| Page Range | 12555-12745 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 12680 - Order of Suspension of Trading; In the Matter of Aspire International, Inc., Border Management, Inc., and Landmark Energy Enterprises, Inc. | |
| 80 FR 12689 - In the Matter of Black Sea Metals, Inc., GigaBeam Corp., Safe Technologies International, Inc., and Whitemark Homes, Inc.; Order of Suspension of Trading | |
| 80 FR 12638 - Proposed Data Collections Submitted for Public Comment and Recommendations | |
| 80 FR 12644 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 80 FR 12696 - Privacy Act of 1974, as Amended; Computer Matching Program (Social Security Administration (SSA)/Department of Veterans Affairs (VA), Veterans Benefits Administration (VBA))-Match Number 1008 | |
| 80 FR 12644 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed Meeting | |
| 80 FR 12632 - National Institute of Mental Health Notice of Closed Meetings | |
| 80 FR 12642 - Agency Information Collection Activities; Proposed Collection; Comment Request; Reclassification Petitions for Medical Devices | |
| 80 FR 12564 - Department of Veterans Affairs Acquisition Regulation: Service-Disabled Veteran-Owned and Veteran-Owned Small Business Status Protests | |
| 80 FR 12640 - Agency Information Collection Activities; Proposed Collection; Comment Request; Record Retention Requirements for the Soy Protein and Risk of Coronary Heart Disease Health Claim | |
| 80 FR 12647 - Agency Information Collection Activities: Application To Register Permanent Residence or Adjust Status, Form I-485 Supplement A, and Instruction Booklet for Filing Form I-485 and Supplement A, Form I-485; Revision of a Currently Approved Collection. | |
| 80 FR 12617 - Notice of Request for Reinstatement of a Previously Approved Information Collection: Animal Disposition Reporting | |
| 80 FR 12698 - Underwater Locating Devices (Acoustic) (Self-Powered) | |
| 80 FR 12697 - Emergency Locator Transmitters (ELTs) | |
| 80 FR 12621 - Office of the Secretary | |
| 80 FR 12620 - Regulations and Procedures Technical Advisory Committee; Notice of Partially Closed Meeting | |
| 80 FR 12664 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To Amend Rule 6.60 and To Adopt Rule 6.61, Which Was Previously Reserved, To Provide Price Protection for Market Maker Quotes | |
| 80 FR 12687 - Self-Regulatory Organizations; NYSE MKT LLC; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To Amend Rule 967NY and To Adopt Rule 967.1NY To Provide Price Protection for Market Maker Quotes | |
| 80 FR 12628 - Notice of Open Meeting of the Advisory Committee of the Export-Import Bank of the United States (Ex-Im Bank) | |
| 80 FR 12618 - Changes to the Salmonella and Campylobacter Verification Testing Program: Proposed Performance Standards for Salmonella and Campylobacter in Not-Ready-to-Eat Comminuted Chicken and Turkey Products and Raw Chicken Parts and Related Agency Verification Procedures and Other Changes to Agency Sampling | |
| 80 FR 12648 - Notice of Lodging Proposed Consent Decree | |
| 80 FR 12620 - Proposed Information Collection; Comment Request; Western Pacific Community Development Program Process | |
| 80 FR 12645 - Towing Safety Advisory Committee; March 2015 Meeting | |
| 80 FR 12666 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing of a Proposed Rule Change, as Modified by Amendment No. 1, To Amend Rules 11.6, 11.8, 11.9, 11.10 and 11.11 of EDGX Exchange, Inc. | |
| 80 FR 12671 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing of a Proposed Rule Change Related to Equipment and Communication on the Exchange's Trading Floor | |
| 80 FR 12651 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Arca Options Fee Schedule Relating to Strategy Executions | |
| 80 FR 12655 - Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of Filing of a Proposed Rule Change, as Modified by Amendment No. 1, To Amend Rules 11.6, 11.8, 11.9, 11.10 and 11.11 of EDGA Exchange, Inc. | |
| 80 FR 12662 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend One Aspect of the Administration of Income Generated by Payment for Order Flow Fees | |
| 80 FR 12690 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to Amendments to NYSE Arca Equities Rule 8.600 to Adopt Generic Listing Standards for Managed Fund Shares | |
| 80 FR 12652 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Proposed Rule Change Concerning the Execution of an Agreement for Clearing and Settlement Services Between OCC and NASDAQ Futures, Inc. | |
| 80 FR 12660 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule To Increase the Fee for Orders Yielding Fee Code K | |
| 80 FR 12675 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing of Proposed Rule Change To List and Trade Options on the MSCI EAFE Index and on the MSCI Emerging Markets Index | |
| 80 FR 12680 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fees Schedule To Adopt Fees for Extended Trading Hours | |
| 80 FR 12607 - Approval and Promulgation of Implementation Plans; West Virginia; Regional Haze Five-Year Progress Report State Implementation Plan | |
| 80 FR 12623 - Combined Notice of Filings | |
| 80 FR 12647 - Intent To Request Renewal From OMB of One Current Public Collection of Information: Flight Training for Aliens and Other Designated Individuals; Security Awareness Training for Flight School Employees | |
| 80 FR 12632 - Center for Scientific Review: Notice of Closed Meetings | |
| 80 FR 12640 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 12631 - National Center for Complementary and Integrative Health; Notice of Closed Meeting | |
| 80 FR 12638 - National Cancer Institute; Notice of Closed Meetings | |
| 80 FR 12642 - National Cancer Institute; Amended Notice of Meeting | |
| 80 FR 12642 - National Heart, Lung, and Blood Institute: Notice of Closed Meeting | |
| 80 FR 12643 - National Institute on Aging; Notice of Closed Meeting | |
| 80 FR 12630 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed Meetings | |
| 80 FR 12642 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed Meeting | |
| 80 FR 12640 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed Meeting | |
| 80 FR 12631 - National Library of Medicine; Notice of Meetings | |
| 80 FR 12630 - National Library of Medicine: Notice of Closed Meetings | |
| 80 FR 12630 - Notice of Meeting of the PubMed Central National Advisory Committee | |
| 80 FR 12637 - National Library of Medicine: Notice of Meeting | |
| 80 FR 12644 - Office of the Director, National Institutes of Health Notice of Meeting | |
| 80 FR 12621 - Determination of Overfishing or an Overfished Condition | |
| 80 FR 12628 - Clean Water Act Section 303(d): Availability of List Decisions | |
| 80 FR 12649 - Compliance With Phase 2 of Order EA-13-109 | |
| 80 FR 12604 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Update of the Motor Vehicle Emissions Budgets and General Conformity Budgets for the Scranton/Wilkes-Barre 1997 8-Hour Ozone National Ambient Air Quality Standard Maintenance Area | |
| 80 FR 12629 - Renewal of Charter for the Advisory Committee on Organ Transplantation | |
| 80 FR 12629 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 12629 - Update to Notice of Financial Institutions for Which the Federal Deposit Insurance Corporation has been Appointed Either Receiver, Liquidator, or Manager | |
| 80 FR 12555 - Initial Response to District Court Remand Order in Securities Industry and Financial Markets Association, et al. v. United States Commodity Futures Trading Commission | |
| 80 FR 12567 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2015-2016 Biennial Specifications and Management Measures; Amendment 24 | |
| 80 FR 12611 - Magnuson-Stevens Act Provisions; Fisheries off West Coast States; Pacific Coast Groundfish Fishery; 2015 Tribal Fishery for Pacific Whiting | |
| 80 FR 12558 - DCAA Privacy Act Program | |
| 80 FR 12566 - Endangered and Threatened Wildlife and Plants; Taxonomy of the Hawaiian Monk Seal | |
| 80 FR 12632 - Applications for New Awards; National Institute on Disability, Independent Living, and Rehabilitation Research-Disability and Rehabilitation Research Projects and Centers Program-Minority-Serving Institution Field Initiated Projects Program | |
| 80 FR 12561 - Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Transportation Conformity | |
| 80 FR 12607 - Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Transportation Conformity | |
| 80 FR 12697 - Prepare for the One Hundred and Second Session of the International Maritime Organization's (IMO) Legal Committee; Notice of Public Meeting | |
| 80 FR 12702 - Injurious Wildlife Species; Listing Three Anaconda Species and One Python Species as Injurious Reptiles |
Food Safety and Inspection Service
Industry and Security Bureau
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Community Living Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
National Library of Medicine
Coast Guard
Transportation Security Administration
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Federal Aviation Administration
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Commodity Futures Trading Commission.
Supplementation of rulemaking preambles and request for comments.
This release is the Commodity Futures Trading Commission's (“Commission” or “CFTC”) initial response to the order of the United States District Court for the District of Columbia in
Comments must be received on or before May 11, 2015.
You may submit comments, identified by RIN 3038-AE27, by any of the following methods:
•
•
•
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Please submit your comments using only one of these methods.
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Rob Schwartz, Deputy General Counsel, (202) 418-5958,
This release is the Commission's initial response to the order of the United States District Court for the District of Columbia in
Real-Time Public Reporting of Swap Transactions Data
Swap Data Recordkeeping and Reporting Requirements
Registration of Swap Dealers and Major Swap Participants
Swap Dealer and Major Swap Participant Recordkeeping, Reporting, and Duties Rules; Futures Commission Merchant and Introducing Broker Conflict of Interest Rules; and Chief Compliance Officer Rules for Swap Dealers, Major Swap Participants, and Futures Commission Merchants
Further Definition of “Swap Dealer,” “Security-Based Swap Dealer,” “Major Swap Participant,” “Major Security-Based Swap Participant,” and “Eligible Contract Participant”
Swap Data Recordkeeping and Reporting Requirements: Pre-Enactment and Transition Swaps
Confirmations, Portfolio Reconciliation, Portfolio Compression, and Swap Trading Relationship Documentation Requirements for Swap Dealers and Major Swap Participants
Core Principles and Other Requirements for Swap Execution Facilities
The court directed the Commission to address explicitly whether the costs and benefits the Commission identified in those rulemakings apply to activities outside the United States, and to address any differences that may exist. In this release, the Commission takes two actions:
On December 4, 2013, three trade associations sued the Commission in the United States District Court for the District of Columbia, challenging, on various grounds, the Commission's Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations
The court summarized the case by observing,
The majority of plaintiffs' claims fail because Congress has clearly indicated that the swaps provisions within Title VII of the Dodd-Frank Act—including any rules or regulations prescribed by the CFTC—apply extraterritorially whenever the jurisdictional nexus in 7 U.S.C. 2(i) is satisfied. In this regard, plaintiffs' challenges to the extraterritorial application of the Title VII Rules merely seek to delay the inevitable.
1. The Commission's Cross-Border Guidance is not subject to judicial review because it is in part a non-binding general statement of policy and in part an interpretive rule, neither of which is subject to judicial review under the Administrative Procedure Act.
2. Section 2(i) of the CEA is a self-effectuating provision that makes Commission swaps rules apply to business activities outside the United States to the extent they meet the test set forth in the statutory language.
Section 2(i)(2), regarding anti-evasion rules, was not at issue in the
3. Because Congress determined that the Commission's swaps rules apply to certain overseas activities and established the test for determining when the rules would apply to those activities, the Commission was not tasked with reconsidering the costs and benefits of those legislative decisions.
4. Because section 2(i) establishes the extraterritorial scope of the Commission's swaps rules, the Commission can enforce those rules overseas relying on that provision. However, to the extent that it may be useful to develop a more refined interpretation of how section 2(i) applies in particular circumstances, the Commission has discretion to address
Based on these principles, the court held that the rules challenged by the plaintiffs apply to swaps activities outside the United States to the extent specified by section 2(i).
On the other hand, the court further held that, in the preambles for ten of the challenged rules, promulgated as part of eight rulemakings,
The district court remanded the eight rulemakings “for further proceedings consistent with the Opinion issued this same day.”
1. The court held that, because Congress made the determination that the swaps rules apply overseas to the extent specified in section 2(i), CEA section 15(a) does not require the Commission to consider whether it is necessary or desirable for particular rules to apply to overseas activities as specified in section 2(i).
2. At the same time, the court held that, in considering costs and benefits of the substantive regulatory choices it makes when promulgating a swaps rule, the Commission is required to take into consideration the fact that the rule, by statute, will apply to certain overseas activity.
3. The court held that the Commission has discretion either to consider costs and benefits of the international application of swaps rules separately from domestic application or to evaluate them together, “so long as the cost-benefit analysis makes clear that the CFTC reasonably considered both.”
4. Finally, the court noted that “[p]laintiffs raise no complaints regarding the CFTC's evaluation of the general, often unquantifiable, benefits and costs of the domestic application of the Title VII Rules.”
The Commission hereby clarifies that it considered costs and benefits based on the understanding that the swaps market functions internationally, with many transactions involving U.S. firms taking place across international boundaries; with leading industry members typically conducting operations both within and outside the United States; and with industry members commonly following substantially similar business practices wherever located. The Commission considered all evidence in the record, and in the absence of evidence indicating differences in costs and benefits between foreign and domestic swaps activities, the Commission did not find occasion to characterize explicitly the identified costs and benefits as foreign or domestic. Thus, where the Commission did not specifically refer to matters of location, its discussion of costs and benefits referred to the effects of its rules on all business activity subject to its regulations, whether by virtue of the activity's physical location in the United States or by virtue of the activity's connection with or effect on U.S. commerce under section 2(i).
As noted above, the district court stated that, on remand, the Commission “would only need to make explicit” which of the costs and benefits identified in the rule preambles “similarly apply to the Rules' extraterritorial applications.”
1. Are there any benefits or costs that the Commission identified in any of the rule preambles that do not apply, or apply to a different extent, to the relevant rule's extraterritorial applications?
2. Are there any costs or benefits that are unique to one or more of the rules' extraterritorial applications? If so, please specify how.
3. Put another way, are the types of costs and benefits that arise from the extraterritorial application of any of the rules different from those that arise from the domestic application? If so, how and to what extent?
4. If significant differences exist in the costs and benefits of the extraterritorial and domestic application of one or more of the rules, what are the implications of those differences for the substantive requirements of the rule or rules?
Comments should specify, in the header of the comment, the particular rule or rules that they address. The Commission requests that comments focus on information and analysis specifically relevant to the inquiry specified by the district court's remand order. Consistent with the district court's holding that the Commission is not required to address the issue of what the geographical scope of its rules should be in the challenged rulemakings,
The following appendix will not appear in the Code of Federal Regulations.
On this matter, Chairman Massad and Commissioners Wetjen, Bowen, and Giancarlo voted in the affirmative. No Commissioner voted in the negative.
Department of Defense.
Final rule.
The Defense Contract Audit Agency (DCAA) is amending the DCAA Privacy Act Program Regulation. Specifically, DCAA is adding an exemption section to include an exemption for RDCAA 900.1, DCAA Internal Review Case Files. This rule
This rule is effective on April 9, 2015.
Mr. Keith Mastromichalis, FOIA/PA Management Analyst, DCAA HQ, 703-767-1022.
The revisions to this rule are part of DoD's retrospective plan under EO 13563 completed in August 2011. DoD's full plan can be accessed at
a. This rule provides policies and procedures for DCAA's implementation of the Privacy Act of 1974, as amended.
b. Authority: Privacy Act of 1974, Pub. L. 93-579, Stat. 1896 (5 U.S.C. 552a).
DCAA is adding an exemption section to include an exemption for RDCAA 900.1, DCAA Internal Review Case Files.
This regulatory action imposes no monetary costs to the Agency or public. The benefit to the public is the accurate reflection of the Agency's Privacy Program to ensure that policies and procedures are known to the public.
On Thursday, February 6, 2014 (79 FR 7114-7117), the Department of Defense published a proposed rule requesting public comment. No comments were received on the proposed rule, and no changes have been made in the final rule.
It has been determined that this rule is not a significant regulatory action under these Executive Orders. This rule does not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.
It has been certified that this rule does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act within the Department of Defense.
It has been determined that this rule imposes no information collection requirements on the public under the Paperwork Reduction Act of 1995.
It has been determined that this rule does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.
It has been determined that this rule does not have federalism implications. This rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
Privacy.
Accordingly 32 CFR part 317 is revised to read as follows:
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
This part provides policies and procedures for the Defense Contract Audit Agency's (DCAA) implementation of the Privacy Act of 1974 (5 U.S.C. 552a) and 32 CFR part 310, and is intended to promote uniformity within DCAA.
(a) This part applies to all DCAA organizational elements and takes precedence over all regional regulatory issuances that supplement the DCAA Privacy Program.
(b) This part shall be made applicable by contract or other legally binding action to contractors whenever a DCAA contract provides for the operation of a system of records or portion of a system of records to accomplish an Agency function.
(a) It is DCAA policy that personnel will comply with the DCAA Privacy Program; the Privacy Act of 1974; and the DoD Privacy Program (32 CFR part 310). Strict adherence is necessary to ensure uniformity in the implementation of the DCAA Privacy Program and create conditions that will foster public trust. It is also Agency policy to safeguard personal information contained in any system of records maintained by DCAA organizational elements and to make that information available to the individual to whom it pertains to the maximum extent practicable.
(b) DCAA policy specifically requires that DCAA organizational elements:
(1) Collect, maintain, use, and disseminate personal information only when it is relevant and necessary to achieve a purpose required by statute or Executive Order.
(2) Collect personal information directly from the individuals to whom it pertains to the greatest extent practical.
(3) Inform individuals who are asked to supply personal information for inclusion in any system of records:
(i) The authority for the solicitation.
(ii) Whether furnishing the information is mandatory or voluntary.
(iii) The intended uses of the information.
(iv) The routine disclosures of the information that may be made outside of DoD.
(v) The effect on the individual of not providing all or any part of the requested information.
(4) Ensure that records used in making determinations about individuals and those containing personal information are accurate,
(5) Keep no record that describes how individuals exercise their rights guaranteed by the First Amendment to the U.S. Constitution, unless expressly authorized by statute or by the individual to whom the records pertain or is pertinent to and within the scope of an authorized law enforcement activity.
(6) Notify individuals whenever records pertaining to them are made available under compulsory legal processes, if such process is a matter of public record.
(7) Establish safeguards to ensure the security of personal information and to protect this information from threats or hazards that might result in substantial harm, embarrassment, inconvenience, or unfairness to the individual.
(8) Establish rules of conduct for DCAA personnel involved in the design, development, operation, or maintenance of any system of records and train them in these rules of conduct.
(9) Assist individuals in determining what records pertaining to them are being collected, maintained, used, or disseminated.
(10) Permit individual access to the information pertaining to them maintained in any system of records, and to correct or amend that information, unless an exemption for the system has been properly established for an important public purpose.
(11) Provide, on request, an accounting of all disclosures of the information pertaining to them except when disclosures are made:
(i) To DoD personnel in the course of their official duties.
(ii) Under DCAA Regulation 5410.8, DCAA Freedom of Information Act Program.
(iii) To another agency or to an instrumentality of any governmental jurisdiction within or under control of the United States conducting law enforcement activities authorized by law.
(12) Advise individuals on their rights to appeal any refusal to grant access to or amend any record pertaining to them, and file a statement of disagreement with the record in the event amendment is refused.
(a) The Assistant Director, Resources has overall responsibility for the DCAA Privacy Act Program and will serve as the sole appellate authority for appeals to decisions of respective initial denial authorities.
(b) The Chief, Administrative Management Division under the direction of the Assistant Director, Resources, shall:
(1) Establish, issue, and update policies for the DCAA Privacy Act Program; monitor compliance with this part; and provide policy guidance for the DCAA Privacy Act Program.
(2) Resolve conflicts that may arise regarding implementation of DCAA Privacy Act policy.
(3) Designate an Agency Privacy Act Advisor, as a single point of contact, to coordinate on matters concerning Privacy Act policy.
(4) Make the initial determination to deny an individual's written Privacy Act request for access to or amendment of documents filed in Privacy Act systems of records. This authority cannot be delegated.
(c) The DCAA Privacy Act Advisor under the supervision of the Chief, Administrative Management Division shall:
(1) Manage the DCAA Privacy Act Program in accordance with this part and applicable DCAA policies, as well as DoD and Federal regulations.
(2) Provide guidelines for managing, administering, and implementing the DCAA Privacy Act Program.
(3) Implement and administer the Privacy Act program at the Headquarters.
(4) Ensure that the collection, maintenance, use, or dissemination of records of identifiable personal information is in a manner that assures that such action is for a necessary and lawful purpose; that the information is timely and accurate for its intended use; and that adequate safeguards are provided to prevent misuse of such information.
(5) Prepare promptly any required new, amended, or altered system notices for systems of records subject to the Privacy Act and submit them to the Defense Privacy Office for subsequent publication in the
(6) Conduct training on the Privacy Act program for Agency personnel.
(d) Heads of Principal Staff Elements are responsible for:
(1) Reviewing all regulations or other policy and guidance issuances for which they are the proponent to ensure consistency with the provisions of this part.
(2) Ensuring that the provisions of this part are followed in processing requests for records.
(3) Forwarding to the DCAA Privacy Act Advisor, any Privacy Act requests received directly from a member of the public, so that the request may be administratively controlled and processed.
(4) Ensuring the prompt review of all Privacy Act requests, and when required, coordinating those requests with other organizational elements.
(5) Providing recommendations to the DCAA Privacy Act Advisor regarding the releasability of DCAA records to members of the public, along with the responsive documents.
(6) Providing the appropriate documents, along with a written justification for any denial, in whole or in part, of a request for records to the DCAA Privacy Act Advisor. Those portions to be excised should be bracketed in red pencil, and the specific exemption or exemptions cites which provide the basis for denying the requested records.
(e) The General Counsel is responsible for:
(1) Ensuring uniformity is maintained in the legal position, and the interpretation of the Privacy Act; 32 CFR part 310; and this part.
(2) Consulting with DoD General Counsel on final denials that are inconsistent with decisions of other DoD components, involve issues not previously resolved, or raise new or significant legal issues of potential significance to other Government agencies.
(3) Providing advice and assistance to the Assistant Director, Resources; Regional Directors; and the Regional Privacy Act Officer, through the DCAA Privacy Act Advisor, as required, in the discharge of their responsibilities.
(4) Coordinating Privacy Act litigation with the Department of Justice.
(5) Coordinating on Headquarters denials of initial requests.
(f) Each Regional Director is responsible for the overall management of the Privacy Act program within their respective regions. Under his/her direction, the Regional Resources Manager is responsible for the management and staff supervision of the program and for designating a Regional Privacy Act Officer. Regional Directors will, as designee of the Director, make the initial determination to deny an individual's written Privacy Act request for access to or amendment of documents filed in Privacy Act systems of records. This authority cannot be delegated.
(g) Regional Privacy Act Officers will:
(1) Implement and administer the Privacy Act program throughout the region.
(2) Ensure that the collection, maintenance, use, or dissemination of records of identifiable personal information is in compliance with this part to assure that such action is for a necessary and lawful purpose; that the information is timely and accurate for its intended use; and that adequate safeguards are provided to prevent misuse of such information.
(3) Prepare input for the annual Privacy Act Report when requested by the DCAA Information and Privacy Advisor.
(4) Conduct training on the Privacy Act program for regional and FAO personnel.
(5) Provide recommendations to the Regional Director through the Regional Resources Manager regarding the releasability of DCAA records to members of the public.
(h) Managers, Field Audit Offices (FAOs) will:
(1) Ensure that the provisions of this part are followed in processing requests for records.
(2) Forward to the Regional Privacy Act Officer, any Privacy Act requests received directly from a member of the public, so that the request may be administratively controlled and processed.
(3) Ensure the prompt review of all Privacy Act requests, and when required, coordinating those requests with other organizational elements.
(4) Provide recommendation to the Regional Privacy Act Officer regarding the releasability of DCAA records to members of the public, along with the responsive documents.
(5) Provide the appropriate documents, along with a written justification for any denial, in whole or in part, of a request for records to the Regional Privacy Act Officer. Those portions to be excised should be bracketed in red pencil, and the specific exemption or exemptions cited which provide the basis for denying the requested records.
(i) DCAA Employees will:
(1) Not disclose any personal information contained in any system of records, except as authorized by this part.
(2) Not maintain any official files which are retrieved by name or other personal identifier without first ensuring that a notice for the system has been published in the
(3) Report any disclosures of personal information from a system of records or the maintenance of any system of records that are not authorized by this part to the appropriate Privacy Act officials for their action.
Procedures for processing material in accordance with the Privacy Act of 1974 are outlined in DoD 5400.11-R, DoD Privacy Program (32 CFR part 310).
(a)
(b)
(i) Exemption: Any portions of this system of records which fall under the provisions of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt from the following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G), (H), and (f).
(ii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5)
(iii) Reason: (A) From subsection (c)(3) because disclosures from this system could interfere with the just, thorough and timely resolution of the complaint or inquiry, and possibly enable individuals to conceal their wrongdoing or mislead the course of the investigation by concealing, destroying or fabricating evidence or documents.
(B) From subsection (d) because disclosures from this system could interfere with the just, thorough and timely resolution of the complaint or inquiry, and possibly enable individuals to conceal their wrongdoing or mislead the course of the investigation by concealing, destroying or fabricating evidence or documents. Disclosures could also subject sources and witnesses to harassment or intimidation which jeopardize the safety and well-being of themselves and their families.
(C) From subsection (e)(1) because the nature of the investigation functions creates unique problems in prescribing specific parameters in a particular case as to what information is relevant or necessary. Due to close liaison and working relationships with other Federal, state, local, foreign country law enforcement agencies, and other governmental agencies, information may be received which may relate to a case under the investigative jurisdiction of another government agency. It is necessary to maintain this information in order to provide leads for appropriate law enforcement purposes and to establish patterns of activity which may relate to the jurisdiction of other cooperating agencies.
(D) From subsection (e)(4)(G) through (H) because this system of records is exempt from the access provisions of subsection (d).
(E) From subsection (f) because the agency's rules are inapplicable to those portions of the system that are exempt and would place the burden on the agency of either confirming or denying the existence of a record pertaining to a requesting individual might in itself provide an answer to that individual relating to an on-going investigation. The conduct of a successful investigation leading to the indictment of a criminal offender precludes the applicability of established agency rules relating to verification of record, disclosure of the record to that individual, and record amendment procedures for this record system.
(2) [Reserved]
Environmental Protection Agency.
Direct final rule.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Rhode Island on February 21, 2014. This revision includes a regulation adopted by Rhode Island that establishes procedures to follow for transportation conformity
This direct final rule will be effective May 11, 2015, unless EPA receives adverse comments by April 9, 2015. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA-R01-OAR-2014-0275 by one of the following methods:
1.
2.
3.
4.
5.
In addition, copies of the state submittal are also available for public inspection during normal business hours, by appointment at the State Air Agency; Office of Air Resources, Department of Environmental Management, 235 Promenade Street, Providence, RI 02908-5767.
Anne Arnold, Air Quality Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, telephone number (617) 918-1047, fax number (617) 918-1047, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
Organization of this document. The following outline is provided to aid in locating information in this preamble.
Transportation conformity is required under Section 176(c) of the Clean Air Act (CAA) to ensure that Federally supported highway, transit projects, and other activities are consistent with (“conform to”) the purpose of the SIP. Conformity currently applies to areas that are designated nonattainment, and those redesignated to attainment after 1990 (maintenance areas) with plans developed under section 175A of the Clean Air Act, for the following transportation related criteria pollutants: Ozone, particulate matter (PM
In the CAA, Congress recognized that actions taken by Federal agencies could affect State, Tribal, and local agencies' ability to attain and maintain the NAAQS. Congress added section 176(c) (42 U.S.C. 7506) to the CAA to ensure Federal agencies' proposed actions conform to the applicable SIP, Tribal Implementation Plan (TIP) or Federal Implementation Plan (FIP) for attaining and maintaining the NAAQS. That section requires Federal entities to find that the emissions from the Federal action will conform with the purposes of the SIP, TIP, or FIP, or not otherwise interfere with the State's or Tribe's ability to attain and maintain the NAAQS.
The CAA Amendments of 1990 clarified and strengthened the
When promulgated in 1993, the Federal transportation conformity rule at 40 CFR 51.395 mandated that the transportation conformity SIP revision incorporate several provisions
On August 10, 2005, SAFETEA-LU was signed into law streamlining the requirements for conformity SIPs. Prior to SAFETEA-LU being signed into law, states were required to address all of the Federal conformity rule's provisions in their conformity SIPs.
Under SAFETEA-LU, states are required to address and tailor only three sections of the conformity rule in their conformity SIPs. These three sections of the Federal rule which must meet a state's individual circumstances are: 40 CFR 93.105, which addresses consultation procedures; 40 CFR 93.122(a)(4)(ii), which requires that written commitments be obtained for control measures that are not included in a Metropolitan Planning Organization's transportation plan and transportation improvement program prior to a conformity determination, and that such commitments be fulfilled; and, 40 CFR 93.125(c) which requires that written commitments be obtained for mitigation measures prior to a project level conformity determination, and that project sponsors must comply with such commitments. In general, states are no longer required to submit conformity SIP revisions that address the other sections of the conformity rule. This provision took effect on August 10, 2005, when SAFETEA-LU was signed into law.
On February 21, 2014, the Rhode Island Department of Environmental Management (RI DEM) submitted a SIP revision to EPA. This SIP revision includes Rhode Island's Air Pollution Control Regulation No. 49, “Transportation Conformity.” The stated purpose of this regulation is to fulfill the requirement to establish a SIP revision that addresses the three sections of the Federal transportation conformity rule discussed above.
We have reviewed Rhode Island's SIP submittal to ensure consistency with the Clean Air Act, as amended by SAFETEA-LU, and EPA regulations governing state procedures for transportation conformity and interagency consultation (40 CFR part 93, subpart A and 40 CFR 51.390) and have concluded that the SIP submittal is approvable. Specifically, Rhode Island's Regulation No. 49, “Transportation Conformity,” adequately addresses the three sections of the Federal transportation conformity rule discussed above (consultation procedures, written commitments for control measures and mitigation measures, and project sponsors' compliance with such commitments).
In addition, Rhode Island's February 21, 2014 SIP revision meets the requirements set forth in section 110 of the CAA with respect to adoption and submission of SIP revisions. The approval of Rhode Island's transportation conformity SIP revision will strengthen the Rhode Island SIP and will assist the state in complying with the Federal NAAQS. Therefore, EPA is approving Rhode Island's transportation conformity SIP revision to comply with the most recent Federal transportation conformity requirements.
EPA is approving, and incorporating into the Rhode Island SIP, Rhode Island's Air Pollution Control Regulation No. 49, “Transportation Conformity.”
The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this
If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 11, 2015 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 11, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c)
Department of Veterans Affairs.
Final rule.
This document adopts as a final rule, without change, the interim final rule published in the
Cheryl Duckett-Moody, Senior Procurement Analysis (003A2A), Department of Veterans Affairs, 425 I ST. NW., Washington, DC 20001, (202) 632-5319. (This is not a toll free number.)
On September 30, 2013, VA published in the
We provided a 60-day comment period that ended on November 29, 2013. We received one comment. The commenter discussed the SBA's view expressed in the Government Accountability Office (GAO) bid protest case
This document affirms the amendments in the interim final rule that is already in effect. In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Secretary of VA concluded that there was good cause to dispense with advance public notice and the opportunity to comment on this rule, and also good cause to publish this rule with an immediate effective date. VA provided that the Executive Director, OSDBU, shall consider and decide SDVOSB and VOSB status protests until VA and SBA executed an interagency agreement for SBA to consider and decide SDVOSB and VOSB status protests. For the reasons stated in 78 FR 59861, that VA has developed the necessary expertise to administer a SDVOSB/VOSB set aside program, including associated status protests, enacted in statute solely applicable to VA, we have determined that adjudication of SDVOSB and VOSB status protests shall remain within VA. Therefore, we are adopting as final the interim provision to provide that the Director, CVE, shall initially adjudicate SDVOSB and VOSB status protests and to provide that either the protester or the protested business may appeal the Director, CVE, decision to the Executive Director, OSDBU. Thus, the final rule continues to authorize an administrative appeal at the agency level, where the lack thereof had been criticized in
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The final arbiter of VA SDVOSB and VOSB status protests remains the Executive Director, OSDBU, as previously promulgated. The main change is that the Secretary has determined that SBA should not be involved in VA SDVOSB or VOSB status protests because these status protests are solely associated with title 38 SDVOSB and VOSB set-aside acquisitions where SDVOSB or VOSB status is to be determined by the Secretary pursuant to 38 U.S.C. 8127(f). On this basis, the Secretary certifies that the adoption of this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Unfunded Mandates Reform Act of 1995, at 2 U.S.C. 1532, requires that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.
This final rule contains no collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local,
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at
There is no Catalog of Federal Domestic Assistance number or title for this program.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on March 2, 2015, for publication.
Administrative practice and procedure, Government procurement, Reporting and recordkeeping requirements, Small businesses, Veterans.
Accordingly, VA adopts the interim final rule amending 48 CFR part 819, which was published in the
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), are amending the List of Endangered and Threatened Wildlife to reflect the scientifically accepted taxonomy and nomenclature of the Hawaiian monk seal (
This rule is effective March 10, 2015.
Jean Higgins, NMFS, Pacific Islands Regional Office, (808) 725-5151; or Marta Nammack, NMFS, Office of Protected Resources, (301) 427-8469.
In accordance with the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
On November 17, 2014, NMFS published a direct final rule (79 FR 68371) to announce the revised taxonomy of the Hawaiian monk seal. Because NMFS did not receive any adverse comments during the first 30 days of the direct final rule's comment period, that direct final rule's effective date is January 16, 2015. Please refer to that rule for information on the taxonomy of the Hawaiian monk seal.
While NMFS has jurisdiction over the Hawaiian monk seal, we are responsible for updating the List of Endangered and Threatened Wildlife (List) in title 50 of the Code of Federal Regulations (CFR) at 50 CFR 17.11(h). This final rule is an administrative action to adopt the change already published by NMFS. This action ensures that the List shows the Hawaiian monk seal's most recently accepted scientific name in accordance with 50 CFR 17.11(b).
Because NMFS provided a public comment period on the direct final rule to update the taxonomy and nomenclature of the Hawaiian monk seal, and because this action of the Service to amend the List in accordance with the determination by NMFS is nondiscretionary, the Service finds good cause that the notice and public comment procedures of 5 U.S.C. 553(b) are unnecessary for this action. We also find good cause under 5 U.S.C. 553(d)(3) to make this rule effective immediately. This rule is an administrative action to reflect the scientifically accepted taxonomy and nomenclature of the Hawaiian monk seal in the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h). The public would not be served by delaying the effective date of this rulemaking action.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless otherwise noted.
(h) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule would establish the 2015-2016 harvest specifications and management measures for groundfish taken in the U.S. exclusive economic zone off the coasts of Washington, Oregon, and California, consistent with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Pacific Coast Groundfish Fishery Management Plan (PCGFMP), and approve Amendment 24 to the PCGFMP. This final rule would also revise the management measures that are intended to keep the total catch of each groundfish species or species complex within the harvest specifications. This action also includes regulations to implement Amendment 24 to the PCGFMP, which establishes default harvest control rules for setting harvest specifications after 2015-2016.
This final rule is effective March 10, 2015, except for the modifications to sorting requirements at §§ 660.130(d)(1)(i), 660.230(c)(2)(i), and 660.330(c)(2)(i), which are effective April 1, 2015.
Information relevant to this final rule and Amendment 24, which includes a final environmental impact statement (EIS), the Record of Decision (ROD), a regulatory impact review (RIR), final regulatory flexibility analysis (FRFA), and amended PCGFMP, are available from William Stelle, Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070. Electronic copies of this final rule are also available at the NMFS West Coast Region Web site:
Sarah Williams, phone: 206-526-4646, fax: 206-526-6736, or email:
This rule is accessible via the Internet at the Office of the Federal Register Web site at
This final rule implements the 2015-2016 harvest specifications and management measures for groundfish species taken in the U.S. exclusive economic zone off the coasts of Washington, Oregon, and California. The purpose of this action is to conserve and manage Pacific Coast groundfish fishery resources to prevent overfishing, to rebuild overfished stocks, to ensure conservation, to facilitate long-term protection of essential fish habitats (EFH), and to realize the full potential of the Nation's fishery resources. The need for this action is to set catch limit specifications for 2015-2016 consistent with existing or revised harvest control rules for all stocks, and establish management measures designed to keep catch within the appropriate limits. These harvest specifications are set consistent with the optimum yield (OY) harvest management framework described in Chapter 4 of the PCGFMP. This final rule also implements Amendment 24 to PCGFMP. Amendment 24 establishes the default harvest control rules used to determine harvest specifications after 2015-2016. This rule is authorized by 16 U.S.C. 1854-55 and by the PCGFMP.
This final rule contains two types of major provisions. The first are the harvest specifications (overfishing limits (OFLs), acceptable biological catches (ABCs), and annual catch limits (ACLs)), and the second are management measures designed to keep fishing mortality within the ACLs. The harvest specifications (OFLs, ABCs, and ACLs) in this rule have been developed through a rigorous scientific review and decision-making process, which is described in detail in the proposed rule for this action (80 FR 687, January 6, 2015) and is not repeated here.
In summary, the OFL is the maximum sustainable yield (MSY) harvest level and is an estimate of the catch level above which overfishing is occurring. OFLs are based on recommendations by the Council's Scientific and Statistical Committee (SSC) as the best scientific information available. The ABC is an annual catch specification that is the stock or stock complex's OFL reduced by an amount associated with scientific uncertainty. The SSC-recommended method for incorporating scientific uncertainty is referred to as the P star-sigma approach and is discussed in detail in the proposed and final rules for the 2011-2012 (75 FR 67810, November 3, 2010 and 76 FR 27508, May 11, 2011)
This final rule includes ACLs for the seven overfished species managed under the PCGFMP. For the 2015-2016 biennium only one species, cowcod, requires rebuilding plan changes to its T
This action also approves and implements regulations for Amendment 24 to the PCGFMP. Amendment 24 consists of three components: (1) Default harvest control rules; (2) a suite of minor changes, including clarification of routine management measures and adjustments to those measures, clarification to the harvest specifications decision making schedule, changes to the description of biennial management cycle process, updates to make the PCGFMP consistent with SSC guidance on the FMSY proxy for elasmobranchs, and clarifications to definitions; and (3) addition of two rockfish species to the PCGFMP and the designation of ecosystem component (EC) species.
With respect to the Council's recommendations for EC species, in the preamble to the proposed rule, NMFS noted that reclassification of Pacific grenadier from a stock “in the fishery” to an EC species is arguably inconsistent with the NS 1 Guidelines, which state that EC species should not be a target stock and should generally not be retained. Recent Pacific grenadier landings average about 130 mt per year, and Pacific grenadier is landed, marketed, and possibly targeted in some regions, mainly in central California. However, despite relatively high amounts of catch when compared to catch of other proposed EC species, only about 10 percent of the estimated OFL contribution for Pacific grenadier was caught annually between 2009 and 2011. In addition, because the stocks that are currently in the PCGFMP and are proposed to be reclassified as EC species were previously managed as part of the Other Fish complex rather than as individual species, the EC classification results in very limited changes from existing management practices. Because of this, NMFS believes that the change to EC status will not result in additional fishing pressure on Pacific grenadier. Therefore, NMFS is approving the Council's recommendation to designate Pacific grenadier as an EC species with the understanding that continued monitoring and evaluation of the stocks' classifications will occur.
Like Pacific grenadier, big skate is also currently in the Groundfish FMP as part of the Other Fish complex, and is designated as an EC species through Amendment 24 and this final rule. The information the Council had before it at the time of its recommendations indicated that recent average catches of big skate were only 18 percent of the estimated OFL. However, at its February 2-6, 2015, work session the Council's Groundfish Management Team (GMT) discussed new information about the catch data that was used to review whether big skate was an appropriate stock for EC species classification. The GMT noted that it was recently discovered that the majority of landings contributing to an “unspecified skate” market category were in fact predominantly big skate and that recent catches of big skate were much closer to the estimated OFL. Anecdotal evidence also indicates targeting and marketing exist. The Council and its other advisory bodies have not yet reviewed the preliminary information described by the GMT. However, if accurate, big skate would likely be in need of conservation and management and not an acceptable candidate for EC species classification. Because this new information came to light after Amendment 24 was submitted for NFMS' review, and only a few weeks before the statutorily-mandated deadline for a decision on the amendment, it was not practicable for the information to be incorporated into Amendment 24. However, NMFS understands that the Council intends to review the new information regarding big skate at its April 2015 meeting. If trip limits in the trawl fishery are needed to prevent overfishing, the Council and NMFS have authority under existing regulations to implement those changes via inseason action. If the GMT verifies this preliminary information, the Council would need to initiate a process to reclassify big skate as a stock in need of conservation and management rather than an EC species.
In order to keep mortality of the species managed under the PCGFMP within the ACLs the Council also recommended management measures for recreational and commercial fisheries. Generally speaking, management measures are intended to rebuild overfished species, prevent ACLs from being exceeded, and allow for the harvest of healthy stocks. Management measures include time and area restrictions, gear restrictions, trip or bag limits, size limits, and other management tools. Management measures may vary by fishing sector because different fishing sectors require different types of management to control catch. Most of the management measures the Council recommended for 2015-2016 were slight variations to existing management measures and do not represent a change from current management practices. These types of changes include changes to trip limits, bag limits, closed areas, etc. Additionally, several new management measures were recommended by the Council and proposed by NMFS. Those measures are described in detail in the proposed rule for this action.
This final rule implements the same regulations that were described in the proposed rule with a few exceptions. All of these changes are discussed in detail below in Changes from the Proposed Rule.
The Pacific Coast Groundfish fishery is managed under the PCGFMP. The PCGFMP was prepared by the Council, approved on July 30, 1984, and has been amended numerous times. Regulations at 50 CFR part 660, subparts C through G, implement the provisions of the PCGFMP.
The PCGFMP requires the harvest specifications and management measures for groundfish to be set at least biennially. This final rule is based on the Council's final recommendations that were made at its June 2014 meeting with updated harvest specifications for some stocks adopted at its November 2014 meeting. The Notice of Availability for the FEIS for this action was published on January 16, 2015 (80 FR 2414). The final preferred alternative in the FEIS is the same as the Council's preferred alternative from June 2014, and includes the updated harvest specifications that the Council recommended at its November 2014 meeting. The final preferred alternative, including updated harvest specifications from November 2014, was described in the proposed rule for this action. See the preamble to the proposed rule for additional background information on the fishery and the provisions implemented in this final rule.
NMFS published a proposed rule on January 6, 2015 (80 FR687) with a comment period that closed on January 26, 2015. NMFS received three letters of comment on the proposed rule. NMFS received one letter from the Department of the Interior stating it had no comment, one letter from an anonymous commenter, and one letter from the Washington Department of Fish and Wildlife.
For the recreational fishery in California, the Council recommended changes for California scorpionfish and black rockfish which are incorporated into this rule. NMFS requested comments on these changes in the proposed rule but did not include the necessary regulatory text at that time. Therefore, this rule will modify regulations at § 660.360(c)(3)(v)(A)(
The Administrator, West Coast Region, NMFS, determined that the 2015-2016 groundfish harvest specifications and management measures and Amendment 24 to the PCGFMP, which this final rule implements, are necessary for the conservation and management of the Pacific Coast Groundfish fishery and are consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.
NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective upon publication in the
NMFS prepared an FEIS for the 2015-2016 groundfish harvest specifications and management measures and Amendment 24 to the PCGFMP. The Environmental Protection Agency published a notice of availability for the FEIS on January 16, 2015 (80 FR 2414.) A copy of the FEIS is available online at
This final rule has been determined to be not significant for purposes of Executive Order 12866.
A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses completed to support the action. A copy of the FRFA is available from NMFS (see
NMFS received no comments to the RIR/IRFA. NMFS agrees that the Council's choice of preferred alternatives would best achieve the Council's objectives while minimizing, to the extent practicable, the adverse effects on harvesters, processors, fishing support industries, and associated communities. The preamble above provides a statement and need for, and objective of this rule. The MSA provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. This final rule would not introduce any changes to current reporting, recordkeeping, and other compliance requirements.
This rule regulates businesses that harvest groundfish. This rule directly affects limited entry fixed gear permit holders, trawl Quota Share (QS) and whiting catch history endorsed permit holders (which includes shorebased whiting processors), tribal vessels, charterboat vessels, and open access vessels. QS holders are directly affected because the amount of Quota Pounds (QP) they receive based on their QS are affected by the ACLs. Vessels that fish under the trawl rationalization program receive their QP from the QS holders, and thus are indirectly affected if they only own vessel accounts rather than QS. Similarly, Mothership processors are indirectly affected as they receive the fish they process from limited entry permits that are endorsed with whiting catch history assignments.
According to the Small Business Administration (SBA), a small commercial harvesting business is one that has annual receipts under $20.5 million (including its affiliates), a small charterboat business is one with receipts under $7.5 million, and a small processor employs less than 500 employees. Small non-profit organizations must be independently owned and operated and not dominant in its field. Small government jurisdictions must have populations less than 50,000. For purposes of rulemaking, NMFS is applying the $20.5 million standard to catcher processors because whiting catcher processors are involved in the commercial harvest of finfish.
To determine the number of small entities potentially affected by this rule, NMFS reviewed analyses of fish ticket data and limited entry permit data. NMFS also reviewed the EIS associated with this rulemaking. The EIS includes information on charterboat, tribal, and open access fleets, available cost-earnings data developed by Northwest Fisheries Science Center (NWFSC). NMFS also reviewed responses associated with the permitting process for the trawl rationalization program—applicants were asked if they considered themselves a small business based on SBA definitions. This rule would regulate businesses that harvest groundfish.
NMFS makes the following conclusions based primarily on analyses associated with fish ticket data, limited entry permit data, previous analysis of the charterboat and tribal fleets, NMFS expertise, and the EIS associated with this rule making. As part of the permitting process for the Trawl rationalization program or to participate in non-trawl limited entry permit fisheries, applicants were asked if they considered themselves a small business. NMFS reviewed the ownership and affiliation relationships of quota share permit holders, vessel account holders, catcher processor permits, Mothership processing, and first receiver/shore processor permits. Based on this review, there are an estimated 102 unique small businesses and 21 large businesses that participate in this Trawl Rationalization Program. In the non-trawl limited entry program, there are 222 small businesses.
Open access vessels are not federally permitted so counts based on landings can provide an estimate of the affected. The Draft EIS analysis for the 2013-14 Pacific Groundfish Specifications and Management Measures contained the following assessment, which is deemed reasonable estimates for this rule, as these fisheries have not changed significantly in recent years. In 2011, 682 directed open access vessels fished while 284 incidental open access vessels fished for a total of 966 vessels. Over the 2005-2010 period, 1583 different directed open access vessels fished and 837 different incidental open access vessels fished for a total of 2420 different vessels. According to the Draft EIS, over the 2008-2010 period, 447 to 470 charterboats participated in the groundfish fishery, 447 in 2010. The four tribal fleets sum to a total of 54 longline vessels, 5 whiting trawlers, and 5 non-whiting trawlers, for a grand total of 64 vessels. Available information on average revenue per vessel suggests that all the entities in these groups can be considered small.
