisions in 50 CFR 635.4 were initially published at 79 FR 56047 on September 18, 2014, with comments accepted until November 14, 2014, and published as a final rule at 80 FR 73128 on November 24, 2015. An additional opportunity for public comment at this point would not be meaningful, and would be duplicative.
Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601,
This final rule has been determined to be not significant for purposes of Executive Order 12866.
Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS amends 15 CFR part 902 as follows:
44 U.S.C. 3501
(b) * * *
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect the withdrawal of approval of three new animal drug applications (NADAs) providing for the use of nitarsone in medicated feed for chickens and turkeys. This action is being taken at the sponsor's request because these products are no longer manufactured or marketed.
This rule is effective December 31, 2015.
Sujaya Dessai, Center for Veterinary Medicine (HFV-212), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5761,
Zoetis Inc., 333 Portage St., Kalamazoo, MI 49007 has requested that FDA withdraw approval of the following NADAs that provide for the use of nitarsone in medicated feed for chickens and turkeys because the products are no longer manufactured or marketed:
Elsewhere in this issue of the
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs, Food.
Animal drugs, Animal feeds.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 556 and 558 are amended as follows:
21 U.S.C. 342, 360b, 371.
21 U.S.C. 354, 360b, 360ccc, 360ccc-1, 371.
Food and Drug Administration, HHS.
Notification of withdrawal.
The Food and Drug Administration (FDA) is withdrawing approval of three new animal drug applications (NADAs) providing for the use of nitarsone in medicated feed for chickens and turkeys. This action is being taken at the sponsor's request because these products are no longer manufactured or marketed.
Withdrawal of approval is effective December 31, 2015.
Sujaya Dessai, Center for Veterinary Medicine (HFV-212), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5761,
Zoetis Inc., 333 Portage St., Kalamazoo, MI 49007 has requested that FDA withdraw approval of the following NADAs that provide for the use of nitarsone in medicated feed for chickens and turkeys because the products are no longer manufactured or marketed:
Therefore, under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, and in accordance with 21 CFR 514.116
Elsewhere in this issue of the
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations on the health insurance premium tax credit enacted by the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, as amended by the Medicare and Medicaid Extenders Act of 2010, the Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011, and the Department of Defense and Full-Year Continuing Appropriations Act, 2011. These final regulations affect individuals who enroll in qualified health plans through Affordable Insurance Exchanges (Exchanges, sometimes called Marketplaces) and claim the health insurance premium tax credit, and Exchanges that make qualified health plans available to individuals and employers.
For general questions on the premium tax credit, Shareen Pflanz, (202) 317-4718; for minimum value, Andrew Braden, (202) 317-7006 (not toll-free numbers).
This document contains final regulations amending the Income Tax Regulations (26 CFR part 1) under section 36B of the Internal Revenue Code (Code) relating to the health insurance premium tax credit. Section 36B was enacted by the Patient Protection and Affordable Care Act, Public Law 111-148 (124 Stat. 119 (2010)), and the Health Care and Education Reconciliation Act of 2010, Public Law 111-152 (124 Stat. 1029 (2010)) (collectively, the Affordable Care Act). Final regulations under section 36B (TD 9590) were published on May 23, 2012 (77 FR 30377) (2012 section 36B final regulations). On May 3, 2013, a notice of proposed rulemaking (REG-125398-12) was published in the
Section 36B(d)(2) provides that a taxpayer's household income includes the modified adjusted gross income of the taxpayer and the members of the taxpayer's tax family who are required to file an income tax return. The 2012 section 36B final regulations provide that, in computing household income, whether a family member must file a tax return is determined without regard to section 1(g)(7). Under section 1(g)(7), a parent may elect to include a child's gross income in the parent's gross income if certain requirements are met.
The proposed regulations removed “without regard to section 1(g)(7)” from the 2012 section 36B final regulations because that language implied that the child's gross income is included in both the parent's adjusted gross income and the child's adjusted gross income in determining household income. Thus, the proposed regulations clarified that when a parent makes an election under section 1(g)(7), household income includes the child's gross income included on the parent's return only. These final regulations adopt that rule without change and clarify that the modified adjusted gross income of a parent who makes the section 1(g)(7) election includes the child's modified adjusted gross income. Thus, the parent's modified adjusted gross income includes not only the child's gross income but also the child's tax-exempt interest and nontaxable Social Security income, which are excluded from gross
Under section 36B(c)(2)(C)(i) and § 1.36B-2(c)(3)(v), an eligible employer-sponsored plan is affordable for an employee and related individuals only if the portion of the annual premium the employee must pay for self-only coverage does not exceed the required contribution percentage of the taxpayer's household income. Under section 36B(c)(2)(C)(ii), an eligible employer-sponsored plan provides minimum value only if the plan's share of the total allowed cost of benefits is at least 60 percent and, under the 2015 proposed minimum value regulations, the plan provides substantial coverage of inpatient hospital services and physician services.
The proposed regulations provide that, for an employee eligible to participate in a wellness program, the affordability and minimum value of eligible employer-sponsored coverage are determined by assuming that each employee fails to satisfy the requirements of a wellness program, except the requirements of a nondiscriminatory wellness program related to tobacco use. Thus, the affordability and minimum value of a plan that charges a higher initial premium or higher cost-sharing for tobacco users are determined based on the premium or cost-sharing that is charged to non-tobacco users or to tobacco users who complete the related wellness program, such as attending smoking cessation classes.
Identical rules, addressing only an employee's required contribution for purposes of determining affordability, were proposed in regulations under section 5000A (REG-141036-13, 79 FR 4302, January 27, 2014) (section 5000A proposed regulations). The preamble to regulations finalizing the section 5000A proposed regulations (TD 9705, 79 FR 70464, November 26, 2014) (section 5000A final regulations) discusses the comments received on the proposed regulations under section 36B, except comments discussed in the next paragraph, and additional comments received on the section 5000A proposed regulations (79 FR 70466). Comments discussed in the preamble to the section 5000A proposed regulations are not discussed again in this preamble.
Because the standard for affordability for individuals eligible for coverage by reason of a relationship to an employee (related individuals) under section 5000A is different than the standard under section 36B, the section 5000A final regulations do not address certain comments on the treatment of wellness program incentives in determining affordability for related individuals. These commenters requested that wellness incentives related to tobacco use be treated as unearned for related individuals. The commenters expressed concern that treating wellness incentives related to tobacco use as earned in all cases unfairly penalizes related individuals for an employee's tobacco use. However, section 36B(c)(2)(C) provides that the affordability of coverage for related individuals under section 36B is based on the cost of self-only coverage. Accordingly, the final regulations do not adopt this comment.
Thus, after considering all the comments, these final regulations, like the section 5000A final regulations, retain the rules in the proposed regulations that wellness incentives unrelated to tobacco use are treated as unearned and wellness incentives related to tobacco use are treated as earned in determining affordability. For purposes of both the section 5000A final regulations and these final regulations, nondiscriminatory wellness programs include both participatory and health-contingent wellness programs. Both the section 5000A final regulations and these final regulations also clarify that (1) a wellness incentive that includes any component unrelated to tobacco use is treated as unearned (however, as stated in the preamble to the section 5000A final regulations, if there is an incentive for completing a program unrelated to tobacco use and a separate incentive for completing a program related to tobacco use, then the incentive related to tobacco use may be treated as earned), and (2) the term
The proposed regulations provide that amounts newly made available in the current plan year under an HRA that is integrated with eligible employer-sponsored coverage and that an employee may use to pay premiums are counted toward the employee's required contribution for purposes of determining affordability. Amounts newly made available in the current plan year under an HRA that is integrated with eligible employer-sponsored coverage and that an employee may use only to reduce cost-sharing for medical expenses covered by the primary plan count toward a plan's minimum value percentage.
The comments on the proposed regulations are discussed in the section 5000A final regulations. After considering all the comments, both the section 5000A final regulations and these final regulations (1) cross-reference Notice 2013-54 (2013-40 IRB 287, see § 601.601(d)) for guidance on the requirements for an HRA to be integrated with eligible employer-sponsored coverage, (2) clarify that amounts newly made available under an HRA reduce an employee's required contribution (or, for purposes of section 36B, count towards providing minimum value) if the HRA would have been integrated with eligible employer-sponsored coverage had the employee enrolled in the primary plan, (3) clarify that an HRA is taken into account in determining affordability (and minimum value for purposes of section 36B) only if the HRA and the primary eligible employer-sponsored coverage are offered by the same employer, (4) clarify that HRA contributions are taken into account for affordability and not minimum value if an employee may use the HRA contributions to pay premiums for the primary plan only or to pay cost-sharing or benefits not covered by the primary plan in addition to premiums, and (5) clarify that employer contributions to an HRA reduce an employee's required contribution (or count towards providing minimum value for section 36B purposes) only to the extent the amount of the annual contribution is required under the terms of the plan or is otherwise determinable within a reasonable time before the employee must decide whether to enroll. For more information on how contributions to an HRA are taken into account for purposes of section 4980H(b) and related reporting under section 6056, see Notice 2015-87, 2015-52 IRB, released simultaneously with these final regulations.
Additional regulations will finalize other rules on minimum value in the proposed regulations.
The preamble to the section 5000A proposed regulations requested comments on how employer contributions under a section 125 cafeteria plan (flex contributions) that employees may not opt to receive as a taxable benefit should be taken into account in determining an employee's required contribution for purposes of the affordability of coverage. The section 5000A final regulations discussed the comments received and adopted the rule that an employee's required contribution is reduced by employer contributions under a section 125 cafeteria plan that (1) may not be taken as a taxable benefit, (2) may be used to pay for minimum essential coverage, and (3) may be used only to pay for medical care within the meaning of section 213. These final regulations adopt this rule for purposes of determining affordability under section 36B.
For more information on the effect of flex contributions and other similar arrangements on affordability for purposes of sections 36B, 5000A, and related consequences under section 4980H, see Notice 2015-87, released simultaneously with these final regulations.
Section 1.36B-2(c)(3)(iv) provides that an individual who may enroll in continuation coverage required under Federal law or a State law that provides comparable continuation coverage is eligible for minimum essential coverage only for months that the individual is enrolled in the coverage. The proposed regulations provide that this rule applies only to former employees and extend the rule to retiree coverage. Accordingly, an individual who may enroll in retiree coverage is eligible for minimum essential coverage only for the months the individual is enrolled in the coverage.
Commenters opined that the continuation and retiree coverage rules should apply to individuals eligible for the coverage by reason of a relationship to an employee, for example, the spouse of a retired employee. In response to these comments, the final regulations clarify that an individual who may enroll in continuation coverage or retiree coverage because of a relationship to a former employee is eligible for the coverage only for the months the individual is enrolled in the coverage.
Commenters suggested that the rule for continuation coverage should apply to current employees eligible for continuation coverage as a result of reduced hours. The final regulations do not adopt this suggestion. Eligible employer-sponsored coverage for current employees does not present the same administrability issues as for former employees. Current employees with continuation coverage should be subject to the same general rules on eligibility for employer-sponsored coverage as other current employees. Although employees may be subject to a higher required contribution for continuation coverage than is required for other eligible employer-sponsored coverage, for purposes of the premium tax credit, employees are eligible for eligible employer-sponsored coverage only if the coverage is both affordable and provides minimum value. Thus, current employees offered continuation coverage, like other current employees, may be eligible for the premium tax credit if the coverage offered either is not affordable or does not provide minimum value.
Regulations at 45 CFR 155.420(d)(2)(i) require issuers to provide coverage to a newborn child enrolled in a qualified health plan effective on the date of birth. Under section 36B(c)(2)(A)(i) and § 1.36B-3(c)(1)(i), a month is a coverage month for an individual only if the individual is enrolled in a qualified health plan through an Exchange as of the first day of the month. Under § 1.36B-3(d), the monthly premium assistance amount is determined, in part, by the adjusted monthly premium for the applicable second lowest cost silver (benchmark) plan (benchmark plan premium). The proposed regulations provide that a child enrolled in a qualified health plan in the month of the child's birth, adoption, or placement with the taxpayer for adoption or in foster care (birth month) is treated as enrolled as of the first day of the month.
Some commenters interpreted the coverage month rule for newborns as requiring that issuers must provide coverage for a newborn as of the first day of the month.
Other commenters noted that applying a new adjusted monthly premium as of the first of the month, thus increasing the premium assistance amount for the month, is inconsistent with HHS regulations that provide that the amount of advance credit payments (which approximates the premium assistance amount) does not change until the first day of the month following the birth month.
No changes are made to the final regulations to reflect these comments. The rules treat certain individuals as enrolled as of the first day of the month for purposes of the premium tax credit to conform with the general rules for coverage months but do not require issuers to enroll the individuals as of the first day of the month. Furthermore, HHS regulations published on July 15, 2013 (78 FR 42321) removed the rule providing that advance credit payments do not change until the month following a birth or other event for which a midmonth enrollment is allowed.
Under 45 CFR 155.420(b)(2)(i), Exchanges must ensure that a taxpayer eligible to enroll an individual in coverage may choose for the individual's coverage to be effective as of the individual's date of birth, adoption, or placement for adoption or in foster care or as of the first day of the following month. Similarly, for individual's placed with a taxpayer by court order, 45 CFR 155.420(b)(2)(v) provides that Exchanges must allow the individual's coverage to be effective as of the date the court order is effective. Accordingly, the final regulations provide that an individual is treated as enrolled as of the first day of the month of birth, adoption, or placement in adoption or foster care if the individual's enrollment is effective as of the date of birth, adoption, or placement for adoption or in foster care, or on the effective date of a court order. The final regulations use the term
The proposed regulations provide that the adjusted monthly premium is determined as if all members of the coverage family for that month were enrolled in a qualified health plan for the entire month. The intent of this rule was to specify that the adjusted monthly premium is determined as of the first day of a coverage month and is not prorated for midmonth changes in enrollment or eligibility for other minimum essential coverage. Accordingly, an individual who enrolls midmonth but who is treated as enrolled as of the first day of the month is a member of the coverage family (if all other requirements are met) in determining the adjusted monthly premium for that month. For other coverage family changes, the adjusted monthly premium does not change until the following month. The final regulations clarify these rules by providing that the term
The proposed regulations provide that the premium assistance amount for a coverage month is prorated by the number of days of coverage when a qualified health plan is terminated before the last day of a month and the issuer reduces or refunds a portion of the monthly premium.
The proposed rule for computing a prorated premium assistance amount has proven to be complex and may be difficult to administer. Accordingly, the final regulations provide that the premium assistance amount for a termination month is the lesser of (1) the enrollment premiums charged (reduced by any amounts that were refunded) and (2) the difference between the benchmark plan premium and contribution amount for the full month. The final regulations clarify that this computation also applies to a month an individual is enrolled in coverage effective on the date of the individual's birth, adoption, or placement for adoption or in foster care, or on the effective date of a court order. The Treasury Department and the IRS anticipate publishing rules requiring Exchanges to report under section 36B(f)(3) for partial months of coverage the amount of enrollment premiums charged and advance credit payments made for the days of coverage and the benchmark plan premium for a full month of coverage.
These final regulations apply to taxable years ending after December 31, 2013.
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. Section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because the regulations do not impose a collection of information requirement on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking that preceded these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. No comments were received.
The principal authors of these final regulations are Andrew Braden, Arvind Ravichandran, and Stephen J. Toomey of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
The revisions and additions read as follows:
This section lists the captions contained in §§ 1.36B-1 through 1.36B-6.
(c) * * *
(3) * * *
(iv) Post-employment coverage.
(v) * * *
(A) * * *
(
(
(
(c) * * *
(2) Certain individuals enrolled during a month.
(3) Premiums paid for a taxpayer.
(4) Examples.
(d) * * *
(1) In general.
(2) Partial month of coverage.
(i) In general.
(ii) Examples.
(a) In general.
(b) MV standard population.
(c) MV percentage.
(1) In general.
(2) Wellness program incentives.
(i) In general.
(ii) Example.
(3) Employer contributions to health savings accounts.
(4) Employer contributions to health reimbursement arrangements.
(5) Expected spending adjustments for health savings accounts and health reimbursement arrangements.
(d) Methods for determining MV.
(e) Scope of essential health benefits and adjustment for benefits not included in MV Calculator.
(f) Actuarial certification.
(1) In general.
(2) Membership in American Academy of Actuaries.
(3) Actuarial analysis.
(4) Use of MV Calculator.
(g) Effective/applicability date.
(1) In general.
(2) Exception.
(e) * * *
(1) * * *
(i) A taxpayer's modified adjusted gross income (including the modified adjusted gross income of a child for whom an election under section 1(g)(7) is made for the taxable year);
(ii) * * *
(B) Are required to file a return of tax imposed by section 1 for the taxable year.
(n)
The revisions and additions read as follows:
(c) * * *
(3) * * *
(iv)
(v) * * *
(A) * * *
(
(
(
(
(
(
(D) * * *
(ii) Under paragraph (c)(3)(v)(A)(
(vi)
The revisions and additions read as follows:
(b) * * *
(2) The term
(c) * * *
(2)
(d)
(i) The premiums for the month for one or more qualified health plans in which a taxpayer or a member of the taxpayer's family enrolls (enrollment premiums); or
(ii) The excess of the adjusted monthly premium for the applicable benchmark plan (benchmark plan premium) over 1/12 of the product of a taxpayer's household income and the applicable percentage for the taxable year (the taxpayer's contribution amount).
(2)
(A) The enrollment premiums for the month (not including any amounts that were refunded); or
(B) The excess of the benchmark plan premium for a full month of coverage over the full contribution amount for the month.
(ii)
(i) Taxpayer R is single and has no dependents. R enrolls in a qualified health plan with a monthly premium of $450. The difference between R's benchmark plan premium and contribution amount for the month is $420. R's premium assistance amount for a coverage month with a full month of coverage is $420 (the lesser of $450 and $420).
(ii) The issuer of R's qualified health plan is notified that R died on September 20. The
(iii) Under this paragraph (d)(2), R's premium assistance amount for September is the lesser of the enrollment premiums for the month ($300 ($450—$150)) or the difference between the benchmark plan premium for a full month of coverage and the full contribution amount for the month ($420). R's premium assistance amount for September is $300, the lesser of $420 and $300.
The facts are the same as in
The facts are the same as in
(e) * * * The adjusted monthly premium for a coverage month is determined as of the first day of the month.
(f) * * *
(4)
(g) * * *
(2)
(j)
(3)
(i) Taxpayer B enrolls in a qualified health plan that provides benefits in addition to essential health benefits (additional benefits). The monthly premiums for the plan in which B enrolls are $370, of which $35 is allocable to additional benefits. B's benchmark plan premium (determined after allocating premiums to additional benefits for all silver level plans) is $440, of which $40 is allocable to additional benefits. B's monthly contribution amount, which is the product of B's household income and the applicable percentage, is $60.
(ii) Under this paragraph (j), B's enrollment premiums and the benchmark plan premium are reduced by the portion of the premium that is allocable to the additional benefits provided under that plan. Therefore, B's monthly enrollment premiums are reduced to $335 ($370 − $35) and B's benchmark plan premium is reduced to $400 ($440 − $40). B's premium assistance amount for a coverage month is $335, the lesser of $335 (B's enrollment premiums, reduced by the portion of the premium allocable to additional benefits) and $340 (B's benchmark plan premium, reduced by the portion of the premium allocable to additional benefits ($400), minus B's $60 contribution amount).
The facts are the same as in
(a)
(1) The plan's share of the total allowed costs of benefits provided to an employee (the MV percentage) is at least 60 percent; and
(2) [Reserved]
(b)
(c)
(2)
(ii)
(i) Employer X offers an eligible employer-sponsored plan that reduces the deductible by $300 for employees who do not use tobacco products or who complete a smoking cessation course. The deductible is reduced by $200 if an employee completes cholesterol screening within the first six months of the plan year. Employee B does not use tobacco and his deductible is $3,700. Employee C uses tobacco and her deductible is $4,000.
(ii) Under paragraph (c)(2)(i) of this section, only the incentives related to tobacco use are considered in determining the plan's MV percentage. C is treated as having earned the $300 incentive for attending a smoking cessation course regardless of whether C actually attends the course. Thus, the deductible for determining for the MV percentage for both Employees B and C is $3,700. The $200 incentive for completing cholesterol screening is disregarded.
(3)
(4)
(5)
(d)
(e)
(f)
(1)
(2)
(3)
(4)
(g)
(2)
(a)
Occupational Safety and Health Administration (OSHA), Department of Labor.
Final rule; confirmation of effective date; approval of collections of information under the Paperwork Reduction Act of 1995.
On August 18, 2015 OSHA published in the
The effective date for the direct final rule that published on August 18, 2015 (80 FR49897) is confirmed as October 19, 2015.
Electronic copies of this
Confirmation of the effective date: On August 18, 2015, OSHA published a direct final rule in the
In the direct final rule, OSHA stated that it would publish a
Intergovernmental relations, Law enforcement, Occupational safety and health.
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this final rule. OSHA is issuing this direct final rule under the authority specified by Sections 8(c)(1), 8(c)(2), and 8(g)(2) and 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 657 (c)(1), (c)(2), and (g)(2) and 667) and Secretary of Labor's Order No. 1-2012 (76 FR 3912).
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Rock Island Railroad and Highway Drawbridge across the Upper Mississippi River, mile 482.9, at Rock Island, Illinois. The deviation is necessary to allow the bridge owner time to perform preventive maintenance and critical repairs that are essential to the continued safe operation of the drawbridge, and is scheduled in the winter when there is less impact on navigation. This deviation allows the bridge to be maintained in the closed-to-navigation position for 21 days.
This deviation is effective from 8 a.m., February 8, 2016 until 5 p.m., February 28, 2016.
The docket for this deviation, [USCG-2015-1087] is available at
If you have questions on this temporary deviation, call or email Eric A. Washburn, Bridge Administrator, Western Rivers, Coast Guard; telephone 314-269-2378, email
The U.S. Army Rock Island Arsenal requested a temporary deviation for the Rock Island Railroad and Highway Drawbridge, across the Upper Mississippi River, mile 482.9, at Rock Island, Illinois to remain in the closed-to-navigation position for 21 days from 8 a.m., February 8, 2016 to 5 p.m., February 28, 2016, while preventive maintenance and critical repairs that are essential to the continued safe operation of the drawbridge are performed.
The Rock Island Railroad and Highway Drawbridge currently operates in accordance with 33 CFR 117.5, which states the general requirement that the drawbridge shall open on signal.
There are no alternate routes for vessels transiting this section of the Upper Mississippi River. The bridge cannot open in case of emergency.
Winter conditions on the Upper Mississippi River coupled with the closure of Army Corps of Engineer's Lock No. 13 (Mile 522.5 UMR) and Lock No. 21 (Mile 324.9 UMR) from 7 a.m. January 4, 2016 until 12 p.m., March 4, 2016 will preclude any significant navigation demands for the drawspan opening. In addition, Army Corps Lock No. 14 (Mile 493.3 UMR) and Lock No. 17 (Mile 437.1 UMR) will be closed from 7 a.m. December 14, 2015 until 12 p.m. March 2, 2016.
The Rock Island Railroad and Highway Drawbridge provides a vertical clearance of 23.8 feet above normal pool in the closed-to-navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft and will not be significantly impacted. This temporary deviation has been coordinated with waterway users. No objections were received.
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.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the New Jersey Transit Rail Operations (NJTRO) Morgan railroad bridge across Cheesequake Creek, mile 0.2, at Morgan, New Jersey. This deviation is necessary to allow the bridge owner to perform structural repairs at the bridge. This deviation allows the bridge to remain closed on six consecutive weekends.
This deviation is effective from 6 a.m. on Saturday, January 9 to 7 p.m. February 28, 2016.
The docket for this deviation, [USCG-2015-1070] is available at
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 NJTRO Morgan railroad bridge across Cheesequake Creek, mile 0.2, at Morgan, New Jersey, has a vertical clearance in the closed position of 3 feet at mean high water and 8 feet at mean low water. The existing bridge operating regulations are found at 33 CFR 117.709(b).
The waterway is transited by seasonal recreational vessels of various sizes.
The bridge owner, New Jersey Transit Rail Operations, requested a temporary deviation from the normal operating schedule to facilitate structural repairs at the bridge.
Under this temporary deviation, the NJTRO Morgan railroad bridge shall remain in the closed position for six
The draw shall maintain its normal operating schedule at all other times.
There are no alternate routes for vessel traffic; however, vessels that can pass under the closed draws during this closure may do so at all times. The bridge may be opened in the event of an emergency.
The Coast Guard will inform the users of the waterways through our Local Notice and Broadcast to Mariners of the change in operating schedule for the bridge so that vessel operations 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.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce a safety zone in the Captain of the Port New York Zone on the specified date and time. This action is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks displays. During the enforcement period, no person or vessel may enter the safety zone without permission from the Captain of the Port (COTP).
The regulation for the safety zone described in 33 CFR 165.160 will be enforced on December 31, 2015 from 11:30 p.m. to 12:40 a.m. on January 1, 2016.
If you have questions on this notice of enforcement, call or email Marine Science Technician First Class Daniel Vazquez, Coast Guard; telephone 718-354-4154, email
The Coast Guard will enforce the safety zone listed in 33 CFR 165.160 on the specified date and time as indicated in Table 1 below. This regulation was published in the
Under the provisions of 33 CFR 165.160, a vessel may not enter the regulated area unless given express permission from the COTP or the designated representative. Spectator vessels may transit outside the regulated area but may not anchor, block, loiter in, or impede the transit of other vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice of enforcement is issued under authority of 33 CFR 165.160(a) and 5 U.S.C. 552(a). In addition to this notice in the
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary security zone in support of a visit by very important persons (VIPs). The security zone begins on the navigable waters in Kailua Bay on the west side of a line connecting Kapoho Point and continuing at a bearing of 227° (true) as well as the nearby channel from its entrance near Kapoho Point to a point along the channel 150 yards to the south of the N. Kalaheo Avenue Road Bridge. This security zone is necessary to ensure the safety of the VIPs.
This rule is effective from 6:00 a.m. (HST) on December 18, 2015, through 10:00 p.m. (HST) on January 3, 2016.
Documents mentioned in this preamble are part of docket USCG-2015-1030. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander Nicolas Jarboe, Waterways Management Division, U.S. Coast Guard Sector Honolulu; telephone (808) 541-4359, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553 (b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency, for good cause, finds those procedures are “impractical, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under the authority in 33 U.S.C. 1231. From December 18, 2015 through January 3, 2016, VIPs of the United States of America plans to visit the Kailua Bay area on Oahu, Hawaii. The security zone begins on the navigable waters in Kailua Bay on the west side of a line connecting Kapoho Point and continuing at a bearing of 227° (true) as well as the nearby channel from its entrance near Kapoho Point to a point along the channel 150 yards to the south of the N. Kalaheo Avenue Road Bridge. The Captain of the Port of Honolulu (COTP) has determined that there is reasonable potential for terroristic acts associated with the VIPs visit to the Kailua Bay area, and that a security zone is necessary to ensure their safety.
This temporary final rule establishes a security zone from 6:00 a.m. (HST) on December 18, 2015, through 10:00 p.m. (HST) on January 03, 2016. The security zone area is located within the COTP Zone (See 33 CFR 3.70-10) and covers all U.S. navigable waters in the Kailua Bay on the west side of a line connecting Kapoho Point and continuing at a bearing of 227° (true) to 21°25′11″ N., 157°44′39″ W.; as well as the nearby channel from its entrance near Kapoho Point to a point along the channel 150 yards to the south of the N. Kalaheo Avenue Road Bridge. This zone extends from the surface of the water to the ocean floor. This zone will include the navigable waters of the channel beginning at a point 21°25′04″ N., 157°44′54″ W., then extending to 21°25′27″ N., 157°44′21″ W. (Kapoho Point) including all the waters to the west of a straight line to 21°25′11″ N., 157°44′39″ W., and the extending back to the original point 21°25′04″ N., 157°44′54″ W.
One (1) yellow buoy and two (2) shore-side markers will be placed in proximity of the security zone along the security zone boundary and one (1) orange boom will be placed at the channel boundary south of the N. Kalaheo Avenue Road Bridge as visual aids for mariners and public to approximate the zone. An illustration of the security zone will be made available on
We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Coast Guard expects the economical impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the limited duration of the zone, the limited geographic area affected by it, and the lack of commercial vessel traffic affected by the zone. This rule has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the security zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(1) All persons are required to comply with the general regulations governing security zones found in this part.
(2) Entry into or remaining in this zone is prohibited unless authorized by the COTP.
(3) Persons desiring to transit the security zones identified in paragraph (a) of this section may contact the COTP at the Command Center telephone number (808) 842-2600 and (808) 842-2601, fax (808) 842-2642 or on VHF channel 16 (156.8 Mhz) to seek permission to transit the zones. If permission is granted, all persons and vessels must comply with the instructions of the COTP or his designated representative and proceed at the minimum speed necessary to maintain a safe course while in the zone.
(4) The U.S. Coast Guard may be assisted in the patrol and enforcement of the security zone by Federal, State, and local agencies.
(d)
(e)
Environmental Protection Agency.
Final rule.
The Clean Air Act (CAA) requires each State Implementation Plan (SIP) to contain adequate provisions prohibiting air emissions that will have certain adverse air quality effects in other states. On June 28, 2010, the State of Idaho made a submittal to the Environmental Protection Agency (EPA) to address these requirements. The EPA is approving the submittal as meeting the requirement that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone National Ambient Air Quality Standard (NAAQS) in any other state.
This final rule is effective January 19, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2015-0258. All documents in the docket are listed on the
Kristin Hall at (206) 553-6357,
On October 30, 2015, the EPA proposed to approve Idaho's June 28, 2010 submittal as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS (80 FR 66862). An explanation of the CAA requirements, a detailed analysis of the submittal, and the EPA's reasons for approval were provided in the notice of proposed rulemaking, and will not be restated here. The public comment period for this proposed rule ended on November 30, 2015. The EPA received no comments on the proposal.
The EPA is approving Idaho's June 28, 2010 submittal as meeting the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements for the 2008 ozone NAAQS.
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, the 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 this action does not involve technical standards; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications 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 February 16, 2016. 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, Ozone, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
U.S. Small Business Administration.
Advance notice of proposed rulemaking.
The U.S. Small Business Administration (SBA) is seeking input and comments on certification of Women-Owned Small Businesses (WOSB) and Economically Disadvantaged Women-Owned Small Businesses (EDWOSB) in connection with the Women-Owned Small Business Federal Contract Program (WOSB Program). SBA is planning to amend its regulations to implement section 825 of the National Defense Authorization Act for Fiscal Year 2015 (2015 NDAA). Section 825 of the 2015 NDAA removed the statutory authority allowing WOSBs and EDWOSBs to self-certify. SBA intends to draft regulations to implement the statutory changes.
Comments must be received on or before February 16, 2016.
You may submit comments, identified by RIN 3245-AG75, by any of the following methods:
•
•
•
SBA will post all comments on
Brenda J. Fernandez, Procurement Analyst, Office of Policy, Planning and Liaison, 409 Third Street SW., Washington, DC 20416; (202) 205-7337;
The WOSB Program, set forth in section 8(m) of the Small Business Act, 15 U.S.C. 637(m), authorizes Federal contracting officers to restrict competition to eligible Women-Owned Small Businesses (WOSBs) and Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs) for Federal contracts in certain industries. Congress amended the WOSB Program with section 825 of the National Defense Authorization Act for Fiscal Year 2015, Public Law 113-291, 128 Stat. 3292 (December 19, 2014) (2015 NDAA), which included language granting contracting officers the authority to award sole source awards to WOSBs and EDWOSBs and shortening the time period for SBA to conduct a required study to determine the industries in which WOSBs are underrepresented in federal contracting. In addition, section 825 of the 2015 NDAA amended the Small Business Act to create a requirement that a firm be certified as a WOSB or EDWOSB by a Federal Agency, a State government, SBA, or a national certifying entity approved by SBA. 15 USCS 637(m)(2)(E).
On September 14, 2015, SBA published in the
SBA seeks to better understand what the public believes is the most appropriate way to structure a WOSB/EDWOSB certification program. Although the language of section 825 of the 2015 NDAA authorizes four different types of certification programs (by a Federal Agency, a State government, SBA, or a national certifying entity approved by SBA), SBA requests comments as to whether each of the four types should be pursued, or whether one or more of the types of certification are not feasible. SBA also requests comments on whether there should be a grace period after implementation to give firms that have self-certified the time necessary to complete the certification process. If a grace period were implemented, how long should that period be? In addition, in drafting any proposed rule to implement a WOSB/EDWOSB certification process, SBA must also consider what should happen to the current WOSB repository. As such, SBA requests comments as to whether the repository should continue to be maintained after the certification program is implemented, and if so, why and in what capacity should it be used in the future.
SBA's regulations currently authorize WOSB and EDWOSB certifications by third party national certifying entities approved by SBA, by SBA where the firm is owned and controlled by one or more women and has been certified as a Participant in the 8(a) Business Development (BD) Program, and by
To better understand how SBA should structure the new certification processes, this ANPR seeks comments in response to the questions below, relating to each of the four certification approaches.
As noted above, SBA regulations currently provide for certification by third party national certifying entities that have been approved by SBA. To date, SBA has approved four third party entities to certify firms as WOSBs and EDWOSBs.
1. How many third party certifiers would be needed to adequately serve the full community of WOSBs and EDWOSBs seeking certification?
2. Should SBA modify its regulations to add more information about the procedures and processes used by third party certifiers to certify firms as WOSBs and EDWOSBs for SBA's WOSB program?
3. Should SBA regulations contain information on how to become an approved third party certifier?
4. What type of notice should be required to identify third party certifiers?
5. Should cost to EDWOSB and WOSBs be part of the criteria that SBA considers when deciding whether to approve one or more additional third party certifiers? If so, what if any methodology should SBA utilize when considering cost?
6. Should SBA consider the ongoing cost of recertification when evaluating third party certifiers?
7. Should SBA determine the term period a third-party certification is valid? If so, what should be an appropriate term for certification validity?
8. Should SBA authorize a third-party limited access to an applicant's repository file for the purpose of directly uploading approved certification documents?
9. Should SBA change its current processes regarding denials by third party certifiers?
10. In the future, should SBA consider allowing third party certifiers to approve mentor-protégé agreements and joint venture agreements involving EDWOSB and WOSB participants?
The changes to the WOSB program made by section 825 of the 2015 NDAA authorize WOSB and EDWOSB certifications by other Federal agencies and State governments. SBA's current regulations authorize SBA to recognize WOSB certifications made by states that have certified firms that are owned and controlled by women to be DBEs for the DOT's DBE program. The regulations do not, however, recognize any other State certifications and do not authorize other Federal agencies to certify WOSBs and EDWOSBs.
1. Should the authority to certify WOSBs and EDWOSBs be extended to States generally? If the authority should be extended, how should SBA authorize individual States to participate as WOSB and EDWOSB certifying entities (
2. Should SBA accept DBE certifications for women-owned firms as conclusive of WOSB ownership and control status or should SBA look further at one or more specific eligibility requirement(s)?
3. What other State entities might have sufficient expertise to make WOSB and EDWOSB certifications?
4. Should SBA consider other Federal agencies as entities that can certify WOSBs and EDWOSBs? If so, how should that occur? Should an agency be able to certify a WOSB or EDWOSB only for purposes of a specific WOSB or EDWOSB contract with that agency? Which office within those agencies should bear the responsibility for this certification authority?
5. Should there be a protest mechanism that would allow an interested party to protest the WOSB or EDWOSB status of a firm certified by a State or other Federal agency to SBA?
The changes to the WOSB program made by section 825 of the 2015 NDAA authorize SBA to certify firms as WOSBs and EDWOSBs. SBA currently runs two certification programs. SBA certifies firms as 8(a) BD Program Participants under the 8(a) BD Program, and SBA certifies firms as HUBZone SBCs under the HUBZone Program. 13 CFR 124.201 through 124.207, and 126.300 through 226.309;
If SBA were to set up its own WOSB/EDWOSB certification program, SBA would want to ensure that it creates an efficient system that enables eligible firms to become certified in a reasonable amount of time, with a reasonable amount of effort, while also providing the necessary oversight to ensure that this Program is not used by ineligible firms. In carrying out these objectives, there are many different forms and structures that SBA could adopt. For example, SBA could adopt a framework under which only minimal documentation is collected and reviewed at the time of application (such as corporate documents and some financial records). In such a scenario, SBA could then use its authority to conduct program examinations and carry out status protests to serve an oversight role. This approach would provide for a faster application and certification process, while still maintaining oversight by providing in-depth examination and protests relating to specific contracts. On the other hand, SBA could adopt a method that includes a detailed initial review, requiring extensive document production. Such a certification process would be similar to the 8(a) BD certification program. This would be a more thorough review providing additional oversight, and would be more time-consuming for both the SBA and WOSB/EDWOSB applicants.
1. Should SBA limit its WOSB and EDWOSB certifications only to those made through the 8(a) BD program, as is currently authorized in SBA's regulations?
2. Should SBA's regulations be clarified to specify how a women-owned firm applying to the 8(a) BD program can simultaneously receive certification as a WOSB and EDWOSB?
3. Recognizing that SBA has limited resources, should SBA create a new certification program specific to WOSBs and EDWOSBs? If so, how should SBA structure such a certification program so that the limited resources do not cause the time period for certification to be overly lengthy? How should SBA handle the likelihood of a large number of firms seeking certification once the certification process is operational? Should SBA consider or attempt to establish an online WOSB/EDWOSB certification program, with dynamic feedback during the certification process?
4. What, if any, documents should SBA collect when certifying a firm as a WOSB or EDWOSB? Are the current repository document requirements unnecessary or significantly burdensome and if so, why?
5. Should SBA and third-party certifiers utilize the same processes for certifying concerns as EDWOSBs and WOSBs?
6. How long should the ED/WOSB certification process take? How would this compare with the current amount of time required for self-certification?
7. Should firms that SBA finds ineligible during the application process have the right to a request for reconsideration or an appeal of that decision? If an appeal, should it be to SBA's Office of Hearings and Appeals (OHA)? Currently, firms denied certification for the 8(a) BD program may appeal to OHA.
8. How long should a certification be valid? Currently the System for Award Management (SAM) requires users to update and verify their information annually. Should firms certified by SBA as EDWOSBs or WOSBs be required to update their certifications manually?
9. Should firms need to be recertified annually? If not annually, how long should WOSB or EDWOSB certification last? How should a firm be re-certified as a WOSB or EDWOSB once the time period for certification expires: should it have to re-apply anew, or should it be able to submit only those items to SBA for review that have changed since its initial certification? Should there be an online process that facilitates application or re-certification? If no changes have occurred, should the firm be able to submit an affidavit or declaration to that effect and be automatically re-certified?
10. If a firm was previously certified by a third-party certifier, should it be able to apply to SBA for certification (or re-certification), or should it be permitted to apply only to the entity that originally certified it?
The SBA welcomes comments on the above questions and any other certification aspect of the WOSB Program. The SBA also welcomes any available data to help substantiate recommendations made in response to the foregoing questions, or other potential policy options. SBA reminds commenters that all submissions by commenters are available to the public upon request.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E surface area airspace and Class E airspace extending upward from 700 feet above the surface at Bert Mooney Airport, Butte, MT. After a review, the FAA found it necessary to amend the standard instrument approach procedures for the safety and management of Instrument Flight Rules (IFR) operations at the airport.
Comments must be received on or before February 1, 2016.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2015-3772; Airspace Docket No. 15-ANM-21, 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.
Steve Haga, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4563.
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 would amend Class E airspace at Bert Mooney Airport, Butte, MT.
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 and be submitted in triplicate to the address listed above. Commenters wishing the FAA to
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 the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This document would 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 FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface at Bert Mooney Airport, Butte, MT. After a review of the airspace, the FAA found modification necessary for the safety and management of standard instrument approach procedures for IFR operations at the airport. Class E surface area airspace would be increased upward from the surface within a 4.3-mile radius of Bert Mooney Airport, with a segment extending to 11.5 miles to the northwest of the airport. Class E airspace extending upward from 700 feet above the surface would be modified to within a 5.2-mile radius of Bert Mooney Airport, with a segment extending from the 5.2-mile radius to 6 miles to the southeast, 20.7 miles to the north, and 27.5 miles to the northwest of the airport.
Class E airspace designations are published in paragraph 6002 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 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.
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 will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would 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 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, 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.
(Lat. 45°57′17″ N., long. 112°29′51″ W.)
That airspace extending upward from the surface within a 4.3-mile radius of the Bert Mooney Airport, and within 4.3 miles south of and parallel to the 309° bearing of the airport extending from the 4.3-mile radius to the 11.5 miles northwest, thence clockwise along the 11.5-mile radius to 2.5 miles east of and parallel to the 347° bearing from the airport extending from the 4.3-mile radius to 11.5 miles north of the airport.
(Lat. 45°57′17″ N., long. 112°29′51″ W.)
That airspace extending upward from 700 feet above the surface bounded by a line beginning at lat. 46°17′24″ N, long. 112°44′15″ W; to lat. 46°18′25″ N, long. 112°30′26″ W; to lat. 45°55′41″ N, long. 112°20′52″ W; to lat. 45°50′32″ N, long. 112°26′02″ W; to lat. 45°57′11″ N, long. 112°47′54″ W; to lat. 46°11′45″ N, long. 113°04′28″ W; thence to point of beginning; that airspace extending upward from 1,200 feet above the surface bounded by a line beginning at lat. 45°35′00″ N, long. 113°05′00″ W; to lat. 46°37′00″ N, long. 113°05′00″ W; to lat. 46°37′00″ N, long. 112°26′00″ W; to lat. 46°16′00″ N, long. 112°00′00″ W; to lat. 45°35′00″ N, long. 112°00′00″ W; thence to point of beginning.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace extending upward from 700 feet above the surface at Truckee-Tahoe Airport, Truckee, CA. The FAA found modification of the airspace necessary to ensure the minimum airspace necessary for Instrument Flight Rules (IFR) operations, and to remove references to closed runways from the legal description.
Comments must be received on or before February 1, 2016.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2015-4074; Airspace Docket No. 15-AWP-16, 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.
Richard Roberts, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4517.
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 would amend Class E airspace at Truckee-Tahoe Airport, Truckee, CA.
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 and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-4074/Airspace Docket No. 15-AWP-16.” The postcard will be date/time stamped and returned to the commenter.
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 the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This document would 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 FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Truckee-Tahoe Airport, Truckee, CA. The FAA identified that Homewood Seaplane Base, a closed runway, was contained in the current Truckee-Tahoe airport legal description. A review of the Truckee-Tahoe airspace was completed eliminating the Homewood Seaplane Base from the legal description and removing airspace no longer required for Instrument Flight Rules (IFR) operations at the airport. The Class E airspace area would be modified to within a 4.2-mile radius of the Truckee-Tahoe Airport, with segments extending from the 4.2-mile radius to 19 miles north of the airport, and 16.5 miles northwest of the airport.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations
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 will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would 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 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, 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.
(Lat. 39°19′12″ N., Long. 120°08′22″ W.)
That airspace extending upward from 700 feet above the surface within a 4.2-mile radius of the Truckee-Tahoe Airport, and within 2 miles each side of the 15° bearing from the airport extending from the 4.2-mile radius to 19 miles north of the airport, and within 2 miles each side of the 328° bearing from the airport extending from the 4.2-mile radius to 16.5 miles northwest of the airport.
Department of the Army, DoD.
Proposed rule.
The Department of the Army proposes to revise its regulation concerning military traffic supervision on Department of Defense installations worldwide.
Consideration will be given to all comments received by: February 16, 2016.
You may submit comments, identified by 32 CFR part 634, Docket No. USA-2014-0005 and or RIN 0702-AA66, by any of the following methods:
• Federal eRulemaking Portal:
• Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.
Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this
Mr. John Hargitt, (703) 424-3309.
a. The publication of this proposed rule announces administrative revision of a current Army regulation covering motor vehicle traffic supervision. It outlines policy on vehicle registration; implements the 0.08 blood alcohol content as the standard for adverse administrative actions; permits involuntary extraction of blood under revised Military Rules of Evidence in cases where intoxicated driving is suspected; provides policy on towing, storing, and impounding vehicles; adopts the National Highway Traffic Safety Administration technical standards for breathalyzer equipment; establishes traffic points for seat belt and child restraint device violations; and requires that new safety requirements be included in the installation traffic code. It implements Department of Defense Directive 5525.04, “Enforcement of the State Traffic Laws on DoD Installations” (available at
b. The legal authority for this regulatory action is: 70 FR 18969, 70 FR 18982, 10 U.S.C. 2575, 18 U.S.C. 13.
The major provisions of this regulatory action include: Driving privileges, suspensions, revocations, vehicle registration, traffic supervision and offense reporting, accident investigation and reporting, release of information, processing drunk drivers, and impounding privately owned vehicles.
This proposed rule will not have a monetary effect upon the public. This proposed rule facilitates information
The Department of the Army has determined that the Regulatory Flexibility Act does not apply because the proposed rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.
The Department of the Army has determined that the Unfunded Mandates Reform Act does not apply because the proposed rule does not include a mandate that may result in estimated costs to State, local or tribal governments in the aggregate, or the private sector, of $100 million or more.
The Department of the Army has determined that the National Environmental Policy Act does not apply because the proposed rule does not have an adverse impact on the environment.
The Department of the Army has determined that the Paperwork Reduction Act doesn't apply. There is no additional burden for collection of information from the public or the addition of additional government forms associated with this rulemaking. Information collected to support this proposed rule is that information normally collected in the performance of law and order and traffic enforcement operations across the United States. Information collected is used to determine wants and warrants issued for criminal offenders, persons driving under suspended or revoked licenses, and traffic point assessment. Failure to provide driver's license or vehicle registration information may result in detention and fines. Procedures and business processes outlined in this proposed rule provide uniform policy concerning military traffic supervision practices to improve productivity, efficiency, and effectiveness of law enforcement traffic supervision, reporting efforts including the reduction of information collection burdens on the public and the improvement of law enforcement service delivery while maintaining privacy, confidentiality and information systems protections.
The Department of the Army has determined that Executive Order 12630 does not apply because the proposed rule does not impair private property rights.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the proposed rule has been reviewed by the Office of Management and Budget (OMB).
The Department of the Army has determined that according to the criteria defined in Executive Order 13045. This proposed rule does not apply since it does not implement or require actions impacting environmental health or safety risks to children.
The Department of the Army has determined that according to the criteria defined in Executive Order 13132 this proposed rule does not apply because it will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government.
Crime, Distracted driving, Driving under the influence of drugs or alcohol, Investigations, Law, Law enforcement, Law enforcement officers, Military law, Penalties, Personal safety and protection equipment, Text messaging, Traffic, Use of electronic devices.
For reasons stated in the preamble the Department of the Army proposes to revise 32 CFR part 634 to read as follows:
10 U.S.C. 30112(g); 5 U.S.C. 2951; Pub. L. 89-564; 89-670; 91-605; and 93-87.
(a) This subpart establishes policy, responsibilities, and procedures for motor vehicle traffic supervision on military installations in the continental United States (CONUS) and overseas areas. This includes but is not limited to the following:
(1) Granting, suspending, or revoking the privilege to operate a privately owned vehicle (POV).
(2) Registration of POVs.
(3) Administration of vehicle registration and driver performance records.
(4) Driver improvement programs.
(5) Police traffic supervision.
(6) Off-installation traffic activities.
(b) Commanders in overseas areas are authorized to modify these policies and procedures in the following instances:
(1) When dictated by host nation relationships, treaties, and agreements.
(2) When traffic operations under military supervision necessitate measures to safeguard and protect the morale, discipline, and good order in the Services.
Required and related publications along with prescribed and referenced forms are listed in Appendix A of AR 190-5.
Abbreviations and special terms used in this subpart are explained in the Glossary of AR 190-5. It is available on the internet at:
(a)
(1) Exercise staff supervision over programs for motor vehicle traffic supervision.
(2) Develop standard policies and procedures that include establishing an automated records program on traffic supervision.
(3) Maintain liaison with interested staff agencies and other military departments on traffic supervision.
(4) Maintain liaison with departmental safety personnel on traffic safety and accident reporting systems.
(5) Coordinate with national, regional, and state traffic officials and agencies, and actively participate in conferences and workshops sponsored by the Government or private groups at the national level.
(6) Help organize and monitor police traffic supervision training.
(7) Participate in the national effort to reduce intoxicated driving.
(b)
(1) Manage traffic supervision in their commands.
(2) Cooperate with the support programs of state and regional highway traffic safety organizations.
(3) Coordinate regional traffic supervision activities with other major military commanders in assigned geographic areas of responsibility.
(4) Monitor agreements between installations and host state authorities for reciprocal reporting of suspension and revocation of driving privileges.
(5) Participate in state and host nation efforts to reduce intoxicated driving.
(6) Establish awards and recognition programs to recognize successful installation efforts to eliminate intoxicated driving. Ensure that criteria for these awards are positive in nature and include more than just apprehensions for intoxicated driving.
(7) Modify policies and procedures when required by host nation treaties or agreements.
(c)
(d)
(e)
(1) Establish an effective traffic supervision program.
(2) Cooperate with civilian police agencies and other local, state, or federal government agencies concerned with traffic supervision.
(3) Ensure that traffic supervision is properly integrated in the overall installation traffic safety program.
(4) Actively participate in Alcohol Safety Action Projects (ASAP) in neighboring communities.
(5) Ensure that active duty Army law enforcement personnel follow the provisions of AR 190-45 in reporting all criminal violations and utilize the Army Law Enforcement Reporting and Tracking System (ALERTS) to support reporting requirements and procedures. Air Force personnel engaged in law enforcement and adjudication activities will follow the provisions of AFI 31-203 in reporting all criminal and traffic violations, and utilize the Security Forces Management Information Systems (SFMIS) to support reporting requirements and procedures.
(6) Implement the terms of this part in accordance with the provisions of the Federal Service Labor-Management Relations Statute, 5 U.S.C. chapter 71 and title 5 Code of Federal Regulations (CFR) parts 7101 through 7905.
(7) Revoke driving privileges in accordance with this part.
(f)
(1) Exercise overall staff responsibility for directing, regulating, and controlling
(2) Assist traffic engineering functions at installations by participating in traffic control studies designed to obtain information on traffic problems and usage patterns.
(g)
(h)
(1) Perform that phase of engineering concerned with the planning, design, construction, and maintenance of streets, highways, and abutting lands.
(2) Select, determine appropriate design, procure, construct, install, and maintain permanent traffic and parking control devices in coordination with the law enforcement officer and installation safety officer.
(3) Ensure that traffic signs, signals, and pavement markings conform to the standards in the current Manual on Uniform Traffic Control Devices for Streets and Highways.
(4) Ensure that planning, design, construction, and maintenance of streets and highways conform to the Highway Safety Manual (HSM) as implemented by the Army.
(i)
(1) Conduct formal traffic engineering studies.
(2) Apply traffic engineering measures, including traffic control devices, to reduce the number and severity of traffic accidents. (If there is no installation traffic engineer, installation commanders may request these services through channels from the Commander, Military Surface Deployment and Distribution Command, 1 Soldier Way, Scott AFB, IL 62225).
(j)
(k)
(1) Supervise the alcohol and/or drug rehabilitation services to personnel with alcohol or drug abuse problems.
(2) Provide remedial and/or motivational education for all persons identified as alcohol or drug abusers who are evaluated as not dependent on alcohol or drugs and who have been referred to level one rehabilitation by their commands.
(l)
(m)
(n)
(a) The objectives of motor vehicle traffic supervision are to assure—
(1) Safe and efficient movement of personnel and vehicles.
(2) Reduction of traffic deaths, injuries, and property damage from traffic accidents. Most traffic accidents can be prevented. Investigation of motor vehicle accidents should examine all factors, operator status, vehicle condition, and supervisory control measures involved.
(3) Integration of installation safety, engineering, legal, medical, and law enforcement resources into the installation traffic planning process.
(4) Removal of intoxicated drivers from installation roadways.
(b) [Reserved]
(a) Driving a Government vehicle or POV on military installations is a privilege granted by the installation commander. Persons who accept the privilege must—
(1) Be lawfully licensed to operate motor vehicles in appropriate classifications and not be under suspension or revocation in any state or host country.
(2) Comply with laws and regulations governing motor vehicle operations on any U.S. military installation.
(3) Comply with installation registration requirements in § 634.19 of this section. Vehicle registration may be required on all Army installations through use of the Vehicle Registration System (VRS). Vehicle registration is required on all Air Force and DLA installations and on National Guard installations as directed by the Chief, National Guard Bureau.
(4) Possess, while operating a motor vehicle and produce on request by law enforcement personnel, the following:
(i) Proof of vehicle ownership or state registration if required by the issuing state or host nation.
(ii) A valid state, host nation, overseas command, or international driver's license and/or OF 346 (U.S. Government Motor Vehicle Operator's Identification Card), as applicable to the class vehicle to be operated, supported by a DD Form 2 (Armed Forces of the United States Geneva Convention Identification Card), U.S. Uniformed Services Identification Card, Common Access Card (CAC) or other appropriate identification for non-Department of Defense (DOD) civilians.
(iii) A valid record of motor vehicle safety inspection, as required by the state or host nation and valid proof of insurance if required by the state or locality.
(iv) Any regulatory permits, or other pertinent documents relative to shipping and transportation of special cargo.
(v) When appropriate, documents that establish identification and status of cargo or occupants.
(vi)
(b) Operators of Government motor vehicles must have proof of authorization to operate the vehicle.
(a) Government vehicles may be stopped by law enforcement personnel on military installations based on the installation commander's policy.
(1) Government vehicles may be stopped on or off installations as determined by host nation agreement and command policy in overseas areas.
(2) Stops and inspections of vehicles at installation gates or entry points and in restricted areas will be conducted according to command policy.
(b) Stops and inspections of POVs within the military installation, other than at restricted areas or at an installation gate, are authorized only when there is a reasonable suspicion of criminal activity, or a violation of a traffic regulation, or the installation commander's policy. Marine Corps users are guided by publication of Marine Corps order and Military Rules of Evidence 311-316 and local command regulations. DLA users are
(c) At the time of stop, the driver and occupants may be required to display all pertinent documents, including but not limited to:
(1) DD Form 2 (Active, Reserve, Retired, etc.)
(2) Documents that establish the identity and status of civilians; for example, Common Access Card (CAC), DD Form 1173 (Uniformed Services Identification and Privilege Card), DA Form 1602 (Civilian Identification), AF Form 354 (Civilian Identification Card), DD Form 2 (Armed Forces of the United States Identification Card), post pass, national identity card, passport or other identification.
(3) Proper POV registration documents.
(4) Host nation vehicle registration documents, if applicable.
(5) Authorization to operate a Government vehicle, if applicable.
(6) Drivers license or OF 346 valid for the particular vehicle and area of operation.
(7) Proof of insurance.
(a)
(b)
(c) Any person who operates, registers, or is in control of a motor vehicle on a military installation involved in a motor vehicle or criminal infraction shall be informed that notice of the violation of law or regulation will be forwarded to the Department of Motor Vehicles (DMV) of the host state and/or home of record for the individual, and to the NHTSA's National Driver Register, when applicable.
The installation commander or designee may for cause, or any lawful reason, administratively suspend or revoke driving privileges on the installation. The suspension or revocation of installation driving privileges or POV registrations, for lawful reasons unrelated to traffic violations or safe vehicle operation, is not limited or restricted by this part.
(a)
(2) The installation commander has discretionary power to withdraw the authorization of active duty military personnel, DOD civilian employees, and non-appropriated funds (NAF) employees, contractors and subcontractors to operate Government vehicles.
(3) Immediate suspension of installation or overseas command POV driving privileges pending resolution of an intoxicated driving incident is authorized for active duty military personnel, family members, retired members of the military services, DOD civilian personnel, and others with installation or overseas command driving privileges, regardless of the geographic location of the intoxicated driving incident. Suspension is authorized for non-DOD affiliated civilians only with respect to incidents occurring on the installation or in areas subject to military traffic supervision. After a review of available information as specified in § 634.11, installation driving privileges will be immediately suspended pending resolution of the intoxicated driving accident in the following circumstances:
(i) Refusal to take or complete a lawfully requested chemical test to determine contents of blood for alcohol or other drugs.
(ii) Operating a motor vehicle with a blood alcohol content (BAC) of 0.08 percent by volume (0.08 grams per 100 milliliters) or higher or in violation of the law of the jurisdiction that is being assimilated on the military installation.
(iii) Operating a motor vehicle with a BAC of 0.05 percent by volume but less than 0.08 percent blood alcohol by volume in violation of the law of the jurisdiction in which the vehicle is being operated if the jurisdiction imposes a suspension solely on the basis of the BAC level (as measured in grams per 100 milliliters).
(iv) On an arrest report or other official documentation of the circumstances of an apprehension for intoxicated driving.
(b)
(2) Driving privileges are subject to revocation when an individual fails to comply with any of the conditions requisite to the granting privilege (see § 634.6). Revocation of installation driving and registration privileges is authorized for military personnel, family members, civilian employees of DOD, contractors, and other individuals with installation driving privileges. For civilian guests, revocation is authorized only with respect to incidents occurring on the installation or in the areas subject to military traffic supervision.
(3) Driving privileges will be revoked for a mandatory period of not less than one year in the following circumstances:
(i) The installation commander or designee has determined that the person lawfully apprehended for driving under the influence refused to submit to or complete a test to measure the alcohol content in the blood, or detect the
(ii) A conviction, non-judicial punishment, or a military or civilian administrative action resulting in the suspension or revocation of driver's license for intoxicated driving. Appropriate official documentation of such conviction is required as the basis for revocation.
(4) When temporary suspensions under paragraph (a)(3) of this section are followed by revocations, the period of revocation is computed beginning from the date the original suspension was imposed, exclusive of any period during which full driving privileges may have been restored pending resolution of charges. (Example: Privileges were initially suspended on January 1, 2000 for a charge of intoxicated driving with a BAC of 0.14 percent. A hearing was held, extreme family hardship was substantiated, and privileges were restored on February 1 pending resolution of the charge. On March 1, 2000, the driver was convicted for intoxicated driving. The mandatory 1-year revocation period will consist of January 2000 plus March 2000 through January 2001, for a total of 12 months with no installation driving privileges).
(c) Army provost marshals will use the automated VRS to develop and maintain records showing that an individual's driving privileges have been revoked.
(a) Navy activities will comply with OPNAVINST 5100.12 Series, and Marine Corps activities with current edition of MCO 5100.19C for establishment of remedial training programs.
(b) Installation commanders may establish a remedial driver-training program to instruct and educate personnel requiring additional training. Personnel may be referred to a remedial program on the basis of their individual driving history or incidents requiring additional training. The curriculum should provide instruction to improve driving performance and compliance with traffic laws.
(c) Installation/unit commanders will direct attendance at an Army Traffic Safety Training Program remedial driving class for any person who has acquired more than five but less than twelve traffic points within a six-month period. Commanders can refer to sections below for detailed determination of points per infraction. Personnel may be referred to a remedial program on the basis of their individual driving history or incidents requiring additional training.
(d) Installation commanders may schedule periodic courses, or if not practical, arrange for participation in courses conducted by local civil authorities.
(e) Active Duty Soldiers and Department of the Army (DA) Civilians required to drive Government owned vehicles may attend remedial courses on the installation, or similar courses off the installation, which incur no expense to the Government. Contractor employees and family members of military personnel will attend similar remedial courses off the installation, which incur no expense to the Government.
(f) Commanders will require individuals, inside or outside normal duty hours, to attend the courses or lose installation driving privileges.
(g) State approved driver improvement programs may be used to fulfill the requirement where an Army standardized course is not provided.
(a) Individual Services will promulgate separate regulations establishing administrative due process procedures for suspension or revocation of driving privileges. The procedures in paragraphs (b) and (c) of this section apply to actions taken by Army commanders with respect to Army military personnel and family members and to civilian personnel operating motor vehicles on Army installations. For Marine Corps users, the provisions of this section apply. For Air Force users, a preliminary suspension for intoxicated driving remains in effect until the installation commander makes a final decision. Requested hearings must take place within a reasonable period, which is determined by the installation commander.
(b) For offenses other than intoxicated driving, suspension or revocation of the installation driving privilege will not become effective until the installation commander or designee notifies the affected person and offers that person an administrative hearing. Suspension or revocation will take place 14 calendar days after written notice is received unless the affected person makes an application for a hearing within this period. Such application will stay the pending suspension or revocation for a period of 14 calendar days.
(1) If, due to action by the government, a hearing is not held within 14 calendar days, the suspension will not take place until such time as the person is granted a hearing and is notified of the action of the installation commander or designee. However, if the affected person requests that the hearing be continued to a date beyond the 14-day period, the suspension or revocation will become effective immediately on receipt of notice that the request for continuance has been granted, and remain in force pending a hearing at a scheduled hearing date.
(2) If it is determined as a result of a hearing to suspend or revoke the affected person's driving privilege, the suspension or revocation will become effective when the person receives the written notification of such action. In the event that written notification cannot be verified, either through a return receipt for mail or delivery through command channels, the hearing authority will determine the effective date on a case-by-case basis.
(3) If the revocation or suspension is imposed after such hearing, the person whose driving privilege has been suspended or revoked will have the right to appeal or request reconsideration. Such requests must be forwarded through command channels to the installation commander within 14 calendar days from the date the individual is notified of the suspension or revocation resulting from the administrative hearing. The suspension or revocation will remain in effect pending a final ruling on the request. Requests for restricted privileges will be considered per § 634.15.
(4) If driving privileges are temporarily restored (
(c) For drunk driving or driving under the influence offenses, reliable evidence readily available will be presented promptly to an individual designated by the installation commander for review and authorization for immediate suspension of installation driving privileges.
(1) The reviewer should be any officer to include GS-11 and above, designated in writing by the installation or garrison commander whose primary duties are not in the field of law enforcement.
(2) Reliable evidence includes witness statements, military or civilian police report of apprehension, chemical test results if completed, refusal to consent to complete chemical testing, videotapes, statements by the
(3) Reviews normally will be accomplished within the first normal duty day following final assembly of evidence.
(4) Installation commanders may authorize the installation law enforcement officer to conduct reviews and authorize suspensions in cases where the designated reviewer is not reasonably available and, in the judgment of the installation law enforcement officer, such immediate action is warranted. Air Force Security Forces personnel act in an advisory capacity to installation commanders. Review by the designated officer will follow as soon as practical in such cases. When a suspension notice is based on the law enforcement officer's review, there is no requirement for confirmation notice following subsequent review by the designated officer.
(5) For active duty military personnel, final written notice of suspension for intoxicated driving will be provided to the individual's chain of command for immediate presentation to the individual. Air Force Security Forces provide a copy of the temporary suspension to the individual at the time of the incident or may provide a copy of the final determination at the time of the incident, as pre-determined by the final action authority.
(6) For civilian personnel, written notice of suspension for intoxicated driving will normally be provided without delay via certified mail. Air Force Security Forces personnel provide a copy of the temporary suspension to the individual at the time of the incident or may provide a copy of the final determination at the time of the incident, as pre-determined by the final action authority. If the person is employed on the installation, such notice will be forwarded through the military or civilian supervisor. When the notice of suspension is forwarded through the supervisor, the person whose privileges are suspended will be required to provide written acknowledgment of receipt of the suspension notice.
(7) Notices of suspension for intoxicated driving will include the following:
(i) The fact that the suspension can be made a revocation under § 634.9(b).
(ii) The right to request, in writing, a hearing before the installation commander or designee to determine if post driving privileges will be restored pending resolution of the charge; and that such request must be made within 14 calendar days of the final notice of suspension.
(iii) The right of military personnel to be represented by counsel at his or her own expense and to present evidence and witnesses at his or her own expense. Installation commanders will determine the availability of any local active duty representatives requested.
(iv) The right of Department of Defense civilian employees to have a personal representative present at the administrative hearing in accordance with applicable laws and regulations.
(v) Written acknowledgment of receipt to be signed by the individual whose privileges are to be suspended or revoked.
(8) If a hearing is requested, it must take place within 14 calendar days of receipt of the request. The suspension for intoxicated driving will remain in effect until a decision has been made by the installation commander or designee, but will not exceed 14 calendar days after the hearing while awaiting the decision. If no decision has been made by that time, full driving privileges will be restored until such time as the accused is notified of a decision to continue the suspension.
(9) Hearing on suspension actions under § 634.9(a) for drunk or impaired driving pending resolution of charges will cover only the following pertinent issues of whether—
(i) The law enforcement official had reasonable grounds to believe the person was driving or in actual physical control of a motor vehicle under the influence of alcohol or other drugs.
(ii) The person was lawfully cited or apprehended for a driving under the influence offense.
(iii) The person was lawfully requested to submit his or her blood, breath, or urine in order to determine the content of alcohol or other drugs, and was informed of the implied consent policy (consequences of refusal to take or complete the test).
(iv) The person refused to submit to the test for alcohol or other drug content of blood, breath, or urine; failed to complete the test; submitted to the test and the result was 0.08 or higher blood alcohol content, or between 0.05 and 0.08 in violation of the law of the jurisdiction in which the vehicle in being operated if the jurisdiction imposes a suspension solely on the basis of the BAC level; or showed results indicating the presence of other drugs for an on-post apprehension or in violation of State laws for an off-post apprehension.
(v) The testing methods were valid and reliable and the results accurately evaluated.
(10) For revocation actions under § 634.9(b)(3) for intoxicated driving, the revocation is mandatory on conviction or other findings that confirm the charge. (Pleas of “nolo contendere” are considered equivalent to guilty pleas).
(i) Revocations are effective as of the date of conviction or other findings that confirm the charges. Test refusal revocations will be in addition to any other revocation incurred during a hearing. Hearing authority will determine if revocations for multiple offenses will run consecutively or concurrently taking into consideration if offenses occurred on same occasion or different times, dates. The exception is that test refusal will be one year automatic revocation in addition to any other suspension.
(ii) The notice that revocation is automatic may be placed in the suspension letter. If it does not appear in the suspension letter, a separate letter must be sent and revocation is not effective until receipt of the written notice.
(iii) Revocations cancel any full or restricted driving privileges that may have been restored during suspension and the resolution of the charges. Requests for restoration of full driving privileges are not authorized.
(11) The Army Vehicle Registration System will be utilized to maintain infractions by individuals on Army installations.
Army commanders will take appropriate action against intoxicated drivers. These actions may include the following:
(a) A written reprimand, administrative in nature, will be issued to active duty Soldiers in the cases described in this paragraph. Any general officer, and any officer frocked to the grade of brigadier general, may issue this reprimand. Filing of the reprimand will be in accordance with the provisions of AR 600-37.
(1) Conviction by courts-martial or civilian court or imposition of non-judicial punishment for an offense of drunk or impaired driving either on or off the installation.
(2) Refusal to take or failure to complete a lawfully requested test to measure alcohol or drug content of the
(3) Driving or being in physical control of a motor vehicle or watercraft (as described above) on post when the blood alcohol content is 0.08 percent or higher, irrespective of other charges, or either on or off post when the blood alcohol content is in violation of the law of the State involved.
(4) Driving, or being in physical control of a motor vehicle, either on or off the installation, when lawfully conducted chemical tests reflect the presence of illegal drugs.
(b) Review by the commander of the service records of active duty soldiers apprehended for offenses described in paragraph (a) of this section to determine if the following action(s) should be taken—
(1) Administrative reduction per AR 600-8-19; or
(2) Bar to reenlistment per AR 601-280; or
(3) Administrative separation per AR 635-200.
(c) Federal civilian employees may be subject to administrative actions in accordance with 5 CFR part 752.
(a) Commanders will refer military personnel suspected of drug or alcohol abuse for evaluation in the following circumstances:
(1) Behavior indicative of alcohol or drug abuse.
(2) Continued inability to drive a motor vehicle safely because of alcohol or drug abuse.
(b) The commander will ensure military personnel are referred to the installation alcohol and drug abuse program or other comparable facilities when they are convicted of, or receive an official administrative action for, any offense involving driving under the influence. A first offender may be referred to treatment if evidence of substance abuse exists in addition to the offense of intoxicated driving. The provisions of this paragraph do not limit the commander's prerogatives concerning other actions that may be taken against an offender under separate Service/Agency polices (Army, see AR 600-85. Marine Corps, see MCO P1700.24B).
(c) Active duty Army personnel apprehended for drunk driving, on or off the installation, will be referred to the local Army Substance Abuse Program (ASAP) for evaluation within 14 calendar days to determine if the person is dependent on alcohol or other drugs which will result in enrollment in treatment in accordance with AR 600-85. A copy of all reports on military personnel and DOD civilian employees apprehended for intoxicated driving will be forwarded to the installation alcohol and drug abuse facility.
(d) Active duty Navy personnel apprehended for drunk driving on or off the installation will be screened by the respective SARP facility within 14 calendar days to determine if the individual is dependent on alcohol or other drugs. Active duty Marines apprehended for intoxicated driving, on or off the installation, will be referred to interview by a Level II substance abuse counselor within 14 calendar days for evaluation and determination of the appropriate level of treatment required. Subsequent to this evaluation, the Marine will be assigned to the appropriate treatment programs as prescribed by MCO P1700.24B.
(e) The Services/Agencies may develop preventive treatment and rehabilitative programs for civilian employees with alcohol-related problems.
(f) Army supervisors of civilian employees apprehended for intoxicated driving will advise employees of ASAP services available. Civilian employees apprehended for intoxicated driving while on duty will be referred to the ASAP or comparable facility for evaluation in accordance with AR 600-85. Army commanders will ensure that sponsors encourage family members apprehended for drunk driving seek ASAP evaluation and assistance.
(g) Navy and DLA civilian personnel charged with intoxicated driving will be referred to the Civilian Employee Assistance Program in accordance with 5 CFR part 792. Such referral does not exempt the employee from appropriate administrative or disciplinary actions under civilian personnel regulations.
(h) Marine Corps civilian employees charged with intoxicated driving, on or off the installation, will be referred to the Employee Assistance Program as prescribed by MCO P1700.24B. Marine family members charged with intoxicated driving, on or off the installation, will be provided assistance as addressed in MCO P1700.24B. Such referral and assistance does not exempt the individual from appropriate administrative or disciplinary action under current civilian personnel regulations or State laws.
(i) For the Army, DLA, and the Marine Corps, installation driving privileges of any person who refuses to submit to, or fails to complete, chemical testing for blood-alcohol content when apprehended for intoxicated driving, or convicted of intoxicated driving, will not be reinstated unless the person successfully completes either an alcohol education or treatment program sponsored by the installation, state, county, or municipality, or other program evaluated as acceptable by the installation commander.
(j) Active duty Air Force personnel apprehended for drunk driving, on or off the installation, will be referred by their respective chain of command to the Air Force Substance Abuse office for evaluation in accordance with AFI 44-121/Alcohol Drug Abuse & Treatment Program, and local policies within seven days.
(k) Local installation commanders will determine if active duty Air Force personnel involved in any alcohol incident will immediately be subjected to a urinalysis for drug content. If consent is not given for the test, a command-directed test will be administered in accordance with local policies.
The suspension of driving privileges for military and civilian personnel shall be restored if a final disposition indicates a finding of not guilty, charges are dismissed or reduced to an offense not amounting to intoxicated driving, or where an equivalent determination is made in a non-judicial proceeding. The following are exceptions to the rule in which suspensions will continue to be enforced.
(a) The preliminary suspension was based on refusal to take a BAC test.
(b) The preliminary suspension resulted from a valid BAC test, (unless disposition of the charges was based on invalidity of the BAC test). In the case of a valid BAC test, the suspension will continue, pending completion of a hearing as specified in § 634.11. In such instances, the individual will be notified in writing that the suspension will continue and of the opportunity to request a hearing within 14 calendar days.
(1) At the hearing, the arrest report, the commander's report of official disposition, information presented by the individual, and such other information as the hearing officer may deem appropriate will be considered.
(2) If the hearing officer determines by a preponderance of evidence that the individual was engaged in intoxicated driving, the revocation will be for 1 year from the date of the original preliminary suspension.
(c) The person was driving or in physical control of a motor vehicle
(d) An administrative determination has been made by the state or host nation licensing authority to suspend or revoke driving privileges.
(e) The individual has failed to complete a formally directed substance abuse or driver's training program.
(a) For the Navy, Air Force, Marine Corps, and DLA, the installation commander, or his or her designee may modify a suspension or revocation of driving privileges in certain cases per paragraph (d) of this section.
(b) Army requests for restricted driving privileges subsequent to suspension or revocation of installation driving privileges will be referred to the installation commander or designee, except for intoxicated driving cases, which must be referred to the General Court Martial Convening Authority. Withdrawal of restricted driving privileges is within the installation commander's discretion.
(c) Probation or restricted driving privileges will not be granted to any person whose driver license or right to operate motor vehicles is under suspension or revocation by a state, Federal, or host nation licensing authority. Prior to application for probation or restricted driving privileges, a state, Federal, or host nation driver's license or right to operate motor vehicles must be reinstated. The burden of proof for reinstatement of driving privileges lies with the person applying for probation or restricted driving privileges. Revocations for test refusals shall remain.
(d) The installation commander or designee may grant restricted driving privileges or probation on a case-by-case basis provided the person's state or host nation driver's license or right to operate motor vehicles remains valid to accommodate any of the following reasons:
(1) Mission requirements.
(2) Unusual personal or family hardships.
(3) Delays exceeding 90 days, not attributed to the person concerned, in the formal disposition of an apprehension or charges that are the basis for any type of suspension or revocation.
(4) When there is no reasonably available alternate means of transportation to officially assigned duties. In this instance, a limited exception can be granted for the sole purpose of driving directly to and from the place of duty.
(e) The terms and limitations on a restricted driving privilege (for example, authorization to drive to and from place of employment or duty, or selected installation facilities such as hospital, commissary, and or other facilities) will be specified in writing and provided to the individual concerned. Persons found in violation of the restricted privilege are subject to revocation action as prescribed in § 634.9.
(f) The conditions and terms of probation will be specified in writing and provided to the individual concerned. The original suspension or revocation term in its entirety may be activated to commence from the date of the violation of probation. In addition, separate action may be initiated based on the commission of any traffic, criminal, or military offense that constitutes a probation violation.
(g) DOD employees and contractors, who can demonstrate that suspension or revocation of installation driving privileges would constructively remove them from employment, may be given a limiting suspension/revocation that restricts driving on the installation or activity (or in the overseas command) to the most direct route to and from their respective work sites (5 U.S.C. 2302(b)(10)). This is not to be construed as limiting the commander from suspension or revocation of on-duty driving privileges or seizure of Optional Form (OF) 346, U.S. Government Motor Vehicle Operator's Identification Card even if this action would constructively remove a person from employment in those instances in which the person's duty requires driving from place to place on the installation.
