| Page Range | 25571-25896 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 25637 - Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System Policy Changes and Fiscal Year 2016 Rates; Revisions of Quality Reporting Requirements for Specific Providers, Including Changes Related to the Electronic Health Record Incentive Program | |
| 80 FR 25895 - Loyalty Day, 2015 | |
| 80 FR 25893 - Older Americans Month, 2015 | |
| 80 FR 25891 - National Mental Health Awareness Month, 2015 | |
| 80 FR 25887 - Asian American and Pacific Islander Heritage Month, 2015 | |
| 80 FR 25579 - Law Day, U.S.A., 2015 | |
| 80 FR 25577 - National Physical Fitness and Sports Month, 2015 | |
| 80 FR 25575 - National Foster Care Month, 2015 | |
| 80 FR 25573 - National Building Safety Month, 2015 | |
| 80 FR 25715 - Sunshine Act Meetings; National Science Board | |
| 80 FR 25571 - Jewish American Heritage Month, 2015 | |
| 80 FR 25766 - Sunshine Act Meeting Notice; Meeting No. 15-02 | |
| 80 FR 25747 - Sunshine Act Meeting | |
| 80 FR 25782 - Sentencing Guidelines for United States Courts | |
| 80 FR 25669 - Certain Activated Carbon From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2013-2014 | |
| 80 FR 25673 - International Pacific Halibut Commission Appointments | |
| 80 FR 25707 - Notice of Proposed Information Collection; Comment Request: Certification and Funding of State and Local Fair Housing Enforcement Agencies | |
| 80 FR 25706 - Meeting: Homeland Security Advisory Council | |
| 80 FR 25601 - Bacillus thuringiensis Cry2Ab2 Protein in Soybean; Exemption From the Requirement of a Tolerance | |
| 80 FR 25765 - 60-Day Notice of Proposed Information Collection: Exchange Alumni Virtual Program | |
| 80 FR 25634 - Safety Zone for Fireworks Display, Chesapeake Bay, Prospect Bay; Queen Anne's County, MD | |
| 80 FR 25675 - Public Meeting of the Great Lakes Advisory Board | |
| 80 FR 25599 - Security Zone, U.S. Open Golf Championship, South Puget Sound; University Place, WA | |
| 80 FR 25766 - In the Matter of the Review of the Designation of Popular Front for the Liberation of Palestine (and Other Aliases) as a Foreign Terrorist Organization Pursuant to Section 219 of the Immigration and Nationality Act | |
| 80 FR 25694 - Final Priorities; National Institute on Disability, Independent Living, and Rehabilitation Research-Disability and Rehabilitation Research Projects Program | |
| 80 FR 25696 - Applications for New Awards; National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR)-DRRP-Knowledge Translation for Employment Research and Projects for Translating Disability and Rehabilitation Research Into Practice | |
| 80 FR 25706 - Center for Substance Abuse Prevention; Notice of Meeting | |
| 80 FR 25604 - Travelers' Information Stations | |
| 80 FR 25662 - Proposed Information Collection; Comment Request; Precanvass Operation for the 2017 Commodity Flow Survey | |
| 80 FR 25675 - Appraisal Subcommittee Notice of Meeting | |
| 80 FR 25709 - Draft Safe Harbor Agreement and Receipt of Application for an Enhancement of Survival Permit for the Northern Spotted Owl and Marbled Murrelet; City of Everett, Snohomish County, Washington | |
| 80 FR 25609 - Atlantic Highly Migratory Species; North and South Atlantic 2015 Commercial Swordfish Quotas | |
| 80 FR 25633 - Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Open Range in the United States; Extension of Comment Period | |
| 80 FR 25711 - Notice of Filing of Plats of Survey; Colorado. | |
| 80 FR 25711 - Notice of Filing of Plats of Survey; Colorado | |
| 80 FR 25796 - Agency Information Collection (Financial Status Report) Activities Under OMB Review | |
| 80 FR 25780 - Unblocking of Specially Designated Nationals and Blocked Persons Pursuant to the Foreign Narcotics Kingpin Designation Act | |
| 80 FR 25672 - Proposed Information Collection; Comment Request; Southeast Region Permit Family of Forms | |
| 80 FR 25712 - Agency Information Collection Activities: Proposed eCollection eComments Requested; Identification Markings Placed on Firearms | |
| 80 FR 25661 - Federal Economic Statistics Advisory Committee Meeting | |
| 80 FR 25781 - Unblocking of Specially Designated Nationals And Blocked Persons Pursuant to Executive Order 12978 | |
| 80 FR 25679 - Notice of the General Services Administration's Labor-Management Relations Council Meeting | |
| 80 FR 25660 - J.R. Simplot Co.; Availability of Preliminary Plant Pest Risk Assessment and Draft Environmental Assessment for Potato Genetically Engineered for Late Blight Resistance, Low Acrylamide Potential, Reduced Black Spot Bruising, and Lowered Reducing Sugars | |
| 80 FR 25674 - Market Risk Advisory Committee | |
| 80 FR 25768 - Qualification of Drivers; Exemption Applications; Vision | |
| 80 FR 25766 - Qualification of Drivers; Exemption Applications; Vision | |
| 80 FR 25702 - Solicitation of Nominations for Appointment to the Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria; Amendment | |
| 80 FR 25676 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 25680 - National Environmental Policy Act Implementing Procedures and Categorical Exclusions | |
| 80 FR 25713 - Notice of Lodging of Proposed Consent Decree Under the Clean Water Act | |
| 80 FR 25672 - Northeast Regional Stock Assessment Workshop | |
| 80 FR 25656 - Fisheries of the Northeastern United States; Recreational Management Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2015 | |
| 80 FR 25581 - Bank Enterprise Award Program | |
| 80 FR 25769 - Notice of Funds Availability (NOFA) Inviting Applications for the FY 2015 Funding Round of the Bank Enterprise Award Program (BEA Program) | |
| 80 FR 25598 - Drawbridge Operation Regulation; Lewis and Clark River, Astoria, OR | |
| 80 FR 25763 - Announcement of “America's Seed Fund” Logo Design Competition for the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Programs | |
| 80 FR 25765 - Reporting and Recordkeeping Requirements Under OMB Review | |
| 80 FR 25671 - Information on Claims Raised About State-Owned Airlines in Qatar and the UAE | |
| 80 FR 25676 - Agency Information Collection Activities; Proposed Collection; Comment Request | |
| 80 FR 25831 - Medicare Program; FY 2016 Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting Requirements | |
| 80 FR 25611 - Fisheries Off West Coast States; West Coast Salmon Fisheries; 2015 Management Measures | |
| 80 FR 25712 - Certain Novelty Glasses; Certain Coin-Operated Audio Visual Games and Components Thereof; Certain Coin-Operated Audio Visual Games and Components Thereof (Viz., Rally-X and Pac-Man); Certain Cube Puzzles; Certain Strip Lights; Certain Novelty Teleidoscopes; Notice of Commission Determination To Rescind Three Exclusion Orders and To Modify Three Exclusion Orders | |
| 80 FR 25677 - Agency Information Collection Activities; Proposed Collection; Comment Request | |
| 80 FR 25692 - World Trade Center Health Program Scientific/Technical Advisory Committee (WTCHP STAC or Advisory Committee), National Institute for Occupational Safety and Health (NIOSH) | |
| 80 FR 25692 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review | |
| 80 FR 25691 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review | |
| 80 FR 25693 - Board of Scientific Counselors, (BSC) National Center for Environmental Health/Agency for Toxic Substances and Disease Registry (NCEH/ATSDR) | |
| 80 FR 25625 - Fisheries of the Exclusive Economic Zone Off Alaska; Small Vessel Exemptions; License Limitation Program | |
| 80 FR 25723 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendments Nos. 1 and 2 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendments Nos. 1 and 2, To List and Trade Shares of Eight PIMCO Exchange-Traded Funds | |
| 80 FR 25758 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Modifying Its Rules To Provide for the Use of Ports That Provide Connectivity to the Exchange's Trading Systems Solely for the Cancellation or “Takedown” of Quotes and Changes to the NYSE Arca Options Fee Schedule Related to Quote Takedown Service | |
| 80 FR 25755 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Modifying Its Rules To Provide for the Use of Ports That Provide Connectivity to the Exchange's Trading Systems Solely for the Cancellation or “Takedown” of Quotes and Changes to the NYSE Amex Options Fee Schedule Related to This Quote Takedown Service | |
| 80 FR 25704 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of Meeting | |
| 80 FR 25729 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to Listing and Trading of Shares of ALPS Enhanced Put Write Strategy ETF under NYSE Arca Equities Rule 8.600 | |
| 80 FR 25743 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 15-Equities To Reflect That Exchange Systems Will Not Publish Order Imbalance Information on the Initial Public Offering of a Security | |
| 80 FR 25741 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 15 To Reflect That Exchange Systems Will Not Publish Order Imbalance Information on the Initial Public Offering of a Security | |
| 80 FR 25749 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Phlx Permit Fee, Order Entry Port Fee, Clearing Trade Interface Port Fee, and Active Specialized Quote Feed Port Fee | |
| 80 FR 25738 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 502 | |
| 80 FR 25761 - Self-Regulatory Organizations; The Depository Trust Company; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to a DTC Custody Service Fee Change | |
| 80 FR 25727 - Self-Regulatory Organizations; The Depository Trust Company; Notice of Filing of Proposed Rule Change Regarding the Acknowledgment of End-of-Day Net-Net Settlement Balances by Settling Banks | |
| 80 FR 25745 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend NASDAQ Rule 7015(b) and (g) to Modify Port Fees | |
| 80 FR 25747 - Submission for OMB Review; Comment Request | |
| 80 FR 25745 - Proposed Collection; Comment Request | |
| 80 FR 25714 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Approval of a New Collection; Perceptions of Safety and Police-Community Relations | |
| 80 FR 25704 - Submission for OMB Review; 30-Day Comment Request; The Study of the Center for Global Health's (CGH) Workshops (NCI) | |
| 80 FR 25702 - National Institute of Environmental Health Sciences; Notice of Meeting | |
| 80 FR 25703 - Office of the Director, National Institutes of Health; Notice of Meeting | |
| 80 FR 25703 - National Institute on Alcohol Abuse and Alcoholism; Notice of Meeting | |
| 80 FR 25704 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Meeting | |
| 80 FR 25701 - Advisory Commission of Childhood Vaccines; Request for Nominations for Voting Members | |
| 80 FR 25797 - Revisions to the Export Administration Regulations (EAR): Control of Fire Control, Range Finder, Optical, and Guidance and Control Equipment the President Determines No Longer Warrant Control Under the United States Munitions List (USML) | |
| 80 FR 25630 - Airworthiness Directives; The Boeing Company Airplanes | |
| 80 FR 25627 - Airworthiness Directives; The Boeing Company Airplanes | |
| 80 FR 25633 - Retrospective Analysis of Existing Rules | |
| 80 FR 25595 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 80 FR 25594 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 80 FR 25663 - Further Proposed Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012 | |
| 80 FR 25637 - Volunteers in Service to America | |
| 80 FR 25591 - Airworthiness Directives; DG Flugzeugbau GmbH Gliders | |
| 80 FR 25715 - Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving Proposed No Significant Hazards Considerations and Containing Sensitive Unclassified Non-Safeguards Information and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information | |
| 80 FR 25821 - Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Category XII | |
| 80 FR 25589 - Airworthiness Directives; Airbus Helicopters (Type Certificate Previously Held by Eurocopter France) |
Animal and Plant Health Inspection Service
Census Bureau
First Responder Network Authority
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Community Living Administration
Health Resources and Services Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Fish and Wildlife Service
Land Management Bureau
Employment and Training Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Community Development Financial Institutions Fund
Foreign Assets Control Office
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Community Development Financial Institutions Fund, Department of the Treasury.
Interim rule with request for comment.