These regulations implement the Council's preferred alternative. The key economic effects of the Council's preferred alternative and the other alternatives were described in detail in the proposed rule for this action. The economic effects of the Council's preferred alternative were compared with the no action alternative where the no action alternative reflects maintaining 2013-2014 harvest specifications and management measures into 2015-2016. Total shoreside sectors' ex-vessel revenue under the Preferred Alternative is projected to be the highest among the action alternatives. Compared with No Action, total non-whiting shoreside ex-vessel revenue under the preferred alternative is projected to increase by $16 million (20 percent) in 2015. Projected revenues are higher than under No Action for every shorebased groundfish sector. The greatest absolute and percentage increase in revenue is projected for the IFQ sector: $12.8 million (45 percent) in 2015. There is no projected change from No Action for the incidental Open Access Sector. Future rulemaking will address the amount of whiting that is to be harvested by shoreside IFQ, mothership catcher vessels, catcher-processors, and tribal fleets. This rule making does affect the amount of bycatch that these fleets will have for their directed whiting fisheries.
Under the Preferred Alternative, an increase of 11,600 angler trips is projected from No Action coastwide. All of the increase occurs in California. Trips increase by 1,600 (20 percent) in the Mendocino region, 5,600 (11 percent) in the San Francisco region and 4,400 (4 percent) in the Central region. No change from No Action is projected for California's Northern and Southern management areas or for recreational fisheries in Washington and Oregon. This represents a coastwide income increase of $1,471,000 compared to No Action alternative.
NMFS issued Biological Opinions under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects of the PCGFMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the PCGFMP is not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or
NMFS issued a Supplemental Biological Opinion on March 11, 2006 concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.
NMFS has reinitiated section 7 consultation on the PCGFMP with respect to its effects on listed salmonids. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns or reasonable and prudent measures to minimize incidental take, NMFS would exercise necessary authorities in coordination, to the extent possible, with the Council to put such additional alternatives or measures into place. After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize any listed species, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.
On December 7, 2012, NMFS completed a biological opinion concluding that the groundfish fishery is not likely to jeopardize non-salmonid marine species including listed eulachon, green sturgeon, humpback whales, Steller sea lions, and leatherback sea turtles. The opinion also concludes that the fishery is not likely to adversely modify critical habitat for green sturgeon and leatherback sea turtles. The opinion also concluded that the fishery is not likely to adversely affect green sea turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific right whales, blue whales, fin whales, sperm whales, Southern Resident killer whales, Guadalupe fur seals, or the critical habitat for Steller sea lions.
On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that the groundfish fishery will not jeopardize the continued existence of the short-tailed albatross. The (FWS) also concurred that the fishery is not likely to adversely affect the marbled murrelet, California least tern, southern sea otter, bull trout, or bull trout critical habitat.
This final rule would not alter the effects on marine mammals over what has already been considered for the fishery. West Coast pot fisheries for sablefish are considered Category II fisheries under the MMPA's List of Fisheries, indicating occasional interactions. All other West Coast groundfish fisheries, including the trawl fishery, are considered Category III fisheries under the MMPA, indicating a remote likelihood of or no known serious injuries or mortalities to marine mammals. On February 27, 2012, NMFS published notice that the incidental taking of Steller sea lions in the West Coast groundfish fisheries is addressed in NMFS' December 29, 2010, Negligible Impact Determination (NID) and this fishery has been added to the list of fisheries authorized to take Steller sea lions (77 FR 11493, February 27, 2012). On September 4, 2013, based on its negligible impact determination dated August 28, 2013, NMFS issued a permit for a period of three years to authorize the incidental taking of humpback whales by the sablefish pot fishery (78 FR 54553, September 4, 2013).
Pursuant to Executive Order 13175, this final rule was developed after meaningful collaboration with Tribal officials from the area covered by the PCGFMP. Under the MSA at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian Tribe with Federally recognized fishing rights from the area of the Council's jurisdiction. In addition, regulations implementing the PCGFMP establish a procedure by which the Tribes with treaty fishing rights in the area covered by the PCGFMP request new allocations or regulations specific to the Tribes, in writing, before the first of the two meetings at which the Council considers groundfish management measures. The regulations at 50 CFR 660.50(d)(2) further state “the Secretary will develop Tribal allocations and regulations under this paragraph in consultation with the affected Tribe(s) and, insofar as possible, with Tribal consensus.” The Tribal management measures in this final rule have been developed following these procedures.
Fisheries, Fishing, and Indian fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:
16 U.S.C. 1801
(1)
(2)
(5)
(7)
(i)
(ii)
(A)
(B)
(iii)
(A)
(B)
(9)
(10) “Ecosystem component species” means species that are included in the PCGFMP but are not “in the fishery” and therefore not actively managed and do not require harvest specifications. Ecosystem component species are not targeted in any fishery, not generally retained for sale or personal use, and are not determined to be subject to overfishing, approaching an overfished condition, or overfished, nor are they likely to become subject to overfishing or overfished in the absence of conservation and management measures. Ecosystem component species include: All skates listed here in paragraph (2), except longnose skate; all grenadiers listed here in paragraph (5); soupfin shark; ratfish; and finescale codling.
(2) * * *
(v) Columbia River—46°16.00′ N. lat.
(c)
(f) * * *
(2) * * *
(ii) The Tribal allocation is 479 mt in 2015 and 524 mt in 2016 per year. This allocation is, for each year, 10 percent of the Monterey through Vancouver area (North of 36° N. lat.) ACL. The Tribal allocation is reduced by 1.6 percent for estimated discard mortality.
(5)
(7)
(8)
(b) * * *
(1) Except for Pacific whiting, every biennium, NMFS will implement OFLs, ABCs, and ACLs, if applicable, for each species or species group based on the harvest controls used in the previous biennium (referred to as default harvest control rules) applied to the best available scientific information. The default harvest control rules for each species or species group are listed in Appendix F to the PCGFMP and the biennial SAFE document. NMFS may implement OFLs, ABCs, and ACLs, if applicable, that vary from the default harvest control rules based on a Council recommendation.
(2) [Reserved]
(c) * * *
(1) * * *
(i)
The revisions and addition read as follows:
(c) * * *
(1) 34°08.40′ N. lat., 120°33.78′ W. long.;
(2) 34°07.80′ N. lat., 120°30.99′ W. long.;
(3) 34°08.42′ N. lat., 120°27.92′ W. long.;
(4) 34°09.31′ N. lat., 120°27.81′ W. long.;
(5) 34°05.85′ N. lat., 120°17.13′ W. long.;
(6) 34°05.73′ N. lat., 120°05.93′ W. long.;
(7) 34°06.14′ N. lat., 120°04.86′ W. long.;
(8) 34°05.70′ N. lat., 120°03.17′ W. long.;
(9) 34°05.67′ N. lat., 119°58.98′ W. long.;
(10) 34°06.34′ N. lat., 119°56.78′ W. long.;
(11) 34°05.57′ N. lat., 119°51.35′ W. long.;
(12) 34°07.08′ N. lat., 119°52.43′ W. long.;
(13) 34°04.49′ N. lat., 119°35.55′ W. long.;
(14) 34°04.73′ N. lat., 119°32.77′ W. long.;
(15) 34°02.02′ N. lat., 119°19.18′ W. long.;
(16) 34°01.03′ N. lat., 119°19.50′ W. long.;
(17) 33°59.45′ N. lat., 119°22.38′ W. long.;
(18) 33°58.68′ N. lat., 119°32.36′ W. long.;
(19) 33°56.43′ N. lat., 119°41.13′ W. long.;
(20) 33°56.04′ N. lat., 119°48.20′ W. long.;
(21) 33°57.32′ N. lat., 119°51.96′ W. long.;
(22) 33°59.32′ N. lat., 119°55.59′ W. long.;
(23) 33°57.52′ N. lat., 119°55.19′ W. long.;
(24) 33°56.26′ N. lat., 119°54.29′ W. long.;
(25) 33°54.30′ N. lat., 119°54.83′ W. long.;
(26) 33°50.97′ N. lat., 119°57.03′ W. long.;
(27) 33°50.25′ N. lat., 120°00.00′ W. long.;
(28) 33°50.03′ N. lat., 120°03.00′ W. long.;
(29) 33°51.06′ N. lat., 120°03.73′ W. long.;
(30) 33°54.49′ N. lat., 120°12.85′ W. long.;
(31) 33°58.90′ N. lat., 120°20.15′ W. long.;
(32) 34°00.71′ N. lat., 120°28.21′ W. long.;
(33) 34°02.20′ N. lat., 120°30.37′ W. long.;
(34) 34°03.60′ N. lat., 120°30.60′ W. long.;
(35) 34°06.96′ N. lat., 120°34.22′ W. long.;
(36) 34°08.01′ N. lat., 120°35.24′ W. long.; and
(37) 34°08.40′ N. lat., 120°33.78′ W. long.
(f) * * *
(199) 32°56.00′ N. lat., 117°19.16′ W. long.;
(207) 32°44.89′ N. lat., 117°21.89′ W. long.;
(a) * * *
(123) 43°56.07′ N. lat., 124°55.41′ W. long.;
The additions read as follows:
(l) * * *
(80) 44°48.25′ N. lat., 124°40.61′ W. long.;
(81) 44°42.24′ N. lat., 124°48.05′ W. long.;
(82) 44°41.35′ N. lat., 124°48.03′ W. long.;
(83) 44°40.27′ N. lat., 124°49.11′ W. long.;
(84) 44°38.52′ N. lat., 124°49.11′ W. long.;
(85) 44°21.73′ N. lat., 124°49.82′ W. long.;
(86) 44°17.57′ N. lat., 124°55.04′ W. long.;
a/ Annual catch limits (ACLs), annual catch targets (ACTs) and harvest guidelines (HGs) are specified as total catch values.
b/ Fishery harvest guidelines means the harvest guideline or quota after subtracting Pacific Coast treaty Indian tribes allocations and projected catch, projected research catch, deductions for fishing mortality in non-
c/ Bocaccio. A bocaccio stock assessment update was conducted in 2013 for the bocaccio stock between the U.S.-Mexico border and Cape Blanco. The stock is managed with stock-specific harvest specifications south of 40°10′ N. lat. and within the Minor Shelf Rockfish complex north of 40°10′ N. lat. A historical catch distribution of approximately 6 percent was used to apportion the assessed stock to the area north of 40°10′ N. lat. The bocaccio stock was estimated to be at 31.4 percent of its unfished biomass in 2013. The OFL of 1,444 mt is projected in the 2013 stock assessment using an F
d/ Canary rockfish. A canary rockfish stock assessment update was conducted in 2011 and the stock was estimated to be at 23.2 percent of its unfished biomass coastwide in 2011. The coastwide OFL of 733 mt is projected in the 2011 rebuilding analysis using an F
e/ Cowcod. A stock assessment for the Conception Area was conducted in 2013 and the stock was estimated to be at 33.9 percent of its unfished biomass in 2013. The Conception Area OFL of 55.0 mt is projected in the 2013 rebuilding analysis using an F
f/ Darkblotched rockfish. A 2013 stock assessment estimated the stock to be at 36 percent of its unfished biomass in 2013. The OFL of 574 mt is projected in the 2013 stock assessment using an F
g/ Pacific Ocean Perch. A POP stock assessment was conducted in 2011 and the stock was estimated to be at 19.1 percent of its unfished biomass in 2011. The OFL of 842 mt for the area north of 40°10′ N. lat. is projected in the 2011 rebuilding analysis using an F
h/ Petrale sole. A 2013 stock assessment estimated the stock to be at 22.3 percent of its unfished biomass in 2013. The OFL of 2,946 mt is projected in the 2013 assessment using an F
i/ Yelloweye rockfish. A stock assessment update was conducted in 2011. The stock was estimated to be at 21.4 percent of its unfished biomass in 2011. The 52 mt coastwide OFL was projected in the 2011 rebuilding analysis using an F
j/ Arrowtooth flounder. The arrowtooth flounder stock was last assessed in 2007 and was estimated to be at 79 percent of its unfished biomass in 2007. The OFL of 6,599 mt is derived from the 2007 assessment using an F
k/ Black rockfish south (Oregon and California). A stock assessment was conducted for black rockfish south of 45°46′ N. lat. (Cape Falcon, Oregon) to Central California (
l/ Black rockfish north (Washington). A stock assessment was conducted for black rockfish north of 45°46′ N. lat. (Cape Falcon, Oregon) in 2007. The biomass in the north was estimated to be at 53 percent of its unfished biomass in 2007. The OFL from the assessed area is derived from the 2007 assessment using an F
m/ Cabezon (California). A cabezon stock assessment was conducted in 2009. The cabezon spawning biomass in waters off California was estimated to be at 48.3 percent of its unfished biomass in 2009. The OFL of 161 mt is calculated using an F
n/ Cabezon (Oregon). A cabezon stock assessment was conducted in 2009. The cabezon spawning biomass in waters off Oregon was estimated to be at 52 percent of its unfished biomass in 2009. The OFL of 49 mt is calculated using an F
o/ California scorpionfish was assessed in 2005 and was estimated to be at 79.8 percent of its unfished biomass in 2005. The OFL of 119 mt is projected in the 2005 assessment using an F
p/ Chilipepper. The coastwide chilipepper stock was assessed in 2007 and estimated to be at 70 percent of its unfished biomass in 2006. Chilipepper are managed with stock-specific harvest specifications south of 40°10 N. lat. and within the Minor Shelf Rockfish complex north of 40°10′ N. lat. Projected OFLs are stratified north and south of 40°10′ N. lat. based on the average 1998-2008 assessed area catch, which is 93 percent for the area south of 40°10′ N. lat. and 7 percent for the area north of 40°10′ N. lat. The OFL of 1,703 mt for the area south of 40°10′ N. lat. is projected in the 2007 assessment using an F
q/ Dover sole. A 2011 Dover sole assessment estimated the stock to be at 83.7 percent of its unfished biomass in 2011. The OFL of 66,871 mt is projected in the 2011 stock assessment using an F
r/ English sole. A 2013 stock assessment was conducted, which estimated the stock to be at 88 percent of its unfished biomass in 2013. The OFL of 10,792 mt is projected in the 2013 assessment using an F
s/ Lingcod north. A lingcod stock assessment was conducted in 2009. The lingcod spawning biomass off Washington and Oregon was estimated to be at 62 percent of its unfished biomass in 2009. The OFL for Washington and Oregon of 1,898 mt is calculated using an F
t/ Lingcod south. A lingcod stock assessment was conducted in 2009. The lingcod spawning biomass off California was estimated to be at 74 percent of its unfished biomass in 2009. The OFL for California of 2,317 mt is projected in the assessment using an F
u/ Longnose skate. A stock assessment was conducted in 2007 and the stock was estimated to be at 66 percent of its unfished biomass. The OFL of 2,449 mt is derived from the 2007 stock assessment using an F
v/ Longspine thornyhead. A 2013 longspine thornyhead coastwide stock assessment estimated the stock to be at 75 percent of its unfished biomass in 2013. A coastwide OFL of 5,007 mt is projected in the 2013 stock assessment using an F
w/ Pacific cod. The 3,200 mt OFL is based on the maximum level of historic landings. The ABC of 2,221 mt is a 30.6 percent reduction from the OFL (σ=1.44/P*=0.40) as it's a category 3 stock. The 1,600 mt ACL is the OFL reduced by 50 percent as a precautionary adjustment. 509 mt is deducted from the ACL to accommodate the Tribal fishery (500 mt), research catch (7 mt), and the incidental open access fishery (2.0 mt), resulting in a fishery HG of 1,091 mt.
x/ Pacific whiting. Pacific whiting are assessed annually. The final specifications will be determined consistent with the U.S.-Canada Pacific Whiting Agreement and will be announced after the Council's April 2015 meeting.
y/ Sablefish north. A coastwide sablefish stock assessment was conducted in 2011. The coastwide sablefish biomass was estimated to be at 33 percent of its unfished biomass in 2011. The coastwide OFL of 7,857 mt is projected in the 2011 stock assessment using an F
z/ Sablefish south. The ACL for the area south of 36° N. lat. is 1,719 mt (26.4 percent of the calculated coastwide ACL value). 5 mt is deducted from the ACL to accommodate the incidental open access fishery (2 mt) and research catch (3 mt), resulting in a fishery HG of 1,714 mt.
aa/ Shortbelly rockfish. A non-quantitative shortbelly rockfish assessment was conducted in 2007. The spawning stock biomass of shortbelly rockfish was estimated to be 67 percent of its unfished biomass in 2005. The OFL of 6,950 mt is based on the estimated MSY in the 2007 stock assessment. The ABC of 5,789 mt is a 16.7 percent reduction of the OFL (σ=0.72/P*=0.40) as it's a category 2 stock. The 500 mt ACL is set to accommodate incidental catch when fishing for co-occurring healthy stocks and in recognition of the stock's importance as a
bb/ Shortspine thornyhead. A 2013 coastwide shortspine thornyhead stock assessment estimated the stock to be at 74.2 percent of its unfished biomass in 2013. A coastwide OFL of 3,203 mt is projected in the 2013 stock assessment using an F
cc/ Spiny dogfish. A coastwide spiny dogfish stock assessment was conducted in 2011. The coastwide spiny dogfish biomass was estimated to be at 63 percent of its unfished biomass in 2011. The coastwide OFL of 2,523 mt is derived from the 2011 assessment using an F
dd/ Splitnose rockfish. A splitnose rockfish coastwide assessment was conducted in 2009 that estimated the stock to be at 66 percent of its unfished biomass in 2009. Splitnose rockfish in the north is managed in the Minor Slope Rockfish complex and with species-specific harvest specifications south of 40°10′ N. lat. The coastwide OFL is projected in the 2009 assessment using an F
ee/ Starry Flounder. The stock was assessed in 2005 and was estimated to be above 40 percent of its unfished biomass in 2005 (44 percent in Washington and Oregon, and 62 percent in California). The coastwide OFL of 1,841 mt is derived from the 2005 assessment using an F
ff/ Widow rockfish. The widow rockfish stock was assessed in 2011 and was estimated to be at 51.1 percent of its unfished biomass in 2011. The OFL of 4,137 mt is projected in the 2011 stock assessment using an F
gg/ Yellowtail rockfish. A 2013 yellowtail rockfish stock assessment was conducted for the portion of the population north of 40°10′ N. lat. The estimated stock depletion is 69 percent of its unfished biomass in 2013. The OFL of 7,218 mt is projected in the 2013 stock assessment using an F
hh/ Minor Nearshore Rockfish north. The OFL for Minor Nearshore Rockfish north of 40°10′ N. lat. of 88 mt is the sum of the OFL contributions for the component species managed in the complex. The ABCs for the minor rockfish complexes are based on a sigma value of 0.72 for category 2 stocks (
ii/ Minor Shelf Rockfish north. The OFL for Minor Shelf Rockfish north of 40°10′ N. lat. of 2,209 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the minor rockfish complexes are based on a sigma value of 0.72 for category 2 stocks (
jj/ Minor Slope Rockfish north. The OFL for Minor Slope Rockfish north of 40°10′ N. lat. of 1,831 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the Minor Slope Rockfish complexes are based on a sigma value of 0.39 for aurora rockfish, a sigma value of 0.36 for other category 1 stocks (
kk/ Minor Nearshore Rockfish south. The OFL for the Minor Nearshore Rockfish complex south of 40°10′ N. lat. of 1,313 mt is the sum of the OFL contributions for the component species within the complex. The ABC for the southern Minor Nearshore Rockfish complex is based on a sigma value of 0.36 for category 1 stocks (
ll/ Minor Shelf Rockfish south. The OFL for the Minor Shelf Rockfish complex south of 40°10′ N. lat. of 1,918 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the southern Minor Shelf Rockfish complex is based on a sigma value of 0.72 for category 2 stocks (
mm/ Minor Slope Rockfish south. The OFL for the Minor Slope Rockfish complex south of 40°10′ N. lat. of 813 mt is the sum of the OFL contributions for the component species within the complex. The ABC for the southern Minor Slope Rockfish complex is based on a sigma value of 0.39 for aurora rockfish, a sigma value of 0.72 for category 2 stocks (
nn/ Other Flatfish. The Other Flatfish complex is comprised of flatfish species managed in the PCGFMP that are not managed with species-specific OFLs/ABCs/ACLs. Most of the species in the Other Flatfish complex are unassessed and include butter sole, curlfin sole, flathead sole, Pacific sanddab (assessed in 2013 but the assessment results were too uncertain to inform harvest specifications), rock sole, sand sole, and rex sole (assessed in 2013). The Other Flatfish OFL of 11,453 mt is based on the sum of the OFL contributions of the component stocks. The ABC of 8,749 mt is based on a sigma value of 0.72 for category 2 stocks (
oo/ Other Fish. The Other Fish complex is comprised of kelp greenling coastwide, cabezon off Washington, and leopard shark coastwide. These species are unassessed. The OFL of 291 mt is the sum of the OFL contributions for kelp greenling off California (the SSC has not approved methods for calculating the OFL contributions for kelp greenling off Oregon and Washington), cabezon off Washington, and leopard shark coastwide. The ABC of 242 mt is the sum of ABC contributions for kelp greenling off California, cabezon off Washington and leopard shark coastwide calculated by applying a P* of 0.45 and a sigma of 1.44 to the OFL contributions for those stocks. The ACL is set equal to the ABC. There are no deductions from the ACL so the fishery HG is equal to the ACL of 242 mt.
a/ Annual catch limits (ACLs), annual catch targets (ACTs) and harvest guidelines (HGs) are specified as total catch values.
b/ Fishery harvest guidelines means the harvest guideline or quota after subtracting Pacific Coast treaty Indian tribes allocations and projected catch, projected research catch, deductions for fishing mortality in non-groundfish fisheries, and deductions for EFPs from the ACL or ACT.
c/ Bocaccio. A bocaccio stock assessment update was conducted in 2013 for the bocaccio stock between the U.S.-Mexico border and Cape Blanco. The stock is managed with stock-specific harvest specifications south of 40°10′ N. lat. and within the Minor Shelf Rockfish complex north of 40°10′ N. lat. A historical catch distribution of approximately 6 percent was used to apportion the assessed stock to the area north of 40°10′ N. lat. The bocaccio stock was estimated to be at 31.4 percent of its unfished biomass in 2013. The OFL of 1,351 mt is projected in the 2013 stock assessment using an F
d/ Canary rockfish. A canary rockfish stock assessment update was conducted in 2011 and the stock was estimated to be at 23.2 percent of its unfished biomass coastwide in 2011. The coastwide OFL of 729 mt is projected in the 2011 rebuilding analysis using an F
e/ Cowcod. A stock assessment for the Conception Area was conducted in 2013 and the stock was estimated to be 33.9 percent of its unfished biomass in 2013. The Conception Area OFL of 56.4 mt is projected in the 2013 rebuilding analysis using an F
f/ Darkblotched rockfish. A 2013 stock assessment estimated the stock to be at 36 percent of its unfished biomass in 2013. The OFL of 580 mt is projected in the 2013 stock assessment using an F
g/ Pacific Ocean Perch. A POP stock assessment was conducted in 2011 and the stock was estimated to be at 19.1 percent of its unfished biomass in 2011. The OFL of 850 mt for the area north of 40°10′ N. lat. is projected in the 2011 rebuilding analysis using an F
h/ Petrale sole. A 2013 stock assessment estimated the stock to be at 22.3 percent of its unfished biomass in 2013. The OFL of 3,044 mt is projected in the 2013 assessment using an F
i/ Yelloweye rockfish. A stock assessment update was conducted in 2011. The stock was estimated to be at 21.4 percent of its unfished biomass in 2011. The 52 mt coastwide OFL was projected in the 2011 rebuilding analysis using an F
j/ Arrowtooth flounder. The arrowtooth flounder stock was last assessed in 2007 and was estimated to be at 79 percent of its unfished biomass in 2007. The OFL of 6,396 mt is derived from the 2007 assessment using an F
k/ Black rockfish south (Oregon and California). A stock assessment was conducted for black rockfish south of 45°46′ N. lat. (Cape Falcon, Oregon) to Central California (
l/ Black rockfish north (Washington). A stock assessment was conducted for black rockfish north of 45°46′ N. lat. (Cape Falcon, Oregon) in 2007. The biomass in the north was estimated to be at 53 percent of its unfished biomass in 2007. The OFL from the assessed area is derived from the 2007 assessment using an F
m/ Cabezon (California). A cabezon stock assessment was conducted in 2009. The cabezon spawning biomass in waters off
n/ Cabezon (Oregon). A cabezon stock assessment was conducted in 2009. The cabezon spawning biomass in waters off Oregon was estimated to be at 52 percent of its unfished biomass in 2009. The OFL of 49 mt is calculated using an F
o/ California scorpionfish was assessed in 2005 and was estimated to be at 79.8 percent of its unfished biomass in 2005. The OFL of 117 mt is projected in the 2005 assessment using an F
p/ Chilipepper. The coastwide chilipepper stock was assessed in 2007 and estimated to be at 70 percent of its unfished biomass in 2006. Chilipepper are managed with stock-specific harvest specifications south of 40°10 N. lat. and within the Minor Shelf Rockfish complex north of 40°10′ N. lat. Projected OFLs are stratified north and south of 40°10′ N. lat. based on the average 1998-2008 assessed area catch, which is 93 percent for the area south of 40°10′ N. lat. and 7 percent for the area north of 40°10′ N. lat. The OFL of 1,694 mt for the area south of 40°10′ N. lat. is projected in the 2007 assessment using an F
q/ Dover sole. A 2011 Dover sole assessment estimated the stock to be at 83.7 percent of its unfished biomass in 2011. The OFL of 59,221 mt is projected in the 2011 stock assessment using an F
r/ English sole. A 2013 stock assessment was conducted, which estimated the stock to be at 88 percent of its unfished biomass in 2013. The OFL of 7890 mt is projected in the 2013 assessment using an F
s/ Lingcod north. A lingcod stock assessment was conducted in 2009. The lingcod spawning biomass off Washington and Oregon was estimated to be at 62 percent of its unfished biomass in 2009. The OFL for Washington and Oregon of 1,842 mt is calculated using an F
t/ Lingcod south . A lingcod stock assessment was conducted in 2009. The lingcod spawning biomass off California was estimated to be at 74 percent of its unfished biomass in 2009. The OFL for California of 2,185 mt is projected in the assessment using an F
u/ Longnose skate. A stock assessment was conducted in 2007 and the stock was estimated to be at 66 percent of its unfished biomass. The OFL of 2,405 mt is derived from the 2007 stock assessment using an F
v/ Longspine thornyhead. A 2013 longspine thornyhead coastwide stock assessment estimated the stock to be at 75 percent of its unfished biomass in 2013. A coastwide OFL of 4,763 mt is projected in the 2013 stock assessment using an F
w/ Pacific cod. The 3,200 mt OFL is based on the maximum level of historic landings. The ABC of 2,221 mt is a 30.6 percent reduction from the OFL (σ=1.44/P*=0.40) as it's a category 3 stock. The 1,600 mt ACL is the OFL reduced by 50 percent as a precautionary adjustment. 509 mt is deducted from the ACL to accommodate the Tribal fishery (500 mt), research catch (7 mt), and the incidental open access fishery (2.0 mt), resulting in a fishery HG of 1,091 mt.
x/ Pacific whiting. Pacific whiting are assessed annually. The final specifications will be determined consistent with the U.S.-Canada Pacific Whiting Agreement and will be announced after the Council's April 2016 meeting.
y/ Sablefish north. A coastwide sablefish stock assessment was conducted in 2011. The coastwide sablefish biomass was estimated to be at 33 percent of its unfished biomass in 2011. The coastwide OFL of 8,526 mt is projected in the 2011 stock assessment using an F
z/ Sablefish south. The ACL for the area south of 36° N. lat. is 1,880 mt (26.4 percent of the calculated coastwide ACL value). 5 mt is deducted from the ACL to accommodate the incidental open access fishery (2 mt) and research catch (3 mt), resulting in a fishery HG of 1,875 mt.
aa/ Shortbelly rockfish. A non-quantitative shortbelly rockfish assessment was conducted in 2007. The spawning stock biomass of shortbelly rockfish was estimated
bb/ Shortspine thornyhead. A 2013 coastwide shortspine thornyhead stock assessment estimated the stock to be at 74.2 percent of its unfished biomass in 2013. A coastwide OFL of 3,169 mt is projected in the 2013 stock assessment using an F
cc/ Spiny dogfish. A coastwide spiny dogfish stock assessment was conducted in 2011. The coastwide spiny dogfish biomass was estimated to be at 63 percent of its unfished biomass in 2011. The coastwide OFL of 2,503 mt is derived from the 2011 assessment using an F
dd/ Splitnose rockfish. A splitnose rockfish coastwide assessment was conducted in 2009 that estimated the stock to be at 66 percent of its unfished biomass in 2009. Splitnose rockfish in the north is managed in the Minor Slope Rockfish complex and with species-specific harvest specifications south of 40°10′ N. lat. The coastwide OFL is projected in the 2009 assessment using an F
ee/ Starry Flounder. The stock was assessed in 2005 and was estimated to be above 40 percent of its unfished biomass in 2005 (44 percent in Washington and Oregon, and 62 percent in California). The coastwide OFL of 1,847 mt is derived from the 2005 assessment using an F
ff/ Widow rockfish. The widow rockfish stock was assessed in 2011 and was estimated to be at 51.1 percent of its unfished biomass in 2011. The OFL of 3,990 mt is projected in the 2011 stock assessment using an F
gg/ Yellowtail rockfish. A 2013 yellowtail rockfish stock assessment was conducted for the portion of the population north of 40°10′ N. lat. The estimated stock depletion is 69 percent of its unfished biomass in 2013. The OFL of 6,949 mt is projected in the 2013 stock assessment using an F
hh/ Minor Nearshore Rockfish north. The OFL for Minor Nearshore Rockfish north of 40°10′ N. lat. of 88 mt is the sum of the OFL contributions for the component species managed in the complex. The ABCs for the minor rockfish complexes are based on a sigma value of 0.72 for category 2 stocks (
ii/ Minor Shelf Rockfish north. The OFL for Minor Shelf Rockfish north of 40°10′ N. lat. of 2,218 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the minor rockfish complexes are based on a sigma value of 0.72 for category 2 stocks (
jj/ Minor Slope Rockfish north. The OFL for Minor Slope Rockfish north of 40°10′ N. lat. of 1,844 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the Minor Slope Rockfish complexes are based on a sigma value of 0.39 for aurora rockfish, a sigma value of 0.36 for other category 1 stocks (
kk/ Minor Nearshore Rockfish south. The OFL for the Minor Nearshore Rockfish complex south of 40°10′ N. lat. of 1,288 mt is the sum of the OFL contributions for the component species within the complex. The
ll/ Minor Shelf Rockfish south. The OFL for the Minor Shelf Rockfish complex south of 40°10′ N. lat. of 1,919 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the southern Minor Shelf Rockfish complex is based on a sigma value of 0.72 for category 2 stocks (
mm/ Minor Slope Rockfish south. The OFL of 814 mt is the sum of the OFL contributions for the component species within the complex. The ABC for the southern Minor Slope Rockfish complex is based on a sigma value of 0.39 for aurora rockfish, a sigma value of 0.72 for category 2 stocks (
nn/ Other Flatfish. The Other Flatfish complex is comprised of flatfish species managed in the PCGFMP that are not managed with species-specific OFLs/ABCs/ACLs. Most of the species in the Other Flatfish complex are unassessed, and include: Butter sole, curlfin sole, flathead sole, Pacific sanddab (assessed in 2013, but the assessment results were too uncertain to inform harvest specifications), rock sole, sand sole, and rex sole (assessed in 2013). The Other Flatfish OFL of 9,645 mt is based on the sum of the OFL contributions of the component stocks. The ABC of 7,243 mt is based on a sigma value of 0.72 for category 2 stocks (
oo/ Other Fish. The Other Fish complex is comprised of kelp greenling coastwide, cabezon off Washington, and leopard shark coastwide. These species are unassessed. The OFL of 291 mt is the sum of the OFL contributions for kelp greenling off California (the SSC has not approved methods for calculating the OFL contributions for kelp greenling off Oregon and Washington), cabezon off Washington, and leopard shark coastwide. The ABC of 243 mt is the sum of ABC contributions for kelp greenling off California, cabezon off Washington and leopard shark coastwide calculated by applying a P* of 0.45 and a sigma of 1.44 to the OFL contributions for those stocks. The ACL is set equal to the ABC. There are no deductions from the ACL so the fishery HG is equal to the ACL of 243 mt.
(d) * * *
(1) * * *
(i)
(e) * * *
(4) * * *
(iv) If a vessel fishes in the trawl RCA, it may not participate in any fishing on that trip that is prohibited within the trawl RCA. Nothing in these Federal regulations supersedes any state regulations that may prohibit trawling shoreward of the fishery management area (3-200 nm).
(d) * * *
(1) * * *
(ii) * * *
(D) For the trawl fishery, NMFS will issue QP based on the following shorebased trawl allocations:
(c) * * *
(2) * * *
(i)
(b) * * *
(3) * * *
(i) A vessel participating in the primary season will be constrained by the sablefish cumulative limit associated with each of the permits registered for use with that vessel. During the primary season, each vessel authorized to fish in that season under paragraph (a) of this section may take, retain, possess, and land sablefish, up to the cumulative limits for each of the permits registered for use with that vessel (
(c) * * *
(2) * * *
(i)
(d) * * *
(13) * * *
(iii) The non-groundfish trawl RCA restrictions in this section apply to vessels taking and retaining or possessing groundfish in the EEZ, or landing groundfish taken in the EEZ. Unless otherwise authorized by Part 660, it is unlawful for a vessel to retain any groundfish taken on a fishing trip for species other than groundfish that occurs within the non-groundfish trawl RCA. If a vessel fishes in a non-groundfish fishery in the non-groundfish trawl RCA, it may not participate in any fishing on that trip that is prohibited within the non-groundfish trawl RCA. Nothing in these Federal regulations supersedes any state regulations that may prohibit trawling shoreward of the fishery management area (3-200 nm).
(c) * * *
(1) * * *
(i) * * *
(D) * * *
(
(
(
(iii) * * *
(B) Between 48°10′ N. lat. (Cape Alava) and 46°16′ N. lat. (Columbia River) (Washington Marine Areas 1-3), there is a 2 cabezon per day bag limit.
(iv) * * *
(A) Between the U.S./Canada border and 48°10′ N. lat. (Cape Alava) (Washington Marine Area 4), recreational fishing for lingcod is open, for 2015, from April 16 through October 15, and for 2016, from April 16 through October 15. Lingcod may be no smaller than 22 inches (61 cm) total length.
(B) Between 48°10′ N. lat. (Cape Alava) and 46°16′ N. lat. (Columbia River) (Washington Marine Areas 1-3), recreational fishing for lingcod is open for 2015, from March 14 through October 17, and for 2016, from March 12 through October 15. Lingcod may be no smaller than 22 inches (56 cm) total length.
(2) * * *
(iii) * * *
(A)
(D)
(E) Taking and retaining yelloweye rockfish is prohibited at all times and in all areas.
(3) * * *
(i) * * *
(A) * * *
(
(
(
(
(ii) * * *
(A) * * *
(
(
(
(B)
(iii) * * *
(A) * * *
(
(
(
(B)
(v) * * *
(A) * * *
(
(
(
(
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions submitted by the Commonwealth of Pennsylvania. These revisions consist of an update to the motor vehicle emissions budgets (MVEBs) for nitrogen oxides (NO
Written comments must be received on or before April 9, 2015.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2014-0652 by one of the following methods:
A.
B.
C.
D.
Asrah Khadr, (215) 814-2071, or by email at
On May 28, 2014, Pennsylvania submitted formal revisions to its SIP. The SIP revisions consist of updated MVEBs for NO
On July 18, 1997 (62 FR 38856), EPA established the 1997 8-Hour Ozone NAAQS. On April 30, 2004 (69 FR 23858), Lackawanna, Luzerne, Wyoming, and Monroe Counties were designated as nonattainment for the 1997 8-Hour Ozone NAAQS as a part of the Scranton/Wilkes-Barre Nonattainment Area. On June 12, 2007, the Pennsylvania Department of Environmental Protection (PADEP) submitted a SIP revision which consisted of a maintenance plan, a 2002 base year inventory, and MVEBs for transportation conformity purposes. On November 19, 2007 (72 FR 64948), EPA approved the SIP revision as well as the redesignation request made by PADEP; therefore, the Scranton/Wilkes-Barre Nonattainment Area was redesignated to a maintenance area.
The current SIP-approved MVEBs for the Scranton/Wilkes-Barre Maintenance Area were developed using the Highway Mobile Source Emission Factor Model (MOBILE6.2). On March 2, 2010 (75 FR 9411), EPA published a notice of availability for the Motor Vehicle
These SIP revisions include an update to the MVEBs for NO
In addition to the updated inventories and MVEBs, the SIP revisions also provide general conformity budgets for NO
EPA is proposing to approve Pennsylvania's SIP revision submittal from May 28, 2014 to update the MVEBs for the Scranton/Wilkes-Barre Maintenance Area to reflect the use of the MOVES model. EPA is also proposing to approve the updates to the point and area source inventories. Additionally, EPA is proposing approval of the general conformity budgets for the construction of the Bell Bend Nuclear Power Plant. EPA is approving these SIP revisions because it will allow the Scranton/Wilkes-Barre Maintenance Area to continue to maintain the 1997 8-Hour Ozone NAAQS. Our in depth review of the SIP revisions leads EPA to conclude that the updated MVEBs meet the adequacy requirements set forth in 40 CFR 93.118(e)(4)(i)-(vi), and that the updated MVEBs have been correctly calculated to reflect the use of the MOVES model as explained in our TSDs. EPA also concludes that the general conformity budgets meet all requirements of the general conformity rule found at 40 CFR part 93, subpart B as explained in our TSDs. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, pertaining to the update of the MVEBs, point and area source inventories, as well as the general conformity budgets for the Scranton/Wilkes-Barre Maintenance Area, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Rhode Island on February 21, 2014. This revision includes a regulation adopted by Rhode Island that establishes procedures to follow for transportation conformity determinations. Conformity to the purpose of the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards. The intended effect of this action is to propose to approve Rhode Island's transportation conformity regulation into the Rhode Island SIP. This action is being taken in accordance with the Clean Air Act.
Written comments must be received on or before April 9, 2015.
Submit your comments, identified by Docket ID No. EPA-R01-OAR-2014-0275 by one of the following methods:
1.
2.
3.
Please see the direct final rule which is located in the Rules Section of this
Anne Arnold, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, telephone number (617) 918-1047, fax number (617) 918-1047, email
In the Final Rules Section of this
For additional information, see the direct final rule which is located in the Rules Section of this
Environmental Protection Agency (EPA).
Proposed rule; supplemental.
The Environmental Protection Agency (EPA) is issuing a supplement to its proposed approval of a State Implementation Plan (SIP) revision submitted by the State of West Virginia (West Virginia) through the West Virginia Department of Environmental Protection (WVDEP). West Virginia's SIP revision addresses requirements of the Clean Air Act (CAA) and EPA's rules that require states to submit periodic reports describing progress towards reasonable progress goals established for regional haze and a determination of the adequacy of the state's existing implementation plan addressing regional haze (regional haze SIP). EPA's proposed approval of West Virginia's periodic report on progress towards reasonable progress goals and determination of adequacy of the state's regional haze SIP was published in the
Comments must be received on or before April 9, 2015.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2013-0423, by one of the following methods:
A.
B.
C.
D.
Asrah Khadr, (215) 814-2071, or by email at
EPA previously proposed to approve a SIP revision by West Virginia reporting on progress made in the first implementation period towards meeting the reasonable progress goals for Class I areas in and outside West Virginia that are affected by emissions from West Virginia's sources.
States are required to submit a progress report in the form of a SIP revision every five years that evaluates progress towards the reasonable progress goals for each mandatory Class I area within the state and in each mandatory Class I area outside the state which may be affected by emissions from within the state.
On April 30, 2013, West Virginia submitted a SIP revision describing the progress made towards the reasonable progress goals of Class I areas in and outside West Virginia that are affected by emissions from West Virginia's sources, in accordance with requirements in the Regional Haze Rule.
The provisions in 40 CFR 51.308(g) require a progress report SIP to address seven elements. In the NPR, EPA proposed to approve the SIP as adequately addressing each element under 40 CFR 51.308(g). The seven elements and EPA's proposed conclusions in the NPR are briefly summarized below.
The provisions in 40 CFR 51.308(g) require progress report SIPs to include a description of the status of measures in the regional haze implementation plan; a summary of the emissions reductions achieved; an assessment of the visibility conditions for each Class
In addition, pursuant to 40 CFR 51.308(h), states are required to submit, at the same time as the progress report SIP revision, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions based on information in the progress report. In its progress report SIP, West Virginia determined that its regional haze SIP is sufficient to enable it and nearby states to achieve the reasonable progress goals for Class I areas affected by West Virginia's sources. The State accordingly provided EPA with a negative declaration that further revision of the existing regional haze implementation plan was not needed at this time.
Decisions by the Courts regarding EPA rules addressing the interstate transport of pollutants have had a substantial impact on EPA's review of the regional haze SIPs of many states. In 2005, EPA issued regulations allowing states to rely on the Clean Air Interstate Rule (CAIR) to meet certain requirements of the Regional Haze Rule.
EPA finalized a limited approval and limited disapproval of West Virginia's regional haze SIP on March 23, 2012, 77 FR 16937, and issued a Federal Implementation Plan (FIP) shortly thereafter to address the deficiencies identified in our limited disapproval of West Virginia and other states' regional haze plans. 77 FR 33642 (June 7, 2012). In our FIP, we relied on CSAPR to meet certain regional haze requirements notwithstanding that it was stayed at the time. As we explained, the determination that CSAPR will provide for greater reasonable progress than BART is based on a forward looking projection of emissions and any year up until 2018 would have been an acceptable point of comparison.
Throughout the litigation described above, EPA has continued to implement CAIR. Thus, at the time that West Virginia submitted its progress report SIP revision, CAIR was in effect, and the State included an assessment of the emission reductions from the implementation of CAIR in its report. The progress report discussed the status of the litigation concerning CAIR and CSAPR, but because CSAPR was not at that time in effect, West Virginia did not take emissions reductions from CSAPR into account in assessing its regional haze implementation plan. For the same reason, in our NPR, EPA did not assess at that time the impact of CSAPR or our FIP on the ability of West Virginia and its neighbors to meet their reasonable progress goals.
The purpose of this supplemental proposal is to seek comment on the effect of the D.C. Circuit's October 23, 2014 order and the effect of the status of CAIR and CSAPR on our assessment of West Virginia's progress report SIP and its determination that its existing implementation plan need not be revised at this time.
Given the complex background summarized above, EPA is proposing to determine that West Virginia appropriately took CAIR into account in its progress report SIP in describing the status of the implementation of measures included in its regional haze SIP and in summarizing the emissions reductions achieved. CAIR was in effect during the 2008-2013 period addressed by West Virginia's progress report. EPA approved West Virginia's regulations implementing CAIR as part of the West Virginia SIP in 2009, 74 FR 38536 (August 4, 2009), and neither West Virginia nor EPA has taken any action to remove CAIR from the West Virginia
The State's progress report also demonstrated Class I areas in other states impacted by West Virginia sources were on track to meet their reasonable progress goals as discussed in the NPR. EPA's intention in requiring the progress reports pursuant to 40 CFR 51.308(g) was to ensure that emission management measures in the regional haze SIPs are being implemented on schedule and that visibility improvement appears to be consistent with the reasonable progress goals. 64 FR 35713, 35747 (July 1, 1999). As the D.C. Circuit only recently lifted the stay on CSAPR, CAIR was in effect in West Virginia through 2014, providing the emission reductions relied upon in West Virginia's regional haze SIP. Thus, West Virginia appropriately took into account CAIR reductions in assessing the implementation of measures in the regional haze SIP for the 2008-2013 timeframe, and EPA believes that it is appropriate to rely on CAIR emission reductions for purposes of assessing the adequacy of West Virginia's progress report demonstrating progress up to the end of 2014 as CAIR remained effective until that date, pursuant to 40 CFR 51.308(g) and (h).
In addition, EPA also believes reliance upon CAIR reductions to show West Virginia's progress towards meeting its RPGs from 2008-2013 is consistent with our prior actions. During the continued implementation of CAIR per the direction of the D.C. Circuit through October 2014, EPA has approved redesignations of areas to attainment of the 1997 PM
EPA's December 3, 2014 interim final rule sunsets CAIR compliance requirements on a schedule coordinated with the implementation of CSAPR compliance requirements. 79 FR at 71665. As noted above, EPA's June 7, 2012 FIP replaced West Virginia's reliance upon CAIR for regional haze requirements with reliance on CSAPR to meet those requirements for the long-term. Because CSAPR should result in greater emissions reductions of SO
At the present time, the requirements of CSAPR apply to sources in West Virginia under the terms of a FIP, because West Virginia to date has not incorporated the CSAPR requirements into its SIP. The Regional Haze Rule requires an assessment of whether the current “implementation plan” is sufficient to enable the states to meet all established reasonable progress goals. 40 CFR 51.308(g)(6). The term “implementation plan” is defined for purposes of the Regional Haze Rule to mean “any [SIP], [FIP], or Tribal Implementation Plan.” 40 CFR 51.301. EPA is, therefore, proposing to determine that we may consider measures in any issued FIP as well as those in a state's regional haze SIP in assessing the adequacy of the “existing implementation plan” under 40 CFR 51.308(g)(6) and (h). Because CSAPR will ensure the control of SO
We note that the Regional Haze Rule provides for periodic evaluation and assessment of a state's reasonable progress towards achieving the national goal of natural visibility conditions by 2064 for CAA section 169A(b). The regional haze regulations at 40 CFR 51.308 required states to submit initial SIPs in 2007 providing for reasonable progress towards the national goal for the first implementation period from 2008 through 2018. 40 CFR 51.308(b). Pursuant to 40 CFR 51.308(f), SIP revisions reassessing each state's reasonable progress towards the national goal are due every ten years after that time. For such subsequent regional haze SIPs, 40 CFR 51.308(f) requires each state to reassess its reasonable progress and all the elements of its regional haze SIP required by 40 CFR 51.308(d), taking into account improvements in monitors and control technology, assessing the state's actual progress and effectiveness of its long term strategy, and revising reasonable progress goals as necessary. 40 CFR 51.308(f)(1)-(3). Therefore, West Virginia has the opportunity to reassess its reasonable progress goals and the adequacy of its regional haze SIP, including its reliance upon CAIR and CSAPR for emission reductions from EGUs, when it prepares and submits its second regional haze SIP to cover the implementation period from 2018 through 2028. As discussed in the NPR and in West Virginia's progress report, emissions of SO
In summary, EPA proposes to approve West Virginia's progress report SIP revision submitted on April 30, 2013. EPA solicits comments on this supplemental proposal, but only with respect to the specific issues raised in this notice concerning our interpretation of the term “implementation plan” in the Regional Haze Rule, and our agreement with West Virginia's assessment that the current regional haze SIP for West Virginia in combination with our CSAPR FIP need not be revised at this time to achieve the established reasonable progress goals for West Virginia and other nearby states in light of the status of CAIR through 2014 and CSAPR starting in 2015. EPA is not reopening the comment period on any other aspect of the March 14, 2014 NPR as an adequate opportunity to comment on those issues has already been provided. The purpose of this supplemental proposal is limited to review of the West Virginia progress report in light of the Supreme Court's decision in
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this supplemental proposed rule pertaining to West Virginia's regional haze progress report does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS issues this proposed rule for the 2015 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP), the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 2006. This proposed rule would allocate 17.5% of the U.S. Total Allowable Catch of Pacific whiting for 2015 to Pacific Coast Indian tribes that have a Treaty right to harvest groundfish, and would revise the regulation authorizing NMFS to reapportion unused allocation from the tribal allocation to the non-tribal sectors earlier in the fishing season.