(a) Commanders will recognize the interests of the states in matters of POV administration and driver licensing. Statutory authority may exist within some states or host nations for reciprocal suspension and revocation of driving privileges. See subpart D of this part for additional information on exchanging and obtaining information with civilian law enforcement agencies concerning infractions by Armed Service personnel off post. Installation commanders will honor the reciprocal authority and direct the installation law enforcement officer to pursue reciprocity with state or host nation licensing authorities. Upon receipt of written or other official law enforcement communication relative to the suspension/revocation of driving privileges, the receiving installation will terminate driving privileges as if violations occurred within its own jurisdiction.
(b) When imposing a suspension or revocation for an off-installation offense, the effective date should be the same as civil disposition, or the date that state or host-nation driving privileges are suspended or revoked. This effective date can be retroactive.
(c) If statutory authority does not exist within the state or host nation for formal military reciprocity, the procedures below will be adopted:
(1) Commanders will recognize official documentation of suspensions/revocations imposed by state or host nation authorities. Administrative actions (suspension/revocations, or if recognized, point assessment) for moving traffic violations off the installation should not be less than required for similar offenses on the installation. When notified by state or host nation authorities of a suspension or revocation, the person's OF 346 may also be suspended.
(2) In CONUS locations, the host and issuing state licensing authority will be notified as soon as practical when a person's installation driving privileges are suspended or revoked for any period, and immediately for refusal to submit to a lawful BAC test. The notification will be sent to the appropriate state DMV(s) per reciprocal agreements. In the absence of electronic communication technology, the appropriate state DMV(s) will be notified by official certified mail. The notification will include the basis for the suspension/revocation and the BAC level if applicable.
(d) In OCONUS locations, installation commanders must follow provisions of the applicable Status of Forces Agreement (SOFA), the law of the host nation concerning reciprocal suspension and revocation, and other international agreements. To the extent an agreement concerning reciprocity may be permitted at a particular overseas installation, the commander must have prior authorization to negotiate and conclude such an international agreement in accordance with applicable international agreements, DODD 5530.3, International Agreements, June 87, and other individual Service instructions.
(a) Driving in violation of a suspension or revocation imposed under this part will result in the original period of suspension or revocation being increased by two years. In addition, administrative action may be initiated based on the commission of
(b) For each subsequent determination within a five-year period that revocation is authorized under § 634.9, military personnel, DOD civilians, contractors and NAF employees will be prohibited from obtaining or using an OF 346 for six months for each such incident. A determination whether DOD civilian personnel should be prohibited from obtaining or using an OF 346 will be made in accordance with the laws and regulations applicable to civilian personnel. This does not preclude a commander from imposing such prohibition for a first offense, or for a longer period of time for a first or subsequent offense, or for such other reasons as may be authorized.
(c) Commanders may extend a suspension or revocation of driving privileges on personnel until completion of an approved remedial driver training course or alcohol or drug counseling programs after proof is provided.
(d) Commanders may extend a suspension or revocation of driving privileges on civilian personnel convicted of intoxicated driving on the installation until successful completion of a state or installation approved alcohol or drug rehabilitation program.
(e) For Navy personnel for good cause, the appropriate authority may withdraw the restricted driving privilege and continue the suspension or revocation period (for example, driver at fault in the traffic accident, or driver cited for a moving violation).
Reinstatement of driving privileges shall be automatic, provided all revocations applicable have expired, proper proof of completion of remedial driving course and/or substance abuse counseling has been provided, and reinstatement requirements of individual's home state and/or state the individual may have been suspended in, have been met.
(a) Services may require motor vehicle registration according to guidance in this regulation and in policies of each Service and DLA. A person who lives or works on an installation or often uses the facilities may be required to register his or her vehicle. Where required, individuals who access the installation for regular activities such as use of medical facilities and regular recurring activities on the installation should register their vehicles according to a standard operating procedure established by the installation commander. The person need not own the vehicle to register it, but must have a lease agreement, power of attorney, or notarized statement from the owner of the vehicle specifying the inclusive dates for which permission to use the vehicle has been granted.
(b) Vehicles intended for construction and material handling, or used solely off the road, are usually not registered as motor vehicles. Installation commanders may require registration of off-road vehicles and bicycles under a separate local system.
(c) Commanders can grant limited temporary registration for up to 30 days, pending permanent registration, or in other circumstances for longer terms.
(d)
(e) Rental vehicles are considered POVs for purposes of installation entry and access control. The vehicle rental contract will suffice as proper licensing, registration and insurance for installation access.
(f) Army Installation commanders may establish local visitor identification for individuals who will be on installation for less than 30 days. The local policy will provide for use of temporary passes that establish a start and end date for which the pass is valid. Army installation commanders must refer to AR 190-13, chapter 8, for guidance concerning installation access control (Air Force, see AFI 31-113). Other Armed Services and DLA may develop and issue visitor passes locally.
(g) The conditions in § 634.20 must be met to operate a POV on an Army and DLA Installation. Other Armed Services that do not require registration will enforce § 634.20 through traffic enforcement actions. Additionally, failure to comply with § 634.20 may result in administrative suspension or revocation of driving privileges.
Personnel seeking to register their POVs on military installations within the United States or its territories and in overseas areas will comply with the following requirements. (Registration in overseas commands may be modified in accordance with international agreements or military necessity.)
(a) Possess a valid state, overseas command, host nation or international drivers license (within appropriate classification), supported by a DD Form 2-Series Identification Card, or other appropriate identification for DOD civilians, contractors and retirees.
(b) Possess a certificate of state registration as required by the state in which the vehicle is registered.
(c) Comply with the minimum requirements of the automobile insurance laws or regulations of the state or host nation. In overseas commands where host nation laws do not require minimum personal injury and property damage liability insurance, the major overseas commander will set reasonable liability insurance requirements for registration and/or operation of POVs within the confines of military installations and areas where the commander exercises jurisdiction. Prior to implementation, insurance requirements in host states or nations should be formally coordinated with the appropriate host agency.
(d) Satisfactorily complete a safety and mechanical vehicle inspection by the state or jurisdiction in which the vehicle is licensed. If neither state nor local jurisdiction requires a periodic safety inspection, installation commanders may require and conduct an annual POV safety inspection; however, inspection facilities must be reasonably accessible to those requiring use. Inspections will meet minimum standards established by the National Highway Traffic Safety Administration (NHTSA) in 49 CFR part 570. Lights, turn signals, brake lights, horn, wipers, and pollution control devices and standards in areas where applicable, should be included in the inspection. Vehicles modified from factory standards and determined unsafe may be denied access and registration.
(e) Possess current proof of compliance with local vehicle emission inspection if required by the state, and maintenance requirements.
(f) Vehicles that have been modified in an unsafe manner, as determined by an inspection that is consistent with the standards in 49 CFR part 570, will be denied registration.
(1) Each Service and DLA will procure its own forms and installation and expiration tabs. For the Army, the basic decal will be ordered through publications channels and remain on the vehicle until the registered owner disposes of the vehicle, separates from active duty or other conditions specified in paragraph (a)(2) of this section. Air Force, DLA, and Army retirees may retain DD Form 2220. Service retirees may be required to follow the same registration procedures as active duty personnel. Upon termination of affiliation with the Service, the registered owner or authorized operator is responsible for removing the DD Form 2220 from the vehicle and surrender of the decal to the issuing office. Service installations requiring registration are responsible for the costs of procuring decals with the name of their installation and related expiration tabs.
(2) Services and DLA, will require removal of the DD Form 2220, and installation and expiration tabs from POVs by the owner prior to departure from their current installation, retirement, or separation from military or Government affiliation, termination of ownership, registration, liability insurance, or other conditions further identified by local policy.
(b)
(ii) Alphanumeric individual form identification number.
(iii) DOD seal.
(2) Name of the installation will be specified on a separate tab abutting the decal. Each Service or DLA may choose optional color codes for the registrant. Army and installations having vehicle registration programs will use the following standard color scheme for the installation tab:
(i) Blue-officers.
(ii) Red-enlisted.
(iii) Green DA civilian employees (including NAF employees).
(iv) Black-contractor personnel and other civilians employed on the installation. White will be used for contract personnel on Air Force installations.
(3) An expiration tab identifying the month and year (6-2004), the year (2000) or simply “00” will be abutted to right of the decal. For identification purposes, the date of expiration will be shown in bold block numbers on a lighter contrasting background such as traffic yellow, lime, or orange.
(4) DD Form 2220 and any adjoining tabs will be theft resistant when applied to glass, metal, painted, or rubberized surfaces and manufactured so as to obliterate or self destruct when removal is attempted. Local policy guided by state or host nation laws will specify the exact placement of DD Form 2220.
(5) Services may issue military and retired personnel grade insignia that will be affixed on placards, approximately five inches by eight inches in size, and placed on the driver's side dashboard. Placards should be removed from view when the vehicle is not located on a military installation.
(a) For Army installations only, a serial-numbered Gold Star vehicle identification decal may be issued in accordance with guidance from the Army's Office of the Assistant Chief of Staff for Installation Management. The decals may be obtained through Army installation Survivor Outreach Services and may serve as a temporary vehicle registration in accordance with DoD security standards.
(b) Gold Star decals issued to identify Surviving Family Members of deceased Soldiers may be used to identify POVs and expedite processing for installation access.
(c) Gold Star decals do not exempt vehicles and passengers from DOD and Army installation access screening procedures.
(d) A physical and visual inspection of ID cards shall be conducted by security forces when required for installation access.
Installation commanders or their designated representatives will terminate POV registration or deny initial registration under the following conditions (decal and tabs will be removed from the vehicle when registration is terminated):
(a) The owner fails to comply with the registration requirements.
(b) The owner sells or disposes of the POV, is released from active duty, separated from the Service, or terminates civilian employment with a military Service or DOD agency. Army and Air Force personnel on a permanent change of station will retain the DD Form 2220 if the vehicle is moved to their new duty station.
(c) The owner is other than an active duty military or civilian employee and discontinues regular operations of the POV on the installation.
(d) The owner's state, overseas command, or host nation driver's license is suspended or revoked, or the installation driving privilege is revoked. Air Force does not require removal of the DD Form 2220 when driving privileges are suspended for an individual. When vehicle registration is terminated in conjunction with the revocation of installation driving privileges, the affected person must apply to re-register the POV after the revocation expires. Registration should not be terminated if other family members having installation driving privileges require use of the vehicle.
Personnel registering POVs on DOD installations must consent to the impoundment policy. POV registration forms will contain or have appended to them a certificate with the following statement: “I am aware that (insert number and title of separate Service or DLA directive) and the installation traffic code provide for the removal and temporary impoundment of privately owned motor vehicles that are either parked illegally, or for unreasonable periods, interfering with military operations, creating a safety hazard, disabled by accident, left unattended in a restricted or control area, or abandoned. I agree to reimburse the United States for the cost of towing and storage should my motor vehicle(s), because of such circumstances, be removed and impounded.”
(a) Safe and efficient movement of traffic on an installation requires traffic supervision. A traffic supervision program includes traffic circulation planning and control of motor vehicle traffic; publication and enforcement of traffic laws and regulations; and investigation of motor vehicle accidents.
(b) Installation commanders will develop traffic circulation plans that provide for the safest and most efficient use of primary and secondary roads. Circulation planning should be a major part of all long-range master planning at installations. The traffic circulation plan is developed by the installation law enforcement officer, engineer, safety officer, and other concerned staff agencies. Highway engineering
(1) Normal and peak load routing based on traffic control studies.
(2) Effective control of traffic using planned direction, including measures for special events and adverse road or weather conditions.
(3) Point control at congested locations by law enforcement personnel or designated traffic directors or wardens, including trained school-crossing guards.
(4) Use of traffic control signs and devices.
(5) Efficient use of available parking facilities.
(6) Efficient use of mass transportation.
(c) Traffic control studies will provide factual data on existing roads, traffic density and flow patterns, and points of congestion. The installation law enforcement officer and traffic engineer usually conduct coordinated traffic control studies to obtain the data. Accurate data will help determine major and minor routes, location of traffic control devices, and conditions requiring engineering or enforcement services.
(d) The (Military) Surface Deployment and Distribution Command Transportation Engineering Agency (SDDCTEA) will help installation commanders solve complex highway traffic engineering problems. SDDCTEA traffic engineering services include—
(1) Traffic studies of limited areas and situations.
(2) Complete studies of traffic operations of entire installations. (This can include long-range planning for future development of installation roads, public highways, and related facilities.)
(3) Assistance in complying with established traffic engineering standards.
(e) Installation commanders should submit requests for traffic engineering services in accordance with applicable service or agency directives.
(a) Installation or activity commanders will establish a traffic code for operation of motor vehicles on the installation. Commanders in overseas areas will establish a traffic code, under provisions of this Part, to the extent military authority is empowered to regulate traffic on the installation under the applicable SOFA. Traffic codes will contain the rules of the road (parking violations, towing instructions, safety equipment, and other key provisions). These codes will, where possible, conform to the code of the State or host nation in which the installation is located. In addition, the development and publication of installation traffic codes will be based on the following:
(1) State Highway Safety Program Standards (23 U.S.C. 402).
(2) Applicable portions of the Uniform Vehicle Code and Model Traffic Ordinance published by the National Committee on Uniform Traffic Laws and Ordinances.
(b) The installation traffic code will contain policy and procedures for the towing, searching, impounding, and inventorying of POVs. These provisions should be well publicized and contain the following:
(1) Specific violations and conditions under which the POV will be impounded and towed.
(2) Procedures to immediately notify the vehicle owner.
(3) Procedures for towing and storing impounded vehicles.
(4) Actions to dispose of the vehicle after lawful impoundment.
(5) Violators are responsible for all costs of towing, storage and impounding of vehicles for other than evidentiary reasons.
(c) Installation traffic codes will also contain the provisions discussed as follows: (Army users see AR 385-10).
(1) Motorcycles and mopeds. For motorcycles and other self-propelled, open, two-wheel, three-wheel, and four-wheel vehicles powered by a motorcycle-type engine, the following traffic rules apply:
(i) Headlights will be on at all times when in operation.
(ii) A rear view mirror will be attached to each side of the handlebars.
(iii) Approved protective helmets (DOT compliance), eye protection, sturdy over-the-ankle footwear that affords protection for the feet and ankles, and protective clothing including long-sleeved shirt or jacket, long trousers, and full-fingered gloves or mittens made from leather or other abrasion-resistant material must be worn by operators and passengers when in operation. Motorcycle jackets and pants constructed of abrasion-resistant materials such as leather, Kevlar®, or Cordura® and containing impact-absorbing padding are strongly encouraged. Riders are encouraged to select PPE that incorporates fluorescent colors and retro-reflective material.
(2)
(ii) Restraint systems will be worn by all civilian personnel (including family members, guests, and visitors) driving or riding in a POV on the installation.
(iii) Restraint systems will be worn by all military service members and Reserve Component members on active Federal service driving or riding in a POV whether on or off the installation.
(iv) Each occupant riding in a passenger motor vehicle who is under eight years of age, weighs less than 65 pounds and is less than four feet, nine inches in height must be secured in an age-appropriate child restraint.
(v) Restraint systems are required only in vehicles manufactured after model year 1966.
(3) Driver Distractions. Vehicle operators on a DoD installation and operators of Government owned vehicles, as well as Federal employees (including service members) operating a POV on official government business or using electronic equipment provided by the Government while driving, will not use a personal wireless communication device, including for text messaging or any other form of electronic data retrieval or electronic data communication, unless the vehicle is safely parked or unless they are using a hands-free device. The wearing of any other portable headphones, earphones, or other listening devices (except for hands-free use of cellular phones) while operating a motor vehicle is prohibited. Use of those devices impairs driving and masks or prevents recognition of emergency signals, alarms, announcements, the approach of vehicles, and human speech. The DOD component safety guidance should note the potential for driver distractions such as eating and drinking, operating radios, CD players, global positioning equipment, and so on. Whenever possible this should only be done when the vehicle is safely parked.
(d) Only administrative actions (reprimand, assessment of points, loss of on-post driving privileges, or other actions) will be initiated against service members for off-post violations of the installation traffic code.
(e) In States where traffic law violations are State criminal offenses, such laws are made applicable under the provisions of 18 U.S.C. 13 to military installations having concurrent or exclusive Federal jurisdiction.
(f) In those States where violations of traffic law are not considered criminal offenses and cannot be assimilated under 18 U.S.C., DODD 5525.4, enclosure 1 expressly adopts the vehicular and pedestrian traffic laws of
(g) In those States where violations of traffic laws cannot be assimilated because the Federal Government's jurisdictional authority on the installation or parts of the installation is only proprietary, neither 18 U.S.C. 13 nor the delegation memorandum in DoDD 5525.4, enclosure 1, will permit enforcement of the State's traffic laws in Federal courts. Law enforcement authorities on those military installations must rely on either administrative sanctions related to the installation driving privilege or enforcement of traffic laws by State law enforcement authorities.
(a) Traffic law enforcement should motivate drivers to operate vehicles safely within traffic laws and regulations and maintain an effective and efficient flow of traffic. Effective enforcement should emphasize voluntary compliance by drivers and can be achieved by the following actions:
(1) Publishing a realistic traffic code well known by all personnel.
(2) Adopting standard signs, markings, and signals in accordance with NHSPS and the Manual on Uniform Traffic Control Devices for Streets and Highways.
(3) Ensuring enforcement personnel establish courteous, personal contact with drivers and act promptly when driving behavior is improper or a defective vehicle is observed in operation.
(4) Maintaining an aggressive program to detect and apprehend persons who drive while privileges are suspended or revoked.
(5) Using sound discretion and judgment in deciding when to apprehend, issue citations, or warn the offender.
(b) Selective enforcement will be used when practical. Selective enforcement deters traffic violations and reduces accidents by the presence or suggested presence of law enforcement personnel at places where violations, congestion, or accidents frequently occur. Selective enforcement applies proper enforcement measures to traffic congestion and focuses on selected time periods, conditions, and violations that cause accidents. Law enforcement personnel use selective enforcement because that practice is the most effective use of resources.
(c) Enforcement activities against intoxicated driving will include—
(1) Detecting, apprehending, and testing persons suspected of driving under the influence of alcohol or drugs.
(2) Training law enforcement personnel in special enforcement techniques.
(3) Enforcing blood-alcohol concentration standards. (See § 634.35).
(4) Denying installation driving privileges to persons whose use of alcohol or other drugs prevents safe operation of a motor vehicle.
(d) Installation officials will formally evaluate traffic enforcement on a regular basis. That evaluation will examine procedures to determine if the following elements of the program are effective in reducing traffic accidents and deaths:
(1) Selective enforcement measures;
(2) Suspension and revocation actions; and
(3) Chemical breath-testing programs.
Speed-measuring devices will be used in traffic control studies and enforcement programs. Signs may be posted to indicate speed-measuring devices are being used.
(a)
(b)
(2) Installation commanders located in States or overseas areas where no formal training program exists, or where the military personnel are unable or ineligible to participate in police traffic radar training programs, may implement their own training program or use a selected civilian institution or manufacturer's course.
(3) The objective of the civilian or manufacturer-sponsored course is to improve the effectiveness of speed enforcement through the proper and efficient use of speed-measurement radar. On successful completion, the course graduate must be able to—
(i) Describe the association between excessive speed and accidents, deaths, and injuries, and describe the traffic safety benefits of effective speed control.
(ii) Describe the basic principles of radar speed measurement.
(iii) Identify and describe the Service's policy and procedures affecting radar speed measurement and speed enforcement.
(iv) Identify the specific radar instrument used and describe the instrument's major components and functions.
(v) Demonstrate basic skills in checking calibration and operating the specific radar instrument(s).
(vi) Demonstrate basic skills in preparing and presenting records and courtroom testimony relating to radar speed measurement and enforcement.
(c)
Installation law enforcement personnel must make detailed investigations of accidents described in this section:
(a) Accidents involving Government vehicles or Government property on the installation involving a fatality, personal injury, or estimated property damage in the amount established by separate Service/DLA policy. (Minimum damage limits are: Army, $1,000; Air Force, as specified by the installation commander; Navy and Marine Corps, $500.) The installation motor pool will provide current estimates of the cost of repairs. Investigations of off-installation accidents involving Government vehicles will be made in cooperation with the civilian law enforcement agency.
(b) POV accidents on the installation involving a fatality, personal injury, or when a POV is inoperable as a result of an accident.
(c) Any accident prescribed within a SOFA agreement.
(a)
(b)
(c)
(d)
(1) Drivers or owners of POVs will be required to submit a written report to the installation law enforcement office within 24 hours of an accident in the following cases, with all information listed in paragraph (d)(3) of this section:
(i) The accident occurs on the installation.
(ii) The accident involves no personal injury.
(iii) The accident involves only minor damage to the POV and the vehicle can be safely and normally driven from the scene under its own power.
(2) Information in the written report cannot be used in criminal proceedings against the person submitting it unless it was originally categorized a hit and run and the violator is the person submitting the report. Rights advisement will be given prior to any criminal traffic statements provided by violators. Within the United States, the installation law enforcement official may require such reporting on Service forms or forms of the State jurisdiction.
(3) Reports required in paragraph (d)(1) of this section by the Army will include the following about the accident:
(i) Location, date, and time.
(ii) Identification of all drivers, pedestrians, and passengers involved.
(iii) Identification of vehicles involved.
(iv) Speed and direction of travel of each vehicle involved, including a sketch of the collision and roadway with street names and north arrow.
(v) Property damage involved.
(vi) Environmental conditions at the time of the incident (weather, visibility, road surface condition, and other factors).
(vii) A narrative description of the events and circumstances concerning the accident.
(a) Data derived from traffic accident investigation reports and from vehicle owner accident reports will be analyzed to determine probable causes of accidents. When frequent accidents occur at a location, the conditions at the location and the types of accidents (collision diagram) will be examined.
(b) Law enforcement personnel and others who prepare traffic accident investigation reports will document on DA Form 3975, Military Police Report or other Service equivalent, whether or not seat restraint devices were being used at the time of the accident.
(c) When accidents warrant, an installation commander may establish a traffic accident review board. The board will consist of law enforcement, engineer, safety, medical, and legal personnel. The board will determine principal factors leading to the accident and recommend measures to reduce the number and severity of accidents on and off the installation. (The Air Force will use Traffic Safety Coordinating Groups. The Navy will use Traffic Safety Councils per OPNAVINST 5100.12 Series).
(d) Data will be shared with the installation legal, engineer, safety, and transportation officers. The data will be used to inform and educate drivers and to conduct traffic engineering studies.
(e) Army traffic accident investigation reports will be provided to Army Centralized Accident Investigation of Ground Accidents (CAIG) boards on request. The CAIG boards are under the control of the Commander, U.S. Army Safety Center, Fort Rucker, AL 36362-5363. These boards investigate Class A, on-duty, non-POV accidents and other selected accidents Army-wide (See AR 385-40). Local commanders provide additional board members as required to complete a timely and accurate investigation. Normally, additional board members are senior equipment operators, maintenance officers, and medical officers. However, specific qualifications of the additional board members may be dictated by the nature of the accident.
(f) The CAIG program is not intended to interfere with, impede, or delay law enforcement agencies in the execution of regulatory responsibilities that apply to the investigation of accidents for a determination of criminal intent or criminal acts. Criminal investigations have priority.
(g) Army law enforcement agencies will maintain close liaison and cooperation with CAIG boards. Such cooperation, particularly with respect to interviews of victims and witnesses and in collection and preservation of physical evidence, should support both the CAIG and law enforcement collateral investigations.
(a) The most efficient use of existing on- and off-street parking space should be stressed on a non-reserved (first-come, first-served) basis.
(b) Reserved parking facilities should be designated as parking by permit or numerically by category of eligible parkers. Designation of parking spaces by name, grade, rank, or title should be avoided.
(c) Illegal parking contributes to congestion and slows traffic flow on an installation. Strong enforcement of parking restrictions results in better use of available parking facilities and eliminates conditions causing traffic accidents.
(d) The “Denver boot” device is authorized for use as a technique to assist in the enforcement of parking violations where immobilization of the POV is necessary for safety. Under no circumstances should the device be used to punish or “teach a lesson” to violators. Booting should not be used if other reasonably effective but less restrictive means of enforcement (such as warnings, ticketing, reprimands, revocations, or suspensions of on-post driving privileges) are available. Procedures for booting must be developed as follows:
(1) Local standing operating procedures (SOPs) must be developed to control the discretion of enforcers and limit booting to specific offenses. SOPs should focus on specific reasons for booting, such as immobilization of unsafe, uninspected, or unregistered vehicles or compelling the presence of repeat offenders. All parking violations must be clearly outlined in the installation traffic code.
(2) Drivers should be placed on notice that particular violations or multiple violations may result in booting. Also, drivers must be provided with a prompt hearing and an opportunity to obtain the release of their property.
(3) To limit liability, drivers must be warned when a boot is attached to their vehicle and instructed how to have the boot removed without damaging the vehicle.
(a) Most traffic violations occurring on DOD installations (within the UNITED STATES or its territories) should be referred to the proper U.S. Magistrate. (Army, see AR 190-45; DLA, see DLA One Book Process Chapter, Criminal Offenses and U.S. Federal Court Procedures; and Air Force, see AFI 51-905). However, violations are not referred when—
(1) The operator is driving a Government vehicle at the time of the violation.
(2) A Federal Magistrate is either not available or lacks jurisdiction to hear the matter because the violation occurred in an area where the Federal Government has only proprietary legislative jurisdiction.
(3) Mission requirements make referral of offenders impractical.
(4) A U.S. Magistrate is available but the accused refuses to consent to the jurisdiction of the court and the U.S. Attorney refuses to process the case before a U.S. District Court. For the Navy, DUI and driving under the influence of drugs cases will be referred to the Federal Magistrate.
(b) Installation commanders will establish administrative procedures for processing traffic violations.
(1) All traffic violators on military installations will be issued either a DD Form 1408 (Armed Forces Traffic Ticket) or a Central Violations Bureau (CVB) United States District Court Violation Notice (DCVN), as appropriate. Unless specified otherwise by separate Service/DLA policy, only on-duty law enforcement personnel (including game wardens) designated by the installation law enforcement officer may issue these forms. Air Force individuals certified under the Parking Traffic Warden Program may issue DD Form 1408 in areas under their control.
(2) A copy of all reports on military personnel and DOD civilian employees apprehended for intoxicated driving will be forwarded to the installation alcohol and drug abuse facility.
(c) Installation commanders will establish procedures used for disposing of traffic violation cases through administrative or judicial action consistent with the Uniform Code of Military Justice (UCMJ) and Federal law.
(d) The CVB will be used to refer violations of State traffic laws made applicable to the installation (Assimilative Crimes Act (18 U.S.C. 13) and the delegation memorandum in DoDD 5525.4, enclosure 1, and other violations of Federal law) to the U.S. Magistrate. (Army users, see AR 190-45.)
(1) A copy of DD Form 1805 and any traffic violation reports on military personnel and DOD civilian employees will be forwarded to the commander or supervisor of the violator. DA form 3975 may be use to forward the report.
(2) Detailed instructions for properly completing the CVB are contained in separate Service policy directives.
(3) The assimilation of State traffic laws as Federal offenses should be identified by a specific State code reference in the CODE SECTION block of the CVB (or in a complaint filed with the U.S. Magistrate).
(4) The Statement of Probable Cause on the CVB will be used according to local staff judge advocate and U.S. Magistrate court policy. The Statement of Probable Cause is required by the Federal misdemeanor rules to support the issuance of a summons or arrest warrant.
(5) For cases referred to U.S. Magistrates, normal distribution of the CVB will be as follows:
(i) The installation law enforcement official will forward copy 1 (white) and copy 2 (yellow) to the U.S. District Court (Central Violation Bureau).
(ii) The installation law enforcement office will file copy 3 (pink).
(iii) Law enforcement personnel will provide copy 4 (envelope) to the violator.
(e) When DD Form 1408 is used, one copy (including written warnings) will be forwarded through command channels to the service member's commander, to the commander of the military family member's sponsor, or to the civilian's supervisor or employer as the installation commander may establish.
(1) Previous traffic violations committed by the offender and points assessed may be shown.
(2) For violations that require a report of action taken, the DD Form 1408 will be returned to the office of record through the reviewing authority as the installation commander may establish.
(3) When the report is received by the office of record, that office will enter the action on the violator's driving record.
(a) As a minimum, installation law enforcement personnel will be trained to do the following:
(1) Recognize signs of alcohol and other drug impairment in persons operating motor vehicles.
(2) Prepare DD Form 1920 (Alcohol Influence Report).
(3) Perform the three field tests of the improved sobriety testing techniques (§ 634.36[b]).
(4) Determine when a person appears intoxicated but is actually physically or mentally ill and requires prompt medical attention.
(5) Understand the operation of breath-testing devices.
(b) Each installation using breath-testing devices will ensure that operators of these devices—
(1) Are chosen for integrity, maturity, and sound judgment.
(2) Meet certification requirements of the State where the installation is located.
(c) Installations located in States or overseas areas having a formal breath-testing and certification program should ensure operators attend that training.
(d) Installations located in States or overseas areas with no formal training program will train personnel at courses offered by selected civilian institutions or manufacturers of the equipment.
(e) Operators must maintain proficiency through refresher training every 18 months or as required by the State.
(a) Administrative revocation of driving privileges and other enforcement measures will be applied uniformly to offenders driving under the influence of alcohol or drugs. When a person is tested under the implied consent provisions of § 634.8, the results of the test will be evaluated as follows:
(1) If the percentage is 0.05 but less than 0.08, presume the person may be impaired. This standard may be considered with other competent evidence in determining whether the person was under the influence of alcohol.
(2) If the percentage is 0.08 or more, or if tests reflect the presence of illegal drugs, the person was driving while intoxicated.
(b) Percentages in paragraph (a) of this section are percent of weight by volume of alcohol in the blood based on grams of alcohol per 100 milliliters of blood. These presumptions will be considered with other evidence in determining intoxication.
(a)
(1) Blood, urine, or other bodily substances are tested using generally
(2) Breath tests are administered by qualified personnel (§ 634.33).
(3) An evidential breath-testing device approved by the State or host nation is used. For Army, Air Force, and Marine Corps, the device must also be listed on the NHTSA “Conforming Products List of Evidential Breath Measurement Devices” (77 FR 35747, and subsequent updates that NHTSA may publish periodically in the
(4) Procedures established by the State or host nation or as prescribed in paragraph (b) of this section are followed.
(b)
(1) Screening breath-testing devices will be used—
(i) During the initial traffic stop as a field sobriety testing technique, along with other field sobriety testing techniques, to determine if further testing is needed on an evidential breath-testing device.
(ii) According to manufacture operating instructions. (For Army, Air Force, and Marine Corps, the screening breath-testing device must also be listed on the NHTSA “Conforming Products List of Evidential Breath Measurement Devices” (see paragraph (a)(3) of this section).
(2) Evidential breath-testing devices will be used as follows:
(i) Observe the person to be tested for at least 15 minutes before collecting the breath specimen. During this time, the person must not drink alcoholic beverages or other fluids, eat, smoke, chew tobacco/gum, or ingest any substance.
(ii) Verify calibration and proper operation of the instrument by using a control sample immediately before the test.
(iii) Comply with operational procedures in the manufacturer's current instruction manual.
(iv) Perform preventive maintenance as required by the instruction manual.
(c)
(i) The death of any person involved in a motor vehicle accident.
(ii) The circumstances surrounding such an accident, based on information available at the time of admission or receipt of the body of the victim.
(2) Medical authorities will examine the bodies of those persons killed in a motor vehicle accident to include drivers, passengers, and pedestrians subject to military jurisdiction. They will also examine the bodies of family members, who are 16 years of age or older, if the sponsors give their consent. Tests for the presence and concentration of alcohol or other drugs in the person's blood, bodily fluids, or tissues will be made as soon as possible and where practical within eight hours of death. The test results will be included in the medical reports.
(3) As provided by law and medical conditions permitting, a blood or breath sample will be obtained from any surviving operator whose vehicle is involved in a fatal accident.
(a) Law enforcement personnel usually detect drivers under the influence of alcohol or other drugs by observing unusual or abnormal driving behavior. Drivers showing such behavior will be stopped immediately. The cause of the unusual driving behavior will be determined, and proper enforcement action will be taken.
(b) When a law enforcement officer reasonably concludes that the individual driving or in control of the vehicle is impaired, field sobriety tests should be conducted on the individual. The DD Form 1920 may be used by law enforcement agencies in examining, interpreting, and recording results of such tests. Law enforcement personnel should use the Standardized Field Sobriety Test battery as sanctioned by the National Highway Traffic Safety Administration (consisting of three tests: The horizontal gaze nystagmus test, Walk and Turn, and One-Leg Stand) and screening breath-testing devices to conduct field sobriety tests.
(a) Implied consent policy is explained in § 634.8.
(b) Tests may be administered only if the following conditions are met:
(1) The person was lawfully stopped while driving, operating, or in actual physical control of a motor vehicle on the installation.
(2) Reasonable suspicion exists to believe that the person was driving under the influence of alcohol or drugs.
(3) A request was made to the person to consent to the tests combined with a warning that failure to voluntarily submit to or complete a chemical test of bodily fluids or breath will result in the revocation of driving privileges.
(c) As stated in paragraphs (a) and (b) of this section, the law enforcement official relying on implied consent will warn the person that driving privileges will be revoked if the person fails to voluntarily submit to or complete a requested chemical test. The person does not have the right to have an attorney present before stating whether he or she will submit to a test, or during the actual test. Installation commanders will prescribe the type or types of chemical tests to be used. Testing will follow policies and procedures in § 634.35. The results of chemical tests conducted under the implied consent provisions of this part may be used as evidence in courts-martial, non-judicial proceedings under Article 15 of the UCMJ, administrative actions, and civilian courts.
(d) Special rules exist for persons who have hemophilia, other blood-clotting disorders, or any medical or surgical disorder being treated with an anticoagulant. These persons—
(1) May refuse a blood extraction test without penalty.
(2) Will not be administered a blood extraction test to determine alcohol or other drug concentration or presence under this part.
(3) May be given breath or urine tests, or both.
(e) If a person suspected of intoxicated driving refuses to submit to a chemical test, a test will not be administered except as specified in § 634.39.
(a)
(1) Air Force policy on nonconsensual extraction of blood samples is addressed in AFI 44-102.
(2) Army and Marine Corps personnel should not undertake the nonconsensual extraction of body fluids
(3) DLA policy on nonconsensual taking of blood samples is contained in the DLA One Book Process Chapter, Search and Seizure.
(b)
(1) An individual subject to the UCMJ who was driving a motor vehicle and suspected of being under the influence of an intoxicant may be subjected to a nonconsensual bodily fluid extraction to test for the presence of intoxicants only when there is a probable cause to believe that such an individual was driving or in control of a vehicle while under the influence of an intoxicant.
(i) A search authorization by an appropriate commander or military magistrate obtained pursuant to the Manual for Courts-Martial, United States, Military Rule of Evidence 315 (2002) is required prior to such nonconsensual extraction.
(ii) A search authorization is not required under such circumstances when there is a clear indication that evidence of intoxication will be found and there is reason to believe that the delay necessary to obtain a search authorization would result in the loss or destruction of the evidence sought.
(iii) Because warrantless searches are subject to close scrutiny by the courts, obtaining an authorization is highly preferable. Warrantless searches generally should be conducted only after coordination with the servicing staff judge advocate or legal officer, and attempts to obtain authorization from an appropriate official prove unsuccessful due to the unavailability of a commander or military magistrate.
(2) If authorization from the military magistrate or commander proves unsuccessful due to the unavailability of such officials, the commander of a medical facility is empowered by the Manual for Courts-Martial, United States, Military Rule of Evidence 315 (2002), to authorize such extraction from an individual located in the facility at the time the authorization is sought.
(i) Before authorizing the involuntary extraction, the commander of the medical facility should, if circumstances permit, coordinate with the servicing staff judge advocate or legal officer.
(ii) The medical facility commander authorizing the extraction under the Manual for Courts-Martial, United States, Military Rule of Evidence 315 (2002) need not be on duty as the attending physician at the facility where the extraction is to be performed and the actual extraction may be accomplished by other qualified medical personnel.
(iii) The authorizing official may consider his or her own observations of the individual in determining probable cause.
(c)
(1) In performing this duty, medical personnel are expected to use only that amount of force that is reasonable and necessary to administer the extraction.
(2) Any force necessary to overcome an individual's resistance to the extraction normally will be provided by law enforcement personnel or by personnel acting under orders from the member's unit commander.
(3) Life endangering force will not be used in an attempt to effect nonconsensual extractions.
(4) All law enforcement and medical personnel will keep in mind the possibility that the individual may require medical attention for possible disease or injury.
(d) Nonconsensual extractions of blood will be done in a manner that will not interfere with or delay proper medical attention. Medical personnel will determine the priority to be given involuntary blood extractions when other medical treatment is required.
(e) Use of Army medical treatment facilities and personnel for blood alcohol testing has no relevance to whether or not the suspect is eligible for military medical treatment. The medical effort in such instances is in support of a valid military mission (law enforcement), not related to providing medical treatment to an individual.
(a) A person subject to tests under § 634.8 may request that an additional test be done privately. The person may choose a doctor, qualified technician, chemist, registered nurse, or other qualified person to do the test. The person must pay the cost of the test. The test must be a chemical test approved by the State or host nation in an overseas command.
(b) If the tests are requested, the apprehended person is responsible for making all arrangements.
(c) All tests will be completed without unnecessary delay, within two hours of detention if possible.
(d) If the suspect fails to or is unable to obtain any additional tests, the results of the tests that were done at the direction of a law enforcement official remain valid and may still be used to support actions under separate Service regulations, UCMJ, and the U.S. Magistrate Court.
In areas not under military control, civil authorities enforce traffic laws. Law enforcement authorities will establish a system to exchange information with civil authorities. Army and Air Force installation law enforcement authorities will establish a system to exchange information with civil authorities to enhance the chain of command's visibility of a soldier's and airman's off post traffic violations. These agreements will provide for the assessment of traffic points based on reports from state licensing authorities involving Army military personnel. The provisions of Subpart E of this part and the VRS automated system provide for the collection of off post traffic incident reports and data. As provided in AR 190-45, civilian law enforcement agencies are considered routine users of Army law enforcement data and will be granted access to data when available from Army law enforcement systems of records. Off-installation traffic activities in overseas areas are governed by formal agreements with the host nation government. Procedures should be established to process reports received from civil authorities on serious traffic violations, accidents, and intoxicated driving incidents involving persons subject to this part. The exchange of information is limited to Army and Air Force military personnel. Provost marshals will not collect and use data concerning civilian employees, family members, and contract personnel except as allowed by state and Federal laws.
(a) Installation commanders will inform service members, contractors and DOD civilian employees to comply with State and local traffic laws when operating government motor vehicles.
(b) Commanders will coordinate with the proper civil law enforcement agency before moving Government vehicles that exceed legal limits or regulations or that may subject highway users to unusual hazards. (See AR 55-162/OPNAVINST 4600.11D/AFJI 24-216/MCO 4643.5C).
(c) Installation commanders will maintain liaison with civil enforcement agencies and encourage the following:
(1) Release of a Government vehicle operator to military authorities unless one of the following conditions exists.
(i) The offense warrants detention.
(ii) The person's condition is such that further operation of a motor vehicle could result in injury to the person or others.
(2) Prompt notice to military authorities when military personnel or drivers of Government motor vehicles have—
(i) Committed serious violations of civil traffic laws.
(ii) Been involved in traffic accidents.
(3) Prompt notice of actions by a State or host nation to suspend, revoke, or restrict the State or host nation driver's license (vehicle operation privilege) of persons who—
(i) Operate Government motor vehicles.
(ii) Regularly operate a POV on the installation. (See also § 634.16).
(a)
(b)
Army installations will use DA Form 3626 (Vehicle Registration/Driver Record) to record vehicle traffic accidents, moving violations, suspension or revocation actions, and traffic point assessments involving military and DOD civilian personnel, their family members, and other personnel operating motor vehicles on a military installation. Other Services and DLA will use their service equivalent form for this purpose. Table 1 to part 634 prescribes mandatory minimum or maximum suspension or revocation periods. Traffic points are not assessed for suspension or revocation actions.
Violation: Driving while driver's license or installation driving privileges are under suspension or revocation.
Violation: Refusal to submit to or failure to complete chemical tests (implied consent).
Violation:
A. Manslaughter (or negligent homicide by vehicle) resulting from the operation of a motor vehicle.
B. Driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor (0.08% or greater on DOD installations; violation of civil law off post).
C. Driving a motor vehicle while under the influence of any narcotic, or while under the influence of any other drug (including alcohol) to the degree rendered incapable of safe vehicle operation.
D. Use of a motor vehicle in the commission of a felony. Fleeing the scene of an accident involving death or personal injury,
E. Perjury or making a false statement or affidavit under oath to responsible officials relating to the ownership or operation of motor vehicles.
F. Unauthorized use of a motor vehicle belonging to another, when the act does not amount to a felony.
Violation: A. Mental or physical impairment (not including alcohol or other drug use) to the degree rendered incompetent to drive.
B. Commission of an offense in another State which, if committed on the installation, would be grounds for suspension or revocation.
C. Permitting an unlawful or fraudulent use of an official driver's license.
D. Conviction of fleeing, or attempting to elude, a police officer.
E. Conviction of racing on the highway.
Violation: Receiving a second one-year suspension or revocation of driving privileges within five years.
1. When imposing a suspension or revocation because of an off-installation offense, the effective date should be the same as the date of civil conviction, or the date that State or host-nation driving privileges are suspended or revoked. This effective date can be retroactive.
2. No points are assessed for revocation or suspension actions. Except for implied consent violations, revocations must be based on a conviction by a civilian court or courts-martial, non-judicial punishment under Article 15, UCMJ, or a separate hearing as addressed in this part. If revocation for implied consent is combined with another revocation, such as one year for intoxicated driving, revocations may run consecutively (total of 24 months) or concurrently (total of 12 months). The installation commander's policy should be applied systematically and not on a case-by-case basis.
The traffic point system provides a uniform administrative device to impartially judge driving performance of Service and DLA personnel. This system is not a disciplinary measure or a substitute for punitive action. Further, this system is not intended to interfere in any way with the reasonable exercise of an installation commander's prerogative to issue, suspend, revoke, deny, or reinstate installation driving privileges.
(a) The Services and DLA are required to use the point system and procedures prescribed in this section without change.
(b) The point system in of this part applies to all operators of U.S. Government motor vehicles, on or off Federal property. The system also applies to violators reported to installation officials in accordance with § 634.46.
(c) Points will be assessed when the person is found to have committed a violation and the finding is by either the unit commander, civilian supervisor, a
A. Violation: Reckless driving (willful and wanton disregard for the safety of persons or property).
Points assessed: 6
B. Violation: Owner knowingly and willfully permitting a physically impaired person to operate the owner's motor vehicle.
Points assessed: 6
C. Violation: Fleeing the scene (hit and run)-property damage only.
Points assessed: 6
D. Violation: Driving vehicle while impaired (blood-alcohol content more than 0.05 percent and less than 0.08 percent).
Points assessed: 6
E. Violation: Speed contests.
Points assessed: 6
F. Violation: Speed too fast for conditions.
Points assessed: 2
G. Violation: Speed too slow for traffic conditions, and/or impeding the flow of traffic, causing potential safety hazard.
Points assessed: 2
H. Violation: Failure of operator or occupants to use available restraint system devices while moving (operator assessed points).
Points assessed: 2
I. Violation: Failure to properly restrain children in a child restraint system while moving (when child is 4 years of age or younger or the weight of child does not exceed 45 pounds).
Points assessed: 2
J. Violation: One to 10 miles per hour over posted speed limit.
Points assessed: 3
K. Violation: Over 10 but not more than 15 miles per hour above posted speed limit.
Points assessed: 4
L. Violation: Over 15 but not more than 20 miles per hour above posted speed limit.
Points assessed: 5
M. Violation: Over 20 miles per hour above posted speed limit.
Points assessed: 6
N. Violation: Following too close.
Points assessed: 4
O. Violation: Failure to yield right of way to emergency vehicle.
Points assessed: 4
P. Violation: Failure to stop for school bus or school-crossing signals.
Points assessed: 4
Q. Violation: Failure to obey traffic signals or traffic instructions of an enforcement officer or traffic warden; or any official regulatory traffic sign or device requiring a full stop or yield of right of way; denying entry; or requiring direction of traffic.
Points assessed: 4
R. Violation: Improper passing.
Points assessed: 4
S. Violation: Failure to yield (no official sign involved).
Points assessed: 4
T. Violation: Improper turning movements (no official sign involved).
Points assessed: 3
U. Violation: Wearing of headphones/earphones while driving motor vehicles (two or more wheels).
Points assessed: 3
V. Violation: Failure to wear an approved helmet and/or required protective equipment while operating or riding on a motorcycle, MOPED, or a three or four-wheel vehicle powered by a motorcycle-like engine.
Points assessed: 3
W. Violation: Improper overtaking.
Points assessed: 3
X. Violation: Other moving violations (involving driver behavior only).
Points assessed: 3
Y. Violation: Operating an unsafe vehicle. (See Note 2).
Points assessed: 2
Z. Violation: Driver involved in accident is deemed responsible (only added to points assessed for specific offenses).
Points assessed: 1
1. When two or more violations are committed on a single occasion, points may be assessed for each individual violation.
2. This measure should be used for other than minor vehicle safety defects or when a driver or registrant fails to correct a minor defect (for example, a burned out headlight not replaced within the grace period on a warning ticket).
(a) Reports of moving traffic violations recorded on DD Form 1408 or the CVB will serve as a basis for determining point assessment. For DD Form 1408, return endorsements will be required from commanders or supervisors.
(b) On receipt of DD Form 1408 or other military law enforcement report of a moving violation, the unit commander, designated supervisor, or person otherwise designated by the installation commander will conduct an inquiry. The commander will take or recommend proper disciplinary or administrative action. If a case involves judicial or non-judicial actions, the final report of action taken will not be forwarded until final adjudication.
(c) On receipt of the report of action taken (including action by a U.S. Magistrate Court on the CVB), the installation law enforcement officer will assess the number of points appropriate for the offense, and record the traffic points or the suspension or revocation of driving privileges on the person's driving record. Except as specified otherwise in this part and other Service/DLA regulations, points will not be assessed or driving privileges suspended or revoked when the report of action taken indicates that neither disciplinary nor administrative action was taken.
(d) Installation commanders may require the following driver improvement measures as appropriate:
(1) Advisory letter through the unit commander or supervisor to any person who has acquired six traffic points within a six-month period.
(2) Counseling or driver improvement interview, by the unit commander, of any person who has acquired more than six but less than 12 traffic points within a six-month period. This counseling or interview should produce recommendations to improve driver performance.
(3) Referral for medical evaluation when a driver, based on reasonable belief, appears to have mental or physical limits that have had or may have an adverse affect on driving performance.
(4) Attendance at remedial driver training to improve driving performance.
(5) Referral to an alcohol or drug treatment or rehabilitation facility for evaluation, counseling, or treatment. This action is required for active military personnel in all cases in which alcohol or other drugs are a contributing factor to a traffic citation, incident, or accident.
(e) An individual's driving privileges may be suspended or revoked as provided by this part regardless of whether these improvement measures are accomplished.
(f) Persons whose driving privileges are suspended or revoked (for one violation or an accumulation of 12 traffic points within 12 consecutive months, or 18 traffic points within 24 consecutive months) will be notified in writing through official channels (§ 634.11). Except for the mandatory minimum or maximum suspension or revocation periods prescribed above, the installation commander will establish periods of suspension or revocation. Any revocation based on traffic points must be no less than six months. A
(g) Points assessed against a person will remain in effect for point accumulation purposes for 24 consecutive months. The review of driver records to delete traffic points should be done routinely during records update while recording new offenses and forwarding records to new duty stations. Completion of a revocation based on points requires removal from the driver record of all points assessed before the revocation.
(h) Removal of points does not authorize removal of driving record entries for moving violations, chargeable accidents, suspensions, or revocations. Record entries will remain posted on individual driving records for the following periods of time.
(1) Chargeable nonfatal traffic accidents or moving violations-3 years.
(2) Non-mandatory suspensions or revocations-5 years.
(3) Mandatory revocations-7 years.
Procedures will be established to ensure prompt notice to the installation law enforcement office when a person assigned to or employed on the installation is being transferred to another installation, being released from military service, or ending employment.
(a) If persons being transferred to a new installation have valid points or other entries on the driving records, the law enforcement offices will forward the records to the law enforcement office of the gaining installation. Gaining installation law enforcement offices must coordinate with applicable commanders and continue any existing suspension or revocation based on intoxicated driving or accumulation of traffic points. Traffic points for persons being transferred will continue to accumulate as specified in § 634.46(g).
(b) Driving records of military personnel being discharged or released from active duty will be retained on file for two years and then destroyed. In cases of immediate reenlistment, change of officer component or military or civilian retirement when vehicle registration is continued, the record will remain active.
(c) Driving records of civilian personnel terminating employment will be retained on file for two years and then destroyed.
(d) Driving records of military family members containing point assessments or other entries will be forwarded to the sponsor's gaining installation in the same manner as for service members. At the new installation, records will be analyzed and made available temporarily to the sponsor's unit commander or supervisor for review.
(e) Driving records of retirees electing to retain installation driving privileges will be retained. Points accumulated or entries on the driver record regarding suspensions, revocations, moving violations, or chargeable accidents will not be deleted from driver records except per § 634.46(g) and (h).
(f) Army users will comply with paragraphs (a) and (d) of this section by mailing the individual's DA Form 3626 to the gaining installation Provost Marshal/Director of Emergency Services.
This Subpart provides the standards and procedures for law enforcement personnel when towing, inventorying, searching, impounding, and disposing of POVs. This policy is based on:
(a) The interests of the Services and DLA in crime prevention, traffic safety, and the orderly flow of vehicle traffic movement.
(b) The vehicle owner's constitutional rights to due process, freedom from unreasonable search and seizure, and freedom from deprivation of private property.
(a) POVs should not be impounded unless the vehicles clearly interfere with ongoing operations or movement of traffic, threaten public safety or convenience, are involved in criminal activity, contain evidence of criminal activity, or are stolen or abandoned.
(b) The impoundment of a POV would be inappropriate when reasonable alternatives to impoundment exist.
(1) Attempts should be made to locate the owner of the POV and have the vehicle removed.
(2) The vehicle may be moved a short distance to a legal parking area and temporarily secured until the owner is found.
(3) Another responsible person may be allowed to drive or tow the POV with permission from the owner, operator, or person empowered to control the vehicle. In this case, the owner, operator, or person empowered to control the vehicle will be informed that law enforcement personnel are not responsible for safeguarding the POV.
(c) Impounding of POVs is justified when any of the following conditions exist:
(1) The POV is illegally parked—
(i) On a street or bridge, in a tunnel, or is double parked, and interferes with the orderly flow of traffic.
(ii) On a sidewalk, within an intersection, on a cross-walk, on a railroad track, in a fire lane, or is blocking a driveway, so that the vehicle interferes with operations or creates a safety hazard to other roadway users or the general public. An example would be a vehicle parked within 15 feet of a fire hydrant or blocking a properly marked driveway of a fire station or aircraft-alert crew facility.
(iii) When blocking an emergency exit door of any public place (installation theater, club, dining hall, hospital, and other facility).
(iv) In a “tow-away” zone that is so marked with proper signs.
(2) The POV interferes with—
(i) Street cleaning or snow removal operations and attempts to contact the owner have been unsuccessful.
(ii) Emergency operations during a natural disaster or fire or must be removed from the disaster area during cleanup operations.
(3) The POV has been used in a crime or contains evidence of criminal activity.
(4) The owner or person in charge has been apprehended and is unable or unwilling to arrange for custody or removal.
(5) The POV is mechanically defective and is a menace to others using the public roadways.
(6) The POV is disabled by a traffic incident and the operator is either unavailable or physically incapable of having the vehicle towed to a place of safety for storage or safekeeping.
(7) Law enforcement personnel reasonably believe the vehicle is abandoned.
(a) Impounded POVs may be towed and stored by either the Services and DLA or a contracted wrecker service depending on availability of towing services and the local commander's preference.
(b) The installation commander will designate an enclosed area on the installation that can be secured by lock and key for an impound lot to be used by the military or civilian wrecker service. An approved impoundment area belonging to the contracted wrecker service may also be used provided the
(c) Temporary impoundment and towing of POVs for violations of the installation traffic code or involvement in criminal activities will be accomplished under the direct supervision of law enforcement personnel.
(a)
(2) The owner will be allowed three days from the date the POV is tagged to remove the vehicle before impoundment action is initiated. If the vehicle has not been removed after three days, it will be removed by the installation towing service or the contracted wrecker service. If a contracted wrecker service is used, a DD Form 2505 (Abandoned Vehicle Removal Authorization) will be completed and issued to the contractor by the installation law enforcement office.
(3) After the vehicle has been removed, the installation law enforcement officer or the contractor will complete DD Form 2506 (Vehicle Impoundment Report) as a record of the actions taken.
(i) An inventory listing personal property will be done to protect the owner, law enforcement personnel, the contractor, and the commander.
(ii) The contents of a closed container such as a suitcase inside the vehicle need not be inventoried. Such articles should be opened only if necessary to identify the owner of the vehicle or if the container might contain explosives or otherwise present a danger to the public. Merely listing the container and sealing it with security tape will suffice.
(iii) Personal property must be placed in a secure area for safekeeping.
(4) DD Form 2507 (Notice of Vehicle Impoundment) will be forwarded by certified mail to the address of the last known owner of the vehicle to advise the owner of the impoundment action, and request information concerning the owner's intentions pertaining to the disposition of the vehicle.
(b)
(2) Recovered stolen POVs will be released to the registered owner, unless held for evidentiary purposes, or to the law enforcement agency reporting the vehicle stolen, as appropriate.
(3) A POV held on request of other authorities will be retained in the custody of the applicable Service or DLA until the vehicle can be released to such authorities.
Search of a POV in conjunction with impoundment based on criminal activity will likely occur in one of the following general situations:
(a) The owner or operator is not present. This situation could arise during traffic and crime-related impoundments and abandoned vehicle seizures. A property search related to an investigation of criminal activity should not be conducted without search authority unless the item to be seized is in plain view or is readily discernible on the outside as evidence of criminal activity. When in doubt, proper search authority should be obtained before searching.
(b) The owner or operator is present. This situation can occur during either a traffic or criminal incident, or if the operator is apprehended for a crime or serious traffic violation and sufficient probable cause exists to seize the vehicle. This situation could also arise during cases of intoxicated driving or traffic accidents in which the operator is present but incapacitated or otherwise unable to make adequate arrangements to safeguard the vehicle. If danger exists to the police or public or if there is risk of loss or destruction of evidence, an investigative type search of the vehicle may be conducted without search authority. (Air Force, see AFP 125-2).
(a) If a POV is impounded for evidentiary purposes, the vehicle can be held for as long as the evidentiary or law enforcement purpose exists. The vehicle must then be returned to the owner without delay unless directed otherwise by competent authority.
(b) If the vehicle is unclaimed after 120 days from the date notification was mailed to the last known owner or the owner released the vehicle by properly completing DD Form 2505, the vehicle will be disposed of by one of the following procedures:
(1) Release to the lien holder, if known.
(2) Processed as abandoned property in accordance with DOD 4160.21-M.
(i) Property may not be disposed of until diligent effort has been made to find the owner; or the heirs, next of kin, or legal representative of the owner.
(ii) The diligent effort to find one of those mentioned in paragraph (a) of this section shall begin no later than seven days after the date on which the property comes into custody or control of the law enforcement agency.
(iii) The period for which this effort is continued may not exceed 45 days.
(iv) If the owner or those mentioned in § 634.53 are determined, but not found, the property may not be disposed of until the expiration of 45 days after the date when notice, giving the time and place of the intended sale or other disposition, has been sent by certified or registered mail to that person at their last known address.
(v) When diligent effort to determine those mentioned in paragraph (b)(2)(iv) of this section is unsuccessful, the property may be disposed of without delay, except that if it has a fair market value of more than $500, the law enforcement official may not dispose of the property until 45 days after the date it is received at the storage point.
(c) All contracts for the disposal of abandoned vehicles must comply with 10 U.S.C. 2575.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone for certain waters of the Hudson River. This action is necessary to provide for the safety of life on these navigable waters of the Hudson River near Hells Kitchen, NY during a fireworks display, on February 6, 2016. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port New York or a designated
Comments and related material must be received by the Coast Guard on or before January 19, 2016.
You may submit comments identified by docket number USCG-2015-1025 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email MST1 Daniel Vazquez, Sector New York Waterways Management Division, U.S. Coast Guard; telephone 718-354-4154, email
On October 7, 2015, the JI Mei Design Construction Co. notified the Coast Guard that it will be conducting a fireworks display from 8:00 to 9:30 p.m. on February 6, 2016. The fireworks are to be launched from five barges in the Hudson River bound by a box drawn from the following points: 40°46′24.41″ N., 074°00′16.14″ W. thence to 40°46′15.64′ N., 073°59′55.74′ W. thence to 40°45′28.60″ N., 074°00′30.84″ W. thence to 40°45′37.40″ N., 074°00′51.23″ W. thence to point of origin. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The COTP has determined that potential hazards associated with this fireworks display be a safety concern for anyone within close proximity of the barges.
The purpose of this rulemaking is to ensure the safety of vessels on the navigable waters within close proximity of the fireworks barges before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The COTP proposes to establish a safety zone from 8:00 to 9:30 p.m. on February 6, 2016. The safety zone would cover all navigable waters in the Hudson River located approximately 375 yards west of Pier 94, Manhattan, NY and extending south to approximately 375 yards west of Pier 76, Manhattan, NY. The duration of the zone is intended to ensure the safety of vessels on these navigable waters before, during, and after the scheduled 8:00 p.m. to 9:30 p.m. fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and E.O.s related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.
E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of the Hudson River for less than 2 hours during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
Also, this proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting less than 2 hours that would prohibit entry within the proposed safety zone around all fireworks barges. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(1) Designated Representative. A “designated representative” is any Coast Guard commissioned, warrant or petty officer of the U.S. Coast Guard who has been designated by the Captain of the Port (COTP) Sector New York, to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.
(2) Official Patrol Vessels. Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP.
(d)
(1) The general safety zone regulations contained in 33 CFR 165.23, as well as the following regulations apply.
(2) No vessels, except for the fireworks barges and the accompanying vessels, will be allowed to transit the safety zone without the permission of the COTP.
(3) All persons and vessels shall comply with the instructions of the COTP or the designated representative. Upon being hailed by a U.S. Coast Guard vessel, or other Federal, State, or local agency vessel, by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the COTP or the designated representative via VHF channel 16 or 718-354-4353 (Sector New York Command Center) to obtain permission to do so.
National Park Service, Interior
Proposed rule.
The National Park Service proposes to designate routes for, and manage off-road vehicle use within Cape Lookout National Seashore, North Carolina. Under the National Park Service general regulations, the operation of motor vehicles off roads is prohibited unless authorized by special regulation. The proposed rule would authorize off-road vehicle use at the Seashore through a permit system and establish operational and vehicle requirements.
Comments must be received by February 16, 2016.
You may submit comments, identified by the Regulation Identifier Number (RIN) 1024-AE24, by any of the following methods:
•
•
If you commented on the Draft ORV Management Plan/Draft Environmental Impact Statement, (plan/DEIS) your comments have been considered in drafting the proposed rule. Comments should focus on this proposed rule; comments that refer back to the draft Plan/DEIS will be untimely and will not be considered.
Comments will not be accepted by fax, email, or in any way other than those specified above, and bulk comments in any format (hard copy or electronic) submitted on behalf of others will not be accepted. Comments received will be posted without change to
Patrick Kenney, Superintendent, Cape Lookout National Seashore, 131 Charles St., Harkers Island, North Carolina 28531; phone 252-728-2250, extension 3014.
Authorized by Congress in 1966 (Pub. L. 89-366), and established as a unit of the National Park System in 1976 (41 FR 39363), Cape Lookout National Seashore (Seashore) is located approximately three miles off the mainland in the central coastal area of North Carolina. Consisting of more than 29,000 acres of land and water from Ocracoke Inlet to Beaufort Inlet, the 56 miles of barrier islands consist mostly of wide, bare beaches with low dunes covered by scattered grasses, flat grasslands bordered by dense vegetation, maritime forests, and large expanses of salt marsh alongside the sounds. The Seashore serves as a popular recreation destination where visitors participate in a variety of recreational activities. The Seashore also contains important habitat for wildlife created by the Seashore's dynamic environmental processes. Several species listed under the Endangered Species Act, including the piping plover, seabeach amaranth, red knot, and four species of sea turtles, are found within the Seashore.
In the statute commonly known as the NPS Organic Act (54 U.S.C. 100101), Congress granted the National Park Service (NPS) broad authority to regulate the use of areas under its jurisdiction. The Organic Act authorizes the Secretary of the Interior (Secretary), acting through the NPS, to “prescribe such regulations as the Secretary considers necessary or proper for the use and management of [National Park] System units.” 54 U.S.C. 100751(a). In the Seashore's enabling act, Congress directed the Secretary to administer the Seashore “for the general purposes of public outdoor recreation, including conservation of natural features contributing to public enjoyment.” 16 U.S.C. 459g-4.
Executive Order 11644, Use of Off-Road Vehicles on the Public Lands, was issued in 1972 in response to the widespread and rapidly increasing off-road driving on public lands “often for legitimate purposes but also in frequent conflict with wise land and resource management practices, environmental values, and other types of recreational activity.” Executive Order 11644 was amended by Executive Order 11989 in 1977, and together they are collectively referred to in this rule as “E.O.” The E.O. requires Federal agencies that allow motorized vehicle use in off-road areas to designate specific areas and routes on public lands where the use of motorized vehicles may be permitted. Specifically, section three of the E.O. requires agencies to develop and issue regulations that designate the specific areas and trails on public lands where off-road vehicle (ORV) use is permitted, and areas where ORV use is prohibited. The regulations must ensure that the designation of such areas and trails will be based upon the protection of the resources of the public lands, promotion of the safety of all users of those lands, and minimization of conflicts among the various uses of those lands. The regulations must also require that the designation of such areas and trails shall be in accordance with the following:
(1) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, or other resources of the public lands.
(2) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats.
(3) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors.
(4) Areas and trails shall not be located in officially designated Wilderness Areas or Primitive Areas. Areas and trails shall be located in areas of the National Park System, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.
The NPS regulation at 36 CFR 4.10(b) implements the E.O. and requires that routes and areas designated for ORV use be promulgated as special regulations and that the designation of routes and
ORV use at the Seashore predates the authorization and establishment of the Seashore. Beginning in the 1930s, vehicles were transported to the islands by shallow draft ferries and were used to access fishing grounds.
Today, ORVs provide vehicular access to the Seashore beaches for recreational purposes. ORV routes have been designated and ORV use has been managed through the Superintendent's Compendium, which currently allows for ORV use from March 16 to December 31 (with a closure of the Seashore to ORVs from January 1 through March 15). The Cape Lookout National Seashore General Management Plan (NPS 1980) identified 47 of the 56 miles of the Seashore as appropriate for controlled ORV use. The remaining nine miles on Shackleford Banks is a proposed wilderness area under the Wilderness Act (Pub. L. 88-577) and is managed to preserve its wilderness character and is closed to recreational vehicle use. Currently, of the 47 miles identified as appropriate for ORV use, 2.2 miles are closed to ORV use year-round. Additional areas may be periodically closed to ORV use for resource protection during the bird nesting and fledgling season or turtle nesting and hatching season.
The plan/DEIS was released for public comment on May 23, 2014, with the public comment period extended twice through September 19, 2014. This long-term ORV planning effort is based on recognition by the NPS that if allowed, ORVs must be regulated in a manner that is consistent with applicable law and in a manner that appropriately addresses resource protection, potential conflicts among the various Seashore users, and visitor safety.
The plan/DEIS and other supporting documentation can be found online at
This proposed rule would establish a special regulation pursuant to the E.O. and 36 CFR 4.10(b) that would implement portions of the preferred alternative as described in the plan/DEIS. The proposed rule would:
• Designate ORV routes and pedestrian-only areas at the Seashore;
• Implement a permit system for ORVs with limits on the number of permits;
• Impose date and time restrictions on the use of ORVs to protect resources and enhance visitor experience; and
• Set vehicle and equipment standards, phasing out sport model All-Terrain Vehicles (ATVs) and Utility Vehicles (UTVs), and
• Allow an additional four ramps on North Core Banks and five ramps on South Core Banks where vehicle traffic could cross between the Beach Route and the Back Route could be constructed.
Based on review of public comments on the plan/DEIS (received through compliance with the National Environmental Policy Act), the proposed rule reflects input received during this planning effort, including the following:
• Closure dates would be consistent to eliminate confusion;
• Seven miles of existing pedestrian only areas would be changed from year-round to seasonal closures (Memorial Day-Labor Day);
• Creation of a designated route for ORVs in front of the Long Point and Great Island cabin camps;
• ORV permits would be valid for ORV use on both North and South Core Banks;
• An annual limit on the number of ORV permits that would be issued, would be determined based on 5 years of data instead of 3 years, and data from years with significant ORV closure events in excess of 14 days (such as a hurricane) would not be used to establish a vehicle cap;
• Night driving on beach ORV routes would not be allowed from 9:00 p.m.-6:00 a.m. from May 1 to September 14. However, driving on the back routes would be allowed from 5:00 a.m.-10:00 p.m., and at any time in the Great Island and Long Point cabin camps as defined on the map available at the office of the Superintendent and for review on the Seashore's Web site at
• Vehicle length restriction would be removed and replaced with a wheelbase limit not to exceed 180 inches;
• Vehicles with a two-stroke engine would be prohibited immediately;
• ATV trailer length limit would be removed and made consistent with vehicle trailer lengths; and
• New prohibitions (including use of sport-model ATV/UTVs, trailers exceeding 30 feet in length and vehicles with wheel base exceeding 180 inches) would be phased in after a one year grace period.
The NPS intends to recover the costs of administering the ORV special use permit program under 54 U.S.C. 103104. In order to obtain a special use permit required to operate a motor vehicle on designated ORV routes in the Seashore, the proposed rule would require ORV operators to pay a permit fee.
The following explains some of the principal elements of the proposed rule in a question and answer format:
For the purposes of this regulation, an “off-road vehicle” or “ORV” means a motor vehicle used off of Seashore roads (off-road). ORVs authorized for use at the Seashore are subject to the vehicle requirements, prohibitions, and permitting requirements described in this proposed rule. However, certain ORVs would be prohibited at the Seashore by this rule; these include motorcycles, tracked vehicles, farm vehicles, vehicles with two-stroke engines, and amphibious ATVs.
In addition, although the Seashore allows ATV and UTV use for transportation within its boundaries, the seashore has determined that the use of these vehicles for performance riding is not consistent with the Seashore's purpose or NPS
Yes. To obtain an ORV permit, you must complete a short educational program, acknowledge in writing that you understand and agree to abide by the rules governing ORV use at the Seashore, and pay the applicable permit fee. A permit fee schedule would be developed by the Superintendent. Implementation of the permit system would begin the first full calendar year after the final regulation becomes effective.
Yes. Initially, the maximum number of ORV permits that may be issued is 5,500. This number is based on current use levels. In order to ensure that ORV use does not exceed current levels, ORV use would be monitored for the first five years that permits are issued and thereafter capped at the five-year average use level (not to exceed 5,500). Any year in which there is a significant ORV closure (more than 14 days) will not be counted and an additional year of data would be collected and averaged to determine the cap. A permit would allow access to all routes where ORVs are permitted within the Seashore. Permits would be established on a first-come, first-served basis. An annual lottery may be established to equitably allocate permits.
Yes. You would need to get a permit for each vehicle you plan to use on ORV routes in the Seashore. You would also need to affix the permit to each vehicle in a manner specified by the Superintendent.
Once you obtain an ORV permit and an education certificate, you may operate your motor vehicle off road only on the routes described in the tables in the proposed rule. The Seashore would be closed to motor vehicles from December 16 through March 15 of each year. The tables in this rule also provide dates for seasonal restrictions for driving on designated routes. If deemed necessary by the Superintendent, seasonal closures for resource management could occur from March 16 through December 15. Some pedestrian only areas would be established from May 1-September 14, however some are year round. Maps of designated ORV routes will be available at the Office of the Superintendent and for review on the Seashore Web site at:
No. In addition to the seasonal pedestrian-only restrictions from May 1-September 14, ORV routes may be subject to temporary resource and visitor safety closures. This authority would be exercised independent of the Superintendent's authority under 36 CFR 1.5 and would provide the park with greater flexibility to respond to the impacts of ORV use in designated routes and areas to prevent `unacceptable impacts'. Public notice of any action taken under this authority would be given pursuant to one or more of the methods set forth in 36 CFR 1.7.
Yes. To receive a permit to operate a vehicle on designated ORV routes (except for ATVs and UTVs), your vehicle must be registered, licensed, and insured for highway use and comply with inspection regulations within the state, province or country, where the vehicle is registered. ORV operators (except for ATVs and UTVs) would be required to carry a low-pressure tire gauge, shovel, jack, and jack stand/board in the vehicle.
Yes. Four-wheel drive vehicles are recommended, but two-wheel drive vehicles would be allowed if, in the judgment of the vehicle operator, the vehicle is capable of over-sand travel.
Yes. Trailers with one or two axles would be allowed. Trailers with more than two axles would be prohibited. Trailers cannot exceed 30 feet in length including all attachments. Restrictions on trailers would be implemented after a one-year grace period. Transporting passengers in a trailer would be prohibited.
No. The proposed rule would not institute a vehicle length restriction, but the NPS wants to ensure that all vehicles on the Seashore can safely navigate the back routes and properly stay in the track on designated routes. Therefore, the NPS would not issue ORV permits for vehicles with a wheelbase measurement that exceeds 180 inches. There would be a one year grace period before the wheelbase restriction is implemented.
After a one year grace period, only non-sport model ATVs and UTVs would be allowed from March 16 through December 15 on designated routes within the Seashore provided the non-sport ATVs and UTVs have not been modified and still meet the manufacturer's original specifications for a non-sport or utility model. ATV/UTVs would be allowed a maximum of 3 axles, and would not need to be registered, licensed, insured for highway use, or comply with inspection regulations. ATV/UTV operators would not be required to carry in or on the vehicle a low-pressure tire gauge, shovel, jack, or jack stand/board. ATV operators must wear a U.S. Department of Transportation approved helmet and eye protection. All high-performance sport-model ATVs and UTVs would be prohibited after a one year grace period and can no longer receive the required ORV permit to ride at the seashore. While these high-performance sports model are generally identified by the manufactures, any questions concerning the models subject to this prohibition will be resolved by the Superintendent.
The speed limit would be 25 miles per hour (unless otherwise designated). The speed limit would be reduced to 15 miles per hour when operating a vehicle within 100 feet of any person, another vehicle, a campsite, any structure or while towing a trailer.
Yes, but not at all times on all routes. Night driving on beach ORV routes would not be allowed from 9:00 p.m. until 6:00 a.m. from May 1 to September 14 to reduce impacts on wildlife. In addition, driving on the back routes would be allowed from 5:00 a.m.-10:00 p.m., and at any time in the Great Island and Long Point cabin camps (as defined by the map available at the office of the Superintendent and for review on the Seashore's Web site at
Yes, if the ORV is attended and not driven on the beach during that time.
Yes, such use could be accommodated on a case-by-case basis and would be subject to the conditions of a special use permit issued by the Superintendent.
No. Use of ORVs associated with businesses would be controlled through an NPS concession contract or commercial use authorization.
NPS specifically adopts state motor vehicle laws at 36 CFR 4.2(a), and can deviate from these state laws by special regulation. Under N.C. General Statute 20-4.01(32)(b), beach areas are considered public vehicular areas, and are not necessarily subject to the broader set of registration and operation laws for state roads. This rule would specify that notwithstanding the definition of public vehicular area in North Carolina State law, the operator of any motor vehicle at the Seashore, whether the ORV is moving or parked, must at all times comply with North Carolina traffic laws that would apply as if operating on a North Carolina highway. This requirement would apply to ATVs/UTVs even though they are, for example, not required to be registered, inspected or display a license plate, nor allowed on highways under North Carolina law. However, this special regulation would allow ATV/UTV use as ORVs the same as other vehicles within the Seashore; the operation of all these vehicles must be in compliance with this and other applicable regulations such as operation and safety requirements, and non-conflicting North Carolina law.
Executive Order 11644, as amended by Executive Order 11989, was adopted to address impacts on public lands from ORV use. The Executive Order applies to ORV use on federal public lands that is not authorized under a valid lease, permit, contract, or license. Section 3(4) of E.O. 11644 provides that ORV “areas and trails shall be located in areas of the National Park system, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.” Since the E.O. clearly was not intended to prohibit all ORV use everywhere in these units, the term “adversely affect” does not have the same meaning as the somewhat similar terms “adverse impact” or “adverse effect” commonly used in the National Environmental Policy Act of 1969 (NEPA). Under NEPA, a procedural statute that provides for the study of environmental impacts, the term “adverse effect” refers to any effect, no matter how minor or negligible.
Section 3(4) of the E.O., by contrast, does not prescribe procedures or any particular means of analysis. It concerns substantive management decisions, and must instead be read in the context of the authorities applicable to such decisions. The Seashore is an area of the National Park System. Therefore, the NPS interprets the E.O. term “adversely affect” consistent with its NPS Management Policies 2006. Those policies require that NPS only allows “appropriate use” of parks, and avoids “unacceptable impacts.”
Specifically, this rule would not impede the attainment of the Seashore's desired future conditions for natural and cultural resources as identified in the plan/DEIS. The NPS has determined this rule would not unreasonably interfere with the atmosphere of peace and tranquility, or the natural soundscape maintained in natural locations within the Seashore. Therefore, within the context of the E.O., ORV use on the ORV routes designated by this rule (which are also subject to safety and resource closures and other species management measures that would be implemented under the proposed rule) would not adversely affect the natural, aesthetic, or scenic values of the Seashore.
Section 8(a) of the E.O. requires the respective agency head to monitor the effects of the use of off-road vehicles on lands under their jurisdictions. On the basis of the information gathered, such agency head shall from time to time amend or rescind designations of areas or other actions taken pursuant to the E.O. as necessary to further the policy of the E.O. The plan/DEIS identifies monitoring and resource protection procedures, and desired future conditions to provide for the ongoing and future evaluation of impacts of ORV use on protected resources. The Park Superintendent would have authority under both this rule and under 36 CFR 1.5 to close portions of the Seashore as needed to protect park resources and values, and public health and safety.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
This rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2) of the SBREFA. This rule:
(a) Does not have an annual effect on the economy of $100 million or more.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on state, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on state, local, or tribal governments or the private sector. The designated ORV routes are located entirely within the Seashore, and will not result in direct expenditure by State, local, or tribal governments. This rule addresses public use of NPS lands, and imposes no requirements on other agencies or governments. Therefore, a statement containing the information required by the UMRA (2 U.S.C. 1531
This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. Access to private property located within or adjacent to the Seashore will not be affected, and this rule does not regulate uses of private property. Therefore, a takings implication assessment is not required.
Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule only affects use of NPS-administered lands and imposes no requirements on other agencies or governments. A federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order. 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and have determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes.
This rule does not contain any new collection of information that requires approval by OMB under the PRA of 1995. OMB has approved the information collection requirements associated with NPS special use permits and has assigned OMB control number 1024-0026 (expires 08/31/2016). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
This rule constitutes a major federal action with the potential to significantly affect the quality of the human environment. In accordance with NEPA, the NPS prepared the plan/DEIS, which was released for public comment on May 23, 2014, with the public comment period extended to September 4, 2014, then again to September 19, 2014. A full description of the alternatives that were considered, the environmental impacts associated with the project, and public involvement, and other supporting documentation, can be found online at http
This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.
We are required by Executive Orders 12866 and 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
All submissions received must include the agency name and RIN for this rulemaking: 1024-AE24. All comments received through the Federal eRulemaking portal at
Drafting Information: The primary authors of this regulation are: Russel J. Wilson, Chief, Regulations, Jurisdiction, and Special Park Uses, and A.J. North, Regulations Coordinator, National Park Service, Washington, DC.
District of Columbia, National Parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 7 as follows:
54 U.S.C. 100101, 100751, 320102; Sec. 7.96 also issued under DC Code 10-137 and DC Code 50-2201.07.
(c) Off-road motor vehicle use. (1)
(2)
(i) A permit issued by the Superintendent is required to operate a vehicle on designated ORV routes at the Seashore. The Superintendent is responsible for determining or resolving the eligibility of a vehicle for an ORV permit. The cost of the permits will be set by the Superintendent.
(ii) Operation of a motor vehicle authorized under an ORV permit is limited to those routes designated in the table in paragraph (c)(7) of this section.
(iii) The Superintendent will establish an annual limit on the number of ORV permits that may be issued, not to exceed 5,500, and will notify the public under § 1.7 of this chapter.
(iv) In order to obtain a permit, an applicant must comply with vehicle and equipment requirements, obtain an education certificate, acknowledge in writing an understanding of the rules governing ORV use at the Seashore, and pay the permit fee.
(v) Each permit holder must affix the permit in a manner and location specified by the Superintendent to the vehicle authorized for off-road use.
(3)
(i) The ORV (except ATVs and UTVs) must be registered, licensed, and insured for highway use and must comply with inspection regulations within the state, province, or country where the vehicle is registered.
(ii) The ORV (except ATVs and UTVs) must have no more than two axles, no more than six wheels and no less than four wheels. ATVs and UTVs may have no more than three axles, no more than six wheels and no less than four wheels. An ORV's wheelbase must not exceed 180 inches; this requirement will take effect one year after the effective date of the final rule.
(iii) A towed trailer must have no more than two axles and must not exceed 30 feet in length. This paragraph will take effect one year after the effective date of the Final Rule.
(iv) The ORV (except ATVs and UTVs) must carry a low-pressure tire gauge, shovel, jack, and jack stand or support board.
(v) ORV operators must possess a valid driver's license and an education certificate in addition to the vehicle being permitted.
(vi) ATV operators must wear a U.S. Department of Transportation approved helmet and eye protection.
(vii) Riding on the tailgate or roof or hanging outside of moving ORVs is prohibited.
(viii) While riding in a truck bed a person must be seated on the floor. Children under 16 years of age riding in truck beds must also be accompanied by an adult riding in the bed.
(ix) Passengers are prohibited from riding in or on a trailer, unless specifically authorized by the NPS in a permit, commercial use authorization or concession contract.
(4)
(5
(6)
(7)
(ii) The Seashore is open to ORV use from March 16 through December 15, with seasonal closures for species management from March 16 through December15 and pedestrian-only areas from May 1-September 14.
(iii) The following tables designate ORV routes, ORV ramps, areas closed to ORVs, and pedestrian only areas. Maps depicting the designated routes and ramps, areas closed and pedestrian only areas are available in the Office of the Superintendent and for review on the Seashore Web site.
(8)
(ii) The public will be notified of such closures through one or more of the methods listed in § 1.7 of this chapter.
(iii) Violation of any closure or restriction is prohibited.
(9)
(ii) In addition to the requirements of part 4 of this chapter, the following restrictions apply:
(A) A vehicle operator must yield to pedestrians on all designated ORV routes.
(B) The speed limit for off road driving is 25 mph, unless otherwise designated.
(C) A vehicle operator must slow to 15 mph when traveling within 100 feet or less of any person, vehicle, campsite, structure or while pulling a trailer.
(D) When driving on a designated route, an operator must lower the vehicle's tire pressure sufficiently to maintain adequate traction.
(E) Vehicles may only be transported to the Seashore by NPS authorized ferries.
(10)
(ii) Maps are available in the office of the Superintendent and on the Seashore's Web site that show routes closed due to resource and visitor protection.
(11)
(ii) Long-term vehicle lots would be closed from December 16 through March 15.
(12)
(ii) A violation may also result in the suspension or revocation of a NPS permit by the Superintendent.
(13)
Federal Communications Commission.
Proposed rules.
In this document, the Commission seeks comment on ways to promote competition for Inmate Calling Services (ICS), video visitation, rates for international calls, and considers an array of solutions to further address areas of concern in the (ICS) industry.
Comments due January 19, 2016. Reply comments due February 1, 2016.
You may submit comments, identified by docket number 12-375 and/or rulemaking number 15-136, by any of the following methods:
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Lynne Engledow, Wireline Competition Bureau, Pricing Policy Division, (202) 418-1540 or
This is a summary of the Commission's Third Further Notice of Proposed Rulemaking, WC Docket: 12-375, released November 5, 2015. The full text of this document may be downloaded at the following Internet Address:
The complete text may be purchased from Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. To request alternative formats for persons with disabilities (
Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to
1. While we adopted regulations in the November 5, 2015 Report and Order to correct failures in the ICS market, the Commission generally prefers to rely on competition over regulation. We seek additional comment on whether there are ways to promote competition within the ICS market to enable the Commission to sunset or eliminate our regulations adopted herein in the future. We also seek comment on the extent to which the reforms adopted today facilitate a properly functioning market.
2. In the
3. In response, commenters raised concern about requiring facilities to utilize multiple providers at the same location. Many commenters assert that security could be compromised if more than one ICS provider operated at a single facility. For instance, GTL notes that “investigators would have to conduct duplicative search procedures” which could compromise “law enforcement's ability to monitor and track inmate calling for victim protection, investigative resources, and other public safety purposes.” Securus warns that officers would need to be trained in every system and that having to check multiple systems could lead to a delay in officers' ability to react. Commenters also note potential increased administrative burdens and complexities for correctional facilities in order to install and maintain separate telephone systems. Securus asserts such complexities could include the need to create complex bids to allow for multiple providers, negotiate and oversee multiple contracts, review and process vendor payments and address vendor disputes. Commenters assert that these increased burdens to correctional facilities would likely lead to higher inmate ICS costs. Some commenters say that requiring multiple providers per facility could lead small facilities to eliminate ICS altogether. GTL states that, “[i]f provision of ICS at facilities with multiple providers is not financially feasible for each provider, then facilities will not have multiple providers, regardless of what rules the Commission promulgates.” Some commenters suggest that banning exclusive contracts would lead to lower capital investment resulting in lower and less predictable call quality. But HRDC suggests that “[o]nly when consumers are afforded the choice to select telecommunications providers that offer the best service at the lowest price will a competitive and free market prevail in the ICS industry.”
4. We seek additional comment on this issue because the record also indicates there may be multiple providers in some facilities. How common is this practice? Does it indicate that not all facilities enter into exclusive ICS contracts? If the Commission finds it necessary to ban exclusive ICS contracts to encourage greater competition in providing ICS in correctional institutions, we seek comment on our legal authority to do so. Would such a ban serve the express purposes of section 276(b)(1), namely to promote competition and the widespread deployment of payphone services? How should existing, exclusive ICS contracts be treated if the Commission decided to ban exclusive contracts? Should they be abrogated, grandfathered, subject to a transition period or some other treatment? We seek information on the extent to which multiple providers currently serve different regions of the country. Specifically, are there even multiple ICS providers available to serve each correctional institution? Are there correctional facilities that can only be served by one ICS provider?
5. Are there ways to mitigate concerns raised in the record that multiple providers could increase burdens and make it “more difficult . . . to maintain security”? How could allowing competition inside correctional institutions decrease end-user rates? Would facilities, as suggested in the record, eliminate ICS if the Commission banned exclusive contracts? If so, would it be necessary for the Commission to take action to prevent this practice? We seek comment on our legal authority to do so. Is it feasible for multiple providers to serve the same facility without having to build out their own separate infrastructure, for example by offering some form of secure, dial-around service? If so, could the Commission require ICS providers to offer such a service? Is it possible for multiple providers to co-exist at a single facility without compromising important security features and increasing infrastructure and personnel costs? Would technological advances address such concerns? Would requiring multiple providers in institutions, by prohibiting providers from bidding on exclusive contracts, lead to lower capital investment and ultimately affect call quality, as suggested by both GTL and Pay Tel? Finally, should the Commission, as suggested, first adopt rate and ancillary service charge reform and then determine if additional steps are necessary and perhaps revisit the idea of intra-facility competition then?
6. Our core goals for inmates and their families, friends, clergy and lawyers remain the same regardless of the technologies used—ensuring competition and continued widespread deployment of ICS and the societal benefits that they bring. Since the Commission adopted the
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9. We are particularly interested in the rates that providers of video calls charge for this service compared to traditional ICS. How are these rates established? For example, the Illinois Campaign states that one provider “typically charges a dollar a minute for a video visit.” PPI suggests that the rate may fluctuate between as low as $0.33 per minute for certain providers up to $1.50 per minute for others. We seek detailed information about the rates video visitation providers charge for these services. What is a typical rate charged for video visitation? Does the rate differ between prisons and jails? How much, if at all, do the rates for video visitation fluctuate based on the type or size of the facility? If there is a difference between charges for facility type or size, what are the reasons for the differences? Are the rates for these services different from the rates for traditional ICS? If so, what is the justification for the difference? To the extent that video visitation providers are charging rates that exceed our interim caps, have those providers been able to explain why their services are not a form of ICS that is not subject to those caps? If there are strictly video visitation providers who do not provide other forms of ICS, do their rates differ from those set by traditional ICS providers? Does the end-user rate fluctuate by call volume or technology used?
10. What limits or protections would need to be implemented to provide relief from or prevent excessive rates for video visitation services, to the extent that they are not already being treated as forms of ICS? Are the ancillary service charges for video visitation comparable to those of traditional ICS? PPI explains that certain ICS providers that also provide video visitation charge different amounts for credit card transaction fees depending on the technology used by the inmate. Is this typical for ancillary fees and charges in general? Do video visitation providers bundle this service with traditional ICS or other services, and does that affect the rates users pay for video visitation? Do providers pay site commissions on video calls? If so, we ask commenters to file information on the magnitude of these payments.
11. News articles and commenters indicate that some ICS providers, as a condition for offering video calling, have eliminated in-person visitation entirely. We seek comment on how common conditions, such as eliminating in-person visits, are to offering video visitation services. What cost savings do institutions experience, if any, by moving away from in-person visits? What effects do conditions such as the elimination of in-person visitation have on inmates and their decisions to use video visitation or traditional ICS? Are inmates and their families given a choice? Do they have input into the decision to eliminate in-person visits? Does the practice of eliminating or reducing in-person visitation differ between jails and prisons? The record indicates that some video visitation contracts may also include a quota system, mandating a minimum number of usages of the technology per month. What are the consequences if such quotas are not met? How frequently are such conditions included in video visitation contracts? Are there other requirements like this that video visitation providers include in their contracts? One commenter, for example, hypothesized that “if commissions on phone services are restricted, providers could include with the phone services a video visitation system and, as an incentive to select them, offer to charge for on-site visits while offering a large commission on the consumer paid visitation services to compensate for commissions restricted on the inmate phone calling.” Is this a practice that occurs, or is likely to occur in some facilities offering video visitation?
12. We also seek comment on the benefits of video visitation as compared to traditional ICS. In facilities that offer both video visitation and traditional ICS, what percentage of inmates and their families utilize video visitation? For the inmates and families that do use video visitation, how frequent is their use? What is the comparative percentage between video visitation usage and traditional ICS usage? Are inmates and their families more apt to use video visitation in jails or prisons, or is there no notable difference based on the type or size of facility? We seek comment on the impact video calling has on inmate connectivity with friends and family. For example, is there evidence that video calling has reduced or increased the frequency of connectivity with friends and family because they may be charged by the minute, while friends and family do not have to pay for an in-person visit?
13. We seek general comment on the costs to providers of video visitation. Are there additional costs to ICS providers in developing, provisioning, or offering video visitation services? Are there costs to the correctional facilities for provisioning video visitation services? Do ancillary service charges and site commissions affect video visitation rates? If so, how?
14. We have made clear that our authority to regulate ICS is technology neutral. We also note that certain commenters have specifically agreed that we have authority to regulate video visitation. For example, PPI suggests that we should “regulate the video visitation industry so that the industry does not shift voice calls to video visits.” To the extent that video visitation is not already a form of ICS that is subject to our ICS rules, is this a suggestion we should pursue? Are there any barriers to the Commission specifically regulating video visitation service that do not constitute inmate telephone service under section 276?
15. HRDC and PPI have suggested that the same perverse incentives that have harmed the traditional ICS market also harm the video visitation market. We seek additional comment on whether there is a similar market failure for video visitation and other advanced services as the market failure described above for traditional ICS. Keeping in mind the Commission's stated goals of increased communication at just, reasonable, and fair rates, what steps can be taken to prevent or alleviate problems in video visitation that have prompted our action with regard to traditional ICS? Would adopting rate caps be effective to ensure just, reasonable, and fair rates for video visitation that does not meet the definition of ICS? To the extent the record indicates that a similar failure is occurring in the market for video calling as we witnessed for traditional ICS, we seek comment on adopting rate caps and reforms to ancillary service charges to ensure that video calls and video visitation do not create loopholes that providers may exploit and undermine the reforms adopted herein.
16. Some commenters are concerned that bundling regulated and unregulated products together harms the market for ICS. Would prohibiting IC providers' bundling of regulated and unregulated products together in contractual offerings alleviate some of the problems with current rates charged for advanced services? What other kinds of advanced services are available to inmates? Are they available commonly in most facilities, or only in certain ones? What is the demand for these services and what rates and fees are charged? What additional functionalities do they offer? Do they provide any greater benefits to inmates, their families, or others, than traditional services? What are ICS providers' rates for other services such as email, voicemail or text messaging? The record indicates that some ICS providers offer tablet computers and kiosks that allow inmates to access games, music, educational tools, law library tools and commissary ordering. What is the compensation mechanism for access to these offerings? What are ICS providers' rates for such services, including both service-specific rates and “all-you-can-eat” plans?
17. We also seek comment on the implications of offering video calls, including video visitation, for inmates who are deaf or hard of hearing. Increased deployment of video call systems has the potential to provide inmates who are able to communicate using American Sign Language (ASL) with the ability to access and use VRS, as well as providing direct communications with other ASL users who have video communications access. We note, however, that VRS and videophone users require a smooth, uninterrupted transmission of signal to communicate effectively in ASL. What range of bandwidths and broadband speeds are currently provided or planned for video call systems? What bandwidth and broadband speed are the minimum necessary for effective video communications between ASL users? In addition, what types of video technology are currently used in video call systems? To what extent are video call systems interoperable with the video communications systems used by VRS providers? Should such interoperability be required? If video call systems are used to provide accessible video communications services to deaf inmates, what steps need to be taken to ensure that any charges for such service are fair, just, and reasonable, given that for deaf inmates, such services are functionally equivalent to voice communication? Finally, we seek comment on how prevalent VRS is in correctional institutions.
18. As discussed above, we adopt a second, one-time Mandatory Data Collection to occur two years from the effective date of this Order. In this data collection, we will require all ICS providers to submit ICS cost, calling, company and contract information as well as facility, revenue, ancillary fee and advanced service information. We found the data received in response to the 2013 Mandatory Data Collection to be beneficial, and anticipate that the forthcoming additional data will also be helpful to ensure that ICS rates and practices remain just, reasonable, and fair, in keeping with our statutory mandate.
19. Throughout this proceeding, several commenters suggest that the Commission impose additional periodic reviews to “ensure that the reforms create and maintain the proper incentives to drive ICS rates to competitive levels.” We have found in the Order that for the time being, only a one-time additional collection is warranted. We seek comment, however, on extending in the future the Mandatory Data Collection adopted in this Order into a recurring data submission. Should providers be required to file the cost data described above in the Mandatory Data Collection annually? Why or why not? Do commenters agree that an ongoing annual data collection would provide the Commission with more fulsome data with which to help “drive end user rates to competitive levels?” Since ICS contracts typically run at least three to five years, with one-year extension options, is there benefit in collecting more than several years' worth of cost data in order to obtain a more accurate picture about ICS costs? Some commenters have asserted that upfront investment costs in certain ICS facilities are very high. Would collecting ICS cost data over more than one or two years lead to a more accurate economic picture for such investments? Would an ongoing ICS cost data collection provide the Commission a clearer picture of the industry than a one-time data collection? Would the benefit of such data submissions to the Commission, and its continued monitoring and regulation of the ICS industry, outweigh any potential burden on ICS providers?
20. In the
21. Several commenters have expressed concern over a lack of transparency regarding ICS rates and fees. HRDC asserts “almost a total lack of transparency on the part of both ICS providers and the government agencies from which they secure their monopoly contracts.” HRDC further contends that “state agencies often create obstacles to inhibit the public records process that require [sic] consumers and other organizations to unnecessarily expend time and money to obtain records designated by law to be “public” records.” HRDC suggests that the Commission require “all ICS providers to post their contracts with detention facilities on their Web sites where they are publicly available.” Mr. Baker, of the Alabama PSC, asserts that “lack of transparency in the ICS industry is problematic” and recommends several solutions, including requiring providers to submit to the Commission and to state commissions “upon request or routinely if requested, a copy of the contract from each facility serviced as well as the provider's response to any facility invitation to bid or request for proposal.”
22. Securus disagrees with these suggestions and asserts that what HRDC calls “public documents often contain information that is protected from disclosure under the very statutes, like the Freedom of Information Act, 5 U.S.C. 552, that HRDC invokes” as a reason for mandating their disclosure. Securus asserts that such protected information includes “non-public financial data, proprietary information about patented and patentable technology, and the operation of crucial security features.” Securus contends that requiring the production of ICS contracts “could contravene federal and state disclosure statutes.” Securus further asserts that, even if it were able to enact the “appropriate, lawful redaction” needed to protect sensitive and confidential data, the production of such contracts would be “far too broad and too burdensome.” Finally, Securus asserts that such contract production will be unnecessary if certain reform proposals are adopted, such the Joint Provider Proposal provision requiring all ICS providers to annually certify full
23. Section 211 of the Act grants the Commission authority to require common carriers to “file with the Commission copies of contracts and agreements relating to communications traffic.” Section 43.51 of the Commission's rules specifies that any dominant communications common carrier “must file with the Commission, within thirty (30) days of execution, a copy of each contract, agreement, concession, license, authorization, operating agreement or other arrangement to which it is a party and amendments thereto” that relate to “[t]he exchange of services” and “matters concerning rates.” The Commission has also clarified that “only non-dominant carriers treated with forbearance are not required to file contracts,” whereas non-dominant carriers who are not treated with forbearance are still subject to filing requirements because “material filed by [non-dominant] carriers subject to streamlined regulations may be useful in the performance of monitoring.”
24. We share commenters' concern that ICS contracts are not sufficiently transparent. We also share the concern of commenters who assert that members of the public must “unnecessarily expend time and money to obtain records” of ICS contracts. We also recognize the evidence suggesting that the information regarding ICS contracts and rates that is publically available may not be as reliable as the actual contract.
25. Should the Commission require ICS providers to file all contracts, including updates, under its section 211(b) authority? Does the annual reporting requirement meet this transparency objective? Are there any reasons such a requirement would not apply to all ICS providers or result in the filing of all ICS contracts? We seek comment on the costs and benefits related to contract filing. Would such a requirement be overly burdensome to ICS providers? Do the benefits outweigh the costs? Would such requirement conflict with any other state or federal laws or requirements, such as the Freedom of Information Act? How should the contracts be filed with the Commission? To allow greater public accessibility to ICS contracts, we seek comment on requiring ICS providers to file their contracts with the Commission, in a newly assigned docket, via the Commission's Electronic Comment Filing System (ECFS) within 30 days of entering into a new contract. What would trigger the need to file an updated contract and how quickly after execution should new or updated contracts be filed? In what format should contracts be filed? What are the best ways to handle issues related to confidentiality? Would the
26. In the
27. In response, several commenters urge the Commission to regulate international ICS rates. The record demonstrates that many inmates either lack access to international ICS or that such services are only available at very high rates. Numerous international ICS calling rates far exceed the rates permitted for interstate ICS calls, with some international rates from county correctional institutions set as high as $17.85 to $45 for a 15-minute call. Friends and family members who live outside the United States and who wish to stay in contact with those who are incarcerated pay the price of such high rates. Commenters also suggest that immigrant detainees are particularly vulnerable to high phone rates, due to several factors, including their need to stay in touch with family abroad and the centrality of phone access to immigration proceedings. We seek comment on whether and how we should act to improve inmates' and detainees' access to ICS for international calls, as well as what rates should apply to such calls. We seek comment on applying the adopted rate caps to all international calls.
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30. We seek comment on extending our rate caps for interstate and intrastate calls to international calls. Would establishing international rates at levels consistent with our rate caps ensure that ICS users do not pay rates that are unfair or that are unjustly or unreasonably excessive? Would capping rates for international calls at the same levels as we have established for interstate and intrastate calls allow providers to receive fair compensation? If not, why not? Would allowing a higher rate for international calls lead to over-recovery by providers, as their costs for international calls are already factored into the rate caps we set to govern interstate and intrastate ICS rates? Would the benefit of breaking out international calls be sufficient to justify the added complexity of adding a separate regime for international calls in addition to the rate caps we adopt in the accompanying Order? What percentage of ICS providers' minutes of use do international calling minutes constitute? For example, would a relatively low volume of international calls weigh against establishing a separate rate
31. There is evidence that many of the approximately 400,000 immigrants detained in this country each year are held in local jails and prisons that have contracted with Immigration Customs and Enforcement (ICE). ICS rates and policies were discussed at the Commission's 2014 ICS Workshop. The record indicates that ICE “detainees are charged . . . a uniform rate of 15 cents per minute for international calls to landlines and 35 cents per minute for international calls to mobile phones,” with “no additional connection fees or ancillary charges.” We seek comment on these rates. Should the Commission establish separate rate caps for international calls that terminate to landline devices and for those that terminate to mobile devices? If so, what rates should apply to each type of call? How challenging would it be for ICS providers to bill different rates for different types of international calls? Is it administratively feasible for ICS providers to distinguish between calls to landline phones versus calls to mobile devices? Should rates vary depending on which foreign country the inmate is calling? Should there be a separate rate cap for international calls made by ICE detainees? Why or why not?
32. The ICE ICS contract provides for free telephone calling services to select numbers through a “centralized pro bono platform which can be accessed at any detention facility.” According to the record, since this ICE contract was awarded, “the number of calls per detainee and minutes per detainee has increased substantially.” The record also indicates that detainees may make calls to 200 different countries for the same per-minute rates. We seek additional comment on the rates available under the ICE contract. Are these rates a reasonable approximation of what the Commission should adopt for international rate caps? Is ICE able to attain economies of scale that other facilities are not? Would it be more appropriate for the Commission to: (1) Adopt the ICE rates for all international calls, (2) subject international ICS calls to the same rate caps we adopt for interstate and intrastate calls, or (3) adopt a different rate regime that is not based on either the ICE rates or the existing rate caps? Are any of these options supported by cost data or other data in the record? If not, is such data available? If the Commission adopts rate caps that are higher than those currently offered by ICE facilities, should those facilities be allowed to raise their rates? We seek comment on ICE's decision to apply different rates for international landline ($0.15/minute) and international mobile ($0.35/minute) calls. Are these rates a reasonable approximation of providers' costs? Is this cost differential a similar one to that which other providers have experienced?
33. We also seek further comment on other issues related to international calling from correctional facilities. The record indicates that although it is feasible for inmates to make international calls, international ICS calling is not always available. Commenters assert that the lack of availability of international calling is particularly burdensome to immigrant inmates and their families. We note that many immigration detainees are housed in county jails, rather than in ICE detention facilities. In addition, some inmates in jails and prisons have family and loved ones in countries outside the United States. Do most facilities allow international calling? If not, why not? Are any additional restrictions applied to such calls, such as time-of-day restrictions or prior-permission requirements? Should the Commission require the availability of international calls? If so, what legal authority would we rely on to adopt such a requirement? If we were to adopt such a requirement, what rates should apply to international calls and how should the Commission set such rates? Would subjecting international calls to the same rate caps that apply to interstate and intrastate ICS calls lead to providers or facilities discontinuing or restricting international ICS calls?
34. In the
35. Several commenters express concern about an additional issue related to these transactions: Potential revenue-sharing arrangements between ICS providers and financial companies. ICSolutions, for example, states that, despite the Commission's cap on third-party financial transaction fees, providers and vendors have an incentive to enter into fee-sharing arrangements with financial services companies, “thereby complying with the pass-through cost component, but still unnecessarily increasing consumers' cost.” ICSolutions urges the Commission to address this practice by imposing limits on the fees third-party financial companies can charge end users in an effort to prevent “secondary fee-sharing arrangements” between these companies and ICS providers that can “unnecessarily increase the cost of financial transactions to consumers.” Similarly, CenturyLink asserts that ICS providers can “divert transactions to certain third party processors, claiming high fees charged by the third party.” CenturyLink states that, by using a third-party payment processor, an ICS provider can inflate ancillary fees through a revenue-sharing agreement that adds a “direct or indirect markup” to ancillary services. CenturyLink argues that providers should be “permitted to use such services but not permitted to enter into arrangements that add a direct markup or indirect markup though a revenue sharing arrangement.” Securus, however, defends these calling arrangements as “innovative, valuable” additions to ICS that benefit consumer by giving them more options.
36. We seek additional comment on the revenue-sharing issues discussed above. First, we seek comment on issues related to our jurisdiction over these transactions. Does the Commission have jurisdiction over third-party financial processor vendors, or over contracts between ICS providers and third-party vendors? Does our authority over ICS providers allow us to regulate providers' ability to enter into revenue-sharing arrangements with third-party vendors? Could these service charges constitute unjust and unreasonable practices, in violation of section 201(b), or a practice that would lead to unfair rates in violation of section 276, because, for example, the manner in which such charges are imposed artificially inflates the amounts that consumers pay to
37. Acknowledging the potential difficulty of quantifying costs and benefits, we seek to determine whether each of the proposals above will provide public benefits that outweigh their costs. We also seek to maximize the net benefits to the public from any proposals we adopt. For example, commenters have argued that inmate recidivism decreases with regular family contact. This not only benefits the public broadly by reducing crimes, lessening the need for additional correctional facilities and cutting overall costs to society, but also likely has a positive effect on the welfare of inmates' children. We seek specific comment on the costs and benefits of the proposals above and any additional proposals received in response to this Third Further Notice. We also seek any information or analysis that would help us to quantify these costs or benefits. We request that interested parties discuss whether, how, and by how much they would be impacted in terms of costs and benefits of the proposals included herein. Additionally, we ask that parties consider whether the above proposals have multiplier effects beyond their immediate impact that could affect their interest or, more broadly, the public interest. Further, we seek comment on any considerations regarding the manner in which the proposals could be implemented that would increase the number of people who benefit from them, or otherwise increase their net public benefit. We recognize that the costs and benefits may vary based on such factors as the correctional facility served and ICS provider. We have received minimal cost benefit analysis in this proceeding. Therefore, we request again that parties file specific analyses and facts to support any claims of significant costs or benefits associated with the proposals herein.
38. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
•
•
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to
39. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
40. This Further Notice contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Comments should address: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) way to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
41. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) for this document, of the possible significant economic impact on small entities of the policies and rules addressed in this document. The IRFA is available in Appendix F of the full-text copy of the Commission's Second Report and Order and Third Further Notice of Proposed Rulemaking, released November 5, 2015. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice provided on or before the dates indicated on the first page of this document. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this Further Notice of Proposed Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).
42.
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Forest Service, USDA.
Notice of meeting.
The North Mt. Baker-Snoqualmie Resource Advisory Committee (RAC) will meet in Sedro-Woolley, Washington. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site:
The meeting will be held January 29, 2016, from 8:00 a.m.-5:00 p.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at Mt. Baker Ranger District, 810 State Route 20, Sedro-Woolley, Washington.
Written comments may be submitted as described under
Erin Uloth, Designated Federal Officer, by phone at 360-854-2601 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
1. Review project proposals; and
2. Make project recommendations for Title II funding.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by January 8, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Erin Uloth, Designated Federal Officer, 810 State Route 20, Sedro-Woolley, Washington 98284; by email to
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 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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public hearings and webinar.
The Gulf of Mexico Fishery Management Council (Council) will hold eight public hearings and a webinar to solicit public comments on Shrimp Amendment 17A.
The public hearings will be held January 5-14, 2016. The meetings will begin at 6 p.m. and will conclude no later than 9 p.m. For specific dates and times, see
The public documents can be obtained by contacting the Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; (813) 348-1630 or on their Web site at
Douglas Gregory, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630.
The agenda for the following eight hearings and one webinar are as follows: Council staff will brief the public on Amendment 17A to the Shrimp Fishery Management Plan. Shrimp Amendment 17A includes two actions. The first action addresses the expiration of the Federal shrimp permit moratorium in the Gulf of Mexico. The second action addresses the royal red shrimp endorsement currently required to harvest royal red shrimp from the Gulf EEZ. Staff will then open the meeting for questions and public comments. The schedule is as follows:
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
NMFS has established an annual fee of twenty-nine dollars
The registration fee will be required effective January 1, 2016.
Gordon C. Colvin, NMFS ST-12453, 1315 East-West Highway, Silver Spring, MD 20910.
Gordon C. Colvin; (240) 357-4524; email:
The final rule implementing the National Saltwater Angler Registry Program, 50 CFR 600, subpart P, was published in the
NMFS has completed its biennial review and has determined that the annual registration fee for anglers, spear fishers and for-hire fishing vessels will be raised to twenty-nine dollars ($29.00). All persons registering on or after January 1, 2016, will be required to pay that registration fee, unless they are exempt as indigenous people per the provisions of 50 CFR 600.1410(f).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council will hold a two-day meeting of its Standing and Special Reef Fish Scientific and Statistical Committee (SSC).
The meeting will convene on Tuesday, January 5, and Wednesday, January 6, 2016; starting 9 a.m. on Tuesday and 8:30 a.m. on Wednesday, and will adjourn approximately 2 p.m. on Wednesday.
The meeting will be held at the Hilton Westshore Tampa Airport Hotel, 2225 N. Lois Avenue, Tampa, FL 33607; telephone: (813) 877-6688.
Steven Atran, Senior Fishery Biologist, Gulf of Mexico Fishery Management Council; email:
The Chairman will start the meeting with introductions and adoption of agenda, and approval of minutes from the September 1-2, 2015 Standing and Special Reef Fish Scientific and Statistical (SSC) meeting; and selection of an SSC representative to attend the January 2016 Council meeting. The Committee will review the National Marine Fisheries Service's (NMFS) assessment prioritization process and will discuss the concept of best scientific information available. The Committee will receive an update on SEDAR 43 Gray Triggerfish Projections from the Southeast Fisheries Science Center (SEFSC) and will make recommendations for a new rebuilding plan including the selection of a projected recruitment scenario, time to rebuild in the absence of fishing, determination of a maximum probability of overfishing (P*) when setting the allowable biological catch (ABC) and recommendations for the overfishing limit (OFL) and ABC. The Committee will discuss a constant catch vs. a constant fishing mortality rate (F) approach to setting catch limits with respect to stability of management; and will receive a projection from the Florida Fish and Wildlife Research Institute on constant catch overfishing limits (OFL) and acceptable biological catch (ABC) for west Florida shelf stock of hogfish. Next, the Committee will review the SEDAR 42 Red Grouper Benchmark Assessment. If the Committee accepts the assessment and sufficient information is available, the Committee will recommend overfishing limits (OFL) and acceptable biological catch (ABC) levels for constant F and constant catch for red grouper. The Committee will review an options paper for a possible framework action to adjust the recreational red snapper annual catch target (ACT) buffer; receive a presentation from the NMFS Southeast Regional Office on their methods for setting season length, and review methods for assigning probability of exceeding the annual catch limit (ACL) at a given ACT buffer. The Committee will receive a presentation from the SEFSC on Integrated Ecosystem Assessment and Management Strategy Evaluation as it pertains to multi-species; and will review Draft Amendment 44 regarding the setting of minimum stock size thresholds (MSST) and maximum sustainable yield (MSY) proxies. The Committee will review proposed revisions to the SEDAR process. The Committee will also review the terms of reference and project schedule for SEDAR 49—Gulf of Mexico Data-limited Species, and select appointees for the data, assessment and review groups. Lastly, the Committee will review the SSC meeting schedule for 2016; and will discuss other business, if any.
The Agenda is subject to change, and the latest version along with other meeting materials will be posted on the Council's file server. To access the file server, the URL is
The meeting will be webcast over the internet. A link to the webcast will be available on the Council's Web site,
Although other non-emergency issues not on the agenda may come before the Scientific and Statistical Committee for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Scientific and Statistical Committee will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Gulf Council Office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit amendment.
Notice is hereby given that a major amendment to Permit No. 16109-02 has been issued to Versar, Inc. (formerly GeoMarine, Inc.) (Responsible Party: Susanne Bates), 700 International Parkway, Suite 104, Richardson, TX 75081.
The permit amendment and related documents are available for review upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Rosa L. González or Carrie Hubard, (301) 427-8401.
On February 11, 2014, notice was published in the
The amended permit (No. 16109-02), issued December 2, 2015, authorizes the following changes to the permit: (1) Extended the action area north and south to include all U.S. waters from Maine to Florida; (2) added aerial surveys to the research methods; (3) added takes for Blainville's beaked whales (
An environmental assessment (EA) analyzing the effects of the permitted activities on the human environment was prepared in compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, issuance of this permit was based on a finding that such permit: (1) Was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to and deletions from the procurement list.
The Committee is proposing to add products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and delete products and a service previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149.
For further information or to submit comments contact Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products and services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following products and services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
Product Name(s)—NSN(s): Pencil, Mechanical, Push Action; 7520-01-NIB-2331—Black, Fine Point (0.5 mm); 7520-01-NIB-2332—Black, Medium Point (0.7 mm).
Mandatory Source(s) of Supply: San Antonio Lighthouse for the Blind, San Antonio, TX.
Mandatory Purchase For: Total Government Requirement.
Contracting Activity: General Services Administration, New York, NY.
Distribution: A-List.
Product Name(s)—NSN(s): Kit, Pipefitter Tools—5180-00-596-1501.
Mandatory Source(s) of Supply: Industries for the Blind, Inc., West Allis, WI.
Mandatory Purchase For: 100% of requirement of the U.S. Army.
Contracting Activity: U.S. Army Tank and Automotive Command, Warren, MI.
Distribution: C-List.
Service Type: Call Center Service.
Service is Mandatory For: OPM, Retirement Service, Retirement Operations, 1137 Branchton Road, Boyers, PA.
Mandatory Source(s) of Supply: Orion Career Works, Auburn, WA, Beacon Group SW., Inc., Tucson, AZ.
Contracting Activity: Office of Personnel Management, Boyers Region (Non FISD), Boyers, PA.
Service Type: Help Desk Support Service.
Service is Mandatory For: US Army, Army Training Support Center, Combined Arms Center for Training, 3306 Wilson Avenue, Joint Base Langley-Eustis, VA.
Mandatory Source(s) of Supply: ServiceSource, Inc., Alexandria, VA; Orion Career Works, Auburn, WA.
Contracting Activity: Dept of the Army, W6QM MICC-FDO Ft Eustis, Fort Eustis, VA.
The following products and service are proposed for deletion from the Procurement List:
Product Name(s)—NSN(s): Hood, Spray Painters Protective—4240-LL-L08-5010.
Mandatory Source(s) of Supply: Goodwill Contract Services of Hawaii, Inc., Honolulu, HI.
Contracting Activity: Dept of the Navy, Pearl Harbor Naval Shipyard IMF, Pearl Harbor, HI.
Product Name(s)—NSN(s):
Paper, Mimeograph and Duplicating—7530-00-285-3060, 7530-00-224-6754, 7530-00-239-9747, 7530-00-221-0805, 7530-01-074-1832, 7530-00-231-7125.
Paper, Bond & Writing—7530-00-160-9165, 7530-00-515-1086.
Paper, Duplicating, Liquid Process, White, 8 1/2” x 11”—7530-00-240-4768.
Mandatory Source(s) of Supply: Louisiana Association for the Blind, Shreveport, LA.
Contracting Activity: General Services Administration, New York, NY.
Product Name(s)—NSN(s): Pen, Ball Point, Retractable, BIO-WRITE, Ergonomic, Cushion Grip, 7520-01-424-4856—Black Ink, Fine Point, 7520-01-424-4876—Black Ink, Medium Point, 7520-01-424-4873—Blue Ink, Fine Point, 7520-01-424-4854—Blue Ink, Medium Point.
Mandatory Source(s) of Supply: Industries for the Blind, Inc., West Allis, WI.
Contracting Activity: General Services Administration, New York, NY.
Product Name(s)—NSN(s): Module, Medical System—8465-00-NSH-0063.
Mandatory Source(s) of Supply: ServiceSource, Inc., Alexandria, VA.
Contracting Activity: W6QK ACC-APG Natick, Natick, MA.
Service Type: Janitorial/Custodial Service, U.S. Army Reserve, Lemma Whyman USARC, 145 Charlotte Street, Canandaigua, NY.
Mandatory Source(s) of Supply: NYSARC, Inc., Seneca-Cayuga Counties Chapter, Waterloo, NY.
Contracting Activity: Dept of the Army, W6QK ACC-PICA, Picatinny Arsenal, NJ.
30-Day notice of submission of information collection approval from the Office of Management and Budget and request for comments.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the Department of the Army has submitted a Generic Information Collection Request (Generic ICR): “Fast Track Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” to OMB for approval under the Paperwork Reduction Act (PRA).
Comments must be submitted January 19, 2016.
Frederick Licari, 571-372-0493.
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
The Agency did not receive any comments in response to the 60-day notice published in the
Below we provide projected average estimates for the next three years:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
• Federal eRulemaking Portal:
Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice and request for comments regarding a proposed extension of an approved information collection requirement.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), DoD announces the proposed extension of a public information collection requirement and seeks public comment on the provisions thereof. DoD invites comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. The Office of Management and Budget (OMB) has approved this information collection requirement for use through April 30, 2016. DoD proposes that OMB extend its approval for three additional years.
DoD will consider all comments received by February 16, 2016.
You may submit comments, identified by OMB Control Number 0704-0250, using any of the following methods:
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Comments received generally will be posted without change to
Ms. Tresa Sullivan, 571-372-6089.
a. The information required by DFARS subpart 242.11 is used by contract administration offices to monitor contract progress, identify factors that may delay contract performance, and to ascertain potential contract delinquencies.
b. The information required by DFARS 252.242-7004 is used by contracting officers to determine if contractor material management and accounting systems conform to established DoD standards.
This information collection includes requirements relating to DFARS part 242, Contract Administration and Audit Services, and the related clause at DFARS part 252.
a. DFARS 242.11 requires DoD contract administration personnel to perform production surveillance to monitor contractor progress and identify any factors that may delay performance. The Government relies on the production progress reports provided by the contractor in the performance of this function.
(2) DFARS 252.242-7004 requires a contractor to establish and maintain a material management and accounting system for applicable contracts, to provide results of system reviews, and
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Consideration will be given to all comments received by January 19, 2016.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
Written requests for copies of the information collection proposal should be sent to Mr. Licari at: Publication Collections Program, WHS/ESD Information Management Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of Intent.
The purpose of this notice is to initiate the scoping process for the preparation of an Integrated General Reevaluation Report and Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for channel modification opportunities to Unit 2, 3 and 4 of the Corte Madera Creek Flood Control Project in Marin County, CA.
A public scoping meeting will be held on January 14, 2016 from 6:00 to 8:00 p.m. (PST). Submit comments concerning this notice on or before February 1, 2016.
The scoping meeting location is: the Marin Arts and Garden Center, 30 Sir Francis Drake Boulevard, Ross, CA 94957-9601. Mail written comments concerning this notice to: U.S. Army Corps of Engineers, San Francisco District, Planning Branch, ATTN: Stephen M. Willis, 1455 Market Street, San Francisco, CA 94103-1398. Comment letters should include the commenter's physical mailing address, the project title and the Corps file number in the subject line.
Stephen M. Willis, U.S. Army Corps of Engineers, San Francisco District, Planning Branch, 1455 Market Street, San Francisco CA 94103-1398, (415) 503-6861,
In accordance with the National Environmental Policy Act (NEPA), the U.S. Army Corps of Engineers intends to prepare an Environmental Impact Statement (EIS). The Corps will address channel modification opportunities to Unit 4 of Corte Madera Creek, Marin County, CA, in accordance with the Flood Control Act of 1962, Public Law 87-4, 87th Congress, 2nd Session, approved October 23, 1962, and amended by Section 204 of Public Law 89-789, the Flood Control Act of 1966, and the Water Resources Development Act of 1986. Modifications to Unit 4
Pursuant to the California Environmental Quality Act (CEQA), Marin County Flood Control and Water Conservation District Zone 9 (MCFCWCD) is the lead agency and local sponsor in preparing an Environmental Impact Report (EIR). The Corps and MCFCWCD have agreed to jointly prepare a Draft EIS/EIR to optimize efficiency and avoid duplication. The Draft EIS/EIR is intended to be sufficient in scope to address the Federal, state and local requirements and environmental issues concerning the proposed activities and permit approvals.
The USACE's Corte Madera Creek Flood Control Project is consistent and compatible with the District's Ross Valley Flood Control Program, the purpose of which is to manage flood risk in the Ross Valley watershed.
Additional studies conducted by the Corps focused on evaluating the design performance of Units 3 and 4. These studies identified the abrupt transition between Units 3 and 4 created by the existing Denil fish ladder, the narrow channel condition on the east and west bank, and the Lagunitas Road Bridge as constrictions to flood flow. The Town of Ross replaced the Lagunitas Road Bridge in 2010 with a higher bridge profile to accommodate a greater flow capacity of approximately 5,400 cubic feet per second.
A charrette was held in 2013 to restart the project study under the Corps' SMART Planning principles. SMART Planning is intended to be Specific, Measureable, Attainable, Risk Informed, and Timely planning to complete USACE feasibility studies in a cost-effective and efficient manner. More information on the SMART Planning process is available at
Additional information on this project can be found at
The purpose of the public scoping meeting is to solicit comments regarding the potential impacts, environmental issues, and alternatives associated with the proposed action to be considered in the Draft EIS/EIR. The meeting place, date and time will be advertised in advance in local newspapers, and meeting announcement letters will be sent to interested parties. The Draft Integrated General Reevaluation Report and EIS/EIR is expected to be available for public review and comment in the Fall of 2016 and a public meeting will be held after its publication.
Department of the Army, U.S. Army Corps of Engineers, DOD.
Notice of intent.
The purpose of the feasibility study is to improve navigation in Manatee Harbor.
U.S. Army Corps of Engineers, Planning Division, Environmental Branch, P.O. Box 4970, Jacksonville, FL 32232-0019.
Dr. Aubree Hershorin at (904) 232-2136 or email at
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a. Public and Agency Involvement. A scoping letter is being sent to agencies, commercial interests, and the public.
b. Issues to be Analyzed in Depth in the DEIS. Important issues expected include impacts to protected species, seagrass, hardgrounds, socio-economic factors, and any other factors that might be determined during the scoping and plan formulation process.
c. Possible Assignments for Input into the EIS among Lead and Potential Cooperating Agencies.
d. Other Environmental Review and Consultation Requirements. The proposed action is subject to the requirements of the Endangered Species Act, Marine Mammal Protection Act, Essential Fish Habitat requirements, National Historic Preservation Act, numerous other laws and executive orders, and any other requirements that might be identified during the scoping and plan formulation process.
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Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The United States Department of Education (Department) intends to compromise a claim against the State of Washington Department of Services for the Blind (Washington) now pending before the Office of Administrative Law Judges (OALJ), Docket No. 15-30-R. Before compromising a claim, the Department must publish its intent to do so in the
We must receive your comments on the proposed action on or before February 1, 2016.
Address all comments concerning the proposed action to Marcus Hedrick, Office of the General Counsel, U.S. Department of Education, 400 Maryland Avenue SW., Room 6E220, Washington, DC 20202-2110.
Marcus Hedrick. Telephone: 202-401-8316 or by email:
If you use a telecommunications device for the deaf or a text telephone, you may call the Federal Relay Service, toll free, at 1-800-877-8339.
On March 10, 2015, the Acting Assistant Secretary for Special Education and Rehabilitative Services (Assistant Secretary) issued two program determination letters (PDLs) seeking to recover a total of $730,053 of Vocational Rehabilitation (VR) State grant funds from Washington. Based on findings in single audits of Washington (Audit Control Numbers 10-12-38440 and 10-13-48310), these funds were determined by the Assistant Secretary to have been expended, during the fiscal years 2012 and 2013, in violation of the indirect cost provisions under the Education Department General Administrative Regulations at 34 CFR 76.560. Specifically, the PDLs indicated that Washington had charged indirect costs to the VR grant program without an approved indirect cost agreement, and identified $621,871 for recovery in fiscal year 2012 and $108,182 for recovery in fiscal year 2013.
Washington filed
The Department proposes to compromise the total claim to $530,053 (the fiscal year 2012 recovery will be reduced to $451,605 and the fiscal year 2013 recovery will be reduced to $78,447). The Department has determined that it would not be practical or in the public interest to continue proceeding, based on litigation risks and the cost of proceeding through the administrative, and possible court, process for this appeal. Also, in light of corrective actions Washington has taken, the Department does not anticipate this violation of the indirect cost provisions will recur. As a result, under the authority in 20 U.S.C. 1234a(j), the Department has determined that compromise of this claim to $530,053 is appropriate and in the public interest. The public is invited to comment on the Department's intent to compromise this claim. Additional information may be obtained by calling or writing the contact person listed under
You may also access documents of the Department published in the
20 U.S.C. 1234a(j).
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before February 16, 2016.
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 Jon Utz, 202-377-4040.
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.
Western Area Power Administration, Department of Energy (DOE).
Notice of Intent.
Western Area Power Administration (Western) and the Sacramento Municipal Utility District (SMUD) are jointly proposing the new 500-kilovolt (kV) Colusa-Sutter (CoSu) Transmission Line Project (Project) to be located within Colusa and Sutter Counties, California. The Project would interconnect the California-Oregon Transmission Project (COTP) transmission system, near either Arbuckle or Maxwell, California, to the Central Valley Project (CVP) transmission system near Yuba City, California. This notice announces Western's decision to jointly prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) in conjunction with SMUD's preparation of a California Environmental Quality Act (CEQA) environmental impact report (EIR). The joint EIS/EIR will examine the potential environmental effects of the CoSu Project.
The joint EIS/EIR will address Western's proposed action of constructing the CoSu Project as well as making any necessary modifications to Western facilities to accommodate the new line; and SMUD's proposed action of whether or not to fund the proposed Project.
This notice starts a 60-day public scoping period that will assist in the preparation of a Draft EIS/EIR. During
The scoping period begins with the publication of this notice and closes on February 16, 2016.
To provide the public an opportunity to review, discuss, and comment on the proposed Project, Western and SMUD will hold four public meetings during January 12-14, 2016. See
Written comments on the proposed scope of the Draft EIS/EIR for the CoSu Project may be mailed or emailed to: Mr. Andrew M. Montaño, Western Area Power Administration, Headquarters, P.O. Box 281213, Lakewood, CO 80228-8213, email:
For further information and/or to have your name added to our mailing list, please contact Andrew M. Montaño, at (720) 962-7253 or at the address listed in the
For general information on DOE's NEPA review procedures or status of a NEPA review, contact Ms. Carol M. Borgstrom, Director of NEPA Policy and Compliance, GC-54, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; telephone (202) 586-4600 or (800) 472-2756; or email:
For general information on the SMUD CEQA review procedures or status of the CEQA review, please contact Ms. Emily Bacchini, Environmental Management Specialist, Sacramento Municipal Utility District, 6201 S. Street, Mailstop H201, Sacramento, CA 95852-1830; telephone (916) 732-6334; email:
Western is a Federal agency under the U.S. Department of Energy (DOE) that markets and transmits wholesale electrical power through an integrated 17,000-plus circuit mile, high-voltage transmission system across 15 central and western states.
Western, the lead Federal agency for the EIS, will coordinate with appropriate Federal, State and local agencies and potentially affected Native American tribes during the preparation of the EIS/EIR. Western will coordinate with SMUD in the preparation of the joint EIS/EIR. Agencies with legal jurisdiction or special expertise are invited to participate as cooperating agencies, as defined in 40 CFR 1501.6, in preparation of the EIS. Such agencies may make a request to Western to be a cooperating agency. Designated cooperating agencies have certain responsibilities to support the NEPA process, as specified in 40 CFR 1501.6(b).
SMUD is the primary distributor of electric power within an area of approximately 900 square miles in Sacramento County and a portion of Placer County, and serves over 624,000 electric customers. SMUD owns and operates an integrated electric system that includes transmission, distribution and generation facilities. SMUD is a member of the Transmission Agency of Northern California, which holds significant entitlements to obtain energy through the COTP. To use these rights, SMUD has long-term transmission service agreements with Western. SMUD's transmission system also contributes to and is affected by voltage stability, transmission system reliability, and security of the greater Sacramento-area transmission system. These imports allow higher demand levels to be reliably served at lower internal generation requirements, reducing carbon emissions from SMUD's natural gas generation facilities.
SMUD submitted a transmission service request to Western under Western's Open Access Transmission Tariff for service between the COTP and SMUD's transmission system. Western did not have available transmission capacity to meet the service request on its existing facilities in the area; so SMUD proposed the construction of the CoSu Project. Western would build the Project as allowed by law pursuant to the Acts of Congress approved June 17, 1902 (32 Stat. 388); August 26, 1937 (50 Stat. 844, 850); August 4, 1939 (53 Stat. 1187); and August 4, 1977 (91 Stat. 565); as supplemented and amended. The CoSu Project would provide SMUD access to existing renewable resources in the Pacific Northwest and other markets, provide regional voltage support, and assist SMUD in planning for anticipated load growth. In addition, the CoSu Project would improve the network transmission infrastructure and import capability into the Sacramento area and ensures the continued safe and reliable operation of the regional transmission system.
The proposed corridors to be studied and evaluated are within Colusa and Sutter Counties, California. The proposed Project would consist of the following primary components:
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2.
3. Additionally, a
Western will consider a No Action Alternative in the EIS/EIR. Under the No Action Alternative, for the purpose of establishing a baseline for impact analysis and comparison in the EIS/EIR, Western would not construct the proposed Project and the environmental
Western has determined that an EIS is appropriate under DOE NEPA implementing procedures, 10 CFR part 1021.
This notice is to inform agencies and the public of Western's and SMUD's intent to prepare a joint EIS/EIR and solicit comments and suggestions for consideration in the EIS/EIS. To help the public frame its comments, the following list contains potential environmental issues preliminarily identified for analysis in the EIS/EIR:
• Impacts on protected, threatened, endangered, or sensitive species of animals or plants;
• Impacts on migratory birds;
• Introduction of noxious weeds, invasive and non-native species;
• Impacts on recreation and transportation;
• Impacts on land use, wilderness, farmlands, and environmentally-sensitive areas;
• Impacts on cultural or historic resources and tribal values;
• Impacts on human health and safety;
• Impacts on air, soil, and water resources (including air quality and surface water impacts);
• Visual impacts; and
• Socioeconomic impacts and disproportionately high and adverse impacts to minority and low-income populations (
This list is not intended to be all-inclusive or to imply any predetermination of impacts. Western invites interested parties to suggest specific issues within these general categories, or other issues not included above, to be considered in the EIS/EIR.
The EIS/EIR process includes a public scoping period; public scoping meetings; publication and public review of the Draft EIS/EIR; publication of a Final EIS/EIR; and publication of a ROD.
Western and SMUD will hold four public scoping meetings at the following times and locations:
(1) Tuesday, January 12, 2016, from 4:00 p.m. to 7:00 p.m. at the Colusa Casino Community Room, 3770 California 45, Colusa, CA 95932;
(2) Wednesday, January 13, 2016, from 8:00 a.m. to 11:00 a.m. at the Colusa Casino Community Room, 3770 California 45, Colusa, CA 95932;
(3) Wednesday, January 13, 2016, from 4:00 p.m. to 7:00 p.m. at the Sutter Youth Organization Center, 7740 Butte House Road, Sutter, CA 95982;
(4) Thursday, January 14, 2016, from 8:00 a.m. to 11:00 a.m. at the Sutter Youth Organization Center, 7740 Butte House Road, Sutter, CA 95982.
The meetings will be informal, and attendees will be able to speak directly with Western and SMUD representatives about the proposed Project. Attendees also may provide comments at these meetings. For the most recent information and for announcements, please visit the Project Web site at:
At the conclusion of the NEPA process, Western will prepare a ROD. Persons interested in receiving future notices, proposed Project information, copies of the EIS/EIR, and other information on the NEPA review process should contact Mr. Montaño at the address listed in the
The purpose of the scoping meetings is to provide information about the proposed Project, review Project maps, answer questions, and take oral and written comments from interested parties. All meeting locations will be handicapped-accessible. Anyone needing special accommodations should contact Mr. Montaño to make arrangements.
The public will have the opportunity to provide written comments at the public scoping meetings. Written comments may also be sent to Mr. Montaño by email or U.S. Postal Service mail. To help define the scope of the EIS/EIR, comments should be received by Western no later than February 16, 2016.
Environmental Protection Agency (EPA).
Notice of issuance of NPDES general permits under the authority of Section 402 of the Clean Water Act.
The Environmental Protection Agency (EPA) Region 8 is hereby giving notice of its issuance of six National Pollutant Discharge Elimination System (NPDES) lagoon general permits for wastewater lagoon systems located in Indian country in Region 8 (CO, MT, ND, SD, UT, & WY). These general permits are similar to the existing permits and will authorize the discharge of wastewater from lagoons located in Region 8 Indian country in accordance with the terms and conditions described therein.
The general permits become effective on January 1, 2016 and will expire five years from that date. For purposes of seeking review of this permit pursuant to 40 CFR 124.19(o) and 33 U.S.C. 1369(b)(1), the 120 day time period for appeal to the federal court will begin on January 1, 2016.
Additional information concerning the final permits may be obtained from VelRey Lozano, EPA Region 8, Wastewater Unit (8P-W-WW), 1595 Wynkoop Street, Denver, CO 80202-1129, telephone 303-312-6128 or email at
The administrative record is available by appointment for review and copying, fee for copies may be required, at the EPA Region 8 offices during the hours
Proposed issuance of the general permits was published in the
These permits authorize the discharge of wastewater in accordance with the terms and conditions described therein. The fact sheet for the permits is provide for downloading concurrently with the permits and provides detailed information on: The decisions used to set limitations; the specific geographic areas covered by the permits; information on monitoring schedules; inspection requirements, and other regulatory decisions or requirements.
Issuance of the general permits covers discharges from wastewater lagoon systems located in Indian country in Region 8. The general permits are grouped geographically by state, with the permit coverage being for specified Indian reservations located within a state boundary [specific permit coverage areas below]; any land held in trust by the United States for an Indian tribe; and any other areas which are Indian country within the meaning of 18 U.S.C. 1151.
Colorado: The COG587### permit covers the Southern Ute and the Ute Mountain Reservations, including those portions of the Reservation located in New Mexico and Utah.
Montana: MTG589### This permit covers the Blackfeet Indian Reservation of Montana; the Crow Indian Reservation; the Flathead Reservation; the Fort Belknap Reservation of Montana; the Fort Peck Indian Reservation; the Northern Cheyenne Indian Reservation; and the Rocky Boy's Reservation.
North Dakota: NDG589### This permit covers the Fort Berthold Reservation; the Spirit Lake Indian Reservation; the Standing Rock Sioux Reservation; and the Turtle Mountain Reservation.
This permit includes that portion of the Standing Rock Sioux Reservation and associated Indian country located within the State of South Dakota. It does not include any land held in trust by the United States for the Sisseton-Wahpeton Oyate or any other Indian country associated with that Tribe, which is covered under general permit SDG589###.
South Dakota: SDG589### This permit covers the Cheyenne River Reservation; Crow Creek Reservation; the Flandreau Santee Sioux Indian Reservation; the Lower Brule Reservation; the Pine Ridge Reservation (including the entire Reservation, which is located in both South Dakota and Nebraska); the Rosebud Sioux Indian Reservation; and the Yankton Sioux Reservation.
This permit includes any land in the State of North Dakota that is held in trust by the United States for the Sisseton-Wahpeton Oyate or any other Indian country associated with that Tribe. It does not include the Standing Rock Sioux Reservation or any associated Indian country, which is covered under general permit NDG589###.
Utah: UTG589### This permit covers the Northwestern Band of Shoshoni Nation of Utah Reservation (Washakie); the Paiute Indian Tribe of Utah Reservation; the Skull Valley Indian Reservation; and Indian country lands within the Uintah & Ouray Reservation. It does not include any portions of the Navajo Nation or the Goshute Reservation.
Wyoming: WYG589### This permit covers the Wind River Reservation.
Coverage under the general permits is limited to lagoon systems treating primarily domestic wastewater and includes two categories of coverage; discharging lagoons, and lagoons expected to have no discharge. The effluent limitations for discharging lagoons are based on the Federal Secondary Treatment Regulation (40 CFR part 133) and best professional judgement. The fact sheet also addresses situations in which more stringent and/or additional effluent limitations are determined necessary to comply with applicable water quality standards. Lagoon systems under the no discharge category are required to have no discharge except in accordance with the bypass provisions of the permit. Self-monitoring requirements and routine inspection requirements are included in the permits.
Where the Tribes have Clean Water Act § 401(a)(1) certification authority; Blackfeet Indian Reservation, Flathead Indian Reservation, the Fort Peck Indian Reservation, Northern Cheyenne Indian Reservation, and the Ute Mountain Indian Reservation; EPA has requested certification that the permits comply with the applicable provisions of the CWA and tribal water quality standards.
Clean Water Act, 33 U.S.C. 1251,
Responsible Agency: Office of Federal Activities, General Information (202) 564-7146 or
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
The U.S. Department of Commerce's National Oceanic and Atmospheric Administration (NOAA) is adopting the Federal Emergency Management Agency's FEIS #20150296, filed 10/22/2015 with EPA. NOAA was a cooperating agency for the above project, therefore recirculation of the document is not necessary under Section 1506.3(c) of the Council on Environmental Quality Regulations.
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before January 13, 2016.
Interested parties may file a comment at
William Lanning (202-326-3361), Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for December 14, 2015), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before January 13, 2016. Write “Drug Testing Compliance Group—Consent Agreement; File No. 151-0048” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices,
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Drug Testing Compliance Group—Consent Agreement; File No. 151-0048” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an agreement containing consent order (“Consent Agreement”) from Drug Testing Compliance Group, LLC (“DTC Group”). The Commission's Complaint alleges that DTC Group violated Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, by inviting a competitor to enter a customer allocation agreement.
Under the terms of the proposed Consent Agreement, DTC Group is required to cease and desist from communicating with its competitors about customers and prices. The Consent Agreement also prohibits DTC Group from entering into, participating in, inviting, or soliciting an agreement with any competitor to allocate customers, to divide markets, or to fix prices.
The Consent Agreement has been placed on the public record for 30 days for receipt of comments from interested members of the public. Comments received during this period will become part of the public record. After 30 days, the Commission will review the Consent Agreement again and the comments received, and will decide whether it should withdraw from the Consent Agreement or make final the accompanying Decision and Order (“Proposed Order”).
The purpose of this Analysis to Aid Public Comment is to invite and facilitate public comment. It is not intended to constitute an official interpretation of the proposed Consent Agreement and the accompanying Proposed Order or in any way to modify their terms.
The allegations of the Complaint are summarized below:
DTC Group markets and sells an array of services to commercial drivers, commercial trucking firms, and other persons that facilitate compliance with various regulations administered by the Department of Transportation and the Federal Motor Carrier Safety Administration, including regulations relating to drug and alcohol testing, safety audits, and driver qualifications.
DTC Group primarily utilizes telemarketing and the internet to market and sell its services. DTC Group competes with several firms throughout the United States offering similar services.
DTC Group and Competitor A market and sell similar services in direct competition. Beginning in 2013 and continuing to date, DTC Group and Competitor A have competed for one another's customers by offering lower prices for the services they sell. In some instances, one firm can induce a customer, whose contract is terminable at will, to switch service providers by offering lower prices.
On or about June 27, 2014, the president of DTC Group, David Crossett, contacted Competitor A to complain that Competitor A's sales personnel had induced a DTC Group customer to switch service providers. Mr. Crossett requested a meeting with Competitor A to discuss the matter.
Mr. Crossett met with the principals of Competitor A on July 10, 2014. Mr. Crossett proposed that the firms agree not to solicit or compete for one another's customers. Specifically, Mr. Crossett proposed that DTC Group and Competitor A should reciprocally agree to refrain from selling or attempting to sell a service to a customer if the rival firm had previously arranged to sell the same service to the customer. Mr. Crossett referred to this arrangement as “First Call Wins,” and explained that such agreement would permit each company to sell its services to customers without fearing that its rival would later undercut it with a lower price offer.
Mr. Crossett's communication to Competitor A is an attempt to arrange a customer allocation agreement between the two companies. The invitation, if accepted, would be a
An invitation to collude is “potentially harmful and . . . serves no legitimate business purpose.”
The Commission has long held that an invitation to collude violates Section 5 of the FTC Act even where there is no proof that the competitor accepted the invitation.
The Proposed Order has the following substantive provisions:
Section II, Paragraph A of the Proposed Order enjoins DTC Group from communicating with its competitors about rates or prices, with a proviso permitting public posting of rates.
Section II, Paragraph B prohibits DTC Group from entering into, participating in, maintaining, organizing, implementing, enforcing, inviting, offering, or soliciting an agreement with any competitor to divide markets, to allocate customers, or to fix prices.
Section II, Paragraph C bars DTC Group from urging any competitor to raise, fix, or maintain its price or rate levels, or to limit or reduce service terms or levels.
Sections III-VI of the Proposed Order impose reporting and compliance requirements on DTC Group.
The Proposed Order will expire in 20 years.
By direction of the Commission.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice of meeting.
This notice announces the new meeting of the Advisory Panel on Outreach and Education (APOE) (the Panel) in accordance with the Federal Advisory Committee Act. The Panel advises and makes recommendations to the Secretary of the U.S. Department of Health and Human Services (HHS) and the Administrator of the Centers for Medicare & Medicaid Services (CMS) on opportunities to enhance the effectiveness of Health Insurance Marketplace
Abigail Huffman, Designated Federal Official, Office of Communications, CMS, 7500 Security Boulevard, Mail Stop S1-05-06, Baltimore, MD 21244, 410-786-0897, email
The Advisory Panel for Outreach and Education (APOE) (the Panel) is governed by the provisions of Federal Advisory Committee Act (FACA) (Pub. L. 92-463), as amended (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of federal advisory committees. The Panel is authorized by section 1114(f) of the Social Security Act (42 U.S.C. 1314(f)) and section 222 of the Public Health Service Act (42 U.S.C. 217a).
The Secretary of the U.S. Department of Health and Human Services (HHS) (the Secretary) signed the charter establishing the Citizen's Advisory Panel on Medicare Education
The Medicare Modernization Act of 2003 (MMA) (Pub. L. 108-173) expanded the existing health plan options and benefits available under the M+C program and renamed it the Medicare Advantage (MA) program. We have had substantial responsibilities to provide information to Medicare beneficiaries about the range of health plan options available and better tools to evaluate these options. The successful MA program implementation required CMS to consider the views and policy input from a variety of private sector constituents and to develop a broad range of public-private partnerships.
In addition, Title I of the MMA authorized the Secretary and the Administrator of CMS (by delegation) to establish the Medicare prescription drug benefit. The drug benefit allows beneficiaries to obtain qualified prescription drug coverage. In order to effectively administer the MA program and the Medicare prescription drug benefit, we have substantial responsibilities to provide information to Medicare beneficiaries about the range of health plan options and benefits available, and to develop better tools to evaluate these plans and benefits.
The Affordable Care Act (Patient Protection and Affordable Care Act, Pub. L. 111-148, and Health Care and Education Reconciliation Act of 2010, Pub. L. 111-152) expanded the availability of other options for health care coverage and enacted a number of changes to Medicare as well as to Medicaid and the Children's Health Insurance Program (CHIP). Qualified individuals and qualified employers are now able to purchase private health insurance coverage through competitive marketplaces called Affordable Insurance Exchanges, or “Exchanges” (we also call an Exchange a Health Insurance Marketplace
The scope of this panel also includes advising on issues pertaining to the education of providers and stakeholders with respect to the Affordable Care Act and certain provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act enacted as part of the American Recovery and Reinvestment Act of 2009 (ARRA).
On January 21, 2011, the Panel's charter was renewed and the Panel was renamed the Advisory Panel for Outreach and Education. The Panel's charter was most recently renewed on January 21, 2015, and will terminate on January 21, 2017 unless renewed by appropriate action.
Under the current charter, the APOE will advise the Secretary and the Administrator on optimal strategies for the following:
• Developing and implementing education and outreach programs for individuals enrolled in, or eligible for, Medicare, Medicaid, and the Children's Health Insurance Program (CHIP), or coverage available through a Health Insurance Marketplace
• Enhancing the federal government's effectiveness in informing Health Insurance Marketplace
• Expanding outreach to vulnerable and underserved communities, including racial and ethnic minorities, in the context of Health Insurance Marketplace
• Assembling and sharing an information base of “best practices” for helping consumers evaluate health coverage options.
• Building and leveraging existing community infrastructures for information, counseling, and assistance.
• Drawing the program link between outreach and education, promoting consumer understanding of health care coverage choices, and facilitating consumer selection/enrollment, which in turn support the overarching goal of improved access to quality care, including prevention services, envisioned under the Affordable Care Act.
The current members of the Panel are: Kellan Baker, Associate Director, Center for American Progress; Robert Blancato, President, Matz, Blancato & Associates; Dale Blasier, Professor of Orthopaedic Surgery, Department of Orthopaedics, Arkansas Children's Hospital; Deborah Britt, Executive Director of Community & Public Relations, Piedmont Fayette Hospital; Deena Chisolm, Associate Professor of Pediatrics & Public Health, The Ohio State University, Nationwide Children's Hospital; Josephine DeLeon, Director, Anti-Poverty Initiatives, Catholic Charities of California; Robert Espinoza, Vice President of Policy, Paraprofessional Healthcare Institute; Jennifer Gross, Manager of Political Field Operations, Planned Parenthood of Montana; Louise Scherer Knight, Director, The Sidney Kimmel Comprehensive Cancer Center at Johns Hopkins; Miriam Mobley-Smith, Dean, Chicago State University, College of Pharmacy; Roanne Osborne-Gaskin, M.D., Senior Medical Director, MDWise, Inc.; Cathy Phan, Outreach and Education Coordinator, Asian American Health Coalition DBA HOPE Clinic; Kamila Pickett, Litigation Support, Independent Contractor; Brendan Riley, Outreach and Enrollment Coordinator, NC Community Health Center Association; Jeanne Ryer, Director, New Hampshire Citizens Health Initiative, University of New Hampshire; Alvia Siddiqi, Medicaid Managed Care
In accordance with section 10(a) of the FACA, this notice announces a meeting of the APOE. The agenda for the January 13, 2016 meeting will include the following:
Individuals or organizations that wish to make a 5-minute oral presentation on an agenda topic should submit a written copy of the oral presentation to the DFO at the address listed in the
Sec. 222 of the Public Health Service Act (42 U.S.C. 217a) and sec. 10(a) of Pub. L. 92-463 (5 U.S.C. App. 2, sec. 10(a) and 41 CFR 102-3).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions:
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
The goal of this revision of the CMS-855S is to simplify and clarify the current data collection and to remove obsolete and/or redundant questions. Grammar and spelling errors were corrected. Limited informational text has been added within the application form and instructions in conjunction with links to Web sites when detail is needed by the supplier. To clarify current data collection differentiations and to be in sync with accreditation coding, section 3D (“Products and Services Furnished by This Supplier”) has been updated. This revision does not offer any new material data collection. CMS received one comment in response to the 60-day notice.
2.
3.
ACF oversees more than 60 programs that affect the normal day to day operations of families, children, individuals and communities in the United States. Many of these programs encourage grantees or state administrators to develop emergency preparedness plans, but do not have statutory authority to require these plans be in place. ACF facilitates the inclusion of emergency preparedness planning and training efforts for ACF programs.
Presidential Policy Directive-8 (PPD-8) provides federal guidance and planning procedures under established phases—protection, preparedness, response, recovery, and mitigation. The Disaster Information Collection Forms addressed in this clearance process provide assessment of ACF programs in disaster response, and recovery.
ACF/Office of Human Services Emergency Preparedness and Response (OHSEPR) has a requirement under PPD-8, the National Response Framework, and the National Disaster Recovery Framework to report disaster impacts to ACF-supported human services programs to the HHS Secretary's Operation Center (SOC) and interagency partners. ACF/OHSEPR works in partnership with the Assistant Secretary for Preparedness and Response (ASPR), and the Federal Emergency Management Agency (FEMA) to report assessments of disaster impacted ACF programs and the status of continuity of services and recovery.
An estimate of the number of disasters that would warrant data collection is difficult to calculate due to the unpredictable nature of disasters. For example, in 2012, there were 95 disasters nationwide but OHSEPR did not collect data on all of them because they had minimal effects on ACF programs.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Moon Hee V. Choi at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for XTANDI and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human drug product.
Anyone with knowledge that any of the dates as published (in the
You may submit comments as follows:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
• Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION”. The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301-796-3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human drug product XTANDI (enzalutamide). XTANDI is indicated for the treatment of patients with metastatic castration-resistant prostate cancer who have previously received docetaxel. Subsequent to this approval, the USPTO received a patent term restoration application for XTANDI (U.S. Patent No. 8,183,274) from The Regents of the University of California, and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated July 16, 2013, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of XTANDI represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for XTANDI is 1,892 days. Of this time, 1,790 days occurred during the testing phase of the regulatory review period, while 102 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 101 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and ask for a redetermination (see
Submit petitions electronically to
Office of Disease Prevention and Health Promotion, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
The U.S. Department of Health and Human Services (HHS) announces the intent to establish a Physical Activity Guidelines Advisory Committee (Committee). It is planned for the Committee to be established in calendar year 2016. This notice also serves to announce that an invitation is being extended for nominations of qualified candidates to be considered for appointment as a member of the Committee.
Nominations for membership on the Committee must be submitted by 6:00 p.m. ET on Friday, February 5, 2016.
Nominations should be submitted by email to
Designated Program Official, 2018 Physical Activity Guidelines Advisory Committee, Richard D. Olson and/or Alternate Designated Program Official, Katrina L. Piercy, Ph.D., R.D., HHS/OASH/ODPHP; 1101 Wootton Parkway, Suite LL-100; Rockville, MD 20852; Telephone: (240) 453-8280. Additional information is available at
The Committee will be established as a discretionary federal advisory committee and governed by the provisions of the Federal Advisory Committee Act (FACA), Public Law 92-463, as amended (5 U.S.C., App.). The work of the Committee will be solely advisory in nature and time-limited. Formation of the Committee is necessary and in the public interest. The Committee will examine the current PAG, take into consideration new scientific evidence and current resource documents, and then develop a scientific advisory report to be submitted to the Secretary of HHS that outlines its science-based recommendations and rationale. The scientific report will be used by the federal government to develop the 2nd edition of the
The Committee is expected to begin meeting in summer of 2016. The Committee is expected to meet approximately five times during the course of its operation. Pursuant to FACA, all meetings of the full Committee will be open to the public.
Individuals selected for appointment to the Committee will be invited to serve as members until the charter expires or the Committee accomplishes its mission. In keeping with FACA, the charter will expire two years from the date it is established. The Committee will operate until its report is delivered to the Secretary or the charter expires, whichever comes first. There will be no
All nominations must include the required information. Incomplete nominations will not be processed for consideration. Federal employees should not be nominated for consideration of appointment to this Committee.
Equal opportunity practices regarding membership appointments to the Committee will be aligned with HHS policies. When possible, every effort will be made to ensure that the Committee is a diverse group of individuals with representation from various geographic locations, racial and ethnic minorities, all genders, and persons with disabilities. Individuals will be appointed to serve as members of the Committee to represent balanced viewpoints of the scientific evidence, not to represent the viewpoints of any specific group.
Members of the Committee will be classified as special government employees (SGEs) during their term of appointment to the Committee, and as such are subject to the ethical standards of conduct for federal employees. Upon entering the position and annually throughout the term of appointment, members of the Committee will be required to complete and submit a report of their financial holdings, consultancies, and research grants and/or contracts. The purpose of this report is to determine if the individual has any interest and/or activities in the private sector that may conflict with performance of their official duties as a member of the Committee.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Council for Nursing Research.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the 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.
Open: January 26, 2016, 1:00 p.m. to 4:45 p.m.
Closed: January 27, 2016, 9:00 a.m. to 1:00 p.m.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
The Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM) announces a public webinar “Fundamentals of Using Quantitative Structure—Activity Relationship Models and Read-Across Techniques in Predictive Toxicology.” The webinar is organized on behalf of ICCVAM by the National Toxicology Program Interagency Center for the Evaluation Alternative Toxicological Methods (NICEATM) and hosted by the U.S. Environmental Protection Agency's (EPA's) National Center for Computational Toxicology (NCCT). Interested persons may participate via Adobe® Connect
Registration for Webinar: December 18, 2015 until January 26, 2016 at 2:30 p.m.
Webinar Web page:
Dr. Warren S. Casey, Director, NICEATM; email:
Many commercial and environmental chemicals lack toxicity data necessary for users and risk assessors to make informed decisions about their potential health effects. Computational methods use data about structure, properties, and toxicity from tested chemicals to make predictions about the characteristics of untested chemicals. These include quantitative structure-activity relationship (QSAR) models, which predict the activities of chemicals with unknown properties by relating them to properties of known chemicals, and read-across, which uses toxicity data from a known (source) chemical to predict toxicity for another (target) chemical, usually but not always on the basis of structural similarity. Predictions made using these methods about toxicity of untested chemicals can help set priorities for future
The ICCVAM webinar will feature presentations by two experts in the development and application of QSAR models and read-across techniques. Alex Tropsha, Ph.D., associate dean for pharmacoinformatics and data science at the University of North Carolina at Chapel Hill, will discuss fundamentals of QSAR models. Louis (Gino) Scarano, Ph.D., of the EPA's Office of Pollution Prevention and Toxics, will describe read-across techniques and discuss the regulatory applications of QSAR models and read-across techniques.