The Department of the Treasury is issuing a revised interim rule implementing the Bank Enterprise Award Program (BEA Program), administered by the Community Development Financial Institutions Fund (CDFI Fund), Department of the Treasury. This revised interim rule reflects requirements set forth in a final rule, published by the Department of the Treasury (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, December 19, 2014), hereafter referred to as the Uniform Administrative Requirements. The Uniform Administrative Requirements constitute a government-wide framework for grants management codified by the Office of Management and Budget (OMB); they combine several OMB guidance circulars aimed at reducing administrative burden for award Recipients and reducing the risk of waste, fraud and abuse of Federal financial assistance. The Uniform Administrative Requirements establish financial, administrative, procurement, and program management standards with which Federal award-making programs, including those administered by the CDFI Fund, and Recipients must comply. This revised BEA Program interim rule includes revisions necessary to implement the Uniform Administrative Requirements, as well as to make certain technical corrections and other updates to the current rule.
Effective May 5, 2015; written comments must be received by the offices of the CDFI Fund on or before July 3, 2015.
You may submit comments concerning this revised interim rule via the Federal e-Rulemaking Portal at
Robert Ibanez, Program Manager, Community Development Financial Institutions Fund, at
The CDFI Fund, Department of the Treasury, was authorized by the Community Development Banking and Financial Institutions Act of 1994, as amended (12 U.S.C. 4701
Through the BEA Program, the CDFI Fund seeks to: Strengthen and expand the financial and organizational capacity of CDFIs; provide monetary awards to insured depository institutions that increase their lending and financial services in Distressed Communities; and increase the flow of private capital into Low- and Moderate-Income areas. Applicants participate in the BEA Program through a competitive application process, in which the CDFI Fund evaluates applications based on the value of their increases in certain Qualified Activities. BEA Program award Recipients receive award proceeds in the form of a grant after successful completion of specified Qualified Activities.
On January 30, 2009, the CDFI Fund published in the
As of the close of the March 2, 2009 comment period, the CDFI Fund received no comments on the current rule.
(A)
(B) Section 1806.103,
The term “CDFI Partner” is revised in subsection 1806.103 to prohibit a CDFI Partner from being an affiliated organization of the Applicant. “Community Development Entity” has been removed from the definition section because such term is not used in this part. The term “Development Service Activities” is now defined in
(C)
(D)
(E)
(F)
(G)
It has been determined that this regulation is not a significant regulatory action as defined in Executive Order 12866. Therefore, a Regulatory Assessment is not required.
Because no notice of proposed rulemaking is required under the Administrative Procedure Act (5 U.S.C. 553) or any other law, the Regulatory Flexibility Act does not apply.
The collections of information contained in this revised interim rule have been previously reviewed and approved by OMB in accordance with the Paperwork Reduction Act of 1995 and assigned the applicable OMB Control Number associated with the CDFI Fund under 1559-0005. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a valid control number assigned by OMB. The revised interim rule imposes collections of new information, for which the CDFI Fund has OMB approval.
The revised interim rule has been reviewed in accordance with the CDFI Fund's Environmental Quality regulations (12 CFR part 1815), promulgated pursuant to the National Environmental Protection Act of 1969 (NEPA), which requires that the CDFI Fund adequately consider the cumulative impact that proposed activities have upon the human environment. It is the determination of the CDFI Fund that the revised interim rules does not constitute a major federal action significantly affecting the quality of the human environment, and, in accordance with the NEPA and the CDFI Fund Environmental Quality regulations, neither an Environmental Assessment nor an Environmental Impact Statement is required.
Because the revisions to this revised interim rule relate to grants, notice and public procedure and a delayed effective date are not required pursuant to the Administrative Procedure Act found at 5 U.S.C. 553(a)(2).
Public comment is solicited on all aspects of this interim regulation. The CDFI Fund will consider all comments made on the substance of this interim regulation, but it does not intend to hold hearings.
Banks, banking, Community development, Grant programs—housing and community development, Reporting and recordkeeping requirements, Savings associations.
For the reasons set forth in the preamble, 12 CFR part 1806 is revised to read as follows:
12 U.S.C. 1834a, 4703, 4703 note, 4713, 4717; 31 U.S.C. 321.
The purpose of the Bank Enterprise Award (BEA) Program is to provide grants to Insured Depository Institutions that provide financial and technical assistance to Community Development Financial Institutions and increase their activities in Distressed Communities.
Through the BEA Program, the CDFI Fund will provide monetary awards in the form of grants to Applicants selected by the CDFI Fund that increase their investments in or provide other support of CDFIs, increase their lending and investment activities in Distressed Communities, or increase their provision of certain services and assistance. Distressed Communities must meet minimum geographic, poverty, and unemployment criteria. Applicants are selected to receive BEA Program Awards through a merit-based, competitive application process. The amount of a BEA Program Award is based on the increase in Qualified Activities that are carried out by the Applicant during the Assessment Period. BEA Program Awards are disbursed by the CDFI Fund after the Recipient has successfully completed projected Qualified Activities. Each Recipient will enter into an Award Agreement, which will require it to abide by terms and conditions pertinent to any assistance received under this part, including the requirement that BEA Program Award proceeds must be used for Qualified Activities, as well as the Uniform Administrative Requirements, as applicable. All BEA Program Awards are made subject to funding availability.
(a) Restrictions on applying for, receiving and using BEA Program Awards in conjunction with awards under other programs administered by the CDFI Fund (including, but not limited to, the Capital Magnet Fund, the CDFI Program, the CDFI Bond Guarantee Program, the Native American CDFI Assistance Program, and the New Markets Tax Credit Program) are as set forth in the applicable notice of funding opportunity or Notice of Allocation Availability.
(b)
For purposes of this part, the following terms shall have the following definitions:
(1) Uninsured and committed for a term of at least three years; or
(2) Insured, committed for a term of at least three years, and provided at an interest rate that is materially (in the determination of the CDFI Fund) below market rates;
(1) Provision of Technical Assistance and financial education to Eligible Residents regarding managing their personal finances;
(2) Provision of Technical Assistance and consulting services to newly formed small businesses and nonprofit organizations located in the Distressed Community;
(3) Provision of Technical Assistance and financial education to, or servicing the loans of, homeowners and homeowners who are Eligible Residents and meet Low- and Moderate-Income requirements;
(4) Other services provided to Eligible Residents who meet Low- and Moderate-Income requirements or enterprises that are Integrally Involved in a Distressed Community, as deemed appropriate by the CDFI Fund;
(a)
(b)
The collection of information requirements in this Part have been approved by the Office of Management and Budget and assigned the applicable, approved OMB Control Number associated with the CDFI Fund under 1559-0005.
To receive a BEA Program Award, an Insured Depository Institution must increase its Qualified Activities within the period of time set forth in the applicable NOFA. Recipients of BEA Program Awards must also use their payments for Qualified Activities, as described in the applicable NOFA and the Award Agreement.
A Recipient may not distribute BEA Program Award funds to an Affiliate without the CDFI Fund's prior written consent.
The amount of a BEA Program Award shall be based on the Applicant's increases in Qualified Activities from the Baseline Period to the Assessment Period, as set forth in the applicable NOFA.
(a)
(b)
(1)
(i) Must be an area that is located within the jurisdiction of one (1) Unit of General Local Government;
(ii) The boundaries of the area must be contiguous; and
(iii) The area must:
(A) have a population, as determined by the most recent US Bureau of the Census data available, of not less than 4,000 if any portion of the area is located within a Metropolitan Area with a population of 50,000 or greater; or
(B) have a population, as determined by the most recent US Bureau of the Census data available, of not less than 1,000 in any other case; or
(C) Be located entirely within an Indian Reservation.
(2)
(i) At least 30 percent of the Eligible Residents have incomes that are less than the national poverty level, as published by the U.S. Bureau of the Census or in other sources as set forth in guidance issued by the CDFI Fund;
(ii) The unemployment rate is at least 1.5 times greater than the national average, as determined by the U.S. Bureau of Labor Statistics' most recently published data, including estimates of unemployment developed using the U.S. Bureau of Labor Statistics' Census-Share calculation method, or in other sources as set forth in guidance issued by the CDFI Fund; and
(iii) Such additional requirements as may be specified by the CDFI Fund in the applicable NOFA.
(c)
(1) Selecting Geographic Units which individually meet the minimum area eligibility requirements set forth in paragraph (b) of this section; or
(2) Selecting two or more Geographic Units which, in the aggregate, meet the minimum area eligibility requirements set forth in paragraph (b) of this section, provided that no Geographic Unit selected by the Applicant within the area has a poverty rate of less than 20 percent.
(d)
(a)
(b)
(1) If an Applicant elects to apply for an award in either the CDFI Related Activities category or the Distressed Community Financing Activities category, it must report on all types of activity within that category, unless the Applicant can provide a reasonable explanation, acceptable to the CDFI Fund in its sole discretion, as to why it cannot report on all activities in such category.
(2) If an Applicant elects to apply for an award in the Service Activities category, it may elect not to report each type of activity within the Service Activities category.
(c)
(1) Undertaken in the Distressed Community; or
(2) Provided to Eligible Residents who meet Low- and Moderate-Income requirements or enterprises that are Integrally Involved in the Distressed Community.
(d)
(e)
(1) Equity Investments, Equity-Like Loans, loans, grants and certificates of deposits, at the original amount of such Equity Investments, Equity-Like Loans, loans, grants or certificates of deposits. Where a certificate of deposit matures and is then rolled over during the Baseline Period or the Assessment Period, as applicable, the CDFI Fund will assess the value of the full amount of the rolled-over deposit. Where an existing loan is refinanced (meaning, a new loan is originated to pay off an existing loan, whether or not there is a change in the applicable loan terms), the CDFI Fund will only assess the value of any increase in the principal amount of the refinanced loan;
(2) Project Investments at the original amount of the purchase of stock, limited partnership interest, other ownership interest, or grant;
(3) Deposit Liabilities at the dollar amount deposited as measured by comparing the net change in the amount of applicable funds on deposit at the Applicant during the Baseline Period with the net change in the amount of applicable funds on deposit at the Applicant during the Assessment Period, as described in paragraphs (e)(3)(i) and (ii) of this section:
(i) The Applicant shall calculate the net change in deposits during the Baseline Period by comparing the amount of applicable funds on deposit at the close of business the day before the beginning of the Baseline Period and at the close of business on the last day of the Baseline Period; and
(ii) The Applicant shall calculate the net change in such deposits during the Assessment Period by comparing the amount of applicable funds on deposit at the close of business the day before the beginning of the Assessment Period and at the close of business on the last day of the Assessment Period;
(4) Financial Services and Targeted Financial Services based on the predetermined amounts as set forth by the CDFI Fund in the applicable NOFA; and
(5) Financial Services (other than those for which the CDFI Fund has established a predetermined value), Community Services, and CDFI Support Activities consisting of Technical Assistance based on the administrative costs of providing such services.
(f)
(1) Is executed on a date within the applicable Baseline Period or Assessment Period, respectively; and
(2) Constitutes a legally binding agreement between the Applicant and a borrower or investee, which agreement specifies the final terms and conditions of the transaction, except that any contingencies included in the final agreement must be typical of such transaction and acceptable (both in the judgment of the CDFI Fund); and
(3) An initial cash disbursement of loan or investment proceeds has occurred in a manner that is consistent with customary business practices and is reasonable given the nature of the transaction (as determined by the CDFI Fund), unless it is normal business practice to make no initial disbursement at closing and the Applicant demonstrates that the borrower has access to the proceeds, subject to reasonable conditions as may be determined by the CDFI Fund.
(g)
(a)
(b)
(c)
(1) Subtracting the Baseline Period value of such Qualified Activity from the Assessment Period value of such Qualified Activity to yield a remainder; and
(2) Multiplying the remainder by the applicable Priority Factor (as set forth in the applicable NOFA).
(d)
(a)
(b)
(c)
(1)
(2)
(3)
(d)
(e)
(1) To select Applicants not previously selected, using the calculation and selection process contained in this part;
(2) To make additional monies available for a subsequent funding round; or
(3) As otherwise authorized by the Act.