Comments on this proposed rule must be received no later than April 9, 2015.
You may submit comments on this document, identified by NOAA-NMFS-2015-0017, by any of the following methods:
•
•
Miako Ushio (West Coast Region, NMFS), phone: 206-526-4644, and email:
This proposed rule is accessible via the Internet at the Office of the Federal Register Web site at
The regulations at 50 CFR 660.50(d) establish the process by which the tribes with treaty fishing rights in the area covered by the Pacific Coast Groundfish Fishery Management Plan (FMP) request new allocations or regulations specific to the tribes, in writing, during the biennial harvest specifications and management measures process. The regulations state that “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.” The procedures NOAA employs in implementing tribal treaty rights under the FMP, were designed to provide a framework process by which NOAA Fisheries can accommodate tribal treaty rights by setting aside appropriate amounts of fish in conjunction with the Pacific Fishery Management Council (Council) process for determining harvest specifications and management measures.
Since the FMP has been in place, NMFS has been allocating a portion of the U.S. total allowable catch (TAC) (called Optimum Yield (OY) or Annual Catch Limit (ACL) prior to 2012) of Pacific whiting to the tribal fishery, following the process established in 50 CFR 660.50(d). The tribal allocation is subtracted from the U.S. Pacific whiting TAC before allocation to the non-tribal sectors.
There are four tribes that can participate in the tribal whiting fishery: The Hoh, Makah, Quileute, and Quinault. The Hoh tribe has not expressed an interest in participating to date. The Quileute Tribe and Quinault Indian Nation have expressed interest in commencing participation in the whiting fishery. However, to date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. They have harvested whiting every year since 1996 using midwater trawl gear. Tribal allocations have been based on discussions with the tribes regarding their intent for those fishing years. Table 1 below provides a history of U.S. OYs and annual tribal allocation in metric tons (mt).
In 2009, NMFS, the states of Washington and Oregon, and the Treaty tribes started a process to determine the long-term tribal allocation for Pacific whiting; however, no long-term allocation has been determined. In order to ensure Treaty tribes continue to receive allocations, this rulemaking proposes the 2015 tribal allocation of Pacific whiting. This is an interim allocation not intended to set precedent for future allocations.
In exchanges between NMFS and the tribes during December of 2014, the Makah tribe indicated their intent to participate in the tribal whiting fishery in 2015. The Makah tribe has requested 17.5% of the U.S. TAC. The Quileute tribe and the Quinault Indian Nation indicated that they are not planning to participate in 2015. NMFS proposes a tribal allocation that accommodates the Makah request, specifically 17.5% of the U.S. TAC. NMFS believes that the current scientific information regarding the distribution and abundance of the coastal Pacific whiting stock suggests that the 17.5% is within the range of the tribal treaty right to Pacific whiting.
The Joint Management Committee (JMC), which was established pursuant to the Agreement between the United States and Canada on Pacific Hake/Whiting (the Agreement), is anticipated to recommend the coastwide and corresponding U.S./Canada TACs no later than March 25, 2015. The U.S. TAC is 73.88% of the coastwide TAC. Until this TAC is set, NMFS cannot propose a specific amount for the tribal allocation. The whiting fishery typically begins in May, and the final rule establishing the whiting specifications for 2015 is anticipated to be published by early May. Therefore, in order to provide for public input on the tribal allocation, NMFS is issuing this proposed rule without the final 2015 TAC. However, to provide a basis for public input, NMFS is describing a range of potential tribal allocations in this proposed rule, applying the proposed approach to determining the tribal allocation to a range of potential TACs derived from historical experience.
In order to project a range of potential tribal allocations for 2015, NMFS is applying its proposed approach to determining the tribal allocation to the range of U.S. TACs over the last 10 years, 2005 through 2014 (plus or minus 25% to capture variability in stock abundance). The range of TACs in that time period was 135,939 mt (2009) to 316,206 mt (2014). Applying the 25% variability results in a range of potential TACs of 101,954 mt to 395,258 mt for 2015. Therefore, using the proposed allocation rate of 17.5%, the potential range of the tribal allocation for 2015 would be between 17,842 and 69,170 mt.
This proposed rule would also modify the regulatory mechanism whereby NMFS may, upon determining based on
This proposed rule would be implemented under authority of Section 305(d) of the Magnuson-Stevens Act, which gives the Secretary responsibility to “carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.” With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Northwest tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens.
NMFS has preliminarily determined that the management measures for the 2015 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. In making the final determination, NMFS will take into account the data, views, and comments received during the comment period.
The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.
As required by section 603 of the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was prepared. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS.
Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. This rulemaking affects vessels engaged in small businesses. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S., including fish harvesting and fish processing businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates), and if it has combined annual receipts not in excess of $20.5 million for all its affiliated operations worldwide (79 FR 33647). For marinas and charter/party boats, a small business is defined as one with annual receipts, not in excess of $7.5 million. For purposes of rulemaking, NMFS is also applying the $20.5 million standard to catcher processors (C/Ps) because whiting C/Ps are involved in the commercial harvest of finfish. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide.
This proposed rule would allocate 17.5% of the U.S. Total Allowable Catch of Pacific whiting for 2015 to Pacific Coast Indian tribes that have a Treaty right to harvest groundfish. This allocation rule was used for the 2014 fishery. The entities that this rulemaking directly impacts are the Makah Tribe, and the following in the non-tribal fisheries: Quota share (QS) holders in the Shorebased IFQ Program—Trawl Fishery; vessels in the Mothership Coop (MS) Program—Whiting At-sea Trawl Fishery; and the Catcher/Processor (C/P) Coop Whiting At-sea Trawl Fishery. These entities determine how much of their allocations are to be actually fished and what vessels are allowed to fish their allocations. This rulemaking proposes to allocate fish to the Makah Tribe. Based on groundfish ex-vessel revenues and on tribal enrollments (the population size of each tribe), the Makah Tribe is considered a small entity.
Currently, the Shorebased IFQ Program is composed of 149 Quota Share permits/accounts, 152 vessel accounts, and 43 first receivers. The MS fishery is currently composed of a single coop, with six mothership processor permits, and 34 Mothership/Catcher-Vessel (MS/CV) endorsed permits, with three permits each having two catch history assignments. The C/P Program is composed of 10 C/P permits owned by three companies that have formed a single coop.
Many companies participate in two sectors and some participate in all three sectors. All of the 34 mothership catch history assignments are associated with a single mothership coop and all ten of the catcher-processor permits are associated with a coop. These coops are considered large entities from several perspectives; they have participants that are large entities, whiting coop revenues exceed or have exceeded the $20.5 million, or coop members are connected to American Fishing Act permits or coops where the NMFS Alaska Region has determined they are all large entities (79 FR 54597; September 12, 2014). After accounting for cross participation, multiple QS account holders, and affiliation through ownership, NMFS estimates that there are 103 non-tribal entities directly affected by these proposed regulations, 89 of which are considered “small” businesses.
For the years 2010 to 2014, the total whiting fishery (tribal and non-tribal) averaged harvests of approximately 183,000 mt annually, worth over $43 million in ex-vessel revenues. As the U.S. whiting TAC has been highly variable during this time, so have harvests. In the past five years, harvests have ranged from 160,000 mt (2012) to 264,000 mt (2014). Ex-vessel revenues have also varied. Annual ex-vessel revenues have ranged from $30 million (2010) to $65 million (2013). Total whiting harvest in 2013 was approximately 233,000 mt worth $65 million, at an ex-vessel price of $280 per mt. Ex-vessel revenues in 2014 were over $64 million with a harvest of 264,000 tons and ex-vessel price of $240 per mt. The prices for whiting are largely determined by the world market
The Pacific whiting fishery harvests almost exclusively Pacific whiting. While bycatch of other species occurs, the fishery is constrained by bycatch limits on key overfished species. This is a high-volume fishery with low ex-vessel prices per pound. This fishery also has seasonal aspects based on the distribution of whiting off the west coast.
Since 1996, there has been a tribal allocation of the U.S. whiting TAC. Tribal fisheries undertake a mixture of fishing activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests have been delivered to both shoreside plants and at-sea processors. These processing facilities also process fish harvested by non-tribal fisheries.
This proposed rule would allocate 17.5% of Pacific whiting to the tribal fishery, and would ultimately determine how much is left for allocation to the non-tribal sectors, which are the Shorebased IFQ Program—Trawl Fishery; Mothership Coop (MS) Program—Whiting At-sea Trawl Fishery; and C/P Coop Program—Whiting At-sea Trawl Fishery. The amount of whiting allocated to both the tribal and non-tribal sectors is based on the U.S. TAC. From the U.S. TAC, small amounts of whiting that account for research catch and for bycatch in other fisheries are deducted. The amount of the tribal allocation is also deducted directly from the TAC. After accounting for these deductions, the remainder is the commercial harvest guideline. This guideline is then allocated among the three non-tribal sectors as follows: 34 percent for the C/P Coop Program; 24 percent for the MS Coop Program; and 42 percent for the Shorebased IFQ Program.
The effect of the tribal allocation on non-tribal fisheries will depend on the level of tribal harvests relative to their allocation and the reapportioning process. Total whiting harvest in 2014 was approximately 264,000 mt worth $64 million, at an ex-vessel price of $240 per mt. Assuming a similar harvest level and ex-vessel price in 2015, if the tribe were to harvest 17.5%, the approximate value of that harvest would be $11 million. If the tribes do not harvest their entire allocation, there are opportunities during the year to reapportion unharvested tribal amounts to the non-tribal fleets. For example, last year, NMFS executed two such reapportionments. In the first reapportionment, the best available information through September 12, 2014 indicated that at least 25,000 mt of the tribal allocation would not be harvested by December 31, 2014. To allow for full utilization the resource, NMFS reapportioned 25,000 mt to the shorebased IFQ Program, C/P Coop and MS Coop in proportion to each sector's original allocation on September 12, 2014. Reapportioning this amount was expected to allow for greater attainment of the OY while not limiting tribal harvest opportunities for the remainder of the year. Subsequently, the C/P Coop, MS Coop, and Shorebased IFQ sectors expressed an interest in additional harvest of Pacific whiting via written notice to NMFS.
In the second reapportionment, the best available information on October 22, 2014, indicated that an additional 20,000 mt of the tribal allocation would not be harvested by December 31, 2014. To allow for full utilization the resource, NMFS reapportioned an additional 20,000 mt of the non-tribal sector and distributed to the C/P Coop and MS Coop in proportion to each sector's original allocation on October 23, 2014. The Shorebased IFQ Program's share of the second reapportionment was not distributed due to concerns regarding Chinook salmon catch.
Reapportioning a combined total of 45,000 mt was expected to allow for greater attainment of the OY while not limiting tribal harvest opportunities for the remainder of the year. The revised Pacific whiting allocations for 2014 were: Tribal 10,336 mt, C/P Coop 103,486 mt; MS Coop 73,049 mt; and Shorebased IFQ Program 127,835 mt.
NMFS considered two alternatives for this action: The “No-Action” and the “Proposed Action.” NMFS did not consider a broader range of alternatives to the proposed allocation. The tribal allocation is based primarily on the requests of the tribes. These requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for whiting. Under the Proposed Action alternative, NMFS proposes to set the tribal allocation percentage at 17.5%, as requested by the tribes. This would yield a tribal allocation of between 17,842 and 69,170 mt for 2015. Consideration of a percentage lower than the tribal request of 17.5% is not appropriate in this instance. As a matter of policy, NMFS has historically supported the harvest levels requested by the tribes. Based on the information available to NMFS, the tribal request is within their tribal treaty rights. A higher percentage would arguably also be within the scope of the treaty right. However, a higher percentage would unnecessarily limit the non-tribal fishery.
Under the no-action alternative, NMFS would not make an allocation to the tribal sector. This alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, no action would result in no allocation of Pacific whiting to the tribal sector in 2015, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the tribes' treaty rights. Given that there is a tribal request for allocation in 2015, this alternative received no further consideration.
NMFS believes this proposed rule would not adversely affect small entities. This reapportioning process allows unharvested tribal allocations of whiting, fished by small entities, to be fished by the non-tribal fleets, benefitting both large and small entities. Nonetheless, NMFS has prepared this IRFA and is requesting comments on this conclusion. See
There are no reporting, recordkeeping or other compliance requirements in the proposed rule.
No Federal rules have been identified that duplicate, overlap, or conflict with this action.
NMFS issued Biological Opinions under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP for the Pacific Coast groundfish fishery was not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the
NMFS issued a Supplemental Biological Opinion on March 11, 2006, concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the Groundfish PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs. The effect of the Pacific whiting fishery on protected Chinook salmon is currently under ESA Section 7 consultation to reconsider this “no jeopardy” conclusion. The trigger for this reinitiation of consultation was the 2014 Pacific whiting fishery exceeding the Chinook salmon incidental take statement from the 1999 Biological Opinion by a level similar to 2005. NMFS has considered the effects of this proposed rule on listed salmonids, consistent with ESA Section 7(a)(2) and 7(d). The proposed action is not likely to adversely affect, or would not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat.
Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.
On December 7, 2012, NMFS completed a biological opinion concluding that the groundfish fishery is not likely to jeopardize non-salmonid marine species including listed eulachon, green sturgeon, humpback whales, Steller sea lions, and leatherback sea turtles. The opinion also concludes that the fishery is not likely to adversely modify critical habitat for green sturgeon and leatherback sea turtles. An analysis included in the same document as the opinion concludes that the fishery is not likely to adversely affect green sea turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific right whales, blue whales, fin whales, sperm whales, Southern Resident killer whales, Guadalupe fur seals, or the critical habitat for Steller sea lions.
Steller sea lions and humpback whales are protected under the Marine Mammal Protection Act (MMPA). Impacts resulting from fishing activities proposed in this rulemaking are discussed in the FEIS for the 2015-2016 groundfish fishery specifications and management measures. West coast pot fisheries for sablefish are considered Category II fisheries under the MMPA's List of Fisheries, indicating occasional interactions. All other west coast groundfish fisheries, including the trawl fishery, are considered Category III fisheries under the MMPA, indicating a remote likelihood of or no known serious injuries or mortalities to marine mammals. MMPA section 101(a)(5)(E) requires that NMFS authorize the taking of ESA-listed marine mammals incidental to U.S. commercial fisheries if it makes the requisite findings, including a finding that the incidental mortality and serious injury from commercial fisheries will have negligible impact on the affected species or stock. As noted above, NMFS concluded in its biological opinion for the groundfish fisheries that these fisheries were not likely to jeopardize Steller sea lions or humpback whales. The eastern distinct population segment of Steller sea lions was delisted under the ESA on November 4, 2013 (78 FR 66140). On September 4, 2013, based on its negligible impact determination dated August 28, 2013, NMFS issued a permit for three years to authorize the incidental taking of humpback whales by the sablefish pot fishery (78 FR 54553).
On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that the groundfish fishery will not jeopardize the continued existence of the short-tailed albatross. The FWS also concurred that the fishery is not likely to adversely affect the marbled murrelet, California least tern, southern sea otter, bull trout, nor bull trout critical habitat.
Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the whiting fishery regarding the issues addressed by this rulemaking.
Fisheries, Fishing, Indian fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:
16 U.S.C. 1801
(f) * * *
(4)
(h)
(2) NMFS will reapportion unused tribal allocation to the other sectors of the trawl fishery in proportion to their initial allocations.
(3) The reapportionment of surplus whiting will be made effective immediately by actual notice under the automatic action authority provided at § 660.60(d)(1).
(4) Estimates of the portion of the tribal allocation that will not be used by the end of the fishing year will be based on the best information available to the Regional Administrator.
Food Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to reinstate a previously approved information collection for Animal Disposition Reporting.
Submit comments on or before May 11, 2015.
FSIS invites interested persons to submit comments on this notice. Comments may be submitted by one of the following methods:
•
•
•
Gina Kouba, Office of Policy and Program Development, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW., Room 6077, South Building, Washington, DC 20250.
FSIS is requesting reinstatement of a previously approved information collection that addresses paperwork requirements for the Animal Disposition Reporting entered into the Public Health Information System. The previous OMB approval for this collection, formerly known as the electronic Animal Disease Reporting System, expired on June 30, 2013.
In accordance with 9 CFR 320.6, 381.180, 352.15, and 354.91, establishments that slaughter meat, poultry, exotic animals, and rabbits are required to maintain certain records regarding their business operations and to report this information to the Agency as required. Poultry slaughter establishments complete FSIS Form 6510-7 after each shift and submit it to the Agency. Other slaughter establishments provide their business records to FSIS to report the necessary information.
FSIS uses this information to plan inspection activities, to develop sampling plans, to target establishments for testing, to develop the Agency budget, and to develop reports to Congress. FSIS also provides this data to other USDA agencies, including the National Agricultural Statistics Service (NASS), the Animal and Plant Health Inspection Service (APHIS), the Agricultural Marketing Service (AMS), and the Grain Inspection, Packers and Stockyards Administration (GIPSA), for their publications and for other functions.
FSIS has made the following estimates on the basis of an information collection assessment:
Copies of this information collection assessment can be obtained from Gina Kouba, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 1400 Independence SW., Room 6077, South Building, Washington, DC 20250, (202) 690-6510.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of FSIS's functions, including whether the information will have practical utility; (b) the accuracy of FSIS's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology. Comments may be sent to both FSIS, at the addresses provided above, and the Desk Officer for
Responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations,
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
Food Safety and Inspection Service, USDA.
Notice; extension of comment period.
The Food Safety and Inspection Service (FSIS) is extending the comment period for the
Comments are due by May 26, 2015.
FSIS invites interested persons to submit comments. Comments may be submitted by one of the following methods:
Daniel L. Engeljohn, Ph.D., Assistant Administrator, Office of Policy and Program Development; Telephone: (202) 205-0495, or by Fax: (202) 720-2025.
On January 26, 2015, FSIS published a notice in the
In addition, starting in March 2015, for products that are currently subject to
FSIS also announced that, after reviewing the comments received on the notice, beginning July 1, 2015, the Agency plans to begin web-posting individual establishment category information for chicken and turkey carcasses. FSIS stated that it would assess what category establishments are in as of July 1, using combined historical set data and sample results beginning March 2015. Meanwhile, FSIS stated it will continue web-posting existing Category 3 poultry carcass establishments. Finally, starting in March 2015, the Agency announced that it would begin web-posting aggregate reports for chicken parts as data become available, and comminuted chicken and turkey using historical data and new results beginning in March (80 FR at 3948).
In a letter addressed to FSIS Deputy Under Secretary Alfred V. Almanza, dated January 30, 2015, a coalition of trade associations requested that FSIS extend the comment period by 90 days to provide additional time to formulate meaningful comments. In addition, the trade associations requested that FSIS extend all implementation dates discussed above by 90 days to ensure the Agency has an opportunity to consider the comments and to ensure that the affected industry has enough time to prepare for changes in Agency actions.
FSIS will extend the comment period by an additional 60 days; the comment period will now end on May 26, 2015. FSIS has determined that 60 days should be sufficient because FSIS has made available much of the information in the January 2015
Therefore, in March 2015, FSIS intends to proceed with implementing sampling of raw chicken parts to gain additional information on the prevalence and the microbiological characteristics of
Similarly, in March 2015, for all products that are currently under
FSIS also intends to proceed with posting aggregate reports for chicken parts and comminuted chicken and turkey in March 2015 as announced in the January
Finally, beginning July 1, 2015, the Agency plans to begin web-posting individual establishment category information for chicken and turkey carcasses as announced in the January
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Send your completed complaint form or letter to USDA by mail, fax, or email:
U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410.
(202) 690-7442.
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202)720-2600 (voice and TDD).
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations,
The Regulations and Procedures Technical Advisory Committee (RPTAC) will meet March 24, 2015, 9:00 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Constitution and Pennsylvania Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on implementation of the Export Administration Regulations (EAR) and provides for continuing review to update the EAR as needed.
1. Opening remarks by the Chairman.
2. Opening remarks by Bureau of Industry and Security.
3. Presentation of papers or comments by the Public.
4. Export Enforcement update.
5. Regulations update.
6. Working group reports.
7. Automated Export System update.
8. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 25 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on February 24, 2015, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § (10)(d)), that the portion of the meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, call Yvette Springer at (202) 482-2813.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before May 11, 2015.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Jarad Makaiau, (808) 944-2108 or
This request is for an extension of a currently approved information collection.
The Federal regulations at 50 CFR part 665 authorize the Regional Administrator of the National Marine Fisheries Service (NMFS), Pacific Island Region to provide eligible western Pacific communities with access to fisheries that they have traditionally depended upon, but may not have the capabilities to support continued and substantial participation, possibly due to economic, regulatory, or other barriers. To be eligible to participate in the western Pacific community development program, a community must meet the criteria set forth in 50 CFR part 665.20, and submit a community development plan that describes the purposes and goals of the plan, the justification for proposed fishing activities, and the degree of involvement by the indigenous community members, including contact information.
This collection of information provides NMFS and the Western Pacific Fishery Management Council (Council) with data to determine whether a community that submits a community development plan meets the regulatory requirements for participation in the program, and whether the activities proposed under the plan are consistent with the intent of the program, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable laws. The information is also important for evaluating potential impacts of the proposed community development plan activities on fish stocks, endangered species, marine mammals, and other components of the affected environment for the purposes of compliance with the National Environmental Policy Act, the Endangered Species Act and other applicable laws.
The collection of information of a community development plan involves no forms, and respondents have a choice of submitting information by electronic transmission or by mail. Instructions on how to submit a community development plan can be found on the Council's Web site at
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
This action serves as a notice that NMFS, on behalf of the Secretary of Commerce (Secretary), has found that the following stocks are subject to overfishing or are in an overfished condition: Gulf of Mexico Greater Amberjack is subject to overfishing and continues to be in an overfished condition; Gulf of Mexico Gray Triggerfish is subject to overfishing but is not in an overfished condition; Puerto Rico Scups and Porgies is subject to overfishing; Puerto Rico Wrasses is subject to overfishing; and Gulf of Maine cod continues to be subject to overfishing and in an overfished condition. In addition, Pacific Bluefin Tuna, which is jointly managed by the Western Pacific Fisheries Management Council and the Pacific Fisheries Management Council, continues to be subject to overfishing and continues to be in an overfished condition.
NMFS, on behalf of the Secretary, notifies the appropriate fishery management council (Council) whenever it determines that overfishing is occurring, a stock is in an overfished condition, a stock is approaching an overfished condition, or when a rebuilding plan has not resulted in adequate progress toward ending overfishing and rebuilding affected fish stocks.
Regina Spallone, (301) 427-8568.
Pursuant to sections 304(e)(2) and (e)(7) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1854(e)(2) and (e)(7), and implementing regulations at 50 CFR 600.310(e)(2), NMFS, on behalf of the Secretary, must notify Councils whenever it determines that a stock or stock complex is overfished or approaching an overfished condition; or if an existing rebuilding plan has not ended overfishing or resulted in adequate rebuilding progress. NMFS also notifies Councils when it determines a stock or stock complex is subject to overfishing. Section 304(e)(2) further requires NMFS to publish these notices in the
NMFS has determined that the Gulf of Mexico stocks of Greater Amberjack and Grey Triggerfish are subject to overfishing and that Greater Amberjack continues to be in an overfished condition. The Gulf of Mexico Fishery Management Council (GMFMC) has been informed that they must end overfishing on these two stocks and that they must continue to rebuild the stock of Greater Amberjack.
NMFS has also determined that Puerto Rico Scups and Porgies, as well as Puerto Rico Wrasses, are subject to overfishing. The Caribbean Fishery Management Council (CFMC) has been informed that they must end overfishing on these two stock complexes.
NMFS has also determined that Gulf of Maine Cod continues to be subject to overfishing and is in an overfished condition. The New England Fishery Management Council (NEFMC) has been informed that they must end overfishing and rebuild this stock.
In addition, NMFS has determined that the Pacific stock of Bluefin Tuna continues to be subject to overfishing and is in an overfished condition. This determination was based on an assessment conducted by the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean (ISC), in conjunction with NOAA scientists. NMFS has confirmed that section 304(i) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) applies because (1) the overfishing and overfished condition of Bluefin Tuna is due largely to excessive international fishing pressure, and (2) there are no management measures (or efficiency measures) to end overfishing under an international agreement to which the U.S. is a party. NMFS has informed the Western Pacific Fishery Management Council and the Pacific Fishery Management Council of their obligations for international and domestic management under Magnuson-Stevens Act sections 304(i) and 304(i)(2) to address international and domestic impacts, respectively. The Councils must develop domestic regulations to address the relative impact of the domestic fishing fleet on the stock, and develop recommendations to the Secretary of State and Congress for international actions to end overfishing and rebuild Pacific Bluefin Tuna.
DoD.
Renewal of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the National Security Education Board (“the Board”).
Jim Freeman, Advisory Committee
This committee's charter is being renewed pursuant to 50 U.S.C. 1903, and in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(a), established the Board.The Board is a statutory Federal advisory committee that provides independent advice and recommendations to the Secretary of Defense on developing the national capacity to educate United States citizens to understand foreign cultures, strengthen United States economic competitiveness, and enhance international cooperation and security. The Board, pursuant to 50 U.S.C. 1930(d) and consistent with chapter 37 of 50 U.S.C., shall perform the following:
(a.) Develop criteria for awarding scholarships, fellowships, and grants, including an order of priority in such awards that favors individuals expressing an interest in national security issues or pursuing a career in a national security position.
(b.) Provide for wide dissemination of information regarding the activities under the statute.
(c.) Establish qualifications for students desiring scholarships or fellowships, and institutions of higher education desiring grants. In case of students desiring a scholarship or fellowship, a requirement that the student have a demonstrated commitment to the study of the discipline for which the scholarship or fellowship is to be awarded.
(d.) After taking into account the annual analyses of trends in language, international, area, and counter-proliferations studies under 50 U.S.C. 1906(b)(1), make recommendations to the Secretary of Defense regarding:
(i.) Which countries are not emphasized in other U.S. study abroad programs, such as countries in which few U.S. students are studying and countries which are of importance to the national security interests of the United States and are, therefore, critical countries for the purpose of 50 U.S.C. 1902(a)(1)(A);
(ii.) Which areas within the disciplines described in 50 U.S.C. 1902(1)(B) relating to the national security interests of the United States are areas of study in which United States students are deficient in learning and are, therefore, critical areas within those disciplines for the purposes of that section;
(iii.) Which areas within the disciplines described in 50 U.S.C. 1902(a)(1)(C) are areas in which United States students, educators, and Government employees are deficient in learning and in which insubstantial numbers of United States institutions of higher education provide training and are, therefore, critical areas within those disciplines for the purposes of that section;
(iv.) How students desiring scholarships or fellowships can be encouraged to work for an agency or office of the Federal Government involved in national security affairs or national security policy upon completion of their education; and
(v.) Which foreign languages are critical to the national security interests of the United States for purposes of 50 U.S.C. 1902(a)(1)(D) (relating to grants for the National Flagship Language Initiative) and 50 U.S.C. 1902(a)(1)(E) (relating to the scholarship program for advanced English language studies by heritage community citizens).
(e.) Encourage application for fellowships from graduate students having an educational background in any academic discipline, particularly in the areas of science or technology.
(f.) Provide the Secretary of Defense with a list of scholarship recipients and fellowship recipients biennially, including an assessment of their foreign area and language skills, who are available to work in a national security position.
(g.) Provide the Secretary of Defense a report fully describing the foreign area and language skills obtained by the recipient as a result of the assistance, not later than 30 days after a scholarship or fellowship recipient completes the study or education for which assistance was provided under the Program.
(h.) Review the administration of the National Security Scholarships, Fellowships, and Grants Program.
(i.) To the extent provided by the Secretary of Defense, oversee and coordinate the activities of the National Language Service Corps (NLSC) under 50 U.S.C. 1913, including:
(i.) Assessing on a periodic basis whether the NLSC is addressing the needs identified by the heads of departments and agencies of the Federal Government for personnel with skills in various foreign languages;
(ii.) Recommending plans for the NLSC to address foreign language shortfalls and requirements of the departments and agencies of the Federal Government;
(iii.) Recommending effective ways to increase public awareness of the need for foreign languages skills and career paths in the Federal Government that use those skills; and
(iv.) Overseeing the NLSC efforts to work with Executive agencies and State and Local governments to respond to interagency plans and agreements to address overall foreign language shortfalls and to utilize personnel to address the various types of crises that warrant foreign language skills.
The Board reports to the Secretary of Defense. The Secretary of Defense, pursuant to 50 U.S.C. 1906, shall submit to the President and to the Congressional intelligence committees an annual report of the conduct of the National Security Scholarships, Fellowships and Grants Program, which contains, at a minimum, the content outlined in 50 U.S.C. 1906(b). In preparation of this annual report, the Secretary of Defense shall consult with the members of the Board, who shall each submit to the Secretary, as a minimum, an assessment of hiring needs in the areas of language and area studies, and projection of the deficiencies in such areas. The Secretary shall include all assessments in the annual report.
The Department of Defense (DoD), through the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), provides support, as deemed necessary, for the Board's performance and functions and ensures compliance with the requirements of the FACA, the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended) (“the Sunshine Act”), governing Federal statutes and regulations, and established DoD policies and procedures. Under the provisions of 50 U.S.C. 1903(b), the Board is composed of 14 members:
(a.) The following individuals or the representatives of such individuals:
(i.) The Secretary of Defense, who shall serve as the Chairman of the Board.
(ii.) The Secretary of Education.
(iii.) The Secretary of State.
(iv.) The Secretary of Commerce.
(v.) The Secretary of Homeland Security.
(vi.) The Secretary of Energy.
(vii.) The Director of the National Intelligence.
(viii.) The Chairperson of the National Endowment for the Humanities.
(b.) Six individuals appointed by the President, who shall be experts in the fields of international, language, area, and counter-proliferation studies education and who may not be officers or employees of the Federal Government.
Members of the Board appointed by the President shall be appointed for a period specified by the President at the time of their appointment, but not to exceed four years. Consistent with 50
Board members, who are not full-time or permanent part-time Federal officers or employees, will be appointed as experts or consultants pursuant to 5 U.S.C. 3109 to serve as special government employee (SGE) members. Board members who are full-time or permanent part-time Federal officers or employees shall be appointed pursuant to 41 CFR 102-3.130(a) to serve as regular government employee (RGE) members. Each member of the Board is appointed to provide advice on behalf of the Government on the basis of his or her best judgment without representing any particular point of view and in a manner that is free from conflict of interest. Pursuant to 50 U.S.C. 1903(c), individuals appointed by the President shall receive no compensation for service on the Board. With the exception of reimbursement of official Board-related travel and per diem, Board members shall serve without compensation.
The Department, when necessary and consistent with the Board's mission and DoD policies and procedures, may establish subcommittees, task forces, or working groups to support the Board. Establishment of subcommittees will be based upon a written determination, to include terms of reference, by the Secretary of Defense, the Deputy Secretary of Defense, or USD(P&R), as the Board's sponsor.
Such subcommittees shall not work independently of the Board and shall report all of their recommendations and advice solely to the Board for full and open deliberation and discussion. Subcommittees, task forces, or working groups have no authority to make decisions and recommendations, verbally or in writing, on behalf of the Board, directly to the DoD or any Federal officers or employees.
The Secretary of Defense or the Deputy Secretary of Defense will appoint subcommittee members to a term of service of one-to-four years, with annual renewals, even if the member in question is already a member of the Board.
Subcommittee members, if not full-time or permanent part-time Federal employees, will be appointed as experts or consultants pursuant to 5 U.S.C. 3109, to serve as SGE members. Those individuals who are full-time or permanent part-time Federal officers or employees shall be appointed, pursuant to 41 CFR 102-3.130(a), to serve as RGE members. With the exception of reimbursement of official Board-related travel and per diem, subcommittee members shall serve without compensation.
All subcommittees operate under the provisions of FACA, the Sunshine Act, governing Federal statutes and regulations, and governing DoD policies and procedures. The Board's Designated Federal Officer (DFO) shall be a full-time or permanent part-time DoD employee appointed in accordance with governing DoD policies and procedures. The Board's DFO is required to be in attendance at all meetings of the Board and its subcommittees for the entire duration of each and every meeting. However, in the absence of the Board's DFO, a properly approved Alternate DFO, duly appointed to the Board according to established DoD policies and procedures, shall attend the entire duration of all meetings of the Board and its subcommittees.
The DFO, or the Alternate DFO, shall call all meetings of the Board and its subcommittees; prepare and approve all meeting agendas; and adjourn any meeting when the DFO, or the Alternate DFO, determines adjournment to be in the public interest or required by governing regulations or DoD policies and procedures.
Pursuant to 41 CFR 102-3.105(j) and 102-3.140, the public or interested organizations may submit written statements to National Security Education Board membership about the Board's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the National Security Education Board.
All written statements shall be submitted to the DFO for the National Security Education Board, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the National Security Education Board DFO can be obtained from the GSA's FACA Database—
The DFO, pursuant to 41 CFR 102-3.150, will announce planned meetings of the National Security Education Board. The DFO, at that time, may provide additional guidance on the submission of written statements that are in response to the stated agenda for the planned meeting in question.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice of availability.
This notice announces the availability of the Environmental Protection Agency (EPA's) decision to partially approve and proposal to partially disapprove Louisiana's 2014 Clean Water Act Section 303(d) submission of water quality limited segments and associated pollutants. EPA requests public comment on waters associated with the proposed disapproval and may, based on comment, amend its proposal prior to final action.
On February 26, 2015, EPA partially approved and proposed to partially disapprove Louisiana's 2014 Section 303(d) submission, or list. Specifically, EPA approved Louisiana's listing of 279 waterbody-pollutant combinations, and associated priority rankings. EPA proposed to disapprove Louisiana's decision not to list 43 water quality limited segments and associated pollutants constituting 93 waterbody-pollutant combinations. EPA also proposed to add these waterbody-pollutant combinations to the 2014 Section 303(d) list because applicable numeric water quality standards were not attained in these segments for one of the following parameters: Dissolved oxygen (marine criterion); turbidity; and minerals (individually or a combination of sulfates, chlorides, and/or total dissolved solids).
EPA is providing the public the opportunity to review its proposed additions to Louisiana's 2014 Section 303(d) list. EPA will consider and respond to public comments specific to the proposed addition of 43 segments and associated pollutants and may, based on comment, amend its proposed additions before finalizing Louisiana's 2014 Section 303(d) list. Comments not associated with the segments proposed for addition to the 2014 Section 303(d) list or associated with the 279 waterbody pollutant combinations previously approved by EPA are not solicited.
Comments must be submitted in writing to EPA on or before March 30, 2015.
Comments on the decisions should be sent to Evelyn Rosborough, Environmental Protection Specialist, Water Quality Protection Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, TX 75202-2733, telephone (214) 665-7515, facsimile (214) 665-6490, or email:
Evelyn Rosborough at (214) 665-7515.
Section 303(d) of the Clean Water Act (CWA) requires that each State identify those waters for which existing technology-based pollution controls are not stringent enough to attain or maintain State water quality standards. For those waters, States are required to establish Total Maximum Daily Loads (TMDLs) according to a priority ranking. EPA's Water Quality Planning and Management regulations include requirements related to the implementation of Section 303(d) of the CWA (40 CFR 130.7). The regulations require States to identify water quality-limited waters still requiring TMDLs every two years. The list of waters still needing TMDLs must also include priority rankings and must identify the waters targeted for TMDL development during the next two years (40 CFR 130.7).
Consistent with EPA's regulations, Louisiana submitted to EPA its listing decisions under Section 303(d) on August 19, 2014. On February 26, 2015, EPA approved Louisiana's listing of 279 waterbody-pollutant combinations and associated priority rankings. EPA proposed to disapprove Louisiana's decisions not to list 43 waterbodies. These waterbodies were proposed for addition by EPA because the applicable numeric water quality standards for dissolved oxygen; or turbidity; or mineral(s) were not attained in these segments. EPA solicits public comment on its identification of 43 additional waters and associated pollutants constituting 93 waterbody pollutant combinations for inclusion on Louisiana's Final 2014 Section 303(d) list.
The Advisory Committee was established by Public Law 98-181, November 30, 1983, to advise the Export-Import Bank on its programs and to provide comments for inclusion in the report on competitiveness of the Export-Import Bank of the United States to Congress.
For further information, contact Niki Shepperd, 811 Vermont Ave. NW., Washington, DC 20571, at
Federal Deposit Insurance Corporation.
Notice.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 1, 2015.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street, NE., Atlanta, Georgia 30309:
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B. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
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Board of Governors of the Federal Reserve System, March 4, 2015.
Healthcare Systems Bureau, Health Resources and Services Administration, HHS.
Notice.
The Department of Health and Human Services is hereby giving notice that the Advisory Committee on Organ Transplantation (ACOT) has been rechartered. The effective date of the revised charter was September 1, 2014.
Patricia Stroup, MBA, MPA, Executive Secretary, Advisory Committee on Organ Transplantation, Health Resources and Services Administration, Department of Health and Human Services, Room 17W65 Fishers Lane, Rockville, Maryland 20857. Phone: (301) 443-1127; fax: (301) 594-6095; email:
42 U.S.C. 217a; Section 222 of the Public Health Service Act, as amended; 42 CFR 121.12. The Committee is governed by the provisions of Public Law 92-463, as amended (5 U.S.C. appendix 2), which sets forth standards for the formation and use of advisory committees.
ACOT advises and makes recommendations to the Secretary on all
One of its principal functions shall be to advise the Secretary on federal efforts to maximize the number of deceased donor organs made available for transplantation and to support the safety of living organ donation.
On August 26, 2014, the Acting Director, Office of Management, HRSA, approved the ACOT charter to be renewed. The filing date of the renewed charter was September 1, 2014. There were no amendments to the previous charter. Renewal of the ACOT charter gives authorization for the Committee to continue to operate until September 1, 2016.
A copy of the ACOT charter is available on the Web site for the organ transplantation program, 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 meetings.
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 materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of a meeting of the PubMed Central National Advisory Committee.
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.
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:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of meetings of the Board of Regents of the National Library of Medicine.
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 materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Administration for Community Living, Department of Health and Human Services.
Applications for New Awards; National Institute on Disability, Independent Living, and Rehabilitation Research—Disability and Rehabilitation Research Projects and Centers Program—Minority-Serving Institution Field Initiated Projects Program.
Notice.
On July 22, 2014, President Obama signed the Workforce Innovation Opportunity Act (WIOA). WIOA was effective immediately. One provision of WIOA transferred the National Institute on Disability and Rehabilitation Research (NIDRR) from the Department of Education to the Administration for Community Living (ACL) in the Department of Health and Human Services. In addition, NIDRR's name was changed to the Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR). For FY 2015, all NIDILRR priority notices will be published as ACL notices, and ACL will make all NIDILRR awards. During this transition period, however, NIDILRR will continue to review grant applications using Department of Education tools. NIDILRR will post previously-approved application kits to grants.gov, and NIDILRR applications submitted to grants.gov will be forwarded to the Department of Education's G-5 system for peer review. We are using Department of Education application kits and peer review systems during this transition year in order to provide for a smooth and orderly process for our applicants.
Date of Pre-Application Meeting March 31, 2015.
Deadline for Notice of Intent to Apply: April 14, 2015.
Deadline for Transmittal of Applications: May 11, 2015.
The purpose of this competition is to improve the capacity of minority entities to conduct high-quality disability and rehabilitation research. NIDILRR will accomplish this by limiting eligibility for this competition to minority entities and Indian tribes in a manner consistent with section 21(b)(2)(A) of the Act, which authorizes NIDILRR to make awards to minority entities and Indian tribes to carry out activities authorized under Title II of the Act.
NIDILRR makes two types of awards under the FI Projects program: Research grants and development grants. The MSI FI Projects research grants will be awarded under CFDA 84.133G-4, and the development grants will be awarded under CFDA 84.133G G-5.
Different selection criteria are used for FI Projects research grants and development grants. An applicant must clearly indicate in the application whether it is applying for a research grant (84.133G-4) or a development grant (84.133G-5) and must address the selection criteria relevant for its grant type. Without exception, NIDILRR will review each application based on the grant designation made by the applicant. Applications will be determined ineligible and will not be reviewed if they do not include a clear designation as a research grant or a development grant.
In carrying out a research activity under an FI Projects research grant, a grantee must identify one or more hypotheses or research questions and, based on the hypotheses or research questions identified, perform an intensive, systematic study directed toward producing (1) new or full scientific knowledge, or (2) better understanding of the subject, problem studied, or body of knowledge.
In carrying out a development activity under an FI Projects development grant, a grantee must use knowledge and understanding gained from research to create materials, devices, systems, or methods, including designing and developing prototypes and processes, that are beneficial to the target population. “Target population” means the group of individuals, organizations, or other entities expected to be affected by the project. There may be more than one target population because a project may affect those who receive services, provide services, or administer services.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2015 and any subsequent year from the list of unfunded applicants from these competitions.
The maximum amount includes direct and indirect costs.
The Department is not bound by any estimates in this notice.
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1. Address to Request Application Package: You can obtain an application package via grants.gov, or by contacting Patricia Barrett: U.S. Department of Health and Human Services, 400 Maryland Avenue SW., room 5142, PCP, Washington, DC 20202-2700. Telephone: (202) 245-6211 or by email:
If you request an application from Patricia Barrett, be sure to identify this competition as follows: CFDA number 84.133G-4 or 84.133G-5.
2. Content and Form of Application Submission: Requirements concerning the content of an application, together with the forms you must submit, are in the application package for this competition. Notice of Intent to Apply: Due to the open nature of the priorities in these competitions, and to assist with the selection of reviewers for these competitions, NIDILRR is requesting all potential applicants submit a letter of intent (LOI). The submission is not mandatory and the content of the LOI will not be peer reviewed or otherwise used to rate an applicant's application.
Each LOI should be limited to a maximum of four pages and include the following information: (1) The priority to which the potential applicant is responding; (2) the title of the proposed project, the name of the applicant, the name of the Project Director or Principal Investigator (PI), and the names of partner institutions and entities; (3) a brief statement of the vision, goals, and objectives of the proposed project and a description of its proposed activities at a sufficient level of detail to allow NIDILRR to select potential peer reviewers; (4) a list of proposed project staff including the Project Director or PI and key personnel; (5) a list of individuals whose selection as a peer reviewer might constitute a conflict of interest due to involvement in proposal development, selection as an advisory board member, co-PI relationships, etc.; and (6) contact information for the Project Director or PI. Submission of a LOI is not a prerequisite for eligibility to submit an application.
NIDILRR will accept the optional LOI via mail (through the U.S. Postal Service or commercial carrier) or email, by April 14, 2015. The LOI must be sent to: Carolyn Baron, U.S. Department of Health and Human Services, 550 12th Street SW., Room 5134, PCP, Washington, DC 20202; or by email to:
For further information regarding the LOI submission process, contact Carolyn Baron at (202) 245-6211.
Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. We recommend that you limit Part III to the equivalent of no more than 50 pages, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative. You are not required to double space titles, headings, footnotes, references, and captions or text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the recommended page limit does apply to all of the application narrative section (Part III).
The application package will provide instructions for completing all components to be included in the application. Each application must include a cover sheet (Standard Form 424); budget requirements (ED Form 524) and narrative justification; other required forms; an abstract, Human Subjects narrative, and Part III narrative; resumes of staff; and other related materials, if applicable.
Please submit an appendix that lists every collaborating organization and individual named in the application, including staff, consultants, contractors, and advisory board members. We will use this information to help us screen for conflicts of interest with our reviewers.
An applicant should consult NIDRR's Long-Range Plan for Fiscal Years 2013-2017 (78 FR 20299) (the Plan) when preparing its application. The Plan is organized around the following research domains: (1) Community Living and Participation; (2) Health and Function; and (3) Employment.
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Date of Pre-Application Meeting: Interested parties are invited to participate in a pre-application meeting and to receive information and technical assistance through individual consultation with NIDILRR staff. The pre-application meeting will be held on March 31, 2015. Interested parties may participate in this meeting by conference call with NIDILRR staff between 1:00 p.m. and 3:00 p.m., Washington, DC time. NIDILRR staff also will be available from 3:30 p.m. to 4:30 p.m., Washington, DC time, on the same day, by telephone, to provide information and technical assistance through individual consultation. For further information or to make arrangements to participate in the meeting via conference contact Carolyn Baron at
Deadline for Notice of Intent to Apply: April 14, 2015.
Deadline for Transmittal of Applications: May 11, 2015.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
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a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, you will need to allow 24 to 48 hours for the information to be available in Grants.gov and before you can submit an application through Grants.gov.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
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Applications for grants under the MSI FI Projects program, CFDA Number 84.133G-4 (Research) or 84.133G-5 (Development), must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the FI Projects program, CFDA Number 84.133G-4 (Research) or 84.133G-5 (Development) at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material. Additional, detailed information on how to attach files is in the application instructions.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Patricia Barrett, U.S. Department of Health and Human Services, 400 Maryland Avenue SW., Room 5142, Potomac Center Plaza (PCP), Washington, DC 20202-2700. FAX: (202) 245-7323.
Your paper application must be submitted in accordance with the mail instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.133G-4 (Research) or 84.133G-5 (Development)), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Administrator of the Administration for Community Living of the U.S. Department of Health and Human Services.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the program under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
Different selection criteria are used for FI Projects research grants and development grants. An applicant must clearly indicate in the application whether it is applying for a research grant (84.133G-4) or a development grant (84.133G-5) and must address the selection criteria applicable to its grant type.
2.
In addition, in making a competitive grant award, the Administrator of the Administration for Community Living also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Health and Human Services 45 CFR part 75.