The preliminary agenda is available at
Individuals with disabilities who need accommodation to participate in this event should contact Ms. LaCresha Styles at phone: (919) 541-3282 or email:
ICCVAM conducts technical evaluations of new, revised, and alternative test methods and testing strategies with regulatory applicability and promotes the scientific validation and regulatory acceptance of test methods that both more accurately assess the safety and hazards of chemicals and products and replace, reduce, or refine (enhance animal well-being and lessen or avoid pain and distress) animal use. ICCVAM acts to ensure that new and revised test methods are validated to meet the needs of federal agencies, to increase the efficiency and effectiveness of federal agency test method review, and to optimize utilization of scientific expertise outside the federal government. Additional information about ICCVAM can be found at
NICEATM administers ICCVAM, provides scientific and operational support for ICCVAM activities, and conducts analyses and evaluations and coordinates independent validation studies on novel and high-priority alternative testing approaches. NICEATM and ICCVAM work collaboratively to evaluate new and improved test methods and strategies applicable to the needs of U.S. federal agencies. NICEATM and ICCVAM welcome the public nomination of new, revised, and alternative test methods and strategies for validation studies and technical evaluations. Additional information about NICEATM can be found at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
This notice, in accordance with 35 U.S.C. 209 and 37 CFR part 404, that the National Cancer Institute (NCI), National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive patent license to practice the inventions embodied in the following U.S. Patents and Patent Applications to Heliome Biotech, Inc. (“Heliome”) located in New York, NY, USA.
The patent rights in these inventions have been assigned to the government of the United States of America.
The prospective exclusive license territory may be worldwide and the field of use may be limited to the use of the Licensed Patent Rights to make or have made, use and sell a small molecule farnesoid X receptor inhibitor for all metabolic diseases.
Only written comments and/or applications for a license which are received by the NCI Technology Transfer Center on or before January 4, 2016 will be considered.
Requests for copies of the patent application, inquiries, and comments relating to the contemplated exclusive license should be directed to: Thomas Clouse, J.D., Senior Licensing and Patenting Manager, NCI Technology Transfer Center, 9609 Medical Center Drive, RM 1E530 MSC 9702, Bethesda, MD 20892-9702 (for business mail), Rockville, MD 20850-9702 Telephone: (240)-276-5530; Facsimile: (240)-276-5504 Email:
Remodeling the gut microbiota using specific compounds can affect high fat diet-induced obesity through signal transduction mediated by the nuclear receptor farnesoid X receptor (FXR). FXR is inhibited due to the altered gut microbiota as a result of lack of metabolism (bile salt hydrolase activity) of a potent FXR antagonist tauro-β-muracholic acid (TβMCA) that is produced in the liver and secreted to the intestine. The technology identifies a class of compounds that specifically decrease levels of Lactobacillus-associated bile salt hydrolase activity resulting in accumulation of intestinal TβMCA which is now identified as an antagonist of FXR. The technology has the potential of being developed into a therapeutic for various metabolic disorders associated with inhibition of the farnesoid X receptor pathway, including Non-Alcoholic Fatty Liver Disease (NAFLD), Type 2 Diabetes, and non-alcoholic steatohepatitis (NASH).
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR part 404. The prospective exclusive license may be granted unless within fifteen (15) days from the date of this published notice, the NCI receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
Applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory General Medical Sciences Council.
The meeting will be open to the public as indicated below, with a short public comment period at the end. Attendance is limited by the space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The open session will also be videocast and can
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.
Closed: January 28, 2016, 8:30 a.m. to 5:00 p.m.
Open: January 29, 2016, 8:30 a.m. to Adjournment.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and, when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxis, hotel, and airport shuttles, will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit. Information is also available on the Institute's home page (
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.
The National Toxicology Program (NTP) announces the public workshop, “Addressing Challenges in the Assessment of Botanical Dietary Supplement Safety.” Presenters from academia, government, and industry will introduce the challenges in assessing botanical dietary supplement safety and present various approaches that could facilitate progress in three focus areas. The workshop will consist of plenary presentations and panel discussions. Information about the meeting and registration is available at (
Meeting: April 26-27, 2016, from 9 a.m. to approximately 5 p.m. Eastern Daylight Time (EDT).
Meeting Registration: Registration is open through April 12, 2016; registration will close earlier if space capacity is reached. Registration to view the workshop via webcast is required.
Meeting Location: Lister Hill Auditorium, National Library of Medicine, 8600 Rockville Pike, NIH Building 38A, Bethesda, MD 20894
Meeting Web page: The preliminary agenda and registration are at (
Webcast: The meeting will be webcast; the URL will be provided to those who register to view.
Dr. Cynthia Rider, NTP Toxicologist, NIEHS, P.O. Box 12233, MD K2-12, Research Triangle Park, NC 27709. Telephone: (919) 541-7638, email:
The safety of botanical dietary supplements, hereafter referred to as botanicals, is an important public health issue. According to the 2012 National Health Interview Survey, 17.7 percent of Americans reported having used nonvitamin, nonmineral dietary supplements (including botanicals) in the past 12 months (Clarke et al., 2015). Botanicals pose several unique challenges to efficacy and safety evaluation because of their inherent complexity and potential for wide variability in nominally related products. The interrelated challenges associated with the evaluation of botanicals include: (1) Developing methods and criteria for assessing phytoequivalence (
Multiple factors contribute to the variability in botanicals including complex and inconsistent source material, manufacturing processes, formulation, and storage. Botanicals in commerce often display a wide range in the concentration of known constituents. Robust procedures for comparing constituent profiles across multiple botanicals are needed to determine how broadly safety or efficacy evaluations with a specific product can be applied to related products. Topics for discussion at the workshop include definition of important chemical and biological activity features, statistical methods for comparing across complex mixtures, and how to define “similarity” across botanicals (
Botanicals are often perceived to have significant health benefits with low risk of harm. Since botanicals are complex natural products, the particular constituent(s) responsible for biological activity, as related to efficacy or toxicity, is often unknown. Participants at the workshop will discuss the relative merits of dedicating scientific attention to identifying the active constituent(s) in botanicals and identifying biological signatures that are predictive of adverse events (biomarkers of effect). Furthermore, presentations will address promising approaches (
Understanding the ADME of botanicals is critical to evaluating their safety. However, evaluating ADME in humans and animal models is complicated in the case of botanicals by the large number of constituents, the wide range of concentrations, potential interactions (botanical-botanical and botanical-drug interactions), as well as interindividual and animal-to-human differences in pharmacokinetics. The workshop will include discussion of knowledge gaps and available options for assessing ADME of botanicals to inform future safety evaluations.
This meeting is open to the public, free of charge, with attendance limited only by the space available. Individuals who plan to attend in person should register at (
Visitor and security information for those attending in person is available at
NTP is an interagency program established in 1978 (43 FR 53060) to strengthen the Department of Health and Human Services' activities in toxicology research and testing, and develop and validate new and better testing methods. Other activities of the program focus on strengthening the science base in toxicology and providing information about potentially toxic chemicals to health regulatory and research agencies, scientific and medical communities, and the public. NTP is located administratively at the National Institute of Environmental Health Sciences (NIEHS). Information about NTP and NIEHS is found at
Clarke, T.C. et al. Trends in the use of complementary health approaches among adults: United States, 2002-2012, in National health statistics reports. 2015. National Center for Health Statistics: Hyattsville, MD.
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
Coast Guard, DHS.
Notice of intent; request for comments.
The Coast Guard announces its intent to enter into a Cooperative Research and Development Agreement (CRADA) with Mercury Marine (Mercury) to evaluate and test the advantages, disadvantages, required technology enhancements, performance, costs, and other issues associated with diesel outboard engine technology. A test schedule has been proposed in which Mercury will provide and install two of their diesel outboard engines onto a selected Coast Guard boat platform; the Coast Guard Research and Development Center (R&D Center) will outfit the platform with the necessary instrumentation to monitor power, speed, and fuel consumption; and a Coast Guard field unit will operate the boat for performance testing over a six-month period to collect information on reliability, maintenance requirements, and availability data. While the Coast Guard is currently considering partnering with Mercury, the agency is soliciting public comment on the possible nature of and participation of other parties in the proposed CRADA. In addition, the Coast Guard also invites other potential non-Federal participants to propose similar CRADAs.
Comments must be submitted to the online docket via
Synopses of proposals regarding future CRADAs must reach the Coast Guard (see
Submit comments online at
If you have questions on this notice or wish to submit proposals for future CRADAs, contact LT Keely Higbie, Project Official, Surface Branch, U.S. Coast Guard Research and Development Center, 1 Chelsea Street, New London, CT 06320, telephone 860-271-2815, email
We request public comments on this notice. Although we do not plan to respond to comments in the
Comments should be marked with docket number USCG-2015-1050 and should provide a reason for each suggestion or recommendation. You should provide personal contact information so that we can contact you if we have questions regarding your comments; but please note that all comments will be posted to the online docket without change and that any personal information you include can be searchable online (see the
We encourage you to submit comments through the Federal eRulemaking Portal at
Do not submit detailed proposals for future CRADAs to the Docket Management Facility. Instead, submit
CRADAs are authorized under 15 U.S.C. 3710(a).
CRADAs are not procurement contracts. Care is taken to ensure that CRADAs are not used to circumvent the contracting process. CRADAs have a specific purpose and should not be confused with procurement contracts, grants, and other type of agreements.
Under the proposed CRADA, the R&D Center will collaborate with one non-Federal participant. Together, the R&D Center and the non-Federal participant will collect information/data for performance, reliability, maintenance requirements, and other data on diesel outboard engines. After an initial performance test, the Coast Guard plans to operate to test and evaluate the designated platform outfitted with the diesel outboard engine technology for a period of six months.
We anticipate that the Coast Guard's contributions under the proposed CRADA will include the following:
(1) Work with non-Federal participant to develop the test plan to be executed under the CRADA;
(2) Provide the test platform, test platform support, facilities, and seek all required approvals for testing under the CRADA;
(3) Prepare the test platform for diesel outboard engine install and operations;
(4) Provide fuel and test platform operators for the performance and reliability, maintenance, and availability testing;
(5) Collect and analyze data in accordance with the CRADA test plan; and
(6) Work with non-Federal participant to develop a Final Report, which will document the methodologies, findings, conclusions, and recommendations of this CRADA work.
We anticipate that the non-Federal participants' contributions under the proposed CRADA will include the following:
(1) Work with R&D Center to develop the test plan to be executed under the CRADA;
(2) Provide the technical data package for all equipments, including dimensions, weight, power requirements, and other technical considerations for the additional components to be utilized under this CRADA;
(3) Provide for shipment, delivery, and install of diesel outboard engines required for testing under this CRADA;
(4) Provide technical oversight, technical engine, and operator training on the engines provided for testing under this CRADA; and
(5) Provide/pay for travel and other associated personnel costs and other required expenses.
The Coast Guard reserves the right to select for CRADA participants all, some, or no proposals submitted for this CRADA. The Coast Guard will provide no funding for reimbursement of proposal development costs. Proposals and any other material submitted in response to this notice will not be returned. Proposals submitted are expected to be unclassified and have no more than five single-sided pages (excluding cover page, DD 1494, JF-12, etc.). The Coast Guard will select proposals at its sole discretion on the basis of:
(1) How well they communicate an understanding of, and ability to meet, the proposed CRADA's goal; and
(2) How well they address the following criteria:
(a) Technical capability to support the non-Federal party contributions described; and
(b) Resources available for supporting the non-Federal party contributions described.
Currently, the Coast Guard is considering Mercury for participation in this CRADA. This consideration is based on the fact that Mercury has demonstrated its technical ability as the developer and manufacturer of diesel outboard engines. However, we do not wish to exclude other viable participants from this or future similar CRADAs.
This is a technology assessment effort. The goal for the Coast Guard of this CRADA is to better understand the advantages, disadvantages, required technology enhancements, performance, costs, and other issues associated with diesel outboard engines. Special consideration will be given to small business firms/consortia, and preference will be given to business units located in the U.S. This notice is issued under the authority of 5 U.S.C. 552(a).
U.S. Customs and Border Protection, Department of Homeland Security.
60-Day notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Exportation of Used Self-Propelled Vehicles. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before February 16, 2016 to be assured of consideration.
Written comments may be mailed to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including
Collection of this information is authorized by 19 U.S.C.1627a which provides CBP with authority to impose export reporting requirements on all used self-propelled vehicles and by title IV, section 401 of the Anti-Car Theft Act of 1992, 19 U.S.C. 1646(c) which requires all persons or entities exporting a used self-propelled vehicle to provide to the CBP, at least 72 hours prior to export, the VIN and proof of ownership of each automobile. This information collection is provided for by19 CFR part 192. Further guidance regarding these requirements is provided at:
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 January 19, 2016.
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 proposed information collection previously published in the
1. “Shelters are not jails, the evacuees come and go after arriving, often without the knowledge of the shelter managers. Therefore using the Safe and Well program is but a small way of contacting evacuees.”
2. “Some will intentionally hide their identity for a myriad of reasons. (abusive spouse, warrants, debts, don't want the government to know where they are, no legal citizens).”
3. “There is no single collection point for several states to share data of missing persons after a catastrophic event that covers several states.”
4. “In Texas and other larger western states the travel times are considerable, so would like to have vehicles able to have reports of who is on board said vehicles.”
5. “Integration with other local (state level) software solutions via API such as WebEOC is a must.”
6. “One system at the federal level—this should replace NSS or integrate into it (single sign on).”
FEMA evaluated the comment received regarding the NEFRLS. As mandated by Congress, NEFRLS is intended to be a system that survivors and people searching for them can use voluntarily on an individual basis. It is not intended to be a comprehensive data collection tool for responders and/or governments nor is it intended to be inclusive of all disaster survivors but only those who voluntarily choose to register. NEFRLS is not an evacuation tracking tool that can be used to create manifests. FEMA has developed the National Mass Evacuation Tracking System (NMETS) that is available to States at no charge that can perform this function. Information about NMETS can be found at the following link,
The purpose of this notice is to notify the public that FEMA will submit the information collection abstracted below to the Office of Management and Budget for review and clearance.
National Protection and Programs Directorate, DHS.
Implementation of the CFATS Personnel Surety Program.
The Department of Homeland Security (DHS), National Protection and Programs Directorate (NPPD), Office of Infrastructure Protection (IP) is providing notice to the public and chemical facilities regulated under the Chemical Facility Anti-Terrorism Standards (CFATS) that it is commencing implementation of the CFATS Personnel Surety Program. CFATS requires regulated chemical facilities to implement security measures designed to ensure that certain individuals with or seeking access to the restricted areas or critical assets at those chemical facilities are screened for terrorist ties. The CFATS Personnel Surety Program enables regulated chemical facilities to meet this requirement.
This notice is effective as of the date of publication.
Questions about this notice may be directed by mail to the DHS/NPPD/IP/Infrastructure Security Compliance Division CFATS Program Manager at the Department of Homeland Security, 245 Murray Lane, SW., Mail Stop 0610, Arlington, VA 20528-0610. Questions, which include trade secrets, confidential commercial or financial information, Chemical-terrorism Vulnerability Information (CVI),
The Department is publishing this notice to inform Tier 1 and Tier 2 high-risk chemical facilities regulated under CFATS of the implementation of the CFATS Personnel Surety Program.
Section 550 of the Department of Homeland Security Appropriations Act of 2007, Public Law 109-295 (2006) (“Section 550”), provided the Department with the authority to identify and regulate the security of high-risk chemical facilities using a risk-based approach. On April 9, 2007, the Department issued the CFATS Interim Final Rule (IFR) implementing this statutory mandate.
Section 550 required that the Department establish risk-based performance standards for high-risk chemical facilities, and through the CFATS regulations the Department promulgated 18 RBPSs, including RBPS 12—Personnel Surety. Under RBPS 12, high-risk chemical facilities regulated under CFATS are required to account for the conduct of certain types of background checks in their Site Security Plans. Specifically, RBPS 12 requires high-risk chemical facilities to:
Perform appropriate background checks on and ensure appropriate credentials for facility personnel, and as appropriate, for unescorted visitors with access to restricted areas or critical assets, including, (i) Measures designed to verify and validate identity; (ii) Measures designed to check criminal history; (iii) Measures designed to verify and validate legal authorization to work; and (iv) Measures designed to identify people with terrorist ties[.]
The first three aspects of RBPS 12 (checks for identity, criminal history, and legal authorization to work) have already been implemented, and high-risk chemical facilities have addressed these aspects of RBPS 12 in their Site Security Plans. This notice announces to the public and chemical facilities that it is commencing implementation of the CFATS Personnel Surety Program, which requires Tier 1 and Tier 2 facilities to implement security measures designed, to ensure that certain individuals with or seeking access to the restricted areas or critical assets at those chemical facilities are screened for terrorist ties.
Identifying affected individuals who have terrorist ties is an inherently governmental function and requires the use of information held in government-maintained databases that are unavailable to high-risk chemical facilities.
Option 1. High-risk chemical facilities may submit certain information about affected individuals that the Department will use to vet those individuals for terrorist ties. Specifically, the identifying information about affected individuals will be compared against identifying information of known or suspected terrorists contained in the federal government's consolidated and integrated terrorist watchlist, the Terrorist Screening Database (TSDB), which is maintained by the Department of Justice (DOJ) Federal Bureau of Investigation (FBI) in the Terrorist Screening Center (TSC).
Option 2. High-risk chemical facilities may submit information about affected individuals who already possess certain credentials that rely on security threat assessments conducted by the Department.
Option 3. High-risk chemical facilities may comply with RBPS 12(iv) without submitting to the Department information about affected individuals who possess Transportation Worker Identification Credentials (TWICs), if a high-risk chemical facility electronically verifies and validates the affected individual's TWICs through the use of TWIC readers (or other technology that is periodically updated using the Canceled Card List).
Option 4. High-risk chemical facilities may visually verify certain credentials or documents that are issued by a Federal screening program that periodically vets enrolled individuals against the Terrorist Screening Database (TSDB). The Department continues to believe that visual verification has significant security limitations and, accordingly, encourages high-risk chemical facilities choosing this option to identify in their Site Security Plans the means by which they plan to address these limitations.
Each of these options is described in further detail below in Section III.D.
The CFATS Personnel Surety Program enables the Department and high-risk chemical facilities to mitigate the risk that certain individuals with or seeking access to restricted areas or critical assets at high-risk chemical facilities may have terrorist ties.
RBPS 12(iv) requires that certain individuals with or seeking access to restricted areas or critical assets at high-risk chemical facilities be checked for terrorist ties. These individuals are referred to as “affected individuals.” Specifically, affected individuals are facility personnel or unescorted visitors with or seeking access to restricted areas or critical assets at high-risk chemical facilities. High-risk facilities may classify particular contractors or categories of contractors either as “facility personnel” or as “visitors.” This determination should be a facility-specific determination, and should be based on facility-security considerations, operational requirements, and business practices.
There are also certain groups of persons, which the Department does not consider to be affected individuals, such as (1) federal officials who gain unescorted access to restricted areas or critical assets as part of their official duties; (2) state and local law enforcement officials who gain unescorted access to restricted areas or critical assets as part of their official duties; and (3) emergency responders at the state or local level who gain unescorted access to restricted areas or critical assets during emergency situations.
In some emergency or exigent situations, access to restricted areas or critical assets by other individuals who have not had appropriate background checks under RBPS 12 may be necessary. For example, emergency
A high-risk chemical facility will have flexibility to tailor its implementation of the CFATS Personnel Surety Program to fit its individual circumstances and, in this regard, to best balance who qualifies as an affected individual, unique security issues, costs, and burden. For example a high-risk chemical facility may, in its Site Security Plan:
• Restrict the numbers and types of persons allowed to access its restricted areas and critical assets, thus limiting the number of persons who will need to be checked for terrorist ties.
• Define its restricted areas and critical assets, thus potentially limiting the number of persons who will need to be checked for terrorist ties.
• Choose to escort visitors accessing restricted areas and critical assets in lieu of performing terrorist ties background checks under the CFATS Personnel Surety Program. The high-risk chemical facility may propose in its SSP traditional escorting solutions and/or innovative escorting alternatives such as video monitoring (which may reduce facility security costs), as appropriate, to address the unique security risks present at the facility.
The Department has developed a CFATS Personnel Surety Program that provides high-risk chemical facilities several options to comply with RBPS 12(iv). In addition to the alternatives expressly described in this notice, the Department will also permit high-risk chemical facilities to propose alternative measures for terrorist ties identification in their SSPs, which the Department will consider on a case-by-case basis in evaluating high-risk chemical facilities' SSPs. Of note, and as discussed further below, a high-risk chemical facility may choose one option or a combination of options to comply with RBPS 12(iv).
The first option allows high-risk chemical facilities (or designee(s))
Under this option, information about affected individuals submitted by, or on behalf of, high-risk chemical facilities will be compared against identifying information of known or suspected terrorists contained in the TSDB.
If Option 1 is selected by a high-risk chemical facility in its SSP, the facility (or its designee(s)) must submit the following information about an affected individual to satisfy RBPS 12(iv):
• For U.S. Persons (U.S. citizens and nationals as well as U.S. lawful permanent residents):
○ Full name
○ Date of Birth
○ Citizenship or Gender
• For Non-U.S. Persons:
○ Full Name
○ Date of Birth
○ Citizenship
○ Passport information and/or alien registration number
To reduce the likelihood of false positives in matching against records in the Federal Government's consolidated and integrated terrorist watchlist, high-risk chemical facilities (or their designee(s)) are encouraged, but not required, to submit the following optional information about each affected individual:
• Aliases
• Gender (for Non-U.S. Persons)
• Place of Birth
• Redress Number
If a high-risk chemical facility chooses to submit information about an affected individual under Option 1, the following table summarizes the biographic data that would be submitted to the Department.
The second option also allows high-risk chemical facilities (or designee(s)) to submit certain information about affected individuals to the Department through the CSAT Personnel Surety Program application.
Under Option 2, high-risk chemical facilities (or designee(s)) may submit information to the Department about affected individuals possessing the appropriate credentials to enable the Department to electronically verify the affected individuals' enrollments in these other programs. The Department will subsequently notify the Submitter
If Option 2 is selected by a high-risk chemical facility in it SSP, the high-risk chemical facility (or designee(s)) must submit the following information about an affected individual to satisfy RBPS 12(iv):
• Full Name;
• Date of Birth; and
• Program-specific information or credential information, such as unique number, or issuing entity (
To further reduce the potential for misidentification, high-risk chemical facilities (or designee(s)) are encouraged, but not required, to submit the following optional information about affected individuals to the Department:
• Aliases
• Gender
• Place of Birth
• Citizenship
If a high-risk chemical facility chooses to submit information about an affected individual under Option 2, the following table summarizes the biographic data that would be submitted to the Department.
Under Option 3—Electronic Verification of TWIC, a high-risk chemical facility (or its designee(s)) will not submit to the Department information about affected individuals in possession of TWICs, but rather will electronically verify and validate the affected individuals' TWICs
Option 4—Visual Verification Of Credentials Conducting Periodic Vetting complies with section 2102(d)(2) of the Homeland Security Act and allows a high-risk chemical facility to satisfy its obligation under 6 CFR 27.230(a)(12)(iv) to identify individuals with terrorist ties using any Federal screening program that periodically vets individuals against the TSDB if:
• The Federal screening program issues a credential or document,
• The high-risk chemical facility is presented
• The high-risk chemical facility verifies the credential or document is current in accordance with its SSP.
As a result, a high-risk chemical facility may verify that a credential or document is current based upon visual inspection, if the processes for conducting such visual inspections are described in its SSP. When developing such processes, the Department encourages high-risk chemical facilities to consider any rules, processes, and procedures prescribed by the entity issuing the credential or document. The Department believes that visual verification has inherent limitations and provides less security value than the other options available under the CFATS Personnel Surety Program. The Department encourages every high-risk chemical facility to consider a means of verification that is consistent with its specific circumstances and its assessment of the threat posed by the acceptance of such credentials. If a facility chooses to use Option 4, in whole or in part, it should also identify in its Site Security Plan the means by which it plans to address these limitations.
An example of Option 4 that could be implemented by a high-risk chemical facility is to leverage the vetting conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) on affected individuals who are employee possessors of a Federal explosives licensee/permittee. For example, a high-risk chemical facility may rely on a “letter of clearance” issued by ATF when presented by an affected individual who is also an employee-possessor of explosives. The high-risk chemical facility should describe in its SSP the procedures it will use to verify the letter of clearance is current. The Department will consider high-risk chemical facilities' proposals in the course of evaluating individual SSPs.
High-risk chemical facilities have discretion as to which option(s) to use for an affected individual. For example, if an affected individual possesses a TWIC or some other credential or document, a high-risk chemical facility could choose to use Option 1 for that individual. Similarly, a high-risk chemical facility, at its discretion, may choose to use Option 1 or Option 2 rather than Option 3 or Option 4 for affected individuals who have TWICs or some other credential or document. High-risk chemical facilities also may choose to combine Option 1 with Option 2, Option 3, and/or Option 4, as appropriate, to ensure that adequate terrorist ties checks are performed on different types of affected individuals (
In addition to the options described above for satisfying RBPS 12(iv), a high-risk chemical facility is welcome to propose alternative or supplemental options not described in this document in its SSPs. The Department will assess the adequacy of such alternative or supplemental options on a facility-by-facility basis, in the course of evaluating each facility's SSP.
The Department believes the greatest security benefit is achieved when a high-risk chemical facility selects either Option 1 and/or Option 2. Option 3 also provides significant security benefit. Option 4 provides some security benefit but less than Option 1, Option 2, or Option 3.
Option 1 and Option 2 provide the greatest security benefit because the information submitted about each affected individual will be recurrently vetted against the TSDB. Recurrent vetting is a Department best practice and compares an affected individual's information against new and/or updated TSDB records as such records become available. Further, in the event that an affected individual with terrorist ties has or is seeking access to restricted areas or critical assets, if information about that affected individual is submitted to the Department under Option 1 or Option 2, the Department will be able to ensure that an appropriate Federal law enforcement agency is notified and that, as appropriate and consistent with law-enforcement and intelligence requirements, the facility receives notification as well.
Option 3 also provides significant security benefit because information about affected individuals with TWICs is recurrently vetted against the TSDB. However, since the Department does not receive information about these affected individuals from high-risk chemical facilities under Option 3, the Department cannot ensure that the appropriate Federal law enforcement agency is provided information about the high-risk chemical facility at which any such affected individual with terrorist ties has or is seeking access.
Finally, Option 4 provides a more-limited security benefit, as some Federal screening programs do not conduct recurrent vetting. Recurrent vetting compares an affected individual's information against new and/or updated TSDB records as those new and/or updated records become available. Recurrent vetting is a Department best practice because often records about terrorists are either created or updated in the TSDB after the initial vetting has already occurred. Consequently, recurrent vetting results in additional
In addition, relying on a visual inspection of a credential or document is not as secure as electronic verification because visual inspection may make it more difficult to ascertain whether a credential or document has expired, been revoked, or is fraudulent. For example, the visual verification of a TWIC will not reveal whether the TWIC has been revoked by the Transportation Security Administration. Similarly, visual verification of a Hazardous Material Endorsement on a commercial driver's license will not reveal if the endorsement has expired or been revoked.
Finally, since the Department will not receive from high-risk chemical facilities information about affected individuals whose credentials are visually verified, the Department will be unable to ensure the appropriate Federal law enforcement agency is provided information regarding the risks posed to a high-risk chemical facility by any such affected individual with terrorist ties, nor will it be able to ensure that the facility receives appropriate notification of the risk.
For the reasons described above, Option 4 provides less security value than the other options available to high-risk chemical facilities under the CFATS Personnel Surety Program.
The Department will notify high-risk chemical facilities, individually, when it will require each to address RBPS 12(iv) in its SSP. After that notification, a facility must update or draft its SSP to address RBPS 12(iv), as appropriate, prior to authorization or approval by the Department. After authorization or approval, a high-risk chemical facility (as described in its authorized or approved SSP) must complete the terrorist ties check required to be conducted on a particular affected individual by 6 CFR 27.230(a)(iv) prior to the affected individual being granted access to any restricted area or critical asset.
Under Option 1 or Option 2, a high-risk chemical facility may submit information about new affected individuals in accordance with its SSP. The Department encourages high-risk chemical facilities to submit information about affected individuals as soon as possible after an individual has been determined to be an affected individual. As described earlier in this notice, the high-risk chemical facilities must submit information prior to a new affected individual obtaining access to any restricted area or critical asset.
Section 2102(d)(2)(A)(i) of the Homeland Security Act prohibits the Department from requiring a high-risk chemical facility to submit information about an individual more than one time under Option 1 or Option 2. Therefore, under Option 1 or Option 2, a high-risk chemical facility may choose whether to submit data updates or corrections about affected individuals.
The Department believes that there are substantial privacy risks if a high-risk chemical facility opts not to provide updates and corrections (
Section 2102(d)(2)(A)(i) of the Homeland Security Act also prohibits the Department from requiring a high-risk chemical facility to notify the Department when an affected individual no longer has access to the restricted areas or critical assets of a high-risk chemical facility. Therefore, under Option 1 or Option 2, a high-risk chemical facility has the option to notify the Department when the affected individual no longer has access to any restricted areas or critical assets, but such notification is not required. The Department strongly encourages high-risk chemical facilities to notify the Department when an affected individual no longer has access to restricted areas or critical assets to ensure the accuracy of the Department's data and to stop the recurrent vetting on the person who is no longer an affected individual. If a high-risk chemical facility is either unable or unwilling to notify the Department when an affected individual no longer has access to restricted areas or critical assets, the affected individual may seek redress as described in the CFATS Personnel Surety Program Privacy Impact Assessment.
High-risk chemical facilities are responsible for complying with RBPS 12(iv). However, companies operating multiple high-risk chemical facilities, as well as companies operating only one high-risk chemical facility, may comply with RBPS 12(iv) in a variety of ways. A high-risk chemical facility, or its parent company, may choose to comply with RBPS 12(iv) by identifying and directly submitting to the Department the information about affected individuals. Alternatively, a high-risk chemical facility, or its parent company, may choose to comply with RBPS 12(iv) by outsourcing the information-submission process to third parties.
The Department also anticipates that many high-risk chemical facilities will rely on businesses that provide them with contract services (
Both third parties that submit information on behalf of high-risk chemical facilities and businesses that provide services to high-risk chemical facilities must be designated by the high-risk chemical facility within CSAT in order to submit appropriate information about affected individuals to the Department on behalf of the high-risk chemical facility.
Under Options 1 and 2 (as described above), high-risk chemical facilities have wide latitude in assigning CSAT user roles to align with their business operations and/or the business operations of third parties that provide contracted services to them. The Department has structured the CSAT Personnel Surety Program application to allow designee(s) of high-risk chemical facilities to submit information about affected individuals directly to the Department on behalf of high-risk chemical facilities.
High-risk chemical facilities and designee(s) will be able to structure CSAT user roles to submit information about affected individuals to the Department in several ways, including but not limited to the following:
• A high-risk chemical facility may directly submit information about affected individuals, and designate one or more officers or employees of the facility with appropriate CSAT user roles; and/or
• A high-risk chemical facility may ensure the submission of information about affected individuals by designating one or more persons affiliated with a third party (or with multiple third parties); and/or
• A company owning several high-risk chemical facilities could consolidate its submission process for affected individuals. Specifically, the company could designate one or more persons to submit information about affected individuals on behalf of all or some of the Tier 1 and Tier 2 high-risk chemical facilities within the company on a company-wide basis.
Third parties interested in providing information about affected individuals to the Department on behalf of high-risk chemical facilities may request a CSAT user account from the high-risk chemical facility or company for which the third party will be working. Third parties will not be able to submit information about affected individuals until a high-risk chemical facility designates the third party within CSAT to submit information on its behalf.
A high-risk chemical facility (or designee(s)) may submit information under Option 1 or Option 2 after the facility's SSP has been approved or authorized by the Department for RBPS 12(iv).
High-risk chemical facilities (or designee(s)) may maintain information about an affected individual, for the purpose of complying with CFATS, which is not submitted to the Department as part of the CFATS Personnel Surety Program (
The Department complies with all applicable federal privacy requirements including those contained in the Privacy Act, the E-Government Act, the Homeland Security Act, and Departmental policy. The United States also follows international instruments on privacy, all of which are consistent with the Fair Information Practice Principles (FIPPs).
• Published a System of Records Notice (SORN) for the CFATS Personnel Surety Program on June 14, 2011 as well as a SORN Update on May 19, 2014.
• Issued a Final Rule
• Published a CFATS Personnel Surety Program Privacy Impact Assessment (PIA) in May 2011, and a CFATS Personnel Surety Program PIA Update on May 1, 2014. Concurrent with the publication of this implementation notice the Department is publishing a second PIA Update which is available at
With the publication of these privacy documents, the Department has ensured that the CFATS Personnel Surety Program complies with the appropriate privacy laws and Department of Homeland Security privacy policies.
The CFATS Personnel Surety Program complies with the requirement of section 2102(d)(2)(A)(iii) of the Homeland Security Act to provide redress to an individual: (1) Whose information was vetted against the TSDB under the program; and (2) who believes that the personally identifiable information submitted to the Department for such vetting by a covered chemical facility, or its designated representative, was inaccurate. The Department has described how to seek redress in the CFATS Personnel Surety Program Privacy Impact Assessment.
The Submitter(s) of each high-risk chemical facility (or designee(s)) will be required to affirm that, in accordance with its SSP, notice required by the Privacy Act of 1974 has been given to affected individuals before their information is submitted to the Department. The Department has made available a sample Privacy Act notice that complies with subsection (e)(3) of the Privacy Act (5 U.S.C. 552a(e)(3)) in the CFATS Personnel Surety Program PIA Update being published concurrently with this notice.
A high-risk chemical facility will not submit information to the Department if the facility opts to electronically verify and validate affected individuals' TWICs through the use of TWIC readers (or other technology that is periodically updated with revoked card information) under Option 3. High-risk chemical facilities that opt to implement Option 3 are encouraged, but are not required, to provide notice to each affected individual whose TWIC is being verified and validated. Although Option 3 allows high-risk chemical facilities to comply with RBPS 12(iv) without submitting information to the Department, the Department feels that appropriate notice should still be given to those individuals so that they know their TWICs are now being used to comply with 6 CFR 27.230(a)(12)(iv). The Department has provided a sample privacy notice for high-risk chemical facilities to use in the CFATS Personnel Surety Program PIA Update, published May 1, 2014. A revised sample Privacy Act notice is also included in the PIA Update being published concurrently with this notice.
In addition, a high-risk chemical facility will not submit information to the Department if the facility opts to utilize Option 4 and to visually inspect a credential or document for any Federal screening program that periodically vets individuals against the TSDB. High-risk chemical facilities that opt to implement Option 4 are encouraged, but are not required, to provide notice to each affected individual whose Federal screening program credential or document is being visually inspected in order to comply with 6 CFR 27.230(a)(12)(iv).
When writing, revising, or updating their SSPs, high-risk chemical facilities may wish to consider including information about the following topics to assist the Department in evaluating the adequacy of the security measures outlined in the SSP for RBPS12(iv):
• Who does the facility consider an affected individual and how does the facility identify affected individuals?
○ Who does the facility consider facility personnel and how does the facility identify them?
○ Who does the facility consider unescorted visitors and how does the facility identify them?
• If the facility escorts any visitors, how does it escort them?
• How does the facility define its restricted areas and/or critical assets for the purposes of RBPS 12?
• Does the facility include computer systems or remote access as either a restricted area or critical asset?
• Which Option(s), or alternative approaches not described in this notice, will the facility or its designee(s) use to check for terrorist ties?
• Does the facility intend to use one or more Options for some affected individuals that it will not use for other affected individuals? If so, which Option(s) apply to which groups of affected individuals?
• Will the facility opt to have a designee(s) submit information about affected individuals? If so, what guidance will the high-risk chemical facility establish for designee(s) when it submits information (
• Does the high-risk chemical facility anticipate that any individuals will require access to restricted areas or
• How will notice be provided to affected individuals that information is being provided to the Department?
• How will notice be provided to affected individuals that information is being provided to the Department?
• What will the facility do if NPPD is unable to verify an affected individual's enrollment in another Department TSDB vetting program?
• What will be the timeframe for this follow-on action?
• What will the facility do if NPPD does verify the credential, but later during a periodic re-verification, is unable verify the credential?
• What will be the timeframe for this follow-on action?
• Does the facility describe how it will comply with RBPS 12(iv) for affected individuals without credentials capable of being verified under Option 2?
• How will the facility identify those affected individuals who possess TWICs?
• How will the facility comply with RBPS 12(iv) for affected individuals without TWICs?
• How will the facility electronically verify and validate TWICs of affected individuals?
• Which reader(s) or Physical Access Control System (PACS) will the facility be using? Or, if it is not using readers, how it will use the CCL or CRL?
• Where will the reader(s) or PAC(s) be located?
• What mode or modes (
• Will the TWIC of an affected individual be re-verified and re-validated with TWIC readers, and, if so, how often?
• What will the facility (or designee(s)) do if an affected individual's TWIC cannot be verified or if the TWIC reader is not functioning properly?
• Upon which Federal screening program(s) does the facility or designee intend to rely?
• What document(s) or credential(s) issued by the Federal screening program(s) will the facility visually verify?
• What procedures will the facility use to allow affected individuals to present document(s) or credential(s)?
• How will the facility verify that the credential or document presented by affected individuals is not fraudulent?
• What procedures will the facility follow to visually verify that a credential or document is current and valid (
• Will the visual verification include the following?
○ Comparing any picture on a document or credential to the bearer of the credential or document;
○ Comparing any physical characteristics listed on the credential or document (
○ Checking for tampering;
○ Reviewing both sides of the credential or document and checking for the appropriate stock/credential material;
○ Checking for an expiration date; and
○ Checking for any insignia, watermark, hologram, signature or other unique feature.
• What will the facility do if it is unable to visually verify an affected individual's credential or document, if the credential or document fails visual verification, or if the credential or document appears invalid, expired, or fraudulent?
• A facility that chooses to propose an option not listed above in its SSP should provide as much detail as possible to allow the Department to consider the potential option and evaluate whether or not it meets the RBPS 12(iv) standard.
Transportation Security Administration, DHS.
30-day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0002, abstracted below to OMB for review and approval of a revision of the currently approved collection under the Paperwork Reduction Act (PRA). TSA is combining two previously-approved ICRs (1652-0002 and 1652-0006, Employment Standards) into this single request to simplify TSA collections, increase transparency, and reduce duplication.
Send your comments by January 19, 2016. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via
Christina A. Walsh, TSA PRA Officer, Office of Information Technology (OIT), TSA-11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6011; telephone (571) 227-2062; email
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
This information collection is mandatory for airport operators. As part of their security programs, affected airport operators are required to maintain and update, as necessary, records of compliance with the security program provisions set forth in 49 CFR part 1542. This regulation also requires affected airport operators to make their security programs and associated records available for inspection and copying by TSA to verify compliance with transportation security regulations.
Transportation Security Administration, DHS.
30-day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0046, abstracted below to OMB for review and approval of a revision to the currently approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by January 19, 2016. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Christina A. Walsh, TSA PRA Officer, Office of Information Technology (OIT), TSA-11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6011; telephone (571) 227-2062; email
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
(1) Secure Flight Passenger Data (SFPD) for passengers of covered domestic and international flights within, to, from, or over the continental United States, as well as flights between two foreign locations when operated by a covered U.S. aircraft operator;
(2) SFPD for passengers of charter operators and lessors of aircraft with a maximum takeoff weight of over 12,500 pounds;
(3) certain identifying information for non-traveling individuals that airport operators or airport operator points of contact seek to authorize to enter a sterile area at a U.S. airport, for example, to patronize a restaurant, to escort a minor or a passenger with disabilities, or for another approved purpose; and
(4) registration information critical to deployment of Secure Flight, such as contact information, data format, or the mechanism the covered aircraft operators use to transmit SFPD and other data.
TSA is revising this collection to add the following additional categories of information:
(5) Risk-based assessments generated by U.S. aircraft operators using their CAPPS are sent to Secure Flight for use in risk-based analysis of passenger information. The CAPPS assessments are generated after analysis of the underlying passenger and other prescreening data is obtained by the aircraft operator in the ordinary course of business when the passenger makes his or her reservation. The CAPPS assessment, in turn, is used in the risk-based analysis of SFPD and other prescreening data that produce a BPPR for each passenger. Secure Flight receives only the risk assessment generated from the applicable CAPPS data and not the underlying data. TSA obtains important security value from the risk assessment without receiving the underlying privacy and other information that are generated when individuals make their flight reservations. The CAPPS assessments are designed to enhance TSA's analysis of passenger security risk and enable TSA to make better passenger risk decisions. A likely outcome of the addition of CAPPS risk assessments to Secure Flight's risk-based analysis will be the identification of additional low-risk passengers who may be eligible for expedited security screening at airports with TSA Pre✓® lanes.
(6) FFCW generated by aircraft operators also are sent to Secure Flight regarding passengers who are frequent flyer program members. These data also are used in Secure Flight's risk-based analysis and may result in a passenger being eligible for expedited screening.
(7) Lists of low-risk individuals who are eligible for expedited screening provided by Federal and non-federal entities. In support of TSA Pre✓®, TSA implemented expedited screening of known or low-risk travelers. Federal and non-federal list entities provide TSA with a list of eligible low-risk individuals to be used as part of Secure Flight processes. Secure Flight identifies individuals who should receive low risk screening and transmits the appropriate boarding pass printing result to the aircraft operators.
Both the CAPPS risk assessments and the FFCWs are generated from existing data within aircraft operators' reservations or other systems. The systemic changes required to send these data to Secure Flight varies by aircraft operator.
Transportation Security Administration, DHS.
30-day Notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), OMB control number 1652-0011, abstracted below to the Office of Management and Budget (OMB) for review and approval of an extension of the currently approved collection under the Paperwork Reduction Act. The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by January 19, 2016. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Christina A. Walsh, TSA PRA Officer, Office of Information Technology (OIT), TSA-11, Transportation Security
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until February 16, 2016.
All submissions received must include the OMB Control Number 1615-0061 in the subject box, the agency name and Docket ID USCIS-2007-0046. To avoid duplicate submissions, please use only
(1)
(2)
(3)
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Laura Dawkins, Chief, 20 Massachusetts Avenue NW., Washington, DC 20529-2140, telephone number 202-272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other
(1)
(2)
(3)
(4)
(5)
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(7)
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402-3970; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, and suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to: Ms. Theresa M. Ritta, Chief Real Property Branch, the Department of Health and Human Services, Room 5B-17, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857, (301) 443-2265 (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 for detailed instructions or write a letter to Ann Marie Oliva at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
Through this notice, HUD provides notice on the selection process, criteria, and application submission for the third round of the Promise Zone initiative.
Application due date is 5:00 p.m. EST on February 23, 2016.
Interested eligible organizations are invited to submit applications for a Promise Zone designation. Questions or comments regarding the application process should be directed by email to
Bryan Herdliska, U.S. Department of Housing and Urban Development, 451 7th Street SW., Rm 7136, Washington, DC, 20410; telephone number 202-402-6758. This is not a toll-free number. Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877-8339.
In his 2013 State of the Union address, President Obama announced the establishment of the Promise Zones initiative to partner with high-poverty communities across the country to create jobs, increase economic security, expand educational opportunities, increase access to quality, affordable housing, and improve public safety.
The Promise Zone designation partners the Federal government with local leaders who are addressing multiple community revitalization challenges in a collaborative way and have demonstrated a commitment to results. Further, Promise Zones will be assigned Federal staff to help navigate the array of Federal assistance and programs already available to them. In addition, eligible applicants in Promise Zones will receive any available (a) preference for certain competitive Federal programs and (b) technical assistance. Subject to enactment by Congress, businesses investing in Promise Zones or hiring residents of Promise Zones will be eligible to receive tax incentives. Altogether, this package of assistance will help local leaders accelerate efforts to revitalize their communities.
The Promise Zone designation will be for a term of 10 years and may be extended as necessary to capture the full term of availability of the Promise Zone tax incentives, if the tax incentives are enacted. During this term, the specific benefits made available to Promise Zones may vary from year to year, and sometimes more often than annually, due to changes in Federal agency policies and changes in appropriations and authorizations for relevant programs. All assistance provided to Promise Zones is subject to applicable regulations, statutes, and changes in federal agency policies, appropriations, and authorizations for relevant programs. Subject to these limitations, the Promise Zone designation commits the Federal government to partner with local leaders who are addressing multiple community revitalization challenges in a collaborative way and have demonstrated a commitment to results.
On July 29, 2015, HUD published a notice in the
This notice announces the opening of the application period for the third round of Promise Zone designations. HUD and USDA have reorganized and revised the Application Guide to clarify elements that applicants found particularly difficult and incorporated some comments. The MAX Survey online survey system, which is used for submitting certain components of the application, has also been reorganized. Applications are due by 5:00 p.m. EST on February 23, 2016 with announcements expected in 2016. As a result of this competition, HUD intends to designate five urban communities and USDA intends to designate one rural and one tribal community. A total of 20 Promise Zone designations will be made by the end of calendar year 2016.
Due to the cross-disciplinary nature of the initiative, the list of eligible Lead Applicants has been updated to reflect that Promise Zone activities are likely to be carried out by a variety of organizations and organization types, including organizations that have specific roles in the delivery of programs funded by different Federal agencies. Most such organizations are eligible under the categories of governmental and nonprofit organizations that were previously listed as eligible Lead Applicants. HUD and USDA included examples might encourage communities to engage organizations that are the most appropriate to respond to their needs and lead revitalization efforts. Eligible Lead Applicants for Urban Promise Zone designations are: Units of General Local Government (UGLG);
Eligible Lead Applicants for Rural and Tribal Promise Zone designations are: Local governments (which includes county, city, town, township, parish, village, governmental authority or other general-purpose political subdivision of a state or combination thereof) and Federally-recognized tribes;
Any Lead Applicant whose proposed Promise Zone boundaries meet the qualifying criteria set forth in the Third Round Application Guide is eligible to apply for a Promise Zone designation. All of the following must be present in an application for a proposed Urban Promise Zone to be eligible for a designation: (1) Proposed Promise Zone must have one contiguous boundary and
Extremely Low Income rate (whichever is greater) of residents within the Promise Zone must be at or above 32.5%;
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All the following must be present to be eligible for a Rural or Tribal Promise Zone designation: (1) Rural and Tribal Promise Zones must encompass one or more census tract(s) across a contiguous geography.
Applications for Promise Zone designations will be reviewed by representatives from USDA, HUD, the Department of Education, the Department of Justice, the Department of Health and Human Services, the Department of Labor, and the Department of Transportation. Additional Federal agencies and outside entities may contribute reviewers, depending upon the anticipated volume of applications.
Reviewers will first verify that the application is submitted by an applicant eligible for selection, by verifying that the proposed Promise Zone meets the qualifying criteria and that the Lead Applicant meets the eligibility criteria for the third round selection process. For urban applications, reviewers will confirm the subcategory in which each application should be considered (large Metropolitan Core Based Statistical Area (Metro CBSA) or small/medium Metro CBSA).
Rural applications will be ranked against other rural applications, tribal applications will be ranked against other tribal applications, and urban applications will be ranked against other urban applications. An application must score a total of 75 points or more out of 100 points, to be considered for a designation (scoring 75 points or more means that applications fall within the “competitive range”). Once scored, applications will be ranked competitively within each of the three Promise Zones categories and within the urban subcategories, as applicable.
HUD intends to designate at least one applicant from the small/medium Metro CBSA sub-category if the highest scoring small/medium Metro CBSA application is comparable in quality to other urban designees (within 10 points of the lowest scoring designee and not otherwise disqualified in accordance with all other requirements contained within this application guide). If the number of eligible applications determined to be eligible for the small/medium Metro CBSA subcategory is fewer than the greater of 1) five total applications, or 2) ten percent of the total number of urban applications received, then the applications in the small/medium Metro CBSA subcategory will be included in the large Metro CBSA subcategory and ranked against those applications.
Applications must provide a clear description of how the Promise Zone designation would accelerate and strengthen the community's efforts at comprehensive community revitalization. No substantive or technical corrections will be accepted or reviewed after the application deadline. The
If the Lead Applicant requests to use alternative data sources to meet the eligibility criteria or for the Need application section, a one-page explanation noting the alternative data source must be submitted to
Office of the General Counsel, HUD.
Notice.
Section 106 of the Department of Housing and Urban Development Reform Act of 1989 (the HUD Reform Act) requires HUD to publish quarterly
For general information about this notice, contact Camille E. Acevedo, Associate General Counsel for Legislation and Regulations, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10282, Washington, DC 20410-0500, telephone 202-708-1793 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.
For information concerning a particular waiver that was granted and for which public notice is provided in this document, contact the person whose name and address follow the description of the waiver granted in the accompanying list of waivers that have been granted in the third quarter of calendar year 2015.
Section 106 of the HUD Reform Act added a new section 7(q) to the Department of Housing and Urban Development Act (42 U.S.C. 3535(q)), which provides that:
1. Any waiver of a regulation must be in writing and must specify the grounds for approving the waiver;
2. Authority to approve a waiver of a regulation may be delegated by the Secretary only to an individual of Assistant Secretary or equivalent rank, and the person to whom authority to waive is delegated must also have authority to issue the particular regulation to be waived;
3. Not less than quarterly, the Secretary must notify the public of all
a. Identify the project, activity, or undertaking involved;
b. Describe the nature of the provision waived and the designation of the provision;
c. Indicate the name and title of the person who granted the waiver request;
d. Describe briefly the grounds for approval of the request; and
e. State how additional information about a particular waiver may be obtained.
Section 106 of the HUD Reform Act also contains requirements applicable to waivers of HUD handbook provisions that are not relevant to the purpose of this notice.
This notice follows procedures provided in HUD's Statement of Policy on Waiver of Regulations and Directives issued on April 22, 1991 (56 FR 16337). In accordance with those procedures and with the requirements of section 106 of the HUD Reform Act, waivers of regulations are granted by the Assistant Secretary with jurisdiction over the regulations for which a waiver was requested. In those cases in which a General Deputy Assistant Secretary granted the waiver, the General Deputy Assistant Secretary was serving in the absence of the Assistant Secretary in accordance with the office's Order of Succession.
This notice covers waivers of regulations granted by HUD from July 1, 2015 through September 30, 2015. For ease of reference, the waivers granted by HUD are listed by HUD program office (for example, the Office of Community Planning and Development, the Office of Fair Housing and Equal Opportunity, the Office of Housing, and the Office of Public and Indian Housing, etc.). Within each program office grouping, the waivers are listed sequentially by the regulatory section of title 24 of the Code of Federal Regulations (CFR) that is being waived. For example, a waiver of a provision in 24 CFR part 58 would be listed before a waiver of a provision in 24 CFR part 570.
Where more than one regulatory provision is involved in the grant of a particular waiver request, the action is listed under the section number of the first regulatory requirement that appears in 24 CFR and that is being waived. For example, a waiver of both § 58.73 and § 58.74 would appear sequentially in the listing under § 58.73.
Waiver of regulations that involve the same initial regulatory citation are in time sequence beginning with the earliest-dated regulatory waiver.
Should HUD receive additional information about waivers granted during the period covered by this report (the third quarter of calendar year 2015) before the next report is published (the fourth quarter of calendar year 2015), HUD will include any additional waivers granted for the third quarter in the next report.
Accordingly, information about approved waiver requests pertaining to HUD regulations is provided in the Appendix that follows this notice.
More information about the granting of these waivers, including a copy of the waiver request and approval, may be obtained by contacting the person whose name is listed as the contact person directly after each set of regulatory waivers granted.
The regulatory waivers granted appear in the following order:
I. Regulatory waivers granted by the Office of Community Planning and Development.
II. Regulatory waivers granted by the Office of Housing.
III. Regulatory waivers granted by the Office of Public and Indian Housing.
For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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Only Level I HFAs are eligible for FFB financing, thereby ensuring the HFA maintains financial capacity to perform under the indemnification agreement.
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Contact: Alicia Anderson, Branch Chief, Grants and New Funding, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 6138, Washington, DC 20410, telephone (202) 402-5787.
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For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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Fish and Wildlife Service, Department of the Interior.
Notice of availability.
We, the U.S. Fish and Wildlife Service, under the National Environmental Policy Act of 1969 (NEPA), make available the final environmental impact statement (EIS) and draft record of decision (ROD) analyzing the impacts of the issuance of an incidental take permit for implementation of the final Southern Edwards Plateau Habitat Conservation Plan (SEP HCP). Our decision is to issue a 30-year incidental take permit for implementation of the SEP HCP preferred alternative (described below), which authorizes incidental take of animal species listed pursuant to the Endangered Species Act of 1973, as amended. As part of the SEP HCP, measures will be implemented to avoid, minimize, and mitigate impacts to offset impacts to the affected species.
We will finalize the ROD and a permit no sooner than 30 days after publication of this notice.
You may obtain copies of the final documents by going to
Mr. Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, TX 78758 or (512) 490-0057.
We, the Service, announce the availability of the final EIS and draft ROD, which we developed in compliance with the agency decision-making requirements of the NEPA, as well as the final SEP HCP as submitted by the City of San Antonio and Bexar County, Texas (Applicants). All alternatives have been described in detail, evaluated, and analyzed in our November 2015 final EIS. The ROD documents the rationale for our decision.
Based on our review of the alternatives and their environmental consequences as described in our final EIS, we have selected the Proposed SEP HCP Alternative. The proposed action is to issue to the Applicants an incidental take permit (ITP) under section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The Applicants will implement minimization and mitigation measures to offset impacts to the Covered Species according to their SEP HCP. The minimization and mitigation measures include, but are not limited to: Restricting activities to avoid the two bird's breeding seasons, implementing oak wilt prevention techniques, conducting extensive karst invertebrate surveys prior to any activity in karst zones, preserving habitat in perpetuity for all Covered Species, and managing and monitoring preserves in perpetuity.
The Applicants have applied for an incidental take permit (TE48571B-0, ITP) under the Act, that would authorize incidental take of nine Covered Species in all, or portions, of seven Texas counties, and would be in effect for a period of 30 years. The proposed incidental take of the Covered Species would occur from lawful, non-federal activities including: Public or private land development projects; construction, maintenance, and/or improvement of roads, bridges, and other transportation infrastructure; and installation and/or maintenance of utility infrastructure (Covered Activities). The SEP HCP includes a 7-county area: Bandera, Bexar, Blanco, Comal, Kendall, Kerr, and Medina counties. Incidental take coverage will: (1) Only be offered to Participants in the jurisdictions of Bexar County and the City of San Antonio, including current and future portions of the City's extra-territorial jurisdiction (except where the City of San Antonio is within Comal County and (2) be provided within any SEP HCP preserves located in 7-county plan area. The final EIS considers the direct, indirect, and cumulative effects of implementation of the HCP, including the measures that will be implemented to minimize and mitigate such impacts to the maximum extent practicable.
The Secretary of the Interior has delegated to the Service the authority to
On December 19, 2014, we issued a draft EIS and requested public comment on our evaluation of the potential impacts associated with issuance of an ITP for implementation of the SEP HCP and to evaluate alternatives (79 FR 75830). We included public comments and responses associated with the draft EIS and draft HCP in the final EIS.
The purpose of the section 10(a)(1)(B) permit is to authorize incidental take associated with the Covered Activities described above. We identified key issues and relevant factors through public scoping and meetings, working with other agencies and groups, and reviewing comments from the public. We received responses from 1 federal agency, 1 tribe, and 110 other non-governmental agencies (NGOs) and individuals. The Environmental Protection Agency had comments on several sections of the draft EIS including air quality and the need for a Construction Emissions Mitigation Plan, a lack of analysis regarding environmental justice, and lack of a review by potentially affected tribes. The Caddo Nation of Oklahoma stated the project would not impact sights of interest to the Caddo Nation. Comments from individuals and NGOs included both support and concern for the HCP and the EIS selection of the preferred alternative. We believe these comments are addressed and reasonably accommodated in the final documents.
We considered five alternatives in the EIS.
No Action Alternative: Under the No Action Alternative, the Service would not issue an incidental take permit for the SEP HCP.
Proposed SEP HCP Alternative: Our preferred alternative is the proposed HCP with a 30-year term, as described in the final EIS, which provides for the issuance of an ITP to the Applicants for incidental take of the Covered Species that may occur as a result of Covered Activities. This alternative includes a number of measures to avoid, minimize, and mitigate impacts to the Covered Species, including over 30,000 acres of preserves for the Covered Species, avoiding the bird's breeding seasons to reduce direct impacts, and conducting extensive karst feature surveys to minimize direct impacts to karst invertebrates. This alternative assumes 50 percent of the development activities requiring an ITP for the Covered Species over the next 30 years will participate in the SEP-HCP, which represents 50 percent of the projected GCWA and BCVI habitat loss and 20 percent of the loss of potential habitat supporting the Covered Karst Invertebrates resulting from development within the Enrollment Area over the next 30 years.
10% Participation Alternative: This alternative assumes 10 percent of the development activities requiring an ITP for the Covered Species over the next 30 years will participate in the SEP HCP. The incidental take request represents 10 percent of the projected GCWA and BCVI habitat loss and 10 percent of the loss of potential habitat for the Covered Karst Invertebrates resulting from development within the Enrollment Area over the next 30 years.
Single-County Alternative: The Single-County Alternative proposes the preserve system will be located within Bexar County or within 10 miles of the Bexar County border. This alternative proposes the same amount of take for the Covered Species as the Proposed SEP HCP Alternative; however, it proposes one-half of the preserve for GCWA and BCVI and greater participation fees.
Increased Mitigation Alternative—The Increased Mitigation Alternative incorporates the same mitigation for the BCVI, higher proposed mitigation for the GCWA, and two times the required amount of preserve needed to achieve conservation baselines for the Covered Karst Invertebrates than that of the Proposed SEP HCP Alternative. Additionally, this alternative calls for 60 percent of the GCWA preserve within Bexar County and/or within 5 miles of the county border. Expected participation is the same as the Proposed SEP HCP Alternative.
We intend to issue an ITP allowing the Applicants to implement the Proposed SEP HCP Alternative. Our decision is based on a thorough review of the alternatives and their environmental consequences. Implementation of this decision entails the issuance of the ITP by the Service and full implementation of the HCP by the Applicants, including minimization and mitigation measures, monitoring and adaptive management, and complying with all terms and conditions in the permit.
We have selected the Proposed SEP HCP Alternative for implementation based on multiple environmental and social factors, including potential impacts and benefits to Covered Species and their habitats; the extent and effectiveness of avoidance, minimization, and mitigation measures; and social and economic considerations.
We did not choose the No Action Alternative, because compliance with the Act will continue to occur on an individual basis through project-specific consultations with the Service, permitting actions will occur at the level and scope of an individual project, and mitigation requirements will be individually negotiated with the Service. As compared with the No Action Alternative, the Proposed SEP HCP Alternative provides for a more comprehensive and efficient approach to compliance with the Act and will provide larger, more contiguous preserves providing for more robust buffering against threats.
We did not choose the 10% Participation Alternative because we believe that participation in the SEP HCP will exceed the requested level of authorized take well before the 30 year time period of the proposed permit. The result of early expiration of the permit would result in either a major amendment to the SEP HCP, expiration of the permit and a return to the No Action Alternative status quo, or starting a new regional HCP planning process. All of these options undermine the expected efficiencies and increased compliance with the Act expected as part of the Proposed SEP HCP Alternative.
We did not choose the Single County Alternative because we believe the proposed mitigation compared to the amount of requested take is insufficient to meet the issuance criteria (described below) for an ITP. In particular, the criteria requiring an HCP minimize and mitigate to the maximum extent practicable any impacts from proposed takings.
We did not choose the Increased Mitigation Alternative because the high cost to participate in the plan would likely decrease participation in the plan causing individuals to come to the Service for individual permits, similar to the No Action Alternative.
In order to issue an ITP we must ascertain that the HCP meets issuance criteria as set forth in 16 U.S.C. 1539(a)(2)(A) and (B). We have made
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We have determined that the Proposed SEP HCP Alternative best balances the protection and management of habitat for Covered Species while providing an efficient means for compliance with the Act for the Covered Species in the permit area. Considerations used in this decision include whether (1) mitigation will benefit the Covered Species, (2) adaptive management of the conservation measures will ensure that the goals and objectives of the HCP are realized, (3) conservation measures will protect and enhance habitat, (4) mitigation measures for the Covered Species will fully offset anticipated impacts to species and provide recovery opportunities, and (5) the HCP is consistent with the Covered Species' recovery plans, where they exist.
A final permit decision will be made no sooner than 30 days after the publication of this notice of availability and completion of the record of decision.
You may obtain copies of the final EIS, draft ROD, and final HCP by going to
• Department of the Interior, Natural Resources Library, 1849 C St. NW., Washington, DC 20240.
• U.S. Fish and Wildlife Service, 500 Gold Avenue SW., Room 6034, Albuquerque, NM 87102.
• U.S. Fish and Wildlife Service, 10711 Burnet Road Suite 200, Austin, TX 78758.
Persons wishing to review the application may obtain a copy by writing to the Regional Director, U.S. Fish and Wildlife Service, P.O. Box 1306, Room 6034, Albuquerque, NM 87103.
We provide this notice under section 10(c) of the Act (16 U.S.C. 1531
Bureau of Land Management, Interior.
30-day notice and request for comments.
The Bureau of Land Management (BLM) has submitted an information collection request to the Office of Management and Budget (OMB) to continue the collection of information from applicants for a land patent under the Color-of-Title Act. This request is for an extension without change of OMB control number 1004-0029.
The OMB is required to respond to this information collection request within 60 days but may respond after 30 days. For maximum consideration, written comments should be received on or before January 19, 2016.
Please submit comments directly to the Desk Officer for the Department of the Interior, OMB Control ID: 1004-0029, Office of Management and Budget, Office of Information and Regulatory Affairs, fax 202-395-5806, or by electronic mail at
Mail: U.S. Department of the Interior, Bureau of Land Management, 1849 C Street NW., Room 2134LM, Attention: Jean Sonneman, Washington, DC 20240.
Fax: to Jean Sonneman at 202-245-0050.
Electronic mail:
Please indicate “Attn: 1004-0029” regardless of the form of your comments.
Flora Bell, at 202-912-7347. Persons who use a telecommunication device for the deaf may call the Federal Information Relay Service at 1-800-877-8339, to leave a message for Ms. Bell. You may also review the information collection request online at
The Paperwork Reduction Act (44 U.S.C. 3501-3521) and OMB regulations at 5 CFR part 1320 provide that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond. In order to obtain and renew an OMB control number, Federal agencies are required to seek public comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d) and 1320.12(a)).
As required at 5 CFR 1320.8(d), the BLM published a 60-day notice in the
1. Whether the collection of information is necessary for the proper functioning of the BLM, including whether the information will have practical utility;
2. The accuracy of the BLM's estimate of the burden of collecting the information, including the validity of the methodology and assumptions used;
3. The quality, utility and clarity of the information to be collected; and
4. How to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
Please send comments as directed under
The following information is provided for the information collection:
Forms:
• Form 2540-1, Color-of-Title Application;
• Form 2540-2, Color-of-Title Conveyances Affecting Color or Claim of Title; and
• Form 2540-3, Color-of-Title Tax Levy and Payment Record.
The following table details the individual components and respective hour burdens of this information collection request:
On the basis of the record
The Commission also found that imports of circular welded carbon-quality steel pipe from the Philippines are negligible pursuant to section 771(24) of the Act, and its investigation with regard to imports from this country
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations on circular welded carbon-quality steel pipe from Oman, Pakistan, the United Arab Emirates, and Vietnam. The Commission will issue a final phase notice of scheduling, which will be published in the
On October 28, 2015, Bull Moose Tube Company (Chesterfield, Missouri); EXLTUBE (N. Kansas City, Missouri); Wheatland Tube, a division of JMC Steel Group (Chicago, Illinois); and Western Tube and Conduit (Long Beach, California) filed a petition with the Commission and Commerce, alleging that an industry in the United States is materially injured and threatened with material injury by reason of imports of circular welded carbon-quality steel pipe from Oman, Pakistan, the Philippines, the United Arab Emirates, and Vietnam, that are alleged to be sold in the United States at LTFV and alleged to be subsidized by the government of Pakistan. Accordingly, effective October 28, 2015, the Commission, pursuant to sections 703(a) and 733(a) of the Tariff Act of 1930 (19 U.S.C. 1671b(a) and 1673b(a)), instituted countervailing duty investigation No. 701-TA-549 and antidumping duty investigation Nos. 731-TA-1299-1303 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to sections 703(a) and 733(a) of the Tariff Act of 1930 (19 U.S.C. 1671b(a) and 1673b(a)). It completed and filed its determinations in these investigations on December 14, 2015. The views of the Commission are contained in USITC Publication 4586 (December 2015), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on October 1, 2015, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of AAVN, Inc. of Richardson, Texas. Supplements were filed on October 9 and 13, 2015. An amended complaint was filed on October 20, 2015. A second amended complaint was filed on November 12, 2015. A further supplementation was filed on December 4, 2015. The second amended complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain woven textile fabrics and products containing same by reason of infringement of certain claims of U.S. Patent No. 9,131,790 (“the '790 patent”), and that an industry in the United States exists as required by subsection (a)(2) of section 337. The second amended complaint further alleges violations of section 337 based upon the importation into the United States, the sale for importation into the United States, or in the sale of certain woven textile fabrics and products containing same by reason of false advertising, the threat or effect of which is to destroy or substantially injure an industry in the United States.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a general exclusion order, or in the alternative a limited exclusion order, and cease and desist orders.
The second amended complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2015).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether:
(a) There is a violation of subsection (a)(1)(B) of section 337 in the
(b) whether there is a violation of subsection (a)(1)(A) of section 337 in the importation into the United States, or in the sale of certain woven textile fabrics and products containing same by reason of false advertising, the threat or effect of which is to destroy or substantially injure an industry in the United States; and
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the second amended complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the second amended complaint and the notice of investigation. Extensions of time for submitting responses to the second amended complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the second amended complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the second amended complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the second amended complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On October 28, 2015, TB Wood's Incorporated, Chambersburg, Pennsylvania filed petitions with the Commission and Commerce, alleging that an industry in the United States is materially injured or threatened with material injury by reason of LTFV imports of IMTDCs from Canada and China and subsidized imports of IMTDCs from China. Accordingly, effective October 28, 2015, the Commission, pursuant to sections 703(a) and 733(a) of the Tariff Act of 1930 (19 U.S.C. 1671b(a) and 1673b(a)), instituted countervailing duty investigation No. 701-TA-550 and antidumping duty investigation Nos. 731-TA-1304-1305 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to sections 703(a) and 733(a) of the Tariff Act of 1930 (19 U.S.C. 1671b(a) and 1673b(a)). It completed and filed its determinations in these investigations on December 14, 2015. The views of the Commission are contained in USITC Publication 4587 (December 2015), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the final initial determination (ID) issued on October 9, 2015, which found no violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in this investigation.
Ron Traud, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-3427. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000.
General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation based on a complaint filed by NVIDIA Corporation of Santa Clara, California (NVIDIA). The investigation was instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain consumer electronics and display devices with graphics processing and graphics processing units therein by reason of infringement of one or more of claims 1, 19, and 20 of U.S. Patent No. 6,198,488 (the '488 patent); claims 1 29 of U.S. Patent No. 6,992,667 (the '667 patent); claims 1 5, 7 19, 21 23, 25 30, 34 36, 38, and 41 43 of U.S. Patent No. 7,038,685 (the '685 patent); claims 5 8, 10, 12 20, and 24 27 of U.S. Patent No. 7,015,913 (the '913 patent); claims 7, 8, 11 13, 16 21, 23, 24, 28, and 29 of U.S. Patent No. 6,697,063 (the '063 patent); claims 1 10, 12, and 14 of U.S. Patent No. 7,209,140 (the '140 patent); and claims 1 6, 9 16, and 19 25 of U.S. Patent No. 6,690,372 (the '372 patent), and whether an industry in the United States exists as required by subsection (a)(2) of section 337. 79 FR 61338 (Oct. 10, 2014). Respondents include Samsung Electronics Co., Ltd. (Republic of Korea); Samsung Electronics America, Inc. (Ridgefield Park, NJ); Samsung Telecommunications America, LLC (Richardson, TX); Samsung Semiconductor, Inc. (San Jose, CA); and Qualcomm, Inc. (San Diego, CA) (collectively, Respondents). NVIDIA later withdrew all allegations regarding the '488, '667, '913, and '063 patents and some allegations regarding the '140, '372, and '685 patents.
On October 9, 2015, the presiding administrative law judge (ALJ) issued his ID finding no violation by Respondents of section 337 with respect to the remaining allegations. Specifically, regarding the `140 patent, the ID concluded: (1) Claim 14 is invalid for obviousness; (2) the accused products do not infringe; and (3) there is no domestic industry. Regarding the `372 patent, the ID concluded: (1) Claim 23 and claim 24 are invalid for anticipation; (2) some of the accused products infringe claim 23, but none of the accused products infringe claim 24; and (3) there is no domestic industry. Regarding the `685 patent, the ID concluded: (1) Neither claim 1 nor claim 15 are invalid for anticipation; (2) the accused products do not infringe claim 1 or claim 15; and (3) there is a domestic industry. The ID additionally found that the scope of this investigation is limited to consumer electronics and display devices that include graphics processing capabilities and that have graphics processing units therein, rejecting NVIDIA's argument to include Qualcomm graphics processing units separate and apart from the consumer electronic and display devices.
On October 26, 2015, NVIDIA filed a petition for review of the ALJ's findings related to the '372 and '685 patents, and Respondents filed a contingent petition for review of the ALJ's findings related to the '140 and '685 patents. NVIDIA did not seek review of the ALJ's findings related to the '140 patent. On October 30, 2015, the ALJ issued his recommended determination on remedy
On September 24, 2015, NVIDIA filed an Unopposed Motion to Terminate the Investigation as to Respondent Samsung Telecommunications America, LLC. We have reviewed the motion, and it is granted.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42 46 of the Commission's Rules of Practice and Procedure (19 CFR 210.42 46).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of an expedited review pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty order on potassium permanganate from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
Michael Szustakowski ((202) 205-3169), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the review must be served on all other parties to the review (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review-in-part the initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) on October 28, 2015,
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-3115. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on January 27, 2015, based on a complaint filed by Epson Portland Inc. of Hillsboro, Oregon; Epson America, Inc. of Long Beach, California; and Seiko Epson Corporation of Japan (collectively, “Epson”). 80 FR 4314-16 (Jan. 27, 2015). The complaint alleged violations of section 337 by reason of the importation into the United States, the sale for importation, and the sale within the United States after importation of certain ink cartridges and components thereof that infringe certain claims of U.S. Patent Nos. 8,366,233 (“the '233 patent”); 8,454,116 (“the '116 patent”); 8,794,749 (“the '749 patent”); 8,801,163 (“the '163 patent”); and 8,882,513 (“the '513 patent”).
Respondents Zhuhai Nano Digital Technology, Co., Ltd. of Guangdong, China and Nano Business and Technology, Inc. of Lake Oswego, Oregon were terminated from the investigation based upon a settlement agreement and consent order.
The remaining 17 respondents were found in default.
On August 31, 2015, Epson moved for a summary determination of a violation of section 337 by the defaulting respondents and for issuance of a general exclusion order and cease and desist orders. On September 11, 2015, the Commission Investigative Attorney (“IA”) filed a response in support of the motion. No other responses to the motion were received.
On September 16, 2015, the ALJ issued an ID partially terminating the investigation based on Epson's withdrawal of certain claims.
On October 28, 2015, the ALJ issued the subject ID granting Epson's motion for summary determination of violation and recommending the issuance of a general exclusion order and cease and desist orders.
The Commission has determined to review only the importation analysis in the ID. Upon review, the Commission affirms a finding that Epson has met the importation requirement. In addition to the specific instances of importation by each defaulting respondent identified in the ID, the record evidence supports a finding that respondent Zhuhai National, through its intermediary respondent Huebon, sold and imported accused ink cartridge control no. 7579 (Group 4 cartridge) in 2014. Seitz 2015 Decl. ¶ 39; Seitz Ex. 1.170. In addition, the record evidence supports a finding that respondent Zinyaw sold accused ink cartridge control no. 7556 (Group 5 cartridge) after they were imported into the United States in 2014. Seitz 2015 Decl. ¶ 156; Seitz Ex. 1.215.
In connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in the respondent(s) being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background, see
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
Written Submissions: Parties to the investigation, interested government agencies, and any other interested parties are encouraged to file written submissions on the issues of remedy, the public interest, and bonding. Complainant and the IA are also requested to submit proposed remedial orders for the Commission's
Written submissions and proposed remedial orders must be filed no later than close of business on Wednesday, December 30, 2015. Reply submissions must be filed no later than the close of business on Wednesday, January 6, 2015. Such submissions should address the ALJ's recommended determinations on remedy and bonding which were made in Order No. 12. No further submissions on any of these issues will be permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit eight (8) true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the investigation number (“Inv. No. 337-TA-946”) in a prominent place on the cover page and/or the first page. (See Handbook for Electronic Filing Procedures,
The authority for the Commission's determinations is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), 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.
Comments are encouraged and will be accepted for 60 days until February 16, 2016.
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 Laurie O' Lena, 3750 Corporal Road, Huntsville, AL 35898 at email or telephone:
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:
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Abstract: ATF is charged with the responsibility for enforcing Title XI of the Organized Crime Control Act (the Act) of 1970 and the implementing regulations contained at 27 CFR, Part 555. Subtitle C of Public Law 107-296, the Safe Explosives Act, enacted November 25, 2003, amended the Act to give the Director authority to grant relief from disability for any person who is prohibited from shipping, transporting, receiving, or possessing an explosive under section 842(i) of the Act. The regulations at 27 CFR, Section 555.142 state that the Director may grant relief to an applicant if it is established to the satisfaction of the Director that the circumstances regarding the disability and the applicant's record and reputation are such that the applicant will not be likely to act in a manner dangerous to public safety. The ATF Form 5400.29, Application for Restoration of Explosives Privileges, is used by ATF to conduct background investigations on all applicants for restoration of explosives privileges. In an effort to ensure that any person applying for restoration of explosives privileges has a record and reputation such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of such relief would not be contrary to the public interest, ATF proposes that all applicants complete ATF Form 5400.29.
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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.
Office for Victims of Crime, Department of Justice.
30-day notice.