(f)
(a)
(b)
(1) A completed worksheet that reports the increases in Qualified Activities actually carried out during the Assessment Period as compared to those carried out during the Baseline Period. If an Applicant has merged with another institution during the Assessment Period, it must submit a separate Baseline Period worksheet for each subject institution and one Assessment Period worksheet that reports the activities of the merged institutions. If such a merger is unexpectedly delayed beyond the Assessment Period, the CDFI Fund reserves the right to withhold distribution of a BEA Program Award until the merger has been completed;
(2) A report of Qualified Activities that were closed during the Assessment Period. Such report shall describe the original amount, census tract served, dates of execution, initial disbursement, and final disbursement of the instrument;
(3) Documentation of Qualified Activities that meets the required thresholds and conditions described in § 1806.402(f) and the applicable NOFA;
(4) Information necessary for the CDFI Fund to complete its environmental review requirements pursuant to part 1815 of this chapter;
(5) Certifications, as described in the applicable NOFA and BEA Program Award application, that the information provided to the CDFI Fund is true and accurate and that the Applicant will comply with all relevant provisions of this chapter and all applicable Federal, State, and local laws, ordinances, regulations, policies, guidelines, and requirements;
(6) In the case of an Applicant that engaged in Service Activities, or Distressed Community Financing Activities, the Applicant must confirm, by submitting documentation as described in the applicable NOFA and BEA Program application, the Service Activities or Distressed Community Financing Activities were provided to:
(i) Eligible Residents that resided in a Distressed Community, or
(ii) A business located in a Distressed Community.
(7) Information that indicates that each CDFI to which an Applicant has provided CDFI Support Activities is Integrally Involved in a Distressed Community, as described in the applicable NOFA and BEA Program application; and
(8) Any other information requested by the CDFI Fund, or specified by the CDFI Fund in the applicable NOFA or the BEA Program application, in order to document or otherwise assess the validity of information provided by the Applicant to the CDFI Fund.
(a)
(1) Must carry out its Qualified Activities in accordance with applicable law, the approved BEA Program application, and all other applicable requirements;
(2) Must comply with such other terms and conditions that the CDFI Fund may establish;
(3) Will not receive any BEA Program Award payment until the CDFI Fund has determined that the Recipient has fulfilled all applicable requirements;
(4) Must comply with performance goals that have been established by the CDFI Fund. Such performance goals will include measures that require the Recipient to use its BEA Program Award funds for Qualified Activities; and
(5) Must comply with all data collection and reporting requirements. Each Recipient must submit to the CDFI Fund such information and documentation that will permit the CDFI Fund to review the Recipient's progress in satisfying the terms and conditions of its Award Agreement, including:
(i)
(ii)
(b)
(c)
(d)
In carrying out its responsibilities pursuant to an Award Agreement, the Recipient must comply with all applicable Federal, State, and local laws, regulations (including but not limited to the Uniform Administrative Requirements, ordinances, and Executive Orders).
Any person who becomes aware of the existence or apparent existence of fraud, waste, or abuse of assistance provided under this part should report such incidences to the Office of Inspector General of the U.S. Department of the Treasury.
(a) A Recipient shall submit such financial and activity reports, records,
(b) The Award Agreement provides that the provisions of the Act, this part, and the Award Agreement are enforceable under 12 U.S.C. 1818 of the Federal Deposit Insurance Act by the Appropriate Federal Banking Agency, as applicable, and that any violation of such provisions shall be treated as a violation of the Federal Deposit Insurance Act. Nothing in this paragraph (b) precludes the CDFI Fund from directly enforcing the Award Agreement as provided for under the terms of the Act.
(c) The CDFI Fund will notify the Appropriate Federal Banking Agency before imposing any sanctions on a Recipient that is examined by or subject to the reporting requirements of that agency. The CDFI Fund will not impose a sanction described in section 1806.500(b) if the Appropriate Federal Banking Agency, in writing, not later than 30 calendar days after receiving notice from the CDFI Fund:
(1) Objects to the proposed sanction;
(2) Determines that the sanction would:
(i) Have a material adverse effect on the safety and soundness of the Recipient; or
(ii) Impede or interfere with an enforcement action against that Recipient by the Appropriate Federal Banking Agency;
(3) Proposes a comparable alternative action; and
(4) Specifically explains:
(i) The basis for the determination under paragraph (c)(2) of this section and, if appropriate, provides documentation to support the determination; and
(ii) How the alternative action suggested pursuant to paragraph (c)(3) of this section would be as effective as the sanction proposed by the CDFI Fund in securing compliance and deterring future noncompliance.
(d) Prior to imposing any sanctions pursuant to this section or an Award Agreement, the CDFI Fund shall, to the maximum extent practicable, provide the Recipient with written notice of the proposed sanction and an opportunity to comment. Nothing in this section, however, shall provide a Recipient to any formal or informal hearing or comparable proceeding not otherwise required by law.
A Recipient must comply with all record retention requirements as set forth in the Uniform Administrative Requirements.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for Airbus Model EC225LP helicopters. This AD requires repetitive visual and tap test inspections of each main rotor blade (blade) leading edge stainless steel protective strip (strip) for a crack, cut, or blind or open debonding (debonding), and taking approved corrective measures. If there is a crack or if there is debonding that exceeds acceptable limits, this AD requires, before further flight, repairing or replacing the blade with an airworthy part. This AD was prompted by suspected water seepage through a crack in the blade strip resulting in significant debonding. The actions of this AD are intended to prevent loss of the blade strip, excessive vibrations induced by blade weight imbalance, and subsequent loss of control of the helicopter.
This AD is effective June 9, 2015.
The Director of the Federal Register approved the incorporation by reference of a certain document listed in this AD as of June 9, 2015.
For service information identified in this AD, contact Airbus Helicopters, Inc., 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
You may examine the AD docket on the Internet at
Gary Roach, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222-5110; email
On January 31, 2014, at 79 FR 5321, the
The NPRM was prompted by AD No. 2013-0103, dated May 2, 2013, issued
After our NPRM (79 FR 5321, January 31, 2014) was published, we received comments from 2 commenters.
Two commenters requested that a helicopter be allowed to operate with a crack in the leading edge blade strip as long as the crack is within the limits prescribed by the manufacturer. The commenters stated that EASA and the manufacturer allow for a helicopter to fly if the blade strip has a crack that is within limits because the blade strip is sacrificial and nonstructural. The commenters state that requiring repairing or replacing the blade strip if there is a crack results in a higher cost and greater out-of-service time for operators without a justifiable or measured increase in safety.
We agree with allowing a crack in the blade strip that is within limits and has been properly sealed. Therefore, we have changed paragraph (e)(5) of the AD to require sealing the crack instead of repairing or replacing the blade if there is a crack within acceptable limits.
This helicopter has been approved by the aviation authority of France and is approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA, reviewed the relevant information, considered the comments received, and determined the unsafe condition exists and is likely to exist or develop on other helicopters of this same type design and that air safety and the public interest require adopting the AD requirements as proposed with the change described previously. This change is consistent with the intent of the proposals in the NPRM (79 FR 5321, January 31, 2014) and will not increase the economic burden on any operator nor increase the scope of this AD.
Eurocopter issued Emergency Alert Service Bulletin No. 05A010, Revision 2, dated April 22, 2013 (EASB), for the Model EC225LP helicopter and for the non-FAA typed certificated Model EC725AP military helicopter. The EASB specifies a visual check and tapping test of the bonding of the strip on the leading edge of the blades for cracks, cuts, and debonding and taking corrective actions as applicable. Revision 1 to the EASB changed the visual check and the tapping test so that they can be performed without removing the blades. Revision 2 extended the applicability to additional part-numbered blades with a modified blade strip installed. This information is reasonably available at
We estimate that this AD affects 4 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work hour. We estimate 4 work hours to inspect the helicopter for a total of $340 per helicopter and $1,360 for the U.S. operator fleet per inspection cycle. If necessary, it will take 4 work hours to repair the blade and $600 for required parts for a total of $940 per helicopter. It will take about 5 work hours to replace a blade at a cost of $425 for labor. Parts will cost $315,495 to replace part number (P/N) 332A11-0050-01 and $403,650 to replace P/N 332A11-0055-00, for a total cost of $315,920 and $404,075, respectively.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model EC225LP helicopters with a main rotor blade (blade), part number 332A11.0050.00, 332A11.0055.00, 332A11.0050.02, or 332A11.0055.02, installed, certificated in any category.
This AD defines the unsafe condition as loss of a blade stainless steel protective strip (strip), which could result in excessive vibrations induced by blade weight imbalance and subsequent loss of control of the helicopter.
This AD becomes effective June 9, 2015.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within 15 hours time-in-service (TIS) and thereafter at intervals not to exceed 85 hours TIS, visually and tap test inspect each blade strip for a crack, a cut, or open and blind debonding. For purposes of this AD, open debonding, also known as edge bond separation, occurs when a bonded part becomes unattached (debonded) leaving the surface under it exposed to open air around the periphery of the part. Blind debonding occurs when a bonded part becomes unattached internally yet remains bonded around its entire periphery.
(1) If there is open or blind debonding within acceptable limits and the debonded area is located inside Area D of Figure 1 of Eurocopter Emergency Alert Service Bulletin No. 05A010, Revision 2, dated April 22, 2013 (EASB), no further action is required until the next inspection.
(2) If there is open or blind debonding and the debonded area is located outside Area D of Figure 1 of the EASB, before further flight, repair or replace the blade.
(3) If there is open or blind debonding beyond acceptable limits, before further flight, repair or replace the blade.
(4) If there is a cut in the blade root polyurethane protective strip as depicted in Area A of Figure 2 of the EASB, tap test inspect the area.
(i) If there is no open and blind debonding, at intervals not to exceed 15 hours TIS, tap test inspect the blade strip in the blade root area, in the stainless steel leading edge/neoprene junction area for open or blind debonding.
(ii) If there is open or blind debonding within acceptable limits and the debonded area is located inside Area D of Figure 1 of the EASB, no further action is required until the next inspection.
(iii) If there is open or blind and the debonded area is located outside Area D of Figure 1 of the EASB, before further flight, repair or replace the blade.
(iv) If there is open or blind debonding beyond acceptable limits, before further flight, repair or replace the blade.
(5) If there is a crack within acceptable limits, before further flight, seal the crack. If there is a crack beyond the acceptable limits, before further flight, repair or replace the blade.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Gary Roach, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2013-0103, dated May 2, 2013. You may view the EASA AD on the Internet at
Joint Aircraft Service Component (JASC) Code: 6210 Main Rotor Blades.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Eurocopter Emergency Alert Service Bulletin No. 05A010, Revision 2, dated April 22, 2013.
(ii) Reserved.
(3) For service information identified in this AD, contact Airbus Helicopters, Inc., 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments
We are adopting a new airworthiness directive (AD) for DG Flugzeugbau GmbH Model DG-1000T gliders equipped with a Solo Kleinmotoren Model 2350 C engine that supersedes AD 2013-22-14 R1. This AD results from mandatory continuing airworthiness information (MCAI) issued by the aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as engine shaft failure with consequent propeller detachment. We are issuing this AD to require actions to address the unsafe condition on these products.
This AD is effective May 26, 2015.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of May 26, 2015.
We must receive comments on this AD by June 19, 2015.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Solo Kleinmotoren GmbH, Postfach 600152, 71050 Sindelfingen, Germany; telephone: +49 7031 301-0; fax: +49 7031 301-136; email:
You may examine the AD docket on the Internet at
Jim Rutherford, Aerospace Engineer, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4165; fax: 98160 329-4090; email:
On September 5, 2014, we issued AD 2013-22-14 R1, Amendment 39-17968 (79 FR 54895; September 15, 2014). That AD required actions intended to address an unsafe condition on DG Flugzeugbau GmbH Model DG-1000T gliders equipped with a Solo Kleinmotoren Model 2350 C engine and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country.
Since we issued AD 2013-22-14 R1, another occurrence of engine shaft failure and propeller detachment was reported on a Solo Kleinmotoren Model 2350 C engine that had been modified following Solo Kleinmotoren Service Bulletin 4603-14, dated April 28, 2014.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No.: 2015-0052-E, dated March 27, 2015 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
An occurrence of engine shaft failure and consequent propeller detachment was reported on a Solo 2350 C engine.
This condition, if not corrected, could lead to additional cases of release of the propeller from the engine, possible resulting in damage to the sailplane, or injury to persons on the ground.
To address this unsafe condition, EASA issued Emergency AD 2013-0217-E to prohibit operation of the engine.