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Administrator of the Administration for Community Living. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Administrator of the Administration for Community Living under 45 CFR part 75. All NIDILRR grantees will submit their annual and final reports through NIDILRR's online reporting system and as designated in the terms and conditions of your NOA. The Administrator of the Administration for Community Living may also require more frequent performance reports under 45 CFR part 75. For specific requirements on reporting, please go to
(c) FFATA and FSRS Reporting
The Federal Financial Accountability and Transparency Act (FFATA) requires data entry at the FFATA Subaward Reporting System (
For further guidance please see the following link:
If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information. Annual and Final Performance reports will be submitted through NIDILRR's online Performance System and as designated in the terms and conditions of your NOA. At the end of your project period, you must submit a final performance report, including financial information.
NIDILRR will provide information by letter to successful grantees on how and when to submit the report.
4.
• The number of products (
• The average number of publications per award based on NIDILRR-funded research and development activities in refereed journals.
• The percentage of new NIDILRR grants that assess the effectiveness of interventions, programs, and devices using rigorous methods. NIDILRR uses information submitted by grantees as part of their Annual Performance Reports for these reviews.
5.
Patricia Barrett, U.S. Department of Health and Human Services, 400 Maryland Avenue SW., Room 5142, PCP, Washington, DC 20202-2700. Telephone: (202) 245-6211 or by email:
If you use a TDD or a TTY, call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
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 Literature Selection Technical Review Committee.
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 portions of the meeting devoted to the review and evaluation of journals for potential indexing by the National Library of Medicine will be closed to the public in accordance with the provisions set forth in section 552b(c)(9)(B), Title 5 U.S.C., as amended. Premature disclosure of the titles of the journals as potential titles to be indexed by the National Library of Medicine, the discussions, and the presence of individuals associated with these publications could significantly frustrate the review and evaluation of individual journals.
Open: June 18, 2015, 8:30 a.m. to 10:45 a.m.
Closed: June 18, 2015, 10:45 a.m. to 5 p.m.
Closed: June 19, 2015, 8:30 a.m. to 2 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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Emergency Self Escape for Coal Miners—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention's (CDC) mission is to promote health and quality of life by preventing and controlling disease, injury, and disability. The National Institute for Occupational Safety and Health (NIOSH) provides national and world leadership to prevent work-related illness, injury, disability, and death by gathering information, conducting scientific research, and translating knowledge gained into products and services. NIOSH's mission is critical to the health and safety of every American worker. The Office of Mine Safety and Health Research (OMSHR), one of the preeminent mining research laboratories in the world, is focused on occupational health and safety research for mine workers.
Recent research by the National Academy of Sciences (NAS) has called for a detailed, formal task analysis of mine self-escape (National Research Council, 2013). Such an analysis should identify the knowledge, skills, abilities, and other attributes (KSAOs) needed by mine personnel in the event of a mine disaster to successfully complete an emergency self-escape. This analysis will identify gaps between worker demands and capabilities, and propose recommendations to either minimize those gaps or enhance existing systems (
The purpose of the project is to enhance the ability of miners to escape from underground coal mines in the event of a fire, explosion, collapse of the mine structure, or flooding of the area by toxic gas or water. To escape, miners need to perform a set of tasks that apply specific knowledge and skills in moving through the mine, avoiding dangers, and using protective equipment. The project will identify the tasks, knowledge and skills, procedures, equipment, communications, and physical requirements of self-escape. The results are expected to lead to recommendations for improvements to task requirements and procedures, equipment, training and communication processes.
NIOSH proposes this 2 year study to better understand the requirements of emergency self-escape and to answer the following questions:
• What tasks (and critical tasks) do miners perform during self-escape?
• What knowledge beyond that needed to perform normal, routine mining tasks do miners require to facilitate successful self-escape?
• What are the cognitive requirements (such as reasoning, or weighing and deciding among alternatives, recognizing when a course of action is not producing the intended results) beyond that needed to perform normal, routine mining tasks?
• What other cognitive abilities or other cognitive competencies are needed?
• What gaps exist between what miners are required to do for self-escape and their capabilities?
• How can self-escape be improved by redesigning, eliminating, or modifying tasks or training, or by altering or introducing specific technologies/tools?
To answer these questions, we will use a task analysis study design that utilizes a multiple-method approach, to include (a) review of available research, (b) interviews and focus group meetings with participants, and (c) unobtrusive observation (
Participants will be mining personnel drawn from two operating coal mines, one large and one smaller mine, to represent the variety within the industry. The data collection schedule (
Semi-structured interviews with mine personnel will require 1.5-2 hours of their time depending on the interview. Each of the two focus groups (the Initial Focus Group and the HTA) will require approximately 12 hours of a participant's time total. However, a given focus group will be executed in smaller blocks of time to reduce the burden on participants. Participants in the Initial Focus Group are not required to participate in the HTA Focus Group.
Observation of drills will occur as part of normal mine operations and will not result in any additional burden on the respondents.
The total estimated burden hours are 351.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by May 11, 2015.
Submit electronic comments on the collection of information to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, we invite comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of our functions, including whether the information will have practical utility; (2) the accuracy of our estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Section 403(r)(3)(A) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343(r)(3)(A)) provides for the use of food label statements characterizing a relationship of any nutrient of the type required to be in the label or labeling of the food to a disease or a health related condition only where that statement meets the requirements of the regulations promulgated by the Secretary of Health and Human Services to authorize the use of such a health claim. Section 101.82 (21 CFR 101.82) of our regulations authorizes a health claim for food labels about soy protein and the risk of coronary heart disease (CHD). To bear the soy protein and CHD health claim, foods must contain at least 6.25 grams of soy protein per reference amount customarily consumed. Analytical methods for measuring total protein can be used to quantify the amount of soy protein in foods that contain soy as the sole source of protein. However, at the present time there is no validated analytical methodology available to quantify the amount of soy protein in foods that contain other sources of protein. For these latter foods, we must rely on information known only to the manufacturer to assess compliance with the requirement that the food contain the qualifying amount of soy protein. Thus, we require manufacturers to have and keep records to substantiate the amount of soy protein in a food that bears the health claim and contains sources of protein other than soy, and to make such records available to appropriate regulatory officials upon written request. The information collected includes nutrient databases or analyses, recipes or formulations, purchase orders for ingredients, or any other information that reasonably substantiates the ratio of soy protein to total protein.
We estimate the burden of this collection of information as follows:
Based upon our experience with the use of health claims, we estimate that only about 25 firms would be likely to market products bearing a soy protein/coronary heart disease health claim and that only, perhaps, one of each firm's products might contain non-soy sources of protein along with soy protein. The records required to be retained by § 101.82(c)(2)(ii)(B) are the records,
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, March 24, 2015 01:00 p.m. to March 24, 2015, 05:00 p.m., National Cancer Institute Shady Grove, 9609 Medical Center Drive, Rockville, MD, 20850 which was published in the
The meeting notice is amended to change the title from NCI/R01/U54 Review to NCI P01/R01/U54 Review. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in section 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.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by May 11, 2015.
Submit electronic comments on the collection of information to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Under sections 513(e) and (f), 514(b), 515(b), and 520(
The reclassification procedure regulation requires the submission of specific data when a manufacturer is petitioning for reclassification. This includes a “Supplemental Data Sheet,” Form FDA 3427, and a “General Device Classification Questionnaire,” Form FDA 3429. Both forms contain a series of questions concerning the safety and effectiveness of the device type.
In the
The reclassification provisions of the FD&C Act serve primarily as a vehicle for manufacturers to seek reclassification from a higher to a lower class, thereby reducing the regulatory requirements applicable to a particular device type, or to seek reclassification from a lower to a higher class, thereby increasing the regulatory requirements applicable to that device type. If approved, petitions requesting classification from class III to class II or class I provide an alternative route to market in lieu of premarket approval for class III devices. If approved, petitions requesting reclassification from class I or II, to a different class, may increase requirements.
FDA estimates the burden of this collection of information as follows:
Based on reclassification petitions received in the last 3 years, FDA anticipates that six petitions will be submitted each year. The time required to prepare and submit a reclassification petition, including the time needed to assemble supporting data, averages 500 hours per petition. This average is based upon estimates by FDA administrative and technical staff who: (1) Are familiar with the requirements for submission of a reclassification petition, (2) have consulted and advised manufacturers on these requirements, and (3) have reviewed the documentation submitted.
This document refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 807, subpart E have been approved under OMB control number 0910-0120 and the collections of information in 21 CFR part 814, subparts A through E have been approved under OMB control number 0910-0231.
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,
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(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Office of AIDS Research Advisory Council.
The meeting will be open to the public, 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.
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. Information is also available on the OAR's home page:
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy
A Comprehensive Assessment of the National Program to Eliminate Diabetes Related Health Disparities in Vulnerable Populations—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
In an effort to reduce diabetes-related disparities, CDC's Division of Diabetes Translation's (DDT) aims to concentrate efforts where the greatest impact can be achieved for populations with the greatest burden or risk of diabetes. DDT established the National Program to Eliminate Diabetes Related Health Disparities in Vulnerable Populations (the “VP Program”) to coordinate and integrate efforts in high risk communities involving CDC, national organizations, and community partners.
Through the VP Program, six national organizations received cooperative agreements to assist a total of 18 communities with planning, implementing, and evaluating community-based diabetes control programs. Each VP awardee is required to use the community change framework to guide their work with three communities. CDC proposes to collect information to learn more about how the community change approach is working in communities that are significantly impacted by factors that influence the disproportionate burden of diabetes in vulnerable populations, such as low income, limited education, limited access to health care, and a physical environment that does not promote health. Semi-structured telephone interviews will be conducted with key personnel associated with each national organization (VP awardee) and each community site. One project coordinator and one consultant at each of the six VP grantee organizations (n=12) will be asked to participate in an interview of 1.5 hours in length. In addition, an interview of approximately 1.5 hours will be conducted with one community partner or one coalition member at each community site (n=18) and one site coordinator at each community site (n=18) over a two-month period. Data collection, management, and analysis will be conducted by a contractor working on behalf of CDC.
The interviews will allow CDC to explore capacity building and support strategies used by the awardees to facilitate community change, and provide insight into the facilitators and barriers experienced by the program stakeholders in addressing diabetes in their communities.
OMB approval is requested for one year. Participation in the interviews is voluntary and there are no costs to respondents other than their time. The total estimated annualized burden hours are 72.
Coast Guard, Department of Homeland Security.
Notice of Federal Advisory Committee meeting.
The Towing Safety Advisory Committee will meet in Louisville, Kentucky March 25 and 26, 2015 to review and discuss recommendations from its Subcommittees and to receive briefs listed in the agenda under
The Towing Safety Advisory Committee Subcommittees will meet on Wednesday, March 25, 2015 from 8 a.m. to 5 p.m. The full Towing Safety Advisory Committee will meet on Thursday, March 26, 2015, from 8 a.m. to 5:30 p.m. These meetings may close early if the Committee has completed its business. All submitted written materials, comments, and requests to make an oral presentation at the meetings should reach Mr. William J. Abernathy, Alternate Designated Federal Officer for the Towing Safety Advisory Committee, no later than March 16, 2015. For contact information, please see the
All meetings will be held at the Auditorium, Muhammad Ali Center, One Muhammad Ali Plaza, 144 North Sixth Street, Louisville, KY 40202. The Telephone Number for the Muhammad Ali Center is (502)992-5326 and the Fax is (502)589-4905.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the individuals listed in the
To facilitate public participation, we are inviting public comment on the issues to be considered by the Committee as listed in the “Agenda” section below. Written comments must
• Federal Rulemaking Portal:
• Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. We encourage use of electronic submissions to minimize mail security screening delays.
• Fax: 202-493-2251.
• Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
• To avoid duplication, please use only one of these methods.
Instructions: All submissions received must include the words “Department of Homeland Security” and the docket number of this action. All comments will be posted as submitted at
Mr. William J. Abernathy, Alternate Designated Federal Officer for the Towing Safety Advisory Committee; Commandant (CG-OES-2), U.S. Coast Guard, 2703 Martin Luther King Jr. Avenue SE., Stop 7509, Washington, DC 20593-7509; telephone 202-372-1363, fax 202-372-8382; or email
Notice of this meeting is given under the
The Subcommittees will meet on March 25, 2015, from 8 a.m. to 5 p.m., to work on their specific task assignments:
(1) Recommendations Regarding Automation Equipment, Testing, Assessment, and Trial Periods on Towing Vessels.
(2) Recommendations for the Maintenance, Repair, and Utilization of Towing Equipment, Lines, and Couplings.
(3) Recommendations concerning procedures for conducting drug tests on board towing vessels.
(4) Recommendations for Improvement of Coast Guard Marine Casualty Reporting.
(5) Recommendations to Establish Criteria for Identification of Air Draft for Towing Vessels and Tows.
(6) Recommendations concerning the MODU KULLUK Report of Investigation.
On March 26, 2015, from 8 a.m. to 5:30 p.m., the Towing Safety Advisory Committee will meet to hear remarks by:
(1) Captain Richard Timme, USCG, Commander, Sector Ohio River Valley.
(2) Ms. Helen Brohl, Director, U.S. Committee on the Maritime Transportation System, U.S. Department of Transportation.
The Committee will also receive reports concerning the following:
(1) Recommendations Regarding Automation Equipment, Testing, Assessment, and Trial Periods on Towing Vessels, Initial Report.
(2) Recommendations for the Maintenance, Repair and Utilization of Towing Equipment, Lines and Couplings, Interim Report.
(3) Recommendations for Drug Testing Procedures on board Towing Vessels, Initial Report.
(4) Recommendations for Improvement of Coast Guard Marine Casualty Reporting, Final Report.
(5) Recommendation to Establish Criteria for Identification of Air Draft for Towing Vessels and Tows, Interim Report.
(6) Recommendations concerning the MODU KULLUK Report of Investigation, Interim Report.
There will be a comment period for Towing Safety Advisory Committee members and a comment period for the public after each report presentation, but before each is voted on by the Committee. The Committee will review the information presented on each issue, deliberate on any recommendations presented in the Subcommittees' reports, and formulate recommendations for the Department's consideration.
A copy of each draft report and presentations, and the meeting agenda will be available at:
An opportunity for oral comments by the public will be provided during the meeting on March 26, 2015. Speakers are requested to limit their comments to 3 minutes. Please note the public oral comment period may end before 5:30 p.m., if the Committee has finished its business earlier than scheduled. Please contact Mr. William J. Abernathy, listed above in the
Minutes from the meeting will be available for public review and copying within 90 days following the close of the meeting and can be accessed from the Coast Guard Homeport Web site
To receive automatic email notices of any future Towing Safety Advisory Committee meetings in 2015, go to the online docket, USCG-2014-1053 (
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day Notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed revision 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 May 11, 2015.
All submissions received must include the OMB Control Number 1615-0023 in the subject box, the agency name and Docket ID USCIS-2009-0020. To avoid duplicate submissions, please use only one of the following methods to submit comments:
(1)
(2)
(3)
If you need a copy of the information collection instrument with instructions, or additional information, please visit the Federal eRulemaking Portal site at:
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Transportation Security Administration, DHS.
60-day Notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0021, abstracted below, that we will submit to OMB for renewal in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The collection involves gaining information to conduct security threat assessments for all aliens and other designated individuals seeking flight instruction (“candidates”) from Federal Aviation Administration (FAA)-certified flight training providers. Pursuant to statute, TSA will use the information collected to determine whether a candidate poses a threat to aviation or national security, and thus prohibited from receiving flight training. Additionally, flight training providers are required to conduct a security awareness training program for their employees and to maintain records associated with this training.
Send your comments by May 11, 2015.
Comments may be emailed to
Christina A. Walsh at the above address, or by telephone (571) 227-2062.
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.
Based on the numbers of respondents to date, TSA estimates a total of 39,900 respondents annually: 35,000 candidates and 4,900 flight training providers. Respondents are required to provide the subject information every time an alien or other designated individual applies for pilot training as described in the regulation and subsequent interpretations, which is estimated to be 50,000 responses per year. TSA estimates an average of 45 minutes to complete each application, for a total approximate application burden of 37,500 hours per year. Flight training providers must keep records for each flight training candidate for five years from the time they are created. It is estimated each of the 4,900 flight training providers will carry an annual record keeping burden of 104 hours, for a total of 509,600 hours. Thus, TSA estimates the combined hour burden associated with this collection to be 547,100 hours annually.
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States on behalf of the United States Environmental Protection Agency against,
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to Mark A. Nitczynski, Senior Trial Counsel, United States Department of Justice, Environment and Natural Resources Division, Environmental Defense Section, 999 18th Street, South Terrace, Suite 370, Denver, CO 80202 and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the District of Alaska, United States Courthouse, 222 West Seventh Avenue, Room 229, Anchorage, AK 99513. In addition, the proposed Consent Decree may be examined electronically at
Nuclear Regulatory Commission.
Draft interim staff guidance; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment its Japan Lessons-Learned Division (JLD) draft interim staff guidance (ISG), “Compliance with Phase 2 of Order EA-13-109, Order Modifying Licenses with Regard to Reliable Hardened Containment Vents Capable of Operation under Severe Accident Conditions,” (JLD-ISG-2015-01). This draft JLD-ISG would provide guidance and clarification to assist nuclear power reactor licensees identify measures needed to comply with Phase 2 requirements of the “Order Modifying Licenses with Regard to Reliable Hardened Containment Vents Capable of Operation Under Severe Accident Conditions,” (Order EA-13-109) to have either a vent path from the containment drywell or a strategy that makes it unlikely that venting would be needed from the drywell before alternate reliable containment heat removal and pressure control is reestablished.
Submit comments by April 9, 2015. Comments received after this date will be considered, if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date.
You may submit comment by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Rajender Auluck, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1025; email:
Please refer to Docket ID NRC-2015-0048 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this action by the following methods:
•
•
•
•
Please include Docket ID NRC-2015-0048 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC developed draft JLD-ISG-2015-01 to provide guidance and clarification to assist nuclear power reactor licensees with the identification of methods needed to comply with Phase 2 requirements in Order EA-13-109, “Order Modifying Licenses with Regard to Reliable Hardened Containment Vents Capable of Operation under Severe Accident Conditions” (ADAMS Accession No. ML13130A067). The draft ISG would not be a substitute for the requirements in Order EA-13-109, and compliance with the ISG would not be a requirement. This ISG is being issued in draft form for public comment to involve the public in development of the implementing guidance.
The accident at the Fukushima Dai-ichi nuclear power station reinforced the importance of reliable operation of containment vents for boiling-water reactor (BWR) plants with Mark I and Mark II containments. As part of its response to the lessons learned from the accident, on March 12, 2012, the NRC issued Order EA-12-050 (ADAMS Accession No. ML12056A043) requiring licensees to upgrade or install a reliable hardened containment venting system (HCVS) for Mark I and Mark II containments. The requirements in Order EA-12-050 for licensees with
The NRC staff presented the Commission with options to address these issues in SECY-12-0157, “Consideration of Additional Requirements for Containment Venting Systems for Boiling Water Reactors with Mark I and Mark II Containments” (issued November 26, 2012, ADAMS Accession No. ML12325A704). The options presented in SECY-12-0157 included continuing with the implementation of Order EA-12-050 for reliable hardened vents (Option 1); requiring licensees to upgrade or replace the reliable hardened vents required by EA-12-050 with a containment venting system designed and installed to remain functional during severe accident conditions (Option 2); requiring licensees with BWR Mark I and Mark II containments to install an engineered filtered containment venting system intended to prevent the release of significant amounts of radioactive material following the dominant severe accident sequences (Option 3); and pursuing development of requirements and technical acceptance criteria for performance-based confinement strategies (Option 4). The NRC staff provided an evaluation considering various quantitative analyses and qualitative factors related to the options and recommended the Commission approve Option 3 to require the installation of an engineered filtering system. One issue not specifically addressed within SECY-12-0157 was the importance of water addition to cool core debris as part of severe accident management for BWR's with Mark I and II containments. The NRC staff acknowledged in SECY-12-0157 that in the longer-term rulemaking associated with any of the options presented, the NRC could consider adding requirements for the capability of core debris cooling during severe accident scenarios.
In the staff requirements memorandum (SRM) for SECY-12-0157, dated March 19, 2013 (ADAMS Accession No. ML13078A017), the Commission directed the staff to: (1) Issue a modification to Order EA-12-050 requiring BWR licensees with Mark I and Mark II containments to upgrade or replace the reliable hardened vents required by Order EA-12-050 with a containment venting system designed and installed to remain functional during severe accident conditions, and (2) develop a technical basis and rulemaking for filtering strategies with drywell filtration and severe accident management of BWR Mark I and II containments. The NRC subsequently issued Order EA-13-109 to define requirements and schedules for licensees for BWRs with Mark I and Mark II containments to install severe accident capable containment venting systems. The NRC staff also initiated development and evaluation of other possible regulatory actions identified in the Commission's SRM for SECY-12-0157, including the development of a technical basis in support of a Containment Protection and Release Reduction (CPRR) rulemaking.
Order EA-13-109, in addition to requiring a reliable HCVS to assist in preventing core damage when heat removal capability is lost (the purpose of EA-12-050), will ensure that venting functions are also available during severe accident conditions. Severe accident conditions include the elevated temperatures, pressures, radiation levels, and combustible gas concentrations, such as hydrogen and carbon monoxide, associated with accidents involving extensive core damage, including accidents involving a breach of the reactor vessel by molten core debris. The safety improvements to Mark I and Mark II containment venting systems required by Order EA-13-109 increase confidence in licensees' ability to maintain the containment function following core damage events. Although venting the containment during severe accident conditions could result in the release of radioactive materials, venting could also prevent containment structural failures and gross penetration leakage due to overpressurization that would hamper accident management (
In recognition of the relative importance of venting capabilities from the wetwell and drywell, a phased approach to implementation is being used to minimize delays in implementing the requirements originally imposed by Order EA-12-050. Phase 1 involves upgrading the venting capabilities from the containment wetwell to provide reliable, severe accident capable hardened vents to assist in preventing core damage and, if necessary, to provide venting capability during severe accident conditions. Phase 2 involves providing additional protection during severe accident conditions through installation of a reliable, severe accident capable drywell vent system or the development of a reliable containment venting strategy that makes it unlikely that a licensee would need to vent from the containment drywell during severe accident conditions. For implementation of Phase 1 order requirements, the NRC issued JLD-ISG-2013-02 on November 14, 2013 (78 FR 70356), which endorsed, with clarifications, the methodologies described in the industry guidance document Nuclear Energy Institute (NEI) 13-02, Rev. 0 (ADAMS Accession No. ML13316A853). As required by the order, licensees submitted their site-specific overall integrated plans by June 30, 2014. The NRC is currently reviewing these plans and expects to complete those reviews by June 2015.
The focus of this ISG is to provide guidance for Phase 2 requirements of the order. Some proposed approaches to implement Phase 2 requirements of the order include the addition of water to the drywell during severe accident conditions. Evaluations performed by the NRC and industry in conjunction with the CPRR rulemaking show that water addition during severe accident conditions provides benefits that include reducing temperatures and cooling molten core debris. In SECY-12-0157, the NRC discussed various risk assessments by the NRC and industry that have concluded that adding water to the drywell reduces the likelihood of release of radioactive materials for those severe accident scenarios that involve fuel melting through the reactor vessel. The water added to the drywell cools the molten fuel and can arrest the melting fuel's progression and reduce the likelihood of a loss of the containment function through liner melt-through, containment over-pressurization failure, and containment over-temperature failure. In addition to the benefits associated with containment protection, recent technical evaluations performed by both the industry and the NRC indicate that including the capability of timely severe accident water addition (SAWA) results in a substantially lower drywell temperature for consideration in designing the drywell vent. Therefore, SAWA will facilitate implementation of Phase 2 of Order EA-13-109 by establishing the design conditions for a drywell vent and supporting severe accident water management (SAWM) for
On December 10, 2014, NEI submitted NEI 13-02, “Industry Guidance for Compliance with Order EA-13-109,” Rev. 0E2 (ADAMS Accession No. ML1434A374) to assist nuclear power licensees with the identification of measures needed to comply with the requirements of Order EA-13-109 regarding reliable hardened containment vents capable of operation under severe accident conditions. The NEI document includes guidance for implementing order requirements for both Phase 1 and Phase 2, including the industry's proposed approach to use the SAWA and SAWM strategies to control the water levels in the suppression pool and maintain capabilities to address over-pressure conditions without a severe accident drywell vent. As described in the draft ISG, some issues remain the subject of ongoing discussions as part of finalizing the guidance. These include: (1) Availability of power and functional requirements for the SAWA-related installed and portable equipment, (2) duration of time for preservation of the wetwell vent for the SAWM strategy, and (3) alternate control of containment conditions during recovery from the severe accident. The NRC intends to continue discussions with stakeholders prior to finalizing the ISG for Phase 2 of the order and endorsing, with clarifications and exceptions if necessary, the methodologies described in the industry guidance document NEI 13-02, Rev. 0E2.
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Options Fee Schedule (“Fee Schedule”) relating to Strategy Executions. The Exchange proposes to implement the change on March 1, 2015. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this filing is to modify the Exchange's Limit on Fees on Options Strategy Executions (“Strategy Cap”). Currently, the Exchange imposes a Strategy Cap of $750 on transaction fees for certain Strategy Executions executed in standard option contracts on the same trading day in the same option class. The Exchange is proposing to lower the $750 Strategy Cap to $700.
Strategy Executions that are eligible for the Strategy Cap would continue to be (a) reversals and conversions, (b) box spreads, (c) short stock interest spreads, (d) merger spreads, and (e) jelly rolls. As is the case today, Royalty fees associated with Strategy Executions on Index and Exchange Traded Funds would not be included in the calculation of the Strategy Cap, but would be passed through to trading participants on the Strategy Executions on a pro-rata basis. Similarly, manual Broker Dealer and Firm Proprietary Strategy trades that do not reach the $700 Strategy Cap would continue to be billed at $0.25 per contract.
The use of these Strategy Executions benefits all market participants by increasing liquidity in general and allowing significant and complex trading interest to be brought together to enhance liquidity. By encouraging this type of business on the Exchange, the increased liquidity benefits all market participants. The Exchange believes the proposed change would continue to incentivize market participants to trade on the Exchange by capping option transaction charges related to various Strategy Executions.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed change is reasonable, equitable and not unfairly discriminatory because the reduced fee cap is designed to attract more volume and liquidity to the Exchange, which would benefit all Exchange participants through increased opportunities to trade as well as enhancing price discovery.
Further, because the proposed change applies equally to all non-Customers who may participate in Strategy Executions, the Exchange believes the reduced Strategy Cap is reasonable, equitable and not unfairly discriminatory. The Exchange notes that Customers are not charged transaction fees when participating in Strategy Executions and therefore are not subject to the Strategy Cap.
Finally, the Exchange notes that the proposed $700 Strategy Cap is equivalent to the cap placed on various executions strategies by other exchanges.
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 action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
OCC is proposing to execute an Agreement for Clearing and Settlement Services (“Clearing Agreement”) between OCC and NASDAQ Futures, Inc. (“NFX”) in connection with NFX's intention to resume operating as a designated contract market (“DCM”) regulated by the Commodity Futures Trading Commission (“CFTC”).
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
OCC is proposing to provide clearance and settlement services to NFX pursuant to the terms set forth in the Clearing Agreement. NFX has been re-designated by the CFTC as a DCM.
By way of background, NFX previously operated as a DCM and cleared its futures contracts through OCC. As such, OCC and NFX had previously entered into a Second Amended and Restated Agreement for Clearing and Settlement Services (“Previous Agreement”) dated January 13, 2012.
On November 21, 2014, NFX was approved by the CFTC as a DCM.
The Clearing Agreement has been amended to allow OCC more flexibility in determining which products it will clear based upon OCC's conclusion that it is able to appropriately risk manage such products using commercially reasonable standards.
• Section 3(a) of the Clearing Agreement, “General Criteria for Underlying Interests,” has been amended to permit NFX to select the underlying interests that are the subject of currency futures, commodity futures, and/or futures options to be traded on NFX only if OCC is satisfied that it is able to appropriately risk manage the contract with the proposed underlying interest using commercially reasonable efforts.
• Section 9 of the Clearing Agreement, “Limitations of Authority and Responsibility,” has been amended to specify that OCC shall have no responsibility to enforce standards relating to the conduct of trading on NFX unless OCC finds it reasonably necessary in order to appropriately risk manage the products that are being traded on NFX.
In addition to the above, the Clearing Agreement will also make several changes to the Previous Agreement, which include:
• Section 3(c), “Procedures for Selection of Underlying Interests,” has been amended to state that NFX must submit a certificate for a new class of contracts not already listed or traded on NFX as soon as practicable (rather than ten days prior to the commencement of trading). It has also been amended to state that OCC will be obligated to use commercially reasonable efforts to authorize the clearance and settlement of such contracts as soon as practicable. In addition, the Clearing Agreement expressly obligates NFX to provide OCC with any additional information as requested by OCC from time to time that will assist OCC in identifying a new product proposed for clearing by NFX. OCC believes that these amendments to Section 3(c), related to the procedures for the selection of underlying interests, will ensure that OCC not only has the correct information needed to evaluate a proposed new product but that the information will be produced to OCC in a timely manner which will provide OCC sufficient time to evaluate the proposed new product.
• Section 3(d), “Notice of Additional Maturity or Expiration Dates,” has been amended to state that, for a class of products previously certified, NFX may introduce a new maturity or expiration date that is in the cycle set forth in the certificate by providing notice to OCC through electronic means specified by OCC. The Previous Agreement required such notice to be sent to OCC only by email or facsimile.
• A universal conforming change has been made to various sections in the Clearing Agreement to replace the term “matched” trades with “confirmed” trades to better describe trades that are processed for clearance and settlement.
• Section 5(a), “Confirmed Trade Reports,” has been amended to remove language discussing the possibility that NFX will provide OCC with a confirmed trade report on a real time basis as this capability is already captured in the language “as the Corporation may reasonably prescribe.”
• Section 5(c)(i) has been amended to include language that will allow OCC to determine the final settlement price for a futures contract in which the underlying interest is a cash-settled foreign currency if the organized market in which that foreign currency future is traded on, or the foreign currency itself, did not open or remain open for trading at or before the time in which the settlement price for such futures contract would ordinarily be determined. In addition, Section 5(c)(i) has been amended to include a reference to “variance” when listing factors that will allow OCC to determine a final reasonable settlement price, if not reported at the ordinary time of final
• Section 7, “Acceptance and Rejection of Transactions in Cleared Contracts,” has been amended to include a provision that will allow OCC, in accordance with its By-Laws, to reject transactions due to validation errors which will allow OCC to better manage its clearance and settlement obligations by expressly allowing it to reject transactions that do not contain complete terms. These validation errors include, for example, an incorrect Clearing Member, account, product or format.
• Section 8, “Non-Discrimination,” has been amended to delete a provision restricting OCC from changing its By-Laws or Rules in any manner that may limit its obligations to clear and settle for NFX. In addition, a provision has been deleted requiring OCC to amend the Clearing Agreement in the event that OCC has made changes to its standard form agreement for clearing and settlement services. Section 8 has also been amended to delete a provision stating OCC is required to consult with NFX and modify OCC's By-Laws or Rules to incorporate product design features specified by NFX for new products. OCC believes that these provisions are no longer necessary as they limit OCC's ability to modify its By-Laws, Rules and agreements which may be necessary for OCC to fulfill its obligations as a clearing organization. OCC will, however, continue to be obligated to fulfill both the provisions of the Clearing Agreement and OCC's regulatory responsibilities. Section 8 has additionally been amended to delete an obligation for each party to provide the other with proposed rule changes. The elimination of this contractual obligation reflects the parties' determination that their respective obligations to post filed regulatory submissions on their public Web sites provides sufficient notice of such changes.
• Section 11, “Financial Requirements for Clearing Members,” has been amended to delete a provision stating the specific financial responsibility standards OCC has with respect to its Clearing Members. This change was made to further streamline the Clearing Agreement given OCC's general obligation to remain consistent with OCC By-Laws and Rules.
• Section 14, “Programs and Projects,” has been amended to eliminate a provision expressly requiring OCC to offer futures contract clearing terms to NFX that are no less favorable to the terms offered to other exchanges.
• Sections 15 and 24 in the Previous Agreement, “Information Sharing” and “Quality Standards” respectively, have been deleted in their entirety in an attempt to simplify the Clearing Agreement as the sections create unnecessary obligations on the parties and are duplicative of general regulatory responsibilities of both parties.
• Section 18(b), “Other Grounds for Termination,” has been amended to include a provision that OCC may terminate the Clearing Agreement at any time so long as NFX is given 120 days prior written notice. The addition of this provision better balances the rights of both parties to terminate the Clearing Agreement at their discretion provided that proper notice is given as required by the Clearing Agreement.
• Various administrative changes have been made throughout the document including, but not limited to, an amended legal name and description of NFX, updated references to sections within the document, and clean-up changes of duplicative terms.
Finally, Schedule A of the Clearing Agreement, “Description of Clearing and Settlement Services” and Schedule B of the Clearing Agreement, “Information Sharing,” have been amended making several changes to the Previous Agreement, which include:
• Section (1) of Schedule A of the Clearing Agreement, “Trade Acceptance,” has been updated to reflect current OCC operational requirements with respect to submission of confirmed trades.
• Section (4) of Schedule A, “Information for Clearing Members,” has been amended to delete specific information sharing obligations of OCC to its Clearing Members and to state that the information provided to Clearing Members will be in accordance with OCC's By-Laws and Rules.
• Section (I)(A) of Schedule B has been amended to delete specific references to information that OCC will provide to Clearing Members on a daily basis and instead adds a provision that OCC will provide NFX with its “Data Distribution Service” information for regulatory and financial purposes.
• Section (I)(B) of Schedule B has been amended to delete certain information sharing provisions and to state that the information sharing obligations OCC continues to have may be satisfied by posting the required information on OCC's public Web site which streamlines the information sharing process.
The Clearing Agreement has remained substantially similar to the Previous Agreement but has been amended in certain respects as described above. Generally, the amendments will provide OCC more discretion in which products it manages based upon its risk management framework, remove unnecessary obligations for each party, and make the Clearing Agreement more precise and reflective of current practices. The Clearing Agreement also allows OCC to continue to provide clearance and settlement purposes while fulfilling its obligations as a self-regulating organization. As such, as stated above, OCC is proposing to provide notice regarding the Clearing Agreement so that OCC may begin providing clearing and settlement services for NFX in the second quarter of 2015.
OCC believes that the proposed rule change is consistent with Section 17A(b)(3)(F) of the Securities Exchange Act of 1934, as amended (“Act”).
OCC does not believe that the proposed rule change would impose a burden on competition.
Written comments on the proposed rule change were not and are not intended to be solicited with respect to the proposed rule change and none have been received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-OCC-2015-03 and should be submitted on or before March 31, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rules 11.6, 11.8, 11.9, 11.10 and 11.11 to clarify and to include additional specificity regarding the current functionality of the Exchange's System,
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B and C below, of the most significant parts of such statements.
On June 5, 2014, Chair Mary Jo White asked all national securities exchanges to conduct a comprehensive review of each order type offered to members and how it operates.
Pursuant to current Rule 11.6(d), the Exchange defines a Discretionary Range as an instruction the User
The Exchange also proposes to specify certain situations where the Discretionary Range of an order could be temporarily reduced based on contra-side interest resting on the Exchange. The Exchange notes that an order with a Post Only instruction
With respect to displayed contra-side liquidity, the Exchange proposes to make clear that if an order posted to the EDGA Book has a Discretionary Range and there is a contra-side order that is displayed by the System on the EDGA Book within such Discretionary Range, the order with a Discretionary Range will not be permitted to execute at the price of or at a price more aggressive than such contra-side displayed order unless and until there is no contra-side displayed order on the EDGA Book within the Discretionary Range. In such case, the order with a Discretionary Range will have discretion to one Minimum Price Variation
With respect to non-displayed contra-side liquidity, the Exchange proposes to make clear that if an order posted to the EDGA Book has a Discretionary Range and there is a contra-side order with a Non-Displayed instruction,
The Exchange notes that the language proposed with respect to the temporary reduction of the Discretionary Range of an order is consistent with the Exchange's recently amended rules.
Below are examples of the operation of orders with a Discretionary Range.
Assume the NBBO is $10.00 by $10.10, that the best-priced order to buy in the System is a displayed bid at $9.99, and that the best-priced order to sell in the System is a displayed offer at $10.11. Also assume that orders with a Post Only instruction do not remove liquidity from the EDGA Book because the value of an execution would not equal or exceed the value of an execution if posted at its limit price, including the applicable fees charged or rebates provided under proposed Rule 11.6(n)(4).
• If a non-routable Limit Order to sell 100 shares at $10.05 is entered into the System, depending on applicable User instructions, such order will either be posted and displayed by the System on the EDGA Book as an order to sell 100 shares (
• If, instead, a Limit Order to sell 100 shares at $10.04 is entered into the System, such order will execute at $10.04 against the resting buy order with a Discretionary Range instruction.
• If, instead, a Limit Order to sell 100 shares at $10.02 is entered into the System, such order will execute at $10.02 against the resting buy order with a Discretionary Range instruction.
• If, instead, a Limit Order to sell 100 shares at $10.00 or lower or a Market Order to sell 100 shares is entered into the System, such order will execute at $10.00 against the resting buy order with a Discretionary Range instruction.
• If, instead, the sell order at $10.05 with a Post Only instruction is then canceled, the buy order with a Discretionary Range instruction with have its discretion to execute up to $10.05 reinstated.
• If, instead, a Limit Order to buy 100 shares at $10.05 or higher or a Market Order to buy 100 shares is then entered into the System, such order will execute at $10.05 against the displayed order to sell with a Post Only instruction and the buy order with a Discretionary Range instruction will have its discretion to execute up to $10.05 reinstated.
Assume the NBBO is $10.00 by $10.10, that the best-priced order to buy in the System is a displayed bid at $9.99, and that the best-priced order to sell in the System is a displayed offer at $10.11. Also assume that orders with a Post Only instruction do not remove liquidity from the EDGA Book because the value of an execution would not equal or exceed the value of an execution if posted at its limit price, including the applicable fees charged or rebates provided under proposed Rule 11.6(n)(4).
• If a non-routable Limit Order to sell 100 shares at $10.07 with a Displayed instruction is entered into the System, depending on applicable User instructions, such order will be posted and displayed by the System on the EDGA Book as an order to sell 100 shares at $10.07 or will be cancelled back to the entering User.
• If, instead, a Limit Order to sell 100 shares at $10.06 is entered into the System, such order will execute at $10.06 against the resting buy order with a Discretionary Range instruction.
• If, instead, a Limit Order to sell 100 shares at $10.02 is entered into the System, such order will execute at $10.02 against the resting buy order with a Discretionary Range instruction.
• If, instead, a Limit Order to sell 100 shares at $10.00 or lower or a Market Order to sell 100 shares is entered into the System, such order will execute at $10.00 against the resting buy order with a Discretionary Range instruction.
• If, instead, the sell order with a Non-Displayed instruction of 100 shares that is ranked at $10.06 is then canceled, the buy order with a Discretionary Range instruction will have its discretion to execute up to $10.07 reinstated.
The Exchange's handling of orders with a Discretionary Range instruction is intended to reflect the relatively passive nature of orders with a Discretionary Range. In all cases, although the Users submitting such orders have indicated a willingness to execute at a more aggressive price, such orders are ranked at a lower price to buy or a higher price to sell. In turn, if an order is executed at its ranked price, rather than at a price within the Discretionary Range, then the User that submitted the order receives a better result in each case (
In addition to the changes described above, the Exchange proposes to re-locate within Rule 11.8(b) and re-word the statement regarding the inclusion of a Discretionary Range on a Limit Order. Current Rule 11.8(b)(8) currently states that a “User may include a Discretionary Range instruction.” This ability to include a Discretionary Range instruction on a Limit Order is currently grouped with other functionality that can be elected for Limit Orders that also include a Post Only or Book Only instruction as well as specified time-in-force instructions for orders that can be entered into the System and post to the EDGA Book. However, the System does not allow the combination of a Discretionary Range and a Post Only instruction. Accordingly, the Exchange proposes to re-locate the reference to the Discretionary Range instruction within Rule 11.8(b) so that it is no longer grouped with other orders that can be combined with a Post Only instruction. The Exchange also proposes to state in Rule 11.8(b) that: (i) A Limit Order with a Discretionary Range instruction may also include a Book Only instruction; and (ii) a Limit Order with a Discretionary Range instruction and a Post Only instruction will be rejected. Further, the Exchange proposes to refer to the ability of a Limit Order to include a Discretionary Range instruction, rather than a “User” that may include a Discretionary Range instruction.
With respect to the Exchange's priority and execution algorithm, the Exchange is proposing various minor and structural to changes that are intended to emphasize the processes by which orders are accepted, priced, ranked, displayed and executed, as well as a new provision related to the ability of orders to rest at locking prices that is consistent with the changes to provisions related to the operation of orders with a Discretionary Range instruction described above. First, the Exchange has proposed modifications to Rule 11.9, Priority of Orders, to make clear that the ranking of orders described in such rule is in turn dependent on Exchange rules related to the execution of orders, primarily Rule 11.10. The Exchange believes that this has always been the case under Exchange rules but there was not previously a description of the cross-reference to Rule 11.10 within such rules. Accordingly, the Exchange proposes to add reference to the execution process in addition to the numeric cross-reference to Rule 11.10. The Exchange also proposes to change certain references within Rule 11.9 to refer to ranking rather than executing equally priced trading interest, as the Rule as a whole is intended to describe the manner in which resting orders are ranked and maintained, specifically in price and time priority, while awaiting execution against incoming orders. The Exchange does not believe that the proposed modifications substantively modify the operation of the rules but the Exchange believes that it is important to make clear that the ranking of orders is a separate process from the execution of orders. The Exchange also proposes changes to Rule 11.9(a)(4) and (a)(5) to specify that orders retain and lose “time” priority under certain circumstances as opposed to priority generally because retaining or losing price priority does not require the same descriptions, as price priority will always be retained unless the price of an order changes.
Next, the Exchange proposes to move language contained within sub-paragraph (a)(2) of Rule 11.10 to the main paragraph, paragraph (a), such that the language is more generally applicable to the rules. Although sub-paragraph (a)(2) contains information relevant to executability, in that it describes orders that are executable in compliance with Regulation NMS or otherwise do not trade through quotations of other markets, there are other provisions set forth in paragraph (a) that relate to executability. Accordingly, the Exchange proposes to relocate language stating that any order falling within the parameters of this paragraph shall be referred to as “executable” and that an order will be cancelled back to the User, if based on market conditions, User instructions, applicable Exchange Rules and/or the Act and the rules and regulations thereunder, such order is not executable, cannot be routed to another Trading Center pursuant to Rule 11.11 or cannot be posted to the EDGA Book.
The Exchange proposes to adopt paragraph (C) of Rule 11.10(a)(4) to provide further clarity regarding the situations where orders are not executable, which although covered in other existing rules, would focus on the incoming order on the same side of an order displayed on the EDGA Book rather than the resting order that is rendered not executable because it is opposite such order displayed on the EDGA Book. Proposed paragraph (C) would further state that if an incoming order is on the same side of the market as an order displayed on the EDGA Book and upon entry would execute against contra-side interest at the same price as such displayed order, such incoming order will be cancelled or posted to the EDGA Book and ranked in accordance with Rule 11.9. As described above, the Exchange suspends the ability of an order subject to the Displayed Price Sliding instruction to execute at the Locking Price for so long as a contra-side order that equals the Locking Price is displayed by the System on the EDGA Book. Similarly, as proposed to be added to EDGA Rules, the Exchange temporarily suspends the ability of an order to execute at the same price as a contra-side displayed order for any order with a Discretionary Range instruction. The Exchange temporarily suspends this discretion to avoid an apparent priority issue where a User representing an order that is displayed on the Exchange either believes such order has time priority among displayed orders at that price or that the displayed order is the only order at such price level and then sees an execution published by the Exchange at that price.
To demonstrate the functionality in place on the Exchange described above, assume the NBBO is $10.00 by $10.01. Also assume that orders with a Post Only instruction do not remove liquidity from the EDGA Book because the value of an execution would not equal or exceed the value of an execution if posted at its limit price, including the applicable fees charged or rebates provided under proposed Rule 11.6(n)(4).
• If a non-routable Limit Order to sell 100 shares at $10.01 is entered into the System, depending on applicable User instructions, such order will either be posted and displayed by the System on the EDGA Book as an order to sell 100 shares (
• If, instead, a Limit Order to sell 100 shares at $10.00 is entered into the System, such order will execute at $10.00 against the resting buy order with a Displayed Price Sliding instruction.
• If, instead, a Limit Order to buy 100 shares at $10.01 or higher or a Market Order to buy 100 shares is entered into the System,
The Exchange notes that it is proposing to add descriptive titles to paragraphs (A) and (B) of Rule 11.10(a)(4), which describe the process by which executable orders are matched within the System. Specifically, so long as it is otherwise executable, an incoming order to buy will be automatically executed to the extent that it is priced at an amount that equals or exceeds any order to sell in the EDGA Book and an incoming order to sell will be automatically executed to the extent that it is priced at an amount that equals or is less than any other order to buy in the EDGA Book. These rules further state that an order to buy shall be executed at the price(s) of the lowest order(s) to sell having priority in the EDGA Book and an order to sell shall be executed at the price(s) of the highest order(s) to buy having priority in the EDGA Book. The Exchange emphasizes these current rules only insofar as to highlight the interconnected nature of the priority rule.
The Exchange also proposes to modify paragraph (h) of Rule 11.11 to clarify the Exchange's rule regarding the priority of routed orders. Paragraph (h) currently sets forth the proposition that a routed order does not retain priority on the Exchange while it is being routed to other markets. The Exchange believes that its proposed clarification to paragraph (h) is appropriate because it more clearly states that a routed order is not ranked and maintained in the EDGA Book pursuant to Rule 11.9(a), and therefore is not available to execute against incoming orders pursuant to Rule 11.10.
The Exchange believes that the proposed rule changes are consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”)
Specifically, the Exchange also believes that the changes to provide additional clarity and specificity regarding the functionality of the System with respect to an order with a Discretionary Range instruction would promote just and equitable principles of trade and remove impediments to a free and open market by providing greater transparency concerning the operation of the System. The Exchange also believes that the proposed amendments to clarify and re-structure the Exchange's priority, execution and routing rules will contribute to the protection of investors and the public interest by making the Exchange's rules easier to understand. As described above, the Exchange has proposed to adopt rules that describe functionality in the System that will only be implicated to the extent an order with a Post Only instruction does not remove liquidity on entry and is posted to the EDGA Book. As also described above, under the Exchange's current pricing structure, an order with a Post Only instruction will, in all cases, remove contra-side liquidity from the EDGA Book. However, the Exchange proposes to adopt language to reflect the operation of the System in the event the Exchange's fee structure is modified and an order with a Post Only instruction is able to be posted to the EDGA Book without removing liquidity.