The Department of Justice, Office of Justice Programs, Office for Victims of Crime will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The following collections (1121-0336 and 1121-0342) will be discontinued and combined with this revision of 1121-0341. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until January 19, 2016.
If you have 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 Shelby Jones Crawford, Program Manager, Office for Victims of Crime, Office of Justice Programs, Department of Justice, 810 7th Street NW., Washington, DC 20530. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Officer of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington DC 20503 or send 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:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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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., Room 3E.405B, Washington, DC 20530.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested
Written comments must be submitted to the office listed in the
Send comments to Carol Rowan, BLS Clearance Officer, Division of Management Systems, Bureau of Labor Statistics, Room 4080, 2 Massachusetts Avenue NE., Washington, DC 20212. Written comments also may be transmitted by fax to 202-691-5111 (this is not a toll free number).
Carol Rowan, BLS Clearance Officer, 202-691-7628 (this is not a toll free number). (See
The Quarterly Census of Employment and Wages (QCEW) program is a Federal/State cooperative effort which compiles monthly employment data, quarterly wages data, and business identification information from employers subject to State Unemployment Insurance (UI) laws. These data are collected from State Quarterly Contribution Reports (QCRs) submitted to State Workforce Agencies (SWAs). The States send micro-level employment and wages data, supplemented with the names, addresses, and business identification information of these employers, to the BLS. The State data are used to create the BLS sampling frame, known as the longitudinal QCEW data. This file represents the best source of detailed industrial and geographical data on employers and is used as the sampling frame for most BLS surveys. The longitudinal QCEW data include the individual employers' employment and wages data along with associated business identification information that is maintained by each State to administer the UI program as well as the Unemployment Compensation for Federal Employees (UCFE) program.
The QCEW Report, produced for each calendar quarter, is a summary of these employer (micro-level) data by industry at the county level. Similar data for Federal Government employees covered by the UCFE program also are included in each State's report. These data are submitted by all 50 States, the District of Columbia, Puerto Rico, and the Virgin Islands to the BLS which then summarizes these micro-level data to produce totals for the States and the Nation. The QCEW Report provides a virtual census of nonagricultural employees and their wages, with nearly 53 percent of the workers in agriculture covered as well.
For employers having only a single physical location or worksite in the State and, thus, operating under a single industrial and geographical code, the data from the States' UI accounting files are sufficient for statistical purposes. However, such data are not sufficient for statistical purposes for those employers having multiple establishments or engaging in different industrial activities within the State. In such cases, the employer's QCR reflects only statewide employment and wages and is not disaggregated by establishment or worksite. Although data at this level are sufficient for many purposes of the UI program, more detailed information is required to create a sampling frame and to meet the needs of several ongoing Federal/State statistical programs. The Multiple Worksite Report (MWR) is designed to supplement the QCR when more detailed information is needed.
Because of the data captured by the MWR, improved establishment business identification data elements have been incorporated into and maintained by the longitudinal QCEW database. The MWR collects a physical location address, secondary name (trade name, division, subsidiary, etc.), and reporting unit description (store number, plant name or number, etc.) for each worksite of multi-establishment employers.
Employers with more than one establishment reporting under the same UI account number within a State are requested to complete the MWR if the sum of the employment in all of their secondary establishments is 10 or greater. The primary worksite is defined as the establishment with the greatest number of employees. Upon receipt of the first MWR form, each employer is requested to supply business location identification information. Thereafter, this reported information appears on the MWR each quarter. The employer is requested to verify the accuracy of this business location identification information and to provide only the employment and wages for each worksite for that quarter. By using a standardized form, the reporting burden on many large employers, especially those engaged in multiple economic activities at various locations across numerous States, is reduced.
The function of the Report of Federal Employment and Wages (RFEW) is to collect employment and wages data for Federal establishments covered under the UCFE program. The MWR and RFEW are essentially the same. The MWR/RFEW forms are designed to collect data for each establishment of a multi-establishment employer.
No other standardized report is available to collect current establishment-level monthly employment and wages data by SWAs for statistical purposes each quarter from the private sector nor State and local governments. Also, no other standardized report currently is available to collect installation-level Federal monthly employment and wages data each quarter by SWAs for statistical purposes. Completion of the MWR is required by State law in 27 States and territories.
Office of Management and Budget clearance is being sought for an extension of the Multiple Worksite Report and the Report of Federal Employment and Wages.
The BLS has taken steps to help reduce employer reporting burden by developing a standardized format for employers to use to send these data to the States in an electronic medium. The BLS established an Electronic Data Interchange (EDI) Collection Center to improve and expedite the MWR collection process. Employers who complete the MWR for multi-location businesses can submit employment and wages information on any electronic medium directly to the data collection center, rather than separately to each State agency. The data collection center then distributes the appropriate data to the respective States. In addition, the BLS has developed a Web-based system, MWRweb, to collect these data from small to medium-size businesses. The BLS continues to see much greater utilization of this reporting option.
The Bureau of Labor Statistics is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• 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 submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they also will become a matter of public record.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
The NSF is located at 4201 Wilson Blvd., Arlington, VA 22230.
Vote on Report.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.”
Submit comments by February 16, 2016. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Tremaine Donnell, Office of the Chief Information Officer U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6258; email:
Please refer to Docket ID NRC-2015-0273 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2015-0273 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution as defined in these Title IX regulations.
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Request for Information Regarding Recommendations 2.1, 2.3, and 9.3 of the Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Event.”
Submit comments by
Submit comments directly to the OMB reviewer at: Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-0211) NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-7315, email:
Tremaine Donnell, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6258; email:
Please refer to Docket ID NRC-2015-0043 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “Request for Information Regarding Recommendations 2.1, 2.3, and 9.3 of the Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Event.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Pursuant to delegation by the Commission,
This proceeding involves an application by Southern Nuclear Operating Company, Inc. for an amendment to Facility Operating License Nos. NPF-91 and NPF-92 for operation of the Vogtle Electric Generating Plant, Units 3 and 4, located in Burke County, Georgia. In response to a notice filed in the
The Board is comprised of the following Administrative Judges:
All correspondence, documents, and other materials shall be filed in accordance with the NRC E-Filing rule.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Nuclear Material Events Database (NMED for the Collection of Event Report, Response, Analyses, and Follow-up Data on Events Involving the Use of Atomic Energy Act (AEA) Radioactive Byproduct Material.”
Submit comments by January 19, 2016.
Submit comments directly to the OMB reviewer at: Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-0178), NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: (202) 395-7315, email:
Tremaine Donnell, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: (301) 415-6258; email:
Please refer to Docket ID NRC-2015-0158 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “Nuclear Material Events Database (NMED for the Collection of Event Report, Response, Analyses, and Follow-up Data on Events Involving the Use of Atomic Energy Act (AEA) Radioactive Byproduct Material.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, NRC Form 531 “Request for Taxpayer Identification Number.”
Submit comments by January 19, 2016.
Submit comments directly to the OMB reviewer at: Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-0188), NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-7315, email:
Tremaine Donnell, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6258; email:
Please refer to Docket ID NRC-2015-0166 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, NRC Form 531 “Request for Taxpayer Identification Number”. The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
U.S. Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “NRC Form 664, General Licensee Registration.”
Submit comments by January 19, 2016.
Submit comments directly to the OMB reviewer at: Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-0198), NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-7315, email:
Tremaine Donnell, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6258; email:
Please refer to Docket ID NRC-2015-0175 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “NRC Form 664 General Licensee Registration.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget (OMB); request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a renewal of the OMB approval for an existing collection of information to OMB for review. The information collection is titled, “10 CFR part 40, Domestic Licensing of Source Material” (3150-0020).
Submit comments by January 19, 2016.
Submit comments directly to the OMB reviewer at: Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-0020), NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-7315, email:
Tremaine Donnell, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6258; email:
Please refer to Docket ID NRC-2015-0129 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review titled, “Information Collection: 10 CFR part 40, “Domestic Licensing of Source Material.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Contract 164 negotiated service agreement to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-36 and CP2016-42 to consider the Request pertaining to the proposed Priority Mail Contract 164 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than December 21, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-36 and CP2016-42 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than December 21, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail & First-Class Package Service Contract 8 negotiated service agreement to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-34 and CP2016-40 to consider the Request pertaining to the proposed Priority Mail & First-Class Package Service Contract 8 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than December 21, 2015.
The Commission appoints James F. Callow to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-34 and CP2016-40 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, James F. Callow is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than December 21, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Contract 163 negotiated service agreement to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-35 and CP2016-41 to consider the Request pertaining to the proposed Priority Mail Contract 163 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than December 21, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Kenneth R. Moeller to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-35 and CP2016-41 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Kenneth R. Moeller 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 December 21, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an additional Global Expedited Package Services 3 negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On December 14, 2015, the Postal Service filed notice that it has entered into an additional Global Expedited Package Services 3 (GEPS 3) negotiated service agreement (Agreement).
To support its Notice, the Postal Service filed a copy of the Agreement, a copy of the Governors' Decision authorizing the product, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket No. CP2016-45 for consideration of matters raised by the Notice.
The Commission invites comments on whether the Postal Service's filing is consistent with 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 December 22, 2015. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints James F. Callow to serve as Public Representative in this docket.
1. The Commission establishes Docket No. CP2016-45 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, James F. Callow is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than December 22, 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 December 10, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 11, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 11, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 10, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 10, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service ® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 11, 2015, it filed with the Postal Regulatory Commission a
On September 17, 2015, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
As stated in the Notice, FINRA is proposing to amend FINRA Rule 0150, which governs the application of FINRA rules and the rules of the National Association of Securities Dealers (“NASD”)
In the Notice, FINRA described the historical reasons for not applying certain NASD rules, including the mark-up rule, to exempted securities (except municipal securities). Prior to 1993, there were statutory limitations on the NASD's ability to apply sales practice rules, including the mark-up rules, to transactions in exempted securities. The Government Securities Act Amendments of 1993 (“GSAA”)
FINRA believes that the proposal to extend FINRA Rule 0150 to apply the mark-up rule to transactions in government securities is consistent with both the GSAA and with the prior application by NASD of certain of its rules, following the GSAA, to exempted securities other than municipal securities.
FINRA also believes that there would be regulatory benefits from amending FINRA Rule 0150 to apply the mark-up rule to transactions in government securities. In the Notice, FINRA notes that it must use the general provisions of FINRA Rule 2010 if FINRA staff wants to bring a case alleging excessive mark-ups, mark-downs, or commissions in transactions in exempted securities other than municipal securities, such as agency debt securities or U.S. Treasury securities.
FINRA also believes that the proposed amendment would only have a minimal impact on its members because FINRA Rule 2010 already applies to these transactions.
After carefully considering the proposed rule, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association.
As discussed above, the proposed rule change would expand the applicability of the mark-up rule to exempted securities that are government securities. The Commission notes that government securities can be subject to excessive mark-ups and agrees that making more explicit FINRA's authority over excessive and improper mark-ups, mark-downs, or commissions relating to government securities will benefit investors in government securities. While the Commission acknowledges that FINRA Rule 2010 already applies to transactions in government securities and instances of improper or excessive mark-ups, mark-downs, and commissions, the Commission believes that expanding FINRA Rule 0150 to include the mark-up rule will give FINRA an important enforcement tool with which to pursue instances of excessive mark-ups, mark-downs, and commissions. The Commission also agrees with FINRA's belief that applying the mark-up rule to these securities will provide members with additional clarity when conducting transactions in government securities.
Pursuant to Section 19(b)(5) of the Act,
IT IS THEREFORE ORDERED, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 806(e)(1) of title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the Payment, Clearing, and Settlement Supervision Act of 2010 (“Payment, Clearing and Settlement Supervision Act”)
As discussed in more detail below, this advance notice is filed by OCC in connection with a proposed change to: (i) Extend the existing confirmation (“Existing Confirmation”)
By this notice, OCC requests that the Commission not object to the foregoing proposed changes for renewing, in the future, the Existing Confirmation and the Second Confirmation on the same terms and conditions
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the advance notice and discussed any comments it received on the advance notice. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections A and B below, of the most significant aspects of these statements.
Written comments were not and are not intended to be solicited with respect to the advance notice and none have been received.
This Amendment No. 3 to SR-OCC-2015-805 (“Filing”) amends and replaces in its entirety the Filing as originally submitted on November 5, 2015, and amended on November 11, 2015 and November 17, 2015. The purpose of this Amendment No. 3 to the Filing is to clarify the conditions under which OCC would be permitted to renew either of the Confirmations without filing a subsequent advance notice filing.
This advance notice is filed by OCC in connection with a proposed change to: (i) Extend the Existing Confirmation, for one year under the MRA, with the same terms and conditions, for a commitment amount of $500 million; (ii) enter into a Second Confirmation under the MRA, also on the same terms and conditions, except with an expiration date in June 2016, for a commitment amount of $500 million; and, (iii) maintain, between the Existing Confirmation and Second Confirmation, an aggregate commitment amount of no less than $1 billion and no greater than $1.5 billion under the Non-Bank Liquidity Facility with the existing Counterparty and its agent.
OCC's overall liquidity plan provides it with access to a diverse set of liquidity funding sources, which include bank borrowing arrangements (
The currently approved Non-Bank Liquidity Facility is comprised of two parts: The MRA and the Existing
OCC, as the seller, would transfer Eligible Securities to the buyer in exchange for a payment by the buyer to OCC in immediately available funds (“Purchase Price”). The buyer would simultaneously agree to transfer the purchased securities back to OCC at a specified later date (“Repurchase Date”) or on OCC's demand against the transfer of funds by OCC to the buyer in an amount equal to the outstanding Purchase Price plus the accrued and unpaid price differential (together, “Repurchase Price”), which is the interest component of the Repurchase Price.
The Confirmations establish tailored provisions of the actual repurchase transactions permitted under the MRA. By entering into the Confirmation, the Counterparty is obligated to enter repurchase transactions even if OCC experiences a material adverse change,
In order to provide continued access to liquidity resources, OCC is also proposing to extend the Existing Confirmation under the Non-Bank Liquidity Facility. The extended Existing Confirmation would have the same terms, conditions, operations, and mechanics as the Existing Confirmation entered into under the Non-Bank Liquidity Facility, but for the expiration date, which would be January 2017, and the commitment amount, which would be $500 million.
The extended Existing Confirmation would, for example, continue to state that OCC is entitled to receive funds from the Non-Bank Liquidity Facility within 60 minutes of a request for such monies and delivery of eligible securities. The buyer would not be able to rehypothocate eligible securities sold to it in connection with a Non-Bank Liquidity Facility transaction, and OCC would be able to substitute eligible securities held by the buyer. Additionally, OCC would have early termination rights with respect to any transaction entered into under the Non-Bank Liquidity Facility as well as have additional remedies in the case of “material adverse changes” to OCC. For example, OCC would require that it would not be an event of default if OCC suffers a material adverse change, such as the failure of a clearing member. This provision is important because it provides OCC with certainty of funding, even in adverse or difficult market conditions. This commitment to provide funding would be a key distinction from ordinary repurchase arrangements and a key requirement for OCC.
OCC proposes to enter into the Second Confirmation that would permit transactions of up to $500 million and would expire in June 2016. The proposed Second Confirmation would have the same terms, conditions, operations, and mechanics as the Existing Confirmation of the Non-Bank Liquidity Facility, but for the commitment amount and the term.
The proposed Second Confirmation, with a June 2016 expiration date, would help ensure continued access to a minimum amount of liquidity to OCC by staggering the expiration of the committed liquidity funding sources. OCC's current committed liquidity funding sources, which are its syndicated credit facility
OCC's current aggregate committed funding available under its Non-Bank Liquidity Facility ($1.0 billion) and its bank syndicated credit facility ($2.0 billion) is $3.0 billion. OCC is proposing to maintain the aggregate commitment amount under the Non-Bank Liquidity Facility at no lower than $1.0 billion and no higher than $1.5 billion, so that the aggregate total funding available is between $3.0 billion and $3.5 billion. This would provide OCC with the flexibility to: (i) React to shifting liquidity needs in a swift manner within funding parameters approved by the Commission, and (ii) reallocate the amount of funding available under the Confirmations at the time either of the Confirmations is to be renewed to manage liquidity needs and enhance its ability to ensure continual liquidity resources.
OCC would continue to evaluate the aggregate commitment amount of the Non-Bank Liquidity Facility so that OCC's available liquidity resources remain properly calibrated to its activities and settlement obligations, and to the extent: (i) OCC determines its liquidity needs merit funding levels below the $1.0 billion or above the $1.5 billion thresholds for the Non-Bank Liquidity Facility, (ii) OCC should seek to change the terms and conditions of the Non-Bank Liquidity Facility, or (iii) the Counterparty has experienced a negative change to its credit profile or a material adverse change since entering into the Confirmations or the latest renewal of the either Confirmation, OCC would submit a proposal with the Commission for approval first.
Completing timely settlement is a key aspect of OCC's role as a clearing agency performing central counterparty services. The extension of the Existing Confirmation would continue to promote the reduction of risks to OCC, its clearing members and the options market in general because it would allow OCC to continue to obtain short-term funds from the Non-Bank Liquidity Facility to address liquidity demands arising out of the default or suspension of a clearing member, in anticipation of a potential default or suspension of clearing members, or the insolvency of a bank or another securities or commodities clearing organization.
The Second Confirmation and the ability to seek an aggregate commitment amount under the Non-Bank Liquidity Facility for no lower than $1.0 billion and no greater than $1.5 billion would also help OCC ensure the continued availability of its liquidity resources by embedding the staggered expiration of the committed liquidity funding sources and providing OCC with the flexibility to seek additional funding amounts at the same terms, conditions, operations, and mechanics of the Confirmations.
The MRA, like any liquidity source, would involve certain risks, but OCC would continue to structure the Non-Bank Liquidity Facility to mitigate those risks. Most of these risks are standard in any master repurchase agreement. For example, a buyer could fail to deliver, or delay in delivering, purchased securities to OCC by the applicable Repurchase Date. OCC will address this risk by seeking a security interest from the buyer in that portion of the purchased securities representing the excess of the market value over the Repurchase Price, or by obtaining other comfort from the buyer that the purchased securities will be timely returned. Further, the purchased securities generally will not be “on-the-run” securities,
The mechanics under the MRA would be structured so that OCC could avoid losses by paying the Repurchase Price. For example, OCC will have optional early termination rights in each Confirmation, under which OCC would be able to accelerate the Repurchase Date of any transaction by providing written notice to the buyer and paying the Repurchase Price. Through this mechanism, OCC can maintain the benefit of the MRA, while mitigating any risk associated with a particular transaction.
The MRA would be structured to avoid potential third-party risks, which are typical of repurchase arrangements. The prohibition on buyer rehypothecation and use of purchased securities, along with OCC's visibility into the buyer's custody account, would reduce the risk to OCC of a buyer default.
As with any repurchase arrangement, OCC is subject to the risk that it may have to terminate existing transactions and accelerate the applicable Repurchase Date with respect to a buyer due to changes in the financial health or performance of the buyer. Terminating transactions could negatively affect OCC's liquidity position. However, any negative effect is reduced by the fact that OCC maintains a number of different financing arrangements, and thus will have access to liquidity sources in the event the MRA is no longer a viable source.
Under the MRA, OCC would be obligated to transfer additional cash or securities as margin in the event the market value of any purchased securities decreases. OCC seeks to ensure it can meet any such obligation by monitoring the value of the purchased securities and maintaining adequate cash resources to make any required payments. Such payments are expected to be small in comparison to the total amount of cash received for each transfer of purchased securities.
The proposed change would help OCC minimize losses in the event of a default, suspension or insolvency, by allowing it to obtain funds from sources not connected to OCC's clearing members on extremely short notice to ensure clearance and settlement of transactions in options and other contracts without interruption. OCC believes that the reduced settlement risk presented by OCC resulting from the proposed change would correspondingly reduce systemic risk and promote the safety and soundness of the clearing system. The ability to borrow funds from the Non-Bank Liquidity Facility would allow OCC to avoid liquidating margin or clearing fund assets in what would likely be volatile market conditions, which would preserve funds available to cover any losses resulting from the failure of a clearing member, bank or other clearing organization.
Because the proposed change preserves substantially the same terms and conditions as the MRA and the Existing Confirmation, OCC believes that the proposed change would not otherwise affect or alter the management of risk at OCC.
OCC believes the proposed change is consistent with section 805(b)(1) of the Payment, Clearing and Settlement Supervision Act.
The proposed change may be implemented if the Commission does not object to the proposed change within 60 days of the later of (i) the date that the proposed change was filed with the Commission or (ii) the date that any additional information requested by the Commission is received. OCC shall not implement the proposed change if the Commission has any objection to the proposed change.
The Commission may extend the period for review by an additional 60 days if the proposed change raises novel or complex issues, subject to the Commission providing OCC with prompt written notice of the extension. The proposed change may be implemented in less than 60 days from the date the advance notice is filed, or the date further information requested by the Commission is received, if the Commission notifies OCC in writing that it does not object to the proposed change and authorizes OCC to implement the proposed change on an earlier date, subject to any conditions imposed by the Commission.
OCC shall post notice on its Web site of proposed changes that are implemented.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views and arguments concerning the foregoing. 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.
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes (1) amending the Seventh Amended and Restated Operating Agreement of the Exchange (“Operating Agreement”) to establish a Committee for Review as a sub-committee of the ROC and make conforming changes to Rules 475, 476, 476A, 20—Equities, 308—Equities and Sections 1201, 1204, 1205, 1206, 1211, and 1212T of the NYSE MKT Company Guide (the “Company Guide”); (2) deleting references to “NYSE Regulation, Inc.” and “NYSE Regulation” in Section 4.05 of the Operating Agreement and Rules 0, 1—Equities, 22—Equities, 36—Equities, 48—Equities, 49—Equities, 54—Equities, 70—Equities, 103—Equities, 103A—Equities, 103B—Equities, 422—Equities, 497—Equities, and 902NY; (3) replacing references to the Chief Executive Officer of NYSE Regulation, Inc. in Rules 48—Equities, 49—Equities and 86—Equities with references to the Chief Regulatory Officer of the Exchange; and (4) making certain technical and non-substantive changes. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to the following changes:
• Amending the Operating Agreement to establish a Committee for Review (“CFR”) as a sub-committee of the ROC and make conforming changes to Rules 475, 476, 476A, 20—Equities, 308—Equities and Sections 1201, 1204, 1205, 1206, 1211, and 1212T of the Company Guide;
• deleting references to “NYSE Regulation, Inc.” and “NYSE Regulation”
• replacing references to the Chief Executive Officer of NYSE Regulation, Inc. in Rules 48—Equities, 49—Equities and 86—Equities with references to the Chief Regulatory Officer of the Exchange; and
• making certain technical and non-substantive changes.
The Exchange proposes that the above rule changes would be operative simultaneously with the termination of
The Exchange proposes to establish a CFR as a sub-committee of the ROC by adding a new section (h)(iii) to Section 2.03 of the Operating Agreement and making conforming changes to Rules 475, 476, 476A, 20—Equities, 308—Equities and Sections 1201, 1204, 1205, 1206, 1211, and 1212T of the Company Guide.
The proposed CFR would be the successor to the current CFR,
Section 2.03(h)(iii) of the Operating Agreement would provide that the Board shall annually appoint a CFR as a sub-committee of the ROC. As is currently the case, proposed Section 2.03(h)(iii) would provide that the CFR would be comprised of both Exchange directors that satisfy the independence requirements
Further, proposed Section 2.03(h)(iii) would provide that among the persons on the CFR who are not directors would be included representatives of member organizations that engage in a business involving substantial direct contact with securities customers (commonly referred to as “upstairs firms”), Designated Market Makers (“DMM”) or specialists, and floor brokers.
The Exchange does not propose to carry over the requirement that the CFR also have an individual representing the fourth category specified in Article III, Section 5 of the NYSE Regulation Bylaws, which is an individual associated with an NYSE MKT member organization that spends a majority of their time on the trading Floor and has as a substantial part of their business the execution of transactions on the trading Floor for their own account or the account of their member organization but is not registered as a specialist. This category describes a class of proprietary traders known as Registered Equity Market Makers (“REMM”) on the former American Stock Exchange LLC, a predecessor of the Exchange, and as Registered Competitive Market Makers (“RCMM”) on the NYSE.
REMMs, like RCMMs, were floor traders who engaged in on-floor proprietary trading, subject to certain requirements intended to have these members effectively function like market makers, pursuant to the exemption for market makers in Section 11(a)(1)(A) of the Exchange Act.
Like the current CFR, proposed Section 2.03(h)(iii) would provide that the CFR would be responsible for reviewing the disciplinary decisions on behalf of the Board.
In connection with creation of the proposed CFR, the Exchange also proposes to delete Rule 20, which provides that the Exchange establish a Market Performance Committee and that NYSE Regulation establish a Regulatory Advisory Committee to act in an advisory capacity regarding trading rules and disciplinary matters and regulatory rules other than trading rules, respectively. Historically, these advisory committees have been composed of persons associated with member organizations and representatives of both those member organizations doing business on the Exchange's trading floor and those who do not do business on the Floor.
The Exchange notes that the same categories of members would be represented on the proposed CFR, whose mandate as set forth in proposed Section 2.03(h)(iii) would include acting in an advisory capacity to the Board with respect to disciplinary matters, the listing and delisting of securities, regulatory programs, rulemaking and regulatory rules, including trading rules. The proposed CFR would therefore serve in the same advisory capacity as the Market Performance and Regulatory Advisory Committees. The Exchange accordingly believes that retaining the Market Performance Committee or
Finally, the Exchange proposes to make conforming amendments to 475, 476, 476A and 308—Equities and Sections 1201, 1204, 1205, 1206, 1211, and 1212T of the Company Guide to replace references to the current NYSE Regulation CFR
The Exchange believes that the proposed rule change is consistent with the approach approved for the Exchange's affiliate, NYSE.
In connection with the Exchange's termination of the intercompany RSA pursuant to which NYSE Regulation provides regulatory services to the Exchange,
• The Exchange proposes to amend Section 4.05 of the Operating Agreement to remove references to “NYSE Regulation, Inc.” and replace one reference with “Exchange regulatory staff.” The Exchange also proposes to replace references to NYSE Regulation “assets” to reflect the proposed reintegration of the regulatory function. The crux of the provision would continue to require the Exchange to ensure that any fees, fines or penalties collected by Exchange regulatory staff would not be used for commercial purposes or distributed to NYSE Group, Inc. (which is the “Member” for purposes of the Operating Agreement) or any other entity. The proposed revision does not in any way alter previous commitments with respect to the use of fine income.
• The Exchange proposes to amend Rule 0 (Definitions of Terms), which describes the regulatory services agreement between the NYSE and FINRA, to remove references to “NYSE Regulation, Inc., NYSE Regulation staff or departments”, retaining the existing reference in Rule 0 to Exchange staff, which reference would encompass the Exchange's regulatory staff.
• The Exchange proposes to amend Rule 476A (Imposition of Fines for Minor Violation(s) of Rules), which sets forth the Exchange's Minor Rule Violation Plan, to replace the reference to “NYSE Regulation” with “Exchange regulatory staff” in subpart (d) identifying the parties that can contest a fine imposed under the Rule.
• The Exchange proposes to amend Rule 1—Equities, which defines the term the “Exchange”, to replace references to “officer of NYSER” and “employee of NYSER” with “Exchange officer” and “Exchange employee”, respectively. The Exchange also proposes to delete the definitions of NYSE Market, Inc.
• The Exchange proposes to amend Rule 22—Equities (Disqualification Because of Personal Interest), which disqualifies members of certain Exchange boards and committees from considering a matter if there are certain types of indebtedness between the board or committee member and a member organization's affiliate or other related parties, to remove references to the “NYSE Regulation” board of directors.
• The Exchange proposes to amend Supplementary Material .30 of Rule 36—Equities (Communications Between Exchange and Members' Offices), which governs communications between the Exchange and member offices and requires records to “be maintained in the format prescribed by NYSE Regulation” to remove the reference to “NYSE Regulation” and replace it with “the Exchange.”
• The Exchange proposes to amend Supplementary Material .10 of Rule 46—Equities (Floor Officials—Appointment) to replace the reference to “employees of NYSE Regulation, Inc.” with a reference to “Exchange regulatory employees.”
• The Exchange proposes to amend Rule 48—Equities (Exemptive Relief — Extreme Market Volatility Condition), which sets forth the procedures for invoking an extreme market volatility
• The Exchange proposes to amend Rule 49—Equities (Emergency Powers), which addresses the Exchange's emergency powers, to replace “NYSE Regulation, Inc.” with “the Exchange” in the definition of “qualified Exchange officer.” The Exchange also proposes to replace the outdated reference to “NYSE Euronext” with “ICE.”
• The Exchange proposes to amend subpart (b) of Rule 54—Equities (Dealings on Floor—Persons) to replace “NYSE Regulation, Inc. (“NYSER”)” with “Exchange regulatory staff.” Rule 54(b)—Equities permits approval of appropriately registered and supervised booth staff of member organizations who are not “members” to process orders sent to the booth in the same manner that a sales trader in an “upstairs office” is allowed to process orders.
• The Exchange proposes to amend the title and subparts (1) & (7) of Supplementary Material .40 of Rule 70—Equities (Execution of Floor Broker Interest), which provides that a member organization will be permitted to operate a booth premise similar to the member organization's “upstairs” office, to refer to “Exchange regulatory staff” instead of “NYSE Regulation, Inc. (“NYSER”)” and “NYSER.”
• The Exchange proposes to amend Rule 103—Equities (Registration and Capital Requirements of DMMs and DMM Units), which governs registration and capital requirements for DMMs, to refer to “the Exchange” instead of “NYSE Regulation” and “Divisions of Market Surveillance and Member Firm Regulation.”
• The Exchange proposes to amend Rule 103A—Equities (Member Education), which governs the continuing education requirement for members active on the Exchange trading Floor, to replace “NYSE Regulation, Inc.” with “the Exchange.”
• The Exchange proposes to amend Rule 103B—Equities (Security Allocation and Reallocation), which governs the security allocation and reallocation process, to replace “staff of NYSE Regulation” with “Exchange regulatory” staff in Policy Note (G) and to replace “NYSE Regulation, Inc. (“NYSER”)” and “NYSER” in Supplementary Material .10 with “Exchange regulatory staff” and “the Exchange”, as appropriate.
• The Exchange proposes to amend Rule 422—Equities (Loans of and to Directors, etc.), which prohibits unsecured loans between members of the board of directors or any committee of ICE, ICE Holdings, NYSE Holdings, the NYSE, NYSE Market, the Exchange and NYSE Regulation or an officer or employee the foregoing without the prior consent of the NYSE Board, to remove references to “NYSE Regulation.”
• The Exchange proposes to amend Rule 497—Equities (Additional Requirements for Listed Securities Issued by Intercontinental Exchange, Inc. or its Affiliates), which imposes certain pre-listing approvals and post-listing monitoring requirements on Affiliated Securities (as defined therein) listed on the Exchange, to remove the definition of NYSE Market in Rule 497(a)(4) and the definition of NYSE Regulation in Rule 497(a)(5) and replace references to each with “Exchange regulatory staff” or “the Exchange.”
• The Exchange proposes to amend Rule 902NY, governing admission and conduct on the Exchange options Trading Floor, to remove the reference to an Officer of “NYSE Regulation.”
The Exchange also proposes to amend Rule 48—Equities (Exemptive Relief — Extreme Market Volatility Condition), Rule 49—Equities (Emergency Powers) and Rule 86—Equities (NYSE Bonds) to replace references to the Chief Executive Officer of NYSE Regulation with references to the CRO of the Exchange.
Rule 48—Equities currently provides that, for purposes of the rule,
“Chief Executive Officer” of NYSE Regulation is used in these four rules but CRO is used throughout the Exchange's rules to designate the same position.
The Exchange proposes the following technical and conforming changes.
Rule 1—Equities, which defines the term the “Exchange”, would be amended to replace single quotation marks with double quotation marks in the heading and the first paragraph.
Rules 48—Equities, which sets forth the procedures for invoking an extreme market volatility condition, would be amended to replace single quotation marks with double quotation marks around the term “qualified Exchange officer.”
Rule 103B—Equities, which governs the security allocation and reallocation process, would be amended to replace single quotation marks with double quotation marks around the term
Section 350 of the Company Guide provides that a company no longer intending to issue all or some securities for listing should cancel the listing authority by notifying the Exchange by letter, and provides a sample letter for use by listed companies. The Exchange proposes to update the sample letter by changing the addressee from “Office of General Counsel” to “Legal Department”, updating the address to “11 Wall Street”, and the salutation from “Dear Sirs” to “Ladies and Gentlemen.” Similarly, the Exchange proposes to make conforming changes in Sections 1204, 1205, 1206 and 1212T to replace references to the “Office of General Counsel” with “Legal Department.”
The Exchange also proposes to amend Section 1212T(c) to replace the outdated reference to “American Stock Exchange” with “Exchange.”
Finally, the Exchange proposes to update the Listing Forms Appendix to update the address from “30 Broad” to “11 Wall” Street.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act
The proposal to amend the Exchange's Operating Agreement to establish a CFR as a sub-committee of the recently approved ROC, which, among other things, would be charged with hearing appeals of disciplinary determinations, complies with the Exchange Act's requirement to provide for a fair procedure for the disciplining of member and persons associated with members. The Exchange's ROC [sic] is composed of both Exchange directors that satisfy the independence requirements (
Further, the proposed CFR would include among the members who are not directors representatives of member organizations that engage in a business involving substantial direct contact with securities customers (upstairs firms), DMMS, and floor brokers. Accordingly, the Exchange believes the proposed creation of a ROC [sic] is consistent with Section 6(b)(7) of the Exchange Act,
The Exchange also believes that not having the fourth category of proprietary floor-based traders in the proposed CFR would remove references to obsolete categories in the Exchange's rules, thereby reducing potential confusion.
Further, the Exchange believes that permitting but not requiring the CFR to appoint an appeals panel composed of at least three and no more than five individuals to conduct a review and make a recommendation to the CFR regarding the disposition of an appeal is consistent with Section 6(b)(7) of the Exchange Act. An appeals panel appointed by the CFR would be composed of at least one director and one member or individual associated with an equities or options member organization, as appropriate. The Exchange believes that the role of the appeals panel, including that the CFR would retain authority to determine the disposition of appeals, would ensure that the Exchange's rules provide a fair procedure for the disciplining of members and persons associated with members. In addition, for the reasons stated below, the Exchange believes that participation on the proposed CFR and appeals panels of members and persons associated with members would be sufficient to provide for the fair representation of members in the administration of the affairs of the Exchange, including rulemaking and the disciplinary process, consistent with Section 6(b)(3) of the Exchange Act.
The Exchange believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act
The Exchange believes that eliminating references to “Chief Executive Officer” of NYSE Regulation in Rules 48—Equities, 49—Equities, and 86—Equities and replacing them with CRO, which is used throughout the Exchange's rules, removes impediments to and perfects a national market system because it would reduce potential confusion that may result from retaining different designations for the same individual in the Exchange's rulebook. Removing potentially confusing conflicting designations would also further the goal of transparency and add consistency to the Exchange's rules.
Finally, making conforming amendments to Rules 475, 476, 476A, 20—Equities, 308—Equities and Sections 1201, 1204, 1205, 1206, 1211, and 1212T of the Company Guide in connection with creation of the proposed CFR removes impediments to and perfects the mechanism of a free and open market by removing confusion that may result from having obsolete references in the Exchange's rulebook. deleting references to “NYSE Regulation, Inc.” and “NYSE Regulation” in Section 4.05 of the Operating Agreement and Rules 0, 1—Equities, 22—Equities, 36—Equities, 48—Equities, 49—Equities, 54—Equities, 70—Equities, 103—Equities, 103A—Equities, 103B—Equities, 422—Equities, 497—Equities, and 902NY removes impediments to and perfects the mechanism of a free and open market by removing confusion that may result from having obsolete references in the Exchange's rulebook. The Exchange further believes that the proposal removes impediments to and perfects the mechanism of a free and open
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 Exchange Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with the administration and functioning of the Exchange and its board of directors.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 3, 2015, the National Stock Exchange (“NSX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Rule 11.1 (Hours of Trading) to rescind Interpretations and Policies .01 (Cessation of Trading Operations NSX) to permit the Exchange to resume trading activity. The Exchange also proposes to (i) amend Rule 11.11 (Orders and Modifiers) to remove descriptions of certain order types that the Exchange will not offer when it resumes trading and to correct the numbering of certain subparagraphs of the rule; (ii) delete Rule 11.12 (Cross Message) and make conforming changes to Rules 11.11(c) and 16.2; (iii) amend Rule 11.13 and Interpretations and Policies .01 to eliminate the order delivery mode of order interaction with the Exchange's trading system (“Order Delivery”); and (iv) adopt Rule 11.25 (Use of Market Data Feeds) to describe the Exchange's use of certain data feeds for order handling and execution.
In its filing, the Exchange represented to the Commission that it is ready to resume trading activity upon approval of this filing. To that end, the Exchange represents that, since the Closing Date, it has continued to discharge its responsibilities as a self-regulatory organization (“SRO”) in anticipation of resuming trading operations,
Furthermore, the Exchange represents that it will provide timely written notice of the date it will commence trading, and other related information directly to the following parties: (i) ETP Holders; (ii) other national securities exchanges that trade NMS securities; (iii) the SIPs; and, (iv) the operating committees for the various NMS plans (
Finally, the Exchange represents that upon receiving Commission approval to resume trading, it will execute a staged roll-out plan to reach full operational capacity and provide notice to ETP Holders with the precise details of the roll-out plan before initiating the plan.
The Commission has carefully reviewed the proposed rule change and finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
Based on the Exchange's representations, the Commission believes that the Exchange is positioned to resume its status as a fully operational national securities exchange and to commence trading operations consistent with the notice provisions set forth in the proposed rule change.
As noted above, NSX intends to resume operations as an automated trading center and have its best bid and best offer be a Protected Quotation.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to add to the rules of the Exchange the Ninth Amended and Restated Operating Agreement of New York Stock Exchange LLC (“NYSE LLC”). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to add to the rules of the Exchange the Ninth Amended and Restated Operating Agreement of NYSE LLC (the “Ninth NYSE Operating Agreement”).
In September 2015, the Exchange filed the Eighth Amended and Restated Operating Agreement of NYSE LLC (the “Eighth NYSE Operating Agreement”) as a “rule of the exchange” under Section 3(a)(27) of the Act because NYSE LLC has a wholly-owned subsidiary, NYSE Market (DE), Inc., which owns a majority interest in NYSE Amex Options LLC (“NYSE Amex Options”), a facility of the Exchange.
On June 12, 2015, NYSE LLC filed to, among other things, amend the Eighth NYSE Operating Agreement to establish a Regulatory Oversight Committee as a committee of its board of directors and to terminate a delegation agreement between NYSE LLC, NYSE Market (DE), Inc., and NYSE Regulation, Inc. (the “Delegation Agreement”).
The Exchange is accordingly filing to remove the obsolete Eighth NYSE Operating Agreement as a “rule of the exchange” under Section 3(a)(27) of the Act, and replace it with the Ninth NYSE Operating Agreement as a “rule of the exchange” under Section 3(a)(27) of the Act, once the Ninth NYSE Operating Agreement is operative.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes that the proposed rule change would contribute to the orderly operation of the Exchange and would enable the Exchange to be so organized as to have the capacity to carry out the purposes of the Act and comply and enforce compliance by its members and persons associated with its members, with the provisions of the Act because, by removing the obsolete Eighth NYSE LLC Operating Agreement and making the Ninth NYSE LLC Operating Agreement a rule of the Exchange when it becomes operative for NYSE LLC, the Exchange would be ensuring that its rules remain consistent with the NYSE LLC operating agreement in effect.
The Exchange notes that, as with the Eighth NYSE LLC Operating Agreement, it would be required to file as a proposed rule change any changes to the Ninth NYSE LLC Operating Agreement with the Commission.
The Exchange also believes that this filing furthers the objectives of 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 intended to address competitive issues but rather is concerned solely with ensuring that the Commission will have the ability to enforce the Act with respect to the NYSE Amex Options and its direct and indirect parent entities.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Options Fee Schedule (“Fee Schedule”). The Exchange proposes to implement the fee changes effective December 1, 2015. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedule, effective December 1, 2015, to eliminate the Floor Broker Order Capture Device Log-In Fee (“Log-In Fee”).
Currently, the Exchange charges a monthly Log-In Fee of $150 per assigned log-in ID per month to access the Exchange-sponsored Floor Broker Order Capture System by means of a Floor Broker Order Capture Device (“FBOCD”).
The Log-In Fee was instituted to cover the cost per log-in charged by data vendors for access to each FBOCD.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Log-In Fee was designed to recover costs being charged to the Exchange for use of FBOCD. The Exchange therefore believes it is reasonable, equitable and not unfairly discriminatory to eliminate the Log-In Fee charged to OTP Holders as the Exchange re-evaluates and potentially restructures the cost of FBOCD use to the Exchange. The Exchange believes the elimination of the Log-In Fee would result in the fair and reasonable use of resources by OTP Holders, particularly Floor Brokers.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with section 6(b)(8) of the Act,
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such
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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
30-Day notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35), which requires agencies to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before January 19, 2016.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205-7030
A team of Quality Assurance staff at the Disaster Assistance Center (DASC) will conduct a brief telephone survey of customers to determine their satisfaction with the services received from the (DASC) and the Field Operations Centers. The result will help the Agency to improve where necessary, the delivery of critical financial assistance to disaster victims.
The Advisory Committee on Historical Diplomatic Documentation will meet on March 7, June 6, August 29, and December 12, 2016, in open session to discuss unclassified matters concerning declassification and transfer of Department of State records to the National Archives and Records Administration and the status of the
The Committee will meet in open session from 11:00 a.m. until noon in SA-4D Conference Room, Department of State, 2300 E Street NW., Washington DC 20372 (Potomac Navy Hill Annex). RSVP should be sent as directed below:
• March 7, not later than February 29, 2016. Requests for reasonable accommodation should be made by February 22, 2016.
• June 6, not later than May 30, 2016. Requests for reasonable accommodation should be made by May 23, 2016.
• August 29, not later than August 22, 2016. Requests for reasonable accommodation should be made by August 15, 2016.
• December 12, not later than December 5, 2016. Requests for reasonable accommodation should be made by November 28, 2016.
Personal data is requested pursuant to Public Law 99-399 (Omnibus Diplomatic Security and Antiterrorism Act of 1986), as amended; Public Law 107-56 (USA PATRIOT Act); and E.O. 13356. The purpose of the collection is to validate the identity of individuals who enter Department facilities. The data will be entered into the Visitor Access Control System (VACS-D) database. Please see the Security Records System of Records Notice (State-36) at
Questions concerning the meeting should be directed to Dr. Stephen P. Randolph, Executive Secretary, Advisory Committee on Historical Diplomatic Documentation, Department of State, Office of the Historian, Washington, DC 20372, telephone (202) 955-0215, (email
Note that requests for reasonable accommodation received after the dates indicated in this notice will be considered, but might not be possible to fulfill.
Susquehanna River Basin Commission.
Notice.
As part of its regular business meeting held on December 4, 2015, in Harrisburg, Pennsylvania, the Commission took the following actions: (1) Approved or tabled the applications of certain water resources projects; (2) accepted settlements in lieu of penalty from Seneca Resources Corporation and Schreiber Foods, Inc.; and (3) took additional actions, as set forth in the Supplementary Information below.
December 4, 2015.
Susquehanna River Basin Commission, 4423 N. Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
In addition to the actions taken on projects identified in the summary above and the listings below, the following items were also presented or acted upon at the business meeting: (1) Adoption of a resolution urging President Obama and the United States Congress to provide full funding for the Groundwater and Streamflow Information Program, thereby supporting the Susquehanna Flood Forecast & Warning System; (2) approval of a rulemaking action to simplify and revise the rules for transfer of approvals, create a category for minor modifications, and establish a procedure for the Commission to issue general permits; (3) adoption of a resolution updating the Commission's investment policy statement; (4) approval/ratification of two contractual agreements; and (5) a report on delegated settlements with the following project sponsors, pursuant to SRBC Resolution 2014-15: Bon Air Country Club, in the amount of $5,000; Byler Golf Management, Inc., doing business as Iron Valley Golf Club, in the amount of $4,000; P.H. Glatfelter Company, in the amount of $7,000; The Lion Brewery, Inc., in the amount of $1,000; and Irem Temple Golf Club, in the amount of $7,500.
The Commission approved settlements in lieu of civil penalty for the following projects:
1. Seneca Resources Corporation (Multiple Approvals by Rule), multiple municipalities, multiple counties, Pa.—$75,000.
2. Schreiber Foods, Inc., Shippensburg Borough, Cumberland County, Pa.—$44,500.
The Commission approved the following project applications:
1. Project Sponsor: Byler Golf Management, Inc. Project Facility: Iron Valley Golf Course, Cornwall Borough, Lebanon County, Pa. Modification to authorize additional water use purpose (Docket Nos. 19981206 and 19981206-1).
2. Project Sponsor and Facility: Cabot Oil & Gas Corporation (Tunkhannock Creek), Lenox Township, Susquehanna County, Pa. Surface water withdrawal of up to 1.500 mgd (peak day).
3. Project Sponsor and Facility: Montgomery Water and Sewer Authority, Clinton Township, Lycoming County, Pa. Groundwater withdrawal of up to 0.398 mgd (30-day average) from Well 4.
4. Project Sponsor and Facility: Sugar Hollow Water Services, LLC (Susquehanna River), Eaton Township, Wyoming County, Pa. Renewal of surface water withdrawal of up to 1.500 mgd (peak day) (Docket No. 20111214).
5. Project Sponsor and Facility: SWN Production Company, LLC (Susquehanna River), Great Bend Township, Susquehanna County, Pa. Renewal of surface water withdrawal of up to 2.000 mgd (peak day) (Docket No. 20111217).
6. Project Sponsor and Facility: SWN Production Company, LLC (Susquehanna River), Great Bend Township, Susquehanna County, Pa. Modification to increase surface water withdrawal by an additional 1.750 mgd (peak day), for a total of up to 2.500 mgd (peak day) (Docket No. 20140302).
7. Project Sponsor and Facility: SWN Production Company, LLC (Tioga River), Hamilton Township, Tioga County, Pa. Surface water withdrawal of up to 1.500 mgd (peak day).
8. Project Sponsor and Facility: Village of Sidney, Delaware County, N.Y. Modification to extend the approval term of the groundwater withdrawal approval (Docket No. 19860201) to provide time for development of a replacement source for existing Well 2-88.
The Commission tabled action on the following project applications:
1. Project Sponsor: Aqua Pennsylvania, Inc. Project Facility: Midway Manor System, Kingston Township, Luzerne County, Pa. Application for groundwater withdrawal of up to 0.115 mgd (30-day average) from Dug Road Well.
2. Project Sponsor: Aqua Pennsylvania, Inc. Project Facility: Midway Manor System, Kingston Township, Luzerne County, Pa. Application for groundwater withdrawal of up to 0.038 mgd (30-day average) from Hilltop Well.
3. Project Sponsor: Aqua Pennsylvania, Inc. Project Facility: Midway Manor System, Kingston Township, Luzerne County, Pa. Application for groundwater withdrawal of up to 0.216 mgd (30-day average) from Midway Well 1.
4. Project Sponsor: Aqua Pennsylvania, Inc. Project Facility: Midway Manor System, Kingston Township, Luzerne County, Pa. Application for groundwater withdrawal of up to 0.110 mgd (30-day average) from Midway Well 2.
5. Project Sponsor and Facility: East Berlin Area Joint Authority, Reading Township, Adams County, Pa. Application for groundwater withdrawal of up to 0.072 mgd (30-day average) from Well 1.
6. Project Sponsor and Facility: East Berlin Area Joint Authority, Reading Township, Adams County, Pa. Application for groundwater withdrawal of up to 0.108 mgd (30-day average) from Well 2.
7. Project Sponsor and Facility: East Berlin Area Joint Authority, East Berlin Borough, Adams County, Pa. Application for groundwater withdrawal of up to 0.058 mgd (30-day average) from Well 4.
8. Project Sponsor and Facility: East Berlin Area Joint Authority, East Berlin Borough, Adams County, Pa. Application for renewal with modification to increase groundwater withdrawal limit by an additional 0.048 mgd (30-day average), for a total of up to 0.072 mgd (30-day average) from Well 5 (Docket No. 19860601).
9. Project Sponsor and Facility: East Cocalico Township Authority, East Cocalico Township, Lancaster County, Pa. Application for groundwater withdrawal of up to 0.059 mgd (30-day average) from Well 3A.
10. Project Sponsor and Facility: East Cocalico Township Authority, East Cocalico Township, Lancaster County, Pa. Application for groundwater withdrawal of up to 0.028 mgd (30-day average) from Well 4.
11. Project Sponsor and Facility: East Cocalico Township Authority, East Cocalico Township, Lancaster County, Pa. Application for groundwater withdrawal of up to 0.056 mgd (30-day average) from Well 5.
12. Project Sponsor and Facility: East Cocalico Township Authority, East Cocalico Township, Lancaster County, Pa. Application for groundwater withdrawal of up to 0.022 mgd (30-day average) from Well 6.
13. Project Sponsor and Facility: East Cocalico Township Authority, East Cocalico Township, Lancaster County, Pa. Application for groundwater withdrawal of up to 0.046 mgd (30-day average) from Well 7.
14. Project Sponsor and Facility: Furman Foods, Inc., Point Township, Northumberland County, Pa. Application for renewal of groundwater withdrawal of up to 0.320 mgd (30-day average) from Well 1 (Docket No. 19850901).
15. Project Sponsor and Facility: Furman Foods, Inc., Point Township, Northumberland County, Pa. Application for renewal of groundwater withdrawal of up to 0.190 mgd (30-day average) from Well 4 (Docket No. 19850901).
16. Project Sponsor and Facility: Furman Foods, Inc., Point Township, Northumberland County, Pa. Application for renewal of groundwater withdrawal of up to 0.090 mgd (30-day average) from Well 7 (Docket No. 19850901).
17. Project Sponsor and Facility: Mount Joy Borough Authority, Mount Joy Borough, Lancaster County, Pa. Modification to increase combined withdrawal limit by an additional 0.199 mgd (30-day average), for a total combined withdrawal limit of 1.800 mgd (30-day average) from Wells 1 and 2 (Docket No. 20110617).
18. Project Sponsor: Pennsylvania Department of Environmental Protection, Bureau of Conservation and Restoration. Project Facility: Cresson Mine Drainage Treatment Plant, Cresson Borough, Cambria County, Pa. Application for groundwater withdrawal from Argyle Stone Bridge Well of up to 6.300 mgd (30-day average) from four sources.
19. Project Sponsor: Pennsylvania Department of Environmental Protection, Bureau of Conservation and Restoration. Project Facility: Cresson Mine Drainage Treatment Plant, Cresson Township, Cambria County, Pa. Application for groundwater withdrawal from Cresson No. 9 Well of up to 6.300 mgd (30-day average) from four sources.
20. Project Sponsor: Pennsylvania Department of Environmental Protection, Bureau of Conservation and Restoration. Project Facility: Cresson Mine Drainage Treatment Plant, Gallitzin Township, Cambria County, Pa. Application for groundwater withdrawal from Gallitzin Shaft Well 2A (Gallitzin Shaft #2) of up to 6.300 mgd (30-day average) from four sources.
21. Project Sponsor: Pennsylvania Department of Environmental Protection, Bureau of Conservation and Restoration. Project Facility: Cresson Mine Drainage Treatment Plant, Gallitzin Township, Cambria County, Pa. Application for groundwater withdrawal from Gallitzin Shaft Well 2B (Gallitzin Shaft #1) of up to 6.300 mgd (30-day average) from four sources.
The Commission approved the following project application involving a diversion:
1. Project Sponsor: Seneca Resources Corporation. Project Facility: Impoundment 1, receiving groundwater from Seneca Resources Corporation Wells 5H and 6H and Clermont Wells 1, 3, and 4, Norwich and Sergeant Townships, McKean County, Pa. Modification to add two additional sources (Clermont Well 2 and Clermont North Well 2) and increase the into-basin diversion from the Ohio River Basin by an additional 0.504 mgd (peak day), for a total of up to 1.977 mgd (peak day) (Docket No. 20141216).
Pub. L. 91-575, 84 Stat. 1509
Susquehanna River Basin Commission.
Notice.
This notice lists the approved by rule projects rescinded by the Susquehanna River Basin Commission during the period set forth in
November 1-30, 2015.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists the projects, described below, being rescinded for the consumptive use of water pursuant to the Commission's approval by rule process set forth in 18 CFR 806.22(e) and § 806.22(f) for the time period specified above:
1. Chesapeake Appalachia, LLC, Pad ID: Carter, ABR-201205015, North Towanda Township, Bradford County, Pa.; Rescind Date: November 19, 2015.
2. Chesapeake Appalachia, LLC, Pad ID: Gene, ABR-201209011, Overton Township, Bradford County, Pa.; Rescind Date: November 19, 2015.
3. Chesapeake Appalachia, LLC, Pad ID: Outback, ABR-201301015, Elkland Township, Sullivan County, Pa.; Rescind Date: November 19, 2015.
4. Chesapeake Appalachia, LLC, Pad ID: Rock Ridge, ABR-201108015, Towanda Township, Bradford County, Pa.; Rescind Date: November 19, 2015.
5. Chesapeake Appalachia, LLC, Pad ID: Walters, ABR-201305007, Mehoopany Township, Wyoming County, Pa.; Rescind Date: November 19, 2015.
6. Chesapeake Appalachia, LLC, Pad ID: Beaver Dam, ABR-201104009, Cherry and Colley Townships, Sullivan County, Pa.; Rescind Date: November 24, 2015.
7. WPX Energy Appalachia, LLC, Pad ID: Nayavich Well Pad, ABR-201105010, Sugarloaf Township, Columbia County, Pa.; Rescind Date: November 24, 2015.
8. Talisman Energy USA, Inc., Pad ID: 05 092 Upham, ABR-201009078.R1, Pike Township, Bradford County, Pa.; Rescind Date: November 27, 2015.
9. Range Resources-Appalachia, LLC, Pad ID: Carmen III Unit #1H Drilling Pad, ABR-201104005, Rush Township, Centre County, Pa.; Rescind Date: November 27, 2015.
Pub. L. 91-575, 84 Stat. 1509
Office of the United States Trade Representative.
Notice of intent to conduct an environmental review of the proposed Environmental Goods Agreement and request for comments.
The Office of the United States Trade Representative (USTR), through the Trade Policy Staff Committee (TPSC), is initiating an environmental review of the Environmental Goods Agreement (EGA), a plurilateral trade agreement currently being negotiated among 17 members of the World Trade Organization (WTO), including the United States. The TPSC invites written comments from the public on the topics that should be included in the scope of the EGA environmental review, including potential positive or negative environmental effects that might result from the trade agreement. The TPSC also welcomes public views on appropriate methodologies and sources of data for conducting the review.
Comments should be submitted on or before February 1, 2016, to be assured of timely consideration by the TPSC.
Public comments should be submitted electronically to
Questions regarding the submission of comments in response to this notice should be directed to Ms. Yvonne Jamison at (202) 395-3475. Questions concerning the environmental review should be addressed to Mr. Seth Patch at (202) 395-7320.
On March 21, 2014, USTR notified Congress of the President's intent to enter into negotiations for a WTO Environmental Goods Agreement with an initial group of 13 trading partners. Seventeen WTO members are presently participating in the EGA negotiations: Australia, Canada, China, Costa Rica, the European Union, Hong Kong, Iceland, Israel, Japan, Korea, New Zealand, Norway, Singapore, Switzerland, Chinese Taipei, Turkey, and the United States. Through notices in the
USTR, through the TPSC, will conduct an environmental review of the agreement consistent with Executive Order 13141 (64
Persons submitting comments must do so in English and must identify (on the first page of the submission) “Comments Regarding the EGA Environmental Review.” In order to be
The
For any comments submitted electronically containing business confidential information, the file name of the business confidential version should begin with the characters “BC”. Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top of that page. Filers of submissions containing business confidential information must also submit a public version of their comments. The file name of the public version should begin with the character “P”. The “BC” and “P” should be followed by the name of the person or entity submitting the comments. Filers submitting comments containing no business confidential information should name their file using the name of the person or entity submitting the comments.
Please do not attach separate cover letters to electronic submissions; rather, include any information that might appear in a cover letter in the submission itself. Similarly, to the extent possible, please include any exhibits, annexes, or other attachments in the same file as the submission itself, not as separate files.
As noted, USTR strongly urges submitters to file comments through the
Comments will be placed in the docket and open to public inspection, except business confidential information. Comments may be viewed on the
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of Limitation on Claims for Judicial Review of Actions by FHWA and Other Federal Agencies.
This notice announces actions taken by the FHWA and other Federal agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to the Colorado State Highway 470 (C-470) Corridor, Kipling Parkway to I-25 project located in the southern portion of the Denver metropolitan area in Colorado. Those actions grant approvals for the project.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before May 16, 2016. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
Stephanie Gibson, Environmental Program Manager, Federal Highway Administration Colorado Division, 12300 W. Dakota Avenue, Lakewood, Colorado 80228, 720-963-3013,
Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing approvals for the following highway project in the State of Colorado: C-470, Kipling Parkway to I-25 project, also known as the C-470 Express Lanes project. Project Overview: The project involves adding one managed, tolled express lane in each direction between I-25 and Kipling Parkway, and a second managed lane as follows: westbound, I-25 to Lucent Boulevard, and eastbound, Broadway to I-25. The purpose of the project is to provide congestion relief, decrease travel delay, and improve corridor reliability between Kipling Parkway and I-25 on the C-470 corridor. The actions by the Federal agencies on the project, and the laws under which such actions were taken, are described in the Revised Environmental Assessment (EA) signed on July 24, 2015, in the Finding of No Significant Impact (FONSI) signed November 20, 2015 and in other key project documents. The Revised EA, FONSI, and other key documents for the project are available by contacting the FHWA or the Colorado Department of Transportation at the addresses provided above. The Revised EA and FONSI documents can be viewed and downloaded from the project Web site at
This notice applies to all Federal agency decisions, actions, approvals, licenses, and permits on the project as of the issuance date of this notice, including but not limited to those arising under the following laws, as amended:
1. General: National Environmental Policy Act [42 U.S.C. 4321-4370h]; Federal-Aid Highway Act [23 U.S.C. 109].
2. Air: Clean Air Act, as amended [42 U.S.C. 7401-7671(q)] (transportation conformity).
3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303]. Landscaping and Scenic Enhancement (Wildflowers) [23 U.S.C. 319].
4. Wildlife: Endangered Species Act [16 U.S.C. 1531-1544]; Fish and Wildlife Coordination Act [16 U.S.C. 661-667(e)]; Migratory Bird Treaty Act [16 U.S.C. 703-712].
5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966 [54 U.S.C. 306108] Archaeological Resources Protection Act of 1977 [16 U.S.C. 470aa-470mm]; Archaeological and Historic Preservation Act [16 U.S.C. 469-469c-
6. Social and Economic: Civil Rights Act of 1964 [42 U.S.C. 2000(d)-2000(d)(1)]; American Indian Religious Freedom Act [42 U.S.C. 1996]; the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 [42 U.S.C. 61]. Farmland Protection Policy Act [7 U.S.C. 4201-4209].
7. Wetlands and Water Resources: Clean Water Act [33 U.S.C. 1251-1387] (Section 404, Section 401, Section 319); Land and Water Conservation Fund Act [16 U.S.C. 460l-4—460l-11]; Safe Drinking Water Act [42 U.S.C. 300f—300j-9.]; Rivers and Harbors Act of 1899 [33 U.S.C. 401-406]; Transportation Equity Act for the 21st Century (TEA-21) [23 U.S.C. 103(b)(6)(m), 133(b)(11)] (wetlands mitigation banking); Flood Disaster Protection Act of 1973 [42 U.S.C. 4001-4129].
8. Hazardous Materials: Comprehensive Environmental Response, Compensation, and Liability Act [42 U.S.C. 9601-9675]; Superfund Amendments and Reauthorization Act of 1986 [PL 99-499]; Resource Conservation and Recovery Act [42 U.S.C. 6901-6992(k)].
9. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O. 12898 Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 11593 Protection and Enhancement of Cultural Resources; E.O. 13007 Indian Sacred Sites; E.O. 13287 Preserve America; E.O. 13175 Consultation and Coordination with Indian Tribal Governments; E.O. 11514 Protection and Enhancement of Environmental Quality; E.O. 13112 Invasive Species.
23 U.S.C. 139(l)(1).
Rutherford Railroad Development Corporation (RRDC) and Southeast Shortlines, Inc. d/b/a Thermal Belt Railway (TBRY) (collectively, applicants), have jointly filed a verified notice of exemption under 49 CFR part 1152 subpart F-
Applicants have certified that: (1) No local traffic has moved over the Lines for at least two years; (2) there is no overhead traffic on the Lines that would have to be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the Lines (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Lines either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to these exemptions, any employee adversely affected by the abandonment or discontinuance shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, these exemptions will be effective on January 19, 2016, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to applicants' representative: Jeffrey A. Bandini, Parker Poe Adams & Bernstein LLP, P.O. Box 389, Raleigh, NC 27602.
If the verified notice contains false or misleading information, the exemptions are void ab initio.
Applicants have filed a combined environmental and historic report that addresses the effects, if any, of the abandonment and discontinuance on the environment and historic resources. OEA will issue an environmental assessment (EA) by December 24, 2015. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), RRDC shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Lines. If consummation has not been effected by RRDC's filing of a notice of consummation by December 18, 2016,
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
CSX Transportation, Inc. (CSXT) filed a verified notice of exemption under 49 CFR pt. 1152 subpart F—
CSXT has certified that: (1) No local traffic has moved over the Line for at least two years; (2) because the Line is not a through line, no overhead traffic needs to be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line is pending either with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the two-year period; and (4) the requirements at 49 CFR 1105.12 (newspaper publication) and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the discontinuance of service shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) to subsidize continued rail service has been received, this exemption will be effective on January 19, 2016, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues and formal expressions of intent to file an OFA to subsidize continued rail service under 49 CFR 1152.27(c)(2)
A copy of any petition filed with the Board should be sent to CSXT's representative: Louis E. Gitomer, Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301, Towson, MD 21204.
If the verified notice contains false or misleading information, the exemption is void ab initio.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
R. J. Corman Railroad Company/Carolina Lines, LLC (RJCS) has filed a verified notice of exemption
RJCS certifies that the proposed transaction does not involve a provision or agreement that may limit future interchanges of traffic with a third-party connecting carrier.
RJCS also certifies that its projected revenues upon consummation of the proposed transaction will not result in the creation of a Class I or Class II rail carrier and states that its projected annual revenues will not exceed $5 million.
This transaction may be consummated on January 2, 2016, the effective date of the exemption (30 days after the verified notice was filed).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed no later than December 24, 2015 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 35978, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Jeremy J. Sylvester, Moynahan, Irvin & Mooney, PSC, 110 North Main Street, Nicholasville, KY 40356.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
On November 30, 2015, CSX Transportation, Inc. (CSXT) filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903 to abandon an approximately 0.23-mile rail line between milepost SLA 660.39 and the end of the line at milepost SLA 660.62, in Fitzgerald, Ben Hill County, Ga. (the Line). The Line traverses United States Postal Zip Code 31750 and includes no stations.
According to CSXT, there is currently one customer, Modern Dispersion (Modern), located at the end of the Line. CSXT is seeking to abandon the Line and sell it to Modern so that Modern can expand its pellet shipping operations. Upon a grant of abandonment authority, the Line will be sold to Modern for its use in expanding its shipping facility. CSXT states that it plans to leave the tracks and materials in place and Modern plans to use the Line to load and unload rail cars on its own property through a private side track agreement. CSXT states that it will continue to meet Modern's common carrier requirements and projects an increase in volume based on Modern's plan to redevelop its current location.
According to CSXT, the Line does not contain federally granted rights-of-way. Any documentation in CSXT's possession will be made available promptly to those requesting it.
The interest of railroad employees will be protected by the conditions set forth in
By issuing this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by March 18, 2016.
Any offer of financial assistance (OFA) under 49 CFR 1152.27(b)(2) will be due by March 28, 2016, or 10 days after service of a decision granting the petition for exemption, whichever occurs first. Each OFA must be accompanied by a $1,600 filing fee.
All interested persons should be aware that, following abandonment, the Line may be suitable for other public use, including interim trail use. Any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than January 7, 2016. Each trail request must be accompanied by a $300 filing fee.
All filings in response to this notice must refer to Docket No. AB 55 (Sub-No. 747X) and must be sent to: (1) Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001; and (2) Louis E. Gitomer, Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301, Towson, MD 21204. Replies to the petition are due on or before January 7, 2016.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Assistance, Governmental Affairs and Compliance at (202) 245-0238 or refer to the full abandonment regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Office of Environmental Analysis (OEA) at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at 1-800-877-8339.
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by OEA will be served upon all parties of record and upon any other agencies or persons who comment during its preparation. Other interested persons may contact OEA to obtain a copy of the EA (or EIS). EAs in abandonment proceedings normally will be made available within 60 days of the filing of the petition. The deadline for submission of comments on the EA generally will be within 30 days of its service.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the meeting of the Advisory Committee on Former Prisoners of War (FPOW), previously scheduled to be held at the Audie Murphy VA Medical Center, 7400 Merton Minter Blvd., San Antonio, TX, on January 11-13, 2016,
For more information, please contact Mr. Eric Robinson, Designated Federal Officer at (202) 443-6016 or via email at
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) adopts comprehensive reforms of Inmate Calling Services, regardless of the technology used to provide service, to ensure just reasonable and fair rates as mandated by the Communications Act.
The rules in this document will become effective March 17, 2016, and the
Lynne Engledow, Wireline Competition Bureau, Pricing Policy Division at (202) 418-1540 or at
This is a summary of the Commission's Second Report and Order, WC Docket 12-375, released November 5, 2015. The full text of this document may be downloaded at the following Internet Address:
1. Twelve years have passed since Martha Wright of Washington, DC petitioned this Commission for relief from exorbitant phone rates charged by inmate calling service (ICS) providers, so that she might afford telephone contact with her incarcerated grandson. For families, friends, clergy, and attorneys to the over 2 million Americans behind bars and 2.7 million children who have at least one parent behind bars, maintaining phone contact has been made extremely difficult due to prohibitively high charges on those calls. Family members report paying egregious amounts, adding up to hundreds of dollars each month, just to stay connected to incarcerated spouses, parents and children. For over a decade, they have pleaded with this agency for help fighting these excessive and unaffordable phone charges.
2. In the Report and Order, we grant relief, answer the call of those millions of citizens seeking ICS reform, and adopt comprehensive reform of interstate and intrastate ICS calls to ensure just, reasonable and fair ICS rates as mandated by the Act. (Interstate communication “means communication or transmission (A) from any State, Territory, or possession of the United States (other than the Canal Zone), or the District of Columbia, to any State, Territory, or possession of the United States (other than the Canal Zone), or the District of Columbia. Consistent with our authority under the Communications Act, this Order applies to all states and U.S. territories including Puerto Rico, Guam, and the U.S. Virgin Islands.) We follow these reforms with a Further Notice that recognizes there is more work yet to be done. While the Commission prefers to rely on competition and market forces to discipline prices, there is little dispute that the ICS market is a prime example of market failure. Market forces often lead to more competition, lower prices, and better services. Unfortunately, the ICS market, by contrast, is characterized by increasing rates, with no competitive pressures to reduce rates. With respect to the consumers who pay the bills, ICS providers operate as unchecked monopolists. The record indicates that, absent regulatory intervention, ICS rates and associated ancillary fees likely will continue to rise. After the adoption of interim interstate rate caps in 2013, there was hope that states would take a more active role in reforming intrastate ICS rates and ancillary fees. While this has occurred in a handful of states, such as Alabama, Minnesota, New Jersey, and Ohio, the unfortunate reality is that many states have not tackled reform and intrastate ICS rates have continued to increase since the
3. Given this market failure, the Commission has a duty to act to fulfill our statutory mandate of ensuring that ICS rates are just, reasonable, and fair. Ensuring that rates comply with the statute also has several positive public interest benefits. Studies have shown that family contact during incarceration reduces recidivism and allows inmates to be more present parents for the 2.7 million children who suffer when an incarcerated parent cannot afford to keep in touch. One commenter tells us that “[m]y family paid outrageous amounts, between $300 and $400 a month for the 10 months while I was incarcerated in the state of MD. Their savings were drained just so they could correspond with their only daughter who was pregnant with their first grandchild at the time.” One mother writes: “I pay 40 dollars a week for calls. I can't afford them but it puts a smile on my kid's face;” another writes that her family has, at times, gone without food in order to pay these phone charges, “so we don't grow apart and so my kids feel like they still have a father.” These 2.7 million children are already coping with the anxiety of having an incarcerated parent, and often suffer additional economic and personal hardships that hinder their performance in school. By charging inmates exorbitant phone rates, ICS providers prevent incarcerated parents from maintaining a presence in their children's lives through regular phone contact. The testimony of a father in St. Cloud, Minnesota underscores the need for our efforts: “I want to be able to raise my child even if it's over the phone for the time being. I would love to be in her life as much as possible, but it's hard to do so when the phone [price] is steadily climbing higher and higher. I know I'm paying my debt to society for my crime, but I need to stay in contact with family.”
4. Furthermore, inmates given access to regular phone contact with family are less likely to return to jail or prison. A 2014 report by the Department of Justice found that a staggering 75 percent of individuals released from prison were rearrested within five years. Of the inmates who do find success and reintegrate after release, many credit phone contact and family support during their incarceration. As one former inmate writes, “The phone was my life line to that family and they got me through it intact. I thank God that my family was able to afford the phone calls. What happens to the families that can't? We all end up paying for it.” Incarceration costs taxpayers an average of $31,000 per inmate per year. If telephone contact is made more affordable, we will help ensure that former inmates are not sent home as strangers, which reduces both their chances of returning to prison or jail and the attendant burden on society of housing, feeding, and caring for additional inmates.
5. Another commenter stresses how regular phone contact makes prisons and jails safer spaces for inmates and officers alike:
I get to see my loved one once in every six months or so, and he doesn't get any visitors apart from me, so calling daily helps him retain his sanity. I think the connection he's given to his family is really important; there are so many times that he's called really
6. The record indicates that our interim interstate rate caps increased call volumes, without compromising correctional facility security requirements. Similarly, we expect our actions in this Order to reduce rates and increase call volume, while ensuring that ICS providers receive fair compensation and a reasonable return. Some commenters have argued that lowering ICS rates will compromise security in correctional facilities and fail to cover the cost of providing calling services. Some have even argued the financial strain from rate regulation could lead to correctional facilities banning inmate calls altogether. However, we find these assertions unpersuasive and unsupported by the record and our experience from the 2013 reforms.
7. While the actions taken to date have been positive in key respects (
8. In addition, we commit to continue evaluating the impact of these reforms and to conduct a review in two years to evaluate the changes in the market and determine whether further refinements are appropriate.
9. In the Order, we adopt comprehensive reform of all aspects of ICS to correct a market failure, foster market efficiencies, encourage ongoing state reforms, and ensure that ICS rates and charges comply with the Communications Act. As a threshold matter, we make clear that the reforms adopted herein apply to ICS offered in all correctional facilities, regardless of the technology used to deliver the service. Specifically, we take the following steps, which together form a comprehensive package of long-overdue reform to inmate calling services:
• Adopt tiered debit and prepaid rate caps that apply to all interstate and intrastate ICS, as well as a tiered rate cap for collect calling (which, after two years, will phase down to the rate caps adopted for prepaid and debit calls);
• Address payments to correctional institutions by excluding site commission costs from our rate caps (we otherwise discourage, but do not prohibit, ICS providers from sharing their profits and paying site commissions to facilities);
• Limit and cap ancillary service charges and address the potential for loopholes and gaming, including third-party services, thus addressing a disturbing trend in which ancillary service charges increased exponentially and unfairly, to the detriment of inmates and their families and in contravention of the statute;
• Prohibit ICS prepaid calling account funding minimums and establish an ICS prepaid calling account funding maximum limit;
• Establish a periodic review of ICS reforms, recognizing that further refinements may be appropriate as the marketplace evolves—thus complementing the Further Notice we initiate today (described in more detail below);
• Make clear that the rate caps and reforms we adopt today operate as a ceiling in states that have not enacted reforms with equal or lower caps on rates and ancillary fees and that we will preempt state laws that are inconsistent with the federal framework;
• Take measures to address ongoing concerns with access to ICS by inmates and their families with communications disabilities, including requiring that the per-minute rates charged for TTY-to-TTY calls be no more than 25 percent of the rates the providers charge for traditional inmate calling services and that no provider shall levy or collect any charge or fee for TRS-to-voice or voice-to-TTY calls;
• Adopt a transition period for rate caps and ancillary service charge reforms of March 17, 2016 for ICS provided in prisons and June 20, 2016 for ICS provided in jails to enable providers time to adjust contracts if necessary, given that the reforms adopted herein constitute regulatory changes and thus may trigger change-in-law provisions in existing ICS contracts;
• Take measures to prevent possible gaming during the transition to the new rules adopted herein;
• Require annual reporting and certification by ICS providers, to allow the Commission to ensure compliance and enable monitoring of developments, and require the providers to be transparent with regard to disclosure of their rates and policies;
• Confirm that section 276 of the Act is technology neutral and thus any service—regardless of name—that meets the definitional criteria for “inmate calling services” is subject to our rules, including the reforms adopted today; and
• Make clear that ICS providers may seek waivers if they are unable to receive fair compensation or request that the Commission preempt inconsistent state laws, and encourage the Wireline Competition Bureau to resolve such waivers within 90 days of submission of complete information.
We adopt the following rate caps.
We prohibit any ancillary service charges except for the following.
10. These reforms supersede the reforms adopted in the
11. While the steps we take today are significant, our work is not complete. With that in mind, in today's Further Notice, we seek additional comment on rates for international calls, promoting competition in the ICS industry, the benefits of a recurring Mandatory Data Collection, as well as a requirement that ICS providers file their ICS contracts with the Commission, video visitation, and other newer technologies to increase ICS options, and seek additional comment on the operations and economic impacts of providing those services as experienced by end users, correctional facilities, and ICS providers.
12. In 2003, Martha Wright and her fellow petitioners, current or former prison inmates and their relatives and legal counsel (Wright Petitioners or Petitioners), filed a petition seeking a rulemaking to address high long-distance ICS rates. The petition sought to prohibit exclusive ICS contracts and collect-call-only restrictions in correctional facilities. In 2007, the Petitioners filed an alternative rulemaking petition, asking the Commission to address high ICS rates by requiring a debit-calling option in correctional facilities, prohibiting per-call charges, and establishing rate caps for interstate, interexchange ICS. The Commission sought and received comment on both petitions (Wright Petitions).