After that AD was issued, Solo Kleinmotoren GmbH developed instructions to install a modified excenter axle-pulley assembly, allowing to resume operation of the engine. This optional modification was introduced through EASA AD 2013-0217R1.
Since that AD was issued, another occurrence of engine shaft failure and propeller detachment was reported on a Solo 2350 C engine which had been modified in accordance with Solo Kleinmotoren Service Bulletin (SB) 4603-14.
For reasons described above, this AD supersedes EASA AD 2013-0217R1 and, pending the availability of EASA approved modification instructions, prohibits operation of all Solo 2350 C engines, including those engines which have been modified in accordance with Solo Kleinmotoren SB 4603-14. This AD also requires a one-time inspection of the propeller shaft to detect cracks and the reporting of findings.
This AD is considered to be temporary measure and further AD action will follow.
We reviewed Solo Kleinmotoren GmbH Anleitung zur Inspektion (English translation: Inspection Instruction), Nr. 4603-1, Ausgabe (English translation: dated) March 26, 2015. The service information describes procedures for inspecting the propeller shaft for cracking and reporting the results to the manufacturer. This information is reasonably available at
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because failure of the engine shaft with consequent propeller detachment could result in damage to the glider or injury to persons on the ground. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD will affect 2 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.
Based on these figures, we estimate the cost of the AD on U.S. operators to be $340, or $170 per product.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591. ATTN: Information Collection Clearance Officer, AES-200.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective May 26, 2015.
This AD supersedes AD 2013-22-14 R1; Amendment 39-17968 (79 FR 54895; September 5, 2014).
This AD applies to DG Flugzeugbau GmbH Model DG-1000T gliders, all serial numbers, that are:
(1) Equipped with a Solo Kleinmotoren Model 2350 C engine; and
(2) Certificated in any category.
Air Transport Association of America (ATA) Code 72: Engine.
This AD was prompted by mandatory continuing airworthiness information (MCAI) issued by the aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as engine shaft failure with consequent propeller detachment. We are issuing this AD to prevent failure of the engine shaft with consequent propeller detachment that could result in damage to the glider or injury of persons on the ground.
Unless already done, do the following actions:
(1) As of November 25, 2013 (the effective date retained from AD 2013-22-14), do not operate the engine unless the engine is modified following instructions that are FAA-approved specifically for this AD. Contact the FAA office identified in paragraph (g)(1) of this AD to get more information about obtaining such instructions.
(2) Modification of an engine following the instructions in Solo Kleinmotoren Service Bulletin 4603-14, dated April 28, 2014, is not an acceptable modification to comply with paragraph (f)(1) of this AD.
(3) As of May 26, 2015 (the effective date of this AD), place a copy of this AD into the Limitations section of the aircraft flight manual (AFM).
(4) Within the next 30 days after May 26, 2015 (the effective date of this AD), do a one-time inspection (magnetic particle or dye penetrant) of the propeller shaft following Solo Kleinmotoren GmbH Anleitung zur Inspektion (English translation: Inspection Instruction), Nr. 4603-1, Ausgabe (English translation: dated) March 26, 2015.
This service information contains German to English translation. The EASA used the English translation in referencing the document. For enforceability purposes, we will refer to the Solo Kleinmotoren service information as it appears on the document.
(5) Within the next 30 days after May 26, 2015 (the effective date of this AD), report the results of the inspection required in paragraph (f)(4) of this AD to Solo Kleinmotoren GmbH. Include the serial number of the engine and the operational time since change of the axle in your report. You may find contact information for Solo Kleinmotoren GmbH in paragraph (i)(3) of this AD.
The following provisions also apply to this AD:
Refer to MCAI found in European Aviation Safety Agency (EASA) AD No.: 2015-0052-E, dated March 27, 2015, for related information. You may examine the MCAI on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Solo Kleinmotoren GmbH Anleitung zur Inspektion (English translation: Inspection Instruction), Nr. 4603-1, Ausgabe (English translation: dated) March 26, 2015.
This service information contains German to English translation. The EASA used the English translation in referencing the document. For enforceability purposes, we will refer to the Solo Kleinmotoren service information as it appears on the document.
(ii) Reserved.
(3) For service information identified in this AD, contact Solo Kleinmotoren GmbH, Postfach 600152, 71050 Sindelfingen, Germany; telephone: +49 7031 301-0; fax: +49 7031 301-136; email:
(4) You may review copies of the referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. It is also available on the Internet at
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective May 5, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of May 5, 2015.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC, 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are
Air Traffic Control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective May 5, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of May 5, 2015.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA).
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Coast Guard, DHS.
Notice of canceling temporary deviation from drawbridge regulation.
The Coast Guard is canceling the temporary deviation concerning the operating schedule that governs the Oregon State (Lewis and Clark River) Highway Bridge across the Lewis and Clark River, mile 1.0, at Astoria, OR. The deviation needs to be canceled due to contract agreements with the Oregon Department of Transportation (ODOT) and the bridge construction company. Weekend work dates have been changed.
The temporary deviation published on April 28, 2015, at 80 FR 23445, is cancelled as of April 28, 2015.
The docket for this deviation, [USCG-2015-0351] is available at
If you have questions on this cancelation, call or email Steven M. Fischer, Thirteenth Coast Guard District Bridge Program Administrator, telephone 206-220-7282, email
On April 28, 2015, we published a temporary deviation entitled “Drawbridge Operation Regulation; Lewis and Clark River, Astoria, OR” in the
ODOT made a contract agreement after the requested temporary deviation was approved. At the time of the initial request submitted by the ODOT Project Manager, the bridge construction crew was planning to work Monday through Friday. However, on April 10, 2015, ODOT and the construction company changed the working days to Tuesday through Saturday. ODOT noticed the discrepancy after reviewing the approval letter. As a result of this discrepancy, the times listed in the approved temporary deviation are incorrect.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary security zone for the U.S. Open Golf Championship at Chambers Bay Golf Course in South Puget Sound, University Place, WA, from June 14, 2015 through June 22, 2015. This action is necessary to ensure the safety and security of participants, spectators, and event officials at the U.S. Open Golf Championship, and will do so by prohibiting any person or vessel from entering or remaining in the security zone unless authorized by the Captain of the Port or his Designated Representative.
This rule is effective from June 14, 2015 through June 22, 2015.
Documents mentioned in this preamble are part of docket [USCG-2014-1075]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Petty Officer Ryan Griffin, Waterways Management Division, Coast Guard Sector Puget Sound, telephone (206) 217-6045 or email
The Pierce County Sheriff Department requested that the Coast Guard establish a temporary security zone to assist in the security and safety of the 65,000 potential attendees of the U.S Open Golf Championship event, set to take place at Chambers Bay Golf Course in South Puget Sound, University Place, WA, from June 14, 2015 through June 22, 2015. On February 11, 2015, the Coast Guard proposed to establish a temporary security zone in connection with this event by publishing a notice of proposed rulemaking (NPRM) entitled, “Security Zone, U.S. Open Golf Championship, South Puget Sound; University Place, WA” in the
The legal basis for the proposed rule is 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish security zones.
The Chambers Bay Golf Course, located in the city of University Place, WA and the County of Pierce, will be the host site for the U.S. Golf Association 115th Annual U.S. Open Golf Championship from June 15, 2015 through June 21, 2015. This event will have a daily attendance of approximately 65,000 people and receives international press including multiple days of live television coverage. Due to the high number of general public in attendance and press coverage, the U.S. Open Golf Championship qualifies as a significant special event that requires a security zone. Based on past incursions at similar events at Chambers Bay Golf Course, this security zone is necessary for the size detailed in the regulation section below, 24 hours a day, for the duration of the event.
The purpose of this rule is to deter and prevent potential criminal and terrorist activity against the large gathering of people at the highly publicized U.S. Open Golf Championship. This action is necessary to ensure the safety and security of participants, spectators, and event officials at the U.S. Open Golf Championship, and will do so by prohibiting any person or vessel from entering or remaining in the security
On February 11, 2015, the Coast Guard proposed to establish a temporary security zone in connection with the U.S. Open Golf Championship by publishing an NPRM in the
This temporary final rule establishes a temporary security zone on all waters encompassed by the following points: 47°12′50″ N., 122°35′25″ W.; thence southerly to 47°11′14″ N., 122°35′50″ W.; thence easterly to the shoreline at 47°11′14″ N., 122°35′03″ W.; thence northerly along the shoreline to 47°12′49″ N., 122°34′39″ W.; thence westerly back to the point of origin.
Vessels wishing to enter the security zone must request permission for entry by contacting the Joint Harbor Operations Center at (206) 217-6001, or the on-scene patrol craft via VHF-FM Ch 13. If permission for entry is granted, vessels must proceed at a minimum speed for safe navigation.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The rule is not a significant regulatory action because the security zone will be in place for a limited period of time and vessel traffic will be able to transit around the security zone. Maritime traffic may also request permission to transit through the zone from the Captain of the Port (COTP), Puget Sound or a Designated Representative.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects the following entities, some of which may be small entities: the owners and operators of vessels intending to operate in the waters covered by the security zone while it is in effect. The rule will not have a significant economic impact on a substantial number of small entities because the temporary security zone would be in place for a limited period of time and maritime traffic will be able to transit around the security zone. Maritime traffic may also request permission to transit through the zone from the COTP, Puget Sound or a Designated Representative.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that it does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a temporary security zone near Chambers Bay Golf Course in South Puget Sound, University Place, WA. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of the
This regulation is effective May 5, 2015. Objections and requests for hearings must be received on or before July 6, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0454, is available at
Robert McNally, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 174 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0454 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 6, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0454, by one of the following methods:
•
•
•
In the
Based on available data, EPA is amending the existing exemption for residues of
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.
Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability, and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
The acute oral toxicity data demonstrates the lack of mammalian toxicity at high levels of exposure to the pure
Since this PIP is a protein, allergenic potential was also considered.
1.
2.
3.
4.
5.
The information on the safety of the pure
In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).
The Agency considered available information on the aggregate exposure levels of consumers (and major identifiable subgroups of consumers) to the pesticide chemical residue and to other related substances. These considerations include dietary exposure under the tolerance exemption and all other exemptions in effect for the
Exposure via the skin or inhalation is not likely since the plant-incorporated protectant is contained within plant cells, which essentially eliminates these exposure routes or reduces exposure by these routes to negligible. Exposure to infants and children via residential or lawn use is also not expected because the use sites for the
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”
Since the
FFDCA section 408(b)(2)(C) provides that, in considering the establishment of a tolerance or tolerance exemption for a pesticide chemical residue, EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold (10X) margin of exposure (safety) for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines that a different margin of exposure (safety) will be safe for infants and children. This additional margin of exposure (safety) is commonly referred to as the Food Quality Protection Act Safety Factor. In applying this provision, EPA either retains the default value of 10X or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.
Based on the information discussed in Unit III., EPA concludes that there are no threshold effects of concern to infants, children, or adults from exposure to the
Therefore, based on the discussion in Unit III. and the supporting documentation, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to the residues of the
The pesticidal active ingredient is a protein, derived from a source that is not known to exert an influence on the endocrine system. Therefore, the Agency is not requiring information on the endocrine effects of the plant-incorporated protectant at this time.
A standard operating procedure for an enzyme-linked immunosorbent assay for the detection and quantification of the
EPA received one comment that is potentially relevant to this petition. The commenter generally opposed approval of the use of a Monsanto “bt pip,” but did not specify any particular PIP or any particular safety concern. As no specific basis for denying the petition was provided, the comment is not being further considered.
Monsanto's petition requested an exemption for residues of the
There is a reasonable certainty that no harm will result from aggregate exposure to the U.S. population, including infants and children, to residues of the
Therefore, an exemption is established for residues of the
1. U.S. EPA. 2014a. Review of Product Characterization and Human Health Data for Plant-Incorporated Protectant
2. U.S. EPA. 2014b. Environmental Risk Assessment for the FIFRA Section 3 Seed Increase Registration of the Plant-Incorporated Protectant (PIP),
This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
7 U.S.C. 136-136y; 21 U.S.C. 346a and 371.
(a) Residues of
(b) Residues of
Federal Communications Commission.
Final rule.