The Exchange believes that it is consistent with the Act to temporarily reduce the Discretionary Range of an order that has been posted to the EDGA Book for so long as there is contra-side liquidity on the EDGA Book because this functionality prevents an apparent priority issue on the EDGA Book as described above as well as the ability of an order to execute at a price that trades through the ranked price of an order resting on the EDGA Book. The Exchange reiterates that such behavior, as described above, is temporary in nature; an order's full Discretionary Range will be returned as soon as the contra-side liquidity that caused the reduction in the first place is no longer maintained on the EDGA Book. The Exchange believes that its overall handling of orders, including the temporary suspension of the ability of an order with a Discretionary Range to execute at one or more prices is consistent with the Act because it removes impediments to and perfects the mechanism of a free and open market and a national market system by reflecting the relatively passive nature of an order with a Discretionary Range instruction while honoring the instructions of a User submitting a contra-side order that does not remove liquidity on entry. As explained above, the Exchange's handling of orders with a Discretionary Range instruction is intended to reflect the relatively passive nature of orders with a Discretionary Range. The Exchange believes it is reasonable that an order with a Discretionary Range instruction might temporarily become not executable at certain prices because such prices are more aggressive than their ranked price (
The Exchange does not believe that the proposed rule changes will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule changes are not designed to address any competitive issue but rather to add specificity and clarity to Exchange rules, thus providing greater transparency regarding the operation of the System.
The Exchange has neither solicited nor received written comments on the proposed rule changes.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as modified by Amendment No. 1, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange filed a proposal to amend its fees and rebates applicable to Members
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to increase the fee for orders yielding fee code K, which routes to PSX using ROUC or ROUE routing strategy. In securities priced at or above $1.00, the Exchange currently assesses a fee of $0.0024 per share for Members' orders that yield fee code K. The Exchange proposes to amend its Fee Schedule to increase this fee to $0.0026 per share. The proposed change represents a pass through of the rate that BATS Trading, Inc. (“BATS Trading”), the Exchange's affiliated routing broker-dealer, is charged for routing orders to PSX when it does not qualify for a volume tiered reduced fee. The proposed change is in response to PSX's February 2015 fee change where PSX increased the fee to remove liquidity via routable order types it charges its customers, from a fee of $0.0024 per share to a fee of $0.0025 per share for Tape A securities and $0.0026 per share for Tapes B and C securities.
The Exchange proposes to implement these amendments to its Fee Schedule on February 2, 2015.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
These proposed rule changes do not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that any of these changes represent [sic] a significant departure from previous pricing offered by the Exchange or pricing offered by the Exchange's competitors. Additionally, Members may opt to disfavor EDGX's pricing if they believe that alternatives offer them better value. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of Members or competing venues to maintain their competitive standing in the financial markets. The Exchange believes that its proposal to pass through a fee of $0.0026 per share for Members' orders that yield Flag K would increase intermarket competition because it offers customers an alternative means to route to PSX. The Exchange believes that its proposal would not burden intramarket competition because the proposed rate would apply uniformly to all Members.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from Members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend one aspect of the administration of income generated by Payment for Order Flow fees which are assessed under Section II of the Pricing Schedule which pertains to Multiply Listed Options fees.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to streamline the Exchange's administration of its payment for order flow (“PFOF”) program, by allowing the Exchange to consolidate on its books two separate pools of PFOF funds per Specialist
The Exchange's PFOF program helps its Specialists and Directed Registered Options Traders (“Directed ROTs”)
These PFOF Fees are available to be disbursed by the Exchange according to the instructions of the Specialists or Directed ROTs to order flow providers who are members or member organizations, who submit, as agent, customer orders to the Exchange or non-members or non-member organizations who submit, as agent, customer orders to the Exchange through a member or member organization who is acting as agent for those customer orders. Any excess PFOF funds billed but not utilized by the Specialist or Directed ROT are carried forward unless the Directed ROT or Specialist elects to have those funds rebated to the applicable ROT, Directed ROT or Specialist on a pro rata basis, reflected as a credit on the monthly invoices. At the end of each calendar quarter, the Exchange calculates the amount of excess funds from the previous quarter and subsequently rebates excess funds on a pro-rata basis to the applicable ROT, Directed ROT or Specialist who paid into that pool of funds.
The Exchange provides administrative support for the PFOF program by maintaining the funds generated by PFOF fees, keeping track of the number of qualified orders each Specialist and Directed ROT has directed to the Exchange, and making payments to order flow providers on behalf of, and at the direction of, the Specialist or Directed ROT. The Exchange collects and holds the funds generated by the PFOF fees to be disbursed according to the instructions of the Specialists or Directed ROTs to order flow providers as stated above. The PFOF fees are collected by the Exchange for use by these Specialists and Directed ROTs to attract Customer orders to the Exchange from order flow providers that accept payment as a factor in making their order routing decisions.
The Exchange currently maintains on its books individual pools of PFOF funds for each Directed ROT and Specialist participating in the PFOF program. Further, the Exchange maintains two separate pools of funds for each Specialist who elects to participate in the PFOF program.
The Exchange originally established the separate “Directed ROT” pool and “Specialist” pool for each Specialist for purposes of transparency when Directed ROTs were first permitted, like Specialists, to opt in to the PFOF program and to use the funds generated by the fee applicable to Directed Orders to pay order flow providers, to attract orders to the Exchange.
Specialists also became eligible to receive Directed Orders. Having two separate pools for Specialists reflecting (a) PFOF fees attributable to undirected Orders (the “Specialist” pool), and (b) PFOF fees attributable to Directed Orders directed to the Specialist (the “Directed ROT” pool) provided transparency and clarity as to the source of the PFOF funds. Today, the need for transparency provided by two separate pools per Specialist is not as necessary, as Specialists receive significantly detailed PFOF marketing reports, driven by the enhanced technology and supporting automated processes that underscore the Exchange's billing and reporting systems.
Additionally, the report accompanying payments that the Exchange makes to order flow providers on behalf of the pool-owners specifies only the Specialist from which the funds are coming. The report does not identify the type of pool that is the source of the payment. From the Exchange's perspective, there is no benefit to maintaining the two separate types of pools on its books for each Specialist. Additionally, from an external perspective, based on the Exchange's interaction with Specialists who are pool-owners and with order-flow providers, the maintenance of separate pools of funds on the Exchange's books is no longer necessary. The single pool will be termed the PFOF pool.
Lastly, the above proposal will result in each Specialist or Directed ROT having only one PFOF pool. This will also streamline their administrative and accounting processes with regard to the information provided by the Exchange and instructions they in turn provide to the Exchange. To illustrate, assume Market Maker A
Phlx believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The proposal is designed simply to eliminate an unnecessary administrative burden on the Exchange and its members, and to result in accounting and operational efficiencies for both. All Specialists opting into the PFOF program will be treated equally under the proposal and will realize the administrative benefits of the proposal uniformly.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange's proposal to combine the PFOF pools will simply result in administrative efficiencies for the Exchange and its members.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing,
• 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.
On December 29, 2014, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposed to amend Exchange Rule 6.60 and to adopt Exchange Rule 6.61, which was previously Reserved, to provide price protection for Market Maker quotes. Exchange Rule 6.60 currently applies and will continue to apply solely to orders. Exchange Rule 6.60(b), provides a price protection filter for incoming limit orders, pursuant to which the Exchange rejects limit orders priced a specified percentage
The Exchange proposed to adopt new Exchange Rule 6.61 to provide for a price protection mechanism for quotes entered by a Market Maker. Exchange Rule 6.61(a) will provide price protection filters applicable only for quotes entered by a Market Maker pursuant to Rule 6.37B and will not be applicable to orders entered by a Market Maker. The Exchange proposed to provide for two layers of price protection that will be applicable to all incoming Market Maker quotes.
Proposed Exchange Rule 6.61(a)(1) sets forth the Exchange's proposed NBBO price reasonability check, which will compare Market Maker bids with the NBO and Market Maker offers with the NBB. Specifically, provided that an NBBO is available, a Market Maker quote will be rejected if it is priced a specified dollar amount or percentage through the contra-side NBBO as follows:
(A) $1.00 for Market Maker bids when the contra-side NBO is priced at or below $1.00; or
(B) 50% for Market Maker bids (offers) when the contra-side NBO (NBB) is priced above $1.00.
The Exchange will reject inbound Market Maker quotes that exceed the parameters set forth in proposed Exchange Rule 6.61(a)(1)(A)-(B).
Because there may be market scenarios that require the proposed parameters to be adjusted, for example, during periods of extreme price volatility, the Exchange has further proposed that the Exchange may revise these parameters, provided such revised parameters are announced to OTP Holders or OTP Firms via a Trader Update.
The Exchange also proposed that if a Market Maker quote is rejected pursuant to paragraph (a)(1) of the proposed rule, the Exchange will also cancel any resting same-side quote in the affected series from that Market Maker.
The Exchange also has proposed new Exchange Rule 6.61(a)(2) and (3) which will set forth the Exchange's proposed second layer of price protection filters for Market Maker quotes. These price protection mechanisms will be applicable when either there is no NBBO available, for example, during pre-opening or prior to conducting a re-opening after a trading halt, or if the NBBO is so wide as to not to reflect an appropriate price for the respective options series. Proposed Exchange Rule 6.61(a)(2) will also provide price protection for Market Maker bids in call options. As proposed, if such bids equal or exceed the price of the underlying security, the Market Maker bid will be rejected.
Under new Exchange Rule 6.61(a)(2)(A), before the underlying security is open, the Exchange will use the previous day's closing price to determine the price of the underlying security.
The Exchange also has proposed that when a Market Maker quote is rejected pursuant to paragraph (a)(2) or (a)(3) of the proposed rule, the Exchange will also cancel all resting quote(s) in the affected class(es) from that Market Maker and will not accept new quote(s) in the affected class(es) until the Market Maker submits a message (which may be automated) to the Exchange to enable the entry of new quotes.
The Exchange stated that it would announce the implementation date of the proposed rule change in a Trader Update and publish such announcement at least 30 days prior to implementation.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, with Section 6(b) of the Act.
The proposed rule change provides a price protection mechanism for quotes entered by a Market Maker when an NBBO is available that are priced a specified dollar amount or percentage through the last sale or prevailing contra-side market, which the Exchange believes is evidence of error. The Commission believes that the proposed price protection mechanism is reasonably designed to promote just and equitable principles of trade by preventing potential price dislocation that could result from erroneous Market Maker quotes sweeping through multiple price points resulting in executions at prices that are through the last sale price or NBBO.
The Exchange's proposed use of benchmarks to check the reasonability of Market Maker bids for call and put options affords a second layer of price protection to Market Maker quotes. The Commission believes that the additional price reasonability check on Market Maker bids that are priced equal to or greater than the price of the underlying security for call options, and equal to or greater than the strike price for put options, is reasonably designed to operate in manner that would remove impediments to and perfect the mechanism of a free and open market and protect investors and the public interest. Further, the Commission notes the Exchange's belief that the additional risk controls that result in the cancellation of a Market Maker's resting same side quote and/or the temporary suspension a Market Maker's quoting activity in the affected option class(es), as applicable, provide market participants with additional protection from anomalous executions.
Accordingly, the Commission believes that the proposed price protection for Market Maker quotes is reasonably designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest.
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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rules 11.6, 11.8, 11.9, 11.10 and 11.11 to clarify and to include additional specificity regarding the current functionality of the Exchange's System,
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B and C below, of the most significant parts of such statements.
On June 5, 2014, Chair Mary Jo White asked all national securities exchanges to conduct a comprehensive review of each order type offered to members and how it operates.
Pursuant to current Rule 11.6(d), the Exchange defines a Discretionary Range as an instruction the User
The Exchange also proposes to specify certain situations where the Discretionary Range of an order is temporarily reduced based on contra-side interest resting on the Exchange. The Exchange notes that it is possible for an order with a Discretionary Range instruction have its Discretionary Range temporarily reduced based on contra-side interest resting on the Exchange because an incoming order with a Post Only instruction
With respect to displayed contra-side liquidity, the Exchange proposes to make clear that if an order posted to the EDGX Book has a Discretionary Range and there is a contra-side order that is displayed by the System on the EDGX Book within such Discretionary Range, the order with a Discretionary Range will not be permitted to execute at the price of or at a price more aggressive than such contra-side displayed order unless and until there is no contra-side displayed order on the EDGX Book within the Discretionary Range. In such case, the order with a Discretionary Range will have discretion to one Minimum Price Variation
With respect to non-displayed contra-side liquidity, the Exchange proposes to make clear that if an order posted to the EDGX Book has a Discretionary Range and there is a contra-side order with a Non-Displayed instruction,
Similarly, the Exchange proposes to amend Rule 11.6(l)(3), which addresses re-pricing of orders with a Non-Displayed instruction. As set forth in Rule 11.6(l)(3), an order with a Non-Displayed instruction that is priced better than the midpoint of the NBBO will be ranked at the midpoint of the NBBO with discretion to execute to its limit price. The Exchange proposes to add language stating that if a contra-side order is resting on the EDGX Book at the limit price within the Discretionary Range, the order will be ranked at the mid-point of the NBBO but its discretion to execute to its limit price will be temporarily reduced consistent with the Discretionary Range definition described above.
The Exchange notes that the language proposed with respect to the temporary reduction of the Discretionary Range of an order is consistent with the Exchange's recently amended rules.
Assume the NBBO is $10.00 by $10.10, that the best-priced order to buy in the System is a displayed bid at $9.99, and that the best-priced order to sell in the System is a displayed offer at $10.11. A Limit Order
• If a non-routable Limit Order to sell 100 shares at $10.05 is entered into the System, depending on applicable User instructions, such order will either be posted and displayed by the System on the EDGX Book as an order to sell 100 shares (
• If, instead, a Limit Order to sell 100 shares at $10.04 is entered into the System, such order will execute at $10.04 against the resting buy order with a Discretionary Range instruction.
• If, instead, a Limit Order to sell 100 shares at $10.02 is entered into the System, such order will execute at $10.02 against the resting buy order with a Discretionary Range instruction.
• If, instead, a Limit Order to sell 100 shares at $10.00 or lower or a Market Order to sell 100 shares is entered into the System, such order will execute at $10.00 against the resting buy order with a Discretionary Range instruction.
• If, instead, the sell order at $10.05 with a Post Only instruction is then canceled, the buy order with a Discretionary Range instruction will have its discretion to execute up to $10.05 reinstated.
• If, instead, a Limit Order to buy 100 shares at $10.05 or higher or a Market Order to buy 100 shares is then entered into the System, such order will execute at $10.05 against the displayed order to sell with a Post Only instruction and the buy order with a Discretionary Range instruction will have its discretion to execute up to $10.05 reinstated.
Assume the NBBO is $10.00 by $10.10, that the best-priced order to buy in the System is a displayed bid at $9.99, and that the best-priced order to sell in the System is a displayed offer at $10.11. A Limit Order with to buy 100 shares at $10.00 with a Discretionary Range of $0.07 is entered into the System. The order will be ranked and displayed on the EDGX Book at $10.00 with discretion to execute up to $10.07. If a Limit Order to sell 100 shares at $10.06 with a Non-Displayed instruction and a Post Only instruction is entered into the System such order will be posted by the System on the EDGX Book as an order to sell 100 shares at $10.06. The buy order's discretion to execute at $10.07 will be temporarily suspended but such order will continue to have discretion to execute up to $10.06. The following examples demonstrate various potential outcomes following the temporary suspension of the buy order's discretion to execute at $10.07.
• If a non-routable Limit Order to sell 100 shares at $10.07 with a Displayed instruction is entered into the System, depending on applicable User instructions, such order will be posted and displayed by the System on the EDGX Book as an order to sell 100 shares at $10.07 or will be cancelled back to the entering User.
• If, instead, a Limit Order to sell 100 shares at $10.06 is entered into the System, such order will execute at $10.06 against the resting buy order with a Discretionary Range instruction.
• If, instead, a Limit Order to sell 100 shares at $10.02 is entered into the System, such order will execute at $10.02 against the resting buy order with a Discretionary Range instruction.
• If, instead, a Limit Order to sell 100 shares at $10.00 or lower or a Market Order to sell 100 shares is entered into the System, such order will execute at $10.00 against the resting buy order with a Discretionary Range instruction.
• If, instead, the sell order with a Non-Displayed instruction of 100 shares that is ranked at $10.06 is then canceled, the buy order with a Discretionary Range instruction will have its discretion to execute up to $10.07 reinstated.
Assume the NBBO is $10.00 by $10.10, that the best-priced order to buy in the System is a displayed bid at $9.99, and that the best-priced order to sell in the System is a displayed offer at $10.11. A Limit Order with to buy 100 shares at $10.00 with a Discretionary Range of $0.07 is entered into the System. The order will be displayed on the EDGX Book at $10.00 with discretion to execute up to $10.07. If a Limit Order to sell 100 shares at $10.04 with a Non-Displayed instruction and a Post Only instruction is entered into the System such order will be posted by the System on the EDGX Book as an order to sell 100 shares at $10.05 (
• If a non-routable Limit Order to sell 100 shares at $10.07 with a Displayed instruction is entered into the System, depending on applicable User instructions, such order will be posted and displayed by the System on the EDGX Book as an order to sell 100 shares at $10.07 or will be cancelled back to the entering User.
• If, instead, a Limit Order to sell 100 shares at $10.05 is entered into the System, such order will execute at $10.05 against the resting buy order with a Discretionary Range instruction.
• If, instead, a Limit Order to buy 100 shares at $10.05 is entered into the System, such order will execute at $10.05 against the resting sell order with a Non-Displayed instruction and a Post Only instruction (
• If, instead, a Limit Order to sell 100 shares at $10.04 is entered into the System, such order will execute at $10.04 against the resting buy order with a Discretionary Range instruction.
• If, instead, a Limit Order to buy 100 shares at $10.04 is entered into the System, such order will execute at $10.04 against the resting sell order with a Non-Displayed instruction and a Post Only instruction (
• If, instead, a Limit Order to sell 100 shares at $10.00 or lower or a Market Order to sell 100 shares is entered into the System, such order will execute at $10.00 against the resting buy order with a Discretionary Range instruction.
• If, instead, the sell order with a Non-Displayed instruction of 100 shares that is ranked at $10.05 is then canceled, the buy order with a Discretionary Range instruction will have its discretion to execute up to $10.07 reinstated.
As the above examples demonstrate, the Exchange prevents executions against the Discretionary Range of an order
The Exchange's handling of orders with a Discretionary Range instruction, including the discretion of an order with a Non-Displayed instruction more aggressive than the midpoint of the NBBO to its limit price, is intended to reflect the relatively passive nature of orders with a Discretionary Range. In all cases, although the Users submitting such orders have indicated a willingness to execute at a more aggressive price, such orders are ranked at a lower price to buy or a higher price to sell. In turn, if an order is executed at its ranked price, rather than at a price within the Discretionary Range, then the User that submitted the order receives a better result in each case (
In addition to the changes described above, the Exchange proposes to re-locate within Rule 11.8(b) and re-word the statement regarding the inclusion of a Discretionary Range on a Limit Order. Current Rule 11.8(b)(8) currently states that a “User may include a Discretionary Range instruction.” This ability to include a Discretionary Range instruction on a Limit Order is currently grouped with other functionality that can be elected for Limit Orders that also include a Post Only or Book Only instruction as well as specified time-in-force instructions for orders that can be entered into the System and post to the EDGX Book. However, the System does not allow the combination of a Discretionary Range and a Post Only instruction. Accordingly, the Exchange proposes to re-locate the reference to the Discretionary Range instruction within Rule 11.8(b) so that it is no longer grouped with other orders that can be combined with a Post Only instruction. The Exchange also proposes to state in Rule 11.8(b) that: (i) A Limit Order with a Discretionary Range instruction may also include a Book Only instruction; and (ii) a Limit Order with a Discretionary Range instruction and a Post Only instruction will be rejected. Further, the Exchange proposes to refer to the ability of a Limit Order to include a Discretionary Range instruction, rather than a “User” that may include a Discretionary Range instruction.
With respect to the Exchange's priority and execution algorithm, the Exchange is proposing various minor and structural to changes that are intended to emphasize the processes by which orders are accepted, priced, ranked, displayed and executed, as well as a new provision related to the ability of orders to rest at locking prices that is consistent with the changes to provisions related to the operation of orders with a Discretionary Range instruction described above. First, the Exchange has proposed modifications to Rule 11.9, Priority of Orders, to make clear that the ranking of orders described in such rule is in turn dependent on Exchange rules related to the execution of orders, primarily Rule 11.10. The Exchange believes that this has always been the case under Exchange rules but there was not previously a description of the cross-reference to Rule 11.10 within such rules. Accordingly, the Exchange proposes to add reference to the execution process in addition to the numeric cross-reference to Rule 11.10.
Next, the Exchange proposes to move language contained within sub-paragraph (a)(2) of Rule 11.10 to the main paragraph, paragraph (a), such that the language is more generally applicable to the rules. Although sub-paragraph (a)(2) contains information relevant to executability, in that it describes orders that are executable in compliance with Regulation NMS or otherwise do not trade through quotations of other markets, there are other provisions set forth in paragraph (a) that relate to executability. Accordingly, the Exchange proposes to relocate language stating that any order falling within the parameters of this paragraph shall be referred to as “executable” and that an order will be cancelled back to the User, if based on market conditions, User instructions, applicable Exchange Rules and/or the Act and the rules and regulations thereunder, such order is not executable, cannot be routed to another Trading Center pursuant to Rule 11.11 or cannot be posted to the EDGX Book.
The Exchange proposes to adopt paragraph (C) of Rule 11.10(a)(4) to provide further clarity regarding the situations where orders are not executable, which although covered in other existing rules, would focus on the incoming order on the same side of an order displayed on the EDGX Book rather than the resting order that is rendered not executable because it is opposite such order displayed on the EDGX Book. Proposed paragraph (C) would further state that if an incoming order is on the same side of the market as an order displayed on the EDGX Book and upon entry would execute against contra-side interest at the same price as such displayed order, such incoming order will be cancelled or posted to the EDGX Book and ranked in accordance with Rule 11.9. As described above, the Exchange suspends the discretion of an order subject to the Hide Not Slide instruction for so long as a contra-side order that equals the Locking Price is displayed by the System on the EDGX Book. Similarly, as proposed to be added to EDGX Rules, the Exchange temporarily suspends the ability of an order to execute at the same price as a contra-side displayed order for any order with a Discretionary Range
To demonstrate the functionality in place on the Exchange described above, assume the NBBO is $10.00 by $10.01. A non-routable Limit Order to buy 100 shares at $10.01 with a Hide Not Slide instruction is entered into the System. The order will be displayed on the EDGX Book at $10.00 and ranked at $10.005 with discretion to $10.01. If a Limit Order to sell 100 shares at $10.01 with a Displayed instruction and a Post Only instruction is entered into the System such order will be posted and displayed by the System on the EDGX Book as an order to sell 100 shares at $10.01. The buy order with the Hide Not Slide instruction will have its discretion to execute at $10.01 temporarily suspended but such order will continue to be ranked at $10.005. The following examples demonstrate various potential outcomes following the temporary suspension of the buy order's discretion to execute at $10.01.
• If a non-routable Limit Order to sell 100 shares at $10.01 is entered into the System, depending on applicable User instructions, such order will either be posted and displayed by the System on the EDGX Book as an order to sell 100 shares (
• If, instead, a Limit Order to sell 100 shares at $10.00 is entered into the System, such order will execute at $10.005 against the resting buy order with a Hide Not Slide instruction.
• If, instead, a Limit Order to buy 100 shares at $10.01 or higher or a Market Order to buy 100 shares is entered into the System,
The Exchange notes that it is proposing to add descriptive titles to paragraphs (A) and (B) of Rule 11.10(a)(4), which describe the process by which executable orders are matched within the System. Specifically, so long as it is otherwise executable, an incoming order to buy will be automatically executed to the extent that it is priced at an amount that equals or exceeds any order to sell in the EDGX Book and an incoming order to sell will be automatically executed to the extent that it is priced at an amount that equals or is less than any other order to buy in the EDGX Book. These rules further state that an order to buy shall be executed at the price(s) of the lowest order(s) to sell having priority in the EDGX Book and an order to sell shall be executed at the price(s) of the highest order(s) to buy having priority in the EDGX Book. The Exchange emphasizes these current rules only insofar as to highlight the interconnected nature of the priority rule.
The Exchange also proposes to modify paragraph (h) of Rule 11.11 to clarify the Exchange's rule regarding the priority of routed orders. Paragraph (h) currently sets forth the proposition that a routed order does not retain priority on the Exchange while it is being routed to other markets. The Exchange believes that its proposed clarification to paragraph (h) is appropriate because it more clearly states that a routed order is not ranked and maintained in the EDGX Book pursuant to Rule 11.9(a), and therefore is not available to execute against incoming orders pursuant to Rule 11.10.
The Exchange believes that the proposed rule changes are consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”)
Specifically, the Exchange also believes that the changes to provide additional clarity and specificity regarding the functionality of the System with respect to an order with a Discretionary Range instruction and an order with a Non-Displayed instruction that has discretion pursuant to the Exchange's re-pricing process would promote just and equitable principles of trade and remove impediments to a free and open market by providing greater transparency concerning the operation of the System. The Exchange also believes that the proposed amendments to clarify and re-structure the Exchange's priority, execution and routing rules will contribute to the protection of investors and the public interest by making the Exchange's rules easier to understand. Further, the Exchange believes that it is consistent with the Act to temporarily reduce the Discretionary Range of an order that has been posted to the EDGX Book for so long as there is contra-side liquidity on the EDGX Book because this functionality prevents an apparent priority issue on the EDGX Book as described above as well as the ability of an order to execute at a price that trades through the ranked price of an order resting on the EDGX Book. The Exchange reiterates that such behavior, as described above, is temporary in nature; an order's full Discretionary Range will be returned as soon as the contra-side liquidity that caused the reduction in the first place is no longer maintained on the EDGX Book. The Exchange believes that its overall handling of orders, including the temporary suspension of the ability of an order with a Discretionary Range to execute at one or more prices is consistent with the Act because it removes impediments to and perfects the mechanism of a free and open market and a national market system by reflecting the relatively passive nature of an order with a Discretionary Range instruction while honoring the instructions of a User submitting a contra-side order that does not remove liquidity on entry. As explained above, the Exchange's handling of orders with
The Exchange does not believe that the proposed rule changes will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule changes are not designed to address any competitive issue but rather to add specificity and clarity to Exchange rules, thus providing greater transparency regarding the operation of the System.
The Exchange has neither solicited nor received written comments on the proposed rule changes.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as modified by Amendment No. 1, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange seeks to amend its rules related to equipment and communication on the Exchange's trading floor
[(a) No Trading Permit Holder shall establish or maintain any telephone or other wire communications between his or its office and the Exchange without prior approval by the Exchange. The Exchange may direct discontinuance of any communication facility terminating on the floor of the Exchange.
(b) Equity Option Telephone Policy. Persons in the equity option trading crowds (including DPM crowds which trade equity options) may have access to outside telephone lines and may receive telephone orders directly at equity options posts from locations outside the Exchange, subject to certain requirements. The Exchange will review and may approve any applications to install or to use telephones in the equity option crowds.
(1) Requirements and conditions that apply to the use of telephone services at the equity option posts shall include the following:
(A) Only those quotations that have been publicly disseminated pursuant to Rule 6.43 may be provided over telephones at the post.
(B) Trading Permit Holders may give their clerks their PIN access code. Although both Trading Permit Holders and clerks may use telephones, Trading Permit Holders will have priority. Each Trading Permit Holder will be responsible for all calls made using that Trading Permit Holder's PIN access code.
(C) Clerks will not be permitted to establish a base of operation utilizing general use telephones at the equity option posts. This means, for example, that a clerk may not monopolize the use of a telephone receiver on a telephone that has multiple lines if all of those lines are not dedicated to the Trading Permit Holder for whom the clerk works.
(D) The Exchange may provide for the taping of any telephone line into the equity option posts or may require Trading Permit Holders to provide for the tape recording of a dedicated line at the equity option posts at any time. Trading Permit Holders and their clerks using the telephones consent to the Exchange tape recording any telephone or line.
(E) The telephones may be used for voice service only, unless they have been specifically approved for other uses.
(F) The Exchange may prohibit the use of any telephone technology that interferes with the normal operation of the Exchange's own systems or facilities or that the Exchange determines interferes with its regulatory duties.
(G) Orders transmitted by registered Exchange market-makers may be entered over the outside telephone lines directly to the equity option posts. All other orders may be entered over the outside telephone lines to the equity option posts only during outgoing telephone calls that are initiated at the equity option posts.
(H) Only those individuals that are properly qualified in accordance with Chapter IX of the Rules of the Exchange, and all other applicable rules and regulations, may accept orders from public customers pursuant to this Rule.
. . . Interpretations and Policies:
.01 A Trading Permit Holder or TPH organization which has been granted approval of any means of communication under this rule shall be responsible for assuring compliance with all Exchange rules and requirements in connection with any business conducted by means of such electronic or telephonic communication.]
The text of the proposed rule change is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to amend its rules regarding equipment and communication on the Exchange trading floor. More specifically, the Exchange is proposing to delete the current rule on the topic, Exchange Rule 6.23, and introduce more relevant rules governing the use of communication devices
First, Rule 6.23 is currently applicable to “telephone or other wire communications.”
Next, proposed Rule 6.23(b) specifically states that the Exchange will retain the authority to deny, limit or revoke the use of any communication device.
Next, proposed Rule 6.23(c) codifies the current policy that allows any communication device to be utilized to receive orders in and out of the trading crowd, provided that audit trail and record retention requirements of the Exchange are met.
Further, proposed Rule 6.23(d) specifies that, after providing notice to an affected Trading Permit Holder and complying with the applicable laws, the Exchange may provide for the recording of any telephone line on the floor of the Exchange or require TPHs to provide for the recording of a fixed phone line on the floor of the Exchange, and that TPHs utilizing telephones consent to the Exchange recording any telephone or line.
Next, proposed Rule 6.23(e) prohibits the use of communication devices to disseminate quotes and/or last sale reports originating on the Exchange trading floor in any manner that would serve to provide a continuous or running state of the market; however, the proposed rule specifically states that, “an associated person of a TPH may use a communications device to communicate quotes that have been disseminated pursuant to Rule 6.43 and/or last sale reports to other associated persons of the same TPH business unit.” Further, as proposed, an associated person of a TPH may use a communications device to communicate an “occasional, specific, quote that has been disseminated pursuant to Rule 6.43
Next, proposed Rule 6.23(f) requires that any use of any communications device on the trading floor shall comply with applicable laws, rules, policies, and procedures of the Commission and Exchange including all record retention and audit trail requirements. Proposed Rule 6.23(f) would also require that orders are systemized using Exchange systems or proprietary systems approved by the Exchange in accordance with Exchange Rule 6.24.
Next, proposed Rule 6.23(g) requires TPHs to maintain records related to the “use of communication devices, including, but not limited to, logs of calls placed; emails; and chats, for a period of not less than three years, the first two years in an easily accessible place.” Although similar to Amex and Arca Rules on the subject,
Finally, proposed Rule 6.23(h) authorizes the Exchange to designate more specific communication devices that will not be permitted on the Exchange trading floor or other operational requirements via circular. Given the propensity for technology to continue to evolve, the Exchange believes this proposed text will allow the Exchange to change the exact requirements from time to time as needed while continuing to provide TPHs specifications on the allowed technology and communication mechanism.
The Exchange will announce the implementation date of the proposed rule change in a Regulatory Circular to be published no later than 30 days following the approval date. The implementation date will be no later than 60 days following the approval of the proposed changes.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange does not believe the proposed changes are unfairly discriminatory as they are applied to all TPHs trading on the Exchange trading floor, a similarly situated group, equally. In addition, the Exchange believes the proposed changes [sic] designed to prevent fraudulent and manipulative acts and practices because they are more appropriately designed to monitor the equipment and communications on a modern trading floor. Without the proposed changes, the current Exchange rules do not adequately address the relevant communication tools. Finally, the Exchange believes that the proposed rules intend to foster cooperation and coordination by introducing new means of communication to the Exchange trading floor. Finally, the Exchange believes that the proposed changes protect investors and the public interest by ensuring that all equipment and communication on the Exchange trading floor will adhere to all other applicable statutes and the Act.
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. More
The Exchange neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. In particular, the Commission invites comment on CBOE's proposal to no longer require a member to obtain prior approval from CBOE before using a new communication device on the CBOE floor and instead adopt the open-ended approach in proposed paragraph (c) of Rule 6.23 under which a member would be permitted to use any communication device unless specifically otherwise prohibited and would not be required to seek Exchange approval or otherwise register the communication devices with the Exchange in advance of using them on the CBOE floor. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act” or “Exchange Act”),
CBOE proposes to list and trade options that overlie the MSCI EAFE Index and the MSCI Emerging Markets Index (“EAFE options” and “EM options”). EAFE and EM options would be P.M., cash-settled contracts with European-style exercise. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this proposed rule change is to permit the Exchange to list and trade options that overlie the MSCI EAFE Index and the MSCI Emerging Markets Index (“EAFE options” and “EM options”). EAFE and EM options would be P.M., cash-settled contracts with European-style exercise.
The MSCI EAFE Index (Europe, Australasia, Far East) is a free, [sic] float-adjusted market capitalization index that is designed to measure the equity market performance of developed markets, excluding the U.S. & Canada. The MSCI EAFE Index consists of the following 21 developed market country indexes: Australia, Austria, Belgium, Denmark, Finland, France, Germany, Hong Kong, Ireland, Israel, Italy, Japan, the Netherlands, New Zealand, Norway, Portugal, Singapore, Spain, Sweden, Switzerland, and the United Kingdom. The MSCI EAFE Index consists of large and midcap components, has 910 constituents and “covers approximately 85% of the free float-adjusted market capitalization in each country.”
The MSCI EAFE Index was launched on December 31, 1969 and is calculated by MSCI Inc. (“MSCI”), which is a provider of investment support tools. The MSCI EAFE Index is calculated in U.S. dollars on a real-time basis from the open of the first market on which the components are traded to the closing of the last marked [sic] on which the components are traded. The methodology used to calculate the MSCI EAFE Index is similar to the methodology used to calculate the value of other benchmark market-capitalization weighted indexes. Specifically, the MSCI EAFE Index is based on the MSCI Global Investable Market Indexes (“GIMI”) Methodology.
The MSCI EAFE Index is monitored and maintained by MSCI. Adjustments to the MSCI EAFE Index are made on a daily basis with respect to corporate events and dividends. MSCI reviews the MSCI EAFE Index quarterly (February, May, August and November) “with the objective of reflecting change in the underlying equity markets in a timely manner, while limiting undue index turnover. During the May and November reviews, the [MSCI EAFE Index] is rebalanced and the large and mid capitalization cutoff points are recalculated.”
Real-time data is distributed approximately every 15 seconds while the index is being calculated using MSCI's real-time calculation engine to Bloomberg L.P. (“Bloomberg”), FactSet Research Systems, Inc. (“FactSet”) and Thomson Reuters (“Reuters”). End of day data is distributed daily to clients through MSCI as well as through major quotation vendors, including Bloomberg, FactSet, and Reuters.
The Exchange notes that the iShares MSCI EAFE exchange traded fund (“ETF”) is an actively traded product. CBOE also lists options overlying that ETF (“EFA options”) and those options are actively traded as well. MSCI EAFE Mini Index (“EAFE”) futures contracts are listed for trading on the Intercontinental Exchange, Inc. (“ICE”)
The MSCI EM Index is a free float-adjusted market capitalization index that is designed to measure equity market performance of emerging markets. The MSCI EM Index consists of the following 23 emerging market country indexes: Brazil, Chile, China, Colombia, Czech Republic, Egypt, Greece, Hungary, India, Indonesia, Korea, Malaysia, Mexico, Peru, Philippines, Poland, Qatar, Russia, South Africa, Taiwan, Thailand, Turkey and United Arab Emirates. The MSCI EM Index consists of large and midcap components, has 834 constituents and “covers approximately 85% of the free float-adjusted market capitalization in each country.”
The MSCI EM Index was launched on June 30, 1988 and is calculated by MSCI. The MSCI EM Index is calculated in U.S. dollars on a real-time basis from the open of the first market on which the components are traded to the closing of the last marked [sic] on which the components are traded. The methodology used to calculate the MSCI EM Index is similar to the methodology used to calculate the value of other benchmark market-capitalization weighted indexes. Specifically, the MSCI EM Index is based on the MSCI GIMI Methodology.
The MSCI EM Index is monitored and maintained by MSCI. Adjustments to the MSCI EM Index are made on a daily basis with respect to corporate events and dividends. MSCI reviews the MSCI EM Index quarterly (February, May, August and November) “with the objective of reflecting change in the underlying equity markets in a timely manner, while limiting undue index turnover. During the May and November reviews, the [MSCI EM Index] is rebalanced and the large and mid capitalization cutoff points are recalculated.”
Real-time data is distributed approximately every 15 seconds using MSCI's real-time calculation engine to Bloomberg, FactSet and Reuters. End of day data is distributed daily to clients through MSCI as well as through major quotation vendors, including Bloomberg, FactSet, and Reuters.
The Exchange notes that the iShares MSCI Emerging Markets ETF is an actively traded product. CBOE also lists options overlying that ETF (“EEM options”) and those options are actively traded as well. MSCI Emerging Markets Mini Index (“EM”) futures contracts are listed for trading on ICE
The MSCI EAFE Index and MSCI EM Index each meet the definition of a broad-based index as set forth in Rule 24.1(i)(1).
Additionally, the Exchange proposes to add new Interpretation and Policy .01(b) to Rule 24.2,
The Exchange believes that P.M. settlement is appropriate for EAFE and EM options due to the natures of these indexes that encompass multiple markets around the world. As to the MSCI EAFE Index, the components open with the start of trading in certain parts of Asia at approximately 5:00 p.m. (Chicago time) (prior day) and close with the end of trading in Europe at approximately 11:30 a.m. (Chicago time) (next day) as closing prices from Ireland are accounting [sic] for in the closing calculation. The closing MSCI EAFE Index level is distributed by MSCI between approximately 1:00 p.m. and 2:00 p.m. (Chicago time) each trading day.
As a result, there will not be a current MSCI EAFE Index level calculated and disseminated during a portion of the time during which EAFE options would be traded (from approximately 11:30 a.m. (Chicago time) to 3:15 p.m. (Chicago time)).
As to the MSCI EM index, the components open with the start of trading in certain parts of Asia at approximately 6:00 p.m. (Chicago time) (prior day) and close with the end of trading in Mexico and Peru at approximately 3:30 p.m. (Chicago time) (next day) as closing prices from Brazil, Chile, Peru and Mexico, including late prices, are accounted for in the closing calculation. The closing MSCI EM Index level is distributed at approximately 5:00 p.m. (Chicago time) each trading day.
Because the MSCI EAFE Index and on [sic] the MSCI EM Index each has a large number of component securities, representative of many countries, the Exchange believes that the initial listing requirements are appropriate to trade options on this index [sic]. In addition, similar to other broad based indexes, the Exchange proposes various maintenance requirements, which require continual compliance and periodic compliance.
Generally, the proposed trading rules for EAFE and EM options would be the same except for their respective trading hours, which the Exchange will describe separately below. Exhibit 3 presents contract specifications for EAFE and EM options.
The contract multiplier for EAFE and EM options would be $100. EAFE and EM options would be quoted in index points and one point would equal $100. The minimum tick size for series trading below $3 would be 0.05 ($5.00) and above $3 will be 0.10 ($10.00).
Initially, the Exchange would initially list in-, at- and out-of-the-money strike prices. Additional series may be opened
The Exchange would be permitted to list up to twelve near-term expiration months.
The trading hours for EAFE options would be from 8:30 a.m. (Chicago time) to 3:15 p.m. (Chicago time), except that trading in expiring EAFE options would end at 10:00 a.m. (Chicago time) on their expiration date. The Exchange is proposing that EAFE options trade only during a portion of the day on their expiration date to align the trading hours of expiring EAFE options with expiring EAFE futures. EAFE futures trade on ICE and stop trading at 10:00 a.m. (Chicago time) on the third Friday of the futures contract month.
The trading hours for EM options would be from 8:30 a.m. to 3:15 p.m. (Chicago time).
The proposed EAFE and EM options would expire on the third Friday of the expiring month. Trading in expiring EAFE options would cease at 10:00 a.m. (Chicago time) on their expiration date and trading in expiring EM options would cease at 3:15 p.m. (Chicago time) on their expiration date. When the last trading day/expiration date is moved because of an Exchange holiday or closure, the last trading day/expiration date for expiring options would be the immediately preceding business day.
Exercise would result in delivery of cash on the business day following expiration. EAFE and EM options would be P.M.-settled. The exercise settlement value would be the official closing values of the MSCI EAFE Index and the MSCI EM Index as reported by MSCI on the last trading day of the expiring contract.
The exercise settlement amount would be equal to the difference between the exercise-settlement value and the exercise price of the option, multiplied by the contract multiplier ($100).
If the exercise settlement value is not available or the normal settlement procedure cannot be utilized due to a trading disruption or other unusual circumstance, the settlement value would be determined in accordance with the rules and bylaws of The Options Clearing Corporation (“OCC”).
The Exchange proposes to apply the default position limits for broad-based index options to EAFE and EM options. Specifically, the chart set forth in Rule 24.4(a),
The Exchange proposes that EAFE and EM options be margined as “broad-based index” options, and under CBOE rules, especially, Rule 12.3(c)(5)(A), the margin requirement for a short put or call shall be 100% of the current market value of the contract plus 15% of the “product of the current index group value and the applicable index multiplier,” reduced by any out-of-the-money amount. There would be a minimum margin requirement of 100% of the current market value of the contract plus: 10% of the aggregate put exercise price amount in the case of puts, and 10% of the product of the current index group value and the applicable index multiplier in the case of calls. Additional margin may be required pursuant to Rules 12.3(h) and 12.10 (Margin Required is Minimum).
Except as modified herein, the rules in Chapters I through XIX, XXIV, XXIVA, and XXIVB would equally apply to EAFE and EM options. EAFE and EM options would be subject to the same rules that currently govern other CBOE index options, including sales practice rules,
The Exchange hereby designates EAFE and EM options as eligible for trading as Flexible Exchange Options as provided for in Chapters XXIVA (Flexible Exchange Options) and XXIVB (FLEX Hybrid Trading System).
The Exchange represents that is [sic] has an adequate surveillance program in place for EAFE and EM options and intends to use the same surveillance procedures currently utilized for each of the Exchange's other index options to monitor trading in EAFE and EM options.
The Exchange is a member of the Intermarket Surveillance Group (“ISG”), which “covers major self-regulatory bodies across the world.” “The purpose of the ISG is to provide a framework for the sharing of information and the coordination of regulatory efforts among exchanges trading securities and related products to address potential intermarket manipulations and trading abuses. The ISG plays a crucial role in
The Exchange is also an affiliate member of the International Organization of Securities Commissions (“IOSCO”), which has members from over 100 different countries. Each of the countries from which there is a component security in the [sic] both the MSCI EAFE and MSCI EM Indexes is a member of IOSCO.
The Exchange notes that the EFA and EM ETFs are actively traded products. CBOE also lists options overlying those ETFS (EFA and EEM options) and those options are actively traded as well.
CBOE has analyzed its capacity and represents that it believes the Exchange and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the additional traffic associated with the listing of new series that would result from the introduction of EAFE and EM options. Because the proposal is limited to two new classes, the Exchange believes that the additional traffic that would be generated from the introduction of EAFE and EM options would be manageable.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes that the proposed rule change will further the Exchange's goal of introducing new and innovative products to the marketplace. Currently, the Exchange believes that there is unmet market demand for exchange-listed security options listed on these two popular cash indexes. (CBOE understands that Phlx no longer lists EAFE and EM options). As described above, the iShares MSCI EAFE ETF and iShares MSCI Emerging Markets ETF are actively traded products, as are the options on those ETFs. EAFE and EM futures are listed for trading on ICE. In addition, other derivatives contracts on the MSCI EAFE Index and the MSCI EM Index are listed for trading in Europe. As a result, CBOE believes that EAFE and EM options are designed to provide different and additional opportunities for investors to hedge or speculate on the market risk on the MSCI EAFE Index and the MSCI EM Index by listing an option directly on these indexes.
The Exchanges believes that both the MSCI EAFE Index and the MSCI EM Index are not easily susceptible to manipulation. Both indexes are broad-based indexes and have high market capitalizations. The MSCI EAFE Index is comprised of 910 component stocks and no single component comprises more than 5% of the index, making it not easily subject to market manipulation. Similarly, the MSCI EM Index is comprised of 834 components stocks and no single component comprises more than 3% to 5% of the index, making it not easily subject to market manipulation.
Additionally, the iShares MSCI EAFE and iShares MSCI Emerging Markets ETFs are actively traded products, as are options on those ETFs. Because both indexes have large numbers of component securities, are representative of many countries and trade a large volume with respect to ETFs and options on those ETFs, the Exchange believes that the initial listing requirements are appropriate to trade options on these indexes. In addition, similar to other broad-based indexes, the Exchange proposes to adopt various maintenance criteria, which would require continual compliance and periodic compliance.
EAFE and EM options would be subject to the same rules that currently govern other CBOE index options, including sales practice rules,
The Exchange represents that is [sic] has an adequate surveillance program in place for EAFE and EM options. The Exchange also represents that it has the necessary systems capacity to support the new option series.
CBOE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Specifically, CBOE believes that the introduction of new cash index options will enhance competition among market participants and will provide a new type of options to compete with domestic products such as EFA and EEM options, EAFE and EM futures and European-traded derivatives on the MSCI EAFE Index and the MSCI EM Index to the benefit of investors and the marketplace.
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 such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Aspire International, Inc. because it has not filed any periodic reports since the period ended December 31, 2010.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Border Management, Inc. because it has not filed any periodic reports since the period ended September 30, 2011.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Landmark Energy Enterprises, Inc. because it has not filed any periodic reports since the period ended July 31, 2012.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EST on March 5, 2015, through 11:59 p.m. EDT on March 18, 2015.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to adopt fees for its Extended Trading Hours session. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the
The Exchange recently amended its rules to offer trading in two exclusively listed options (SPX, including SPXW, and VIX) during extended trading hours from 2:00 a.m. to 8:15 a.m. Chicago time Monday through Friday (“Extended Trading Hours” or “ETH”). The Exchange intends to commence trading in the ETH session on Monday, March 2, 2015 for VIX and Monday, March 9, 2015 for SPX/SPXW. As such, the Exchange proposes to establish fees for the trading of SPX, SPXW and VIX options during ETH (all fees referenced herein are per-contract unless otherwise stated). First, the Exchange proposes to adopt Footnote 37, which provides general information regarding the two trading sessions and indicates which products will be available in ETH.