13. In December 2012, in response to the Wright Petitions, the Commission adopted a Notice of Proposed Rulemaking seeking comment on, among other things, the proposals in the Wright Petitions. The
14. On August 9, 2013, the Commission adopted the
15. To enable the Commission to enact ICS reform, the
16. Prior to the effective date of the
17. Since adoption of the
18.
19.
20. In this section we adopt tiered rate caps for intrastate and interstate ICS that will allow providers to continue to offer safe and secure ICS while complying with the requirements of the Communications Act. These rate caps will apply to jails, prisons and immigration detention facilities, secure mental health facilities and juvenile detention facilities.
21. A review of the record, including over 100 comments and replies, costs reported in response to the Mandatory Data Collection, and various
22. Specifically, we adopt a rate cap of $0.22/MOU for debit and prepaid calls from jails with an ADP of 0-349; a $0.16/MOU cap for debit and prepaid calls from jails with an ADP of 350-999; and a $0.14/MOU cap for debit and prepaid calls from jails with an ADP of 1,000 or more. Debit and prepaid calls from prisons will be capped at a rate of $0.11/MOU. Collect calls from jail facilities will be capped at $0.49/MOU and collect calls from prison facilities will be capped at $0.14/MOU until July 1, 2017, and then transition down on an annual basis to the applicable debit/prepaid rate cap as described herein.
23. In the subsections that follow, we describe our methodology for adopting these rate caps. Specifically, we: (1) Discuss the decision to adopt a tiered structure that distinguishes between jails and prisons, and, within jails, based upon ADP, (2) describe the reasoning for adopting the specified tiers, (3) describe the methodology and analysis supporting the specific rate caps adopted, using a carefully considered combination of analysis of the Mandatory Data Collection (including evidence suggesting that some providers submitted inflated cost data), successful reform in certain states, experience with the interim rate caps, and other data in the voluminous record of this proceeding, (4) explain the need for a temporary, separate rate for collect calls, which will phase out over a two-year period to equalize the rate for these calls with those of debit/prepaid calls, (5) reject per-call/per-connection charges and flat-rate calling as inherently unjust, unreasonable, and unfair in contravention of the statute, and (6) explain our legal authority to adopt these reforms.
24. Before determining the specific amount of any rate
25. In both the
26.
27. The Los Angeles Sheriff's Department advocates that the Commission “resist the temptation to set uniform rates” because the differences in security requirements, inmates, age, infrastructure and maintenance needs of facilities must be accounted for in the Commission's decision-making process.” The California State Sheriff's Association echoes these concerns, explaining that in California, the smallest jail can hold a maximum of 14 inmates, while the largest jail can hold a maximum of over 14,000 inmates, and contends that accounting for these differences “is much more important and realistic than attempting to craft a single `solution' for uniformity's sake.” NCIC also supports tiering in order to “balance the needs of inmates, their families, correction facilities and ICS providers.”
28. Moreover, some commenters assert that, without tiering, providers serving small- to medium-sized jails “would likely be forced out of the market, particularly if the larger companies cross-subsidize between low-cost (Prison) and high-cost (Jail) facilities” because it is more costly to providers to serve smaller facilities (as confirmed by our analysis of the Mandatory Data Collection). Additionally, there is evidence that some large ICS providers refuse to bid on contracts to serve only smaller institutions—suggesting again that the cost structure of serving smaller institutions is higher than that of larger institutions.
29. Other commenters, however, disagree with a tiered rate approach and counter that the Commission should continue to impose unitary rate caps, similar to the current, interim rate caps. These commenters contend that unitary rates are less complex to understand and to administer, and that no real difference exists between the cost of serving jails and prisons. For instance, GTL and CenturyLink contend that “there is no clean proxy for cost that could be relied upon to create tiers.” Additionally, some commenters argue that adopting tiers based on a prison/jail distinction would be arbitrary, especially as many large providers serve both prisons and jails. Securus claims that “to adopt vastly different calling rates based on that empty [jails vs. prisons] distinction would constitute dissimilar treatment of customers that plainly are similarly situated,” which it asserts is “unjustifiable.”
30.
31. In the
32. We conclude that adopting tiered interstate and intrastate rates accounts for the differences in costs to ICS providers serving smaller, higher-cost facilities, such as the vast majority of jails. A similar concern applies to the potential for over-compensating ICS providers serving larger, lower cost facilities, such as very large jails and prisons. We agree with those commenters who assert that the $0.20 and $0.24 rate caps proposed in the Joint Provider Proposal could result in excessive profits for the largest providers to the detriment of end users who would have to pay inflated rates far
33. The record, and our analysis of costs reported in response to the Mandatory Data Collection, support rate tiering because, holding other factors constant, the costs to serve prisons are lower than to serve jails. This is not surprising. Prisons typically have more stable, long-term inmate populations. For example, there is less than one percent inmate churn in prisons per week compared to an average of 58 percent inmate churn in jails. The record suggests that higher churn rates increase costs to process and grant a new inmate access to calling services, and also when an inmate exits a facility. The record also indicates that prison inmates make fewer but longer calls and providers appear to incur fewer bad debt costs when serving prisons.
34. We also find that economies of scale, such as the recovering of fixed ICS costs over a larger number of inmates, support the tiering approach we adopt today. In the
35. Recent state reforms also support tiering. Indeed, the Alabama PSC recently adopted rate tiers tied to facility type with separate rates adopted for jails and prisons. In December 2014, the Alabama PSC adopted a rate structure that “provides lower rates [for prisons] in recognition that the per-minute costs for service in prisons is lower than it is for jails.” In order “to ensure ample opportunity to correct any funding shortfalls resulting from potential reductions in site commissions,” the adopted rate caps included a two-year phase-down period from $0.30/minute to $0.25/minute for collect and debit/prepaid calling from jails and $0.25/minute to $0.21/minute for debit/prepaid calling from prisons, while the prison collect rate stays at the initial $0.25/minute rate cap.
36. We disagree with assertions that a tiered rate structure would be difficult for the Commission to administer, for ICS providers to implement, and for correctional officials to oversee. Those commenters who make such assertions already charge different rates across different ICS contracts and provide no real evidence or support for why rate tiers would be any more difficult or challenging than their current approaches.
37. For all of these reasons, we conclude that adopting rate tiers based on facility type as well as size, or ADP, allows us to recognize the differences in the costs of serving facilities of different types as well as providing multiple checks to prevent gaming or manipulation as discussed below. Tiering will limit “the impact of the higher rates to those facilities most in need, while ensuring that the vast majority of ICS calls are charged at a rate commensurate with the cost of providing the ICS service.”
38.
39. Specifically, for purposes of this proceeding a jail is defined as the facility of a local, state, or federal law enforcement agency that is used primarily to hold individuals who are: (1) Awaiting adjudication of criminal charges, (2) post-conviction and committed to confinement for sentences of one year or less, or (3) post-conviction and are awaiting transfer to another facility. The term also includes city, county or regional facilities that have contracted with a private company to manage day-to-day operations; privately-owned and operated facilities primarily engaged in housing city, county or regional inmates; and facilities used to detain individuals pursuant to a contract with U.S. Immigration and Customs Enforcement (ICE) and facilities operated by ICE. For purposes of this proceeding a prison is defined as a facility operated by a territorial, state, or federal agency that is used primarily to confine individuals convicted of felonies and sentenced to terms in excess of one year. The term also includes public and private facilities that provide housing to other agencies such as the State Departments of Correction and the Federal Bureau of Prisons; and facilities that would otherwise fall under the definition of a jail but in which the majority of inmates are post-conviction or are committed to confinement for sentences of longer than one year.
40.
41. As such, we find that a jail, as defined above, and a prison, as defined above, cannot be divided into multiple wings, units, or wards by, for example, for the purpose of taking advantage of our tiered rate caps. If interested parties believe such gaming is occurring they may bring the issue to the Commission's attention, at which time the Commission will review the totality of the circumstances (
42.
43.
44. After placing issues relating to the Mandatory Data Collection out for public comment, the Bureau reviewed written comments, met with interested parties, and adopted a template for submission of required data in the Mandatory Data Collection. In it, the Bureau directed ICS providers to document applicable costs and fees by “contract size.” Potential contract size categories for jails include 0-99, 100-349, 349-999, and 1000 ADP and greater, and potential categories for prisons include 1-4999, 5000-19,999, and 20,000 ADP and greater.
45. The Commission sought comment on proposed rate tiering in the
46. In this Order we adopt rate tiers based on the following ADP for jails: 0-349, 350-999, and 1,000 and greater. We adopt these rate tiers for jails because we find that they most closely resemble the breakdown between small-to-medium jails, large jails, and very large, or mega-jails. We have decided not to include a 0-99 ADP breakdown in the rate tiers in part because, according to the Bureau of Justice Statistics, jails with an ADP under 99 make up less than 10 percent of the inmate population. We also believe that adopting fewer tiers than those requested in response to the Mandatory Data Collection responds to comments in the record expressing concern over potential confusion and burden of multiple rates. By adopting these tiers for jails, we conclude that our rate caps will most closely conform to the costs as filed in the record. As a group, jails are more varied than prisons and, as we have discussed herein, there are economies of scale to be gained as facility size increases. Finally, as discussed below, the data received in response to the Mandatory Data Collection support these tiers.
47. Below we explain how we have determined that our prescribed rates will allow efficient providers to recover their costs. We rely principally upon: (1) Analysis of data received in response to the Mandatory Data Collection, which shows that firms operating efficiently would earn substantial profits under our prescribed rates, (2) evidence suggesting that providers' reported costs in response to the mandatory data collection are overstated, and (3) other evidence in the record, including ICS providers' provision of service in jurisdictions with rates lower than those we prescribe here.
48. Having determined the basic structure of rate caps, we describe the methodology for the specific rate caps within that structure. Specifically, we find that the following rate caps will ensure that ICS rates are just,
49. Evidence of rates at the state level generally provides further support that the rate caps we adopt today allow sufficient room for providers to earn a fair profit. As noted above, Ohio eliminated site commissions and reduced ICS rates by 75 percent to $0.05 for Ohio Department of Rehabilitation and Correction (ODRC) facilities. West Virginia's Division of Corrections recently reviewed bids without regard to site commissions offered by the bidders (
50.
51. The Commission directed the Bureau to create the template in a manner intended to allow a provider to include all costs incurred in the provision of ICS. Without limiting or restricting costs or cost categories, the Bureau directed providers to report their ICS-related costs for telecommunications, equipment, and security, as well as any costs not captured in these categories (
52. The debit and prepaid rate caps we adopt are based on 2012 and 2013 data submitted by the 14 responding providers. The caps rely on the 2012 and 2013 data because it represents actual, rather than projected, data, and allows averaging across the two years to account for cost variations that may occur between the years. Costs per minute were calculated using a weighted average per minute cost (which is the same as dividing aggregate costs (
53. Based on the record and our analysis described below, we believe the applicable rate caps will ensure just, reasonable and fair compensation for ICS. We have relied on the cost data and allocations as submitted by ICS providers in calculating these rate caps. We note that the providers cost data reflect their determinations about how to allocate certain common costs, such as call centers and back-office operations. It is generally understood that an economically rational provider will serve a facility if it can recover its incremental cost of doing so, which the record and our analysis indicate will be the case. We take the data at face value, even though the analysis shows that there is significant evidence—both from our own analysis and commenters' critiques—suggesting that the reported costs are overstated. We also find support in the record evidence of increased demand and additional scale efficiencies, which are not included in our quantitative analysis. Our analysis and the record evidence support our conclusion that efficient providers would be able to operate profitably under our rate caps.
54.
55. The record supports our conclusion. Coleman Bazelon, economics consultant for the Wright Petitioners, analyzed our rate caps and concluded that they “will largely cover the individual ICS providers' costs in
56. ICSolutions, an ICS provider, states that it “can comply with the proposed rules” and notes that this “strongly suggests that any entity failures in the industry are likely a result of inefficient operations.” NCIC also supports our rate caps. Praeses “believes that Providers will generally be able to provide services pursuant to these rate caps at a profit.” Praeses also reports that interstate call volume and resulting revenue have increased since our 2013 interim reform, with facilities operated by its clients seeing approximately 76 percent interstate call volume increases and overall interstate revenue growth of approximately twelve percent. This is unsurprising, as reduced prices typically lead to higher volume. ICSolutions reports seeing call volumes increase “by as much as 150%, and revenues increase by about 30%” when it implements lower call rates. In addition, our rate caps are generally higher than rates that have been adopted in several states that have undertaken reform and there is no evidence in the record that such rates have made provision of ICS unprofitable. Also, nothing in the record suggests that states that have adopted such reforms are different from those states that have not adopted reform with respect to either costs or revenues.
57. Our own analysis likewise shows that the rate caps will permit just, reasonable, and fair recovery for the provision of ICS. Our approach is conservative in its analysis of both costs and call volumes (and hence revenues). It includes all the reported data, assumes they do not overstate costs, and takes no account of likely increases in call volumes that our rates would induce, thereby understating expected revenues. This analysis thus likely reflects a worst-case scenario, and, as discussed below, even in the worst-case scenario, our rates are fair and reasonable.
58.
59. Further, we find that providers reporting high costs could recover those costs and receive just, reasonable, and fair compensation under our rate caps through increased efficiencies. Our analysis suggests that providers generally may have been over inclusive in reporting their costs and that the supply of ICS is not fully competitive, implying that the adopted rate caps are conservative. We also note that no providers have submitted evidence that their higher costs may be attributable to higher-quality or more technologically-advanced ICS.
60. Other evidence reinforces our view that respondents' reported costs may in some cases exceed economic costs, and lead us to conclude that our prescribed rate caps will allow efficient firms to recover their economic costs, including a reasonable return. For example, the average per-paid minute cost of each of the seven largest firms substantially exceeds the average per-paid minute average cost of each of three smaller providers. This data point suggests these larger firms are either economically inefficient or that they overstated their costs of ICS provision. On one hand, if there were economies of scale or constant returns to scale in production of calls or call minutes of use, then larger firms would have lower or the same average costs as the smaller firms, implying that these larger firms' reported costs are above efficient levels. On the other hand, if there were diseconomies of scale (that is, the average per-minute cost rises with MOU volumes), then these firms are inefficiently large (they would be more effective broken up into smaller firms), and we should not subsidize that anomaly.
61. More generally, we find above that average costs should fall with the provider's size. However, the reported data (implausibly) show only a very weak negative relationship between average costs and the number of calls or MOU. Similarly, the data (again implausibly) do not support
62. There is also evidence that competition to supply ICS may not always be robust, which in turn suggests providers are able to earn more than economic costs, and if faced with lower revenues, may remain profitable. The most important evidence in this last respect is that the providers' unaudited cost data show that roughly similarly situated providers have substantially different costs. This not only suggests that the higher cost providers are unlikely to be economically efficient, but also that if they were to operate more efficiently, they would have no difficulties in recovering their economic costs. For example, a lack of robust competition would explain why the reported cost data does not seem reflective of underlying costs (a result that is inconsistent with effective competition). Analysis of that data also finds a tight relationship between costs and output levels, both when commissions are included and excluded. This suggests a high degree of homogeneity in the industry between reported costs (with and without commissions) and output. One might expect such results if all bids for ICS were either competitive or non-competitive, but, as noted, other aspects
63. Two of the six smallest responding providers when ranked by paid MOU would earn substantial imputed profits at our prescribed rates. For example, over 2012 and 2013, [BEGIN CONFIDENTIAL] [END CONFIDENTIAL] had an average per paid minute cost of $0.05 (and a similar average per all minute cost) when rounded to the nearest $0.05, earning imputed profits of well over 200 percent. Similarly, in 2012 and 2013, [BEGIN CONFIDENTIAL] [END CONFIDENTIAL] had an average per-paid minute cost of $0.10 when rounded to the nearest $0.05, earning imputed profits in excess of 100 percent.
64. In contrast, our conservative approach imputed reductions in providers' ability to recover costs under our initial rate caps to seven of the reporting providers, but we find that all of these providers would be highly profitable if their cost structures resembled those of the two small efficient firms we identified. Four of these are among the six smallest responding providers. Each reported average per-paid minute costs over 2012 and 2013 of $0.25 or higher. That is, in all cases their average per-paid minute costs were more than two and a half times, and in some cases several multiples of, the highest paid MOU average cost of the two small providers with imputed profits. Consequently, if these four providers' average costs were halved, so that they still exceeded those of the two small providers with imputed profits, then all four would operate at a profit given our conservative revenue assumptions. The remaining three providers with imputed reductions in cost recovery are considerably larger than the two small providers with imputed profits discussed above, and more than one supplies services in prisons as well as jails. Yet, each has an average per-paid minute cost that is at least three times as high as that of [BEGIN CONFIDENTIAL] [END CONFIDENTIAL] (which we found to have large imputed profits). Again, if these providers' costs were considerably closer to, but still well above those of [BEGIN CONFIDENTIAL] [END CONFIDENTIAL], then they would be able to earn profits while charging rates consistent with our prescribed rate caps. In the two subsequent years, providers' ability to recover costs would change, but in all cases if these providers were as efficient as the two efficient providers discussed above, they would earn an economic profit in all of the years discussed.
65.
66. In short, our revenue estimates are likely understatements, for the reasons described below. We also find that many of the providers' reported costs are likely to be higher than efficiently-incurred costs, and this is specifically the case for the carriers just discussed. Consequently, we have a high degree of confidence that our prescribed caps would allow efficient providers of ICS to operate profitably.
67. Our revenue imputation likely underestimates the actual revenues providers would obtain for four reasons. First, our analysis does not take into account the demand stimulation from lower rates. But there is substantial record evidence showing that, to the extent that our caps lower existing rates, they will increase minutes of use and raise provider revenues.
68. Second, we impute rates that in some cases will be lower than the rates the providers may actually charge. The resulting revenue underestimate could be material for six of the providers for which we impute losses at our prescribed rate caps, meaning that as a practical matter they could make up for any shortfall. All these providers have jail contracts with ADPs of at least 350, and some of these providers have a large number of such contracts. To estimate each provider's revenues under the rate caps we adopt today, we calculate the revenues the provider would have earned given the MOU the provider reported for 2012 and 2013 for debit and prepaid calls in the three different jail size categories, 0-349, 350-999, and 1,000+, for prisons, and for collect calls (so, for example, if a carrier had 1,000 debit MOU in the 0-349 category, we assume the provider would earn $220 (= 1,000*$0.22)). This approach can understate revenues because providers reported contracts according to
69. Third, our analysis also does not take into account the caps that we impose on ancillary service charges, which likely will lead to an increase in minutes of use. Finally, our analysis does not take into account the fact that international calls are not subject to our rate caps and therefore, such calls will produce more revenue than reflected.
70. A few providers, including GTL, Securus and Telmate, contend that our rate caps are too low and will not allow them to recover their costs. Others assert that our rate caps may be too low with respect to particular facilities. Some representatives of jail facilities express concern that the provision of ICS in
71. In addition to the analysis detailed above, evidence in the record suggesting that a number of ICS providers overstated their costs in response to the Mandatory Data Collection provides us with further comfort that the rate caps adopted today are appropriate and ensure fair compensation to the providers.
72. For instance, providers were directed to file a Description and Justification (D&J) with their Mandatory Data Collection response to document and explain their cost submissions. Three providers did not submit a D&J to the Commission. The D&Js received varied widely in detail and thoroughness. Five providers (CenturyLink, GTL, Pay Tel, Securus, and Telmate) claimed a cost of capital of 11.25 percent in developing their cost data submission. (While other providers did not specify a cost of capital, given the length of this proceeding and the fact that the Commission clearly signaled its focus on setting appropriate ICS rates, as well as the fact that these respondents are sophisticated parties, we think that it is reasonable to assume that all responding providers included a cost of capital whether they specified it or not.) The cost of capital has to be estimated and their estimate of 11.25 percent might be significantly higher than the prevailing cost of capital for companies that provide telecommunication services. In any event, none of these companies submitted evidence as to their costs of debt or equity capital or capital structure, the three components of the cost of capital, and so have not justified any cost of capital estimate. In addition, several providers (Securus, Telmate, and CenturyLink) included in their costs financing items as well as interest expense, which is included in the cost of capital. This suggests that these providers, and possibly others, have over-estimated their capital costs, potentially double-counting their cost of debt. The five providers that specifically reported using 11.25 percent account for a large portion of the market, and thus a commensurate weight is reflected in the weighted average caps that we calculate. Consequently, in the unlikely event that a provider omitted its cost of capital, the omission is unlikely to have a significant impact on the weighted average caps. We also note that the Bureau has recommended to the Commission that a zone of reasonableness for the Weighted Average Cost of Capital (WACC) is between 7.39 and 8.72 percent.
73. We also find that the manner in which the data was collected and the clearly-stated purpose of the data collection, which occurred in the context of a Commission effort to set caps on ICS rates, gave providers every incentive to represent their ICS costs fully, and possibly, in some instances, even to overstate these costs. For example, one provider noted in its D&J that it even included in its ICS-related costs amounts for dues, subscriptions, entertainment and meals. We question the appropriateness of including such costs as ICS-related costs but as noted below we accept these reported costs without discounting or manipulating them. We have observed that at least one reporting provider did not actually calculate the percentage of traffic for each service (debit, prepaid or collect) represented but rather used the same percentage for each and merely offered a “guess” in reporting its 2014 data projections. This information forces us to call into question the accuracy of this provider's data and how rigorous this provider was in preparing its Mandatory Data Collection response. That the adopted rate caps include such costs, as well as the costs of international calls that are not subject to our rate caps, causes us to conclude that the adopted caps are generous. An analysis of the adopted rate caps shows that some providers will recover more than their stated costs, while others will recover less (because the caps are based on weighted industry averages but, as explained above, we believe all providers can more than recover the efficient costs of ICS supply).
74. Moreover, comments in the record have also highlighted how the data likely overstate costs. For example, the Petitioners' economist, Coleman Bazelon, and Pay Tel's economic consultant Don Wood identified problems they observed with the data. Dr. Bazelon also reported that, based on an analysis that included information not included in the provider's Mandatory Data Collection submissions, the reported costs of Securus and GTL “include many incorrectly calculated additions such as inappropriately recoverable financing costs.” Dr. Bazelon reports that, [BEGIN CONFIDENTIAL] [END CONFIDENTIAL].
75. After recalculating the providers' costs, Dr. Bazelon then concludes that their reported costs should be discounted by approximately [BEGIN CONFIDENTIAL] [END CONFIDENTIAL]. While we do not discount the costs as recommended by Dr. Bazelon and, instead, take a more conservative approach of using the data at face value, this analysis underscores that the data submitted likely overstates costs and, as a result, the rate caps we adopt today are conservative.
76. Numerous commenters have submitted rate reform proposals in the record. The Petitioners, along with several public interest groups, initially urged the Commission to adopt a $0.07 per minute rate cap for all interstate debit, prepaid, and collect calls, with no per-call charge, and no ancillary fees or taxes allowed. GTL, Securus, and Telmate, who describe themselves as “the primary providers of inmate calling services . . . in the United States and represent[ ] 85% of the industry revenue in 2013,” jointly filed a proposal to comprehensively reform all aspects of ICS. The Joint Provider Proposal urges the adoption of rate caps of $0.20 per minute for debit and prepaid interstate and intrastate ICS, and $0.24 per minute for all interstate and intrastate collect ICS, effective 90 days after adoption of a final order. The Joint Provider Proposal does not indicate that it is based on cost data received in response to the Mandatory Data Collection. In addition, the Joint Provider Proposal was signed by only three of the 14 ICS providers that responded to the Mandatory Data Collection. Pay Tel submitted what it calls an “Ethical Proposal,” in which it proposes rate caps of $0.08 per minute for all prisons regardless of population, $0.26 per minute for jails with 1-349 ADP, and
77. In response to the
78. Several commenters submitted economic justifications for their rate proposals, each of which relied on a slightly different subset of the data in the Mandatory Data Collection. For the reasons described below, the Commission declines to adopt any of these proposals.
79. After comments were received in response to the
80. In comments to the
81. We appreciate Dr. Bazelon's analysis highlighting that the data are likely to be overstated, but we do not believe it is appropriate for our purposes. Dr. Bazelon's analysis suggests that one provider may have overstated its costs by some significant amount. We find Dr. Bazelon's analysis of the submitted data troubling and believe that his conclusions, if true, might support discounting cost data from certain providers. (We note, however, that our filing instructions did not specify in detail how providers should account for the data that Dr. Bazelon discussed, although we required providers to identify and explain all costs in the accompanying Description and Justification. The lack of specific instruction regarding the method of cost reporting should not have been interpreted as license to manipulate or over-report cost data, and the reference to the penalty for willful false statements should have made that evident.) While we are concerned that the analysis from Dr. Bazelon suggests that costs were overstated, we do not believe it is appropriate to adopt a rate cap based on discounting a single provider's costs when we have data from 13 other providers. In addition, we determine above that we should not manipulate the data but more conservatively accept the providers' costs as filed to avoid potentially arbitrary means of working with the data.
82. Alabama Public Service Commission Utility Services Division Director Darrell Baker likewise reviewed the data. His proposal includes four tiers each for prisons and jails, based on inmate population, with both rate caps and additional facility cost-recovery amounts, yielding rates ranging from $0.12/min (prisons with more than 19,999 inmates) to $0.25/min (jails of less than 100 inmates). In support of his proposal for prison rates, Mr. Baker relied on cost data from only seven of the reporting 14 providers. He excluded from his rate cap and cost-recovery calculations the seven smallest reporting providers, on the basis “that the . . . [remaining] providers serve the overwhelming majority of jails and prisons and that . . . an analysis of their data should provide accurate and reliable results that are applicable across the entire industry.” In support of his proposal for jail rates, Mr. Baker relied on data from only six of the reporting providers, excluding one of the seven remaining providers' data because that “[o]ne provider's cost per MOU deviates substantially from the cost per MOU of other providers.” We find Mr. Baker's approach problematic because it eliminated the higher cost data in the record. Put another way, the seven smallest providers submitted what were among the highest reported costs of providing ICS and the other excluded provider by process of elimination must be a larger provider that is responsible for a more-significant portion of ICS minutes of use. Additionally, Mr. Baker appears to have given no consideration to potential justifications, if any, for that provider's higher costs. We are unable, on the record before us, to exclude providers' reported data in calculating the appropriate rate caps.
83. The comments in the record largely agree that the data are problematic but disagree on the reasons why and the overall effect on the reported data. Each analysis described above is based on a different data set and criticizes the data for slightly different reasons. We take seriously the concerns that the commenters have raised about inconsistencies in the data, and for at least some of the reasons described above, conclude that the reported data likely overstates the providers' actual costs. But, as explained herein, we are unable to agree with and do not adopt any of the commenters' choices about which data to exclude or discount.
84. In this section, we conclude that it is appropriate to put in place a temporary, distinct rate structure for collect calls, with a two-year phase down after which rate caps for collect calls will be the same as those of debit and prepaid calls.
85. In the
86. In the
87. Based on our analysis of the record, including data submitted in response to the Mandatory Data Collection, we predict that collect calling usage will continue to decrease in the future. We do not want to include high collect calling costs in debit and prepaid rate tiers because that would compel the majority of ICS end users that do not use collect calling to subsidize such calls. In light of that concern, and because we continue to encourage correctional institutions to move away from collect calling, as the Commission did in the
88. We adopt a collect calling rate cap based on the cost data received in response to the Mandatory Data Collection, as well as a two-year step-down transitional period, as follows. First, we adopt a collect calling rate of $0.49/per minute for all jails and $0.14 for all prisons until July 1, 2017. Beginning July 1, 2017, we adopt a rate of $0.36/per minute for jails of 0-349 ADP, $0.33/per minute for jails of 349-999 ADP, and $0.32/per minute for jails of 1,000 or greater ADP, and $0.14/per minute for all prisons. This rate is halfway between the initial rate and the rates that are adopted in this Order for debit and prepaid calling. Finally, effective July 1, 2018 and beyond, we adopt a collect calling rate of $0.22/per minute for jails of 0-349 ADP, $0.16/per minute for jails with 359-999 ADP, and $0.14/per minute for jails of 1,000 or greater ADP, and $0.11/per minute for all prisons, in order to arrive at rates that are identical to those adopted in this Order for jails and prisons and the respective tiers therein.
89. We conclude that these separate tiers for collect calling rates will phase out after a two-year transition period. This two-year framework is justified by the data filed in response to the Mandatory Data Collection, showing that collect calling volume is decreasing and will most likely be at a nominal level in two years. By adopting a two-year glide path, the rates ICS providers are permitted to charge phase down over time, with certainty and sufficient time to adapt to a changed landscape that includes reduced use of collect calling overall. We find that this transitional approach will be administratively efficient for both providers and the Commission, as it involves a straightforward two-year step-down process and reflects our expectation that providers will gain efficiencies in their contracts and collect calling, and that they will thus more easily adjust to the lower rate caps adopted for debit and prepaid calling.
90. Moreover, the record supports a uniform rate for collect calls. Indeed, several commenters no longer support a separate rate cap for collect calling, indicating that collect calling costs may not, in fact, differ significantly from debit or prepaid calling costs, or that collect calling accounts for a relatively small portion of calls. The record indicates that this is because correctional institutions favor debit or prepaid calling over collect calling. For example, when the Commission adopted the
91. We acknowledge that the collect calling rate caps will be higher in year one than several of the collect calling caps proposed in the record. We expect that these caps will serve as backstops, not a target for providers, as efficiencies are gained by providers, and contracts are changed, or new contracts are entered into between parties. As discussed above, we expect that the trend towards declining collect calling volume will continue, and the adopted rate caps may be further modified in response to further data received as part of the MDC adopted herein.
92. We delegate to the Bureau the authority to seek comment on the possibility of adjusting the adopted collect calling rate cap if necessary to address any gaming issues that may arise prior to completion of the phase-down. As part of the annual reporting and certification requirement adopted herein, the Bureau will be monitoring collect call volume in order to review trends and to ensure that gaming does not occur. As discussed below, the
93. In adopting these rate caps, we have carefully considered each proposal or suggestion from the extensive comments in the record and weighed its potential benefit against any potential burden it may impose, bearing in mind our statutory mandate that ICS rates must be just, reasonable, and fair, maximizing the public benefit from any proposal we adopt. We find, on balance, that the benefits of our rate caps outweigh any potential burden that may be imposed. For example, regular family contact not only benefits the public broadly by reducing crime, lessening the need for additional correctional facilities and cutting overall costs to society, but also likely has a positive effect on the welfare of inmates' children. Ensuring just and reasonable ICS rates will foster regular contact between inmates and families, reduce the economic burden on ICS end users, support more cost-effective communication between inmates and their counsel, and produce cost savings for the justice system.
94. Additionally, as the Commission discussed in the
95. As discussed above, there is little dispute that the ICS market is experiencing market failure. Numerous commenters have expressed as much. Various parties encourage the Commission to reform rates within inmate calling, and some offer specific reform proposals. Reforms are necessary to ensure that the benefits discussed above, which are in the public interest, will be realized.
96. The Order recognizes, however, that imposing rate caps may impose burdens on some providers. We have taken steps to minimize burdens on providers. As discussed below, we allow a 90-day transition period for the rate caps adopted in this Order to take effect for prisons and six months for the applicable rate caps to take effect in jails. We find that this length of time adequately balances the pressing need for reform while affording ICS providers and facilities sufficient time to prepare for the new rates. Further, our rate caps are designed to ensure that efficient providers will recover all legitimate costs of providing ICS, including a reasonable return, and, to the extent a provider can demonstrate special circumstances, it may seek relief from our rules in the form of a waiver. Specifically, the Commission will consider requests from a provider arguing that particular facts, when considered in the context of the totality of the relevant circumstances, deprive the provider of fair compensation or have a substantial and deleterious effect on competition in the ICS market.
97. Additionally, the rate caps adopted in the Order include fewer tiers than the number of tiers used in the data requested in our Mandatory Data Collection. The Commission collected data, for example, on the costs of serving jail facilities with 0-99 ADP, a grouping comprising less than 10 percent of the inmate population, but we did not adopt that as a rate tier, thereby mitigating any administrative burden on providers of adding a separate rate tier for this comparatively small grouping. The rate caps we adopt today respond to commenter concerns regarding potential confusion and burden caused by multiple rates. We also adopt a single rate cap for prisons, which should minimize the burden on providers that serve prisons. Finally, we disagree with those commenters who assert that adopting a tiered rate structure would be unduly burdensome and difficult for the Commission to administer and for ICS providers and correctional officers to implement. We find these allegations unsupported and commenters provide no persuasive evidence that our rate tiers would be more difficult for them to administer than the current approaches.
98.
99. In the
100. We received limited comment in the record, but all supported the elimination of per-call or per-connection fees. For example, HRDC supports the “elimination of per-call charges” for existing contracts. Legal Services for Prisoners with Children asserts that “per-call” or connection fees are “unreasonably high” and that the Commission “should ban these charges” or, “at the very least,” should introduce a “dropped call” provision that “prohibits ICS providers from charging multiple times for a call that has been reinitiated within a few minutes.” Pay Tel notes that if the Commission adopts “any rate cap regime—including Pay Tel's Proposal—that does not allow providers to charge end users an upfront surcharge or per-call surcharge, it will
101.
102.
103.
104. The record reflects minimal support for this practice. The Alabama PSC opposes Securus' proposed clarification, stating that “flat-rate pricing allows providers to maximize call revenues and to dictate phone usage to the end users.” It further asserts that flat-rate calling increases complaints related to dropped calls and penalizes inmates that want to make shorter calls. Several commenters suggest that ICS providers will benefit from a ban on flat-rate calls because it will lower their costs related to consumer complaints and bill adjustments. HRDC notes that the proposed flat rates “only fall within the rate caps when a full 15-minute call is actually completed” and argues that “this practice does not reflect the spirit” of the Commission's
105. We prohibit the imposition of flat-rate calling. There is minimal record support for such charges, which penalize those who make shorter calls (the record indicates that ICS calls last typically less than 15 minutes). If an end user is charged for a 15-minute call but the duration of that call is less than 15 minutes, the price for that call is disproportionately high. We also agree with those commenters who assert that allowing providers to charge a flat rate based on a 15-minute call does not comport with our requirement to make ICS rates just, reasonable, and fair. As such, we ban flat-rate calling rate plans.
106.
107. Our authority to ensure the reasonableness of rates and practices for interstate ICS is not in dispute. Under section 201(b) of the Communications Act, the FCC is empowered to “prescribe such rules and regulations as may be necessary” to ensure that “[a]ll charges [and] practices . . . for and in connection with [interstate] communication service” by wire or radio are “just and reasonable.” Section 276 directs the Commission to “establish a per call compensation plan to ensure that all payphone service providers”—which the statute defines to include providers of ICS—“are fairly compensated for each and every completed intrastate and interstate call.” (The Commission has previously found that the term “fairly compensated” permits a range of compensation rates that could be considered fair, but that the interests of both the payphone service providers and the parties paying the compensation must be taken into account.) We find that these statutory sections provide the Commission with the authority to regulate interstate ICS rates and practices, including the use of per-call or per-connection fees as well as flat-rate calling.
108.
109. Under section 276 of the Communications Act, the Commission is charged with implementing Congress's directive “that all payphone service providers [be] fairly compensated for each and every completed intrastate and interstate call.” Section 276 contains several express references both to ICS and intrastate calling, making it clear that the Commission has the authority to regulate intrastate ICS calling. For example, section 276 requires the Commission to broadly craft regulations to “promote the widespread development of payphone services for the benefit of the general public” including, notably, “the provision of
110. Furthermore, significant judicial precedent supports the Commission's authority to regulate intrastate ICS. In
111. We find arguments that the Commission lacks the authority to regulate intrastate ICS unpersuasive. For example, we disagree with commenters who argue that section 276 is limited to prohibiting discrimination by Bell operating companies (BOCs). While section 276(a) includes provisions specifically prohibiting discrimination by BOCs, we do not believe Congress intended for that subsection to limit the scope of the remaining provisions of section 276. For example, section 276(b)(1) expressly mandates that the Commission adopt regulations addressing five specific subjects related to payphone services; only two of those subjects—clauses (C) and (D)—relate to preventing BOC discrimination.
112. In addition, although section 276(a) refers to Bell operating companies, and applies only to the BOCs, section 276(b) refers more broadly to “payphone service providers.” If Congress had intended for the regulations prescribed under section 276(b) to be limited to the narrow purpose of effectuating the nondiscrimination goals set forth in section 276(a), it easily could have made that clear. Instead, Congress made clear that it was conferring a broader mandate in section 276(b), stating that: “[i]n order to promote competition among payphone service providers and to promote the widespread deployment of payphone services . . . , the Commission shall take all actions necessary . . . to prescribe regulations that . . . [
113. We also disagree with commenters who argue that the Commission has never determined that section 276 extends to intrastate rates or that section 276 applies only to “local calls made from a payphone and paid with coins.” Section 276 does not specify that compensation is only for calls paid by coin but rather “each and every” call. Indeed, the very Commission order under review in
114.
115. The Commission has broad discretion in establishing just and reasonable rates, as long as it articulates a rational basis for its decisions and as long as the result is not confiscatory. As the Supreme Court has explained in construing the similar “just and reasonable rates” provision of the Natural Gas Act, “the Commission is not required by the Constitution or the Natural Gas Act to adopt as just and reasonable any particular rate level; rather, courts are without authority to set aside any rate selected by the Commission which is within a `zone of reasonableness.'” Section 276(b) charges us with ensuring that “all payphone service providers [be] fairly compensated.” This provision must be read in conjunction with our obligation under section 201(b) to ensure that charges and practices be just and reasonable. Neither section 276(b) nor 201(b) require us to allow for recovery of costs that are not just, reasonable and fair.
116. We recognize that some ICS providers may see their profits decrease because the adopted caps are below the costs they reported to us under the Mandatory Data Collection (assuming that MOU stay constant). The Commission has broad authority to set rate caps to apply to a particular service and does not have to set provider-specific rates that embody a rate of return for each individual provider. Indeed, as at least one provider has explained in this proceeding, courts have recognized that the use of industry-wide average cost data to set rates is not arbitrary, and therefore agencies may use composite industry data or other averaging methods to set rates. We therefore find that the rates we adopt today are reasonable for the reasons provided above and will allow economically efficient—possibly all—providers to recover their costs that are reasonably and directly attributable to ICS. The costs reported by the providers that are above our rate caps represent significant outliers, suggesting that their reporting methods may have varied from those of other providers or that
117. The record indicates that, in many cases, ICS bids are predicated on the winning providers' willingness to share part of its ICS revenues with the correctional facility. These payments, commonly referred to as “site commissions,” may take the form of monetary payments, in-kind payments, exchanges, or allowances. In this Order, we define the term “site commission” broadly, to encompass any form of monetary payment, in-kind payment requirement, gift, exchange of services or goods, fee, technology allowance, product or the like.
118. After carefully considering the evidence in the record, we affirm our previous finding that site commissions do not constitute a legitimate cost to the providers of providing ICS. Accordingly, we do not include site commission payments in the cost data we use in setting the rate caps established in this Order. We conclude that we do not need to prohibit site commissions in order to ensure that interstate rates for ICS are fair, just, and reasonable and that intrastate rates are fair. We reiterate, however, that site commissions have been a significant driver of rates and that ICS rates have dropped dramatically in states that have eliminated site commissions. We therefore encourage other states and correctional facilities to curtail or prohibit such payments as part of an effort to further ensure that inmates and their families have access to ICS at affordable rates.
119. We recognize that some states have adopted reasonable rates that include a margin sufficient to allow providers to pay site commissions, thus demonstrating that it is possible to have rates that are consistent with our rate caps but still allow for the payment of site commissions. The decision to establish fair and reasonable rate caps for ICS and leave providers to decide whether to pay site commissions—and if so, how much to pay—is supported by a broad cross-section of commenters, including consumer advocates, such as the Wright Petitioners; ICS providers, such as CenturyLink, NCIC and ICSolutions; representatives of correctional facilities, such as Praeses; and state regulators, such as the Alabama PSC. This broad support from practically every type of interested party underscores the reasonableness of our approach. We will continue to monitor the market and will take appropriate action if we find that, notwithstanding our rate caps, site commissions are somehow driving ICS rates to levels that are unjust, unreasonable, or unfair.
120. In the
121. In the subsequent
122. In the
123. Although we do not prohibit providers from paying site commissions, we do not consider the cost of any such payments in setting our rate caps. (Regardless of whether site commission payments constitute an “appointment of profits” or a cost to the provider, they cannot be recovered through ICS rates unless they are “reasonably and directly related to the provision of ICS.) Evidence submitted in response to the
124. We therefore agree with inmate advocates, such as the Wright Petitioners and the Civil Rights Coalition, a group of 20 national civil rights and social justice organizations; providers, such as CenturyLink and NCIC; United States Senators; and state regulators, such as the Alabama PSC that, at this time, we should focus on our core ratemaking authority in reforming ICS and not prohibit or specifically regulate site commission payments. While we continue to view such payments as an apportionment of profit, and therefore irrelevant to the costs we consider in setting rate caps for ICS, we do not prohibit ICS providers from paying site commissions. (Of course, providers' rates must comply
125. The record supports excluding site commission payments from the costs used to calculate the rate caps for ICS. Indeed, even many of the commenters that oppose a prohibition on site commissions urge the Commission to consider only costs related to the provision of ICS in calculating the rate caps. If site commissions were factored into the costs we used to set the rate caps, the caps would be significantly higher. Passing the non-ICS-related costs that comprise site commission payments including contributions to general revenue funds, onto inmates and their families as part of the costs used to set rate caps would result in rates that exceed the fair compensation required by section 276 and that are not just and reasonable, as required by section 201.
126. We note that several commenters argue that the programs currently supported by site commissions should be paid for out of tax funds collected from the population at large, or from other sources. HRDC, for example, argues that “all taxpayers should fund the cost of operating correctional facilities, including the cost of providing ICS,” just as homeowners pay taxes to fund schools, regardless of whether they have school-age children. We need not reach such arguments to support our decision. Rather, we conclude that, because the programs in question are unrelated to the provision or use of ICS, the burden of paying for them may not, under the Communications Act, be imposed on end users of ICS. As the Commission has explained, how facilities use the site commission payments they receive from ICS providers is irrelevant to our analysis: “[t]he Act does not provide a mechanism for funding social welfare programs or other costs unrelated to the provision of ICS, no matter how successful or worthy.” Consistent with the record in this proceeding, as well as the Commission's decision in the
127. In the
128. Based on the evidence in the record, we conclude that we do not need to prohibit site commissions at this time to achieve the statutory directives of ensuring that ICS rates are just, reasonable, and fair. The fact that we do not prohibit site commission payments does not mean, however, that we have failed to address site commissions. To the contrary, we have addressed the harmful effects of outsized site commissions by establishing comprehensive rate caps and caps on ancillary service charges that may limit providers' ability to pass site commissions through to ICS consumers. We have also made the considered decision to establish caps on rates and ancillary service charges and allow market forces to dictate adjustments in site commission payments. As noted below, this approach is consistent with the Commission's general preference to rely on market forces, rather than regulatory intervention, wherever reasonably possible. Our expectation that ICS providers and correctional facilities will find an approach that meets their needs and complies with our rate caps is neither arbitrary nor capricious. In fact, evidence in the record demonstrates that ICS rates can be set at levels that are well within our rate caps while allowing for fair compensation and still leaving room for site commission payments. For example, in Pennsylvania, the per-minute rate of $0.059 includes a 35 percent site commission. Similarly, in New Hampshire, the state DOC lowered intrastate rates to less than $0.06 per minute with a 20 percent site commission. Thus, it is possible to have reasonable rates and fair compensation without expressly prohibiting site commissions.
129. We emphasize that the actions we take here are based on our ratemaking authority and are intended to ensure fair, just, and reasonable ICS rates. The caps and restrictions we impose on providers' rates should eliminate or substantially reduce the ability of site commissions to inflate rates above providers' costs or reasonable profit to otherwise distort ICS rates. As explained elsewhere in this Order, we have seen some positive steps toward the lowering and/or elimination of site commissions and we believe that this trend, coupled with the actions we take today, constitutes a reasonable means of addressing ICS issues one step at a time, given the fact that some portion of some site commissions are said to represent the recovery of reasonable institutional
130. Our decision not to prohibit site commission payments should not be viewed as an endorsement of such practices. Rather, our decision simply reflects our focus on achieving our statutory objectives with only limited regulatory intervention. We understand the positions of those parties calling for the regulation of site commission practices, or even those calling for a complete ban of them. We also acknowledge that some commenters have questioned our legal authority to prohibit site commissions. Other parties argue that we have clear authority to regulate site commission payments. Ultimately, however, we do not need to determine whether we have authority to ban site commission payments, given our decision to take a less heavy-handed approach, similar to that adopted by the Alabama PSC. This approach is consistent with the Commission's general preference to rely on market forces, rather than regulatory fiat, whenever possible.
131. We expect that the approach adopted in this Order will result in lower site commissions, and strongly encourage additional jurisdictions to eliminate site commissions altogether to help ensure that inmates and their families have access to ICS at affordable rates. We applaud recent efforts by New Jersey and Ohio to eliminate site commissions. The per-minute intrastate ICS rates in these states have dropped considerably (from $0.15 to under $0.05 in New Jersey and $0.39 to $0.05 in Ohio). Pay Tel estimates that in eight states that have eliminated site commissions the rates average less than $0.07/minute. The actions taken by these states demonstrate that site commissions can be eliminated without sacrificing facilities' ability to implement robust security protocols. Additional states continue to take similar steps to curb or prevent the use of site commissions in their state prison systems and we urge other states to take similar actions. We also reiterate that rates can be significantly below our rate caps and still offer ICS providers sufficient profit to allow them to pay reasonable site commissions.
132. Further, we note that, despite what some entities appear to suggest, this Order does not maintain the
133.
134. In the
135. Although some commenters argue that allowing ICS creates costs for facilities, others question whether correctional facilities incur any costs that should be passed on to consumers as part of the per-minute rates for ICS. One issue is whether the costs parties seek to attribute to ICS are, in fact, costs that facilities would incur regardless of whether they allowed ICS. Andrew Lipman, for example, argues that many correctional facilities seek payment for “activities that have nothing to do with the provision of a telecommunications service.” These parties argue that the costs facilities seek to pass on to ICS providers and users are more properly classified as law enforcement costs related to operating a correctional facility that should be borne by the government and not ICS users.
136. Even commenters asserting that facilities incur costs that are properly attributable to the provision of ICS do not agree on the extent of those costs. A group of the largest ICS providers, for example, notes that while they support the recovery of “legitimate costs incurred by correctional facilities that are directly related to the provision of inmate calling services,” they cannot agree on how those costs should be calculated. The NSA suggests that the Commission approve a “compensation amount for the security and administrative duties performed in jails in connection with ICS that is an additive amount to the ICS rate.” Relying, in large part, on the results of a survey it took of its members, as well as analyses submitted by other parties, NSA suggests that this additive amount should range from $0.01 to $0.11 per minute, depending on the size of the facility being served.
137. Several commenters offer critiques of NSA's survey data, however. GTL's economic consultant, for example, concludes that NSA's latest proposal would offer facilities “significantly larger” annual compensation than would be justified by estimates derived from the analyses conducted by itself and other parties, particularly for small facilities such as jails with an ADP below 350. Even Pay Tel, which generally supported the NSA's survey as a “robust and significant dataset,” agrees that NSA failed to remove outliers from its calculations and that NSA included
138.
139. Some commenters argue that the costs claimed by facilities are “basic law enforcement activities [such as surveillance and investigation of calls] and not costs for providing a telecommunications service.” The record is not clear that the costs facilities claim to incur due to ICS would actually be eliminated if the facilities ceased to allow inmates to have access to ICS. Moreover, providers indicate that costs that facilities claim to incur in allowing ICS are, in fact, borne directly by the providers. Those costs are already built into our rate cap calculations and should not be recovered through an “additive” to the ICS rates. Accordingly, while we strongly encourage the elimination of site commission payments, we do not dictate what an ICS provider can do with its profits and conclude that the most reasonable and fair approach is to leave it to ICS providers and facilities to negotiate the amount of any payments from the providers to the facilities, provided that those payments do not drive the provider's rates above the applicable rate cap. We note, however, that evidence submitted in the record—and discussed above—indicates that if facilities incurred any legitimate costs in connection with ICS, those costs would likely amount to no more than one or two cents per billable minute. Our rate caps are sufficiently generous to cover any such costs.
140. As noted above, some parties contend that correctional facilities will remove or limit access to telephones if the Commission acts to limit site commission payments. We find it highly unlikely, however, that facilities would eliminate or limit access to ICS as a result of this Order. Given that we do not ban site commissions, facilities have no basis for taking such extreme measures. Notably, the record contains no indication that ICS deployment has decreased in states that have eliminated site commissions. This is unsurprising, given what we anticipate would be an intensely negative backlash to such an action. In addition, the record indicates that ICS provides valuable, non-monetary benefits to correctional facilities, such as correctional management and incentives to inmates who exhibit good behavior.
141. Some parties argue that it would be confiscatory for the Commission to exclude the costs of site commission payments from our rate cap calculations without also explicitly prohibiting ICS providers from paying such commissions. According to these parties, ICS providers will not be able to afford the site commission payments demanded of them by correctional facilities if the providers' revenues are limited by the rate caps established here. These claims rest largely on the fact that existing ICS contracts may obligate providers to pay site commissions to the facilities they are serving. As explained further below, we conclude that these concerns are largely unfounded.
142. For the same reasons set forth in the
143. In addition, we re-emphasize that a party carries a heavy burden if it seeks to demonstrate that a regulation creates an unconstitutional “taking.” For instance, to succeed on a “takings” claim, a party must demonstrate that the losses caused by the regulation in question are so significant that the “net effect” is confiscatory. When confronted with a “takings” claim, courts will examine the net effect of the regulation on the company's enterprise as a whole, rather than on a specific product or service. Thus, it is not enough for a provider to show that it is losing money on a particular service or in serving a particular customer. Instead, a provider seeking to show that our rate caps are confiscatory will have to demonstrate that any cognizable harm caused by our regulations is so severe that it meets the high bar for a takings with respect to the company as a whole,
144. The record contains evidence that ancillary service charges have increased since the
145. The record overwhelmingly supports the need to reform ancillary service charges. While we would prefer to allow the market to discipline rates, the evidence since the Commission's
146. Our Mandatory Data Collection confirmed that various ICS providers charge a plethora of ancillary service charges, and that different providers may describe the same charge by different names. Commenters suggest that ancillary service charges inflate the cost of ICS to end users without justification. For example, some providers charge account set-up, maintenance, closure, and refund fees. Praeses contends that “[p]roviders should not be permitted to charge any ancillary fees to recover . . . intrinsic ICS costs, such as validation fees or fees related to Facility-required security.” This distinction between what is an intrinsic part of providing ICS, and what is not, has helped us to select the ancillary service charges we find appropriate and to ban all other ancillary service charges.
147. In responding to the unique challenges posed by escalating ancillary fees, this Order establishes a limited list of ancillary fees that the Commission will permit ICS providers to charge. The amount of each of these fees is capped, and ICS providers are restricted from charging any ancillary fees not specifically allowed in our Order. For fees for single-call and related services and third-party financial transaction fees, we allow providers to pass through only the charges they incur without any additional markup. We limit automated payment fees to $3.00, live agent fees to $5.95, and paper statement fees to $2.00. Apart from these specific fees, no additional ancillary service charges are allowed. Taxes are discussed separately and must be passed through with no markup. We also take action to avoid potential loopholes in these rules, such as artificial limits on minimum and maximum account balances that could require inmates to reload accounts frequently and unnecessarily increase costs borne by consumers. This approach involved analyzing the data submitted by carriers, as well as comments in the record, to determine which fees ICS providers should legitimately be able to charge end users.
148.
149. In response to the
150.
151.
152. Parties differ about which ancillary service charges should be capped. For example, a number of commenters believe that the Commission should eliminate all fees for services that a consumer is required to pay in order to access basic ICS, including, but not limited to, account set-up, maintenance, funding, refund, and closure fees. In addition, Praeses suggests that “[a]ll costs that Providers necessarily and unavoidably incur as part of completing an inmate call should be recovered through ICS rates. As a result, Providers should not be permitted to charge any ancillary fees to recover such intrinsic ICS costs, such as validation fees or fees related to Facility-required security.”
153. Of additional concern is the ability of ICS providers to evade any limitation on a particular ancillary service charge simply by changing its name. ICSolutions notes that if an RFP for ICS prohibits a specific fee, some bidding ICS providers simply rename it or create a new fee to take its place. Other commenters contend that if ICS providers want to impose additional ancillary service charges, then they should ask for a waiver from the Commission or a rule modification.
154. This concerns us because it suggests that ICS providers are using ancillary service charges as a loophole to increase revenues and undermine the impact of the interstate rate caps adopted in the
155.
156.
157. In the
158.
159. Some commenters criticize the Joint Provider Proposal as retaining the most lucrative ancillary service charges, and undermining reform efforts by allowing the large providers to maintain their dominant positions. CTEL asserts that smaller ICS providers lack the market power to impose high ancillary service charges. The Alabama PSC also states that it “cannot emphasize strongly enough that the outliers in terms of excessive ancillary fees are the providers that submitted the Proposal to the Commission.”
160.
161. After careful consideration of the record, including analysis of the Mandatory Data Collection, we conclude that reform is necessary to address ever-increasing fees that are unchecked by competitive forces and unrelated to costs. ICS providers, which typically have exclusive contracts to serve a facility, have the incentive and ability to continue to extract unjust and unreasonable ancillary service charges. As a result, we conclude it is necessary to reform the ancillary service charge structure imposed on consumers by ICS providers, as shown in Table Four below. All other ancillary service charges not specifically included in Table Four are prohibited. (Thus, providers would be prohibited from imposing charges for biometric technology, for example.) We conclude that the allowable charges will facilitate communications between inmates and their loved ones and will allow ICS providers to recover the costs incurred for providing the ancillary service associated with the relevant fee. We find no other examples in the record of
162. Our approach is supported by the record and will reduce the cost of service for millions of consumers. Even so, as with all reforms adopted in this Order, we will reevaluate these charges in two years to determine if adjustments are appropriate. We expect that these caps will serve as backstops as efficiencies are gained by providers, and contracts are changed, or new contracts are entered into between parties. For example, the record indicates that the recently-adopted New Jersey state correctional institutions' ICS contract specifically prohibits “discretionary fees,” which include bill statement fees, monthly recurring wireless account maintenance charges, account setup fees, funding fees, refund fees, and a single bill fee. Finally, we believe it is reasonable to expect that the ancillary service charge caps may encourage providers to more efficiently provide ancillary services, potentially stimulating competition among ICS providers to the added benefit of consumers and in keeping with section 276's statutory mandate. The reforms are intended to facilitate the proper functioning of the ICS market.
163. Each of the entries in Table Four focuses on the particular functions related to each type of charge listed below. (Thus, even if a provider renames one of its fees to match the terminology in this table, that will not be sufficient to make an allowable ancillary service charge. Also, each individual ancillary service charge that an ICS provider levies must serve one of the permitted functions in order to qualify as a permissible ancillary service charge, regardless of the precise terminology used. In the event of dispute, the Commission will evaluate the fee charged to a consumer on the basis of the totality of the circumstances, judged from a reasonable consumer's point of view, to determine whether the fee serves one of the permitted functions. Automated payments include payments by interactive voice response (IVR), web, and kiosk.)
164.
165. We also note that some jurisdictions have banned ancillary service charges and that providers have complied with such regulations. This suggests that ancillary service costs can be recovered with reasonable ICS rates. Accordingly, our ancillary service charge caps should more than adequately compensate for the costs incurred. Moreover, we conclude that the annual reporting, certification and data collection requirements adopted herein regarding ancillary fee information will ensure compliance with the requirements. We will use this information to ensure that ICS providers are complying with the reforms adopted herein.
166.
167.
168.
169.
170.
171. However, the record indicates that ICS providers are imposing significant additional charges, as high as $11.95, for end users to make account payments via third parties, such as Western Union or Money Gram, and sharing the resulting profit with those third-party financial institutions. We find that the ICS providers' additional fee or mark-up to the third-parties' service charges function as a billing-and-collection related charge, on top of the third-party charge, that the Commission has authority to address. Providers have offered no cost-based justification for imposing an additional fee on end users on top of the third-party money-transfer service or financial institution fee, nor have they explained what (if any) functions they must necessarily perform to “process” a transfer already transferred from the third-party provider. Therefore, as discussed in more detail below, we require that ICS providers pass through to their end users, with no additional markup, the money transfer or third-party financial transaction fees they are charged by such third parties. (The record indicates that no additional markup is warranted on top of the fees charged by the third-party payment providers.)
172. Our adopted approach ensures that, in transactions like these, ICS providers do not receive excessive compensation, while also protecting consumers from unreasonable additional fees that result in unjust and unreasonable ICS rates. We find support for our third-party financial transaction fee approach from parties such as CenturyLink and NCIC, and the Alabama PSC additionally urges the Commission to require ICS providers to “eliminate the provider ancillary charge premium they assess on top of the $5.95 payment transfer fee available to their customers from Western Union and MoneyGram.”
173.
174. At this time, we do not find it necessary to eliminate all ancillary service charges to be consistent with our statutory objectives and policy goals for ICS reform. We are mindful of and concerned about the potential for continued abuse of ancillary service charges, and we will monitor the implementation of these caps and determine if additional reforms are necessary in the future. By limiting the scope of ancillary service charges, we also resolve other problems presented in the record. We prohibit all other ancillary service charges not enumerated because the record did not demonstrate that any other ancillary services are reasonably and directly related to the provision of ICS, nor are they necessary to ensure that ICS providers receive fair compensation for providing service. Permitting any other ancillary service charges would promote unfair, unjust, and unreasonable rates to end users, and would thus be contrary to our statutory mandate. Further, we find that removing a substantial number of unjustifiable charges not only benefits consumers, but also reduces compliance costs for ICS providers by allowing them easily to identify whether a particular charge is permitted by our rules. Additionally, since we have determined that the only justifiable ancillary service charges are the ones we specifically enumerated, there are no countervailing costs that would outweigh our selected approach.
175.
176. We agree that high purchase minimum requirements can lead to unfair compensation by forcing consumers to deposit relatively large sums of money even if they only want to make one short call or by driving consumers to more expensive calling options. Thus, high purchase minimums can effectively allow providers to charge exorbitant amounts for single calls. Such a result would be antithetical to the Commission's goals and to the requirements of sections 201 and 276.
177. An artificial limit on maximum account deposits could also lead to gaming and loopholes. CenturyLink points out that low maximums on deposits can allow providers to increase transaction fees. A provider may refuse to permit a consumer from depositing more than a certain amount of money into an inmate calling account in a single transaction, thereby compelling the consumer to engage in additional transactions and, as a result, incur multiple ancillary service charges. Thus, providers could circumvent our reforms by placing artificially low limits on deposits and requiring consumers to incur ancillary charges every time they add additional money to an account.
178. In order to prevent ICS providers from obtaining unfair compensation by inflating costs for end users relating to maximum and minimum deposits, we prohibit ICS providers from instituting prepaid account minimums, and require that any provider that limits deposits to set the maximum purchase amount at no less than $50 per transaction. Data from the Mandatory Data Collection show that the average call length reported by respondents was approximately 13 minutes. Under our new rate structure, that means the average cost of a call from a prison would be about $1.43. Accordingly, a $50 maximum per transaction would mean that consumers will be able to make a relatively large number of calls with a single deposit (on average about 35 calls). We find that allowing a lower limit would create an unacceptable risk that providers would be able to compel consumers to incur multiple ancillary service charges, as explained above. We note, however, that the record also reflects concerns that setting the floor for maximum allowable deposits too low could create risks for ICS providers, including the potential for fraud. Allowing providers to institute maximum deposit amounts, but requiring that those maximums be no lower than $50, strikes a reasonable balance between the competing concerns expressed in the record. We also note that various providers have instituted maximum deposit policies that conform to our requirement of no less than a $50 maximum per transaction, and in some circumstances have even instituted higher maximum deposit limits. As noted below, we will continue to monitor the ICS marketplace and to investigate any attempts, such as these, to circumvent our rate caps or our rules governing ancillary charges. Due to the history of the large number and ever-changing and growing nature of ancillary service charges, as described in the record, we will be diligent in identifying any providers that violate the new rules covering ancillary service charges, third-party financial transaction fees, and minimum and maximum account funding. Accordingly, we delegate to the Bureau the authority to clarify the rule as necessary, after public notice and an opportunity to comment, where appropriate, to ensure that the reforms adopted in this Order relating to ancillary service charges and third-party financial transaction fees are properly reflected. This includes seeking comment on prohibiting additional ancillary fees if there is evidence of abuse of the permitted charges.
179. After careful consideration, we find that our approach to adopt simple ancillary service charge caps provides significant and important benefits to ICS end users, outweighing any potential burdens to providers. As discussed above, we conclude that reform is necessary to address ever-increasing and multiplying fees that are unchecked by competitive forces and unrelated to costs. We find that the allowable ancillary service charges will facilitate communications between inmates and their families, while enabling ICS
180. It is clear that market failure exists with regard to ancillary service charges. Numerous parties cite specific instances of such market failure or abuse among ancillary service charge categories. Additionally, commenters request the Commission take action to curb these abuses by adopting reforms.
181. By creating simple rate caps and limiting the scope of ancillary service charges, we resolve these problems and reform ancillary charges. We prohibit all ancillary service charges not specifically allowed, not only for the foregoing reasons, but also because the record did not demonstrate that any other ancillary services are reasonably and directly related to the provision of ICS or necessary to ensure that ICS providers receive fair compensation for providing service. Further, we find that removing a substantial number of unjustifiable charges not only benefits consumers, but also reduces compliance costs for ICS providers by allowing them easily to identify whether a particular charge is permitted by our rules, thus reducing the burden on them. As noted below, however, to minimize any potential burdens associated with ancillary service charges, we will reevaluate these charges to determine if adjustments are appropriate.
182.
183. A significant problem with single-call and related services is that they end up being among the most expensive ways to make a phone call. In the
184. There is a diversity of views in the record on single-call and related services. CPC believes that single-call services should be treated as ancillary services subject to rate caps and that consumers must be notified of the option to set up a prepaid account instead. Several commenters believe that all of these single-call and related services should be eliminated because they are simply an “end run” around the Commission's rate caps. The Wright Petitioners note that any proposed rate caps should also apply to single-call services, along with a $3.00 funding fee. PPI also argues that, in the alternative, charges for single call services should be restricted to a reasonable deposit fee, plus a reasonable capped call fee. As the Alabama PSC notes, “[t]he regulator's duty is to set fair and reasonable rates for ICS calls.”
185. ICSolutions notes that the single-call or related service charge is often $9.99 or $14.99, regardless of whether the call lasts one minute or 10 or 15 minutes, and that these rates are 300 percent or 376 percent higher than the effective interstate rate caps. It contends that such calls pose a danger to consumers, and that providers manipulate consumers into selecting these calling options even though less costly call options may exist. Other providers share ICSolutions' concern that single-call or related services are used to “inflate ancillary fees” at the expense of end users. CenturyLink, ICSolutions, and NCIC, among others, expressed concern about the use of third parties, including unregulated subsidiaries, to provide single-call or related services at high fees, and about revenue-sharing arrangements that enable ICS providers to recoup all or a portion of the ancillary service charge as profit outside our rate caps. Additionally, the Alabama PSC analyzed these single-call services in a jail, and found that “[a]lthough single payment calls account for 14% of the calls and 17% of the minutes at the facility, they are responsible for 42% of all the revenue generated.” Conversely, GTL urges the Commission not to regulate these services, arguing the Commission does not have jurisdiction to do so. Securus similarly argues that single-call and related services should not be considered ancillary services because they are optional and are not intended to be a substitute for traditional ICS calls. Securus asserts that if the Commission regulates the rates for single-call and related services, ICS providers will be forced to stop offering them, and inmates and their friends and families will have fewer calling options by which to stay in touch.
186.
187. Unlike the ancillary service charge caps adopted above, we do not find that single-call and related services are reasonably and directly related to the provision of ICS, but are ancillary to ICS. We believe that charges for single-call and related services inflate the effective price end users pay for ICS and result in excessive compensation to providers. Accordingly, for single-call and related services, the Commission will allow ICS providers to charge end users for each single call in a manner consistent with our approach to third-party financial transaction fees—
188. The record supports our reforms to fees charged for single-call and related services. We have authority to reform ancillary service charges and we therefore disagree with ICS providers that argue we lack authority. Moreover, our approach in no way interferes with contracts between ICS providers and third-party payment processors or
189. We have also heard from commenters that a major problem with single-call and related services is that customers are often unaware that other payment options are available, such as setting up an account. To help alleviate the problem of customers continually paying set up fees for single-call and related service calls, we encourage providers to make clear to consumers that they have other payment options available to them. This is consistent with our discussion and analysis regarding consumer disclosure requirements below. We will continue to monitor the use of such calling arrangements and seek specific information about them in the Further Notice of Proposed Rulemaking published elsewhere in this issue of the
190. The record in this proceeding indicates that ICS providers charge ICS end users “fees under the guise of taxes.” In an effort to ensure just, reasonable and fair ICS rates, in the
191. ICS providers are permitted to recover mandatory applicable pass-through taxes and regulatory fees, but without any additional mark-up or fees. The Commission has defined a government mandated charge as follows: “amounts that a carrier is required to collect directly from customers, and remit to federal, state or local governments.” Non-mandated charges are defined to be “government authorized but discretionary fees, which a carrier must remit pursuant to regulatory action but over which the carrier has discretion whether and how to pass on the charge to the consumer.” Commission precedent prohibits providers from placing a line item on a carrier's bill that implies a charge is mandated by the government when it is in fact, discretionary.
192. We agree that the ability to collect applicable pass-through taxes and regulatory fees without adding a markup is important and consistent with precedent. However, we reiterate that it is misleading “for carriers to state or imply that a charge is required by the government when it is the carriers' business decision as to whether and how much of such costs they choose to recover directly from consumers through a separate line item charge.” As such, we do not permit fees or charges beyond mandatory taxes and fees, and authorized fees that the carrier has the discretion to pass through to consumers without any mark up. This will help ensure, consistent with the goals of the reforms adopted in this Order, that ICS end user's rates are just, reasonable and fair because they are paying the cost of the service they have chosen and any applicable taxes or fees, and nothing more. This approach has support in the record, including from the Joint Provider Proposal and Pay Tel.
193. We reaffirm the Commission's finding in the
194. We find that the Commission has the legal authority to adopt necessary reforms to interstate, intrastate, and international ancillary service charges. In the
195. Although “ancillary services” are not defined by statute, and there is some disagreement in the record on this point, the dictionary meaning of the term “ancillary”—“providing
196. In the discussion above, we find that we have jurisdiction over
197. While the
198. To enable the Commission to take further ICS reform action, identify and track trends in the ICS market, as well as monitor compliance with the reforms adopted herein, we adopt a second, one-time Mandatory Data Collection to occur two years from publication of Office of Management and Budget (OMB) approval of the information collection. We believe it is appropriate to be able to conduct a review of the ICS market including ICS costs, rates and ancillary service charges to ensure that any regulations continue to be necessary to fulfill our statutory objectives and to ensure that any such reforms and rate caps reflect current market dynamics and costs.
199. In the
200. We find that, on balance, Petitioners' proposal for a periodic review of ICS data is not necessary at this time, nor is it the best tool for monitoring compliance with the Order. Therefore, we establish a less onerous requirement, which we anticipate will provide significant benefit at minimal cost. In lieu of the Petitioners' proposal, we adopt an approach similar to the one used by the Commission in a prior payphone order establishing the per-call rate for payphones, in which the Commission determined that it would “have to periodically review the cost-based compensation rate in order to ensure that it continues to `fairly compensate' PSPs and promote payphone competition and widespread deployment of payphones.” The Commission explained that, “[e]specially when market conditions have changed significantly, it is incumbent upon us to reexamine whether the conditions resulting in the recent Commission-prescribed rate still apply.” As with that situation, we conclude that the Commission should have the tools necessary to review the reforms that we adopt in this Order, in light of changing market conditions, to ensure that the rates continue to be just, reasonable, and fair. As explained above, ancillary service charges also significantly impact the effective rates ICS providers charge, and should therefore be part of this review.
201. To allow for consistent data reporting and to prevent duplicative filings, we direct the Bureau to develop a template for submitting the data and provide ICS providers with further instructions to implement the data collection. We direct the Bureau to complete a review of ICS costs and rates within one year from the date data is submitted, and we delegate to the Bureau authority to require an ICS provider to submit such data as the Bureau deems necessary to perform its review. Information in response to the forthcoming data collection may be filed under the
202. Several commenters have expressed concern for the lack of transparency regarding ICS rates and fees. We share the concern that ICS contracts are not sufficiently transparent and we find adequate evidence, such as numerous public records lawsuits, to support HRDC's assertion that members of the public must “unnecessarily expend time and money to obtain records” of ICS contracts. We also recognize evidence suggesting that the information regarding ICS contracts and rates that is publically available may not be reliable. Therefore, we encourage ICS providers and facilities to make their contracts publicly available.
203. Below, we provide guidance to ICS providers, correctional facilities and state regulatory bodies on the effect of the comprehensive reforms adopted herein on ICS requirements in the states and the Commission's authority to regulate these services pursuant to section 276 of the Communications Act.
204. In the
205. The rate caps and reforms adopted herein should operate as a ceiling in areas where states have not enacted reforms. This is consistent with Commission precedent in which it has determined that rates at or below a newly-enacted rate cap were not to be changed. We strongly encourage all states to evaluate additional measures to reduce and eliminate site commissions and ensure that rates for inmate calling services are as low as possible while still ensuring that robust security protocols are in place. Our actions today serve to ensure that a much-needed default framework is in place in areas where states have not acted to curb ICS rates.
206. In the
207. Several commenters support preemption, urging the Commission to establish a uniform framework for both interstate and intrastate ICS. ICS
208. Other commenters contend that the Commission lacks the authority to preempt state ICS requirements. According to the Arizona Corporation Commission (ACC), for example, “[s]ection 276 must be read in
209. NARUC and the ACC argue that our authority under section 276 is limited to interstate services, and that our regulations must be narrowly targeted to address concerns about anticompetitive conduct by incumbent local exchange carriers. We disagree. These arguments are contradicted by the plain language of section 276. As explained above, the statute provides the Commission with the authority to regulate both interstate and intrastate ICS. Similarly, although section 276 addresses potential discrimination by Bell operating companies, it also contains provisions related to other subjects, including compensation for “payphone service providers,” a group that, by definition, encompasses providers “of inmate telephone service in correctional institutions, and any ancillary services.” Furthermore, we believe that section 276's broad mandate stands in stark opposition to ACC's and NARUC's attempts to narrowly confine the Commission's ICS-related preemption authority.
210. Pay Tel urges the Commission to preempt state-imposed intrastate rates that are below the adopted caps, arguing that any rates that deviate from the Commission's caps are “by definition, `inconsistent'” and must be preempted. We disagree. The primary purpose of the rate caps we adopt today is to ensure that ICS rates are “just and reasonable” and do not take unfair advantage of inmates or their families. State requirements that result in rates below our caps advance that purpose and there is no credible record evidence demonstrating or indicating that any requirements that result in rates below our conservative caps are so low as to clearly deny providers fair compensation. Evidence in the record shows that ICS can be provided at rates at or below $0.05 a minute. We applaud the efforts some states have made to lower ICS rates and hope other states follow their lead. Our goal is affordable rates that provide fair compensation, and the federal framework we adopt today is meant to serve as a backstop to ensure rates are consistent with the statute in absence of state action.
211. We are mindful, however, of the fact that we also have a statutory obligation to ensure that payphone service providers, including ICS providers, are “fairly compensated.” If any state adopts intrastate requirements that result in providers being unable to receive fair compensation, providers may either seek appropriate relief in that state or from the Commission. We will review the relevant state requirements if they are brought to our attention in a petition and will decide at that time what, if any, remedial actions are warranted. If any party believes that a particular form of relief is called for, that party should clearly state the requested relief in a petition and set forth the legal authority for granting such relief. As noted above, section 276 explicitly grants the Commission authority to preempt state requirements to the extent they are inconsistent with FCC regulations. Accordingly, if a provider is able to demonstrate that a particular state law or requirement is inconsistent with the rules we adopt in this Order, we will, consistent with section 276, preempt the inconsistent requirement. We strongly encourage providers to seek relief from the relevant state entity before approaching the Commission, however. We also note that there is no presumption that state-mandated rates deny fair compensation simply because they are lower than our rate caps. To the contrary, as noted above, we encourage states to enact additional reforms to inmate calling service and to drive intrastate rates as low as possible, consistent with the need to ensure fair compensation, retain service quality, and maintain adequate security.
212. Consistent with the regulatory approach adopted herein, providers may be able to comply with such statutory requirements without charging rates that exceed our rate caps. Given the absence of clear evidence indicating whether there are any state laws or other requirements that, in practice, would require providers to charge rates that exceed our caps, we need not decide whether any laws currently exist that are “inconsistent” with our regulatory framework. To the extent there are state requirements, including possible contractual requirements, that make our rate caps onerous for a particular provider, the affected provider may file for preemption of the state requirement or seek a temporary waiver of the rate caps for the duration of any existing contract. We note that any waiver request should include a discussion of the provider's efforts to renegotiate the subject contracts and the outcome of such efforts. We delegate to the Bureau the authority to rule on such petitions and to seek additional information as needed. We also direct the Bureau to endeavor to complete review of any such petitions within 90 days of the provider submitting all information necessary to justify a waiver.
213. As the Commission has previously noted, ICS contracts “typically include change of law provisions.” We expect that the new rate caps and other requirements adopted in this Order constitute regulatory changes sufficient to trigger contractual change-in-law provisions that will allow ICS providers to void, modify or renegotiate aspects of their existing contracts to the extent necessary to comply with the new rate caps and/or to relieve the providers from site commission payments that would prove to be unduly onerous once this Order takes effect. The record regarding implementation of the 2013 interim rate caps indicates that such changes were implemented quickly. Indeed, the Commission has previously highlighted the fact that the record “indicates that ICS contracts are amended on a regular basis.” For
214. Parties have further argued that invoking contractual change of law provisions and engaging in renegotiations with correctional facilities would materially affect ICS providers' ability to conduct their daily business. Yet the Commission saw little such impact regarding implementation of the 2013 interim rate caps. Those rate caps affected all interstate calls throughout the country, much like today's reforms will affect calls nationwide. Our experience with the Commission's previous reforms leads us to conclude that, for ICS providers that choose to invoke existing change of law provisions—and subsequently to engage in renegotiations with the facilities they serve—any inconvenience imposed on them in doing so will not materially affect the providers' ability to conduct their day-to-day business. Finally, the negotiations for any new or renewed contracts can and should be informed by the decisions in this Order, including our adoption of new rate caps for ICS.