In this document, the Commission amends its rules pertaining to public safety Travelers' Information Stations (TIS), which Public Safety Pool-eligible entities operate to transmit noncommercial, travel-related information over AM band frequencies to motorists on a localized basis. One
Effective June 4, 2015.
Thomas Eng, Policy and Licensing Division, Public Safety and Homeland Security Bureau, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554, at (202) 418-0019, TTY (202) 418-7233, or via email at
This is a summary of the Commission's
Commission rules authorize Public Safety Pool-eligible entities to use Travelers' Information Stations (TIS) to transmit noncommercial, travel-related information over AM band frequencies to motorists on a localized basis. § 90.242(b)(8) of the Commission's rules requires the filtering of audio frequencies between 3 and 20 kHz. Based on a comment record indicating that this filtering decreases the audibility of TIS broadcasts in general, and especially at night and over difficult terrain, the Commission adopted a
The Commission established TIS in 1977 in order to “establish an efficient means of communicating certain kinds of information to travelers over low power radio transmitters licensed to Local Government entities.” The Commission specifically noted that such stations had been used to reduce traffic congestion and to transmit “road conditions, travel restrictions, and weather forecasts to motorists.” Further, the Commission anticipated that TIS also would be used to “transmit travel related emergency messages concerning natural disasters (
Although the
We now consider the record in this proceeding with respect the issues of relaxing or eliminating the filtering provision of § 90.242(b)(8), which requires the filtering of TIS audio frequencies above 3 kHz.
As noted, although the
Burden continued that: “AM broadcast bandwidth specified by the NRSC-2 Spectrum Mask adopted by the FCC some time ago to resolve interference issues, limits the audio frequency response of AM broadcast transmission to 10 kHz. Limiting the bandwidth of TIS transmission to the same bandwidth as the NRSC mask should be logical. A recent study into acceptable audio bandwidths conducted by NPR Labs in an AM-DAB study for the NRSC, concluded that limitations to an audio bandwidth less than 7 kHz was not advisable for AM broadcast facilities.”
Because this particular issue was not raised in the
The Society of Broadcast Engineers (SBE) and NAB were the only commenters opposing removal of the TIS filtering restrictions. According to SBE “there is a significant potential for increased interference from this proposal.” SBE took particular issue with Burden's claim that he “conducted an experiment removing the `3 kHz filter . . . with no audible interference presented to the reception of the first adjacent,' ” because “[t]he commenter's
SBE also took issue with Burden's claim that “ `limitations to an audio bandwidth less than 7 kHz was not advisable for AM broadcast facilities' and `it only follows that the audio quality of the emergency message needs to be offered with the same intelligibility as that from AM radio broadcast facilities' ” because “[w]hat these allegations fail to mention was that all the standards and studies cited were relative to AM full power broadcast stations.” SBE asserts that the findings of those studies “were not intended to be applied to TIS stations, which are licensed under very different standards and with a different allocation status.”
SBE further alleged that “many TIS stations fail to adhere to generally accepted modulation standards employed by AM broadcasters. . . . SBE members have observed and reported that many TIS stations grossly over- or undermodulate their carriers resulting in poor audio quality and/or poor listenability. This is a . . . supervening contributor to the poor audio quality that they attribute incorrectly to the audio filters.” While NAB shared many of SBE's concerns, it also submitted “that a compromise approach may be workable.” Specifically, NAB stated that “a filter capable of filtering audio frequencies above 5 kHz should allow for a TIS signal of sufficiently higher quality, without impeding neighboring AM services.” NAB noted that “full-power AM radio stations routinely use 5 kHz filters to address and prevent interference among AM stations, with few significant problems.” Accordingly, NAB offered “a proposal to allow TIS operators to use a 5 kHz filter, presuming TIS stations broadcast only voice content, as required under the Commission's rules.”
AAIRO responded that it “can . . . support the compromise proposed by the National Association of Broadcasters, . . .” because “[t]he wider filter bandpass would markedly improve TIS voice transmissions and would also protect adjacent broadcasters should a TIS operator transmit non-voice material without authorization.” AAIRO further stated that if: A wider bandwidth filter may be substituted in place of the present 3-kHz filter . . . the filter [should] be outboard to the TIS transmitter and immediately ahead of its audio input. The FCC should prescribe the exact formula for the audio filter and require its use by all TIS operations—new or existing—whose 3-kHz filters have been deactivated. AAIRO suggests the use of the same roll-off curve presently used in the 3-kHz filter, as it has proven to be adequate during the 30+ years of the TIS service's existence. The use of an outboard filter will streamline the timeline to improve the service and dramatically lower costs for existing operators who would otherwise be required to purchase new transmitters or have their present transmitters modified and recertified.”
Because this compromise proposal was developed in the
The filtering requirement limits the bandwidth of the TIS signal, thereby reducing the risk of interference to the reception of adjacent channel AM stations. However, the rule also has the effect of distinguishing TIS sonically from other AM stations, so that a motorist tuning her radio manually may know intuitively that she has tuned to a TIS station. Specifically, TIS stations have smaller audio bandwidth due to the 3-kHz filter than AM stations, so the audio fidelity of TIS is lower and less intelligible. Based on the record on this filtering issue that prompted us to adopt the
The
The record indicates that relaxation of the filtering requirement from 3 kHz to 5 kHz could improve TIS audio quality and intelligibility to match that of commercial AM broadcasting, while still minimizing adjacent channel interference. Even though Burden's experiment purported to demonstrate that a TIS station without a filter caused no audible adjacent channel interference to the reception of a first adjacent AM station outside its protected contour, we note that it was conducted at a single site and contains no information about the call signs, coordinates, power levels, or received signal strengths of the TIS or AM stations. Therefore, Burden's experiment provides us neither a sufficient pool of results nor sufficient data to make a general conclusion that there would be no adjacent channel interference anywhere were we to entirely remove the TIS filtering requirements. Accordingly, in this Report and Order we adopt rules relaxing the minimum filtering requirement for TIS transmitters from 3 kHz to 5 kHz. We note, however, that licensees may continue to employ the 3-kHz requirement at their option.
The current TIS rule requires that at audio frequencies between 3 kHz and 20 kHz, the filter “shall have an attenuation greater than the attenuation at 1 kHz by at least: 60 log10(f/3) decibels, where `f' is the audio frequency in kHz.” At audio frequencies above 20 kHz, the attenuation shall be at least 50 decibels greater than the attenuation at 1 kHz. This produces a roll-off curve that starts at 0 dB attenuation for 3 kHz, then increases attenuation to approximately 50 dB at 20 kHz. In its
The
In its
The current rule requires that “[e]ach transmitter in a Travelers Information Station shall be equipped with an audio low-pass filter [that] shall be installed between the modulation limiter and the modulated stage.” However, as noted, in response to the
In its
The current filter placement is at the last stage in the audio chain before modulation of the signal to radio frequencies (RF). The filter placement required in the rule ensures that any signal distortion introduced by the modulation limiter does not effectively increase the bandwidth of the audio signal before the modulation to RF. Based on AAIRO's description of the filter placement, the filter is integrated onto a circuit board and cannot be replaced by a user. Placing a 5 kHz filter between the modulation limiter and the modulated stage, as NAB requests, would effectively require a circuit board replacement, which is essentially the whole TIS transmitter system. However, NAB's alternative suggestion, an audio processor, would replace the modulation limiter and audio filter and thus would also require a circuit board replacement. The cost for TIS operators to replace a typical TIS transmitter would be $18-23,000 for equipment and installation. While either of NAB's proposals would reduce slightly the likelihood of harmful interference from TIS operations to broadcast stations in the AM band relative to an outboard filter, neither slight improvement would be significant enough to warrant the associated costs that would be imposed on TIS operators. Modulation limiters may have the potential to introduce some distortion into the signal after the signal has passed through an outboard 5 kHz filter, but given that the Commission will have certified all TIS transmitter models on the market for proper operation; that the 5-kHz filter we prescribe has a steeper roll-off curve than current 3-kHz filters, and that AM radio limits the upper modulating frequency to 5 kHz, we believe this likely to be of only minimal concern.
We revise our TIS rules to allow for a placement of the audio filter either ahead of the transmitter or between the modulation limiter and the modulated stage. This allows for either an outboard filter ahead of the transmitter circuit board before the board's modulation limiter, or a filter integrated into the transmitter circuit board in the present position after the modulation limiter. We expect our action will lead to improved audio quality at reasonable cost for TIS operators who wish to take advantage of the new rules and will not increase the potential for harmful interference. We therefore revise our rules to permit TIS operators to retrofit TIS equipment equipped with 3 kHz filters by placing the outboard 5 kHz audio filter at the transmitter audio input, and deactivate the 3 kHz filter, as AAIRO recommends. Similarly, we will allow manufacturers to manufacture, market, and sell already certified TIS systems that have been retrofitted accordingly. Alternatively, manufacturers may design new TIS systems where the 5 kHz audio filter is at the current placement between the modulation limiter and the modulated stage, or a system equipped with an audio processor that performs the filtering with the prescribed roll-off performance. However, to avoid imposing burdens on manufacturers, we do not require any redesigns of TIS equipment. We realize that interested manufacturers may choose the first option out of cost considerations, as AAIRO observed in its comments to the
Many
No commenter spoke to the question of whether any of the foregoing changes,
The
Finally, SBE provided anecdotal reports of musical content over TIS and contends that “[w]hile most voice content is below 3 KHz, music expands that bandwidth.” However, AAIRO asserts that “[n]one of AAIRO's nearly 400 members `broadcast musical content.' ” NAB argues that music's wider bandwidth “may not be adequately filtered by a 5 kHz filter and could cause harmful interference to neighboring AM radio services,” and “reiterate[s] that relaxing the TIS filtering requirement must be contingent on TIS stations' strict compliance with 47 CFR 90.242(a)(7).” While we cannot take enforcement action at this time based on the limited evidence before us, we take this opportunity to remind licensees that only voice content is permitted per § 90.242(a)(7) of our rules, and that music content of any kind is not permitted.
As required by the Regulatory Flexibility Act of 1980,
This
Accordingly,
Communications equipment; Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 90 as follows:
Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), and 332(c)(7).
(b) * * *
(8) Each transmitter in a Travelers' Information Station shall be equipped with an audio low-pass filter. Such filter shall be installed either at the transmitter's audio input or between the modulation limiter and the modulated stage. At audio frequencies between 5 kHz and 20 kHz this filter shall have an attenuation greater than the attenuation at 1 kHz by at least:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule adjusts the 2015 fishing season quotas for North and South Atlantic swordfish based upon 2014 quota underharvests and international quota transfers consistent with International Commission for the Conservation of Atlantic Tunas (ICCAT) Recommendations 13-02 and 13-03. This final rule applies to commercial and recreational fishing for swordfish in the Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico. This action implements ICCAT recommendations, consistent with the Atlantic Tunas Convention Act (ATCA), and furthers domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Effective on June 4, 2015.
Copies of the supporting documents—including the 2012 Environmental Assessment (EA), Regulatory Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA) for North Atlantic swordfish; the 2007 EA, RIR, and FRFA for South Atlantic swordfish; and the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP) and associated documents—are available from the HMS Management Division Web site at
Andrew Rubin by phone at 301-427-8503, Steve Durkee by phone at 202-670-6637.
The U.S. Atlantic swordfish fishery is managed under the 2006 Consolidated HMS FMP. Implementing regulations at 50 CFR part 635 are issued under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801
For North Atlantic swordfish, this final action maintains the U.S. baseline quota of 2,937.6 metric tons (mt) dressed weight (dw) and implements an ICCAT-recommended quota transfer of 18.8 mt dw from the United States to Mauritania. For South Atlantic swordfish, this action maintains the U.S. South Atlantic swordfish quota at 75.2 mt dw (100 mt whole weight (ww)), carries over 75.1 mt dw of 2014 underharvest, and authorizes the transfer of 50 mt ww (37.6 mt dw) to Namibia, 25 mt ww (18.8 mt dw) to Côte d'Ivoire, and 25 mt ww (18.8 mt dw) to Belize, consistent with ICCAT Recommendation 13-03. Information regarding the quota calculations can be found below. Additional details regarding the quotas and other actions in this rule and their impacts can be found in the proposed rule (80 FR 8838, February 19, 2015).