The Exchange proposes to assess the same fees regarding SPX, SPXW and VIX in the ETH session as are assessed regarding SPX, SPXW and VIX in the Regular Trading Hours session (“RTH”)
Transaction fees for VIX options will be as follows (all listed rates are per contract):
The Exchange also proposes to apply in ETH, like RTH, an Index License Surcharge Fee of $0.13 per contract for SPX options, including SPXW, and $0.10 per contract for VIX options for all non-customer orders. The surcharges are assessed to help the Exchange recoup license fees the Exchange pays to index licensors for the right to list S&P 500 Index-based products and volatility index options for trading. Additionally, in order to have consistency and to avoid a cost differential between the ETH and RTH sessions, the Exchange proposes to apply the Customer Priority Surcharges for VIX and SPXW in ETH. Specifically, as in RTH, all customer (C) contracts in VIX that have a premium of $0.11 or greater, are executed electronically and that are Maker non-Turner will be assessed a $0.10 surcharge.
All of the proposed transaction fees and surcharges listed above are the same amounts as those currently assessed for SPX, SPXW and VIX during RTH, with certain exceptions. The first exception relates to Professional/Voluntary Professional (“W” origin code) fees.
In order to have consistency between the two trading sessions, the Exchange also proposes to provide that SPX orders that have a Professional/Voluntary Professional designation (“W” origin code) during RTH will be assessed the same transaction fees as apply to the other Underlying Symbol List A
Next, the Exchange notes that during RTH, the Automated Improvement Mechanism (“AIM”) is activated for VIX options, but not SPX (or SPXW) options. During ETH however, AIM will be activated for both VIX and SPX (including SPXW) options. As such, SPX and SPXW transactions executed via AIM during ETH will be assessed AIM Agency/Primary and AIM Contra fees based on an order's origin code. As in RTH, the current AIM Agency/Primary and AIM Contra fees for VIX options will apply during ETH. The Exchange also proposes to make a minor, non-substantive change to the title of the AIM fees column.
The Exchange next notes that the Hybrid 3.0 Execution Surcharge will not apply in ETH. As described above, while SPX is traded on Hybrid 3.0 during RTH, SPX will be traded on Hybrid during ETH, and thus the Hybrid 3.0 Execution Surcharge would not be applicable. Additionally, the Exchange notes that as the ETH session will not support trading in FLEX options, all fees relating to FLEX in RTH, would not apply in ETH. Finally, unlike RTH, the Exchange does not propose to assess a Tier Appointment Fee
In the filing that adopted Extended Trading Hours, CBOE stated that it would submit a separate rule filing to adopt all fees applicable to Extended Trading Hours, including the amount of a rebate to be provided to Lead Market-Makers (“LMMs”) that satisfy a heightened quoting standard.
By way of background, pursuant to subparagraph (e)(iii)(A) of Rule 6.1A, the Exchange may approve one or more Market-Makers to act as LMMs in each class during Extended Trading Hours in accordance with Rule 8.15A for terms of at least one month.
In establishing the rebate, the Exchange believed it was more fitting to implement an incentive program with a rebate during ETH, rather than the obligation/benefit structure that currently exists during RTH. LMMs will not be obligated to satisfy heightened continuous quoting and opening quoting standards during ETH. Instead, LMMs must satisfy a heightened standard to receive a rebate, which the Exchange believes will encourage LMMs to provide significant liquidity during ETH. Additionally, the Exchange notes that it expects that TPHs may need to undertake significant expenses to be able to quote at a significantly heightened standard during ETH, such as performing system work and adding personnel. The Exchange believes providing a rebate will incent appointed LMMs to increase liquidity during ETH, as the rebate could offset the costs that accompany providing quotes during ETH.
Next, the Exchange proposes to apply the CBOE Proprietary Products Sliding Scale in ETH. The CBOE Proprietary Products Sliding Scale table provides that Clearing Trading Permit Holder Proprietary transaction fees and transaction fees for Non-Clearing Trading Permit Holder Affiliates in Underlying Symbol List A
The Customer Large Trade Discount program (the “Discount”) provides a discount in the form of a cap on the quantity of customer (“C” origin code”) contracts that are assessed transactions fees in certain options classes. The Discount table currently in the Fees Schedule sets forth the quantity of contracts necessary for a large customer trade to qualify for the Discount, which varies by product. Currently, under the “Products” section in the Discount table, the following S&P products for which the Discount is in effect are listed: “SPX, SPXw, SPXpm, SRO.” Customer transaction fees for each of these products are currently charged up to the first 15,000 contracts in a qualifying customer transaction. Additionally, the Fees Schedule currently provides that regular customer transaction fees will only be assessed for the first 10,000 VIX options contracts in a qualifying customer transaction. The Exchange proposes to apply the Discount in ETH, the same as RTH. The Exchange notes however, that as the trading sessions will have separate order books and require separate logins for access, and as there will be no “rolling” of orders by the Exchange between the two sessions, in order to be eligible to qualify for the Discount, an order must be executed in its entirety in either RTH or ETH, but not partly in both. As in many cases there will be separate personnel staffing the ETH and RTH sessions, with different logins, different systems and different customer relationships, and as orders entered into each session will have different Order Routing System (ORS) IDs, and as there will be no Floor Broker participants in ETH who, during a normal RTH session may need to execute a large and/or complex order using different means and mechanisms, the Exchange does not wish to offer a cross-session Discount program at this time.
The Exchange next seeks to set forth the access fees for ETH Trading Permit types as well as a description of each Trading Permit type. Specifically, the Exchange proposes to charge $1,000 per month for each ETH Market-Maker Trading Permit and $500 per month for each ETH Electronic Access Trading Permit. The ETH Market-Maker Trading Permit will entitle the holder to act as a Market-Maker in ETH and will provide an appointment credit of 1.0, a quoting and order entry bandwidth allowance, and up to three logins. The ETH Electronic Access Permit will entitle the holder to electronic access to the Exchange during the ETH session. The Exchange notes that as during the RTH session, holders of an ETH Electronic Access Permit must be broker-dealers registered with the Exchange in one or more of the following capacities: (a) Clearing Trading Permit Holder; (b) TPH organization approved to transact business with the public; and (c) Proprietary Trading Permit Holder. Additionally, the Exchange notes that a Proprietary Trading Permit Holder is a Trading Permit Holder with electronic access to the Exchange to submit proprietary orders that are not Market-Maker orders (
The Exchange also proposes to establish fees for Bandwidth Packets that may be used during ETH. By way of background, each RTH and ETH Trading Permit entitles the holder to a maximum number of orders and quotes per second(s) as determined by the Exchange. Bandwidth Packets provide TPHs with additional bandwidth. As during RTH, Market-Makers in ETH will be provided the opportunity to purchase one or more Quoting and Order Entry Bandwidth Packets. Each Quoting and Order Entry Bandwidth Packet will entitle the TPH up to three additional logins and contain the standard Market-Maker quoting and order entry bandwidth allowance, which may then be added onto the total bandwidth pool for a Market-Maker's acronym(s) and ETH Trading Permit(s) without the Market-Maker having to obtain additional ETH Trading Permits. Additionally, all TPHs will have the opportunity to purchase one or more Order Entry Bandwidth Packets. Each Order Entry Bandwidth Packet will entitle the TPH up to three additional logins and an order entry bandwidth allowance to use during the ETH session. The Exchange notes that Bandwidth Packets purchased for RTH may not be applied during ETH and Bandwidth Packets purchased for ETH may not be applied during RTH. Similar to RTH, Bandwidth Packets purchased for the ETH session will be renewed automatically for the next month unless the Trading Permit Holder submits written notification to the Registration Services Department by the last business day of the prior month to cancel the bandwidth packet effective at or prior to the end of the applicable
Additionally, the Exchange notes that the Fees Schedule states that the quoting bandwidth allowance for a Market-Maker Trading Permit is equivalent to a maximum of 35,640,000 quotes over the course of a trading day. The Exchange intends to amend the Fees Schedule to clarify that quoting bandwidth allowance for a Market-Maker Trading Permit is equivalent to a maximum of 35,640,000 quotes over the course of a trading session (
In order to promote and encourage trading during the ETH session, the Exchange proposes to waive ETH Trading Permit and Bandwidth Packet fees for one (1) of each initial Trading Permits and one (1) of each initial Bandwidth Packet, per affiliated TPH, through the first six (6) calendar months immediately following the implementation of ETH, including the month ETH is launched (
In order to connect to CBOE Command, which will allow a TPH to trade on the CBOE System during ETH, a TPH must connect via either a CMI or FIX interface (depending on the configuration of the TPH's own systems). TPHs that connect via a CMI interface must use CMI CAS Servers. The Exchange proposes to provide that each TPH in ETH will receive one CAS Server (plus access to a pool of shared backup CAS Servers). If a TPH elects to connect via an extra CMI CAS Server (in order to segregate TPH users for business or availability purposes) beyond the one CAS server, the Exchange proposes to provide that the TPH will be assessed a fee of $10,000 per month for each additional CMI CAS Server. The purpose of the fee for extra CMI CAS Servers is to cover the costs related to the provision, management and upkeep of such CMI CAS Servers for the ETH session. Additionally, the proposed change prevents the Exchange from being required to expend large amounts of resources (the provision and management of the CMI CAS Servers can be costly) in order to provide TPHs with an unlimited amount of CMI CAS Servers.
By way of background, CBOE market participants can access the Exchange's trading systems via Network Access Ports, and can elect for a Network Access Port (or Ports) of either 1 gigabit per second (“Gbps”) or 10 Gbps. Currently, the Exchange assesses a fee of $750 per month for a 1 Gbps Network Access Port and a fee of $3,500 per month for a 10 Gbps Network Access Port. The Exchange notes that these fees would also be applicable to a TPH that holds an ETH Trading Permit. More specifically, if a TPH that holds an ETH Trading Permit, also holds an RTH Trading Permit(s) and already is assessed this fee, it would not be charged twice. A TPH that holds only an ETH Trading Permit (or only an RTH Trading Permit) would be subject to these fees (
Additionally, the CMI Login ID and FIX Login ID fees, which are currently $500 per Login ID, per month, will also be applicable to ETH. However, the Exchange notes that the fees related to waived ETH trading permits and/or waived ETH bandwidth packets will also be waived through August 31, 2015.
The Exchange currently charges a fee of $400 per month per PULSe TPH login ID for the first 15 login IDs and $100 per month for all subsequent login IDs. The Exchange anticipates making PULSe available during ETH. The Exchange notes that these fees would also be applicable to a TPH during ETH. Particularly, if a TPH is already being assessed the PULSe login ID fees during RTH, the TPH would not be charged again for using the same login ID during ETH.
The Exchange notes that a number of fees apply the same in ETH as in RTH. For example, the fees set forth in the Trading Permit Holder Application Fees table are applicable for the ETH session (
The Trade Processing Services fee will also be assessed during the ETH session. Currently, the Exchange assesses a $0.0025 fee per contract side for each matched trade. The Exchange notes that the Regulatory Fees also are applicable to TPHs who hold ETH Trading Permits. Specifically, the Options Regulatory Fee (“ORF”) will include options transactions executed or cleared by the TPH that are cleared by the Options Clearing Corporation (OCC) in the customer range during both RTH and ETH. The “DPM's and Firm Designated Examining Authority Fee” will also continue to apply to applicable TPHs.
The Exchange lastly notes that fees, rebates and programs that excluded SPX, SPXW and VIX during RTH will also not apply in ETH.
The proposed changes are to take effect on March 2, 2015.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The proposed transaction fee amounts for SPX, SPXW and VIX orders during the ETH session are reasonable, equitable and not unfairly discriminatory because they are the same as the amounts of corresponding fees for SPX, SPXW and VIX orders during the RTH session, with the exception of the current Professional and Voluntary Professional fees and AIM Agency/Primary and Contra fees. The Exchange notes that the fee amounts for each separate type of market participant will be assessed equally for each product to all such market participants (
Assessing the Index License Surcharge Fee of $0.13 per contract to SPX and SPXW and $0.10 per contract to VIX transactions during ETH is reasonable because the amounts are the same as the amounts of the corresponding surcharge for SPX, SPXW and VIX orders during RTH. The Surcharge fees are equitable and not unfairly discriminatory because they will be assessed to all market participants to whom the SPX, SPXW and VIX Surcharges apply and will apply in both RTH and ETH. Similarly, assessing the Customer Priority Surcharge of $0.05 per contract for SPXW and $0.10 per contract for VIX options that are Maker, non-Turner during ETH is also reasonable, equitable and not unfairly discriminatory because the surcharges are the same as the amounts of the Customer Priority Surcharges during RTH and will be assessed to all market participants to whom these surcharges apply. Additionally the Customer Priority Surcharges for SPXW and VIX will apply in both RTH and ETH.
Not applying the SPX/SPXW and VIX Tier Appointment Fees as well as the Hybrid 3.0 Execution Fee is reasonable because market participants involved in the trading of SPX, SPXW and VIX will not have to pay such fees. Particularly, not applying Tier Appointment Fees during ETH, as compared to RTH is equitable and not unfairly discriminatory because ETH is a new trading session and the Exchange desires to encourage Market-Makers to register for SPX/SPXW and VIX tier appointments, and the more Market-Makers that do so, the more SPX/SPXW and VIX quoting there will be, which benefits all market participants. Not applying the Hybrid 3.0 Execution Fee during ETH is reasonable, equitable and not unfairly discriminatory because SPX will be not traded on Hybrid 3.0 during ETH.
The Exchange believes it is reasonable, equitable and not unfairly discriminatory to offer LMM's that meet a certain heightened quoting standard (described above) a pro-rata share of a compensation pool equal to $25,000 times the number of LMMs in that class given the potential added costs that an LMM may undertake in order to satisfy that heightened quoting standard. Additionally, if an LMM does not satisfy the heightened quoting standard, then it will not receive the proposed rebate. The Exchange believes it is equitable and not unfairly discriminatory to only offer the rebate to LMMs because it benefits all market participants in ETH to encourage LMMs to satisfy the heightened quoting standards, which may increase liquidity during those hours and provide more trading opportunities and tighter spreads. The Exchange also believes it is more fitting, as well as equitable and not unfairly discriminatory to implement an incentive program with a rebate during ETH, rather than the obligation/benefit structure that exists during RTH. Particularly, the Exchange notes that creating an incentive program in which LMMs must satisfy a heightened standard to receive the rebate, encourages LMMs to provide significant liquidity during ETH, which is important as the Exchange expects lower trading liquidity and trading levels during ETH and thus fewer opportunities for an LMM to receive a participation entitlement (as they currently do during RTH). Without the possibility of receiving a participation entitlement on a sufficient volume of trades, there would not be sufficient incentive for Trading Permit Holders to undertake an obligation to quote at heightened levels, which could result in even lower levels of liquidity. Therefore, a rebate is more appropriate than imposing an obligation to receive a participation entitlement. The Exchange notes that offering a rebate during ETH is merely a different type of financial benefit that may be given to LMMs during ETH if it achieves a heightened quoting level.
Applying to SPX, SPXW and VIX the CBOE Proprietary Products Sliding Scale and the Customer Large Trade Discount during ETH is reasonable, equitable and not unfairly discriminatory because these items apply to SPX, SPXW and VIX during RTH. Applying the CBOE Proprietary Products Sliding Scale during ETH avoids a cost differential between RTH and ETH. Moreover, the Exchange notes that all thresholds in the CBOE Proprietary Products Sliding Scale will be the same in ETH as it is in RTH. The Exchange believes requiring an order be executed in its entirety in either RTH or ETH, but not partly in both to qualify for the Customer Large Trade Discount is reasonable, equitable and not unfairly discriminatory because the RTH and ETH trading sessions will have separate order books and require separate logins
The Exchange believes the Trading Permit fees for Market-Maker and Electronic Access Trading Permits are reasonable as they are lower than the Trading Permit fees assessed during RTH. The Exchange believes it is equitable and not unfairly discriminatory to charge lower Trading Permit fees for ETH than RTH because ETH is a new trading session and the Exchange seeks to encourage market participants to participate in ETH. The Exchange notes that the more ETH Trading Permit Holders there are during ETH, the more liquidity there will be, which benefits all market participants. The Exchange also believes it is equitable to assess different access fees for trading permits that provide differential access as long as the same access fee is assessed to all Holders of the same type of Trading Permit. The Exchange notes that different types of Trading Permits during RTH are also assessed different amounts.
The Exchange believes the proposed Bandwidth Packet fees are reasonable because they are within the range of the cost of Bandwidth Packet fees during RTH. The Exchange believes it is equitable and not unfairly discriminatory to charge lower fees for Bandwidth Packets during ETH than RTH because ETH is a new trading session and the Exchange seeks to encourage market participants to participate in ETH. The Exchange also believes it is equitable to assess different fees for different types of Bandwidth Packets as long as the same access fee is assessed to all Holders of the same type of Bandwidth Packet. Additionally, the Exchange believes it is equitable to assess higher Quoting and Order Bandwidth Packet fees than Order Bandwidth Packet fees, because Quoting and Order Bandwidth Packets provide quoting bandwidth in addition to order bandwidth. The Exchange notes that different types of Bandwidth Packets during RTH are also assessed different amounts.
The Exchange believes waiving ETH Trading Permit and Bandwidth Packet fees for one of each type of Trading Permit and Bandwidth Packet, per affiliated TPH through August 31, 2015 is reasonable, equitable and not unfairly discriminatory, because it promotes and encourages trading during the ETH session and applies to all ETH TPHs.
The Exchange believes the proposed monthly fee of $10,000 for each extra CMI CAS Server that a TPH requests is reasonable because it is necessary to recoup the costs related to the provision, maintenance and upkeep of such Servers, and is equitable and not unfairly discriminatory because the fee will be applied to all TPHs that request an extra CMI CAS Server to be used during ETH. Additionally, TPHs during RTH that request an additional CMI CAS Server are assessed the same monthly amount.
The Exchange believes it is reasonable to apply the Network Access Port fees to the ETH session because the Exchange has expended significant resources setting up, providing and maintaining this connectivity and the Exchange seeks to recoup those costs. The Exchange believes it's reasonable, equitable and not unfairly discriminatory to assess these costs per port regardless of session (
Similarly, the Exchange believes it is reasonable, equitable, and not unfairly discriminatory to assess the same PULSe fees to the ETH session, but not charge a TPH twice if using the same PULSe login ID for both sessions, because the Exchange expended significant resources developing PULSe and desires to recoup some of those costs, but does not wish to charge TPHs twice if using the same login ID.
The Exchange believes assessing the CMI Login ID and FIX Login ID fees to Login IDs for ETH is reasonable because the fee amounts are the same as in RTH. The Exchange believes it's equitable and not unfairly discriminatory because all TPHs will be assessed the Login ID fees for each Login ID they have for both RTH and ETH. The Exchange believes it's reasonable, equitable and not unfairly discriminatory to waive fees for Login IDs related to waived Trading Permits and/or Bandwidth Packets in order to promote and encourage initial participation in ETH.
The Exchange believes it's reasonable to assess a $0.0025 fee per contract side for each matched trade because the same fee amount is assessed during RTH. The Exchange believes it's equitable and not unfairly discriminatory to assess such fee because it applies to all TPHs and applies in both RTH and ETH.
The proposed ORF during the ETH session is reasonable, equitable and not unfairly discriminatory because it is the same amount assessed during the RTH session. The Exchange believes the ORF is equitable and not unfairly discriminatory in that it is charged to all TPHs during both sessions on all their transactions that clear in the customer range at the OCC. Moreover, the Exchange believes the ORF ensures fairness by assessing higher fees to those TPHs that require more Exchange regulatory services based on the amount of customer options business they conduct in each trading session. Regulating customer trading activity is much more labor intensive and requires greater expenditure of human and technical resources than regulating non-customer trading activity, which tends to be more automated and less labor-intensive. As a result, the costs associated with administering the customer component of the Exchange's overall regulatory program are materially higher than the costs associated with administering the non-customer component (
Having Trading Permit Holder Application fees, Web CRD fees Trading Permit Holder Transaction Fee Policies and Rebate Programs apply the same in ETH as RTH is reasonable, equitable and not unfairly discriminatory because the fees, rebates and programs are the same in both sessions and are based on a market participant's status as a TPH and not based upon which trading session a TPH participates.
Not applying in ETH fees, rebates and programs that exclude SPX, SPXW and VIX during RTH is reasonable because these fees rebates and programs will not apply to all TPHs and will be consistent across sessions.
The Exchange does not believe that the proposed rule changes will impose any burden on competition that are not
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
On December 29, 2014, NYSE MKT LLC (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposed to amend Exchange Rule 967NY and to adopt Exchange Rule 967.1NY to provide price protection for Market Maker quotes. Exchange Rule 967NY currently applies
The Exchange proposed to adopt new Exchange Rule 967.1NY to provide for a price protection mechanism for quotes entered by a Market Maker. Exchange Rule 967.1NY(a) will provide price protection filters applicable only for quotes entered by a Market Maker pursuant to Rule 925.1NY and will not be applicable to orders entered by a Market Maker. The Exchange proposed to provide for two layers of price protection that will be applicable to all incoming Market Maker quotes.
Proposed Exchange Rule 967.1NY(a)(1) sets forth the Exchange's proposed NBBO price reasonability check, which will compare Market Maker bids with the NBO and Market Maker offers with the NBB. Specifically, provided that an NBBO is available, a Market Maker quote will be rejected if it is priced a specified dollar amount or percentage through the contra-side NBBO as follows:
(A) $1.00 for Market Maker bids when the contra-side NBO is priced at or below $1.00; or
(B) 50% for Market Maker bids (offers) when the contra-side NBO (NBB) is priced above $1.00.
The Exchange will reject inbound Market Maker quotes that exceed the parameters set forth in proposed Exchange Rule 967.1NY(a)(1)(A)-(B).
Because there may be market scenarios that require the proposed parameters to be adjusted, for example, during periods of extreme price volatility, the Exchange has further proposed that the Exchange may revise these parameters, provided such revised parameters are announced to ATP Holders via a Trader Update.
The Exchange also proposed that if a Market Maker quote is rejected pursuant to paragraph (a)(1) of the proposed rule, the Exchange will also cancel any resting same-side quote in the affected series from that Market Maker.
The Exchange also has proposed new Exchange Rule 967.1NY(a)(2) and (3) which will set forth the Exchange's proposed second layer of price protection filters for Market Maker quotes. These price protection mechanisms will be applicable when either there is no NBBO available, for example, during pre-opening or prior to conducting a re-opening after a trading halt, or if the NBBO is so wide as to not to reflect an appropriate price for the respective options series. Proposed Exchange Rule 967.1NY(a)(2) will also provide price protection for Market Maker bids in call options. As proposed, if such bids equal or exceed the price of the underlying security, the Market Maker bid will be rejected.
Under new Exchange Rule 967.1NY(a)(2)(A), before the underlying security is open, the Exchange will use the previous day's closing price to determine the price of the underlying security.
The Exchange also has proposed that when a Market Maker quote is rejected pursuant to paragraph (a)(2) or (a)(3) of the proposed rule, the Exchange will also cancel all resting quote(s) in the affected class(es) from that Market Maker and will not accept new quote(s) in the affected class(es) until the Market Maker submits a message (which may be automated) to the Exchange to enable the entry of new quotes.
The Exchange stated that it would announce the implementation date of the proposed rule change in a Trader Update and publish such announcement at least 30 days prior to implementation.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, with section 6(b) of the Act.
The proposed rule change provides a price protection mechanism for quotes entered by a Market Maker when an NBBO is available that are priced a specified dollar amount or percentage through the last sale or prevailing contra-side market, which the Exchange believes is evidence of error. The Commission believes that the proposed price protection mechanism is reasonably designed to promote just and equitable principles of trade by preventing potential price dislocation that could result from erroneous Market Maker quotes sweeping through multiple price points resulting in executions at prices that are through the last sale price or NBBO.
The Exchange's proposed use of benchmarks to check the reasonability of Market Maker bids for call and put options affords a second layer of price protection to Market Maker quotes. The Commission believes that the additional price reasonability check on Market Maker bids that are priced equal to or greater than the price of the underlying security for call options, and equal to or greater than the strike price for put options, is reasonably designed to operate in manner that would remove impediments to and perfect the mechanism of a free and open market and protect investors and the public interest. Further, the Commission notes the Exchange's belief that the additional risk controls that result in the cancellation of a Market Maker's resting same side quote and/or the temporary suspension a Market Maker's quoting activity in the affected option class(es), as applicable, provide market participants with additional protection from anomalous executions.
Accordingly, the Commission believes that the proposed price protection for Market Maker quotes is reasonably designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest.
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.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Black Sea Metals, Inc. because it has not filed any periodic reports since the period ended May 31, 2012.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of GigaBeam Corp. because it has not filed any periodic reports since the period ended September 30, 2007.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Safe Technologies International, Inc. because it has not filed any periodic reports since the period ended December 31, 2010.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Whitemark Homes, Inc. because it has not filed any periodic reports since the period ended September 30, 2012.
The Commission is of the opinion that the public interest and the protection of
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EST on March 5, 2015, through 11:59 p.m. EDT on March 18, 2015.
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Arca Equities Rule 8.600 to adopt generic listing standards for Managed Fund Shares. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend NYSE Arca Equities Rule 8.600 to adopt generic listing standards for Managed Fund Shares. Under the Exchange's current rules, a proposed rule change must be filed with the Securities and Exchange Commission (“SEC” or “Commission”) for the listing and trading of each new series of Managed Fund Shares. The Exchange believes that it is appropriate to codify certain rules within Rule 8.600 that would generally eliminate the need for such proposed rule changes, which would create greater efficiency and promote uniform standards in the listing process.
Rule 8.600 sets forth certain rules related to the listing and trading of Managed Fund Shares.
(a) represents an interest in a registered investment company (“Investment Company”) organized as an open-end management investment company or similar entity, that invests in a portfolio of securities selected by the Investment Company's investment adviser (hereafter “Adviser”) consistent with the Investment Company's investment objectives and policies;
(b) is issued in a specified aggregate minimum number in return for a deposit of a specified portfolio of securities and/or a cash amount with a value equal to the next determined net asset value; and
(c) when aggregated in the same specified minimum number, may be redeemed at a holder's request, which holder will be paid a specified portfolio of securities and/or cash with a value equal to the next determined net asset value.
Effectively, Managed Fund Shares are securities issued by an actively-managed open-end Investment Company (
All Managed Fund Shares listed and/or traded pursuant to Rule 8.600 (including pursuant to unlisted trading privileges) are subject to the full panoply of Exchange rules and procedures that currently govern the trading of equity securities on the Exchange.
In addition, Rule 8.600(d) currently provides for the criteria that Managed Fund Shares must satisfy for initial and continued listing on the Exchange, including, for example, that a minimum number of Managed Fund Shares are required to be outstanding at the time of commencement of trading on the Exchange. However, the current process for listing and trading new series of Managed Fund Shares on the Exchange requires that the Exchange submit a proposed rule change with the Commission. In this regard, Commentary .01 to Rule 8.600 specifies that the Exchange will file separate proposals under Section 19(b) of the Act (hereafter, a “proposed rule change”) before listing and trading of [sic] shares of an issue of Managed Fund Shares.
The Exchange would amend Commentary .01 to Rule 8.600 to specify that the Exchange may approve Managed Fund Shares for listing and/or trading (including pursuant to unlisted trading privileges) pursuant to SEC Rule 19b-4(e) under the Act, which pertains to derivative securities products (“SEC Rule 19b-4(e)”).
The Exchange would also specify within Commentary .01 to Rule 8.600 that components of Managed Fund Shares listed pursuant to SEC Rule 19b-4(e) must satisfy on an initial and continued basis certain specific criteria, which the Exchange would include within Commentary .01, as described in greater detail below. As proposed, the Exchange would continue to file separate proposed rule changes before the listing and trading of Managed Fund Shares with components that do not satisfy the additional criteria described below or components other than those specified below. For example, if the components of a Managed Fund Share exceeded one of the applicable thresholds, the Exchange would file a separate proposed rule change before listing and trading such Managed Fund Share. Similarly, if the components of a Managed Fund Share included a security or asset that is not specified below, the Exchange would file a separate proposed rule change.
The Exchange would also add to the “generic” criteria of Rule 8.600(d) by specifying that all Managed Fund Shares must have a stated investment objective, which must be adhered to under normal market conditions.
Finally, the Exchange would also amend the continued listing requirement in Rule 8.600(d)(2)(A) by changing the requirement that a Portfolio Indicative Value for Managed Fund Shares be widely disseminated by one or more major market data vendors at least every 15 seconds during the time when the Managed Fund Shares trade on the Exchange to a requirement that a Portfolio Indicative Value be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session (as defined in NYSE Arca Equities Rule 7.34).
The Exchange is proposing standards that would pertain to Managed Fund Shares to qualify for listing and trading pursuant to SEC Rule 19b-4(e). These standards would be grouped according to security or asset type. The Exchange notes that the standards proposed for a Managed Fund Share portfolio that holds domestic equity securities, Derivative Securities Products and Index-Linked Securities are based in large part on the existing equity security standards applicable to Units in Commentary .01 to Rule 5.2(j)(3). The standards proposed for a Managed Fund Share portfolio that holds fixed income securities are based in large part on the existing fixed income security standards applicable to Units in Commentary .02 to Rule 5.2(j)(3). Many of the standards proposed for other types of holdings in a Managed Fund Share portfolio are based on previous proposed rule changes for specific series of Managed Fund Shares.
Proposed Commentary .01(a) would describe the standards for a Managed Fund Share portfolio that holds equity securities, including U.S. Component Stocks,
(1) Component stocks (excluding Derivative Securities Products and Index-Linked Securities) that in the aggregate account for at least 90% of the equity weight of the portfolio (excluding such Derivative Securities Products and Index-Linked Securities) each must have a minimum market value of at least $75 million;
(2) Component stocks (excluding Derivative Securities Products and Index-Linked Securities) that in the aggregate account for at least 70% of the equity weight of the portfolio (excluding such Derivative Securities Products and Index-Linked Securities) each must have a minimum monthly trading volume of 250,000 shares, or minimum notional volume traded per month of $25,000,000, averaged over the last six months;
(3) The most heavily weighted component stock (excluding Derivative Securities Products and Index-Linked Securities) must not exceed 30% of the equity weight of the portfolio, and, to the extent applicable, the five most heavily weighted component stocks (excluding Derivative Securities Products and Index-Linked Securities) must not exceed 65% of the equity weight of the portfolio;
(4) The portfolio must include a minimum of 13 component stocks; provided, however, that there would be no minimum number of component stocks if (a) one or more series of Derivative Securities Products or Index-Linked Securities constitute, at least in part, components underlying a series of Managed Fund Shares, or (b) one or more series of Derivative Securities Products or Index-Linked Securities account for 100% of the equity weight of the portfolio of a series of Managed Fund Shares;
(5) Equity securities (excluding unsponsored American Depository Receipts (“ADRs”)) in the portfolio must be U.S. Component Stocks listed on a national securities exchange and must be NMS Stocks as defined in Rule 600 of Regulation NMS;
(6) For Derivative Securities Products and Index-Linked Securities, no more than 25% of the equity weight of the portfolio could include leveraged and/or inverse leveraged Derivative Securities Products or Index-Linked Securities; and
(7) ADRs may be sponsored or unsponsored. However no more than 10% of the equity weight of the portfolio shall consist of unsponsored ADRs.
Proposed Commentary .01(b) would describe the standards for a Managed Fund Share portfolio that holds fixed income securities, which are debt securities
(1) Components that in the aggregate account for at least 75% of the fixed income weight of the portfolio shall meet the following:
(i) each shall have a minimum original principal amount outstanding of $100 million or more;
(iii) [sic] if a municipal bond component, such component shall be issued in an offering with an aggregate size, as set forth in the official statement of the offering, of $100 million or more;
(2) No component fixed-income security (excluding Treasury Securities and GSE Securities) could represent more than 30% of the fixed income weight of the portfolio, and the five most heavily weighted component fixed income securities in the portfolio must not in the aggregate account for more than 65% of the fixed income weight of the portfolio;
(3) An underlying portfolio (excluding exempted securities) must include a minimum of 13 non-affiliated issuers;
(4) Component securities that in [sic] aggregate account for at least 90% of the fixed income weight of the portfolio must be either (a) from issuers that are required to file reports pursuant to Sections 13 and 15(d) of the Act; (b) from issuers that have a worldwide market value of its outstanding common equity held by non-affiliates of $700 million or more; (c) from issuers that have outstanding securities that are notes, bonds debentures, or evidence of indebtedness having a total remaining principal amount of at least $1 billion; (d) exempted securities as defined in Section 3(a)(12) of the Act; or (e) from issuers that are a government of a foreign country or a political subdivision of a foreign country; and
(5) Non-agency mortgage-related and other asset-backed securities components of a portfolio shall not account for more than 20% of the weight of the fixed income portion of the portfolio.
Proposed Commentary .01(c) would describe the standards for a Managed Fund Share portfolio that holds cash and cash equivalents.
(1) U.S. Government securities, including bills, notes and bonds differing as to maturity and rates of interest, which are either issued or guaranteed by the U.S. Treasury or by
(2) certificates of deposit issued against funds deposited in a bank or savings and loan association;
(3) bankers' acceptances, which are short-term credit instruments used to finance commercial transactions;
(4) repurchase agreements and reverse repurchase agreements;
(5) bank time deposits, which are monies kept on deposit with banks or savings and loan associations for a stated period of time at a fixed rate of interest; and
(6) commercial paper, which are short-term unsecured promissory notes.
Proposed Commentary .01(d) would describe the standards for a Managed Fund Share portfolio that holds listed and centrally cleared derivatives, including futures, options and cleared swaps on commodities, currencies and financial instruments (
Proposed Commentary .01(e) would describe the standards for a Managed Fund Share portfolio that holds over the counter (“OTC”) derivatives, including forwards, options and swaps on commodities, currencies and financial instruments (
Proposed Commentary .01(f) would describe the standards for a Managed Fund Share portfolio that holds illiquid assets.
The changes proposed herein would not have an impact on the existing rules applicable to the listing and trading of Managed Fund Shares, which address, for example, net asset value, creation and redemption of shares, availability of information, trading halts, surveillance and information bulletins.
The Exchange believes that the proposed standards would continue to ensure transparency surrounding the listing process for Managed Fund Shares. Additionally, the Exchange believes that the proposed portfolio standards for listing and trading Managed Fund Shares, many of which track existing Exchange rules relating to Units, are reasonably designed to promote a fair and orderly market for such Managed Fund Shares.
In support of this proposal, the Exchange represents that:
(1) The Managed Fund Shares will continue to conform to the initial and continued listing criteria under Rule 8.600;
(2) the Exchange's surveillance procedures are adequate to continue to properly monitor the trading of the Managed Fund Shares in all trading sessions and to deter and detect violations of Exchange rules. Specifically, the Exchange intends to
(3) prior to the commencement of trading of a particular series of Managed Fund Shares, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in a Bulletin of the special characteristics and risks associated with trading the Managed Fund Shares, including procedures for purchases and redemptions of Managed Fund Shares, suitability requirements under NYSE Arca Equities Rule 9.2(a), the risks involved in trading the Managed Fund Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated, information regarding the Portfolio Indicative Value, prospectus delivery requirements, and other trading information. In addition, the Bulletin will disclose that the Managed Fund Shares are subject to various fees and expenses, as described in the Registration Statement, and will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. Finally, the Bulletin will disclose that the net asset value for the Managed Fund Shares will be calculated after 4 p.m. ET each trading day; and
(4) the issuer of a series of Managed Fund Shares will be required to comply with Rule 10A-3 under the Act for the initial and continued listing of Managed Fund Shares, as provided under NYSE Arca Equities Rule 5.3.
The Exchange notes that the proposed change is not otherwise intended to address any other issues and that the Exchange is not aware of any problems that ETP Holders or issuers would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest because it would facilitate the listing and trading of additional Managed Fund Shares, which would enhance competition among market participants, to the benefit of investors and the marketplace. Specifically, after more than six years under the current process, whereby the Exchange is required to file a proposed rule change with the Commission for the listing and trading of each new series of Managed Fund Shares, the Exchange believes that it is appropriate to codify certain rules within Rule 8.600 that would generally eliminate the need for separate proposed rule changes. The Exchange believes that this would facilitate the listing and trading of additional types of Managed Fund Shares that have investment portfolios that are similar to investment portfolios for Units, which have been approved for listing and trading, thereby creating greater efficiencies in the listing process for the Exchange and the Commission. In this regard, the Exchange notes that the standards proposed for Managed Fund Share portfolios that include domestic equity securities, Derivative Securities Products, and Index-Linked Securities are based in large part on the existing equity security standards applicable to Units in Commentary .01 to Rule 5.2(j)(3) and that the standards proposed for Managed Fund Share portfolios that include fixed income securities are based in large part on the existing fixed income standards applicable to Units in Commentary .02 to Rule 5.2(j)(3). Additionally, many of the standards proposed for other types of holdings of series of Managed Fund Shares are based on previous proposed rule changes for specific series of Managed Fund Shares.
With respect to the proposed amendment to the continued listing requirement in Rule 8.600(d)(2)(A) to require dissemination of a Portfolio Indicative Value at least every 15 seconds during the Core Trading Session (as defined in NYSE Arca Equities Rule 7.34), such requirement conforms to the requirement applicable to the dissemination of the Intraday Indicative Value for Investment Company Units in Commentary .01(c) and Commentary .02(c) to NYSE Arca Equities Rule 5.2(j)(3). In addition, such dissemination is consistent with representations made in proposed rule changes for issues of Managed Fund Shares previously approved by the Commission.
The proposed rule change is also designed to protect investors and the public interest because Managed Fund Shares listed and traded pursuant to Rule 8.600, including pursuant to the proposed new portfolio standards, would continue to be subject to the full panoply of Exchange rules and procedures that currently govern the trading of equity securities on the Exchange.
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices because the Managed
The Exchange also believes that the proposed rule change would fulfill the intended objective of Rule 19b-4(e) under the Act by allowing Managed Fund Shares that satisfy the proposed listing standards to be listed and traded without separate Commission approval. However, as proposed, the Exchange would continue to file separate proposed rule changes before the listing and trading of Managed Fund Shares that do not satisfy the additional criteria described above.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
No written comments were solicited or received with respect to the proposed rule change.
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. In particular, the Commission seeks comments on the following questions:
1. According to the Exchange, many of the requirements of the proposed rule applicable to equity and fixed income securities holdings are identical to the requirements for equity and fixed income index-based ETFs, respectively.
a. Do commenters believe that these requirements for index-based ETFs should equally apply to the listing and trading of Managed Fund Shares? If so, why? If not, why not?
b. Do commenters believe that the requirements for index-based ETFs that the Exchange proposes to apply to Managed Fund Shares are adequate to deter manipulation irrespective of similarities between the two types of products? If so, why? If not, why not?
2. In addition, as noted by the Exchange, some of the requirements of the proposed rule are identical to certain, specifically tailored requirements referenced in other previously approved proposed rule changes pertaining to the listing and trading of specific series of Managed Fund Shares. What are commenters' views on whether these specifically tailored requirements for certain series of Managed Fund Shares ought to equally apply to all Managed Fund Shares by virtue of being incorporated into these proposed generic listing standards?
3. Do commenters believe that the proposed listing requirements are adequate to deter manipulation and other trading abuses of the price of generically listed Managed Fund Shares? If so, why? If not, why not?
4. Under the proposed rule, there would be no limitation to the percentage of the portfolio invested in short-term cash equivalents or derivative instruments. In addition, under the proposed rule, there would be no limitation as to the types of short-term cash equivalents or derivative instruments that could be held in the portfolio. To what extent, if at all, should the proposed generic listing standards restrict the holding of these portfolio components? If so, how and why? If not, why not?
5. Do commenters have views on whether the proposed generic listing requirements for Managed Fund Shares have adequately accounted for all types of assets that a portfolio can hold? Should the proposed rules include additional or fewer restrictions? Are there other measures that the Commission and the Exchange should consider with respect to a portfolio of Managed Fund Shares that are generically listed?
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.
Social Security Administration (SSA).
Notice of a renewal of an existing computer matching program that will expire on November 10, 2014.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a renewal of an existing computer matching program that we are currently conducting with VA/VBA.
We will file a report of the subject matching program with the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on Oversight and Government Reform of the House of Representatives; and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefaxing to (410) 966-0869 or writing to the Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, 617 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401. All comments received will be available for public inspection at this address.
The Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Public Law (Pub. L.) 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the conditions under which computer matching involving the Federal government could be performed and adding certain protections for persons applying for, and receiving, Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such persons.
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, State, or local government records. It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain approval of the matching agreement by the Data Integrity Boards of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying a person's benefits or payments.
We have taken action to ensure that all of our computer matching programs comply with the requirements of the Privacy Act, as amended.
The purpose of this matching program is to provide us with information necessary to: (1) Identify certain Supplemental Security Income (SSI) and Special Veterans Benefit (SVB) recipients under Title XVI and Title VIII of the Social Security Act (Act), respectively, who receive VA-administered benefits; (2) determine the eligibility or amount of payment for SSI and SVB recipients; and (3) identify the income of individuals who may be eligible for Medicare cost-sharing assistance through the Medicare Savings Program as part of our Medicare outreach efforts.
The legal authority for VA to disclose information under this agreement is 1631(f) of the Act (42 U.S.C. 1383(f)). The legal authorities for us to conduct this computer matching program are 806(b), 1144, and 1631(e)(1)(B) and (f) of the Act (42 U.S.C. 1006(b), 1320b-14, and 1383(e)(1)(B) and (f)).
VA will provide us with electronic files containing compensation and pension payment data from its system of records (SOR) entitled the “Compensation, Pension, Education, and Vocational Rehabilitation and Employment Records—VA” (58VA/21/22/28), republished with updated name at 74 FR 14865 (April 1, 2009) and last amended at 77 FR 42593 (July 19, 2012).
We will match the VA data with SSI/SVB payment information maintained in our SOR entitled “Supplemental Security Income Record and Special Veterans Benefits” (SSA/ODSSIS 60-0103), last published at 71 FR 1830 (January 11, 2006).
We estimate receiving 60 million records annually from VA.
We will conduct the match using the Social Security number, name, date of birth, and VA claim number on both the VA file and the Supplemental Security Record.
VA will furnish us with an electronic file containing VA compensation and pension payment data monthly. The actual match will take place approximately during the first week of every month.
The effective date of this matching program is November 11, 2014 provided that the following notice periods have lapsed: 30 days after publication of this notice in the
The Department of State will conduct an open meeting at 10:00 a.m. on Friday, April 3rd, 2015, in Room 2E16-06, United States Coast Guard Headquarters, 2703 Martin Luther King Jr. Ave SE., Washington, DC 20593-7213. The primary purpose of the meeting is to prepare for the one hundred and second Session of the International Maritime Organization's (IMO) Legal Committee to be held at the IMO Headquarters, United Kingdom, April 14-April 16, 2015.
The agenda items to be considered include:
• Adoption of the agenda and report on delegation credentials
• HNS Protocol, 2010
• Fair treatment of seafarers in the event of a maritime accident
• Piracy
• Technical cooperation activities related to maritime legislation
• Review of the status of conventions and other treaty instruments emanating from the Legal Committee
Members of the public may attend this meeting up to the seating capacity of the room. To facilitate the building security process, and to request reasonable accommodation, those who plan to attend should contact the meeting coordinator, Ms. Bronwyn Douglass, by email at
Federal Aviation Administration (FAA), DOT.
Notice recommending voluntary change to securing existing ELTs as specified in Technical Standard Order (TSO)-C126b, 406MHz Emergency Locator Transmitter.
FAA evaluated five separate courses of action with regard to the airworthiness approvals for securing ELTs with hook and loop fasteners. This notice summarizes the inadequacies of hook and loop fasteners as a means for securing ELTs, and avoids placing an undue burden on aircraft owners while acknowledging the voluntary efforts of ELT manufacturers to improve designs.
Comments must be received on or before April 9, 2015.
Ms. Charisse R. Green, AIR-131, Federal Aviation Administration, 470 L'Enfant Plaza, Suite 4102, Washington, DC 20024. Telephone (202) 267-8551, fax (202) 267-8589, email to:
Investigations of some recent aircraft accidents disclosed that ELTs mounted with hook and loop fasteners became dislodged from their mounting trays on impact. The separation of those ELTs from their mounting trays caused their antenna connection to sever, thus rendering the ELTs to be ineffective and unable to perform their intended function.
The FAA Modernization and Reform Act of 2012 (Pub. L. 112-95), Section 347(b)(1), required the FAA to determine if the ELT mounting requirements and retention tests specified by TSO-C91a and TSO-C126 were adequate to assess retention capabilities in ELT designs. Based on the determination, the Act, in Section 347(b)(2), required the Administrator to make any necessary revisions to the requirements and retention test to ensure ELTs remained properly retained in the event of an aircraft accident.
The FAA evaluated the mounting requirements and retention tests specified in TSO-C91a, TSO-C126, and TSO-C126a. After this evaluation, the FAA determined these standards did not adequately address the use of hook and loop fasteners. Hook and loop fasteners were not an acceptable means of compliance to meet the mounting and retention requirements of the ELT TSOs. While the evaluation of installation approval using hook and loop fasteners may meet the TSO requirements for retention forces in laboratory conditions, accident investigations found these fasteners did not perform their intended function.
The agency identified the following concerns after completing its evaluation of the use of hook and loop fasteners:
(1) Hook and loop fasteners fail to retain the ELT when insufficient tension is applied to close the fastener. There is no repeatable method for installation and no method to evaluate the tension of the hook and loop fastener. The allowance for pilots to secure ELTs to the aircraft when changing ELT batteries
(2) Hook and loop fasteners closed with proper tension may stretch or loosen over time due to wear, fluids, vibration, and repeated use, leading to insufficient tension to retain the ELT;
(3) Hook and loop fasteners closed with proper tension do not provide stated retention capability due to debris which can contaminate the hooks and loops of the fastener; and
(4) Hook and loop fasteners closed with proper tension degrade due to environmental factors such as repeated heating and cooling cycles, temperature extremes, and contamination resulting from location in equipment areas.
After publishing our initial intent to withdraw the TSO Authorizations (TSOA) for TSO-C91a, and TSO-C126/126a (See 135 FR 41,473 (2012)), the FAA considered five courses of action to mitigate safety concerns with the use of hook and loop fasteners to retain ELTs. These actions addressed design, production, and airworthiness approvals for both the TSO and retrofit for existing installations. Below is a summary of the actions and their outcomes:
(1)
(2)
(3)
(4)
(5)
The FAA issued an SAIB providing ELT installation and maintenance guidance and revised TSO-C126a to eliminate hook and loop fasteners from future TSO designs. The FAA is not issuing an airworthiness directive or a policy disallowing installation approval of ELTs that use hook and loop fasteners. Lastly, the FAA decided not to take the action of withdrawing the TSO authorizations of ELTs utilizing hook and loop fasteners as a mounting mechanism, but ask those aircraft owners/operators with ELTs secured with hook and loop fasteners in their aircraft to voluntarily switch to a metal strap type restraint method. Therefore, the proposed June 30, 2014 date for TSOA withdrawals is no longer applicable.
Federal Aviation Administration, FAA, DOT.
Notice to extend the revocation date of Technical Standard Order (TSO) C-121 and C-121a, Underwater Locating Devices (ULD) (Acoustic) (Self-Powered).