215. ICS providers that have entered into contracts without change-of-law provisions did so with full knowledge that the Commission's ICS proceeding has been pending since 2012. Even so, we encourage facilities to work with those ICS providers during the transition period described below which we believe provides ample time to renegotiate contracts, if necessary, to be consistent with this Order. If any provider believes it is being denied fair compensation during the transition or implementation of the reforms adopted in this Order—due, for example, to the interaction of our rate caps with the terms of the provider's existing service contracts—it may file a petition seeking a limited waiver of our new rate caps or seek preemption of the requirement to pay a site commission, to the extent that it believes that such a requirement is a state requirement and is inconsistent with the Commission's regulations. Finally, negotiations for any new or renewed contracts can and should comply with the decisions in this Order, including our limitation on site commission payments and our adoption of new rate caps.
216. We note that the contractual provisions to which a state subjects itself, or its subdivision, may reasonably be subsumed within the “state requirements” addressed by section 276(c). Therefore, if a state or a political subdivision thereof uses a contractual agreement as a vehicle to impose certain requirements regarding rates or other aspects of ICS, we would consider, on a case-by-case, fact-specific basis, preempting those requirements to the extent they are “inconsistent with the Commission's regulations” as set forth in this Order. Without deciding whether preemption is factually or legally warranted in any particular case, we note that a contrary interpretation could leave states and localities free to undermine the Commission's implementation of section 276 by doing so via a contract, rather than a state law or regulation, which result appears to be counter to Congress's objectives in enacting section 276(c). As the Commission has noted in this very proceeding, “agreements cannot supersede the Commission's authority to ensure that the rates paid by individuals who are not parties to those agreements are fair, just and reasonable.” To the extent ICS providers require waiver relief, they may take advantage of the procedures described below.
217. In the
218. In the
219. We have relied on the Mandatory Data Collection in establishing the rate caps adopted above. For the reasons previously given, we believe our rate caps are more than sufficient to allow carriers to receive fair compensation. We agree with the Petitioners that a tiered rate cap approach, as adopted herein, will reduce the need for waivers. We recognize, however, that we cannot foreclose the possibility that in certain limited instances, our rate caps may not be sufficient for certain providers. For those instances, we reaffirm the waiver standard for ICS providers adopted in the
220. We also conclude that there is insufficient evidence available at this time to support a blanket waiver to providers incurring third-party technology costs or serving high-cost facilities. The Bureau will consider waiver petitions, including those from providers claiming to serve high-cost facilities, and evaluate the details specific to such petitions on a case-by-case basis.
221. In the
222. In the
223. The Commission asked additional questions about accessible ICS in the
224. Since 2012, when the Commission first sought comment on access to ICS for inmates who are deaf or hard of hearing, the Commission has continued to receive filings expressing concern about these prisoners' lack of access to telephone services that are functionally equivalent to the services available to users of traditional voice services. The Washington Lawyers' Committee (WLC), for example, claims that correctional facilities often fail to make TRS available to inmates. Similarly, Helping Educate to Advance the Rights of the Deaf (HEARD) asserts that “deaf prisoners in several states have had no telecommunications access for several years, while deaf detainees often spend their entire time in jail with no telecommunication.” According to the Rosen Bien Galvan & Grunfeld (RBGG) law firm, its clients “routinely report that their access even to outdated and disfavored [TTYs], particularly in county jail facilities, is limited to nonexistent and that their ability to communicate with loved ones and attorneys is thereby impaired.” RBGG further asserts that, even when correctional facilities have TTYs, “they are often not actually available to our clients because they are broken, because staff does not know they exist, or because staff does not know how to use the machines.”
225. In response to the
226.
227. Section 225 of the Act requires every common carrier that provides voice services to offer access to TRS within their service areas. Accordingly, all common carriers must make available, or ensure the availability, to their customers of those types of TRS that the Commission has required to be mandatory services provided to the public. At present, the Commission mandates two forms of TRS: TTY-based TRS and speech-to-speech (STS), both of which are provided over the PSTN. We remind ICS providers of their obligations to ensure the availability and provision of these forms of TRS. Consistent with these obligations, ICS providers also may not block calls to 711, a short form dialing code that is used to access TRS provided by state-run TRS programs.
228. We note that several parties have requested that the Commission require correctional facilities to provide more “modern” forms of TRS as well, along with the equipment needed to access those services. These parties assert that TTYs are largely outdated and that videophones and captioned telephones
229. The Communications Act requires TRS to be provided “in a manner that is
230. Several inmates with communications disabilities that have commented in the record note that in some instances, using a Telecommunication Device for the Deaf (TDD) is unsatisfactory because “[o]ur family members and friends who are deaf, are no longer using the obsolete TDD system.” We reaffirm our existing policy of strongly encouraging correctional facilities to provide inmates with communication disabilities with access to TTYs, as well as equipment used for advanced forms of TRS, such as videophones and captioned telephones. In addition, we strongly encourage correctional facilities to comply with obligations that may exist under other federal laws, including Title II of the ADA, which require the provision of services to inmates with disabilities that are as effective as those provided to other inmates. Access to more advanced forms of TRS, including VRS, IP Relay, CTS, and IP CTS, may be necessary to ensure equally effective telephone services for these inmates. We recognize that some facilities have already begun providing access to alternative forms of TRS, often as the result of litigation brought under these other statutes. We strongly encourage other facilities to continue this trend voluntarily, without the need for further litigation. The Commission will monitor the implementation and access to TRS in correctional institutions and may take additional action if inmates with communications disabilities continue to lack access to functionally equivalent service.
231.
232. Given the differences between TTY and traditional voice service, several commenters argue that TTY users should be charged a discounted rate for ICS calls. The Prison Law Office, for example, has argued that if the Commission does not take into account the relatively slow speeds of TTY-based conversations, it will be “in effect placing a surcharge on deaf prisoners.” The Commission itself tentatively concluded in the
233. Neither ICS providers, nor any other commenters, dispute arguments that TTY calls are longer, and therefore more expensive to consumers than non-TTY calls. Instead, Securus merely contends that it receives no additional compensation for this type of call above its tariffed rate. GTL, for its part, generally asserts that its ICS and associated rates are “fully compliant with the requirements of the Americans with Disabilities Act, the Communications Act of 1934, as amended, and current Commission requirements.”
234. We find that the record overwhelmingly supports the conclusion that TTY calls take significantly longer than voice conversations, due to factors that include the longer time it takes the TTY user to type—rather than speak—his or her part of the conversation; the time delays that occur while the text is transmitted; and the technical difficulties that appear to affect TTY calls disproportionately compared to voice calls. TTY calls through TRS can take even longer than calls between two TTY users, because of the need for such calls to be set up before the communications assistant can connect the TTY user to the voice telephone user, and the need for the communications assistant to transcribe the spoken part of the call and relay it to the TTY user.
235. Given that there does not appear to be any dispute in the record over whether TTY calls take longer to transact than voice calls involving similar content, the question remains whether inmates with communication disabilities (or their families) should be required to pay more for ICS calls than their hearing counterparts simply because they need to rely on TTYs to communicate with their friends and relatives. As explained below, we find that it would be unfairly discriminatory to require TTY users to pay more per call than users of traditional voice telephone equipment.
236. In the
237. As for TTY-to-TTY calls, we find that, because such calls, by their nature, are of longer duration than voice calls, and because inmates with communication disabilities do not have the alternative of placing voice calls, it would be unfairly discriminatory to require TTY users to pay more per call than users of traditional voice telephone equipment. This finding is compelled not only by the evidence in the record, but also by the language of the relevant statutory provision. Section 276 requires the Commission to establish a “per call compensation plan” to ensure that payphone providers, including ICS providers, are fairly compensated for “each and every . . . call.” Such per-call compensation must be “fair” not only to the provider but also to the party paying for the call. Because of the significantly longer time that is necessarily consumed by TTY calls—as compared to the duration of voice telephone ICS calls—we conclude that, to ensure fair compensation on a per-call basis, ICS providers should offer TTY calls at lower per-minute rates than are charged for voice calls, even if such lower rates do not provide the level of
238. Accordingly, for the reasons described above, we require that the rates charged by ICS providers for TTY-to-TTY calls be no more than 25 percent of the rates the providers charge for traditional inmate calling services. We recognize that this discounted rate may not represent the same level of compensation that is provided for voice telephone calls carried over the same networks, but we have considered any additional costs that might be incurred by providers in setting the rate caps for ICS and concluded that there is enough room within the general rate caps to ensure the providers are still fairly compensated. Thus, ICS providers can expect to recover the cost of the TTY discount through the rates they charge other users, who account for the vast majority of ICS calls.
239. In setting the mandatory discount for ICS calls involving TTYs, we are cognizant of Securus' claim that it cannot track TTY calls separately from other ICS calls and that any type of TRS-related billing requirement “would be extremely time-consuming and burdensome.” If Securus, or any other ICS provider, finds it too burdensome to track TTY calls and bill customers the discounted rate for those calls, it may opt to provide TTY-to-TTY calling for free. We expect the cost of forgoing the discounted fees for the relatively small number of TTY users of ICS will be nominal and that providers will be able to recover those costs through the “cushion” we have built into our rate caps. We find that the benefit to inmates that use TTY and TRS technologies outweighs any nominal costs to ICS providers. Finally, we note that facilities and ICS providers can avoid costs related to TRS calls by allowing inmates to use IP-based forms of TRS, such as VRS, IP Relay and IP CTS. However, the record indicates that “only a handful of prisons are equipped with videophones (
240.
241. In the
242. Securus counters that “tracking of TTY is not possible” and that culling out calls would require Securus “to write a new computer application for its billing system” and “establish ‘separate databases at each correctional facility to identify inmates that may use a TTY device or call friends or family that require the use of a TTY or similar device.’ ” Securus further asserts that this difficulty is “compounded for any facility that does not use Prison Identification Numbers in association with its inmate telephone system.” Securus asserts generally that any type of TRS-related billing or call recordkeeping requirement “would be extremely time-consuming and burdensome.”
243. GTL separately asserts that the new technologies it is introducing, which are “better categorized as advanced communications services (ACS), enhanced services, or simply new technologies” are already subject to certain disability access requirements, including recordkeeping and reporting requirements. GTL is specifically referring to rule 14.31, which requires ACS providers discontinuing a product or service to create and keep records (for a two year period) relating to: (1) Their efforts to consult with individuals with disabilities; (2) the accessibility features of their products and services; and (3) the compatibility of their products and services with peripheral devices or specialized customer premise equipment commonly used to help individuals with disabilities achieve access. Additionally, ACS providers must file an annual compliance certificate with the Commission.
244. After reviewing the record, we adopt the reporting requirements proposed by HEARD and supported by NAD. Specifically, we require all ICS providers to include in the Annual Reporting and Certification filing described below: (1) The number of disability-related calls they provided; (2) the number of dropped disability-related calls they experienced; and (3) the number of complaints they received related to access to ICS by TTY and TRS users,
245. Securus' main objection to the reporting requirements appears to be related solely to the difficulty of tracking TRS calls. But the record indicates that TRS calls make up only a small portion of ICS calls. Moreover, TTY-based TRS calls require specialized equipment and/or require calling a designated number such as 711. Either scenario should facilitate tracking TTY-based TRS calls. For instance, it should not be difficult to track a relatively small number of calls made from specialized equipment located in a correctional facility. Moreover, any burdens associated with providing limited reporting on these calls are far outweighed by the benefits such reporting will offer in terms of greater transparency and heightened accountability on the part of ICS providers. For example, our reporting requirements will facilitate monitoring of issues related to TRS calls, encourage greater engagement by the advocacy community, and provide the Commission the basis to take further action, if necessary, to improve inmates' access to TRS.
246. We further address concerns regarding the burdensomeness of our reporting requirements by establishing a safe harbor that will allow ICS providers to avoid any reporting obligations if certain conditions are met. Specifically, if an ICS provider either (1) operates in a facility that allows the offering of additional forms of TRS beyond those we currently mandate or (2) has not received any complaints related to TRS calls, then it will not have to include any TRS-related reporting in the Annual Report detailed below, provided that it includes a certification from an officer of the company stating which prong(s) of the safe harbor it has met. If the facility an ICS provider serves either ceases allowing additional forms of TRS beyond those we mandate or the ICS provider begins to receive TRS-related complaints, however, it must include all required TRS reporting information in its next Annual Report. We note that a report that includes the number of TRS calls provides important context for determining whether the number of complaints or dropped calls reported by a provider is problematic. We believe that allowing these safe harbors will provide equal or superior benefits over the reporting requirements because if taken advantage of they help mitigate ICS providers' concerns over the burdens associated with reporting (although we believe these burdens are minimal), and will help drive the adoption of more modern forms of TRS by correctional facilities, which helps further the deployment of ICS as well as helps maintain or increase contact between more incarcerated persons and the outside world.
247.
248. As discussed above, we conclude that these recordkeeping requirements are necessary to foster accountability on the part of ICS providers, and will encourage providers to address problems limiting users' ability to access TRS (including TTY) via ICS. Further, the reporting requirements will give us the information we need to assess ICS providers' compliance with the requirements adopted herein, as well as those imposed by section 225.
249. We find unpersuasive the objections raised to the reporting requirements. Reporting the number of problems and complaints associated with TRS calls does not seem unduly burdensome. TRS calls make up only a small portion of ICS calls. Moreover, as noted above, TTY-based calls require specialized equipment and/or require calls to a designated number, such as 711; either scenario should allow for ease of tracking. Moreover, any burdens associated with providing limited reporting on these calls are far outweighed by the benefits such reporting will offer in terms of greater transparency and heightened accountability on the part of ICS providers. We further mitigate any potential burden from our reporting requirements by establishing safe harbors that allow ICS providers to avoid any reporting obligations if certain conditions are met, as discussed more fully above.
250. We confirm the findings in the
251. In establishing the transition, we balance the critical goal of providing necessary relief to consumers from unreasonably high ICS rates while remaining mindful of the potential impact on ICS providers and facilities to ensure a smooth transition to implement the new reforms. In designing our transition for this Order, we build on the lessons learned from implementing the 2013 ICS reforms. The record does not indicate that providers experienced difficulties implementing the rate caps within 90 days after the
252. This transition period reflects a careful balancing of the important goal of expediting relief to end users while allowing the necessary time to prepare for any impact our new rules may have on ICS providers and correctional institutions. In adopting the transition, we note as a threshold matter that the issue of ICS reform has been pending for years and, with the substantial progress made in recent years through the
253. In the
254. In response to the
255. At the other end of the spectrum, commenters advocating for a longer transition contend that longer transitions are necessary to ensure that correctional authorities and ICS providers can plan for the new regulatory regime. As discussed above, facilities have received certain inducements, such as site commissions, from ICS providers for selecting them to be the sole provider of ICS in their facilities. These commissions have been used for a variety of purposes, some of which are wholly unrelated to the provision of ICS to inmates and their families. We acknowledge that our adopted rules and requirements may affect facility budgets, and we want to ensure that those facilities have time to account for disturbances to their budgets, which is why we are not adopting an immediate transition.
256. Proponents of the shorter length transitions note that ICS providers and facilities have been on notice of upcoming changes and have successfully adjusted quickly to new rules in the past. For example, NJAID and NYU IRC explain that “[i]n New Jersey and around the country, states and localities were able to implement the 2013 Order within ninety days. Moreover, these governments have been on notice since the issuance of the First FNPRM in 2013.” Commenters advocating for shorter length transitions expressed confidence that 90 days was sufficient time to implement caps and would be the timeliest option. Indeed, some parties argued that no more than 60 days are necessary to complete the transition. Conversely, others worry that abbreviated transitions, such as 90-day transitions, will not be feasible for facilities to implement. However, other commenters point out that “[a]lmost every ICS contract has a provision for renegotiation due to changes in the regulatory environment, so no one year grace period should be required for implementation of rates and fees.” CenturyLink is concerned that a 90-day transition is not “realistic,” and advocates for a substantially longer transition period. NSA argues that a 90-day transition is not sufficient for jails, in particular. NSA notes that the sheer number of contracts to be renegotiated would require additional time to complete, specifically noting that there are “over 2000 jails in the country and only a “handful of ICS providers.” Thus, NSA explains, each ICS provider would have to renegotiate “potentially hundreds of contracts with Sheriffs and jails in a 90-day period.” According to NSA, 90 days is not enough time to allow providers to negotiate all of these contracts and for those contracts to be approved by the relevant authorities. These concerns are echoed by Praeses and others. We agree that these parties raise valid concerns regarding the time needed to transition all of the country's jails to the new rate regime. Accordingly, we adopt a six-month transition period for jails, in order to give providers and jails enough time to negotiate (or renegotiate) contracts to the extent necessary to comply with all of the rules adopted herein. We do not believe an extended transition is necessary for prisons to obtain new or revised contracts, however. There are far fewer prisons/departments of correction than jails (typically one per state) and providers are likely to prioritize negotiations with prisons over negotiations with jails, particularly given that prisons tend to house much larger inmate populations and generate significantly more ICS revenues than jails. Moreover, according to the record more than 10 prison systems already have rates at or below our rate caps. Therefore, we adopt a 90-day transition period for prisons.
257. The record reflects commenters advocating for immediate transitions and also for transition periods ranging from 90 days to up to three or four years. We find the arguments for a shorter transition period to be the most persuasive. The immediate transition and long transition options are impractical. For example, proponents of an immediate transition generally explained that longer transition periods are not necessary and would only serve to delay relief from quickly reaching inmates and their families. Despite such
258. As explained above, the record clearly shows that charges for ancillary services have increased since the
259. As explained above, our goal is to ensure a reasonable transition and minimize disruption, while providing relief to end users as quickly as possible. We have the benefit of understanding how the transition to implement the interim interstate rate caps occurred. Evidence in the record about actual transition periods calls into question protestations in the record about the excessive time it will take to renegotiate contracts, particularly for prisons. We adopt here a 90-day transition from publication in the
260. Evidence in the record indicates that some ICS providers and their customers have been acting to modify contracts in an attempt to lock in attractive terms at the expense of the ratepayers, the end users, in anticipation of this Order. We are concerned that such activity may also occur in between the adoption and effective dates of this Order. We will be vigilant in monitoring the industry during the transition period. If we observe or are made aware of evidence of price gouging or other harmful behavior through, but not limited to, increased rates, ancillary service charges, and/or site commissions, we will not hesitate to take appropriate remedial action up to and including enforcement action pursuant to our legal authority under sections 201 and 276 or referral to another appropriate agency.
261. We are concerned that parties may seek to negotiate agreements aimed at circumventing the rules we adopt in this Order, and we are particularly concerned that parties will have an incentive to do so before our new rules take effect. To minimize this type of “gaming,” we prohibit ICS providers from entering into new contracts (including contract renewals)—or negotiating amendments to existing contracts—that would require or permit providers to charge rates in excess of our adopted rate caps, impose ancillary service charges that are prohibited by this Order, or charge ancillary service charges that exceed the caps adopted in this Order. These prohibitions will take effect immediately upon publication of the Order in the
262. We find that there is good cause to make this requirement effective upon publication. There is evidence in the record that this type of gaming has already occurred in anticipation of the changes we enact in this Order. For example, a recent Securus contract requires the payment of a $4 million minimum annual guarantee (MAG), which advocates have called a “signing bonus,” and subsequent MAG payments equal to the greater of $3.5 million or 81 percent of commissionable revenues per year. In determining whether good cause exists, an agency should “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.” In this case, the rule must take effect as soon as possible in order to minimize gaming of the sort already noted in the record, and the attendant harm to prisoners and their families in the form of unjust, unreasonable, and unfair rates and fees. In these circumstances, we find that the need for immediate implementation outweighs any concerns that parties may not be afforded sufficient time to prepare for the effective date of this prohibition, particularly given that parties have long been on notice that the Commission might impose new regulations governing ICS rates and ancillary fees. We are not requiring providers to take any action; instead we are merely requiring that they refrain from taking certain steps that would effectively undermine our regulations governing rates and ancillary service charges. Accordingly, providers do not need time to prepare to meet this prohibition. Therefore, on balance, we find good cause to make this requirement effective upon publication in the
263. In the
264.
265. In its comments, CPC recommends that the Commission look to the “Alabama model,” including the “specific reporting requirements that will serve to monitor compliance with those [adopted] restrictions.” In its 2014 Further Order Adopting Revised Inmate Phone Service Rules Order, the Alabama PSC adopted a number of recordkeeping and reporting requirements. Items to be recorded and reported annually include, but are not limited, to, monthly number of local, intrastate, and interstate calls; monthly local, intrastate, and interstate minutes of use; monthly local, intrastate, and interstate call revenue, divided into collect, prepaid collect, prepaid debit, prepaid inmate calling card, and direct-billed service, divided by facility; ancillary call charges;
266. We find that a recordkeeping and reporting requirement will best serve the Commission's stated goals of ensuring that each and every ICS provider's rates and practices are just, reasonable, and fair, and that they remain in compliance with this Order. We also believe that an annual recordkeeping and reporting requirement will help the Commission capture any trends or changes in calling patterns, will facilitate any future enforcement action, and allow other interested parties the ability to monitor ICS providers' compliance with the Order. We also believe that such a requirement is necessary because the ICS industry is modernizing and will continue to change. Consistent with the Commission's approach in the
267. We thus require all ICS providers to provide, on an annual basis, categorized by facility and size of facility, the following information: First, we require all ICS providers to file their current interstate, international and intrastate ICS rates. Second, we require all ICS providers to file their current ancillary service charge amounts and the instances of use of each. Third, where an ICS provider makes site commission payments, we require the ICS provider to file the monthly amount of such payment. Fourth, for ICS providers that provided video visitation services, either as a form of ICS or not, during the reporting period, we require that they file the minutes of use and per-minute rates and ancillary service charges for those services. Fifth, as discussed in greater detail in the Disability Access section above, we also require that ICS providers report: (1) The number of disability-related calls they provided; (2) the number of problems they experienced with such calls,
268. In order to facilitate compliance with this requirement, we direct the Wireline Competition Bureau to develop a template for such annual reports and provide for confidential treatment of any particular information warranting it, consistent with our rules. We believe this will help ensure that the incoming information is provided in the most straight-forward and consistent manner. The use of such a template will also be beneficial to any interested parties that want to view the information thus encouraging increased public participation in this proceeding. Each annual report shall be submitted to the Commission by April 1st of each year, regarding the providers' interstate, international and intrastate ICS. The first annual report will be due after the Commission publishes Office of Management and Budget (OMB) approval pursuant to the Ordering Clauses below. If for example, OMB approval is granted in 2016 then the first annual report and certification (as discussed below) will be due on April 1, 2017 and cover the time period from January 1, 2016 to December 31, 2016.
269.
270. We find that such recordkeeping and reporting requirements will help monitor ICS providers' compliance with the Order, capture any trends or changes in calling patterns, and will facilitate any future enforcement action. Such a requirement is necessary because the ICS industry is modernizing and will continue to change.
271. We find very few objections raised to the reporting requirements, and none to be persuasive. Additionally, we also find no cost objections to these requirements. We have taken steps to minimize burdens on providers by adopting less burdensome recordkeeping requirements than some of those suggested by commenters. Moreover, any burdens associated with providing limited reporting on these calls are far outweighed by the benefits such reporting will offer in terms of greater transparency and heightened accountability on the part of ICS providers. Additionally, these data will guide the Commission as it evaluates next steps in the Further Notice.
272.
273. We agree with CenturyLink that “there is no need for more than a single officer to certify that the company has complied with Commission rules.” We find that, on balance, requiring more than one officer of an ICS provider to certify to compliance would be unnecessarily burdensome on some providers and is in fact, contrary to the manner in which the Commission conducts other annual certifications. Therefore we adopt CenturyLink's proposal and require one officer of each ICS provider to annually certify its companies' compliance with our adopted rules. The annual certification should be submitted at the same time as the annual report.
274.
275. In the
276. The Joint Provider Proposal, acknowledging existing requirements for providers to publish interstate rates, terms and conditions on their Web sites, offered a detailed proposal regarding notification requirements for so-called “convenience or premium payment options,” and suggested that all providers be required to “clearly and conspicuously identify the required information . . . so that it is actually noticed and understood by the customer.” Specifically, the Joint Provider Proposal suggests that an ICS provider “may provide this information to consumers (1) on its Web site, (2) in its web-posted rates, terms, and conditions, (3) orally when provided in a slow and deliberate manner and in a reasonably understandable volume, or (4) in other printed materials provided to a customer.” The providers that signed on to the Joint Provider Proposal suggest that “clear and conspicuous” means that “notice would be apparent to the reasonable customer,” and that to determine the effectiveness of the disclosure, the Commission should “consider the prominence of the disclosure in comparison to other information, the proximity and placement of the information, the absence of distracting elements, and the clarity and understandability of the text of the disclosure.” Pay Tel suggests that on a Web site, postings must list call rates and fees, as well as refund instructions. Pay Tel also suggests that the vendor Web site must provide a link to the FCC Enforcement Bureau Web site and the applicable state regulatory agency Web site. Pay Tel also suggests making facility-specific printed material available at each facility. The Commission explicitly sought comment on these proposals in the
277. In comments to the
278.
279. We do not mandate a specific format for how consumer disclosures must be made. Rather, we find that suggestions for disclosure such as those in the Joint Provider Proposal offer a reasonable framework as to how to make these disclosures. However, we note that this would not necessarily be the only framework for compliance. We will formally evaluate the reasonableness of the Joint Provider Proposal and any other disclosure formats if and when complaints arise as to the adequacy of the disclosures. We note that each failure to disclose all charges to consumers is counted as an individual violation, which should create a significant incentive for compliance. In addition, the Commission shall evaluate disclosures of all consumer charges for reasonableness, in part, on the basis of the following factors:
• Disclosure of information regarding all material charges, such as the applicable rate, any and all ancillary service charges—whether one time or recurring—including those to initiate service, and the name, definition and cost of each rate or fee;
• Use of plain language accessible to current and prospective end users;
• Description of single call and related services and disclosures making clear that consumers have less-costly options rather than single call and related services;
• Ability of end users to easily understand the disclosure;
• Timeliness of any updates/changes to the rates and fees, prior to any updates/changes;
• Availability of the disclosure in a prominent location on the ICS provider's Web site;
• Listing of the name, address, and toll-free number of the ICS provider; and
• Listing of the toll-free number for the FCC Consumer Help Center (888-225-5322).
280. Providers should already be informing customers about the total amount on a per-call basis that they will be charged so the disclosure requirements should not be onerous or a significant new burden. Indeed, the addition to our rules with respect to ancillary service charges should in fact simplify transparency, as it greatly reduces the number and variable rates of allowable ancillary service charges, and thus charges ICS providers must disclose to consumers. This information
281. The new disclosure rule discussed above falls well within the confines of the First Amendment. As explained, these disclosures serve important government purposes, ensuring that end users have accurate and accessible information about ICS providers' services. This information is central both to preventing consumer deception and to the overall deployment and operation of ICS.
282. The Supreme Court has made plain in
283. The new disclosure rule and disclosure language suggested in this Order clearly pass muster under these precedents. Preventing consumer deception in the ICS market lies at the heart of the disclosure rule we adopt today. The Commission has found that ICS providers have the incentive and ability to engage in harmful practices, as discussed above. Similarly, the suggested disclosure language is designed to prevent confusion to all consumers of the ICS providers' services, and serve to curb providers' incentives to engage in harmful practices by shedding light on the business practices of ICS providers. Accurate information about ICS provider offerings encourages consumer choice and the widespread deployment of ICS. In sum, the government interests supporting the disclosure rule (as well as the suggested disclosure language), in addition to the interest of preventing consumer deception, are substantial and justify our consumer disclosure suggestions.
284. In addition, the disclosure rule adopted in this Order meets the analysis the Supreme Court developed for commercial speech cases in
285.
286. The Commission has found that ICS providers have the incentive and ability to engage in harmful practices, as discussed above. Commenters have asked the Commission to mandate additional disclosure and transparency regarding ICS rates and fees. Similarly, these disclosure requirements are designed to prevent confusion to all consumers of the ICS providers' services, and serve to curb providers' incentives by shedding light on the business practices of ICS providers. Numerous commenters support these reforms.
287. These requirements provide key consumer benefits with minimal burden on ICS providers. Providers currently are required to post their rates publicly on their Web sites. Additionally, providers must keep this information to comply with the Mandatory Data Collection and Annual Reporting and Certification Requirements adopted herein.
288. To minimize any potential burden on providers, the Commission does not prescribe a particular format for how consumer disclosures must be made, but suggests a framework for consideration and allows providers flexibility in adopting such disclosures, thus allowing providers with maximum flexibility and minimum burden.
289. All of the rules that are adopted in this Order are designed to ensure just, reasonable, and fair ICS rates. Each of the reforms we undertake in this Order serve a particular function toward this goal. Therefore, it is our intent that each of the rules and regulations adopted herein shall be severable. We believe that ICS end users will benefit from the rates caps adopted and will also benefit separately from the adopted ancillary service charge caps. If any of the rules or regulations, or portions thereof including, for example, any portion of our rate caps and ancillary service charge rules, are declared invalid or unenforceable for any reason, it is our intent that the remaining rules shall be in full force and effect.
290. After the Commission released the
291. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
292. This Report and Order contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in the proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
293. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act.
1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA). an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Second Notice of Proposed Rulemaking (Second FNPRM) in WC Docket 12-375. The Commission sought written public comment on the proposals in the Second FNPRM, including comment on the IRFA. The Commission did not receive comments directed toward the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
294. The Second Report and Order (Order) adopted rules to ensure that interstate, intrastate, and international inmate calling service (ICS) rates in correctional institutions are just, reasonable, and fair. In the initiating
295. In this Order, the Commission adopts comprehensive reform of all aspects of ICS to correct a market failure, foster market efficiencies, encourage ongoing state reforms and ensure that ICS rates and charges comply with the Communications Act. The Order does this by addressing interstate and intrastate ICS rates, payments to correctional facilities, ancillary service charges, connection and per-call charges, flat-rate charges, harmonization with state regulations, disability access, transition periods, periodic review, mandatory data collection, waivers, and consumer protection measures such as annual certification and reporting requirements. The reforms adopted in this Order apply to ICS offered in all correctional facility types and regardless of technology used to deliver the services.
296. The Commission did not receive comments specifically addressing the rules and policies proposed in the IRFA.
297.
298.
299.
300.
301. The Commission has included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that,
302.
303.
304.
305.
306.
307.
308.
309. The Commission delegates to the Wireline Competition Bureau (Bureau) the authority to adopt a template for submitting the required data, information, and certifications.
310. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
311. The Commission needs access to data that are comprehensive, reliable, sufficiently disaggregated, and reported in a standardized manner. The Order recognizes, however, that reporting obligations impose burdens on the reporting providers. Consequently, the Commission limits its collection to information that is narrowly tailored to meet its needs.
312.
313. The information on providers' Web sites is not certified and is generally not available in a format that will provide the per-call details that the Commission requires to meet its statutory obligations. Thus, the Commission further requires each provider to annually certify its compliance with other portions of the Order. The Commission finds that without a uniform, comprehensive dataset with which to evaluate ICS providers' rates, the Commission's analyses will be incomplete. The Commission recognizes that any information collection imposes burdens, which may be most keenly felt by smaller providers, but concludes that the benefits of having comprehensive data substantially outweigh the burdens. Additionally, some of these potential burdens, such as the filing of rates currently required to be posted on an ICS provider's Web site, are minimally burdensome.
314.
315. The Commission will send a copy of the Order, including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of the Order, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Order and FRFA (or summaries thereof) will also be published in the
316.
317.
318.
319.
320.
Claims, Communications common carriers, Computer technology, Credit, Foreign relations, Individuals with disabilities, Political candidates, Radio, Reporting and recordkeeping requirements, Telecommunications, Telegraph, Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 64 as follows:
47 U.S.C. 154, 254(k); 403(b)(2)(B), (c), Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, unless otherwise noted.
As used in this subpart:
(a)
(1)
(2)
(3)
(4)
(5)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(1) Awaiting adjudication of criminal charges;
(2) Post-conviction and committed to confinement for sentences of one year or less; or
(3) Post-conviction and awaiting transfer to another facility. The term also includes city, county or regional facilities that have contracted with a private company to manage day-to-day operations; privately-owned and operated facilities primarily engaged in housing city, county or regional inmates; and facilities used to detain individuals pursuant to a contract with U.S. Immigration and Customs Enforcement;
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(a) No Provider shall charge, in the Jails it serves, a per-minute rate for Debit Calling, Prepaid Calling, or Prepaid Collect Calling in excess of:
(1) $0.22 in Jails with an ADP of 0-349;
(2) $0.16 in Jails with an ADP of 350-999; or
(3) $0.14 in Jails with an ADP of 1,000 or greater.
(b) No Provider shall charge, in any Prison it serves, a per-minute rate for Debit Calling, Prepaid Calling, or Prepaid Collect Calling in excess of:
(1) $0.11;
(2) [Reserved]
(c) No Provider shall charge, in the Jails it serves, a per-minute rate for Collect Calling in excess of:
(d) No Provider shall charge, in the Prisons it serves, a per-minute rate for Collect Calling in excess of:
(1) $0.14 after March 17, 2016;
(2) $0.13 after July 1, 2017; and
(3) $0.11 after July 1, 2018, and going forward.
(e) For purposes of this section, the initial ADP shall be calculated, for all of the Correctional Facilities covered by an Inmate Calling Services contract, by summing the total number of inmates from January 1, 2015, through January 19, 2016, divided by the number of days in that time period;
(f) In subsequent years, for all of the correctional facilities covered by an Inmate Calling Services contract, the ADP will be the sum of the total number of inmates from January 1st through December 31st divided by the number of days in the year and will become effective on January 31st of the following year.
(a) No Provider shall charge an Ancillary Service Charge other than those permitted charges listed in § 64.6000.
(b) No Provider shall charge a rate for a permitted Ancillary Service Charge in excess of:
(1) For Automated Payment Fees—$3.00 per use;
(2) For Single-Call and Related Services—the exact transaction fee charged by the third-party provider, with no markup, plus the adopted, per-minute rate;
(3) For Live Agent Fee—$5.95 per use;
(4) For Paper Bill/Statement Fee—$2.00 per use;
(5) For Third-Party Financial Transaction Fees—the exact fees, with no markup that result from the transaction.
No Provider shall charge a rate for Collect Calling in excess of $0.25 per minute, or a rate for Debit Calling, Prepaid Calling, or Prepaid Collect Calling in excess of $0.21 per minute. These interim rate caps shall sunset upon the effectiveness of the rates established in § 64.6010.
(a) No Provider shall levy or collect any charge in excess of 25 percent of the applicable per-minute rate for TTY-to-TTY calls when such calls are associated with Inmate Calling Services.
(b) No Provider shall levy or collect any charge or fee for TRS-to-voice or voice-to-TTY calls.
(a) Providers must submit a report to the Commission, by April 1st of each year, regarding interstate, intrastate, and international Inmate Calling Services for the prior calendar year. The report shall be categorized both by facility type and size and shall contain:
(1) Current interstate, intrastate, and international rates for Inmate Calling Services;
(2) Current Ancillary Service Charge amounts and the instances of use of each;
(3) The Monthly amount of each Site Commission paid;
(4) Minutes of use, per-minute rates and ancillary service charges for video visitation services;
(5) The number of TTY-based Inmate Calling Services calls provided per facility during the reporting period;
(6) The number of dropped calls the reporting Provider experienced with TTY-based calls; and
(7) The number of complaints that the reporting Provider received related to
(b) An officer or director of the reporting Provider must certify that the reported information and data are accurate and complete to the best of his or her knowledge, information, and belief.
(a) No Provider shall charge any taxes or fees to users of Inmate Calling Services, other than those permitted under § 64.6020, Mandatory Taxes, Mandatory Fees, or Authorized Fees.
No Provider shall impose a Per-Call or Per-Connection Charge on a Consumer.
No Provider shall offer Flat-Rate Calling for Inmate Calling Services.
(a) No Provider shall institute a minimum balance requirement for a Consumer to use Debit or Prepaid Calling.
(b) No Provider shall prohibit a consumer from depositing at least $50
Providers must clearly, accurately, and conspicuously disclose their interstate, intrastate, and international rates and Ancillary Service Charges to consumers on their Web sites or in another reasonable manner readily available to consumers.
Federal Housing Finance Agency.
Notice of proposed rulemaking; request for comments.
The Housing and Economic Recovery Act of 2008 (HERA) amended the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act) to establish a duty for the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, the Enterprises) to serve three specified underserved markets—manufactured housing, affordable housing preservation, and rural markets—to increase the liquidity of mortgage investments and improve the distribution of investment capital available for mortgage financing for very low-, low-, and moderate-income families in those markets. The Federal Housing Finance Agency (FHFA) is issuing and seeking comments on a proposed rule that would provide Duty to Serve credit for eligible Enterprise activities that facilitate a secondary market for mortgages related to: Manufactured homes titled as real property; blanket loans for certain categories of manufactured housing communities; preserving the affordability of housing for renters and homebuyers; and housing in rural markets. The proposed rule would establish a method for evaluating and rating the Enterprises' compliance with the Duty to Serve each underserved market.
Written comments must be received on or before March 17, 2016.
You may submit your comments, identified by regulatory information number (RIN) 2590-AA27, by any of the following methods:
•
•
•
•
Jim Gray, Manager, Office of Housing and Regulatory Policy, (202) 649-3124, or Mike Price, Senior Policy Analyst, Office of Housing and Regulatory Policy, (202) 649-3134. These are not toll-free numbers. The mailing address for each contact is: Federal Housing Finance Agency, 400 7th Street SW., Washington, DC 20219. The telephone number for the Telecommunications Device for the Hearing Impaired is (800) 877-8339.
FHFA invites comments on all aspects of this proposed rule, in addition to specific questions provided throughout, and will take all comments into consideration before issuing the final rule. Commenters do not need to answer each question. While FHFA has considered the views commenters submitted on the Duty to Serve proposed rule issued in 2010 in preparing this proposed rule, in view of the significant differences between this proposed rule and the 2010 Duty to Serve proposed rule, commenters on the previous proposed rule must submit a new comment letter on this new proposed rule for their comments to be further considered. Copies of all comments received will be posted without change, including any personal information you provide, such as your name, address, email address and telephone number, on FHFA's Web site at
The Safety and Soundness Act provides that the Enterprises “have an affirmative obligation to facilitate the financing of affordable housing for low- and moderate-income families.”
(i) The Enterprise's development of loan products, more flexible underwriting guidelines, and other innovative approaches to providing financing to each of the underserved markets (hereafter, the “loan product assessment factor”);
(ii) The extent of the Enterprise's outreach to qualified loan sellers and other market participants in each of the underserved markets (hereafter, the “outreach assessment factor”);
(iii) The volume of loans purchased by the Enterprise in each underserved market relative to the market opportunities available to the Enterprise, except that the Director shall not establish specific quantitative targets or evaluate the Enterprise based solely on the volume of loans purchased (hereafter, the “loan purchase assessment factor”); and
(iv) The amount of investments and grants by the Enterprise in projects
The Duty to Serve provisions and issues for consideration are discussed further below.
On September 6, 2008, the Director of FHFA appointed FHFA as conservator of the Enterprises in accordance with the Safety and Soundness Act to maintain the Enterprises in a safe and sound financial condition and to help assure performance of their public mission. Since the establishment of FHFA as conservator, the Enterprises have returned to profitability. Through December 31, 2014, the Enterprises have paid a total of $225 billion in dividends payments to the U.S. Department of the Treasury on the senior preferred stock.
While the Enterprises are in conservatorships, the law requires and FHFA expects them to continue to fulfill their core statutory purposes, which include their support for affordable housing. The Enterprise affordable housing goals have continued throughout the conservatorships, with modifications to the levels of the goals. FHFA now proposes a rule to implement the Enterprises' Duty to Serve underserved markets. Consistent with the conservatorships, Enterprise support for affordable housing must be accomplished within the confines of safety and soundness and the goals of conservatorship. The Enterprises' 2015 Conservatorship Scorecard requires the Enterprises to make progress in preparing to implement the Duty to Serve, prior to this rulemaking.
The rulemaking for the Duty to Serve commenced in August 2009 with FHFA's publication in the
After reviewing the comment letters on the ANPR, FHFA published in the
FHFA received 4,019 comments on the proposed rule. Commenters included: Individuals, including owners of manufactured homes; trade associations, including manufactured housing trade groups and lender trade groups; policy and housing advocacy groups, including rural housing advocacy groups, organizations representing manufactured home residents, and national and state consumer law organizations; nonprofit organizations; corporations, including manufactured housing construction companies; federal, state, and local government entities, including state and local housing finance agencies; property services groups, including property management companies; manufactured home community homeowners' associations; affordable housing developers and preservation lenders; a legal services group; Members of Congress; and both Enterprises.
FHFA has taken a new look at the issues for this new proposed rule, with the benefit of the comments received on the 2010 Duty to Serve proposed rule and subsequent input from diverse stakeholder groups. The comments and input received and the agency's intervening years of experience with the Enterprises and their operations in the underserved markets have suggested a different approach, sufficiently so that further notice and comment is necessary through this new proposed rule.
As before, the new proposed rule would not itself authorize or prohibit the Enterprises from engaging in any activity. Instead, it would authorize Duty to Serve credit for certain Enterprise activities in furtherance of their Duty to Serve obligations and would propose a framework for evaluating the Enterprises' performance.
The Enterprises' public purposes include a broad obligation to serve lower- and moderate-income borrowers. The Safety and Soundness Act establishes a duty for the Enterprises to serve very low-, low-, and moderate-income families in three specific underserved markets. All activities an Enterprise undertakes in furtherance of its Duty to Serve must be consistent with its Charter Act. Nothing in this rulemaking would permit or require an Enterprise to engage in any activity that would be otherwise inconsistent with its Charter Act or the Safety and Soundness Act.
Although the Enterprises are in conservatorships, FHFA expects them to show tangible results in each underserved market and to be a catalyst for mortgage lending to very low-, low-, and moderate-income families in each underserved market consistent with their obligations for safety and soundness. The Enterprises should expect mortgage purchases and activities pursuant to the Duty to Serve to earn a reasonable economic return, which may be less than the return earned on activities that do not serve these underserved markets.
Section 1282.32 of the proposed rule would require each Enterprise to prepare an Underserved Markets Plan identifying the activities and related objectives in each underserved market that it will pursue to serve that market.
Sections 1282.33(b), 1282.34(b), 1282.35(b), and 1282.37 of the proposed rule would specifically define the scope of the activities that could be included in an Underserved Markets Plan for an underserved market and, thus, be eligible for Duty to Serve credit as follows:
Activities eligible for Duty to Serve credit that also promote residential economic diversity would be eligible for extra credit under § 1282.37 of the proposed rule.
Each of these activities must be in full compliance with applicable federal and state law. The underserved markets and related definitions are further discussed below.
Under § 1282.32(c)(1) of the proposed rule, each Underserved Markets Plan would include activities delineated under one of the following categories:
• Statutory Activities—Activities that assist affordable housing projects under the eight affordable housing programs specifically enumerated in the Safety and Soundness Act, and any comparable state and local affordable housing programs (a category that is also specified in the Safety and Soundness Act);
• Regulatory Activities—Activities in the underserved markets that are designated as Regulatory Activities in the proposed rule; and
• Additional Activities—Other activities identified by the Enterprises in their Plans that are determined by FHFA, in reviewing the proposed Plans, to be eligible for that underserved market.
Proposed Additional Activities may include activities that support other federal, state and local programs not specifically enumerated in the proposed rule that would benefit from such support. Any such program must be eligible under one of the three specified underserved markets. If an Enterprise proposes activities to support other federal, state or local programs in its Underserved Markets Plan, the Enterprise must provide FHFA with clear information that defines the program and its eligibility under one of the three underserved markets consistent with the purpose and scope of this proposed rule. Such programs include, for example, state housing finance agency projects and local government initiatives that seek to provide affordable housing and for which Duty to Serve credit could be available.
• While overall the Enterprises must serve very low-, low-, and moderate-income families in each underserved market, any one activity may, but need not, serve more than one of the qualifying income categories. The Underserved Markets Plans must include a mix of activities serving all three income categories.
Statutory Activities and Regulatory Activities are collectively referred to as “Core Activities” in this
The proposed rule would not require an Enterprise to include every Core Activity in its Underserved Markets Plan, but the Plan must describe how the Enterprise considered each Core Activity. If an Enterprise elects not to include a Core Activity in its Plan, it must provide a detailed explanation for its decision in the Plan. There would be no restriction on the number of Additional Activities that an Enterprise may include in its Plan.
FHFA believes that specifying Core Activities for the Enterprises to consider in developing their Underserved Markets Plans, as well as providing the Enterprises the option to designate Additional Activities, will provide the most efficient ways to increase the Enterprises' presence in the three underserved markets and encourage healthy competition between the Enterprises. When one Enterprise is able to marshal its resources to better serve an underserved market, this may encourage the other Enterprise and other institutions to also consider how they could assist that market, and would demonstrate that certain products and services can be reasonably provided in the market.
Additionally, as described in this
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
1. How much discretion should the Enterprises have in selecting activities—Core Activities and Additional Activities—to serve the underserved markets?
2. Should FHFA establish specific Regulatory Activities for the underserved markets, or should the Enterprises have broad discretion to decide how to serve these markets?
3. Are the proposed Regulatory Activities, as identified in the proposed rule for each of the underserved markets and described further below, appropriate for accomplishing the Duty to Serve objectives?
Under § 1282.32(c)(2) of the proposed rule, for each activity set forth in the Underserved Markets Plan, the Plan would be required to describe one or more “Objectives”—specific, measureable tasks to be accomplished by the Enterprise. Objectives would be central to FHFA's Duty to Serve evaluation and rating process.
Examples of Objectives might include an Enterprise's plans and timetable for achieving certain goals for one of its existing activities in an underserved market, or an Enterprise's specific outreach plans for working with lenders to develop innovative programs under a particular activity. Objectives would largely take narrative form but, where appropriate, could include quantitative benchmarks. If quantitative benchmarks form part of an Objective, FHFA's evaluation criteria may include comparing the Objective's quantitative benchmark at the beginning of the evaluation period with a new quantitative benchmark for the
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Under § 1282.32(c)(3) of the proposed rule, each Underserved Markets Plan Objective would be required to incorporate one or more of the following four statutory assessment factors:
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Although the proposed rule would not establish quantitative targets, FHFA would consider the Enterprise's past performance on the volume of loans purchased in a particular underserved market relative to the volume of loans the Enterprise actually purchases in that underserved market in a given year pursuant to its Plan. In reviewing the Plan and the loan purchase assessment factor, FHFA would take into account difficulties in forecasting future performance and the need for flexibility in dealing with unexpected market changes.
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In addition to the four statutory assessment factors, the proposed rule includes a non-mandatory criterion for evaluating the Enterprises' performance on qualifying activities (described in this
Activities in each of the underserved markets would be eligible for extra credit for residential economic diversity (“qualifying activities”) except for manufactured housing communities activities, energy efficiency improvement activities, and any Additional Activities determined by FHFA as ineligible. FHFA proposes excluding manufactured housing community activities because of the lack of information on tenants' total monthly housing costs, which would be necessary for FHFA to assess the affordability of the units. Nor is the proposed proxy for determining manufactured housing community affordability, which relies on the income level of the census tract instead of on monthly housing costs, useful for estimating whether a manufactured housing community contributes to residential economic diversity. FHFA also proposes to exclude activities related to energy efficiency improvements as they typically do not relate to the siting of housing and, thus, do not appear to further residential economic diversity.
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
4. Are the requirements for Objectives discussed above appropriate, and should there be any additional requirements?
5. Should Duty to Serve credit be given under the loan products assessment factor for an Enterprise's research and development activities that may not show results in their initial phase, but which may be necessary for long-term product planning and development for underserved markets?
6. Has FHFA adequately defined the scope of extra credit for the proposed residential economic diversity activities? Has FHFA chosen the correct activities that should be excluded from qualifying for extra credit for residential economic diversity activities? Also, see description of proposed § 1282.37 and Requests for Comments.
Section 1282.32(d)(1) of the proposed rule would require the Enterprises to submit their proposed Underserved Markets Plans to FHFA at least 180 days before the termination date of the Enterprise's existing Plan, except that the Enterprise's first proposed Plan after the effective date of this regulation must be submitted to FHFA pursuant to FHFA-established timeframes and procedures.
Section 1282.32(d)(2) of the proposed rule would provide a process for public input on the Enterprises' proposed Underserved Markets Plans. A number of commenters on the 2010 Duty to Serve proposed rule suggested that the Enterprises' proposed Plans be published for comment because doing so could improve the Enterprises' and FHFA's assessment of the adequacy of the Plans. Commenters stated that public comment could add to the innovation and impact of the Duty to Serve obligations on the underserved markets. Both Enterprises opposed publishing the proposed Plans for public comment on the basis that the Plans would contain proprietary and confidential data and other information. After taking into account the commenters' opposing views, FHFA has concluded that a public input process can be implemented that would promote transparency and increase the opportunity for productive stakeholder input in the Underserved Markets Plan process, while preserving the proprietary and confidential nature of Enterprise data and information. Soliciting public input could help the Enterprises to develop information about underserved market needs and how they might be met so that the Enterprises can make better judgments in formulating their Underserved Markets Plan Activities and Objectives.
Accordingly, the proposed rule would provide that as soon as practical after an Enterprise submits its proposed Plan to FHFA for review, FHFA will post on FHFA's Web site a public version of the proposed Plan that omits proprietary and confidential data and information. The public would have 45 days to provide input on the public version of the proposed Plan. Seeking public input on the proposed Plans would encourage participation by stakeholders, including lenders, industry participants, local government, community groups, and the broader public. In its discretion, each Enterprise would make revisions to its proposed Plan based on the public input.
The proposed rule would provide that within 60 days after the end of the public input period, FHFA will inform each Enterprise of any FHFA comments on its proposed Plan. The Enterprise would be required to address those comments, as appropriate, through revisions to its proposed Plan pursuant to timeframes and procedures established by FHFA.
After FHFA is satisfied that all of its comments have been addressed, FHFA would issue a “non-objection” to the Plan. The effective date of the Plan would be January 1st of the first evaluation year for which the Plan is applicable, except for the Enterprise's first Plan after the effective date of the final rule, whose term and effective date would be determined by FHFA.
After receiving FHFA's non-objection to its Plan, an Enterprise would post the final Plan on the Enterprise's Web site with confidential and proprietary information omitted. FHFA would also post the final Plan with confidential and proprietary information omitted on FHFA's Web site.
Section 1282.32(g) of the proposed rule would permit modifications of final Underserved Markets Plans during the period of the Plans. The 2010 Duty to Serve proposed rule would not have permitted modifications. In their comments on the 2010 proposed rule, both Enterprises stated that they should be able to modify their Plans, citing the uncertainty and volatility in the mortgage markets, and the Enterprises' need to determine whether their market estimates are accurate, assess performance against goals, and update business forecasting. FHFA finds these comments persuasive.
Accordingly, the proposed rule would permit an Enterprise to modify its final Plan during its three-year term, subject to FHFA non-objection. It would also permit FHFA, in its sole discretion, to require an Enterprise to modify a final Plan. Instances in which FHFA might permit or require an Enterprise to modify its Plan include changes in market conditions (including obstacles and opportunities) or significant safety and soundness concerns that arise after an Enterprise implements its Plan. FHFA and the Enterprises may seek public input on any proposed modifications to a final Plan if FHFA determines that public input would assist its consideration of the proposed modifications. Should a final Plan be modified, the modified Plan with confidential and proprietary information omitted would be posted on the Enterprise's and FHFA's Web sites.
Enterprise new products and new activities are subject to the prior approval and prior notice requirements, respectively, that FHFA established by regulation pursuant to the Safety and Soundness Act.
FHFA specifically requests comments on the following questions (please
7. Is there an alternative mechanism to an Underserved Markets Plan that would better enable FHFA to evaluate the Enterprises' Duty to Serve obligations?
8. Should the Enterprises be required to prepare Underserved Markets Plans for terms with a period other than three years?
9. Should public input be sought on the Enterprises' proposed Underserved Markets Plans and, if so, is there a more effective approach than the proposed approach?
Very low-, low-, and moderate-income households have significant housing needs in the current environment. Manufactured housing is widely recognized as a significant source of housing for such households. In the United States, as of 2013, 6.7 million households resided in manufactured housing, or 5.8 percent of all households, according to the 2013 American Community Survey.
In developing specific proposals for Enterprise support of activities for the manufactured housing market that would receive Duty to Serve credit, FHFA took into account the needs of very low-, low-, and moderate-income families, the particular importance of manufactured housing, and the availability of its financing for these households. In determining eligible activities for the manufactured housing market, FHFA considered the safety and soundness implications for the Enterprises.
The Safety and Soundness Act provides that the Enterprises “shall develop loan products and flexible underwriting guidelines to facilitate a secondary market for mortgages on manufactured homes for very low-, low-, and moderate-income families.”
Section 1282.33(c) of the proposed rule would provide Duty to Serve credit for four specific types of activities, which would constitute Regulatory Activities that the Enterprises must address in their Underserved Markets Plans by either indicating how they choose to undertake the Regulatory Activity or the reasons why they will not undertake the Regulatory Activity. The proposed Regulatory Activities are:
1. Mortgages on manufactured homes titled as real property under the laws of the state where the home is located; and
2. Mortgages on manufactured housing communities provided that:
i. The community has 150 pads or less;
ii. The community is government-, nonprofit-, or resident-owned; or
iii. The community has certain minimum specified pad lease protections for tenants.
The Enterprises' Underserved Markets Plans may also include Additional Activities that facilitate a secondary market for mortgages on residential properties for very low-, low- and moderate-income families consisting of manufactured homes titled as real property and manufactured communities, subject to FHFA determination of whether such activities are eligible for Duty to Serve credit.
Under proposed § 1282.1, “manufactured home” would mean a manufactured home as defined in section 603(6) of the National Manufactured Housing Construction and Safety Standards Act of 1974, and implementing regulations. Manufactured homes are built entirely in the factory, transported to the site, and installed under a federal building code administered by the U.S. Department of Housing and Urban Development (HUD).
Different ownership, titling, and financing structures are available for manufactured housing, and this has a major impact on loan origination, servicing, and securitization requirements and practices. The unit may be titled and owned as personal property (chattel) or as real estate, depending on factors such as the property characteristics and state law. The borrower may or may not own the land underlying the unit. About three-fifths of manufactured housing residents who own their home also own the land on which it is sited.
The Safety and Soundness Act provides that in determining whether an Enterprise has complied with the Duty to Serve the manufactured housing market, FHFA may consider loans secured by both real and personal property.
FHFA received comments on the 2010 Duty to Serve proposed rule favoring Enterprise support for chattel financing from the manufactured housing industry, Members of Congress, and some consumer advocates. Many of these commenters noted that chattel is the far greater part of the manufactured housing market and that most manufactured housing borrowers would not have received any assistance under the 2010 Duty to Serve proposed rule. In addition, more than 3,700 individuals commented in support of chattel financing by the Enterprises, generally via form letters. Many emphasized their inability to sell their homes due to a scarcity of chattel financing for potential buyers.
The
There is no current secondary market for recent-vintage, conventional chattel loans
A 2014 white paper by the Consumer Financial Protection Bureau (CFPB) found that chattel loans have had higher interest rates (range from 50 to 500 basis points higher) and “APRs on chattel loans are about 150 basis points higher on average than for mortgages on manufactured homes,” despite the lack of economically substantial differences in income, debt-to-income ratios, credit scores, and loan-to-value ratios with real estate-titled borrowers.
There are also additional concerns about chattel loans from a secondary market perspective. The risks posed to secondary market investors by bankrupt chattel borrowers are greater than the risks posed by bankrupt real property borrowers. As discussed in a Fannie Mae prospectus:
Under certain circumstances, the security interest assigned to the trust [for the chattel loan] may become subordinate to the interests of other parties or may be vulnerable to the creditors of [the loan seller] in a bankruptcy situation. Further, even if steps are taken initially to perfect the security interests in certain of the manufactured homes, if borrowers relocate or sell their manufactured homes, the related security interests could cease to be perfected. Certain other laws, including federal and state bankruptcy and insolvency laws and general equity principles may limit or delay a lender's ability to repossess and resell the collateral.
FHFA has considered the relative opportunities, needs, and risks in addressing affordable housing needs through the chattel and real estate financing channels and has concluded that, under the proposed rule, the Enterprises may only receive Duty to Serve credit for activities related to facilitating a secondary market for mortgages on individual manufactured homes titled as real estate. While chattel loans may have some benefits for a borrower, such as being easier for the borrower to qualify for financing and having lower closing costs
The Enterprises may be able to use their market presence to expand the use of real estate financing for manufactured homes. CFPB estimates that 65 percent of borrowers who own their land financed their units as chattel rather than as real estate,
Despite these possibilities for real estate-financing of manufactured homes, FHFA is mindful that some chattel borrowers have significant financing needs now. Many current owners of chattel-financed homes are in distress because of their inability to sell their homes or refinance into more affordable loans because chattel financing is unavailable.
The Enterprises could pilot an initiative to purchase chattel loans, which could familiarize them with the risk and rewards of chattel financing and familiarize their counterparties with the types of origination, servicing, and consumer protection standards that would be required for any permanent
Under § 1282.38(b)(2) of the proposed rule, Duty to Serve credit would not be provided under any of the three underserved markets for Enterprise purchases of Home Ownership and Equity Protection Act (HOEPA) loans, which are not currently eligible for sale to the Enterprises in any event.
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
10. What existing Enterprise criteria (contained in Freddie Mac's Manufactured Homes, Publication Number 387B and Fannie Mae's Selling Guide, B5-2
11. Should Enterprise support for manufactured home loans titled as real property be a Regulatory Activity?
12. Should the Duty to Serve rule only give credit for support to manufactured home borrowers with specific needs, such as current borrowers with real estate mortgages with excessive coupon rates (and what should be considered “excessive”), or current borrowers with chattel loans who could benefit from conversion to real estate financing? If so, what kinds of needs would be appropriate?
13. Should the Enterprises receive credit for purchasing chattel loans, on an ongoing or pilot basis? If so what improvements should be made in the process for originating and servicing that would make chattel loans safer for purchase by the Enterprises and safer for borrowers?
14. Should Duty to Serve credit be available for Enterprise support of chattel-titled manufactured homes where the units are sited in manufactured housing communities for which an Enterprise has purchased the blanket loan and the blanket loan purchase qualifies for Duty to Serve credit?
15. If FHFA allows Duty to Serve credit for Enterprise support of chattel lending, should the tenant protections as described in “Manufactured Housing Communities with Tenant Protections—Proposed § 1282.33(c)(2)(iii)” below also be required? How could compliance with borrower and tenant protections be implemented and monitored within the operational systems and capacities of the Enterprises and those of their seller/servicers and other counterparties?
Section 1282.33(c)(2) of the proposed rule would provide Duty to Serve credit for Enterprise activities related to facilitating a secondary market for mortgages on certain categories of manufactured housing communities. Under the proposed rule, three specific types of activities would constitute Regulatory Activities that the Enterprises would have to address in their Underserved Markets Plans by indicating how they will undertake one or more of the activities or the reasons why they will not undertake each of the activities. These three Regulatory Activities are:
a. Support for blanket mortgages on manufactured housing communities with 150 pads or less;
b. Support for blanket mortgages on government-, nonprofit-, or resident-owned manufactured housing communities; and
c. Support for blanket mortgages on manufactured housing communities that have certain specified minimum protections for tenants in the pad leases.
Proposed § 1282.1 would define “manufactured housing community” as a tract of land under unified ownership and developed for the purpose of providing individual rental spaces for the placement of manufactured homes within its boundaries. The homes, which may be owner-occupied,
There are an estimated 50,000 to 60,000 manufactured home communities nationwide, and they typically have fewer than 200 pads.
The development of new affordable manufactured housing communities faces challenges, and the continued existence of many communities that are located closer to urban areas is threatened. Zoning constraints, permit requirements, and rising land values deter the development of new affordable communities, while providing
The other advantage of owning the land rather than the homes is that land potentially can be sold or developed for another, more profitable, purpose. If located in a developing area, an older mobile home community can become a very valuable infill location sought after by home builders or commercial property developers and easily can be repurposed with minimum demolition expense. An institutional owner may have the wherewithal to undertake a redevelopment of the land when the time is right. In fact, today's stable cash flows coupled with the possibility of a long-term land play is what motivates some institutional investors to acquire manufactured-home communities.
Fannie Mae has been purchasing blanket loans on manufactured housing communities for more than 15 years. The blanket mortgages purchased by Fannie Mae on manufactured housing communities have performed as well as other multifamily loans in its portfolio.
Freddie Mac only recently entered the manufactured housing community market, but its blanket loan program is now fully operational. To date, the blanket mortgages purchased by Freddie Mac on manufactured housing communities have performed consistently with Freddie Mac's multifamily portfolio as a whole.
Commenters on the 2010 Duty to Serve proposed rule were divided as to whether the Enterprises should receive Duty to Serve credit for supporting manufactured housing communities. Some commenters favored giving credit only for support of resident-owned manufactured housing communities, other commenters recommended giving credit for not-for-profit-owned communities, while other commenters favored giving credit for both types of communities. FHFA has considered these comments, market changes since 2010, and the housing needs of very low-, low-, and moderate-income households in developing the proposed requirements for the Duty to Serve the manufactured housing market, as further discussed below.
Section 1282.33(c)(2)(i) of the proposed rule would provide Duty to Serve credit for Enterprise activities related to facilitating a secondary market for mortgages on blanket loans on small manufactured housing communities, defined as communities with 150 pads or less, which would constitute a Regulatory Activity. Duty to Serve credit would be available for these communities regardless of the type of ownership—for-profit, government, nonprofit or resident.
Small manufactured housing communities compose the great bulk of the manufactured housing market, and are likely to be located in lower-income or rural areas.
Industry observation also indicates that local banks or credit unions frequently originate the loans obtained by smaller manufactured housing communities and hold the loans in portfolio. Although permanent financing may be available on relatively favorable terms in the current market, including less expensive loans with fixed interest rates for 5-year terms,
The manufactured housing community blanket loans that the Enterprises have purchased to date have tended to be loans on larger manufactured housing communities. Many of the blanket loans purchased are for age-restricted communities, and are for properties located in only a few states. Duty to Serve credit is not needed to provide an incentive for Enterprise support for blanket loans for well-served manufactured housing communities that are less likely to have very low-, low-, or moderate-income
FHFA understands that extra efforts by the Enterprises may be necessary to support small manufactured housing communities due to economies of scale and operational considerations.
Section 1282.33(c)(2)(ii) of the proposed rule would provide Duty to Serve credit for Enterprise activities related to facilitating a secondary market for mortgages on manufactured housing communities owned by governmental units or instrumentalities, nonprofits, or residents, which would constitute a Regulatory Activity.
The purpose of these types of manufactured housing communities is usually to serve lower-income residents. These communities tend to preserve the continued existence of the community, promote fair treatment of tenants, and help preserve permanent affordability.
Section 1282.33(c)(2)(iii) of the proposed rule would provide Duty to Serve credit for Enterprise activities related to facilitating a secondary market for blanket loans on manufactured housing communities that have certain specified minimum pad lease protections for tenants, which would constitute a Regulatory Activity.
Business practices of manufactured housing rental community owners with their tenants vary widely, as with all forms of rental housing. For example, some manufactured housing community owners have sharply raised pad rents or unexpectedly canceled leases, particularly where the land has appreciated in value due to urban sprawl.
Manufactured housing community tenants face significant costs and difficulties in relocating their units.
Pad lease protections in manufactured housing communities are generally a matter of state or local law and, thus, these protections can vary widely.
a. The lease term must be for a minimum of one year and renewable absent good cause;
b. There must be at least 30 days advance written notice of a rent increase;
c. There must be at least a five-day grace period for rent payments, and tenants must have a right to cure defaults on rent payments;
d. If the tenant defaults on rent payments, the tenant must have the right to:
i. Sell the tenant's unit without having to first relocate it out of the community;
ii. Sublease or assign the lease for the unexpired term to the new buyer of the tenant's unit without any unreasonable restraint;
iii. Post “For Sale” signs; and
iv. Have a reasonable period of time after an eviction to sell the unit; and,
e. Tenants must receive at least 120 days advance notice of a planned sale or closure of the community within which time the tenants, or an organization acting on behalf of a group of tenants, may match any bona fide offer for sale. The community owner shall consider the tenants' offer and negotiate with them in good faith.
FHFA recognizes that an individual tenant is unlikely to be able to purchase a community by himself or herself. For this reason, the pad lease protections would allow tenants 120 days to match any bona fide offer for sale, giving tenants time to form a homeowners' association or tenants' association to purchase the community.
FHFA believes that the Enterprises can use their market influence in support of the pad lease protection standards described here becoming more of a norm in the industry. An Enterprise may verify that the pad leases in a manufactured housing community being served by the Enterprise contain, at a minimum, the specified tenant protections at the time the Enterprise purchases the blanket loan by obtaining a certification to this effect from the seller/servicer. Sellers and servicers would not be expected to oversee compliance by the manufactured housing community borrowers with these pad lease provisions. Likewise, FHFA would not require that the covenants in the blanket loan provide for default in the event of non-compliance with the tenant protections by the manufactured housing community borrower. The tenants, in their discretion, would be responsible for pursuing any private relief in those instances that may be available under state law.
Some commenters on the 2010 Duty to Serve proposed rule favored tenant protections for any loan that receives Duty to Serve credit. Although the Enterprises are major participants in the manufactured housing community market and have some degree of influence, this is currently a highly competitive market. Requiring the tenant protections for the Duty to Serve eligibility of every manufactured housing community loan may simply incentivize community owners to seek funding elsewhere.
Manufactured housing communities subject to federal, state or local laws providing pad lease protections equal to or greater than those listed above would meet the requirements of the proposed rule. As an alternative to obtaining a seller/servicer certification of the pad lease protections for a community securing a loan purchased by an Enterprise, the Enterprise may verify that such laws apply to the community.
The Safety and Soundness Act provides that the Enterprises' Duty to Serve manufactured housing activities must be for very low-, low-, and moderate-income families.
Owners of manufactured housing communities are unlikely to know the incomes of all of their residents at the time a blanket loan for the community is originated or sold to an Enterprise. In order for an Enterprise's purchase of a blanket loan on a manufactured housing community to receive credit under the loan purchase assessment factor, an alternative to requiring the Enterprises to obtain the income of the tenants in the community is needed. FHFA has previously established a proxy methodology for determining affordability for the Enterprises' housing goals that uses total monthly housing costs (rents plus utility costs) instead of incomes.
For example, for a community located in a census tract where the median
For a manufactured housing community located in a census tract where the median income exceeds the median income of the area in which the census tract is located, the area median income would be divided by the median income of the census tract to generate a percentage, which would then be multiplied by the unpaid principal balance of the blanket loan. For example, if the census tract's median income is $125,000, the area median income is $100,000, and the unpaid principal balance of the loan is $1,000,000, the Enterprise would receive partial Duty to Serve credit of $800,000, as calculated in the following manner:
FHFA recognizes that under this proposed methodology, the Enterprises could receive Duty to Serve credit for purchases of mortgages on manufactured housing communities that may have some residents with incomes exceeding the area median income. The proposed methodology takes this into account through the partial credit component of the methodology. FHFA believes that the proposed methodology is a reasonable approach that will result in Duty to Serve credit being provided for manufactured housing communities that largely serve income-eligible households.
Home Mortgage Disclosure Act (HMDA) data for 2013 show that 64 percent of originations of loans on manufactured housing units were for borrowers with incomes at or below 100 percent of area median income. Forty-eight percent of these borrowers were very low- or low-income.
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
16. Are there other segments of the manufactured housing market besides those discussed above that warrant Enterprise support under the Duty to Serve, such as communities located in lower-income or economically distressed areas?
17. Is the proposed limit of 150 pads for an eligible small manufactured housing community appropriate? Is there a different threshold that could better achieve the purposes of the Duty to Serve?
18. Are the proposed pad lease protections appropriate? Should any additional pad lease protections be required for an Enterprise to receive Duty to Serve credit?
19. Should the proposed pad lease protections be required for any manufactured housing community, regardless of its ownership or size, to be eligible for Duty to Serve credit?
20. Would the proposed methodology for determining affordability effectively approximate the incomes of the community's tenants? Are there other approaches that could effectively approximate the incomes of manufactured housing community tenants to comply with the Duty to Serve family income requirements,
21. Could governing or financing documents for the community provide a proxy for resident incomes? For communities owned by governmental units or instrumentalities, would regulations, handbooks or financing documents specifying income criteria for the residents be an appropriate indicator of tenant incomes? For nonprofit-owned and resident-owned communities, would the founding documents for the community, which describe its mission as serving lower-income families, or financing agreements or other documents from funding sources specifying the required income levels of intended beneficiaries, be appropriate indicators of tenant incomes? Is there any comparable documentation that could be applicable to communities with for-profit owners,
22. Where the loan seller knows the incomes of the tenants of a manufactured housing community at the time an Enterprise purchases the
23. Are there other loan programs, terms or lending criteria that, if adopted, could increase Enterprise purchases of blanket loans on manufactured housing communities?
24. Should FHFA address geographic diversity of the Enterprises' assistance for manufactured housing as part of the Duty to Serve manufactured housing community financing needs, and if so, how?
25. Since manufactured housing community acquisition loans may support large sales prices on existing communities which, in turn, may drive increases in pad rents and render the communities unaffordable to lower-income households, should acquisition loans be ineligible for Duty to Serve credit? Are there particular instances where acquisition loans benefit very low-, low-, and moderate-income households?
26. Would Enterprise refinance loans be particularly helpful to residents because they are long-term, fixed rate and relatively low-cost, which reduces the pressure on community owners to increase pad rents?
The Safety and Soundness Act provides that the Enterprises “shall develop loan products and flexible underwriting guidelines to facilitate a secondary market to preserve housing affordable to very low-, low-, and moderate-income families,” including housing projects subsidized under certain specified federal grant, subsidy and mortgage insurance programs enumerated in the Act.
In addition, § 1282.34(d) of the proposed rule would provide Duty to Serve credit for Enterprise activities related to facilitating a secondary market for mortgages for: Existing small multifamily properties; energy efficiency improvements on existing multifamily rental properties; energy efficiency improvements on existing owner-occupied single-family properties; affordable homeownership preservation through shared equity homeownership programs; HUD's Choice Neighborhoods Initiative; and HUD's Rental Assistance Demonstration program. Under the proposed rule, each of these activities would constitute a Regulatory Activity that the Enterprises must address in their Underserved Markets Plans by describing how they will undertake the activity or explaining the reasons why they will not undertake the activity. The Plans may also include Additional Activities that support housing for very low-, low-, or moderate-income families consisting of affordable rental housing preservation and affordable homeownership preservation, subject to FHFA determination of whether such activities are eligible for Duty to Serve credit.
The Safety and Soundness Act does not define the term “preservation” for the affordable housing preservation market. Preservation strategies for affordable rental housing and homeownership differ.
For affordable rental housing, preservation is generally understood among affordable housing practitioners to mean preserving the affordability of the rents to tenants in existing properties, including preventing conversion of the properties to market rents at the end of the required long-term affordability retention periods, typically 15 years, which is also the time at which major rehabilitation of the properties is usually needed.
However, the population has been expanding while the stock of affordable rental housing has been shrinking.
FHFA specifically requests comments on whether the term “preservation” should be interpreted to allow Duty to Serve credit for Enterprise support for both the purchase of permanent construction take-out loans
Lowering energy and water use in multifamily buildings will reduce the total amount that tenants spend for the energy and water that they do use, thus reducing their utility consumption. This can be considered “preservation” under the affordable housing preservation market because housing costs are typically defined as rent plus utility costs. Thus, savings in utility consumption that reduce utility expenses may help maintain the overall affordability of rental housing for tenants. Accordingly, under the proposed rule, Enterprise support for energy and water efficiency improvements on existing multifamily properties affordable to very low-, low-, and moderate-income families would be a Regulatory Activity, provided there are verifiable, reliable projections or expectations that the improvements financed by the loan will reduce energy and water consumption by the tenant by at least 15 percent. The reduced utility costs derived from the reduced consumption must not be offset by higher rents or other charges imposed by the property owner, and the reduced
As with multifamily rental properties, preservation of affordable single-family properties (homeownership or rental) may also encompass lowering home energy costs. Lowering energy costs can help a homeowner to continue to afford mortgage payments and other housing costs and remain in the home or help a tenant afford rent. Under the proposed rule, Enterprise support for energy efficiency improvements on existing single-family, first-lien properties would be a Regulatory Activity provided there are verifiable, reliable projections or expectations that the improvements financed by the loan will reduce utility consumption by the homeowner or tenant by at least 15 percent. The reduced utility costs derived from the reduced consumption must offset the upfront costs of the improvements within a reasonable time period, and in the case of a single-family rental property, the reduced utility costs must not be offset by higher rents or other charges imposed by the property owner.
For affordable homeownership, there are no regulatory agreements similar to those with affordable rental properties that expire at the 15-year point, when preservation of the units as affordable units to lower-income tenants is in jeopardy and rehabilitation of the property is often needed. Rather, preservation for affordable homeownership entails ensuring that the price of the home is affordable over a long-term period to initial and subsequent purchasers, whether purchasing a newly constructed home or an existing home. Shared equity programs offer this type of sustainable affordable homeownership. Under the proposed rule, Enterprise support of financing under shared equity programs that involve the creation of long-term affordable homeownership would be a Regulatory Activity, as further discussed below.
The proposed rule would establish as a Regulatory Activity Enterprise support for HUD's Choice Neighborhoods Initiative (CNI).
The proposed rule would establish as a Regulatory Activity Enterprise support for HUD's Rental Assistance Demonstration (RAD) program.
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
27. Are there other options on how to interpret preservation of multifamily or single-family affordable housing that FHFA should consider?
28. Should FHFA require that preservation activities extend the property's regulatory agreement that restricts household incomes and rents for some minimum number of years, such as 10 years, beyond the date of the Enterprises' loan purchase? If so, what would be an appropriate minimum period of long-term affordability for the extended use regulatory agreement?
29. Should Enterprise purchases of permanent construction takeout loans on new affordable multifamily rental properties with extended-use regulatory agreements that will keep rents affordable for a specified long-term period, such as 15 years or more, receive credit under the affordable housing preservation market? What would be an appropriate period of long-term affordability for the extended-use regulatory agreements?
The Safety and Soundness Act provides that the Enterprises “shall develop loan products and flexible underwriting guidelines to facilitate a secondary market to preserve housing affordable to very low-, low-, and moderate-income families, including housing subsidized under” the following government programs:
• The project-based and tenant-based rental assistance programs under Section 8 of the United States Housing Act of 1937 (42 U.S.C. 1437f);
• The program under Section 236 of the National Housing Act (rental and cooperative housing for lower-income families) (12 U.S.C. 1715z-1);
• The program under Section 221(d)(4) of the National Housing Act (housing for moderate-income and displaced families) (12 U.S.C. 1715l);
• The supportive housing for the elderly program under Section 202 of the Housing Act of 1959 (12 U.S.C. 1701q);
• The supportive housing program for persons with disabilities under Section 811 of the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 8013);
• The programs under title IV of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11361
• The rural rental housing program under Section 515 of the Housing Act of 1949 (42 U.S.C. 1485);
• The low-income housing tax credit (LIHTC) under Section 42 of the Internal Revenue Code of 1986 (26 U.S.C. 42); and
• Comparable state and local affordable housing programs.