At the 2013 ICCAT annual meeting, Recommendation 13-02 was adopted, maintaining the North Atlantic swordfish total allowable catch (TAC) of 10,301 metric tons (mt) dressed weight (dw) (13,700 mt whole weight (ww)) through 2016. Of this TAC, the United States' baseline quota is 2,937.6 mt dw (3,907 mt ww) per year. ICCAT Recommendation 13-02 also includes an 18.8 mt dw (25 mt ww) annual quota transfer from the United States to Mauritania and limits allowable 2014 and any future underharvest carryover to 15 percent of a contracting party's baseline quota. Therefore, the United States may carry over a maximum of 440.6 mt dw (585.9 mt ww) of underharvest from 2014 to 2015. This final rule adjusts the U.S. baseline quota for the 2015 fishing year to account for the annual quota transfer to Mauritania and the 2014 underharvest.
The 2015 North Atlantic swordfish baseline quota is 2,937.6 mt dw (3,907 mt ww). The preliminary estimate of North Atlantic swordfish underharvest for 2014 is 2,395.6 mt dw (3,186.1 mt ww). Even without including an estimate of dead discards, the estimated underharvest is larger than the maximum carryover cap (440.6 mt dw or 585.9 mt ww). Therefore, as proposed, NMFS is carrying forward 440.6 mt dw, the maximum carryover allowed per Recommendation 13-02. Additionally, this final rule reduces the 2,937.6 mt dw baseline quota by the 18.8 mt dw (25 mt ww) annual quota transfer to Mauritania. These two changes result in an adjusted North Atlantic swordfish quota for the 2015 fishing year of 3,359.4 mt dw (2,937.6 baseline quota + 440.6 underharvest −18.8 transfer to Mauritania = 3,359.4 mt dw or 4467.47 mt ww). From that adjusted quota, 50 mt dw is allocated to the reserve category for in season adjustments and research, and 300 mt dw is allocated to the incidental category, which includes recreational landings and landings by incidental swordfish permit holders, per § 635.27(c)(1)(i). This results in an allocation of 3,009.4 mt dw (3,359.4 adjusted quota −50 to the reserve quota—300 mt dw to the incidental quota = 3,009.4 mt dw) for the directed category, which is split equally between two seasons in 2015 (January through June, and July through December) (Table 1).
In 2013, ICCAT Recommendation 13-03 established the South Atlantic swordfish TAC at 11,278.2 mt dw (15,000 mt ww) for 2014, 2015, and 2016. Of this, the United States receives 75.2 mt dw (100 mt ww). Recommendation 13-03 limits the amount of South Atlantic swordfish underharvest that can be carried forward, and the United States may carry forward up to 100 percent of its baseline quota (75.2 mt dw). Recommendation 13-03 also included a total of 75.2 mt dw (100 mt ww) of quota transfers from the United States to other countries. These transfers were 37.6 mt dw (50 mt ww) to Namibia, 18.8 mt dw (25 mt ww) to Côte d'Ivoire, and 18.8 mt dw (25 mt ww) to Belize.
In 2014, U.S. fishermen landed no South Atlantic swordfish according to data available as of December 31, 2014. The adjusted 2014 South Atlantic swordfish quota was 75.1 mt dw due to nominal landings the previous year. Therefore, 75.1 mt dw of underharvest is available to carry over to 2015. NMFS is carrying forward 75.1 mt dw to be added to the 75.2 mt dw baseline quota. The quota is then reduced by the 75.2 mt dw of annual international quota transfers outlined above, resulting in an adjusted South Atlantic swordfish quota of 75.1 mt dw for the 2015 fishing year.
During the proposed rule comment period, NMFS received four written comments, three of which were directly related to the proposed rule. NMFS also heard comments during a discussion on the rule held at the HMS Advisory Panel meeting on March 10, 2015. A summary of the relevant comments on the proposed rule are shown below with NMFS' response. One written comment requested the general protection of fish, which is not specifically relevant to this rulemaking. All written comments submitted during the comment period can be found at
Currently, the United States does not utilize the entire base quota from ICCAT, thus, the underharvest carryover limit is unlikely to affect domestic access to the resource in the short term. Because the current carryover limit is unlikely to affect domestic access to the resource, NMFS is not changing the current limit as requested by the commenter.
Regarding the concerns that the underharvest carryover limit affects U.S. fishermen's opportunity to harvest the U.S. quota at optimum yield, ICCAT adopted the limited underharvest carryover provision to help ensure that MSY is not exceeded. The Magnuson-Stevens Act requires preventing overfishing while achieving on a continuing basis optimum yield. Optimum yield itself is prescribed based on MSY as reduced by ecological and other factors. The carryover limit is consistent with the MSA and with ATCA, which provides that quotas adopted at ICCAT cannot be increased or decreased. Furthermore, we note that for the past decade, the domestic fishery has neither utilized the entire U.S. quota allocation nor has it harvested it at a level to be impacted by an underharvest carryover limit.
In the future, when negotiating swordfish recommendations at ICCAT, the United States will consider the state of the domestic fishery at that time to balance the needs of both U.S. fishermen and the environment.
The final rule contains no changes from the proposed rule, except for minor landings updates based on more recent 2014 landings reports.
Pursuant to the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that the final rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, the Atlantic Tunas Convention Act, and other applicable law.
This final action is exempt from the procedures of E.O. 12866 because this action contains no implementing regulations.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
Through this final rule NMFS establishes fishery management measures for the 2015 ocean salmon fisheries off Washington, Oregon, and California and the 2016 salmon seasons opening earlier than May 1, 2016. Specific fishery management measures vary by fishery and by area. The measures establish fishing areas, seasons, quotas, legal gear, recreational fishing days and catch limits, possession and landing restrictions, and minimum lengths for salmon taken in the U.S. exclusive economic zone (EEZ) (3-200 NM) off Washington, Oregon, and California. The management measures are intended to prevent overfishing and to apportion the ocean harvest equitably among treaty Indian, non-treaty commercial, and recreational fisheries. The measures are also intended to allow a portion of the salmon runs to escape the ocean fisheries in order to provide for spawning escapement and inside fisheries (fisheries occurring in state internal waters). This document also announces the availability of an environmental assessment (EA) that analyzes the environmental impacts of implementing the 2015 ocean salmon management measures.
This final rule is effective from 0001 hours Pacific Daylight Time, May 1, 2015, until the effective date of the 2016 management measures, as published in the
Copies of the documents cited in this document are available from Dr. Donald O. McIsaac, Executive Director, Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384, and are posted on the Pacific Fishery Management Council's (Council's) Web site (
Peggy Mundy at 206-526-4323, or Heidi Taylor at 562-980-4039.
The ocean salmon fisheries in the EEZ off Washington, Oregon, and California are managed under a “framework” fishery management plan entitled the Pacific Coast Salmon Fishery Management Plan (Salmon FMP). Regulations at 50 CFR part 660, subpart H, provide the mechanism for making preseason and inseason adjustments to the management measures, within limits set by the Salmon FMP, by notification in the
The management measures for the 2015 and pre-May 2016 ocean salmon fisheries that are implemented in this final rule were recommended by the Council at its April 10 to 16, 2015, meeting.
The Council announced its annual preseason management process for the 2015 ocean salmon fisheries in the
In accordance with the Salmon FMP, the Council's Salmon Technical Team (STT) and staff economist prepared four reports for the Council, its advisors, and the public. All four reports were posted on the Council's Web site and otherwise made available to the Council, its
Following completion of the first two reports, the Council met in Vancouver, WA from March 6 to 12, 2015, to develop 2015 management alternatives for proposal to the public. The Council proposed three alternatives for commercial and recreational fisheries management for analysis and public comment. These alternatives consisted of various combinations of management measures designed to protect weak stocks of coho and Chinook salmon, and to provide for ocean harvests of more abundant stocks. After the March Council meeting, the Council's STT and staff economist prepared a third report, “Preseason Report II Proposed Alternatives and Environmental Assessment Part 2 for 2015 Ocean Salmon Fishery Regulations” (PRE II), which analyzes the effects of the proposed 2015 management alternatives.
Public hearings, sponsored by the Council, to receive testimony on the proposed alternatives were held on March 30, 2015, in Westport, WA and Coos Bay, OR; and on March 31, 2015, in Fort Bragg, CA. The States of Washington, Oregon, and California sponsored meetings in various forums that also collected public testimony, which was then presented to the Council by each state's Council representative. The Council also received public testimony at both the March and April meetings and received written comments at the Council office.
The Council met from April 10 to 16, 2015, in Rohnert Park, CA to adopt its final 2015 salmon management recommendations. Following the April Council meeting, the Council's STT and staff economist prepared a fourth report, “Preseason Report III Analysis of Council-Adopted Management Measures for 2015 Ocean Salmon Fisheries” (PRE III), which analyzes the environmental and socio-economic effects of the Council's final recommendations. After the Council took final action on the annual ocean salmon specifications in April, it transmitted the recommended management measures to NMFS, published them in its newsletter, and also posted them on the Council Web site (
The Council's documents described above (PRE I, PRE II, and PRE III) collectively comprise the EA for this action, providing analysis of environmental and socioeconomic effects under the National Environmental Policy Act. The EA and its related Finding of No Significant Impact are posted on the NMFS West Coast Region Web site (
The need to meet Endangered Species Act (ESA) consultation requirements and obligations of the Pacific Salmon Treaty (PST) between the U.S. and Canada for several stocks will shape salmon fisheries in 2015, and four stocks will constrain fishing in 2015.
Fisheries south of Cape Falcon, OR are limited in 2015 primarily by the status of ESA-listed Sacramento River winter Chinook salmon (SRWC) and California Coastal Chinook salmon (CCC). Fisheries north of Cape Falcon are limited primarily by the status of ESA-listed Lower Columbia River (LCR) Chinook salmon, and Puget Sound Chinook salmon, and by Queets River coho, which are not ESA-listed. Also limiting on fisheries north of Cape Falcon are Thompson River coho from Canada, which are managed according to the PST. Not limiting in 2015, but worth mentioning is ESA-listed Lower Columbia River natural coho (LCR coho) for which NMFS issued a new biological opinion in 2015. At the start of the preseason planning process for the 2015 management season, NMFS provided a letter to the Council, dated March 3, 2015, summarizing limits to impacts on ESA-listed species for 2015, based on existing biological opinions and 2015 abundance information, as required by the Salmon FMP. The limitations imposed in order to protect these stocks are described below. The alternatives and the Council's recommended management measures for 2015 were designed to avoid exceeding these limitations.
Annual Catch Limits (ACLs) are set for two Chinook salmon stocks, Sacramento River fall Chinook (SRFC) and KRFC, and one coho stock, Willapa Bay natural coho. The Chinook salmon stocks are indicator stocks for the Central Valley Fall Chinook complex and the Southern Oregon/Northern California Chinook complex, respectively. The Far North Migrating Coastal Chinook complex includes a group of Chinook salmon stocks that are caught primarily in fisheries north of Cape Falcon, Oregon and other fisheries that occur north of the U.S./Canada Border. No ACL is set for these stocks because they are managed according to the PST with Canada. Other Chinook salmon stocks caught in fisheries north of Cape Falcon are ESA-listed or hatchery produced, and are managed consistent with ESA consultations or hatchery goals. Willapa Bay natural coho is the only coho stock for which an ACL is set, as the other coho stocks in the FMP are either ESA-listed, hatchery produced, or managed under the PST.
ACLs for salmon stocks are escapement-based, which means they establish a number of adults that must escape the fisheries to return to the spawning grounds. ACLs are set based on the annual abundance projection and a fishing rate reduced to account for scientific uncertainty. The abundance forecasts for 2015 are described in more detail below in the “Management Measures for 2015 Fisheries” section of this final rule. For SRFC in 2015, the overfishing limit (OFL) is S
As explained in more detail above under “Stocks of Concern,” fisheries north and south of Cape Falcon, are constrained by impact limits necessary to protect ESA-listed salmon stocks including SRWC, CCC, and Puget Sound coho, as well as Queets River coho which is not ESA-listed, and Canadian Thompson River coho. For 2015, projected abundance of the three stocks with ACLs (SRFC, KRFC, and Willapa Bay natural coho), in combination with the constraints for ESA-listed and non-ESA-listed stocks, are expected to result in escapements greater than required to meet the ACLs for all three stocks with defined ACLs.