This Notice extends the planned revocation date of Technical Standard Order (TSO) authorization for the production of Underwater Locating Devices (ULD) (Acoustic) (Self-Powered) manufactured to TSO-C121 and TSO C-121a specifications. This action is necessary to facilitate an efficient transition to UDLs with a 90-day minimum battery operating life manufactured to the TSO-C121b specifications.
Mr. John Barry, AIR-130, Federal Aviation Administration, 470 L'Enfant Plaza, SW., Suite 4102, Washington, DC 20024. Telephone 202-267-1665, Fax 202-267-8589, email:
The FAA published a Notice in the Federal Resister, 76 FR 52734, August 23, 2011, announcing the planned revocation of TSO-C121 and TSO-C121a. Notice of that conformation was published in the
Based on the recent award of TSO-C121b authorizations, additional testing and analysis of lithium battery
Fish and Wildlife Service, Interior.
Final rule.
The U.S. Fish and Wildlife Service (Service or we) is amending its regulations under the Lacey Act to add reticulated python (
This rule is effective on April 9, 2015.
This final rule and the associated final economic analysis, regulatory flexibility analysis, and environmental assessment are available on the Internet at
Bob Progulske, Everglades Program Supervisor, South Florida Ecological Services Office, U.S. Fish and Wildlife Service, 1339 20th Street, Vero Beach, FL 32960-3559; telephone 772-469-4299. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.
The U.S. Fish and Wildlife Service (Service) is amending its regulations under the Lacey Act to add the reticulated python, DeSchauensee's anaconda, green anaconda, and Beni anaconda to the list of injurious wildlife. The purpose of listing the reticulated python and the three anacondas as injurious wildlife is to prevent the accidental or intentional introduction and subsequent establishment of populations of these snakes in the wild in the United States.
Under the Lacey Act (Act) (18 U.S.C. 42, as amended), the Secretary of the Interior is authorized to list by regulation those wild mammals, wild birds, fish, mollusks, crustaceans, amphibians, reptiles, and the offspring or eggs of any of the foregoing that are injurious to human beings, to the interests of agriculture, horticulture, or forestry, or to the wildlife or wildlife resources of the United States. We have determined that these four species of large constrictor snakes are injurious. This determination was based on an extensive risk and biological assessment by the U.S. Geological Survey (USGS; Reed and Rodda 2009) and on the criteria for injuriousness by the Service. USGS determined that these four species have a risk of invasiveness, and the Service found that the four species are injurious.
On March 12, 2010, we published a proposed rule in the
On January 23, 2012, we published a final rule in the
By listing the four species, the importation into the United States and transportation between States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States of any live animal, gamete, viable egg, or hybrid is prohibited, except by permit for zoological, education, medical, or scientific purposes (in accordance with permit conditions) or by Federal agencies without a permit solely for their own use.
The final economic analysis (2015) and environmental assessment (2015) considers four alternatives for the reticulated python, DeSchauensee's anaconda, green anaconda, Beni anaconda, and boa constrictor: Alternative 1 is no action; Alternative 2A would list all five species; Alternative 2B would list four species (not including the boa constrictor); Alternative 3 would list the three species known to be in trade in the United States (boa constrictor, green anaconda, and reticulated python); and Alternative 4 would list the boa constrictor—the only one of the five species with a high organism risk potential (Reed and Rodda 2009). We selected Alternative 2B.
Table ES-1 (from the 2015 final economic analysis) compares the economic output to the constrictor snake industry for listing under the alternatives. The costs for not listing are difficult to quantify, but include the expenditures associated with State and Federal activities that address constrictor snake impacts, amounting to at least $6 million from 2005 to 2014. Other costs for not listing include risk of harm (from predation, competition,
On June 23, 2006, the Service received a petition from the South Florida Water Management District (District) requesting that Burmese pythons be considered for inclusion in the injurious wildlife regulations under the Lacey Act (18 U.S.C. 42, as amended; the Act). The District was concerned about the number of Burmese pythons (
The Service published a notice of inquiry in the
On March 12, 2010, we published a proposed rule in the
On January 23, 2012, we published a final rule in the
On June 24, 2014, we reopened the comment period on the 2010 proposed rule for an additional 30 days (79 FR 35719). This comment period was restricted to the five remaining proposed species: The reticulated python, DeSchauensee's anaconda, green anaconda, Beni anaconda, and boa constrictor.
For the injurious wildlife evaluation in this final rule, in addition to information used for the proposed rule, we considered: (1) Comments from the three public comment periods for the proposed rule, (2) comments from five peer reviewers, and (3) new information acquired by the Service by the end of the public comment periods (July 24, 2014). From this information, we determined that four more (hereafter, also may be collectively referred to as “the second four”) of the nine proposed species warrant listing as injurious at this time, bringing the total number of species of large constrictor snakes listed as injurious to eight with this final rule. We present a summary of the peer review comments and the public comments following the Lacey Act Evaluation Criteria section for the second four of the nine proposed species. The explanations in the sections on biology and evaluation of the second four species will make many of the answers to the comments self-evident.
A major source of biological, management, and invasion risk information that we used for the proposed rule and this final rule was derived from the USGS's “Giant Constrictors: Biological and Management Profiles and an Establishment Risk Assessment for Nine Large Species of Pythons, Anacondas, and the Boa Constrictor” (hereafter referred to as “Reed and Rodda 2009).” This document was prepared at the request of the Service and the National Park Service; a link to the report can be found at the following Internet sites:
The Service is completing actions on the proposed rule with publication of this final rule for the second four species (reticulated python and DeSchauensee's, green, and Beni anacondas). The proposal for one additional species (boa constrictor) is being withdrawn; we are no longer considering it for listing under the Act.
The purpose of listing the reticulated python and the three anacondas as injurious wildlife is to prevent the accidental or intentional introduction and subsequent establishment of populations of these snakes in the wild in the United States.
The Service has had the authority to list species as injurious under the Act since the 1940s. However, we have been criticized for not listing species before they became a problem (Fowler
Furthermore, we have the authority under the Act to list certain species as injurious even if they are not currently in trade or known to exist in the United States. Thus, we can be proactive and not wait until a species is already established. As noted in the National Invasive Species Management Plan (National Invasive Species Council 2008), “prevention is the first line of defense” and “can be the most cost-effective approach because once a species becomes widespread, controlling it may require significant and sustained expenditures.” This is why we are listing two species (DeSchauensee's and Beni anacondas) that are not yet found in the United States but that have the requisite injurious traits.
None of these four species is native to the United States. The Service is striving to prevent the introduction and establishment of all four species into new areas of the United States, due to concerns about the injurious effects of all four species, consistent with 18 U.S.C. 42.
All four species were evaluated and found to be injurious because: There is a suitable climate match in parts of the United States to support them; they are likely to escape captivity; they are likely to prey on and compete with native species (including endangered and threatened species); preventing, eradicating, or reducing large populations would be difficult; and other factors that are explained in the sections Factors That Contribute to Injuriousness for Reticulated Python and for the other three species.
Under 18 U.S.C. 42(a), the Secretary of the Interior “may prescribe by regulation” species to be injurious and thus has discretion on whether to list species as injurious. The proposed rule published on March 12, 2010 (75 FR 11808), determined that the boa constrictor possesses the traits of injuriousness and no substantive information to the contrary has been provided in the public or peer review comments or otherwise obtained by the Service. Nonetheless, concurrent with this final rule, we are withdrawing the proposal to list the boa constrictor as an injurious species and hereby remove the species from further consideration. If we decide in the future to consider the boa constrictor for listing as injurious, we will prepare a new proposed rule for notice and comment in the
The Service recognizes the harm that the establishment of boa constrictors could pose to wildlife and wildlife resources. We also recognize that, because our regulatory authority is limited to prohibiting importation and interstate transport, we must rely on the States, Territories, and other governmental entities in the United States, including local jurisdictions (hereafter collectively referred to as the States) to regulate possession, release to the wild, sale, intrastate transport, and other activities that may need to be regulated to effectively manage the risk of a species introduction and spread for species that have already been imported into and are present in the United States.
The regulatory prohibitions of the Lacey Act (limited to importation and interstate transport) are less effective when a species is widely held in captivity in the United States in high numbers (both the number of animals and number of people owning the animals) and when significant domestic breeding of such animals is occurring and would likely continue for intrastate trade or export purposes. Domestic breeding, whether for intrastate trade or export, of widely-owned species increases the probability of escape, survival, and establishment of the listed species in the United States. Under these unique circumstances, the benefit of an injurious wildlife listing is likely to be limited without concurrent State regulatory action, particularly in areas of the country where the risk of establishment is the highest.
Thus, for the boa constrictor, we considered whether listing the species under the Lacey Act would be the most effective means of preventing the establishment and spread of populations in the wild. For this decision, the Service assessed information available on the number of boa constrictors already imported into the United States, the number of boa constrictors held in captivity in the United States, the variety of individuals and entities that own boa constrictors and their use of the species, how broadly in geographic terms the species is located in captivity within the United States, the amount of domestic breeding (for export, intrastate trade, and other purposes), the risk of escape and establishment of the species, if and where individual snakes have been recorded or populations have become established in the wild in the United States, and actions States have taken or could take to effectively manage the risk of snake introduction and establishment.
The number of boa constrictors that have been imported and that are currently held in captivity is a significantly larger portion of the current trade than for any of the other eight constrictor species that were proposed for listing. In fact, these numbers are likely higher for the boa constrictor than for all of the eight other species combined. Of the nine species that were included in the proposed rule, the boa constrictor represented 61.7 percent of the imports and domestically bred snakes from 2008 to 2010, whereas the next highest species was the Burmese python at 24.5 percent (Final Economic Analysis 2012). Of the five species not yet listed, the boa constrictor represents 79.2 percent of the imports and domestically bred snakes from 2011 to 2013, whereas the next highest species is the reticulated python at 18.9 percent. Large zoos and small roadside zoos across the country maintain boas for educational displays and live animal programs. Boa constrictors are sold in many pet stores, including large national chains, and are owned as pets by children and adults in all States that allow possession. Boas can grow to 13 feet in length and live for at least 20 years. The likelihood of pet boas being released or escaping is high, because boa constrictors are adept at escaping enclosures and they often outgrow their owner's ability or outlive their owner's interest to care for them.
Thus, of the nine large constrictor snakes evaluated by the Service, risk management measures by States are particularly needed for the boa constrictor, especially where the risk of establishment is high. Risk management measures include State regulations and other restrictions on activities with the species, as well as measures to detect and attempt to control any snakes that are found in the wild. For example, the State of Hawaii does not allow the importation or possession of any snakes, and most of the U.S. Territories have some restrictions on the importation of snakes. In comparison, the State of Florida has not listed the boa constrictor as a conditional reptile or placed other restrictions on this species. According to the State of Florida's regulations (FWC 2015), “[c]onditional nonnative species are considered to be dangerous to the ecology and/or the health and welfare of the people of Florida. These species are not allowed to be personally possessed, although exceptions are made by permit * * *.” Without any restrictions on possession, intrastate sale, or intrastate domestic production, the benefit of a Federal injurious wildlife listing for the boa constrictor is substantially less than for a species, such as the Burmese python, that is also held broadly in private ownership but is currently regulated through Florida's Conditional Reptile regulations. The lack of restrictions for boa constrictors in States such as Florida that are at great risk perpetuates an unregulated pathway for escape and possible establishment, and severely reduces the effectiveness of a Federal regulatory approach.
In 2010 (75 FR 11808, March 12, 2010; and 75 FR 38069, July 1, 2010) and again in 2014 (79 FR 35719; June 24, 2014), the Service sought and considered public comments submitted on the proposed rule to list the boa constrictor along with other species of large constrictor snakes. The Service received more than 85,000 public comments. Among the substantive comments we received were comments from the Association of Fish and Wildlife Agencies (AFWA) in 2010. Although AFWA did not submit additional comments in 2014, the Service has received no information indicating that AFWA has changed its position from that expressed in its 2010 comment letter.
AFWA represents North America's State, territorial, and provincial fish and wildlife agencies. In their comment letter, AFWA stated that they had solicited comments from their network of State nongame biologists and herpetologists, as well as members of their Amphibian and Reptile Subcommittee and Invasive Species Committee. AFWA stated its position that the Service should not finalize the rule for any of the large constrictor snakes. Specifically, AFWA stated, among other things, that a national rule may not be warranted; that it is the States' responsibility to manage species that occur within their borders, including minimizing impacts to native species; that States have the right to enact and enforce laws and regulations that are more stringent than Federal laws and regulations, as they see fit; that Federal regulations that create undue burdens on State fish and wildlife agencies should be avoided; and that listing the constrictor snakes as injurious might not achieve the desired result due to unintended consequences, such as people releasing the constrictors into the wild. As an alternative, AFWA promoted State action, such as Florida's “Reptiles of Concern” regulations, that, in partnership with stakeholders, AFWA believes would both discourage non-serious snake owners from purchasing new reptile pets as well as better regulate the industry. AFWA stated that Florida's regulations could serve as a model for development of industry-wide standards or enforceable best practices.
The Service recognizes that the States can enact their own, more stringent laws and that a Lacey Act listing does not preclude this, although States may have less ability to regulate importation into their States. However, AFWA's position is that it represents the collective interests of the States on this issue; that the Service could allow the States to take action, including regulatory action; that the Federal government could instead focus on financial support for risk analysis combined with early detection and rapid response programs; and that these actions could be more effective at preventing the establishment of constrictor snakes than Federal listing. Given the unique circumstances of the boa constrictor, we believe that, particularly for States where the risk of establishment is high, State action for the boa constrictor that effectively reduces the risk of escape and establishment, such as regulating possession, sale, intrastate transport, or breeding, could provide sufficient and even stronger protection than Federal listing as injurious under the Lacey Act. State laws that prohibit importation prevent the further spread of boa constrictors into States where they do not currently occur and reduce the chances of establishment by limiting additional importations in States where they do already occur. Laws such as Florida's regulations applicable to Conditional Reptiles (such as for Burmese pythons) restrict personal possession, while Hawaii prohibits both possession and importation. The Service agrees, as AFWA suggests, that State regulations, such as Florida's (for Burmese pythons) or Hawaii's, could serve as models for State laws, industry-wide standards, or enforceable best practices.
The Pet Industry Joint Advisory Council (PIJAC) also submitted comments on the proposed rule in both 2010 and 2014, although its 2014 comments were not related to the issues discussed here. PIJAC states that its mission is to promote responsible pet ownership and animal welfare, foster environmental stewardship, and ensure the availability of pets. PIJAC, through their comments, encouraged the Service to explore other alternatives to the proposed listing of the large constrictors. PIJAC stated that, in communications with the Department of the Interior, the Small Business Administration, and State agencies, they believe that opportunities exist for the Federal Government to work with the States and the industry to develop an alternative approach to large constrictor management and that they are prepared to work on this process. The Service has worked with PIJAC on several national campaigns to promote responsible ownership of nondomesticated animals and thus knows that such campaigns can be effective in promoting responsible use of wildlife that could be harmful if they escaped or are released to the wild.
For all of the reasons explained above, the Service has decided to withdraw its March 12, 2010 (75 FR 11808), proposal to list the boa constrictor in favor of a novel and experimental approach. The boa constrictor has already been imported in large numbers into the United States and is owned by hobbyists, commercial breeders, and pet owners in large numbers throughout the United States, except where prohibited by State law. AFWA, representing the State fish and wildlife agencies, has asserted that instead of listing the constrictor snakes as injurious, the Service could allow States to use their regulatory and management authorities to regulate activities with these species.
This action gives additional States, such as Florida, the opportunity to demonstrate the efficacy of coordinated, State-based measures to address the invasive nature of boa constrictors, including promulgating their own laws regarding the species. We are also providing the pet trade industry with the opportunity to act voluntarily within its own industry and in cooperation with the States, the Service, and others to address prevention and containment of the boa constrictor as an alternative to Federal Lacey Act restrictions. PIJAC and other industry groups can work with boa constrictor owners to develop practices to prevent escape or release into the environment and options for finding homes for unwanted animals as an alternative to release to the wild.
The Service recognizes that this is an untested approach and will monitor whether States and industry groups put in place effective measures to prevent the escape or release and establishment of boa constrictors. If States and industry groups in regions where the risk of boa constrictor survival and establishment in the wild is high fail to take appropriate actions, or if these State and industry-based measures prove ineffective, we may again evaluate whether listing the boa constrictor as injurious under the Act is appropriate.
Under the Lacey Act, the Secretary of the Interior is authorized to prescribe by regulation those wild mammals, wild birds, fish, mollusks, crustaceans, amphibians, reptiles, and the offspring or eggs of any of the foregoing that are injurious to human beings, to the interests of agriculture, horticulture, or forestry, or to the wildlife or wildlife resources of the United States. We have determined that the reticulated python, DeSchauensee's anaconda, green anaconda, and Beni anaconda are injurious and should be listed under the Lacey Act.
Reticulated pythons have been found in the wild in Florida and Puerto Rico, as well as several other States. Several green anacondas have also been found in the wild in Florida. These species fit the circumstances where regulatory provisions of the Lacey Act are likely to be effective. The threat posed by the reticulated python and the three anacondas will be explained in detail below under Factors that Contribute to Injuriousness for Reticulated Python and each of the other species.
The USGS risk assessment used a method called “climate matching” to estimate those areas of the United States exhibiting climates similar to those experienced by the species in their respective native ranges (Reed and Rodda 2009). Considerable uncertainties exist about the native range limits of many of the giant constrictors, and a myriad of factors other than climate can influence whether a species could establish a population in a particular location. Nonetheless, this method represents the most accurate means to predict and anticipate where a nonnative species may be able to survive and establish populations within the United States (Bomford
Some interested parties, including other scientists such as Pyron
• Pyron
• Additionally, the authors eliminated four data points of blood pythons (
• Information theory suggests 10 parameters as the appropriate number to use in a study like this; the Pyron
• The newer USGS paper highlights the statistical dangers inherent in indiscriminately searching for correlations among a large number of possible parameters.
• Factors other than climate may limit a species' native distribution, including the existence of predators, diseases, and other local factors (such as major terrain barriers), which may not be present when a species is released in a new country. Therefore, the areas at risk of invasion often span a climate range greater than that extracted mechanically from the native range boundaries, as was done by Pyron
Rodda
While we acknowledge that uncertainty exists, these tools also serve as a useful predictor to identify vulnerable ecosystems at risk from injurious wildlife prior to the species actually becoming established (Lodge
The record cold temperatures in south Florida during January of 2010 produced the coldest 12-day period since at least 1940, according to the National Weather Service in Miami (NOAA 2010). A record low was set for 12 consecutive days with the temperature at or below 45 °F (Fahrenheit; 7.2 °C (Celsius)) in West Palm Beach and Naples. Other minimum temperatures for that period were broken in Moorehaven, tied in Fort
Two studies by scientists from several research institutions, including the University of Florida, studied the effects of the 2010 winter cold weather on Burmese pythons. These studies are relevant to the four species in this final rule because, like the Burmese python, the four species are poikilothermic (body temperature varies with surrounding temperature, also known as cold-blooded). Snakes typically maintain their body temperatures within thermal tolerance limits (ectothermy) through their behaviors (thermoregulation; Dorcas
Thus, the reptiles seek locations (even small refugia) that can help them maintain a comfortable body temperature. In Mazzotti
Dorcas
A study that used air temperatures to predict that Burmese pythons would not likely expand to or colonize more temperate areas of Florida and adjoining States (Jacobson
Another paper that reviewed the effects of cold weather on Burmese pythons does not appear to introduce any new data that can be used to answer questions of temperature tolerances (Engeman
The only comparably large native reptile in the southeastern United States, the American alligator (
The alligator study shows that even individual reptiles of the same species (juveniles compared to adults) may have different abilities to survive. Such reasoning could be applied to large constrictors. In Dorcas
Scientists continue to learn more about the adaptability of constrictor snakes. Whereas salinity had been suggested to be a limiting factor in the distribution of reptiles in coastal habitats, such as the Florida Keys (Dunson and Mazzotti 1989), a later study disproved that. Hart
Another study sought to explain why Burmese pythons became such successful invaders in Florida (Reed
The Service and Everglades National Park asked USGS to assess the risk of invasion of nine species of snakes to assist in the Service's determination of injuriousness. Of the nine large constrictor snakes assessed by Reed and Rodda (2009) (Burmese python (which Reed and Rodda refer to as Indian python), reticulated python, Northern African python, Southern African python, boa constrictor, yellow anaconda, DeSchauensee's anaconda, green anaconda, and Beni anaconda), five were shown to pose a high risk to the health of the ecosystem, including the Burmese python, Northern African python, Southern African python, yellow anaconda, and boa constrictor. The remaining four large constrictors—the reticulated python, green anaconda, Beni anaconda, and DeSchauensee's anaconda—were shown to pose a medium risk. None of the large constrictors that the USGS assessed was classified as low overall risk. A rating of low overall risk is considered as acceptable risk and the organism(s) of little concern (ANSTF 1996). See Lacey Act Evaluation Criteria, below, for an explanation of how USGS assessed risk.
There is a medium risk that the four large constrictors evaluated in this final rule, if they escape or are released into the wild, will establish populations within their respective thermal and precipitation limits due to common life-history traits that make them successful invaders. These traits include being habitat generalists (able to utilize a wide variety of habitats) that are tolerant of urbanization and capacity to hunt and eat a wide range of size-appropriate vertebrates (reptiles, mammals, birds, amphibians, and fish; Reed and Rodda 2009). These large constrictors are highly adaptable to new environments and opportunistic in expanding their geographic range. Furthermore, since they are a novel (new to the system) predator at the top of the food chain, they can threaten the stability of native ecosystems by altering the ecosystem's form, function, and structure.
These four species are cryptically marked and often dwell in trees or submerged in water with only their heads protruding, which makes them difficult to detect in the field, complicating efforts to identify the range of populations or deplete populations through visual searching and removal of individuals. No currently available tools appear adequate for eradication of an established population of giant snakes once they have spread over a large area. Therefore, preventing the introduction into the United States and dispersal to new areas of these invasive species is of critical importance to the health and welfare of native wildlife.
For the purposes of this rule, a hybrid is any progeny from any cross involving parents of one or more species from the four constrictor snakes evaluated in this rule. Such progeny are likely to possess the same biological characteristics of the parent species that, through our analysis, leads us to find that they are injurious to humans and to wildlife and wildlife resources of the United States. Anderson and Stebbins (1954) stated that hybrids may have caused the rapid evolution of plants and animals under domestication, and that, in the presence of new or greatly disturbed habitats, some hybrid derivates would have been at a selective advantage. Facon
Furthermore, snakes in general have been found to harbor ticks (such as the nonnative African tortoise tick) that cause heartwater disease (from the bacterium
The regulations contained in 50 CFR part 16 implement the Act. Under the terms of the Act, the Secretary of the Interior is authorized to prescribe by regulation those wild mammals, wild birds, fish, mollusks, crustaceans, amphibians, reptiles, and the offspring or eggs of any of the foregoing that are injurious to human beings, to the interests of agriculture, horticulture, or forestry, or to the wildlife or wildlife resources of the United States. The lists of injurious wildlife species are found at 50 CFR 16.11-16.15.
In this final rule, we evaluated each of the four constrictor snake species individually and determined each to be injurious and appropriate for listing. Therefore, as of the effective date of the listing (see
We used the Lacey Act Evaluation Criteria as a guide to evaluate whether a species does or does not qualify as injurious under the Act. The analysis developed using the criteria serves as a basis for the Service's regulatory decision regarding injurious wildlife species listings. A species does not have to be established, currently imported, or present in the wild in the United States for the Service to list it as injurious. The objective of such a listing is to prevent that species' importation and likely establishment in the wild, thereby preventing injurious effects consistent with 18 U.S.C. 42.
For the four constrictor snakes analyzed in this final rule, the primary pathway for the entry into the United
A typical pathway of a large constrictor snake includes a pet store. Often, a person will purchase a hatchling snake (0.55 m (22 inches (in)) at a pet store or reptile show for as little as $25. The hatchling grows rapidly, even when fed conservatively, so a strong escape-proof enclosure is necessary. All snakes are adept at escaping, and constrictors are especially powerful when it comes to breaking out of cages. In captivity, they are most frequently fed pre-killed mice, rats, rabbits, and chickens. A tub of fresh water is needed for the snake to drink from and soak in. As it outgrows its tub, the snake will need to soak in increasingly larger containers, such as a bathtub. Under captive conditions, pythons and anacondas will grow very fast. After 1 year, a python may be 2 m (7 ft) and after 5 years it could be 7.6 m (25 ft), depending on how often it is fed and other aspects of husbandry. A female reticulated python, for example, can grow to more than 8.7 m (28.5 ft) long, weigh 140 kilograms (kg) (308 pounds (1bs)) or more, live more than 25 years, and must be fed larger prey, such as rabbits. Although the reticulated python is longer, the anaconda is the heaviest snake, with a 4-m (13-ft) green anaconda having bulk comparable to a 7-m (23-ft) reticulated python.
Owning a giant snake is a difficult, long-term, and somewhat expensive responsibility. This is one reason that some snakes are released by their owners into the wild when they can no longer care for them. Other snakes may escape from inadequate enclosures, which is a common pathway for large constrictor snakes to enter the ecosystem (Fujisaki
Of all the constrictor snake species imported into the United States, the selection of nine constrictor snakes for evaluation as injurious wildlife in the March 12, 2010, proposed rule (75 FR 11808) was based on concern over the giant size of these particular snakes combined with their quantity in international trade or their potential for trade. The world's four largest species of snakes (Burmese python, Northern African python, reticulated python, and green anaconda) were selected, as well as similar and closely related species and the boa constrictor. These large constrictor snakes constitute an elevated risk of injuriousness in relation to those taxa with lower trade volumes; are massive, with maximum lengths exceeding 6 m (20 ft; except for boas up to 4 m (13 ft)); and have a high likelihood of establishment in various habitats of the United States. The DeSchauensee's and Beni anacondas exhibit many of the same biological characteristics associated with a risk of establishment and negative effects in the United States.
The strongest factor influencing the chances of these large constrictors establishing in the wild are the number of release events and the numbers of individuals released (Bomford
The release of many individuals into one location essentially functions as a source pool of immigrants, thus sustaining an incipient population even if the initial release was of insufficient size (or badly timed) to facilitate long-term establishment. Natural disasters, such as Hurricane Andrew in 1992, may have provided a mechanism for the accidental release of snakes, especially in light of large numbers of juvenile pythons frequently held by breeders and importers prior to sale and distribution (Willson
Large or consistent releases of individuals into one location may enable the incipient population to overcome behavioral limitations or other problems associated with small population sizes. This is likely the case at Everglades National Park, where the core nonnative Burmese python population in Florida is now located.
Because all four snakes in this final rule share traits that foster intentional or unintentional release events, allowing unregulated importation and interstate transport of these nonnative snakes will increase the risk of these species becoming established through increased opportunities for release. The release of large constrictor snakes at different times and locations improves, in turn, the chance of their successful establishment.
As a first step in understanding the ecology of these snakes and their potential impact on the Everglades ecosystem, the National Park Service began tracking Burmese pythons using radio-telemetry in the fall of 2005. The radio-tagged pythons have since demonstrated that female pythons make few long-distance movements throughout the year, while males roam widely in search of females during the breeding season (December-April). These results indicate an ability to move long distances in search of prey and mates. Pythons also have a “homing” ability. After being released far from where they were captured, they returned long distances (up to 78 kilometers (km); 48 miles (mi)) in only a few months. These findings suggest that pythons searching for a suitable home range have the potential to colonize areas far from where they were released (Snow 2008; Harvey
A second factor that is strongly and consistently associated with a species becoming invasive is a history of the species successfully establishing elsewhere outside its native range. We have no documentation of reticulated pythons or the three anacondas being invasive elsewhere in the world. However, this lack of data could be the result of the lack or low volume of these species being imported into other countries that have similar climatic conditions as the species' native range.
A third factor strongly associated with establishment success is having a good climate or habitat match between where the species naturally occurs and where it is introduced. Exotic (nonnative) reptiles and amphibians have a greater chance of establishing if they are introduced to an area with a climate that closely matches that of their original range. Species that have a large range over several climatic zones are predicted to be strong future invaders. The suitability of a country's climate for the establishment of a species can be quantified on a broad scale by measuring the climate match between that country and the geographic range of a species. Climate matching sets the broad parameters for determining if an area is suitable for a nonnative large constrictor snake to establish.
These three factors have all been consistently demonstrated to increase the chances of establishment by all invasive vertebrate taxa, including the four large constrictor snakes in this final rule (Bomford 2008, 2009). However, as stated above, a species does not have to be established, currently imported, or present in the wild in the United States for the Service to determine that it is injurious. The objective of such a listing is to prevent that species' importation, release into the wild, survival, and likely establishment in the wild, thereby preventing injurious effects consistent with 18 U.S.C. 42.
Although native range boundaries are disputed, reticulated pythons conservatively range across much of Southeast Asia (Reed and Rodda 2009). They are found from sea level up to more than 1,300 m (4,265 ft) and inhabit lowland primary and secondary tropical wet forests, tropical open dry forests, tropical wet montane forests, rocky scrublands, swamps, marshes, plantations and cultivated areas, and suburban and urban areas. Reticulated pythons occur primarily in areas with a wet tropical climate. Although they also occur in areas that are seasonally dry, reticulated pythons do not occur in areas that are continuously dry or very cold at any time (Reed and Rodda 2009).
Three scientific names are mainly associated with the reticulated python:
The reticulated python is most likely the world's longest snake. Adults can grow to a length of more than 8.7 m (28.5 ft) (Reed and Rodda 2009), with a report of one in the Philippines at 10 m (32.8 ft) (Headland and Greene 2011). The maximum reported weight is 150 kg (330 lb) (Reed and Rodda 2009). As with all snakes, pythons can grow throughout their lives (Reed and Rodda 2009).
Like all pythons, the reticulated python is oviparous (lays eggs). The clutch sizes range from 8 to 124, with typical clutches of 20 to 40 eggs. Recently, this species was documented to reproduce by parthenogenesis (egg develops without fertilization by a male) when an 11-year-old female laid a clutch of 61 eggs without a male present for more than 2 years (Booth
Reticulated pythons are extremely capable predators. Like all of the large constrictors, they are cryptically colored. In general, constrictor snakes have especially strong musculature, which enables them to hold onto struggling live prey almost as large as themselves. The giant size of reticulated pythons makes them especially strong, and, combined with their streamlined shape, makes them remarkably adept at climbing, passing through dense brush, and even swimming.
Reticulated pythons are primarily silent hunters that lie in wait along pathways used by their prey and then ambush them; the pythons kill by wrapping their muscular bodies around their victims, squeezing tighter as the prey exhales until the victims suffocate. The methods of predation used by the reticulated python (whether sit-and-wait or actively hunting, or whether diurnal or nocturnal), as well as the other three species of large constrictor snakes in this final rule, work as well in their native ranges as in the United States. The reticulated python is an opportunistic predator capable of preying on a wide range of species, including chickens, rats, monitor lizards, civet cats, bats, an immature cow, various primates, deer, wild boars, goats, cats, dogs, ducks, rabbits, tree shrews, porcupines, frogs, fish, and many species of wild birds (Reed and Rodda 2009). Prey size is roughly correlated with the python's body size, with young or small pythons eating small prey and larger pythons eating larger prey.
Reticulated pythons frequently swim in waterways, where they hunt for aquatic prey. Waterways also facilitate the pythons' dispersal to new areas. Smaller pythons can also climb trees to prey on arboreal animals, avoid predators, and thermoregulate.
A host of internal and external parasites plague wild reticulated pythons (Auliya 2006). The pythons in general are hosts to various protozoans, nematodes, ticks, and lung arthropods (Reed and Rodda 2009). Captive reticulated pythons can carry ticks of agricultural significance (potential threat to domestic livestock) (Burridge
The reticulated python can be an aggressive and dangerous species. Reed and Rodda (2009) cite numerous sources of people being bitten, attacked, and even killed by reticulated pythons in their native range. However, the only occurrences of human fatalities in the United States from reticulated pythons were caused by captive specimens. Outside of the United States, such as in the Philippines, reticulated pythons have been reported to kill and even
DeSchauensee's anaconda is known from a small number of specimens and has a limited range in northeast South America. As currently understood, the “yellow anacondas” comprise two species with entirely disjunct distributions (Reed and Rodda 2009). The northern form, DeSchauensee's anaconda (
The DeSchauensee's anaconda is largely confined to the Brazilian island of Marajó, nearby areas around the mouth of the Amazon River, and several drainages in French Guiana. Although not well studied, DeSchauensee's anaconda apparently prefers swampy habitats that may be seasonally flooded. DeSchauensee's anaconda is known from only a few localities in northeast South America, and its known climate range is accordingly very small. While the occupied range exhibits moderate variation in precipitation across the year, annual temperatures tend to range between 25 °C (77 °F) and 30 °C (86 °F). We do not know whether the species could tolerate greater climatic variation.
DeSchauensee's anaconda appears to be the smallest of the anacondas, although the small number of available specimens does not allow unequivocal determination of maximal body sizes. Dirksen and Henderson (2002) record a maximum total length of available specimens as 1.92 m (6.3 (ft)) in males and 3.0 m (9.8 (ft)) in females.
In captivity, a DeSchauensee's anaconda was reported to live for 17 years, 11 months (Snider and Bowler 1992). The DeSchauensee's anaconda is live-bearing. Clutch sizes of DeSchauensee's anacondas ranged from 3 to 27 (mean 10.6 ± 9.6) in a sample of five museum specimens (Pizzatto and Marques 2007), a range far greater than reported in some general works (for example, three to seven offspring; Walls 1998).
DeSchauensee's anaconda is reported to consume mammals, fish, and birds, and its overall diet is assumed to be similar to that of the yellow anaconda (Reed and Rodda 2009). DeSchauensee's anacondas frequently swim in waterways, where they hunt for aquatic prey. Anacondas appear to use rivers to disperse (McCartney-Melstad 2012). Smaller anacondas can also climb trees to prey on arboreal animals, avoid predators, and thermoregulate.
The native range of green anaconda includes aquatic habitats in much of South America below 850 m (2,789 ft) elevation plus the insular population on Trinidad, encompassing the Amazon and Orinoco Basins; major Guianan rivers; the San Francisco, Parana, and Paraguay Rivers in Brazil; and extending south as far as the Tropic of Capricorn in northeast Paraguay. The range of green anaconda is largely defined by availability of aquatic habitats. Depending on location within the wide distribution of the species, these appear to include deep, shallow, turbid, and clear waters, and both lacustrine and riverine habitats (Reed and Rodda 2009).
Reed and Rodda (2009) describe the green anaconda as truly a giant snake, having a very stout body and fairly reliable records of lengths over 7 m (23 ft). The females typically outweigh the males. Very large anacondas are almost certainly the heaviest snakes in the world, ranging up to 200 kg (441 lb) (Bisplinghof and Bellosa 2007), even though reticulated pythons, for example, may attain greater lengths (Reed and Rodda 2009).
The green anaconda bears live young. The maximum recorded litter size is 82, removed from a Brazilian specimen, but the typical range is 28 to 42 young. Neonates (newly born young) are around 70 to 80 centimeters (cm) (27.5 to 31.5 inches (in)) long and receive no parental care. As with all the large constrictor snakes, hatchlings can fall prey to other animals. If they survive, they grow rapidly until they reach sexual maturity in their first few years (Reed and Rodda 2009). While reproduction is typically sexual, Reed and Rodda (2009) report that a female green anaconda that was kept in captivity for 26 years with no access to males gave birth to 23 females. This raises the possibility that green anacondas are facultatively parthenogenetic, and that, theoretically, a single female green anaconda could establish a population.
The green anaconda is considered a top predator in South American ecosystems. Small anacondas appear to primarily consume birds, and as they grow larger, they shift to eating larger mammals and reptiles. The regular inclusion of fish in the diet of all anacondas increases their dietary niche breadth in relation to the other large constrictors, which rarely consume fish. Green anacondas consume a wide variety of endotherms (so-called warm-blooded animals) and ectotherms from higher taxa, including such large prey as deer and crocodilians (alligators are a type of crocodilian). The regular inclusion of fish, turtles, and other aquatic organisms in their diet increases their range of prey even beyond that of reticulated or Burmese pythons. Vertebrate animals that regularly inhabit aquatic habitats are likely to be most commonly consumed by green anacondas (Reed and Rodda 2009). Green anacondas would have a ready food supply anywhere that the climate and habitat matched their native range. Since green anacondas are known to prey upon crocodilians, they could potentially prey on alligators, which are common in the southeastern United States.
Green anacondas frequently swim in waterways, where they hunt for aquatic prey. Anacondas appear to use rivers to disperse (McCartney-Melstad 2012). Smaller anacondas can also climb trees to prey on arboreal animals, avoid predators, and thermoregulate.
The Beni anaconda is a recently described and poorly known anaconda closely related to the green anaconda (Reed and Rodda 2009). The native range of the Beni anaconda is the Itenez-Guapore River in Bolivia along the border with Brazil, as well as the Baures River drainage in Bolivia. The green and Beni anacondas are similar in size, and the range of the Beni anaconda is within the range of the green anaconda (Bolivia).
Beni anacondas frequently swim in waterways, where they hunt for aquatic prey. Anacondas appear to use rivers to disperse (McCartney-Melstad 2012). Smaller anacondas can also climb trees to prey on arboreal animals, avoid predators, and thermoregulate.
Of the four constrictor snake species that we are listing as injurious in this final rule, two have been reported in the wild in the United States, but none have been confirmed as reproducing in the wild in the United States (see
We use the criteria below to evaluate whether a species does or does not qualify as injurious under the Lacey Act, 18 U.S.C. 42. The analysis that is developed using these criteria serves as a general basis for the Service's decision regarding injuriousness (not just for the four snake species we are listing in this final rule). Biologists within the Service who are knowledgeable about a species being evaluated assess both the factors that contribute to and the factors that reduce the likelihood of injuriousness.
(1) Factors that contribute to being considered injurious:
• The likelihood of release or escape;
• Potential to survive, become established, and spread;
• Impacts on wildlife resources or ecosystems through hybridization and competition for food and habitats, habitat degradation and destruction, predation, and pathogen transfer;
• Impact to endangered and threatened species and their habitats;
• Impacts to human beings, forestry, horticulture, and agriculture; and
• Wildlife or habitat damages that may occur from control measures.
(2) Factors that reduce the likelihood of the species being considered as injurious:
• Ability to prevent escape and establishment;
• Potential to eradicate or manage established populations (for example, making organisms sterile);
• Ability to rehabilitate disturbed ecosystems;
• Ability to prevent or control the spread of pathogens or parasites; and
• Any potential ecological benefits to introduction.
To obtain some of the information for the above criteria, we referred to Reed and Rodda (2009). Reed and Rodda (2009) developed the Organism Risk Potential scores for each species using a widely utilized risk assessment procedure that was published by the Aquatic Nuisance Species Task Force (ANSTF), called “Generic nonindigenous aquatic organisms risk analysis review process (for estimating risk associated with the introduction of nonindigenous aquatic organisms and how to manage that risk)” (ANSTF 1996). The ANSTF was created under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4701
The ANSTF (1996) procedure incorporates four factors associated with probability of establishment and three factors associated with consequences of establishment, with the combination of these factors resulting in an overall Organism Risk Potential (ORP) for each species. For the four constrictor snakes in this final rule, the overall potential risk of establishment was medium.
Certainties were highly variable within each of the seven elements or factors of the risk assessment mentioned above, varying from very uncertain to very certain. In general, the highest certainties are associated with species unequivocally established in new ranges because of enhanced ecological information on these species from studies in both their native range and in Florida. The way in which these subscores are obtained and combined is set forth in an algorithm created by the ANSTF (Table 2).
Similar algorithms are used for deriving the primary subscores from the secondary subscores. However, the scores are fundamentally qualitative, in the sense that there is no unequivocal threshold that is given in advance to determine when a given risk passes from being low to medium, and so forth. Therefore, we viewed the process as one of providing relative ranks for each species. Thus, a high ORP score indicates that such a species would likely entail greater consequences or greater probability of establishment than would a species whose ORP was medium or low (that is, high > medium > low). Medium-risk species include the four species being designated as injurious by this rulemaking: Reticulated python, DeSchauensee's anaconda, green anaconda, and Beni anaconda. Medium-risk species, if established in this country, would put portions of the U.S. mainland, Hawaii, and insular territories at risk and constitute a great potential ecological threat. As stated above, we use this information in our evaluation to determine if a species meets the criteria of being injurious, but it is not the only information we use. The following sections on “Factors That Contribute to Injuriousness * * *” and “Factors That Reduce or Remove Injuriousness * * *” explain how we arrived at our determinations of injuriousness for each species.
In Florida, reticulated pythons have been observed or removed from Bradenton, Clearwater, Miami, Sebastian, and Vero Beach. For example, a 5.5-m (18-ft) reticulated python was struck by a person mowing grass along a canal in Vero Beach in 2007, and a reticulated python was removed along Roseland Road in Sebastian (B. Dangerfield, pers. comm. 2010). In the Commonwealth of Puerto Rico, reticulated pythons have been collected in the western region of the island (Aguadilla and Mayaguez), and the southern region of the island (Guayama), including a 5.5-m (18-ft) long specimen (J. Saliva, pers. comm. 2009).
Media accounts from 1980 to 2014 report that reticulated pythons have escaped captivity or were spotted in the wild in the following States: California, Florida, Illinois, Kansas, Maine, New Jersey, Ohio, Pennsylvania, Washington, and West Virginia (HSUS 2014). This illustrates that the potential for release or escape is not confined to Florida and Puerto Rico but could occur in many States. The States listed were merely the ones for which we have reports. Other occurrences may not have been reported or the species not identified. See
The likelihood that a reticulated python will be released or will escape from captivity is high as evidenced by a number of reports as discussed above in
Reticulated pythons are highly likely to prey on U.S. native species, including endangered and threatened species where present. Their natural diet includes mammals, birds, reptiles, and fish. An adverse effect of reticulated python on endangered and threatened species is likely to be moderate to high.
Native fauna have no experience defending against such a novel, giant predator as the reticulated python. As discussed above under
Unlike prey species in the reticulated python's native range, none of our native species has evolved defenses to avoid predation by such a large snake. Thus, native wildlife in the United States where reticulated pythons exist would be very likely to fall prey to the pythons (or any of the other three constrictor snakes we are listing in this rule). At all life stages, reticulated pythons can and will compete for food with native species; in other words, baby pythons will eat small prey, and the size of their prey will increase as the pythons grow. Once reticulated pythons are introduced and established, they may outcompete native predators (such as the federally protected Florida panther, eastern indigo snake, native boas, and hawks), feeding on the same prey and thereby reducing the supply of prey for the native predators.
Reticulated pythons are generalist predators that consume a wide variety of mammal and bird species, as well as reptiles, amphibians, and occasionally fish. This constrictor can easily adapt to prey on novel wildlife (species that they are not familiar with), and they need no special adaptations to hunt, capture, and consume them.
The United States, particularly the Southeast, has a diverse faunal
Reticulated pythons are also likely to decrease the populations of numerous potential candidate animals for Federal protection by hunting and eating them. Candidate species are plants and animals for which the Service has sufficient information on their biological status and threats to propose them as endangered or threatened under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The final environmental assessment for the four species in this final rule (Final Environmental Assessment 2015) includes lists of species that are federally or State endangered or threatened in some climate-suitable States and territories: Florida, Hawaii, Guam, Puerto Rico, and the Virgin Islands. Other States have federally or State endangered or threatened species that would be suitable prey for large, nonnative constrictor snakes, including the reticulated python. These lists include only the species of the sizes and types that would be expected to be directly affected by predation by reticulated pythons and the other large, nonnative constrictors. For example, plants and marine species are excluded. In Florida, 13 bird species, 15 mammals, and 2 reptiles that are federally endangered or threatened could be preyed upon by reticulated pythons or be outcompeted by them for prey. Hawaii has 34 bird species and 1 mammal that are federally endangered or threatened that would be at risk of predation. Puerto Rico has 9 bird species and 10 reptile species that are federally endangered or threatened that would be at risk of predation or competition for prey. The Virgin Islands has one bird species and three reptiles that are federally endangered or threatened that would be at risk of predation or competition for prey. Guam has seven bird species and two mammals that are federally endangered or threatened that would be at risk of predation.
According to the climate suitability maps (Reed and Rodda 2009), endangered and threatened species from parts of Florida, southern Texas, Hawaii, and Puerto Rico would be at risk from the establishment of reticulated pythons. In addition, Guam, the U.S. Virgin Islands, and other territories would have suitable habitat and climate to support reticulated pythons, and these also have federally endangered and threatened species that would be at risk if reticulated pythons became established.
Like all pythons, reticulated pythons are nonvenomous. The reticulated python can be an aggressive and dangerous species of giant constrictor to humans. Reed and Rodda (2009) cite numerous sources of people being bitten, attacked, and killed by reticulated pythons in their native range. Headland and Greene (2011) determined that 26 percent of a segment of hunter-gatherer Filipinos had been attacked by reticulated pythons, some fatally. The only human deaths in the United States from reticulated pythons that we are aware of were from captive snakes (in Indiana, Iowa, Kentucky, Louisiana, Nevada, Texas, and Virginia; HSUS 2014). An established population of reticulated pythons would be expected to create the greatest public safety risk of all large constrictor snakes evaluated.
Captive reticulated pythons can carry ticks of agricultural significance (potential threat to domestic livestock) in Florida (Burridge
The introduction or establishment of reticulated pythons would likely have negative impacts on humans primarily from the loss of native wildlife biodiversity and as carriers of livestock diseases, as discussed above. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health.
Eradication, management, or control of the spread of reticulated python will be highly unlikely once the species is established. No effective tools are currently available to detect and remove large, nonnative constrictor populations. Traps with drift fences or barriers are the best option, but their use on a large scale is prohibitively expensive. Additionally, some areas cannot be effectively trapped due to the expanse of the area and type of terrain, the distribution of the target species, and the effects on any nontarget species (that is, trapping native wildlife). While the Department of the Interior, USDA Animal and Plant Health Inspection Service (APHIS), and State of Florida entities have conducted some research on control tools, no currently available tools are adequate for eradication of an established population of large, nonnative constrictor snakes, such as the reticulated python, once they have spread over a large area.
Efforts to eradicate large, nonnative constrictor snakes in Florida have intensified to keep the expansion to a minimum as species are reported in new locations across the State. Natural resource management agencies are expending scarce resources to devise methods to capture or otherwise control any large, nonnative constrictor snake species. These agencies recognize that control of large constrictor snakes (as major predators) on lands that they manage is necessary to prevent the likely adverse impacts to the ecosystems occupied by the invasive snakes.