Under § 1282.34(c) of the proposed rule, Duty to Serve credit would be provided for Enterprise activities related to facilitating a secondary market for mortgages on housing under these statutorily-enumerated programs. The Enterprises would be required to address all of the statutory programs in their Underserved Markets Plans by either indicating how they choose to undertake activities under these programs or the reasons why they will not undertake activities under the programs.
Almost all the subsidized rental units covered by the statutorily-enumerated programs are targeted to very low- or low-income families. Across the country, thousands of multifamily properties with federal, state or local subsidies that serve very low- and low-income families are at risk of conversion to market rate rents.
The Enterprises currently offer specialized loan purchase programs that are designed to provide permanent financing for several of the statutorily-enumerated programs and, in particular, the Section 8 rental assistance and LIHTC programs, and they actively participate in the preservation of this housing stock. However, some of the other statutorily-enumerated programs are either grant programs or FHA full insurance programs for which there is no known role for the Enterprises' loan purchase programs and no history of their participation. The status of each program and the role that the Enterprises could play in assisting each is discussed below.
Under HUD's Section 8 rental assistance program, property owners receive rent payment subsidies from HUD covering the difference between the market rent for a unit and the tenant's rent contribution. This program has a rent affordability requirement, which is that 30 percent of the tenant's adjusted gross income contribute to rent and utilities. HUD provides rental assistance in the form of vouchers or certificates that move with the individual household, or through contractual obligations with the property owner, known as Housing Assistance Payment (HAP) contracts.
Both Enterprises purchase loans on properties with Section 8 HAP contracts or with units supported by Section 8 vouchers or certificates. Properties supported by Section 8 rental assistance represent a significant portion of the Enterprises' existing affordable housing loan purchases.
Several commenters on the 2010 Duty to Serve proposed rule stated that the Enterprises' underwriting guidelines were unnecessarily strict and limit their ability to provide adequate support for financing of Section 8-assisted properties. That is because the Enterprises do not recognize all of the Section 8 rental income in their loan underwriting and also require high reserves to protect against annual appropriations risk on HAP contracts.
Under the Section 236 program, HUD subsidizes the interest rate down to one percent on mortgages on multifamily properties, known as Interest Reduction Payments (IRP), in exchange for restrictions on the rents to affordable levels for the term of the mortgage, but no fewer than 20 years. HUD data indicate that approximately 110 properties have subsidized interest rate loans that will mature in 2015, 2016 and 2017.
HUD's Section 221(d)(4) FHA insurance program provides financing for the new construction or substantial rehabilitation of multifamily properties, and for permanent financing when construction is completed. The program does not require affordability restrictions on the rents and there are no income limits for tenants, thus properties financed under this program may, and often do, provide market-rate housing.
There is no obvious role for the Enterprises to support projects funded under the Section 221(d)(4) program other than to refinance the original loans and remove the properties from the FHA insurance program. In their comments on the 2010 Duty to Serve proposed rule, both Enterprises stated that activities related to refinancing Section 221(d)(4) loans on affordable housing properties should count towards the Duty to Serve as preservation activities if the properties are affordable and if the use agreement is extended.
Under the Requests for Comments section below, FHFA specifically requests comments on whether there are other ways the Enterprises can support properties currently funded under the Section 221(d)(4) program.
HUD's Section 202 program for low-income elderly households is a capital advance program under which HUD provides construction or rehabilitation funds and rental subsidies. Properties financed under this program have long-term use agreements for the term of the loan, which can expire upon early sale or refinancing or at loan maturity and put the properties at risk of conversion to market-rate rents. Refinancing Section 202 properties allows the owners to obtain additional funds for rehabilitation and to extend the rental subsidies and use agreements.
Most Section 202 properties are refinanced through FHA insurance programs, which offer favorable financing terms, including lower debt service coverage ratios, more favorable underwriting treatment of the rental subsidy income, higher loan-to-value ratios, and longer loan terms than are offered by conventional mortgage lenders. Thus, refinancing under the FHA insurance programs usually results in a larger loan amount and more funds available to the owner for rehabilitation and reserves.
By actively pursuing Section 202 refinancing opportunities, the
HUD's Section 811 program is a capital advance and rental assistance program for low-income disabled persons. Section 811 properties carry no debt, and HUD rental subsidies cover the difference between operating expenses and rental income;
Programs under title IV of the McKinney-Vento Homeless Assistance Act provide supportive housing grants to help homeless persons, especially homeless families with children, transition to independent living. Not-for-profit organizations that develop this supportive housing use a combination of grant and financing sources, and the projects typically do not involve debt financing. There is no obvious role for the Enterprises to support projects funded under this program and the Enterprises have never supported mortgage financing under this program. However, under the Request for Comments section below, FHFA specifically requests comments on whether there are ways the Enterprises can support this program.
Under USDA's Section 515 program, USDA provides direct loans and rental assistance to develop rental housing for low-income households in rural locations. Both Enterprises currently purchase loans originated under the Section 515 program. Under the Request for Comments section below, FHFA specifically requests comments on whether there are ways the Enterprises can extend their support for the Section 515 program.
Under the LIHTC program, investors purchase tax credits to provide equity to off-set the development costs of rental housing properties with long-term regulatory agreements that require the housing to remain affordable for very low- or low-income households. The Enterprises offer specialized loan purchase programs to refinance and rehabilitate existing LIHTC properties in conjunction with extension of their regulatory use agreements, and are an important source of financing for preservation of older LIHTC projects.
The Enterprises were significant LIHTC equity investors from the inception of the LIHTC program until the mid-2000s, but ceased investing before entering conservatorship in 2008. To date, FHFA has not approved Enterprise resumption of this activity. The LIHTC equity investment market has also changed and is now highly liquid and dominated by bank and insurance company investors. The Safety and Soundness Act provides for an investment and grants assessment factor when evaluating compliance with the Duty to Serve, and permitting the Enterprises to resume equity investments in LIHTCs would be one way to meet that assessment factor. Under the Requests for Comments section below, FHFA specifically requests comments on whether the Enterprises should resume equity investments in LIHTC projects.
In addition to the specifically enumerated programs in the Safety and Soundness Act, the Act provides that the Enterprises shall facilitate a secondary market for “comparable state and local affordable housing programs.”
Examples of comparable state and local programs for single-family affordable housing that could receive Duty to Serve credit include local neighborhood stabilization programs (NSP) that enable communities to address problems related to mortgage foreclosure and abandonment through the purchase and redevelopment of foreclosed or abandoned homes for very low-, low-, or moderate-income households. After the financial crisis, state and local government NSPs were partially funded by HUD. Most commenters on the 2010 Duty to Serve proposed rule that addressed the issue supported giving credit for Enterprise assistance to the HUD-funded NSP, as well as for other state and local foreclosure and abandonment prevention programs. FHFA believes that any NSP or other state or local foreclosure and abandonment prevention programs that benefit very low-, low-, or moderate-income families could receive Duty to Serve credit.
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
30. Are there other ways the Enterprises can support the statutorily-enumerated programs in addition to those discussed above?
31. In what ways, including potential responsible changes to their underwriting and reserve requirements, could the Enterprises prudently extend their support for Section 8-assisted properties?
32. Are there ways in which the Enterprises could extend their support for the HUD Section 236 Interest Rate Subsidy Program?
33. Are there additional ways in which the Enterprises could support properties currently funded under HUD
34. Are there other ways in which the Enterprises could support properties currently funded the HUD Section 202 Housing Program for Elderly Households?
35. Are there ways in which the Enterprises could support the HUD Section 811 Housing Program for Disabled Households?
36. Are there ways in which the Enterprises could support McKinney-Vento Homeless Assistance Act programs?
37. Are there other ways in which the Enterprises could extend their support for the USDA Section 515 Rural Housing Program?
38. Are there other federal affordable housing programs that the Enterprises could support that should receive Duty to Serve credit but that are not enumerated in § 1282.34(c) of the proposed rule?
39. What safety and soundness concerns should be considered in determining Enterprise participation in any of the programs discussed above?
40. Are there other state or local affordable housing programs for multifamily or single-family housing that the Enterprises could support that should be eligible to receive Duty to Serve credit in addition to those discussed above?
41. Should FHFA allow the Enterprises to resume LIHTC equity investments? Would the resumption of LIHTC equity investments by the Enterprises benefit the financial feasibility of certain LIHTC projects or would it substitute Enterprise equity funding for private investment capital without materially benefiting the projects?
42. If FHFA allows the Enterprises to resume LIHTC investments, should FHFA limit investments to support for difficult to develop projects in segments of the market with less investor demand, such as projects in markets outside of the assessment areas of large banks or in rural markets or for preservation of projects with expiring subsidies? Are there other issues that FHFA should consider if limiting the types of LIHTC projects appropriate for equity investment by the Enterprises?
43. If FHFA permits the resumption of LIHTC equity investments, should Duty to Serve credit be provided only for LIHTC equity investments in projects with expiring subsidies or projects in need of refinancing, or should Duty to Serve credit also be given for LIHTC equity investments in new construction projects with regulatory agreements that assure long-term rental affordability?
44. If FHFA allows the Enterprises to resume LIHTC investments, should FHFA limit such investments to those that promote residential economic diversity, for example, by investing in LIHTC properties located in high opportunity areas, as proposed to be defined in § 1282.1, to address concerns raised about the disproportionate siting of LIHTC housing (non-senior) in low-income areas and the effect on residential segregation?
45. Should FHFA consider permitting the Enterprises to act as the guarantor of equity investments in projects by third-party investors provided any such guarantee is safe and sound and consistent with the Enterprise's Charter Act? If so, what types of guarantees should the Enterprises offer?
Section 1282.34(d) of the proposed rule identifies four additional affordable housing preservation activities that would receive Duty to Serve credit. Under the proposed rule, these activities would constitute Regulatory Activities which the Enterprises must address in their Underserved Markets Plans by indicating how they plan to undertake the activity or stating the reasons why they will not. Each proposed Regulatory Activity addresses market segments for which the Enterprises already provide some level of support. Proposed § 1282.34(e) would provide that the Enterprises may also propose Additional Activities that support the financing of mortgages on residential properties for very low-, low-, or moderate-income families consisting of affordable rental housing preservation or affordable homeownership, subject to FHFA determination of whether such activities are eligible for Duty to Serve credit.
Section 1282.34(d)(1) of the proposed rule would provide Duty to Serve credit for Enterprise purchase and securitization of loan pools from smaller banks and community-based lenders, specifically, non-depository community development financial institutions, community financial institutions, and federally insured credit unions meeting an asset cap applicable to community financial institutions, where the loan pools are backed by existing small multifamily rental properties consisting of five to not more than fifty units. This activity would constitute a Regulatory Activity that the Enterprises would have to address in their Underserved Markets Plans by indicating how they choose to undertake the activity or the reasons why they will not undertake the activity.
Both Enterprises support financing for small multifamily properties through specialized retail loan programs offered through their lenders. The housing goals regulation publicly released in August 2015 established, for the first time, a subgoal for Enterprise purchases of loans on small multifamily properties that are affordable to low-income households. FHFA expects the subgoal to be met through the Enterprises' retail loan purchase activities. However, several commenters on the 2010 Duty to Serve proposed rule stated that the Enterprises should do more to support the financing needs of small multifamily properties.
Small multifamily properties are often older than larger properties, have fewer, if any, amenities, and tend to have more affordable rents. These factors make small multifamily properties an important source of affordable rental housing and they can also make financing more difficult to obtain. As discussed in the Notice accompanying the final housing goals rule, much of the financing needs of small multifamily property owners are met through loans provided by smaller local and regional banks, and by community-based lenders. Most of these loans are originated for the lenders' own portfolios and the lenders may cease making small multifamily property loans when their portfolio capacity has been reached.
To encourage the Enterprises to expand their support for this market segment, the proposed rule would provide Duty to Serve credit for Enterprise purchases and securitization of loan pools from non-depository community development financial institutions, community financial institutions, and federally insured credit unions meeting an asset cap applicable to community financial institutions, where the loan pools are backed by existing small multifamily rental properties consisting of five to not more than fifty units.
Section 1282.1 of the proposed rule would define “community development financial institution” and “community financial institution” in accordance with the definitions in FHFA's regulation on Federal Home Loan Bank membership. The membership regulation defines a “community development financial institution” as an institution that is certified as a community development financial institution by the Community Development Financial Institutions Fund under the Community Development Banking and Financial
Section 1282.1 of the proposed rule would define a “federally insured credit union” in accordance with the definition of “insured credit union” in the Federal Credit Union Act.
Over time, a reliable secondary market for loans on small multifamily properties could develop to provide these originating lenders with additional liquidity. Thus, the Duty to Serve regulation could complement the housing goals regulation by encouraging greater and more comprehensive Enterprise support for the liquidity needs of small multifamily properties.
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
46. Are there other affordable housing preservation activities for small multifamily properties beyond those discussed above that should receive Duty to Serve credit?
47. Should an Enterprise's purchase and securitization of loan pools from non-depository community development financial institutions, community financial institutions, and federally insured credit unions subject to the asset cap, where the loan pools are backed by existing small multifamily properties, be a Regulatory Activity?
48. How could the Enterprises provide further support for the financing or liquidity needs of small multifamily properties? Should another type of support for small multifamily properties be a specific Regulatory Activity?
49. How could the Enterprises provide support for the liquidity needs of smaller banks and community-based lenders that finance small multifamily properties, for example by buying and securitizing loan pools these lenders have originated? What kind of Enterprise support would encourage these types of lenders to increase their financing of these properties?
50. Do the proposed definitions of “community development financial institution,” “community financial institution,” and “federally insured credit union” subject to the asset cap sufficiently capture smaller banks and community-based lenders for Duty to Serve purposes?
Section 1282.34(d)(2) of the proposed rule would provide Duty to Serve credit for Enterprise support for energy and water efficiency improvements on existing multifamily properties affordable to very low-, low-, and moderate-income families, provided there are verifiable, reliable projections or expectations that the improvements financed by the loan will reduce energy and water consumption by the tenant by at least 15 percent, the reduced utility costs derived from reduced consumption must not be offset by higher rents or other charges imposed by the property owner, and the reduced utility costs will offset the upfront costs of the improvements within a reasonable time period. This activity would constitute a Regulatory Activity that the Enterprises would have to address in their Underserved Markets Plans by indicating how they choose to undertake the activity or the reasons why they will not undertake the activity.
Improved energy efficiency and reduced energy consumption in multifamily housing is a broadly acknowledged public policy goal. Energy expenses, principally in the form of heating, cooling, water consumption and electricity use (collectively, utilities) consume a growing part of the incomes of very low-, low-, and moderate-income households. When these high utility costs are added to the cost of rent, multifamily housing becomes increasingly unaffordable. In recent years, energy cost increases in multifamily housing have outpaced rent increases (which have significantly exceeded the rate of inflation). A 2011 HUD study found that while average rents increased by 7.6 percent from 2001 to 2009, energy costs to renters increased by almost 23 percent during this same period.
Lowering energy and water use in multifamily buildings will reduce the total amount that tenants spend for the energy and water that they do use, thus reducing their utility consumption. This can be considered “preservation” under the affordable housing preservation market because housing costs are typically defined as rent plus utility costs. Thus, savings in utility consumption that reduce utility expenses may help maintain the overall affordability of rental housing for tenants. Owners of multifamily properties also benefit from energy efficiency improvements through reduced common area utility expenses, which could relieve pressure on owners to raise rents to cover increased utility costs. Owners also derive indirect benefits from unit-based energy efficiency improvements, including rendering a property more marketable to potential tenants.
Enterprise support for energy efficiency improvements could include specialized loan programs or efforts to educate lenders about the benefits of energy improvements and conservation. Given the Enterprises' market reach, they could have a significant impact on promoting energy efficiency improvements and conservation in a broad range of multifamily properties if lenders were properly educated and incented.
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
51. Should Enterprise support for multifamily properties that include energy improvements resulting in a reduction in the tenant's energy and water consumption and utility costs be a Regulatory Activity?
52. How can the Enterprises provide more outreach to lenders regarding the Enterprises' energy improvement products?
53. Should the Enterprises require the lender to verify before the closing of an energy improvement loan that there are reliable and verifiable projections or expectations that the proposed energy
54. Should the Enterprises be required to verify, after the closing of an energy improvement loan, that the energy improvements financed actually reduced the tenant's energy and water consumption and utility costs and, if so, how can they verify this?
55. What if any ongoing monitoring should be required to measure the effectiveness of financed energy improvements in reducing tenants' energy and water consumption and utility costs?
56. For the proposed requirement that the reduced utility costs will offset the upfront costs of the improvements within a reasonable time period, should a reasonable time period be defined and, if so, how?
Section 1282.34(d)(3) of the proposed rule would provide Duty to Serve credit for Enterprise support of energy efficiency improvement loans on single-family (homeownership or rental), first-lien properties affordable to very low-, low-, or moderate-income households, provided that there are verifiable, reliable projections or expectations that the improvements financed by the loans will reduce energy and water consumption by the homeowner or tenant by at least 15 percent, the reduced utility costs derived from the reduced consumption will offset the upfront costs of the improvements within a reasonable time period, and in the case of a single-family rental property, the reduced utility costs must not be offset by higher rents or other charges imposed by the property owner. This activity would constitute a Regulatory Activity that the Enterprises would have to address in their Underserved Markets Plans by indicating how they choose to undertake the activity or the reasons why they will not undertake the activity.
Studies have found that consumers earning below $20,000 a year spend 10 percent of their income on utilities compared to 6 percent spent by consumers with incomes above $70,000.
Enterprise support for single-family energy efficiency loans with resulting savings accruing to the homeowners or tenants may help lower their total housing costs and thereby help preserve affordable housing. In addition, savings from energy efficiency upgrades may be correlated with better borrower loan performance. A 2013 study found that, controlling for other loan determinants, default risks are on average 32 percent lower in energy efficient homes; some of these lower default risks may benefit very low-, low-, and moderate-income borrowers. The study also found that borrowers in energy efficient homes are 25 percent less likely to prepay their mortgages,
However, as comprehensive home energy improvements cost between $5,000 and $15,000, the upfront costs of energy efficiency improvements constitute a significant barrier to very low-, low-, and moderate-income homeowners, who generally lack significant financial resources to pay for such improvements.
Fannie Mae currently supports the financing of single-family energy efficiency improvements through its “Energy Improvement Feature” (EI Feature) and HomeStyle Renovation mortgage.
The HomeStyle Renovation mortgage enables a borrower to obtain a purchase transaction or cash-out refinance mortgage to cover the costs of energy improvements to the property. Borrowers can use purchase or refinance proceeds, of up to 50% of the “as completed” appraised value, to finance both the property and the energy improvements, as long as certain conditions are met. In all cases, the HomeStyle Renovation mortgage must be in first lien position.
Freddie Mac does not currently offer loan products specifically for single-family energy efficiency loans, but like Fannie Mae, likely purchases loans with energy efficiency components as part of its standard business.
Given the difficulty of developing functional single-family energy efficiency mortgage products, possible Objectives that could be included in an Underserved Markets Plan might focus initially on developmental actions such as: (i) Working with lenders to develop education programs to encourage energy efficiency improvement loans, including conservation programs, for very low-, low-, or moderate-income households in single-family properties; (ii) working with a wider range of locally-based lenders to encourage energy efficiency components in purchase money loans or limited cash-out refinances; and (iii) developing products that result in the
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
57. How can the Enterprises work with potential lenders to facilitate financing for energy efficiency improvement loans on single-family properties?
58. What is a reasonable time period for the reduced utility costs from energy efficiency improvements to offset the upfront costs of the improvements?
59. Should Enterprise support for single-family properties that include energy improvements resulting in a reduction in the homeowner's or tenant's energy and water consumption and utility costs be a Regulatory Activity?
60. How can the Enterprises provide more outreach to lenders regarding the Enterprises' energy improvement loan products?
61. Should the Enterprises require the lender to verify before the closing of a single-family energy improvement loan that there are reliable and verifiable projections or expectations that the proposed energy improvements will likely reduce energy and water consumption and utility costs and, if so, what standards of reliability, verifiability and likelihood of reduced consumption and costs should be required?
62. Should the Enterprises be required to verify, after the closing of a single-family energy improvement loan, that the energy improvements financed actually reduced energy and water consumption and utility costs and, if so, how can they verify this?
63. For the proposed requirement that the reduced utility costs will offset the upfront costs of the improvements within a reasonable time period, should a reasonable time period be defined and, if so, how?
Section 1282.34(d)(4) of the proposed rule would provide Duty to Serve credit for Enterprise activities related to affordable homeownership preservation through shared equity homeownership programs. Shared equity programs include programs administered by community land trusts, other nonprofit organizations, or State or local governments that:
(1) Ensure affordability for at least 30 years or as long as permitted under state law through a ground lease, deed restriction, subordinate loan or similar legal mechanism that makes residential real property affordable to very low-, low-, or moderate-income families. The legal instrument ensuring affordability must also stipulate a preemptive option to purchase the homeownership unit from the homeowner at resale to preserve the affordability of the unit for successive very low-, low-, or moderate-income families;
(2) Monitor the homeownership unit to ensure affordability is preserved over resales; and
(3) Support the homeowners to promote successful homeownership for very low-, low-, or moderate-income families.
Under the proposed rule, this activity would constitute a Regulatory Activity that the Enterprises would have to address in their Underserved Markets Plans by indicating how they choose to undertake the activity or the reasons why they will not undertake the activity.
Affordability of homeownership through shared equity programs is preserved either by:
(1) Resale restrictions through deed restrictions or ground leases administered by governmental units or instrumentalities, or nonprofit entities and designed to keep the home affordable over resales; or
(2) Subordinate loan programs, often called “shared appreciation loan programs,” that are administered by governmental units or instrumentalities, or nonprofit entities where second mortgage loans are due upon sale and typically structured with zero percent interest. Upon sale at market value, the homeowner repays the loan amount and a portion of the appreciation. The government or nonprofit entity uses its share of the appreciation to make the same home affordable to a subsequent income-eligible homebuyer. Shared equity programs utilize various legal mechanisms to preserve affordability, but all shared equity programs make home purchase affordable for a very low-, low-, or moderate-income buyer and limit the homeowner's proceeds upon resale to make the same home affordable to a subsequent income-eligible buyer.
While much of the affordable housing preservation emphasis is on rental housing, homeownership preservation is also important. Homeownership can offer advantages over renting, such as the opportunity to accumulate wealth from tenure, including repaying principal through forced savings, and greater residential control and stability,
The 2010 Duty to Serve proposed rule focused primarily on preserving affordable rental housing and not affordable homeownership. One commenter, a nonprofit engaged in homeownership work, recommended crediting shared equity homeownership activities under the Duty to Serve, citing the importance of broadening the availability of homeownership. Another commenter, a nonprofit focused on rental housing, opposed giving preservation credit to homeownership programs on the basis that it might divert attention from rental housing.
Without detracting from the importance of preserving affordable rental housing, FHFA seeks to encourage enhanced Enterprise support for a variety of shared equity options so that communities would have the flexibility to determine which, if any, shared equity approach best suits their needs and have that option eligible for Duty to Serve credit for the Enterprises. The Enterprises are uniquely positioned to help increase financing for the preservation of affordable homeownership units over the long-term by developing infrastructure that would make it easier for lenders to deliver mortgage loans on shared equity homes to the Enterprises for purchase.
Shared equity homes remain affordable for very low-, low-, or moderate-income households for at least 30 years or as long as permitted under state law, for the initial purchaser as well as for any successive income-eligible owners of the home during that period. Shared equity homeownership programs are administered by either government or nonprofit entities. These entities make home purchase affordable to the initial low- or moderate-income household, and ensure the home remains affordable to subsequent lower- or moderate-income purchasers, sale after sale.
The affordability of the home is maintained for subsequent purchasers in one of two ways. One way is to restrict the resale price of the home through a deed restriction or a ground lease designed to keep the resale price below market value so the home remains affordable over resales. A second way is to use a shared appreciation loan agreement, in which the resale price remains at the market value, but the amount of subsidy increases in a self-sustaining way to keep pace with the gap between the market value and the lower price at which the home is affordable to low- and moderate-income households. Each time the home is sold, at market rate, the program's share of equity, in the form of the shared appreciation, is retained as “public investment”,
Shared equity programs usually have requirements that the buyer use the home as a primary residence and qualify for financing, and many allow the administering government or nonprofit entity to charge modest fees that cover the cost of operating the program. The government or nonprofit entity is sometimes referred to as a “sponsor.” Under the proposed rule, the government or nonprofit sponsor would have the ongoing responsibility to monitor the home to ensure that affordability is preserved over resales, and support the homeowner where possible. Having a sponsor may also have the effect of minimizing/mitigating potential foreclosures. The proposed rule would require the sponsor to stipulate a preemptive right to purchase the unit from the homeowner at resale for a price determined by a contractual formula that would preserve affordability of the unit.
In contrast, downpayment or closing cost assistance programs, which represent another mechanism for making homeownership affordable to lower-income households, would not meet the purpose of long-term preservation of affordability under the Duty to Serve. In downpayment and closing cost assistance programs, the program sponsor provides a subsidy to the initial homebuyer as a grant, or sometimes as a forgivable loan that converts to a grant generally between five and 15 years after purchase. This assistance helps to make the purchase of a home affordable by lowering the buyer's downpayment or closing costs, usually by a smaller amount than is available through shared equity programs. While the initial homebuyer benefits from any appreciation in the value of the home, this type of assistance does not preserve long-term affordability of the home for subsequent purchasers, because these programs do not restrict the initial homebuyer's return from the sale of the property.
The three most common contractual arrangements for achieving shared equity homeownership preservation are deed restricted covenants, ground leases, and shared appreciation loans, which are described below.
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Preserving homeownership through shared equity programs helps to address the growing gap between what people can afford to pay for housing given what they earn and what they must actually pay for housing given what it costs. A longitudinal study
• Increased access to homeownership: The average household income at the time of purchase under the programs was 65 percent of the area median income and 82 percent were first-time homebuyers. On average, the homes sold for 25 percent below their fair market value to make the purchase affordable.
• Improved likelihood that homeownership would be sustained: Over 93 percent of households under the programs remained homeowners for at least five years. This contrasts with a more limited longitudinal study of households in non-shared equity purchases, which found that less than 50 percent of the first-time, low-income homebuyers in the study maintained ownership for five years.
• Reduced likelihood of foreclosure: Shared equity homeowners, all of whom were lower-income, were one-tenth as likely to be in foreclosure as homeowners in the conventional market across all incomes.
• Built wealth for homeowners: The annual rate of return on the homeowners' downpayments was 7.97 percent. Approximately 62 percent of the households went on to buy a market-rate home in the conventional market.
• Preserved affordable homeownership: The programs retained the affordability of the homes to serve the same income levels, sale after sale.
Shared equity transactions also help to stabilize property values and communities. They can provide housing at affordable prices for long-standing homeowners in the area that help to counter price escalation in gentrifying communities. In addition, shared equity transactions often provide a loss buffer in the form of the difference between the market value and the amount the buyer pays, which can reduce foreclosures, while reducing the relative amount of loss in the value of the home if foreclosure does occur. By reducing foreclosures, shared equity transactions not only improve the outcomes for homebuyers, but also help maintain values of other homes in the neighborhood, thereby enhancing outcomes for the entire community. Shared equity transactions may also permit a household to afford a home in a neighborhood with better schools or other amenities that would otherwise be unaffordable for the household. In particular, shared equity programs can make it possible for teachers, firefighters, police and other modest-income workers to buy homes in the community where they work.
One of the greatest challenges for expanding shared equity homeownership has been the difficulty of accessing conventional mortgage lending for first mortgages on homes purchased through shared equity mechanisms.
Both Enterprises have loan purchase products that can be used to varying degrees with shared equity mechanisms, including deed-restricted housing and community land trusts. However, the Enterprises could simplify their requirements for these products and make a greater effort to ensure that the requirements are widely understood. Encouraging Enterprise support for shared equity homeownership could help spur this important market.
FHFA specifically requests comments on the following questions (please identify the question by the number assigned below):
64. Are there additional ways that the Enterprises could support long-term affordable homeownership preservation?
65. Should affordable homeownership be preserved for longer than 30 years to qualify for Duty to Serve credit and, if so, for how long?
66. Should Enterprise support for affordable homeownership preservation be a Regulatory Activity?
67. How can the Enterprises provide further support for affordable homeownership preservation beyond those specified above or in the proposed rule?
Section 1282.34(d)(5) of the proposed rule would provide Duty to Serve credit for Enterprise activities supporting financing for HUD's Choice Neighborhoods Initiative (CNI).
Section 1282.34(d)(6) of the proposed rule would provide Duty to Serve credit for Enterprise activities supporting financing for HUD's Rental Assistance Demonstration (RAD) program.
According to the 2010 U.S. Census, 19.3 percent of the U.S. population lives in rural America.
Rural communities have more limited access to mortgage credit than urban areas,
Another obstacle for rural communities is the lack of local capacity to build new homes and renovate existing housing stock. There may be few or no local organizations in rural areas, especially in areas with the greatest needs that have the resources and expertise to undertake rural housing projects. Low density and the lack of volume in rural communities make it difficult for organizations to develop housing, particularly more cost-effective multifamily housing.
Rural housing stock has unique features and challenges. Rural communities are widely scattered, as are individual housing units within those communities. Dwellings may be sited on large parcels and have unique construction and design characteristics. Rural housing markets also tend to have slower housing turnover, and many have seasonal housing needs. Because of the low density of rural markets, a general lack of homogeneity in housing quality and features, and slower or seasonal market turnover, appraisals can be difficult because suitable comparable sales may be few and far between.
Manufactured housing continues to grow in importance as a rural housing choice. Most rural manufactured homes are financed as personal property (chattel), which often features higher interest rates with shorter repayment terms. However, chattel-financed manufactured homes offer an affordable option for many people in rural markets because the cost of a manufactured unit is typically lower than that of a site-built unit and does not include the cost of the underlying land, which the household may rent or already own. A household may also save money because it does not pay real estate taxes on chattel property, although it may pay personal property taxes on the unit.
USDA mortgage programs help fill some housing needs in rural areas,
The USDA Section 515 rental housing program provides funding to finance the construction of affordable multifamily rental housing in rural areas for very low-, low-, and moderate-income families, elderly persons, and persons with disabilities. An ongoing challenge is keeping these rental units in rural areas affordable and available for low-income families for two reasons in particular. First, a number of building owners that received Section 515 loans prior to December 15, 1989, are prepaying their mortgages and terminating the government affordability requirements before the end of the original loan term. (Loans made through contracts entered into on or after December 15, 1989 cannot be prepaid).
Under the definition of “rural area” in this proposed rule, which is discussed below, as of the end of 2009, 12.7 percent of Enterprise total residential mortgage loan purchases were in rural areas. As of the end of 2014, 18.5 percent of loans purchased by the Enterprises were in rural areas, representing a 46 percent increase from 2009. Of these loans, 36 percent were for families with incomes at or below 100 percent of area median income.
Difficulties in underwriting loans for rural areas can arise from slower or seasonal market turnover, widely scattered home sites, large lot sizes, and a general lack of homogeneity in the housing stock.
As part of their Duty to Serve rural markets, the Enterprises would be required to evaluate their current activities in rural areas and identify opportunities to increase those activities. This evaluation could include the Enterprises' working through federal and state programs and with local stakeholders to address liquidity needs in rural markets. At the same time, FHFA recognizes that Enterprise Duty to Serve efforts will not be able to address all housing finance needs in rural markets because of safety and soundness, property eligibility requirements, and other constraints.
The Safety and Soundness Act provides that the Enterprises “shall develop loan products and flexible underwriting guidelines to facilitate a secondary market for mortgages on housing for very low-, low-, and moderate-income families in rural areas.”
Section 1282.35(b) of the proposed rule would define eligible activities for the rural market as Enterprise activities that facilitate a secondary market for mortgages on residential properties for very low-, low-, or moderate-income families in rural areas. Section 1282.1 of the proposed rule would define “rural area” as (1) a census tract outside of a metropolitan statistical area (MSA), as designated by OMB, or (2) a census tract that is in an MSA but outside of the MSA's Urbanized Areas (UAs) and Urban Clusters (UCs), as designated by USDA's RUCA codes. The proposed definition of “rural area,” which is further discussed below, is intended to give the Enterprises broad flexibility to undertake and receive Duty to Serve credit for activities in rural markets.
The Enterprises are an important source of liquidity to rural markets. As noted above, the Enterprises have increased their purchases of mortgage loans in rural markets over the past five years and have expanded their outreach to community banks and other rural lenders over the past year. Nevertheless, there continues to be a need for outreach, support and capacity-building
The Enterprises' Underserved Markets Plan Activities could include, for example, modifying their underwriting of guidelines for rural loans eligible for purchase, increasing their rural loan purchases, and developing strategies for extending education, outreach and technical assistance to small and rural lenders and other entities, including nonprofit and for-profit organizations, serving rural markets. Plan Activities could also include Enterprise marketing of their products to lenders in rural areas in an effort to increase the number of approved lenders in those areas, or Enterprise purchases or other assistance with mortgages guaranteed under USDA programs or other residential mortgages in rural areas.
The Enterprises' Underserved Markets Plans may also include Additional Activities that support the financing of residential properties for very low-, low-, or moderate-income families in rural areas, subject to FHFA determination of whether such activities are eligible for Duty to Serve credit.
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
68. What types of barriers exist to rural lending for housing and how can the Enterprises best address them?
69. What types of Enterprise activities could help build institutional capacity and expertise among market participants serving rural areas?
A definition of “rural area” is necessary so that FHFA can evaluate the Enterprises' activities in rural markets and measure their performance under their Underserved Markets Plans. There is no single, universally accepted definition of “rural area” because varying definitions achieve different policy objectives.
FHFA considered several criteria in developing a “rural area” definition. Many rural residents live in the outlying counties of metropolitan areas. Accordingly, FHFA's “rural area” definition for Duty to Serve purposes should be broad enough to include such counties. Additionally, because of the effect the definition would have on the Enterprises' three-year Underserved Markets Plans and activities creditable under those Plans, a “rural area” definition for the Duty to Serve must allow areas under the definition to remain stable over time. Other agencies' definitions of rural areas may be subject to annual or more frequent changes that may revise the definition and the areas included in the definition, based on policy objectives for particular programs. A “rural area” definition suitable for the Duty to Serve should also be census tract-based to allow for customization, ease of implementation and operational use by incorporating existing Enterprise geocoding systems, which use census tracts.
In developing its definition of “rural area,” FHFA considered the criteria discussed above, other agency definitions of “rural,” and comments received on the 2010 Duty to Serve proposed rule, as discussed below.
The Housing Act of 1949 defines “rural” and “rural area” generally as: Any open country, or any place, town, village, or city which is not part of or associated with an urban area and which: (1) Has a population not in excess of 2,500 inhabitants, or (2) has a population in excess of 2,500 but not in excess of 10,000 if it is rural in character, or (3) has a population in excess of 10,000 but not in excess of 20,000, and (A) is not contained within a standard MSA, and (B) has a serious lack of mortgage credit for lower and moderate-income families, as determined by the Secretaries of Agriculture and HUD.
Commenters on the 2010 Duty to Serve proposed rule generally favored using the USDA definition for the Duty to Serve. Several nonprofit organizations stated that the USDA definition is sufficiently broad to cover almost all rural areas, and some stated that it should be used for the sake of consistency. However, one Enterprise commented that the USDA definition presents unacceptable operational risks and recommended consideration of other methodologies, possibly using a combination of classifications. The Enterprise stated that unless the USDA maintains accessible archives, the USDA definition would prohibit replication and verification of results once USDA data are updated.
The Government Accountability Office (GAO) found that because MSAs contain both urban and rural areas and have increased substantially in both size and number in recent decades, they may not be good determinants of urban-rural distinctions.
However, one USDA indicator of rurality was found to be particularly useful in constructing FHFA's definition of “rural area” in the proposed rule. This is USDA's RUCA codes designation.
FHFA also considered CFPB's definition of “rural” used for escrow account requirements on higher-priced mortgage loans. CFPB defines “rural” as counties outside of all MSAs and outside of all micropolitan statistical areas that are adjacent to MSAs, as those terms are defined by OMB and as they are currently applied under USDA “Urban Influence Codes” (UICs) established by the USDA-Economic Research Service (ERS).
The first component of the CFPB definition for rural
The second component of the CFPB definition for rural may pose implementation and operational issues for the Enterprises, as the Enterprises rely on geocoding using census tracts rather than census blocks.
FHFA also considered the U.S. Census Bureau's metropolitan/urban and non-metropolitan/rural areas designations. The U.S. Census Bureau's urban areas designations represent densely developed territory, encompassing residential, commercial and other non-residential urban land uses. The U.S. Census Bureau designates urban areas after each decennial Census by applying specified criteria to decennial Census and other data and identifies two types of urban areas: (i) UAs of 50,000 or more people; and (ii) UCs of at least 2,500 and less than 50,000 people. The U.S. Census Bureau designates rural areas as those areas encompassing all population, housing and territory not included within a UA or UC.
After considering the various criteria, other agencies' definitions of “rural,” and the comments received on the 2010 Duty to Serve proposed rule, discussed above, FHFA is proposing to define “rural area” in § 1282.1 by combining two different geographic designations that would incorporate nonmetropolitan areas. Specifically, the proposed rule would define “rural area” as (1) a census tract outside of an MSA, as designated by OMB, or (2) a census tract that is in an MSA but outside of the MSA's UAs and UCs, as designated by USDA's RUCA codes.
FHFA's proposed definition would be census tract-based, which would be more specific than county-based or MSA-based definitions and should better distinguish between rural areas and non-rural areas without excluding outlying counties of metropolitan areas. As discussed above, USDA's RUCA codes classify census tracts using measures of population density, urbanization, and daily commuting, are clear and meaningful, and would be easy for the Enterprises to incorporate into their current operating infrastructures. In short, the Enterprises should be able to easily implement FHFA's proposed definition using their existing geocoding systems and the proposed definition should provide stability to support the multi-year Underserved Markets Plans.
FHFA specifically requests comments on the following questions (please identify each question by the number assigned below):
70. Would one of the four definitions discussed above better serve Duty to Serve objectives, and if so, why?
71. How could operational concerns about Enterprise implementation under each of the definitions be addressed?
Section 1282.35(c) of the proposed rule would provide Duty to Serve credit for Enterprise support of financing of income-eligible housing for high-needs rural regions and high-needs rural populations. Under the proposed rule, this activity would constitute a Regulatory Activity which the Enterprises would have to address in their Underserved Markets Plans by indicating how they choose to undertake the activity or the reasons why they will not undertake the activity.
Section 1282.1 of the proposed rule would define a “high-needs rural region” as any of the following regions, provided it is located in a rural area as defined in the proposed rule: (i) Middle Appalachia; (ii) The Lower Mississippi Delta; or (iii) a colonia. Section 1282.1 would define a “high-needs rural population” as any of the following populations, provided the population is located in a rural area as defined in the proposed rule: (i) members of a Federally recognized Indian tribe located in an Indian area; or (ii) migrant and seasonal agricultural workers. FHFA chose these rural regions and populations because they are characterized by a high concentration of poverty and substandard housing conditions.
The economic distress experienced in these regions and by these populations is evident in their poor housing conditions and unaffordable housing.
While these regions and populations share common housing problems, unique challenges in some regions include: A scarcity of suitable building lots and high costs of site development and access in Middle Appalachia; particular affordability problems in the Lower Mississippi Delta; title issues with contract-for-deed (installment financing) for land purchases in colonias; and title issues on Native American lands, which are tribal-owned. These regions and populations are typically assisted by government agencies, local community development corporations, housing finance agencies, and nonprofit organizations, which have helped promote economic growth and improvements in housing conditions through various projects and programs. However, these regions and populations tend to lack the public-private development and financing infrastructure necessary to sustain improvements in housing conditions. Enterprise focus on these regions and populations could help provide increased financial infrastructure that facilitates improvements in housing conditions and affordability.
The high-need regions in the proposed definition are discussed further below.
a.
Substandard housing is a particularly prevalent problem in Middle Appalachia. Eighty percent of counties in the region have higher levels of housing units with inadequate plumbing than the national level.
b.
In considering the Lower Mississippi Delta Development Act, the U.S. Senate found that the lower Mississippi River valley is the poorest, most underdeveloped region in the United States, ranking lowest by almost every economic and social indicator.
c.
In many cases, state and local jurisdictions play an important role in the level of public controls related to factors such as the initial designation of the colonias, their ongoing conditions, and the political initiative to improve their conditions. Some colonias are incorporated communities under the control of a city, some are unincorporated under the control of the county, and others may be in extra-jurisdictional territories of cities which
Lack of decent, affordable single-family and rental housing continues to be a major problem in colonias. While homeownership rates in colonias are similar to national homeownership rates, the percentage of vacant properties in colonias (12 percent) is higher than the percentage of vacant properties nationally (8.4 percent). This may reflect a lack of affordability for acquiring or sustaining ownership by a population characterized by significant poverty, household migration for available farm work, and abandonment of substandard housing. Many colonia residents typically purchase unimproved land rather than improved property, and rely on financing methods such as a contract for deed rather than a traditional mortgage.
If the full NAHA definition were applied for the Duty to Serve, the Enterprises would likely be able to receive little or no Duty to Serve credit for colonias. This is because to be eligible for purchase by the Enterprises, mortgages on residential properties must meet the Enterprises' property eligibility requirements, including project access and infrastructure, presence of site utilities, acceptable property condition, and marketability. The NAHA definition of colonia includes a requirement that the community lack a potable water supply and adequate sewage systems. The Enterprises' property eligibility requirements would not permit them to purchase mortgages on properties that lack potable water supplies and adequate sewage systems. A broader definition of “colonia” that incorporates some but not all of the elements of the NAHA definitions would provide the broadest scope for Duty to Serve credit for Enterprise purchases of mortgage loans and conducting of other activities in colonias.
Accordingly, FHFA proposes to define “colonia” for Duty to Serve purposes as an identifiable community that (A) is designated by a State or county in which it is located as a colonia; (B) is located in the State of Arizona, California, New Mexico, or Texas; and (C) is located in a U.S. census tract with some portion of the tract within 150 miles of the U.S.-Mexico border.
The high-needs populations in the proposed definition are discussed further below.
a.
Under the proposed rule, Enterprise activities serving members of Native American tribes or Alaska Native Villages (hereafter referred to as Federally recognized Indian tribes to be consistent with the legal definition used by the Bureau of Indian Affairs (BIA)) in an Indian area that is located in a rural area would be a Regulatory Activity. Section 1282.1 would define a “Federally recognized Indian tribe” in accordance with the BIA definition. BIA defines a “Federally recognized Indian tribe” as “an entity listed on the Department of Interior's list under the Federally Recognized Indian Tribe List Act of 1994, which the Secretary currently acknowledges as an Indian tribe and with which the United States maintains a government-to-government relationship.”
b.
Because of instability in their work situation, many agricultural workers have atypical and significant housing needs.
According to HAC, 85 percent of agricultural workers nationwide obtain their housing through the private market rather than through employers or public programs.
Housing arrangements for agricultural workers tend to vary by region, with the majority of East Coast agricultural workers living in employer-provided housing.
Unlike their East Coast counterparts, most agricultural workers in California find their own housing
Section 1282.1 of the proposed rule would define “migrant agricultural workers” and “seasonal agricultural workers” in accordance with the U.S. Department of Labor's (DOL) definitions.
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
72. Should Enterprise support for housing for high-needs rural regions and high-needs rural populations be a Regulatory Activity?
73. What activities could the Enterprises undertake to provide liquidity and other support to high-needs rural regions and high-needs rural populations?
74. How should FHFA define “colonia” for Duty to Serve purposes?
75. How should FHFA define “member of an Indian tribe,” “Federally recognized Indian tribe,” and “Indian Area” for Duty to Serve purposes?
76. What specific actions could the Enterprises take to assist the needs of migrant and seasonal agricultural workers?
77. Are there high-needs rural regions and/or high needs rural populations in addition to those identified above that should be included in this section, and, if so, how should they be defined to receive Duty to Serve credit?
78. How might loan sellers and the Enterprises collect data establishing that housing to be financed would specifically benefit migrant and seasonal agricultural workers?
79. Should FHFA define “high-needs populations” to include other categories of agricultural workers with high-needs housing issues in addition to seasonal and migrant agricultural workers? Should FHFA include agricultural workers in permanent annual employment in the definition?
The Safety and Soundness Act requires FHFA to separately evaluate whether each Enterprise has complied with its Duty to Serve each underserved market and to annually “rate the performance of each [E]nterprise as to the extent of compliance.”
Under the proposed rule, FHFA's criteria for evaluating an Enterprise's annual Duty to Serve compliance would be set forth in an evaluation guide. FHFA would prepare a separate evaluation guide for each Enterprise for each evaluation year. FHFA would develop the evaluation guide using the contents of the Enterprise's Plan and the assessment factors. FHFA would provide the evaluation guide to the Enterprise at least 30 days before January 1st of the evaluation year for which the guide is applicable, except that the evaluation guide for the first evaluation year after the effective date of this regulation would be delivered on a date to be determined by FHFA. The evaluation guide would be required to be posted on the respective Enterprise's Web site and on FHFA's Web site.
The evaluation guide would allocate a range of potential scoring points,
At the end of the evaluation period, FHFA would compare the evaluation guide criteria to an Enterprise's actual performance under its Plan and assign a score to each Plan activity. The score could not exceed the number of potential scoring points allocated to the Plan activity in the evaluation guide. For example, for a Plan activity that had been allocated a maximum of 10 points in the evaluation guide, FHFA might award 4 points for modest performance and 8 points for good performance. After FHFA has awarded a score to each Plan activity, FHFA would sum the scoring points for all of the Plan activities that are grouped under each underserved market. The sum of those scores would produce an overall composite score ranging from 0 to 100 for each underserved market. Therefore, each Enterprise would have three overall composite scores, one for each underserved market.
The evaluation guide would contain a table that assigns overall composite score numerical ranges for each underserved market to each of the following four overall ratings: “Exceeds,” “High Satisfactory,” “Low Satisfactory,” and “Fails.” The four numerical ranges assigned to the overall ratings would include all whole numbers from 0 to 100 with no overlap. An Enterprise's overall rating for each underserved market would be determined by the numerical range within which the Enterprise's overall composite score falls. For example, if the table provides that an overall composite score of between 90 and 100 corresponds to an “Exceeds” rating, then an overall composite score of 93 for a particular underserved market would receive an “Exceeds” rating for that underserved market in that evaluation year. The same table range would apply to each underserved market. A rating of “Exceeds,” “High Satisfactory,” or “Low Satisfactory” would constitute compliance with the Duty to Serve the underserved market. A rating of “Fails” would constitute noncompliance with the Duty to Serve the underserved market.
The 2010 Duty to Serve proposed rule would have established a two-tier evaluation system of “In compliance” or “Noncompliance” for Enterprise performance under each underserved market. In addition, it would have required FHFA to annually assign a rating of “Satisfactory” or “Unsatisfactory” to Enterprise performance for each of the four statutory assessment factors in each of the underserved markets. The evaluation approach in this proposed rule differs from the approach in the 2010 proposed rule. The proposed rule's new approach to evaluations would enhance specificity by providing four distinct rating tiers instead of two, and would give FHFA the flexibility to make necessary refinements to the evaluation guide scoring process. This would enable the Enterprises to better focus their resources on areas of highest Duty to Serve value in a particular evaluation year and better understand FHFA's expectations.
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
80. Is there an alternative approach to evaluation of Enterprise Duty to Serve compliance that would enable FHFA to better measure the Enterprises' Duty to Serve compliance?
81. Should FHFA consider a different rating structure (
While FHFA would rely under the proposed rule on the statutory assessment factors for scoring the Enterprises' performance for each underserved market, FHFA would also grade qualifying activities within each of these markets on any activities the Enterprises planned under a non-mandatory residential economic diversity criterion. To qualify for extra credit, an activity first must be an eligible activity that contributes to an Enterprise's Duty to Serve an underserved market. Under this criterion, FHFA would evaluate the Enterprises on the extent to which their qualifying activities promote residential economic diversity in an underserved market in connection with mortgages on: (1) Affordable housing in a high opportunity area; or (2) mixed-income housing in an area of concentrated poverty.
The scoring points awarded for these qualifying activities would be treated as extra credit for an underserved market (extra credit could not move the composite score within such a market above 100 points). FHFA specifically requests comments on how the extra credit should be applied.
In § 1282.1, FHFA proposes to define “high opportunity area” as an area designated by HUD as a “Difficult Development Area” (DDA).
Outside of metropolitan areas, HUD designates DDAs at the county level, which in many instances follow single census tracts. Given the size of many counties and census tracts outside of metropolitan areas, these DDAs often would not be as useful as those in metropolitan areas for purposes of identifying high opportunity areas and are even less useful for counties comprised of multiple census tracts. FHFA specifically requests comments on how to define high opportunity areas outside of metropolitan areas. Analysts have proposed a number of possible definitions that FHFA could utilize, for example, suggesting it may be possible to measure higher opportunity census
FHFA also wishes to explore whether the Enterprises can support state efforts to increase affordable housing in high opportunity areas. A number of states define such areas and provide incentives to locate housing in these areas in their Low-Income Housing Tax Credit Qualified Allocation Plans (QAPs),
In § 1282.1, FHFA proposes to define “area of concentrated poverty” as a census tract designated by HUD as a “Qualified Census Tract” (QCT) pursuant to 26 U.S.C. 42(d)(5)(B)(ii), which is generally a tract in which 50 percent of households have incomes below 60 percent of the area median income or that has a poverty rate of 25 percent or more.
In § 1282.1, FHFA proposes to define “mixed-income housing,” for purposes of residential economic diversity activities for which extra credit may be available, as a multifamily property or development that may include or comprise single-family units and serves very low-, low-, or moderate-income households where at least 25 percent of the units are affordable only to households with incomes above moderate-income levels.
FHFA also recognizes the benefit of Enterprise support for financing of affordable housing that contributes to the revitalization of areas of concentrated poverty. States are required by the LIHTC statute to give preference to projects located in QCTs when their development “contributes to a concerted community revitalization plan.”
It may be feasible to utilize other federal definitions or designations of areas with comprehensive revitalization plans. For example, FHFA could award credit for activities in areas that have received Choice Neighborhood Planning or Implementation grants, or in neighborhoods designated by HUD or USDA as Promise Zones, which denotes that they are undertaking comprehensive community revitalization.
82. Is FHFA's proposed definition of “high opportunity area” the most appropriate? Should the rule use DDAs to define high opportunity areas outside of metropolitan areas, or is there a better definition, such as a factor-based definition, that would be preferable for these areas?
83. How could FHFA incorporate state-defined high opportunity areas (or similar terms) into its definition of high opportunity area? If such state-defined areas are included, how could this be implemented by the Enterprises?
84. Should FHFA consider other or additional definitions of “area of concentrated poverty?” For example, should FHFA consider adopting a definition similar to HUD's proposed designation of census tracts by racial and ethnic concentrations of poverty (RCAPs and ECAPs), which are census tracts with a non-white population of 50 percent or more and a poverty rate that exceeds 40 percent or is three times the average tract poverty rate for the metro/micro area (whichever is lower)?
85. Should FHFA consider an alternative definition of “mixed-income?” For example, should FHFA incorporate minimum thresholds for the amount of housing affordable to very low-, low-, or moderate-income households in its definition?
86. How should the extra credit activities be evaluated and weighed generally? How should FHFA evaluate and weigh activities related to mixed-income housing in areas of concentrated poverty to incentivize a good mix of such housing?
87. How could FHFA determine whether Enterprise activities are part of or contribute to revitalization plans in areas of concentrated poverty? Are there consistent criteria FHFA could apply to determine what constitutes such a plan and whether such a plan is being implemented in an area of concentrated poverty? Are existing federal designations useful, such as the Promise Zones designation or neighborhoods that receive a CNI grant?
88. Should FHFA incorporate Enterprise efforts supporting CNI as a residential economic diversity activity, rather than as a Regulatory Activity under the affordable housing preservation market?
Sections 1282.38 and 1282.39 of the proposed rule would set forth general counting requirements for whether and how activities will receive credit under the Duty to Serve regulation. With some exceptions, the counting rules and other requirements would be similar to those in FHFA's housing goals regulation. For example, under appropriate circumstances, a single loan purchase could count toward the achievement of multiple housing goals, and in the same way, a single loan purchase could receive credit under more than one underserved market for Duty to Serve purposes. Also, consistent with the comments received on the 2010 Duty to Serve proposed rule, in most instances, FHFA would measure performance under the loan purchase assessment factor by the number of units financed by the loan purchase.
Enterprise activities under proposed § 1282.38(b) would not receive credit under any assessment factor.
Under proposed § 1282.38(b)(1), contributions to the Housing Trust Fund
Under proposed § 1282.38(b)(2), HOEPA mortgages
Under proposed § 1282.38(b)(3), mortgages on manufactured homes that are not titled as real property under the laws of the state where the property is located would not receive credit under the Duty to Serve regulation.
The proposed rule is tailored to the unique features of certain specialized activities. As previously discussed, energy efficiency improvement loans for existing multifamily rental properties would be eligible for Duty to Serve credit where there are reliable and verifiable projections or expectations that the financed improvements will reduce energy and water consumption by the tenant by at least 15 percent, the reduced utility costs derived from the reduced consumption are not offset by higher rents or other charges imposed by the property owner, and the reduced utility costs will offset the upfront costs of the improvements within a reasonable time period. Generally, subordinate liens on multifamily properties would not receive credit under the Duty to Serve regulation. However, because subordinate liens for energy efficiency improvements on existing multifamily properties address a specific need, under proposed § 1282.38(b)(4), such liens would receive credit under the Duty to Serve regulation provided they meet all other requirements in the regulation.
Under § 1282.38(b)(5), subordinate liens on single-family properties would not receive credit under the Duty to Serve regulation. This exclusion applies to all single-family subordinate loans including energy efficiency improvement loans.
As previously discussed, shared appreciation loans that meet the requirements of proposed § 1282.34(d)(4) would be eligible for Duty to Serve credit. Proprietary shared appreciation loans, where an investor receives part of the equity in exchange for making the home affordable for a single buyer only, do not preserve affordability of the unit for subsequent buyers and, therefore, would not meet the requirements of proposed § 1282.34(d)(4). Accordingly, under proposed § 1282.38(b)(6), such loans would not receive credit under the Duty to Serve regulation.
Government-insured and government-guaranteed mortgages that are otherwise eligible for inclusion would count towards the Duty to Serve, in light of the specificity of the needs targeted by the Duty to Serve and the desirability of providing the Enterprises with multiple tools to address those needs.
Enterprise activities under proposed § 1282.38(c) would not receive credit under the loan purchase assessment factor.
In order to receive credit for loan purchases, a loan must be on housing affordable to very low-, low-, or moderate income families, regardless of whether the property is owner-occupied or rental. Sections 1282.17, 1282.18 and 1282.19 of part 1282 define “affordability” for owner occupied and rental units. The tables in these sections adjust the maximum percentage of area median income based on family size and the size of the dwelling unit, as measured by the number of bedrooms.
Under § 1282.39(c) of the proposed rule, Enterprise mortgage purchases financing owner-occupied, single-family properties would be evaluated based on the income of the mortgagor(s) and the area median income at the time the mortgage was originated. Where the income of the mortgagor(s) is not available, the mortgage purchase would not receive credit under the loan purchase assessment factor.
Under proposed § 1282.39(d)(1), mortgage purchases financing single-family rental units and multifamily rental units would be evaluated based on rent and whether the rent is affordable to the income groups targeted by the Duty to Serve.
Under § 1282.39(d)(2), where a multifamily property is subject to an affordability restriction that establishes the maximum permitted income level for a tenant or a prospective tenant or the maximum permitted rent, the affordability of units in the property may be determined based on the maximum permitted income level or maximum permitted rent established under such housing program for those units.
Under proposed § 1282.39(e), when an Enterprise lacks sufficient information on the rents, the Enterprise's performance regarding the rental units may be evaluated using estimated affordability information. The estimated affordability information would be calculated by multiplying the number of rental units with missing affordability information in properties securing the mortgages purchased by the Enterprise in each census tract by the percentage of all moderate-income rental dwelling units in the respective tracts, as determined by FHFA based on the most recent decennial census. The housing goals regulation
Under proposed § 1282.39(f), FHFA would evaluate an Enterprise's volume of loans purchased on manufactured housing communities using unpaid principal balance instead of the number of dwelling units. As previously discussed, due to the lack of data on manufactured housing community residents' incomes and monthly housing costs, under proposed § 1282.39(f), the affordability of a manufactured housing community would be evaluated based on the median income of the census tract in which the manufactured housing community is located. An Enterprise would receive credit for either the total amount or a percentage of the unpaid principal balance of the mortgage financing the community.
Under proposed § 1282.40, activities such as Enterprise purchases or guarantees of mortgage revenue bonds and purchases of participations in mortgages would be treated as mortgage purchases in the same manner as they would be counted under the housing goals regulation.
FHFA specifically requests comments on the following questions (please identify the question answered by the number assigned below):
89. Under the proposed rule, when an Enterprise lacks sufficient information to determine whether a rental unit is affordable, the Enterprise may estimate affordability for the rental unit using the estimation methodology set forth in the proposed rule. Are better methods available for estimating affordability when rent information is missing?
90. Unlike the housing goals regulation, the proposed rule would not limit the number of units with missing data for which an Enterprise could estimate affordability. Should FHFA impose a limit, and if so, what limit should be imposed?
The Safety and Soundness Act provides that the Duty to Serve underserved markets is enforceable to the same extent and under the same enforcement provisions as are applicable to the Enterprise housing goals, except as otherwise provided.
Section 1282.42 of the proposed rule includes requirements for an Enterprise to submit to FHFA a housing plan, in the Director's discretion, if the Director determines that the Enterprise did not comply with its Duty to Serve a particular underserved market.
Section 1282.66 of the proposed rule would require each Enterprise to provide to FHFA two quarterly reports, one semi-annual report, and an annual report on its performance and progress toward meeting its Duty to Serve each undeserved market.
Under the 2010 Duty to Serve proposed rule, each Enterprise would have been required to provide three quarterly reports and one annual report to FHFA on its Duty to Serve performance and progress, consistent with the reporting requirements for the Enterprise housing goals. One Enterprise commented that because reporting on progress toward meeting the Duty to Serve underserved markets will take more time than reporting on the housing goals and will require input from business units throughout the Enterprise, reporting should be limited to annual submissions and the proposed quarterly reporting requirements should be eliminated. The other Enterprise commented that semi-annual reporting on Duty to Serve progress would be appropriate. The Enterprise added that, coupled with the existing quarterly reporting under the housing goals, quarterly reporting under the Duty to Serve would pose significant additional burdens on the Enterprise and its resources.
In consideration of these comments, the proposed rule would require each Enterprise to provide to FHFA two quarterly reports, one semi-annual report, and an annual report. To lessen operational concerns, FHFA would require the quarterly reports to address only performance under the loan purchase assessment factor for each underserved market. The Enterprises already have experience providing similar reports for their performance under the housing goals.
The proposed rule would require an Enterprise to report on its Duty to Serve performance for each underserved market in its semi-annual and annual reports. These two reports would be required to contain both narrative and summary statistical information for the Plan Objectives, supported by appropriate transaction-level data. In addition, an Enterprise's annual report would be required to describe the Enterprise's market opportunities for purchasing loans in each underserved market during the evaluation year, to the extent data is available. These opportunities could include market or regulatory factors that may affect lenders' decisions to retain loans in portfolio or sell them, the availability and pricing of credit enhancements from third parties, and competition from other secondary market participants.
In their comments on the 2010 Duty to Serve proposed rule, both Enterprises requested that the due date for submission of their annual Duty to Serve report to FHFA be at least 30 days later than the due date for submission of their Annual Housing Activities Report for the housing goals to FHFA. One Enterprise commented that the 60-day deadline proposed for year-end reporting on Duty to Serve performance would impact its operations and end-of-year transactions, because the timeline for completing transactions and collecting data would not only be compressed, but would occur at the same time that housing goals reporting and financial reporting are taking place. The other Enterprise commented that a staggered schedule would allow the Enterprise to strengthen the controls and processes that govern both regulatory submissions and efficiently allocate resources between them.
In recognition of these operational concerns, the proposed rule would set the due date for the annual Duty to Serve report as the date 75 days after the end of the calendar year. Because it is important that FHFA monitor the Enterprises' Duty to Serve progress on a timely basis, the proposed rule would provide that the quarterly and semi-annual reports would be due within 60 days of the end of the respective quarter.
The proposed rule would not contain any information collection requirement that would require the approval of OMB under the Paperwork Reduction Act (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
Mortgages, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, under the authority of 12 U.S.C. 4501, 4502, 4511, 4513, 4526, and 4561-4566, FHFA proposes to amend part 1282 of subchapter E of 12 CFR chapter XII, as follows:
12 U.S.C. 4501, 4502, 4511, 4513, 4526, 4561-4566.
(b) * * *
(i) Is designated by the State or county in which it is located as a colonia;
(ii) Is located in the State of Arizona, California, New Mexico, or Texas; and
(iii) Is located in a U.S. census tract with some portion of the tract within 150 miles of the U.S.-Mexico border.
(i) Members of a Federally recognized Indian tribe located in an Indian area; or
(ii) Migrant and seasonal agricultural workers.
(i) Middle Appalachia;
(ii) The Lower Mississippi Delta; or
(iii) A colonia.
(i) Affordable housing in a high opportunity area; or
(ii) Mixed-income housing in an area of concentrated poverty.
(i) A census tract outside of a metropolitan statistical area as designated by the Office of Management and Budget; or
(ii) A census tract in a metropolitan statistical area as designated by the Office of Management and Budget that is outside of the metropolitan statistical area's Urbanized Areas and Urban Clusters, as designated by the U.S. Department of Agriculture's Rural-Urban Commuting Area codes.
(a) This subpart sets forth the Enterprise duty to serve three underserved markets as required by section 1335 of the Safety and Soundness Act, 12 U.S.C. 4565. This subpart also establishes standards and procedures for annually evaluating and rating Enterprise compliance with the duty to serve underserved markets.
(b) Nothing in this subpart permits or requires an Enterprise to engage in any activity that would be otherwise inconsistent with its Charter Act or the Safety and Soundness Act.
(a)
(b)
(c)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(3)
(d)
(2)
(3)
(4)
(5)
(e)
(f)
(g)
(a)
(b)
(1) Manufactured homes titled as real property; and
(2) Manufactured housing communities.
(c)
(1) Mortgages on manufactured homes titled as real property under the laws of the state where the home is located; and
(2) Mortgages on manufactured housing communities provided that:
(i) The community has 150 pads or less;
(ii) The community is owned by a governmental unit or instrumentality, owned by a nonprofit, or resident-owned; or
(iii) The community's pad leases have the following pad lease protections at a minimum:
(A) Minimum one-year renewable lease term unless there is good cause for nonrenewal;
(B) Minimum thirty-day written notice of rent increases;
(C) Minimum five-day grace period for rent payments, and right to cure defaults on rent payments;
(D) If a tenant defaults on rent payments, the tenant has the right to: Sell the manufactured home without having to first relocate it out of the community; sublease or assign the pad lease for the unexpired term to the new buyer of the tenant's manufactured home without any unreasonable restraint; post “For Sale” signs; and have a reasonable time period after eviction to sell the manufactured home;
(E) Right for tenants to receive at least 120 days advance notice of a planned sale or closure of the community, within which time the tenants, or an organization acting on behalf of a group of tenants, may match any bona fide offer for sale. The community owner shall consider the tenants' offer and negotiate with them in good faith.
(d)
(a)
(b)
(c)
(1) The project-based and tenant-based rental assistance housing programs under section 8 of the U.S. Housing Act of 1937, 42 U.S.C. 1437f;
(2) The rental and cooperative housing program for lower income families under section 236 of the National Housing Act, 12 U.S.C. 1715z-1;
(3) The housing program for moderate-income and displaced families under section 221(d)(4) of the National Housing Act, 12 U.S.C. 1715l;
(4) The supportive housing program for the elderly under section 202 of the Housing Act of 1959, 12 U.S.C. 1701q;
(5) The supportive housing program for persons with disabilities under section 811 of the Cranston-Gonzalez National Affordable Housing Act, 42 U.S.C. 8013;
(6) Permanent supportive housing projects subsidized under Title IV of the McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11361,
(7) The rural rental housing program under section 515 of the Housing Act of 1949, 42 U.S.C. 1485;
(8) Low-income housing tax credits under section 42 of the Internal Revenue Code of 1986, 26 U.S.C. 42; and
(9) Other comparable affordable housing programs administered by a state or local government that preserve housing affordable to very low-, low-, and moderate-income families. An Enterprise may include in its Underserved Markets Plan programs pursuant to this paragraph (c)(9), subject to FHFA determination of whether such programs are eligible to receive credit.
(d)
(1) Purchasing and securitizing loan pools from a community development financial institution, community financial institution, or federally insured credit union whose total assets are within the asset cap set forth in the definition of “community financial institution” in § 1282.1, where the loan pools are backed by existing small multifamily rental properties consisting of five to not more than fifty units;
(2) Energy efficiency improvements on existing multifamily rental properties provided there are verifiable, reliable projections or expectations that the improvements financed by the loan will reduce energy and water consumption by the tenant by at least 15 percent, the reduced utility costs derived from the reduced consumption must not be offset by higher rents or other charges imposed by the property owner, and the reduced utility costs will offset the upfront costs of the improvements within a reasonable time period;
(3) Energy efficiency improvements on existing single-family, first-lien properties, provided that there are verifiable, reliable projections or expectations that the improvements financed by the loan will reduce energy and water consumption by the homeowner or tenant by at least 15 percent, the reduced utility costs derived from the reduced consumption will offset the upfront costs of the improvements within a reasonable time period, and in the case of a single-family rental property, the reduced utility costs must not be offset by higher rents or other charges imposed by the property owner;
(4) Affordable homeownership preservation through shared equity homeownership programs. Shared equity programs include programs administered by community land trusts, other nonprofit organizations, or State or local governments or instrumentalities that:
(i) Ensure affordability for at least 30 years or as long as permitted under state law through a ground lease, deed restriction, subordinate loan or similar legal mechanism that makes residential real property affordable to very low-, low-, or moderate-income families. The legal instrument ensuring affordability must also stipulate a preemptive option to purchase the homeownership unit from the homeowner at resale to preserve the affordability of the unit for successive very low-, low-, or moderate-income families;
(ii) Monitor the homeownership unit to ensure affordability is preserved over resales; and
(iii) Support the homeowners to promote successful homeownership for very low-, low-, or moderate-income families;
(5) Choice Neighborhoods Initiative, as authorized by 42 U.S.C. 1437v; and
(6) HUD's Rental Assistance Demonstration program, as authorized by 42 U.S.C.1437f note.
(e)
(a)
(b)
(c)
(d)
(a)
(b)
(2)
(3)
(4)
(5)
(c)
(2)
(3)
(4)
(5)
(a) Where an Enterprise includes a qualifying activity to promote residential economic diversity in its Underserved Markets Plan, FHFA will evaluate the extent to which the activity promotes residential economic diversity in an underserved market in connection with mortgages on: Affordable housing in a high opportunity area; or mixed-income housing in an area of concentrated poverty. This criterion will be considered in connection with activities for which extra credit may be given, but the activities associated with this criterion are not mandatory. To qualify for extra credit, an activity first must be an eligible activity that contributes to an Enterprise's duty to serve an underserved market. Eligible activities in each of the underserved markets may qualify for extra credit for residential economic diversity except for manufactured housing communities activities, energy efficiency improvement activities, and any additional activities determined by FHFA to be ineligible.
(b) FHFA's evaluation of residential economic diversity activities under this section will occur as part of its review under § 1282.36.
(a)
(b)
(1) Contributions to the Housing Trust Fund (12 U.S.C. 4568) and the Capital Magnet Fund (12 U.S.C. 4569), and mortgage purchases funded with such grant amounts;
(2) HOEPA mortgages;
(3) Mortgages on manufactured homes not titled as real property under the laws of the state where the property is located;
(4) Subordinate liens on multifamily properties, except for subordinate liens originated for energy efficiency improvements on existing multifamily rental properties that meet the requirements in § 1282.34(d)(2);
(5) Subordinate liens on single-family properties;
(6) Shared appreciation loans that do not satisfy all of the requirements in § 1282.34(d)(4) of this part; and
(7) Any combination of factors in paragraphs (b)(1) through (b)(6) of this section.
(c)
(1) Purchases of mortgages to the extent they finance any dwelling units that are secondary residences;
(2) Single-family refinancing mortgages that result from conversion of balloon notes to fully amortizing notes, if the Enterprise already owns or has an interest in the balloon note at the time conversion occurs;
(3) Purchases of mortgages or interests in mortgages that previously received credit under any underserved market within the five years immediately preceding the current performance year;
(4) Purchases of mortgages where the property or any units within the property have not been approved for occupancy;
(5) Any interests in mortgages that the Director determines, in writing, will not be treated as interests in mortgages;
(6) Purchases of State and local government housing bonds except as provided in § 1282.40(h); and
(7) Any combination of factors in paragraphs (c)(1) through (6) of this section.
(d)
(e)
(f)
(g)
(a)
(b)
(c)
(2) Mortgage purchases financing owner-occupied single-family properties for which the income of the mortgagor(s) is not available will not receive credit under the loan purchase assessment factor.
(d)
(2)
(3)
(4)
(e)
(2) When an Enterprise lacks sufficient information to determine whether a rental unit in a single-family or multifamily property securing a mortgage purchased by the Enterprise receives credit under the loan purchase assessment factor because rental data are not available, the Enterprise's performance with respect to such unit may be evaluated using estimated affordability information. The estimated affordability information is calculated by multiplying the number of rental units with missing affordability information in properties securing the mortgages purchased by the Enterprise in each census tract by the percentage of all moderate-income rental dwelling units in the respective tracts, as determined by FHFA based on the most recent decennial census.
(f)
(g)
(1) If the median income of the census tract in which the manufactured housing community is located is less than or equal to area median income, the Enterprise will receive credit for the full unpaid principal balance of the loan.
(2) If the median income of the census tract in which the manufactured housing community is located exceeds the area median income, the Enterprise will receive partial credit for the loan purchase. The percentage of the unpaid principal balance of the loan that will receive credit will be determined by dividing the area median income by the median income of the census tract and multiplying the quotient by the unpaid principal balance of the loan.
(h)
(i) The metropolitan area, if the property which is the subject of the mortgage is in a metropolitan area; and
(ii) In all other areas, the county in which the property is located, except that where the State non-metropolitan median income is higher than the county's median income, the area is the State non-metropolitan area.
(2) When an Enterprise cannot precisely determine whether a mortgage is on dwelling unit(s) located in one area, the Enterprise must determine the median income for the split area in the
(i) A census tract; or
(ii) A census place code.
(i)
(a)
(b)
(i) The Enterprise provides a specific contractual obligation to ensure timely payment of amounts due under a mortgage or mortgages financed by the issuance of housing bonds (such bonds may be issued by any entity, including a State or local housing finance agency); and
(ii) The Enterprise assumes a credit risk in the transaction substantially equivalent to the risk that would have been assumed by the Enterprise if it had securitized the mortgages financed by such bonds.
(2) When an Enterprise provides a specific contractual obligation to ensure timely payment of amounts due under any mortgage originally insured by a public purpose mortgage insurance entity or fund, the Enterprise may, on a case-by-case basis, seek approval from the Director for such transactions to receive credit under the loan purchase assessment factor for a particular underserved market.
(c)
(d)
(e)
(2) The purchase of a blanket mortgage on a cooperative building or a mortgage on a condominium project will be treated as a mortgage purchase. The purchase of a blanket mortgage on a cooperative building will receive credit in the same manner as a mortgage purchase of a multifamily rental property, except that affordability must be determined based solely on the comparable market rents used in underwriting the blanket loan. If the underwriting rents are not available, the loan will not be treated as a mortgage purchase. The purchase of a mortgage on a condominium project will receive credit in the same manner as a mortgage purchase of a multifamily rental property.
(3) Where an Enterprise purchases both a blanket mortgage on a cooperative building and share loans for units in the same building, both the mortgage on the cooperative building and the share loans will be treated as mortgage purchases. Where an Enterprise purchases both a mortgage on a condominium project and mortgages on individual dwelling units in the same project, both the mortgage on the condominium project and the mortgages on individual dwelling units will be treated as mortgage purchases.
(f)
(g)
(h)
(i)
(i) The terms of the transaction provide for a lockout period that prohibits the exercise of the dissolution option for at least one year from the date on which the transaction was entered into by the Enterprise and the seller of the mortgages; and
(ii) The transaction is not dissolved during the one-year minimum lockout period.
(2) FHFA may grant an exception to the one-year minimum lockout period described in paragraphs (i)(1)(i) and (ii) of this section, in response to a written request from an Enterprise, if FHFA determines that the transaction furthers the purposes of the Enterprise's Charter Act and the Safety and Soundness Act.
(3) For purposes of paragraph (i) of this section, “seller dissolution option” means an option for a seller of mortgages to the Enterprises to dissolve or otherwise cancel a mortgage purchase agreement or loan sale.
If the Director determines that an Enterprise has not complied with, or there is a substantial probability that an Enterprise will not comply with, the duty to serve a particular underserved market in a given year and the Director determines that such compliance is or was feasible, the Director will follow the procedures in 12 U.S.C. 4566(b).
(a)
(b)
(1) Be feasible;
(2) Be sufficiently specific to enable the Director to monitor compliance periodically;
(3) Describe the specific actions that the Enterprise will take:
(i) To comply with the duty to serve a particular underserved market for the next calendar year; or
(ii) To make such improvements and changes in its operations as are reasonable in the remainder of the year, if the Director determines that there is
(4) Address any additional matters relevant to the housing plan as required, in writing, by the Director.
(c)
(d)
(e)
(a)
(b)
(c)
Section 2 of this order establishes, under the President's Management Council (PMC), a Subcommittee to advise the Office of Personnel Management (OPM), the PMC, and the President on senior executive matters, help monitor execution of an important set of executive reforms contained in section 3 of this order, and help keep the Federal Government's executive management practices current and effective. In order to identify and maximize the use of best practices, requirements in sections 3(b)(i)-(iv) of this order will be implemented in three phases, with Phase I consisting of seven agencies, which will execute those reforms in fiscal year (FY) 2016; Phase II consisting of seven agencies, which will execute those reforms in FY 2017; and Phase III consisting of all other agencies, which will execute those reforms in FY 2018.
(a)
(b)
(b)
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
| 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 |