The Council invited written comments on developing 2015 salmon management measures in their notice announcing public meetings and hearings (79 FR 78805, December 31, 2014). At its March meeting, the Council adopted three alternatives for 2015 salmon management measures having a range of quotas, season structure, and impacts, from the least restrictive in
C
The Council, including the NMFS representative, took all of these comments into consideration. The Council's final recommendation generally includes aspects of all three alternatives, while taking into account the best available scientific information and ensuring that fisheries are consistent with ESA consultation standards, ACLs, PST obligations, and tribal fishing rights. These management tools assist the Council in meeting impact limits on weak stocks. The Council adopted alternative I for incidental halibut retention, this alternative is consistent with retention limits adopted for 2014 salmon fisheries and April 2015 salmon fisheries (79 FR 24580, May 1, 2014).
The Council-recommended ocean harvest levels and management measures for the 2015 fisheries are designed to apportion the burden of protecting the weak stocks identified and discussed in PRE I equitably among ocean fisheries and to allow maximum harvest of natural and hatchery runs surplus to inside fishery and spawning needs. NMFS finds the Council's recommendations responsive to the goals of the Salmon FMP, the requirements of the resource, and the socioeconomic factors affecting resource users. The recommendations are consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act, U.S. obligations to Indian tribes with federally recognized fishing rights, and U.S. international obligations regarding Pacific salmon. The Council's recommended management measures also comply with NMFS ESA consultation standards and guidance, for those listed salmon species that may be affected by Council fisheries. Accordingly, NMFS, through this final rule, approves and implements the Council's recommendations.
North of Cape Falcon, the 2015 management measures for non-Indian commercial troll and recreational fisheries have increased quotas for Chinook salmon and decreased quotas for coho salmon, compared to 2014. This is due primarily to the fact that forecasts for Chinook stocks north of Cape Falcon are generally higher than in 2014, and forecasts for coho are generally lower. Conservation constraints on Chinook salmon are largely unchanged, including the exploitation rate limit for ESA-listed LCR tule Chinook, which remains at 41 percent in 2015. As noted previously, Puget Sound Chinook are somewhat constraining on the 2015 fisheries in order to allow sufficient numbers of fish to reach inside fisheries. Impacts in Alaskan and Canadian fisheries on salmon stocks originating north of Cape Falcon are expected to increase slightly for coho in 2015 compared with 2014. However, there is uncertainty regarding impacts of northern fisheries on Chinook salmon, as the Pacific Salmon Commission's Chinook Technical Committee (CTC) did not reach consensus on adopting a new CTC Chinook model calibration that is used to provide impacts for northern fisheries to the Fishery Regulation Assessment Model (FRAM). To address this uncertainty, the Council relied on the CTC's preliminary calibration, as this is
Recreational fisheries south of Cape Falcon will be directed primarily at Chinook salmon, with opportunity for coho limited to the area between Cape Falcon and the Oregon/California Border. The projected abundance of SRFC in 2015 is above the 2014 projection. Under the management measures in this final rule, and including anticipated in-river fishery impacts, spawning escapement for SRFC is projected at 341,017, well above the S
As discussed above in “Stocks of Concern,” NMFS' 2012 RPA for SRWC, together with projected abundance for 2015, limits Council-area fishery impacts to SRWC to 19.0 percent. In deciding on the recommended management measures, the Council additionally considered information on the impacts of ongoing drought on California salmon stocks, particularly SRWC, including estimated freshwater mortality of 95 percent of the 2014 SRWC brood year juveniles, information related to warm ocean conditions in 2015, information developed by CDFW on time and area vulnerability of SRWC to commercial and recreational fisheries, and public testimony on proposed season structure. Based on this information, the Council adopted management measures that limit age-3 impact rate on SRWC to 17.5 percent. In response to the information presented by CDFW on the time and area vulnerability of SRWC, the final management measures include specific limits on the fishing seasons south of Pigeon Point.
The treaty-Indian commercial troll fishery quota for 2015 is 60,000 Chinook salmon in ocean management areas and Washington State Statistical Area 4B combined. This quota is lower than the 62,500 Chinook salmon quota in 2014, for the same reasons discussed above for the non-tribal fishery. The treaty-Indian commercial troll fisheries include a Chinook-directed fishery in May and June with a quota of 30,000 Chinook salmon, and an all-salmon season beginning July 1 with a 30,000 Chinook salmon sub-quota. The coho quota for the treaty-Indian troll fishery in ocean management areas, including Washington State Statistical Area 4B, for the July-September period is 42,500 coho, lower than in 2014.
The Council is recommending one new provisions for 2015 fisheries, based on the concurrence of its Enforcement Consultants. Previously, all salmon on board a vessel were required meet the minimum size, landing/possession limit, or other special requirements for the area being fished and the area in which they are landed if the area is open or has been closed less than 96 hours for that species of salmon. Further, salmon were permitted to be landed in an area that has been closed for a species of salmon more than 96 hours only if they meet the minimum size, landing/possession limit, or other special requirements for the area in which they were caught. In 2015 the area closure requirements are reduced to from 96 to 48 hours.
The timing of the March and April Council meetings makes it impracticable for the Council to recommend fishing seasons that begin before May 1 of the same year. Therefore, this action also establishes the 2016 fishing seasons that open earlier than May 1. The Council recommended, and NMFS concurs, that the commercial season off Oregon from Cape Falcon to the Oregon/California border, the commercial season off California from Horse Mountain to Point Arena, the recreational season off Oregon from Cape Falcon to Humbug Mountain, and the recreational season off California from Horse Mountain to the U.S./Mexico border will open in 2016 as indicated in the Season Description section of this document. At the March 2016 meeting, the Council may consider inseason recommendations to adjust the commercial and recreational seasons prior to May 1 in the areas off Oregon and California.
The following sections set out the management regime for the salmon fishery. Open seasons and days are described in Sections 1, 2, and 3 of the 2015 management measures. Inseason closures in the commercial and recreational fisheries are announced on the NMFS hotline and through the U.S. Coast Guard (USCG) Notice to Mariners as described in Section 6. Other inseason adjustments to management measures are also announced on the hotline and through the Notice to Mariners. Inseason actions will also be published in the
The following are the management measures recommended by the Council and approved and implemented here for 2015 and, as specified, for 2016.
Parts A, B, and C of this section contain restrictions that must be followed for lawful participation in the fishery. Part A identifies each fishing area and provides the geographic boundaries from north to south, the open seasons for the area, the salmon species allowed to be caught during the seasons, and any other special restrictions effective in the area. Part B specifies minimum size limits. Part C specifies special requirements, definitions, restrictions and exceptions.
May 1 through earlier of June 30 or 40,200 Chinook, no more than 9,000 of which may be caught in the area between the U.S./Canada border and the Queets River and no more than 15,000 may be caught in the area between Leadbetter Point and Cape Falcon. Seven days per week with a landing and possession limit of 60 Chinook per vessel per trip from the U.S./Canada
July 1 through earlier of September 22 or attainment of the quota of 26,800 Chinook, no more than 11,000 of which may be caught in the area between the U.S./Canada border and the Queets River, or 19,200 marked coho (C.8.d). July 1 through 7, then Friday through Tuesday, July 10 through September 22 with a landing and possession limit of 50 Chinook and 50 coho per vessel per open period (C.1). Vessels in possession of salmon north of the Queets River may not cross the Queets River line without first notifying WDFW at 360-902-2739 with area fished, total Chinook, coho, and halibut catch aboard, and destination. Vessels in possession of salmon south of the Queets River may not cross the Queets River line without first notifying WDFW at 360-902-2739 with area fished, total Chinook, coho, and halibut catch aboard, and destination. When it is projected that 19,500 Chinook have been landed overall, or 8,250 Chinook have been landed in the area between the U.S/Canada border and the Queets River, inseason action modifying the open period to five days per week and adding landing and possession limits will be considered to ensure the guideline is not exceeded. No earlier than September 1, if at least 5,000 marked coho remain on the quota, inseason action may be considered to allow non-selective coho retention (C.8). All salmon, except no chum retention north of Cape Alava, Washington in August and September (C.7). Chinook minimum size limit of 28 inches total length (B, C.1). All coho must be marked except as noted above (C.8.d). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). Mandatory Yelloweye Rockfish Conservation Area, Cape Flattery and Columbia Control Zones, and beginning August 9, Grays Harbor Control Zone closed (C.5). Vessels must land and deliver their fish within 24 hours of any closure of this fishery. Vessels fishing or in possession of salmon while fishing north of Leadbetter Point must land and deliver their fish within the area and north of Leadbetter Point. Vessels fishing or in possession of salmon while fishing south of Leadbetter Point must land and deliver their fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land their fish in Garibaldi, Oregon. Under state law, vessels must report their catch on a state fish receiving ticket. Oregon State regulations require all fishers landing salmon into Oregon from any fishery between Leadbetter Point, Washington and Cape Falcon, Oregon must notify ODFW within one hour of delivery or prior to transport away from the port of landing by either calling 541-867-0300 Ext. 271 or sending notification via email to
April 1 through August 27;
September 2 through September 30 (C.9.a).
Seven days per week. All salmon except coho (C.4, C.7). Chinook minimum size limit of 28 inches total length (B, C.1). All vessels fishing in the area must land their fish in the State of Oregon. See gear restrictions and definitions (C.2, C.3) and Oregon State regulations for a description of special regulations at the mouth of Tillamook Bay.
Beginning September 2, no more than 60 Chinook per vessel per landing week (Thursday through Wednesday).
In 2016, the season will open March 15, all salmon except coho. Chinook minimum size limit of 28 inches total length. Gear restrictions same as in 2015. This opening could be modified following Council review at its March 2016 meeting
April 1 through May 31;
June 1 through earlier of June 30, or a 1,800 Chinook quota;
July 1 through earlier of July 31, or a 1,000 Chinook quota;
August 1 through earlier of August 27, or a 500 Chinook quota (C.9.a).
Seven days per week. All salmon except coho (C.4, C.7). Chinook minimum size limit of 28 inches total length (B, C.1). Prior to June 1, all fish caught in this area must be landed and delivered in the State of Oregon. June 1 through August 27, single daily landing and possession limit of 30 Chinook per vessel per day (C.8.f). Any remaining portion of the June and/or July Chinook quotas may be transferred inseason on an impact neutral basis to the next open quota period. All vessels fishing in this area must land and deliver all fish within this area or Port Orford, within 24 hours of any closure of this fishery, and prior to fishing outside of this area. Oregon State regulations require fishers landing salmon from any quota managed season within this area to notify ODFW within one hour of
In 2016, the season will open March 15 for all salmon except coho, with a 28 inch Chinook minimum size limit. This opening could be modified following Council review at its March 2016 meeting.
September 11 through earlier of September 30, or 3,000 Chinook quota (C.9.b). Five days per week, Friday through Tuesday. All salmon except coho (C.4, C.7). Chinook minimum size limit of 28 inches total length (B, C.1). Landing and possession limit of 20 Chinook per vessel per day (C.8.f). All fish caught in this area must be landed within the area and within 24 hours of any closure of the fishery and prior to fishing outside the area (C.10). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). Klamath Control Zone closed (C.5.e). See California State regulations for additional closures adjacent to the Smith and Klamath Rivers. When the fishery is closed between the Oregon/California border and Humbug Mountain and open to the south, vessels with fish on board caught in the open area off California may seek temporary mooring in Brookings, Oregon prior to landing in California only if such vessels first notify the Chetco River Coast Guard Station via VHF channel 22A between the hours of 0500 and 2200 and provide the vessel name, number of fish on board, and estimated time of arrival (C.6).
Closed.
May 1 through 31;
June 15 through 30;
July 12 through 31;
August 1 through 26;
September 1 through 30 (C.9.b).
Seven days per week. All salmon except coho (C.4, C.7). Chinook minimum size limit of 27 inches total length (B, C.1). All fish must be landed in California. All salmon caught in California prior to September 1 must be landed and offloaded no later than 11:59 p.m., August 30 (C.6). When the California KMZ fishery is open, all fish caught in the area must be landed south of Horse Mountain (C.6). During September, all fish must be landed north of Point Arena (C.6). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3).