The final economic analysis was prepared for the four constrictor snakes that are the subjects of this final rule (USFWS 2015) and provides the following information about the expenditures for research and eradication in Florida, primarily for Burmese pythons, which provides some indication of the efforts to date. Control methods used for Burmese pythons may also be applied to other large constrictor snakes. The Service spent more than $600,000 over a 3-year period (2007-2009) on python trap design, deployment, and education in the Florida Keys to prevent the potential extinction of the endangered Key Largo woodrat (
Kraus (2009) exhaustively reviewed the literature on invasive herpetofauna. While he found a few examples of local populations of amphibians that had been successfully eradicated, he found no such examples for reptiles. He also states that, “Should an invasive [nonnative] species be allowed to spread widely, it is usually impossible—or at best very expensive—to eradicate it.” The reticulated python is unlikely to be one of those species that could be eradicated. Witmer and Fuller (2011) also found no reports of eradications of introduced reptiles in the United States.
Eradication will almost certainly be unachievable for a species that is hard to detect and remove at low densities, which is the case with all of the four large constrictor snakes that are the subjects of this final rule. They are well-camouflaged and stealthy, and, therefore, nearly impossible to see in the wild. Most of the protective measures available to prevent the escape of reticulated pythons are currently (and expected to remain) cost-prohibitive and labor-intensive. Even with protective measures in place, the risks of accidental escape are not likely to be eliminated. Since effective measures to prevent the establishment or eradicate, manage, or control the spread of established populations of the reticulated python are not currently available, the ability to rehabilitate or recover ecosystems disturbed by the species is low.
While the introduction of reticulated pythons could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to reticulated pythons as a food source. However, juvenile snakes could fall prey to native wildlife such as alligators, raccoons, coyotes, and birds of prey. In addition, a large constrictor snake could prey on other nonnative species such as green iguanas, feral hogs, and black rats. The risks to native wildlife greatly outweigh these unlikely benefits. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of reticulated pythons.
The reticulated python can grow to a length of more than 8.7 m (28.5 ft); this is longer than any native, terrestrial animal in the United States and at least as long as any snake species in the world. Native fauna have no experience defending against this type of novel, giant predator. Several captive reticulated pythons have lived for nearly 30 years. The reticulated python can be an aggressive and dangerous species to humans. An established population of reticulated pythons would be expected to create the greatest public safety risk from all large constrictor snakes evaluated. Reticulated pythons can carry ticks of agricultural significance (potential threat to domestic livestock).
Because reticulated pythons are likely to escape from captivity or be released into the wild if imported; are likely to survive, become established, and spread if they escape captivity or are released into areas of the United States that have suitable climate and habitat; are likely to prey on and compete with native species for food and habitat (including endangered and threatened species); are likely to be disease vectors for livestock or native wildlife; cannot be easily eradicated, prevented from establishing, or reduced from large populations or new locations; and are likely to disturb ecosystems beyond the point of recoverability, the Service finds the reticulated python to be injurious to humans, agricultural interests, and wildlife and wildlife resources of the United States.
We do not know of any occurrences of the DeSchauensee's anaconda in the United States.
DeSchauensee's anacondas share similar traits with the other three species of constrictor snakes, although they are smaller. A smaller-sized constrictor may be more desirable to some potential pet owners who want a constrictor snake but do not want to handle the larger species, and thus DeSchauensee's anacondas may eventually be imported into the United States as an alternative species. Because DeSchauensee's anacondas possess the same traits as other large constrictor snakes, such as powerful musculature, streamlined body, and fast growth rate, this species is likely to escape or be released into the wild if imported into the United States. DeSchauensee's anacondas are highly likely to spread and become established in the wild due to common traits shared by many large constrictors, including: Rapid growth to a large size with production of many offspring; ability to survive under a range of habitat types and conditions (habitat generalist); ability to disperse long distances; and ability to conceal themselves and ambush prey.
Reed and Rodda's (2009) map identified no areas of the continental United States or Hawaii that appear to have precipitation and temperature profiles similar to those observed in the species' native range, although the southern margin of Puerto Rico and its out-islands (for example, Vieques and Culebra) appear suitable. However, we do not know whether the species' native distribution is limited by factors other than climate. Reed and Rodda (2009) extended the climate match globally, meaning they used the climate data from the native range and found that they matched other parts of the Amazon Basin and tropical areas of the world. This leads to the conclusion that climate
The DeSchauensee's anaconda would likely have a similar impact as the yellow anaconda, which we listed as injurious in 2012. DeSchauensee's anacondas eat mammals, fish, and birds in their native range and will prey on native species, including select endangered and threatened species if they become established in the United States. Anacondas employ both “ambush predation” and “wide-foraging” strategies (Reed and Rodda 2009). Endangered and threatened wildlife occupying the DeSchauensee's anaconda's preferred habitats would be at risk.
The DeSchauensee's anaconda is larger (reported to 3 m (9.8 ft)) than the largest snake native to the continental United States. See
Please also see
According to the climate suitability maps (Reed and Rodda 2009; Final Environmental Assessment 2015), endangered and threatened species from part of Puerto Rico would be at risk from the establishment of DeSchauensee's anacondas. In addition, the global climate match produced by Reed and Rodda (2009) showed a broader tropical range than that of the native range, and that other tropical areas of the world appear to be climatically similar. Because Guam, the U.S. Virgin Islands, and other U.S. territories are tropical, the climate may be suitable. Puerto Rico has 9 bird species and 10 reptile species that are federally endangered or threatened species that would be at risk if DeSchauensee's anacondas became established. Guam has seven bird species and two mammal species that are endangered or threatened that could be at risk of predation. The Virgin Islands has one bird species and three reptile species that are endangered or threatened that could be at risk of predation.
The introduction or establishment of DeSchauensee's anacondas would likely have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above in the discussion for the reticulated python. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health. Agricultural interests may be negatively affected by imported anacondas carrying ticks that transfer harmful pathogens to livestock.
Prevention, eradication, management, or control of the spread of DeSchauensee's anacondas will be highly unlikely. Please see the “
While the introduction of DeSchauensee's anacondas could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to DeSchauensee's anacondas as a food source. However, juvenile snakes could fall prey to native wildlife such as alligators, raccoons, coyotes, and birds of prey. In addition, a large constrictor snake could prey on other nonnative species such as green iguanas, feral hogs, and black rats. The risks to native wildlife greatly outweigh this unlikely benefit. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of DeSchauensee's anacondas.
DeSchauensee's anacondas are likely to establish and spread to suitable permanent surface-water areas because of their large size, high reproductive potential, early maturation, rapid growth, longevity, and generalist surprise-attack predation. DeSchauensee's anacondas are highly likely to survive in natural ecosystems of a small but vulnerable region of the United States, including the southern margin of Puerto Rico and its out-islands, U.S. Virgin Islands, Guam, and other U.S. islands.
Because DeSchauensee's anacondas are likely to escape captivity or be released into the wild if imported into the United States; are likely to survive, become established, and spread if they escape captivity or are released; are likely to prey on and compete with native species for food and habitat (including endangered and threatened species); cannot be easily eradicated, prevented from establishing, or reduced from large populations or new locations; and are likely to disturb ecosystems beyond the point of recoverability, the Service finds the DeSchauensee's anaconda to be injurious to humans and to the wildlife and wildlife resources of the United States.
An individual green anaconda (approximately 2.5 m (8.2 ft) total length) was found dead on U.S. 41 in the vicinity of Fakahatchee Strand Preserve State Park in Florida in December 2004 (Reed and Rodda 2009). Two medium-sized adults and a juvenile green anaconda were observed but not collected in this general area. A 3.65-m (12-ft) green anaconda was removed from East Lake Fish Camp in northern Osceola County, Florida, on January 13, 2010. This was the first live green anaconda to be caught in the wild in Florida (Florida Fish and Wildlife Conservation Commission 2010).
Green anacondas have escaped captivity or been released into the wild in Florida. They are likely to escape or be released because they can grow in captivity to enormous sizes (which makes them exceedingly powerful) and they must be fed a diet that could be prohibitively expensive. Green anacondas are likely to survive in the appropriate natural ecosystems of the United States. Much of peninsular Florida (roughly south of Gainesville) and extreme south Texas exhibit
Green anacondas will prey on native species, including endangered and threatened species, if they become established in the United States. They are primarily aquatic and eat a wide variety of prey, including fish, birds, mammals, and other reptiles. The size of the prey also varies, depending on the age of the snake, with baby anacondas able to eat small prey, and large anacondas able to eat larger prey, such as tapirs, peccaries, deer, sheep, and caimans (Reed and Rodda 2009).
The green anaconda is generally considered the heaviest snake in the world (reported to 200 kg (441 lb)), with lengths over 7 m (23 ft) (Reed and Rodda 2009), much larger than the largest snake native to the continental United States. See
According to the climate suitability maps (Reed and Rodda 2009; Final Environmental Assessment 2015), endangered and threatened species from parts of Florida, Hawaii, and most of Puerto Rico would be at risk from the establishment of green anacondas. Florida has 13 bird species, 15 mammals, and 2 reptiles that are federally endangered or threatened that could be preyed upon by green anacondas or be outcompeted by them for prey. Hawaii has 34 bird species and 1 mammal that are endangered or threatened that would be at risk of predation. Puerto Rico has 9 bird species and 10 reptiles that are federally endangered or threatened that would be at risk if green anacondas became established. Because Guam, the U.S. Virgin Islands, and other U.S. territories are tropical, the climate there also may be suitable. Guam has seven bird species and two mammal species that are endangered or threatened that would be at risk of predation. The Virgin Islands has one bird species and three reptile species that are endangered or threatened that would be at risk of predation.
The introduction or establishment of green anacondas would likely have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above in the discussion for the reticulated python. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health. Agricultural interests may be negatively affected by imported anacondas carrying ticks that transfer harmful pathogens to livestock.
Prevention, eradication, management, or control of the spread of green anacondas once established in the United States will be highly unlikely. Please see the “
While the introduction of green anacondas could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to green anacondas as a food source. However, juvenile snakes could fall prey to native wildlife such as alligators, raccoons, coyotes, and birds of prey. In addition, a large green anaconda could prey on other nonnative species, such as green iguanas, feral hogs, and black rats. The risks to native wildlife greatly outweigh these unlikely benefits. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of green anacondas.
The green anaconda is the world's heaviest snake. Large adults are heavier than almost all native, terrestrial predators in the United States, even many bears, and longer than all native wildlife. Native fauna have no experience defending themselves against this type of novel, giant predator. The range of the green anaconda is largely defined by the availability of aquatic habitats. These include deep and shallow, turbid and clear, and lacustrine and riverine systems. Most of these habitats are found in Florida, including the Everglades, which is suitable climate for the species, as well at Texas, Hawaii, and Puerto Rico. Green anacondas are top predators in South America, consuming birds, mammals, fish, and reptiles; prey size includes deer and crocodilians. This diet is even broader than the diet of Burmese and reticulated pythons. Evidence exists that female green anacondas may be facultatively parthenogenetic and could therefore reproduce even if a single female is released or escapes into the wild.
Because green anacondas are likely to escape or be released into the wild if imported into the United States (note that the green anaconda has already been found in the wild in Florida); are likely to survive, become established, and spread if they escape captivity or are released; are likely to prey on and compete with native species for food and habitat (including endangered and threatened species); cannot be easily eradicated, prevented from establishing, or reduced from large populations or new locations; and are likely to disturb ecosystems beyond the point of recoverability, the Service finds the green anaconda to be injurious to humans and to wildlife and wildlife resources of the United States.
We do not know of any occurrences of the Beni anaconda in the United States.
Beni anacondas are closely related to green anacondas. Because Beni anacondas share similar traits with
The Beni anaconda is known from few specimens in a small part of Bolivia, and Reed and Rodda (2009) judged the number of available localities to be insufficient for an attempt to delineate its climate space or extrapolate this space to the United States. Beni anacondas are known from sites with low seasonality (mean monthly temperatures in a narrow range of approximately 22.5 to 27.5 °C (72 to 77 °F), and mean monthly precipitation about 5 to 30 cm (2 to 12 in). Whether the species' native distribution is limited by factors other than climate is unknown as well as whether the small native range is attributable to ecological (for example, competition with green anacondas), or anthropogenic (for example, habitat loss) factors. If the native distribution is not limited by climate, then Reed and Rodda's (2009) qualitative estimate of the climatically suitable areas of the United States would represent an underprediction. As a component of the risk assessment, the Beni anaconda's colonization potential is described by Reed and Rodda (2009) as capable of survival in small portions of the mainland or on the United States' tropical islands (Hawaii, Puerto Rico, American Samoa, Guam, Northern Mariana Islands, Virgin Islands).
The Beni anaconda is highly likely to spread and become established in the wild due to its rapid growth to a large size, early maturation and high reproductive potential, a sit-and-wait style of predation, ability to survive under a range of habitat types and conditions (habitat generalist), behavior that allows it to escape freezing temperatures, adaptability to living in urban and suburban areas, ability to disperse long distances, and cryptic concealment.
Beni anacondas will prey on native species, including endangered and threatened species if they become established in the United States. They are primarily aquatic and eat a wide variety of prey, including fish, birds, mammals, and other reptiles. The size of the prey also varies, depending on the age of the snake, with baby anacondas able to eat small prey, and large anacondas able to eat very large prey. Anacondas employ both “ambush predation” and “wide-foraging” strategies (Reed and Rodda 2009). Endangered and threatened wildlife occupying the Beni anaconda's preferred habitats would be at risk.
The Beni anaconda is similar in size to the green anaconda, which is generally considered the heaviest snake in the world (Reed and Rodda 2009), much larger than the largest snake native to the continental United States. See
Florida has 13 bird species, 15 mammals, and 2 reptiles that are federally endangered or threatened that could be preyed upon by Beni anacondas or be outcompeted by them for prey; many of those protected species live in the warmest part of the State. Hawaii has 34 bird species, and 1 mammal that are endangered or threatened that would be at risk of predation. Puerto Rico has 9 bird species and 10 reptile species that are federally endangered or threatened species that would be at risk if Beni anacondas became established. Guam has seven bird species and two mammal species that are endangered or threatened that would be at risk of predation. The Virgin Islands has one bird species and three reptile species that are endangered or threatened that would be at risk of predation.
The introduction or establishment of Beni anacondas would likely have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above in the discussion for the reticulated python. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health. Agricultural interests may be negatively affected by imported anacondas carrying ticks that transfer harmful pathogens to livestock.
Prevention, eradication, management, or control of the spread of Beni anacondas once established in the United States will be highly unlikely. Please see the “
While the introduction of Beni anacondas could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to Beni anacondas as a food source. However, juvenile snakes could fall prey to native wildlife such as alligators, raccoons, coyotes, and birds of prey. In addition, Beni anacondas could prey on other nonnative species such as green iguanas, feral hogs, and black rats. The risks to native wildlife greatly outweigh these unlikely benefits. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of Beni anacondas.
Large Beni anaconda adults are heavier than almost all native, terrestrial predators in the United States, even many bears. Native fauna have no experience defending themselves against this type of novel, giant predator. The range of the Beni anaconda is largely defined by the availability of aquatic habitats. Beni anacondas are top predators in South America, consuming birds, mammals, fish, and reptiles; prey size includes deer and crocodilians. This diet is even broader than the diet of Burmese and reticulated pythons.
Because Beni anaconda specimens are likely to escape captivity or be released into the wild if the species is imported into the United States; are likely to survive, become established, and spread if they escape captivity or are released; are likely to prey on and compete with native species for food and habitat (including endangered and threatened species); cannot be easily eradicated, prevented from establishing, or reduced from large populations or new locations; and are likely to disturb ecosystems beyond the point of recoverability, the Service finds the Beni anaconda to be
Based on the Service's evaluation of the criteria for injuriousness, substantive information we received during the public comment periods and from the peer reviewers, along with other information regarding the large constrictor snakes (in Florida, Puerto Rico, and elsewhere), the Service concludes that the four constrictor species should be added to the list of injurious reptiles under the Lacey Act.
During the two public comment periods for the proposed rule for the nine species (75 FR 11808, March 12, 2010; and 75 FR 38069, July 1, 2010) and one comment period for the five species (79 FR 35719, June 24, 2014), we received more than 85,000 comments, including form letters, petitions, and postcards. We received comments from Federal agencies, State agencies, local governments, commercial and trade organizations, conservation organizations, nongovernmental organizations, and private citizens; all were in English with the exception of a few in Dutch, French, German, and Italian. The comments provided a range of views on the proposed listings as follows: (1) Unequivocal support for the listings with no additional information included; (2) unequivocal support for the listings with additional information provided; (3) equivocal support for the listings with or without additional information included; (4) unequivocal opposition to the listings with no additional information included; and (5) unequivocal opposition to the listings with additional information included.
To accurately review and incorporate the publicly provided comments in our final determination, we worked with researchers in the Qualitative Data Analysis Program at the University of Massachusetts Amherst and the University of Pittsburgh—developers of the
In accordance with peer review guidance of the Office of Management and Budget “Final Information Quality Bulletin for Peer Review,” released December 16, 2004, and Service guidance, we solicited expert opinion on information contained in the March 12, 2010, proposed rule (for nine species) from five knowledgeable individuals selected from specialists in the relevant taxonomic group and ecologists with scientific expertise that includes familiarity with alien herpetological introductions and invasions, predictive tools for risk assessment, and invasion biology. In 2010, we posted our peer review plan on the Service's Region 4 Web site (
We received responses from five peer reviewers. Two peer reviewers found that, in general, the proposed rule represented a comprehensive and up-to-date compilation of the best scientific information known about the nine constrictor snake species and that conclusions drawn from both published and unpublished sources were scientifically robust, and justified the proposed rule. Two peer reviewers expressed concern with the climate-matching methods and assumptions.
In addition, all peer reviewers stated that the background material on the biology, invasive potential, and potential tools for control of each snake species represented a solid compilation of available information. They further stated that the information as presented justified the conclusion that the snake species should be listed as injurious. All five peer reviewers concluded that the data and analyses we used in the proposed rule were appropriate and the conclusions we drew were logical and reasonable. Several peer reviewers provided additional insights to clarify points in the proposed rule, or references to recently published studies that update material in the rule.
We reviewed all comments we received from peer reviewers for substantive issues and new information regarding the proposed rule. We consolidate the comments and responses into key issues in this section. We refer to them as PR (Peer Reviewer) 1 through 5. We revised the final rule to reflect peer reviewer comments, where appropriate, and the most current scientific information, including the results of the newer USGS climate match publication (Rodda
For readers who want to duplicate the climate match results, the USGS has published a data series report with data used for modeling and the equations corresponding to these lines (
Uncertainty, as it relates to the individual risk assessment, can be divided into three distinct types: (a) Uncertainty of the process (method); (b) uncertainty of the assessor(s) (human error); and (c) uncertainty about the organism (biological and environmental unknowns). All three types of uncertainty will continue to exist regardless of future developments. The inferential estimation of organism risk can be rated using high, medium, or low. The biological and other information assembled under each element will drive the process, forcing the assessor to use the biological information as the basis for his or her decision. Thus, the process remains transparent for peer review. The high, medium, and low ratings of the individual elements contributing to the probability of organism establishment (such as organism with pathway, entry potential, colonization potential, and spread potential) cannot be defined or measured: The assessor has to use professional judgment because the values of the elements contained under “Probability of Establishment” are not independent of the rating of the “Consequences of Establishment.”
Specific traits or biological characteristics were assessed for each snake species to arrive at each high, medium, or low rating. The strength of the analysis is not in the element-rating but in the detailed biological and other relevant information that supports the rating. Reed and Rodda (2009) followed the ANSTF 1996 (see Lacey Act Evaluation Criteria section, above, for explanation of this method) guidelines for combining scores and noting that certainty levels for each component of the process were followed by the risk assessors. The logic that was applied to develop every step of the risk assessment analysis can be found in Chapter Ten of Reed and Rodda (2009).
We reviewed all comments we received from the public, particularly for substantive issues and new information regarding the March 12, 2010, proposed rule to list the nine large constrictor snakes. Therefore, the public comments generally refer to the nine species in the proposed rule, unless otherwise stated, and we respond for all nine species, unless otherwise stated. Because some of the comments referred only to those constrictor snake species we listed on January 23, 2012 (77 FR 3330), we omit those comments from this final rule; we summarize and respond to them in the January 23, 2012, final rule to list the Burmese python and three other species. We consolidated the following comments and our responses into key issues that are not in any particular order.
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USARK's Web site posts this statement under their “Best Management Practices” Web page (USARK 2014): “We understand that there are occupational hazards involved in the captive husbandry of the largest examples of five large snake species, and venomous reptiles. It is the position of USARK that only experienced and serious keepers should work with these animals.”
We acknowledge reports of deaths and injury due to encounters with nonnative large constrictor snakes, but the accounts identified by the commenter involved snakes held in captivity. Human fatalities from nonvenomous snakes in the wild are rare (Reed and Rodda 2009). An indirect risk is that large snakes may stretch across roads to obtain heat from the pavement on cool days, posing a hazard to motorists who swerve to avoid hitting them (Snow
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Another consideration is the risk involved with transporting large, powerful snakes. While keeping a snake in a sedentary home cage may not in itself be a difficult task, the situation may change when a 20-ft (6-m) snake weighing 200 pounds (91 kg) is transported in a car to a veterinarian. Unless the snake is transported in an escape-proof cage from the house to the automobile to the veterinarian, snakes may find more opportunities for escape. Conversely, small snakes may escape more easily than large ones because they are more likely to be transported casually, such as carried for show. For example, a boa constrictor that was transported around on its owner's neck on a Boston subway escaped and survived for a month on the heated train in January 2011 before being captured (Associated Press 2011).
We have based our determination on our evaluation of injuriousness to wildlife and wildlife resources and the likelihood that any of the four large constrictor snakes could escape, become established, and cause harm.
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Based on the best available information, we have found that the four species covered by this final rule are injurious to human beings, to the interests of agriculture, or to the wildlife or wildlife resources of the United States. This does not mean that we believe these snakes to be the most injurious of all wild animals.
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“If you are in a position where you must give up your pet [large constrictor snake], and zoos and humane societies have declined your efforts to donate the animal, you should contact either your State fish and wildlife agency or your local U.S. Fish and Wildlife Service office. These two government agencies are the legal authorities that co-manage fish and wildlife in this country, and they can help you to resolve this issue. The U.S. Fish and Wildlife Service is working with States around the country and the pet and aquarium industry through a campaign called Habitattitude
• Contacting the retailer for proper handling advice or for possible return;
• Giving or trading with another pet owner;
• Donating to a zoo, humane society, nature center, school, or pet retailer; and
• Contacting a veterinarian or pet retailer for guidance on humane disposal of animals.”
For those pet owners who move to another State, we also suggest contacting a local herpetology club or a national reptile organization with local members to find someone to adopt those constrictor snakes. And finally, if you live in Florida, “Anyone who possesses a conditional snake or lizard but cannot keep it can surrender the animal to a licensed recipient (adopter) at any time with no penalties” (FWC 2014).
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Regarding the statement that these snakes are nondangerous, we emphasize that we distinguish between “nondangerous,” which we assume the commenter means “does not harm people,” and “injurious,” which has a different meaning under the Lacey Act. We agree that these four species of snakes pose only a small risk of harm to people; however, we are listing them for their injuriousness.
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The commenter is correct that the double-escape-proof containment is a requirement for listed specimens that have been permitted. Moreover, as stated above, this requirement applies not only when the snake is being transported outside the zoo, but applies within the zoo as well. However, we have found that most zoos already contain their reptiles in double-escape-proof containment (such as a display case within a building). As such, they are already meeting this requirement or could meet it with a minimal extra cost over the standard housing requirements for the species. However, the containment of any injurious species is consistent with the preventative measures of the injurious wildlife provisions of the Lacey Act.
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The subject of violations under the Lacey Act has frequently been misunderstood and caused undue consternation among animal owners. We will explain here how the Lacey Act will address the new injurious listings. A person would violate the injurious wildlife provisions of the Lacey Act (18 U.S.C. 42, also known as title 18) if he or she did one of the following with any one of the constrictor species listed as injurious: (a) Transported between the States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any territory or possession of the United States by any means whatsoever; or (b) imported into the United States from another country. In either case, notwithstanding there may be other laws being broken by the action that we are not considering here, these violations are considered misdemeanors and carry penalties of up to 6 months in prison and a $5,000 fine for an individual or a $10,000 fine for an organization under 18 U.S.C. 42. If, however, another law was also broken, the violation could become a felony under 16 U.S.C. 3372 (also known as title 16, which is the wildlife trafficking provisions of the Lacey Act), which carries higher penalties. For example, if the owner of a reticulated python in Florida did not have a permit as required by Florida State law, and that person transported the snake to another State, then the fact that the State law was broken and the snake was transported across State lines makes that action a title 16 violation. Therefore, while the listing of the species as injurious may put “as many as a million American citizens” in possession of injurious wildlife, no one will be in violation of the Lacey Act automatically, because possession is not prohibited. Furthermore, unless these people break laws under title 16, they would not be subject to potential felony prosecution under the Lacey Act. Hobbyists' current activities would not become crimes provided their snakes stayed in-State or were exported directly out of the
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With social networking so available on the Internet, a person moving to another State could possibly find a reptile enthusiast in their current State to adopt the pet. When the person moved to the new State, the person could contact reptile enthusiasts in the new State to see if any snakes were available for adopting. While that is not the same as keeping the same snake, it does present a responsible alternative.
We believe that most people will choose to keep their snakes and also, of those owners who cannot because they are moving to another State or similar situation, they have options as presented above in this response and our response to Comment 13. While some misinformed pet owners or breeders might release their snakes, we do not believe that this activity will be widespread. The Service believes that the potential illegal conduct of a few irresponsible pet owners should not cause us to refrain from listing species that we have determined to be injurious.
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The regulatory process to list the four species that are the subjects of this final rule was guided by biologists. We received peer-reviewed scientific documentation (the risk assessment) from a separate bureau (see our responses to Comments 49 and 99 on the USGS risk assessment). We also received comments from five independent peer reviewers on the proposed rule and supporting documents. This rule is an action to regulate the importation and interstate transport of four species of large constrictor snakes that have been found to be injurious. Much of the trade in these species of snakes can continue legally (except where States have their own prohibiting laws). We received tens of thousands of comments from both animal rights supporters and pet trade supporters. We considered the comments of all submitters equally.
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In addition, the peer reviewers of the March 12, 2010, proposed rule (75 FR 11808) and supporting documents state that the listing of all nine large constrictor snakes is scientifically justified and an appropriate step to protect native wildlife in the United States from the risks posed by the nine species. The 2011 USGS document entitled “Challenges in Identifying Sites Climatically Matched to the Native Ranges of Animal Invaders” also underwent peer review before it was published. Please see also our response to Comment 99 for more information on the USGS peer review process.
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While the listing of species as injurious that are already widely kept and sold as pets will present unique law enforcement challenges with respect to interstate transport, the interception of injurious wildlife to prevent both entry into the United States and spread of such species once they are in the country constitutes an investigative priority for Service Law Enforcement when such transport represents a threat to U.S. wildlife resources and habitat. The fact that the listing of these constrictor snakes will create additional work for enforcement officers does not outweigh the ecological importance of addressing the problems created by the import and interstate transport of these snakes.
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If an agency feels that it could benefit from additional information before proposing a rule, it may publish an advance notice of proposed rulemaking
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• The Service published a notice of inquiry in the
• On February 29, 2008, we participated in a panel discussion arranged by the pet industry. Representatives of the Pet Industry Joint Advisory Council (PIJAC) were present. Our representative opened the discussion by stating: “This notice of inquiry is an information gathering process. I really want to stress that this is not a proposed rule or action. As part of processing the petition we received to list Burmese pythons as injurious, we opened up this comment period to gather information on especially which species, particularly snakes such as the Burmese python, within these three genera might be a threat to native wildlife and wildlife resources. If there is a snake that has not yet been imported into the United States that might pose a threat to native wildlife, this information would be very useful. By the way, we worked with PIJAC in addressing some of the concerns, and we answered a short set of Q&As [questions and answers] with Reptiles Magazine.”
• We participated in several chatrooms with stakeholders on
• The Service was interviewed by PIJAC about the NOI, and the interview was posted by ReptileChannel.com in 2008. The Service explained why we were considering action, what information we were seeking, and how the public could provide their information. When we were asked why we were also requesting economic information, we answered, “We currently have little information about the value of domestic trade in these species, and it is our responsibility as part of this process to gather a range of information on the species of interest. This includes economic data.”
• The Service was interviewed for a story on the constrictor snake NOI, and the story published in REPTILES magazine (Vol. 16, No. 5; May 2008).
• On March 12, 2010, we published in the
• The Service met with the Small Business Administration (SBA) on April 20, 2010, to discuss what information the SBA needed and what we needed. This meeting was within the public comment period for the proposed rule.
• The Service met with SBA on April 21, 2010, for a roundtable meeting with pet industry, zoo, and medical research representatives. This meeting was within the public comment period for the proposed rule.
• Because of several requests for an extension of the comment period, we added another 30-day public comment period from July 1 to August 2, 2010 (75 FR 38069; July 1, 2010).
• We met with the SBA again on January 13, 2011, to discuss issues raised by SBA during the public comment periods.
• We opened another 30-day public comment period on the 2010 proposed rule on June 24, 2014 (79 FR 35719). Please note that this occurred after we listed four of the constrictor snakes (Burmese (and Indian) python, Northern African python, Southern African python, and yellow anaconda) on January 23, 2012 (77 FR 3330).
In summary, the public has known since January of 2008 that we were considering listing these three genera, or species from them, as injurious. We provided a total of 210 days for receiving public information and comments, and we participated in several meetings with stakeholders. We believe that we have made a good faith effort to gather information from the public.
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We point out that the category of the “sale of boas and pythons” did not specify what species were included, but most likely would include ball pythons, which make up by far the largest segment of three genera of constrictor snakes that are imported into the United States (78.6 percent from 2008 to 2010, and 88.1 percent from 2011 to 2013) and that we analyzed in our economic analysis (see Final Economic Analysis 2012, 2015); ball pythons are a large segment of the domestic reptile trade. However, the same article in “The Economist” states, “The recession, however, has hurt what used to be a lucrative hobby. Fewer people want to splurge on snakes that cost thousands, if not tens of thousands, of dollars. According to Brian Barczyk, a snake-breeder, demand for “pet-grade” snakes, which cost under $50, has sunk even more than demand for “investment-grade” ones, because the average person is hesitant to buy a new pet.” We also note that part of the snake breeding industry is for the sale of snake skins, and this part of the industry should not be affected (dead snakes or parts thereof are not listed as injurious).
In addition, the Georgetown Economic Services report (GES; Collis and Fenili 2011) states that 18 percent of households (846,000) that own a reptile own a snake. Although the report does not say which species are the most commonly owned, based on observations, kingsnakes, corn snakes, garter snakes, and ball pythons are more commonly owned than any of the species in our March 12, 2010, proposed rule (75 FR 11808). Ball pythons comprised 64 percent of imports and domestic breeding of the three genera we reported on before our first final rule took effect on March 23, 2012 (Final Economic Analysis 2012; the nine species comprised 32 percent). Therefore, only a small percentage of households would be expected to own any of the species in this rule or the January 23, 2012, final rule (77 FR 3330).
We agree that our rule will negatively affect some aspects of the reptile industry, but we have no evidence to suggest that the prohibition on importation and interstate transportation of four species of snakes will cause the ruin of a $3 billion industry or even to the extent of $1.6 billion. On the contrary, our final economic analysis shows the estimated potential annual retail value losses associated with all four species we are listing in this final rule is $1.9 to 4.1 million (Final Economic Analysis 2015), plus $3.7 to 7.6 million for the four species listed in 2012 (Final Economic Analysis 2012), and a total annual decrease in economic output is $10.7 to 21.8 million and $5.3 to 11.4 million for 2012 and 2014, respectively. While this is not insignificant, it is a small fraction of the $3 billion quoted above.
In addition, we note that the importation of constrictor snakes of the genera
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Many industry participants provided anecdotal information about their situations or made quantitative assertions. While informative, we cannot extrapolate anecdotal data about
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The winter of January 2010 was one of the coldest on record in southern Florida. Burmese pythons were documented to tolerate these conditions. In the USDA study (Avery
Dorcas
A subsequent paper (Jacobson
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The USGS follows mandatory fundamental science practices for peer review, which can be read at the following Internet site:
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The memo's statement, “The injurious species provisions of the Lacey Act were clearly not designed to deal with a species that is already a significant part of the pet trade in the United States” is true in that the pet trade was not established to the degree it is today when the Lacey Act was passed by Congress in 1900. That does not, however, mean that the injurious species provisions cannot be an effective tool in invasive species management. The reason that we are listing the reticulated python, DeSchauensee's anaconda, green anaconda, and Beni anaconda as injurious is that the listings may prevent their establishment in vulnerable parts of the country. In addition, two of the species are not currently part of the constrictor pet trade, and the reticulated python and green anaconda comprise less than 1 percent each of total constrictor snake imports (for the genera
As for the comment from the memo, “It could, however, make a felon out of a reptile enthusiast in Wisconsin who sells one python to an individual in Minnesota,” that statement was also quoted correctly and is correct under certain situations. However, those situations are more representative of worst-case scenarios. A variety of other laws are often violated when people engage in illegal wildlife trafficking, some of which are Federal felonies. However, a stand-alone violation of the interstate transport or import prohibitions under 18 U.S.C. 42 is a misdemeanor, not a felony. Please also see our response to Comment 30 for an explanation of the misdemeanor and felony violations.
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(a) List some or all of the nine species, but:
• Exempt color and pattern genetic mutations of these snakes from the listing as albinos, leucistics, etc.
• Exempt hybrids.
• Do not list the species
• List regionally only where there is a climate match.
• Allow for the interstate travel for captive-bred animals.
• Remove the status of the Port of Miami as an agricultural port and a port of entry. Move the port of entry north, maybe to one of the New England ports where the weather will eradicate anything that would be lost or illegally released.
• The Service should consider paying restitution to or compensating these people for their losses, by buying the animals and the businesses that will no longer exist, suddenly made worthless, at fair market value, and then debating the question on how to dispose of those animals.
(b) Do not list any of the species. Instead:
• Let the States regulate their own captive wildlife, such as following FWC's comprehensive approach in Florida.
• Allow the industry to self-regulate and educate with the Internet, etc.; United States Association of Reptile Keepers best management practices; State and local risk assessment industry best management practices (BMPs) as suggested by Dr. Frank Mazzotti; and Habitattitude
• Issue permits and registrations, require microchipping, apply severe fines and criminal charges, etc., for the miskeeping or release of these animals in any State.
(c) PIJAC offered to discuss options with the Service in detail including developing a comprehensive, State-led prevention and early detection and rapid response program.
(d) AZA offered an alternative to adopting the proposal by supporting a coordinated regional response to Florida's pythons, and invasive species in general, through a multipronged approach:
• A national educational program should be developed to bring the risks of invasive species to a broad audience and emphasize responsible pet ownership and gardening practices.
• Increased support and coordination is needed for State and local early detection, rapid response, and eradication efforts, including organized volunteer invasive species corps to help protect local ecosystems.
• Guidelines should be developed to help States evaluate and manage the particular invasion risks in their region, including improved data collection and record-keeping, containment facility standards, and legitimate methods for unwanted pet disposition.
The Office of Management and Budget (OMB) has determined that this rule is significant under Executive Order (E.O.) 12866. OMB bases its determination upon the following four criteria:
(1) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal agencies' actions.
(3) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(4) Whether the rule raises novel legal or policy issues.
Executive Order 12866 Regulatory Planning and Review (U.S. Office of Management and Budget 1993) and a subsequent document, Economic Analysis of Federal Regulations under Executive Order 12866 (U.S. Office of Management and Budget 1996), identify guidelines or “best practices” for the economic analysis of Federal regulations. With respect to the regulation under consideration, an analysis that comports with the Circular A-4 would include a full description and estimation of the economic benefits and costs associated with implementation of the regulation. These benefits and costs would be measured by the net change in consumer and producer surplus due to the regulation. Both producer and consumer surplus reflect opportunity cost as they measure what people would be willing to forgo (pay) in order to obtain a particular good or service. “Producers' surplus is the difference between the amount a producer is paid for a unit of good and the minimum amount the producer would accept to supply that unit. Consumers' surplus is the difference between what a consumer pays for a unit of a good and the maximum
Large constrictor snakes are commonly kept as pets in U.S. households, displayed by zoological institutions, used for science and research, and used as educational tools. Because none of the four species we are listing in this rule is native to the United States, the species are obtained by importing or breeding in captivity. We provided a draft economic analysis to the public at the time the March 12, 2010, proposed rule (75 FR 11808) was published (on
In the context of the regulation under consideration, the economic effects to three groups would be addressed: (1) Producers; (2) consumers; and (3) society. With the prohibition of imports and interstate transport, producers, breeders, and suppliers would be affected in several ways. Depending on the characteristics of a given business (such as what portion of their sales depends on out-of-State sales or imports), sales revenue would be reduced or eliminated, thus decreasing total producer surplus compared to the situation without the regulation. Consumers (pet owners or potential pet owners) would be affected by having a more limited choice of constrictor snakes or, in cases where species were not available within their State, no choice at all if out-of-State sales are prohibited. Consequently, total consumer surplus would decrease compared to no injurious listing. Certain segments of society may value knowing that the risk to natural areas and other potential impacts from constrictor snake populations is reduced by implementing this rule. In this case, consumer surplus would increase compared to no injurious listing. If comprehensive information were available on these different types of producer and consumer surpluses, a comparison of benefits and costs would be relatively straightforward. However, information is not currently available on these values, so a quantitative comparison of benefits and costs is not possible.
The data currently available are limited to the number of constrictor snake imports each year, the estimated number of constrictor snakes bred in the United States, and a range of retail prices for each constrictor snake species. Using data for the three genera
With this rule, the importation and interstate transport of four species of large constrictor snakes (reticulated python, DeSchauensee's anaconda, green anaconda, and Beni anaconda) will be prohibited, except as specifically permitted. The annual retail value losses as a result of this rule are estimated to range from $1.9 million to $4.1 million (Final Economic Analysis 2015).
The broad indicator of the economic impacts of the alternatives, economic output or aggregate sales, includes three types of effects: Direct, indirect, and induced. The direct effects are the changes in annual retail value due to the implementation of a given alternative. “Indirect effects result from changes in sales for suppliers to the directly affected businesses (including trade and services at the retail, wholesale and producer levels). Induced effects are associated with further shifts in spending on food, clothing, shelter and other consumer goods and services, as a consequence of the change in workers and payroll of directly and indirectly affected businesses” (Weisbrod and Weisbrod 1997). The indirect and induced effects represent any multiplier effects due to the loss of revenue. These cost estimates include the various potential scenarios we considered.
Businesses or individuals importing or transporting listed species across State lines could face penalties for Lacey Act violations. The penalty for a Lacey Act violation is not more than 6 months in prison and not more than a $5,000 fine for an individual, and not more than a $10,000 fine for an organization.
Under this final rule, the probability of the four species of large constrictor snakes establishing populations within the United States should decrease compared to the “no action” alternative. The change in probability is unknown.
The draft economic analysis (2010) considered two other alternatives, in addition to listing all (Alternative 2) or none (Alternative 1) of the nine species under consideration. Alternative 3 would list the seven species known to be in trade in the United States (that is, all but the Beni and DeSchauensee's anacondas). Alternative 4 would list the five species judged to have a high “overall risk potential” in the USGS evaluation (Reed and Rodda 2009), while excluding the four species judged to have a medium overall risk potential (that is, the two nontraded species, plus the green anaconda and reticulated python).
For the final economic analysis for this final rule (2015), our alternatives changed because we had already listed four species as injurious (see 77 FR 3330, January 23, 2012). Therefore, Alternative 2A would list the five species remaining from the proposed rule (reticulated python, DeSchauensee's anaconda, green anaconda, Beni anaconda, and boa constrictor); Alternative 2B would list the four species we are listing in this final rule (reticulated python, DeSchauensee's anaconda, green anaconda, and Beni anaconda); Alternative 3 would list the three species that are currently in trade (reticulated python, green anaconda, and boa constrictor); and Alternative 4 would list only the boa constrictor, which is the only species of the five remaining ones that Reed and Rodda (2009) determined to have a high risk potential (all nine species, however, are injurious).
Compared to the alternative of listing all five species (2A), Alternative 2B would have less effect on current sales revenues or indirect economic impacts from the loss of such revenues, because there are currently no sales revenues from two of these species and the rule does not include the boa constrictor, the one remaining species with the highest overall risk potential (Reed and Rodda
Alternative 3 would, however, allow consumers to substitute the two species not in trade (in addition to the many other substitute species already available) for the purchase of the prohibited species, thus reducing economic impacts to the degree that there would be substitute purchases of these two species. However, the possibility of substitute purchases is itself a potential problem in that the two currently nontraded species are so similar in appearance to the green and yellow anacondas that it would be difficult for enforcement officials to distinguish green or yellow anacondas that were mislabeled as Beni or DeSchauensee's anacondas. In addition, acting to prevent the importation of these two species before trade in them emerges means that environmental injury from them can be prevented, which is far more effective than waiting until after injury has already occurred to act to limit it.
Alternative 4 (listing only the one species determined to have a high “overall risk potential” in Reed and Rodda (2009)) would limit the rule to the species with the greatest potential for environmental injury. Of the four species that would not be listed under this alternative, two anacondas are not currently in trade in the United States, and one (the green anaconda) is in very limited trade (less than half a percent of imported constrictor snakes of the genera
The relative level of risk associated with each species is determined by the criteria specified in the section Lacey Act Evaluation Criteria. Even in the case of those species with medium risk, the particular areas where the climate match occurs are notable for the number of endangered species found there (such as Hawaii, southern Florida, and Puerto Rico). That fact, the potential that yellow anacondas would be difficult for enforcement officials to distinguish if mislabeled as DeSchauensee's anacondas and green anacondas would be difficult for enforcement officials to distinguish if mislabeled as Beni anacondas, and the fact that the opportunity to act preventively before most of these species became established would be lost under this alternative all argued in favor of Alternatives 2A, 2B, and 3.
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5 U.S.C. 601
This rule lists four constrictor snake species (reticulated python, DeSchauensee's anaconda, green anaconda, and Beni anaconda) as injurious species under the Lacey Act. Entities impacted by the listing include: (1) Companies importing live snakes, gametes, viable eggs, and hybrids; (2) companies (breeders and wholesalers) with interstate sales of live snakes, gametes, viable eggs, and hybrids; (3) entities selling reptile-related products and services (pet stores, veterinarians, and shipping companies); and (4) research organizations, zoos, and educational operations. Importation of the four constrictor snakes will be prohibited, except as specifically authorized. Impacts to entities breeding or selling these snakes domestically will depend on the amount of interstate sales within the constrictor snake market. Impacts also are dependent upon whether or not consumers substitute the purchase of an animal that is not listed, which would thereby reduce economic impacts.
For businesses importing any of the four large constrictor snakes we are listing in this final rule, the maximum impact of this rulemaking will result in 20 to 28 small businesses (39 percent) having a reduction in their retail sales of 1 percent.
In addition to companies that import snakes, entities that breed and sell large constrictor snakes will also be impacted. These entities include distributors, retailers, breeders and hobbyists, and exhibitors and trade shows. We do not know the total number of businesses, large or small, that sell or breed the two species we are listing in this rule that are currently in trade domestically. However, we know approximately the number of businesses that sell or breed large constrictor snake species of the genera
In addition to snake sales, ancillary and support services comprise part of the snake industry. Four major categories include: (1) Food suppliers (such as for frozen or live rats and mice), (2) equipment suppliers (such as for cages, containers, lights, and other nonfood items), (3) veterinary care and other health-related items, and (4) shipping companies. The decrease in constrictor-snake-industry economic output and related employment from baseline conditions is $5.3 to 11.4 million for the reticulated python and green anaconda. This estimate includes impacts to the support service businesses. The number of businesses
Under the final rule, the interstate transport of the reticulated python and green anaconda (the two constrictor snakes currently in U.S. trade in this final rule) will be discontinued, except as specifically permitted. Thus, any revenue that would be potentially earned from this portion of the business will be eliminated. The amount of sales impacted is completely dependent on the percentage of interstate transport. That is, the impact depends on where businesses are located and where their customers are located.
This final rule may have a significant economic effect on a small number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
a. Will not have an annual effect on the economy of $100 million or more. According to the final economic analysis (USFWS 2015), the annual retail value losses for the four constrictor snake species we are listing in this final rule are estimated to range from $1.9 million to $4.1 million. In addition, businesses would also face the risk of fines if caught importing or transporting these constrictor snakes, gametes, viable eggs, or hybrids across State lines. The penalty for a Lacey Act violation under the injurious wildlife provisions is not more than 6 months in prison and not more than a $5,000 fine for an individual and not more than a $10,000 fine for an organization.
b. Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions. Businesses breeding or selling the listed snakes will be able to substitute other species and maintain business by seeking unusual morphologic forms in other snakes. Some businesses, however, may close. We do not have data for the potential substitutions, and, therefore, we do not know the number of businesses that may close.
c. Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.
This final rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This final rule will not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1501
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), the rule does not have significant takings implications. A takings implication assessment is not required. This rule will not impose significant requirements or limitations on private property use. Any person who possesses one or more snakes of the four species we are listing in this rule can continue to possess, sell, or transport them within their State boundaries.
In accordance with E.O. 13132 (Federalism), this rule does not have federalism implications. This rule will not have substantial direct effects on States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. The rule does not have substantial direct effects on States because it: (1) Imposes no affirmative obligations on any State, (2) preempts no State law, (3) does not limit the policymaking discretion of the States, (4) requires no State to expend any funds, and (5) imposes no compliance costs on any State. Executive Order 13132 requires Federal agencies to proceed cautiously when there are “uncertainties regarding the constitutional or statutory authority of the national government,” but there are no such uncertainties here. The statutory authority of the U.S. Fish and Wildlife Service to designate injurious species pursuant to the Lacey Act is clear. The Executive Order also encourages early consultation with State and local officials, which the Service has done. Therefore, in accordance with Executive Order 13132, we determine that this rule does not have federalism implications or preempt State law, and therefore a federalism summary impact statement is not required.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order. The rule has been reviewed to eliminate drafting errors and ambiguity, was written to minimize litigation, provides a clear legal standard for affected conduct rather than a general standard, and promotes simplification and burden reduction.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have reviewed this rule in accordance with the criteria of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects. This rule involves the importation and interstate movement of three live anaconda species and one live python species, gametes, viable eggs, or hybrids that are not native to the United States. We are unaware of trade in these species by tribes.
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action, and no Statement of Energy Effects is required.
A complete list of all references used in this rulemaking is available on the Internet at
The primary authors of this rule are the staff members of the South Florida Ecological Services Office (see
Fish, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
For the reasons discussed in the preamble, the U.S. Fish and Wildlife Service amends part 16, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:
18 U.S.C. 42.
(a) The importation, transportation, or acquisition of any live specimen, gamete, viable egg, or hybrid of the species listed in this paragraph is prohibited except as provided under the terms and conditions set forth at § 16.22:
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| 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 |