In 2016, the season will open April 16 through 30 for all salmon except coho, with a 27-inch Chinook minimum size limit and the same gear restrictions as in 2015. All fish caught in the area must be landed in the area. This opening could be modified following Council review at its March 2016 meeting.
May 1 through 31;
June 7 through 30;
July 8 through 31;
August 1 through 29;
September 1 through 30 (C.9.b).
Seven days per week. All salmon except coho (C.4, C.7). Chinook minimum size limit of 27 inches total length prior to September 1, 26 inches thereafter (B, C.1). All fish must be landed in California. All salmon caught in California prior to September 1 must be landed and offloaded no later than 11:59 p.m., August 30 (C.6). During September, all fish must be landed south of Point Arena (C.6). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3).
All salmon except coho (C.4, C.7). Chinook minimum size limit of 26 inches total length (B, C.1). All fish caught in this area must be landed between Point Arena and Pigeon Point (C.6). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3).
May 1 through 31;
June 7 through 30;
July 8 through 31;
August 1 through 15 (C.9.b).
Seven days per week. All salmon except coho (C.4, C.7). Chinook minimum size limit of 27 inches total length (B, C.1). All fish must be landed in California. All salmon caught in California prior to September 1 must be landed and offloaded no later than 11:59 p.m., August 30 (C.6). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3).
May 1 through 31;
June 7 through 30;
July 8 through 31 (C.9.b).
Seven days per week. All salmon except coho (C.4, C.7). Chinook minimum size limit of 27 inches total length (B, C.1). All fish must be landed in California. All salmon caught in California prior to September 1 must be landed and offloaded no later than 11:59 p.m., August 30 (C.6). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3).
California State regulations require all salmon be made available to a CDFW representative for sampling immediately at port of landing. Any person in possession of a salmon with a missing adipose fin, upon request by an authorized agent or employee of the CDFW, shall immediately relinquish the head of the salmon to the state (California Fish and Game Code § 8226).
All salmon on board a vessel must meet the minimum size, landing/possession limit, or other special requirements for the area being fished and the area in which they are landed if the area is open or has been closed less than 48 hours for that species of salmon. Salmon may be landed in an area that has been closed for a species of salmon more than 48 hours only if they meet the minimum size, landing/possession limit, or other special requirements for the area in which they were caught. Salmon may not be filleted prior to landing.
Any person who is required to report a salmon landing by applicable state law must include on the state landing receipt for that landing both the number and weight of salmon landed by species. States may require fish landing/receiving tickets be kept on board the vessel for 90 days or more after landing to account for all previous salmon landings.
a. Salmon may be taken only by hook and line using single point, single shank, barbless hooks.
b. Cape Falcon, Oregon, to the Oregon/California border: No more than 4 spreads are allowed per line.
c. Oregon/California border to U.S./Mexico border: No more than 6 lines are allowed per vessel, and barbless circle hooks are required when fishing with bait by any means other than trolling.
a. Except as provided under C.4.b below, it is unlawful for a vessel to have troll or recreational gear in the water while in any area closed to fishing for a certain species of salmon, while possessing that species of salmon; however, fishing for species other than salmon is not prohibited if the area is open for such species, and no salmon are in possession.
b. When Genetic Stock Identification (GSI) samples will be collected in an area closed to commercial salmon fishing, the scientific research permit holder shall notify NOAA Office of Law Enforcement, USCG, CDFW, and Oregon State Patrol at least 24 hours prior to sampling and provide the following information: The vessel name, date, location, and time collection activities will be done. Any vessel collecting GSI samples in a closed area shall not possess any salmon other than those from which GSI samples are being collected. Salmon caught for collection of GSI samples must be immediately released in good condition after collection of samples.
a. Cape Flattery Control Zone—The area from Cape Flattery (48°23′00″ N. lat.) to the northern boundary of the U.S. EEZ; and the area from Cape Flattery south to Cape Alava (48°10′00″ N. lat.) and east of 125°05′00″ W. long.
b. Mandatory Yelloweye Rockfish Conservation Area—The area in Washington Marine Catch Area 3 from 48°00.00′ N. lat.; 125°14.00′ W. long. to 48°02.00′ N. lat.; 125°14.00′ W. long. to 48°02.00′ N. lat.; 125°16.50′ W. long. to 48°00.00′ N. lat.; 125°16.50′ W. long. and connecting back to 48°00.00′ N. lat.; 125°14.00′ W. long.
c. Grays Harbor Control Zone—The area defined by a line drawn from the Westport Lighthouse (46°53′18″ N. lat., 124° 07′01″ W. long.) to Buoy #2 (46°52′42″ N. lat., 124°12′42″ W. long.) to Buoy #3 (46°55′00″ N. lat., 124°14′48″ W. long.) to the Grays Harbor north jetty (46°55′36″ N. lat., 124°10′51″ W. long.).
d. Columbia Control Zone—An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long.), and then along the north jetty to the point of intersection with the Buoy #10 line; and, on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line.
e. Klamath Control Zone—The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately six nautical miles north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles off shore); and on the south, by 41°26′48″ N. lat. (approximately six nautical miles south of the Klamath River mouth).
If prevented by unsafe weather conditions or mechanical problems from meeting special management area landing restrictions, vessels must notify the USCG and receive acknowledgment of such notification prior to leaving the area. This notification shall include the name of the vessel, port where delivery will be made, approximate amount of salmon (by species) on board, the estimated time of arrival, and the specific reason the vessel is not able to meet special management area landing restrictions.
In addition to contacting the USCG, vessels fishing south of the Oregon/California border must notify CDFW within one hour of leaving the management area by calling 800-889-8346 and providing the same information as reported to the USCG.
During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.28 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on. When halibut are caught and landed incidental to commercial salmon fishing by an IPHC license holder, any person who is required to report the salmon landing by applicable state law must include on the state landing receipt for that landing both the number of halibut landed, and the total dressed, head-on weight of halibut landed, in pounds, as well as the number and species of salmon landed.
License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (IPHC) (phone: 206-634-1838). Applicants must apply prior to mid-March 2016 for 2016 permits (exact date to be set by the IPHC in early 2016). Incidental harvest is authorized only during April, May, and June of the 2015 troll seasons and after June 30 in 2015 if quota remains and if announced on the NMFS hotline (phone: 1-800-662-9825 or 206-526-6667). WDFW, ODFW, and CDFW will monitor landings. If the landings are projected to exceed the IPHC's 29,035 pound preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to prohibit retention of halibut in the non-Indian salmon troll fishery.
May 1, 2015, through December 31, 2015, and April 1-30, 2016, license holders may land or possess no more than one Pacific halibut per each four Chinook, except one Pacific halibut may be possessed or landed without meeting the ratio requirement, and no more than 12 halibut may be possessed or landed per trip. Pacific halibut retained must be no less than 32 inches in total length (with head on).
Incidental Pacific halibut catch regulations in the commercial salmon troll fishery adopted for 2015, prior to any 2015 inseason action, will be in effect when incidental Pacific halibut retention opens on April 1, 2016, unless otherwise modified by inseason action at the March 2016 Council meeting.
a. “C-shaped” yelloweye rockfish conservation area (YRCA) is an area to be voluntarily avoided for salmon trolling. NMFS and the Council request salmon trollers voluntarily avoid this area in order to protect yelloweye rockfish. The area is defined in Pacific Council Halibut Catch Sharing Plan in the North Coast subarea (Washington marine area 3), with the following coordinates in the order listed:
In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance applies:
a. Chinook remaining from the May through June non-Indian commercial troll harvest guideline north of Cape Falcon may be transferred to the July through September harvest guideline, if the transfer would not result in exceeding preseason impact expectations on any stocks.
b. Chinook remaining from the June and/or July non-Indian commercial troll quotas in the Oregon KMZ may be transferred to the Chinook quota for the next open period if the transfer would not result in exceeding preseason impact expectations on any stocks.
c. NMFS may transfer fish between the recreational and commercial fisheries north of Cape Falcon if there is agreement among the areas' representatives on the Salmon Advisory Subpanel (SAS), and if the transfer would not result in exceeding the preseason impact expectations on any stocks.
d. At the March 2016 meeting, the Council will consider inseason recommendations for special regulations for any experimental fisheries (proposals must meet Council protocol and be received in November 2015).
e. If retention of unmarked coho is permitted by inseason action, the allowable coho quota will be adjusted to ensure preseason projected impacts on all stocks are not exceeded.
f. Landing limits may be modified inseason to sustain season length and keep harvest within overall quotas.
Consistent with Council management objectives:
a. The State of Oregon may establish additional late-season fisheries in state waters.
b. The State of California may establish limited fisheries in selected state waters.
Check state regulations for details.
C.10. For the purposes of California Fish and Game Code, Section 8232.5, the definition of the Klamath Management Zone (KMZ) for the ocean salmon season is the area from Humbug Mountain, Oregon, to Horse Mountain, California.
Parts A, B, and C of this section contain restrictions that must be followed for lawful participation in the fishery. Part A identifies each fishing area and provides the geographic boundaries from north to south, the open seasons for the area, the salmon species allowed to be caught during the seasons, and any other special restrictions effective in the area. Part B specifies minimum size limits. Part C specifies special requirements, definitions, restrictions and exceptions.
May 15 through 16, May 22 through 23, and May 30 through June 12 or a coastwide marked Chinook quota of 10,000 (C.5).
Seven days per week. All salmon except coho, two fish per day. All Chinook must be marked with a healed adipose fin clip (C.1). Chinook 24-inch total length minimum size limit (B). See gear restrictions and definitions (C.2, C.3). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).
May 30 through earlier of June 12 or a coastwide marked Chinook quota of 10,000 (C.5)
Seven days per week. All salmon except coho, two fish per day. All Chinook must be marked with a healed adipose fin clip (C.1). Chinook 24-inch total length minimum size limit (B). See gear restrictions and definitions (C.2, C.3). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).
May 30 through earlier of June 12 or a coastwide marked Chinook quota of 10,000 (C.5).
Seven days per week. All salmon except coho, two fish per day. All Chinook must be marked with a healed adipose fin clip (C.1). Chinook 24-inch total length minimum size limit (B). See gear restrictions and definitions (C.2, C.3). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).
June 13 through earlier of September 30 or 14,850 marked coho subarea quota with a subarea guideline of 8,400 Chinook (C.5).
Seven days per week. All salmon except no chum beginning August 1; two fish per day plus two additional pink. All coho must be marked with a healed adipose fin clip (C.1). Beginning August 1, Chinook non-retention east of the Bonilla-Tatoosh line (C.4.a) during Council managed ocean fishery. See gear restrictions and definitions (C.2, C.3). Inseason management may be used to sustain season length and keep harvest within the overall Chinook and coho recreational TACs for north of Cape Falcon (C.5).
June 13 through earlier of September 30 or 3,610 marked coho subarea quota with a subarea guideline of 2,600 Chinook (C.5).
October 1 through earlier of October 11 or 100 marked coho quota or 100 Chinook quota (C.5) in the area north of 47°50′00″ N. lat. and south of 48°00′00″ N. lat.
Seven days per week. All salmon, two fish per day plus two additional pink. All coho must be marked with a healed adipose fin clip (C.1). See gear restrictions and definitions (C.2, C.3). Inseason management may be used to sustain season length and keep harvest within the overall Chinook and coho recreational TACs for north of Cape Falcon (C.5).
June 13 through earlier of September 30 or 52,840 marked coho subarea quota with a subarea guideline of 27,900 Chinook (C.5).
Seven days per week. All salmon; two fish per day, no more than one of which can be a Chinook. All coho must be marked with a healed adipose fin clip (C.1). See gear restrictions and definitions (C.2, C.3). Grays Harbor Control Zone closed beginning August 11 (C.4.b). Inseason management may be used to sustain season length and keep harvest within the overall Chinook and coho recreational TACs for north of Cape Falcon (C.5).
June 13 through earlier of September 30 or 79,400 marked coho subarea quota with a subarea guideline of 15,000 Chinook (C.5).
Seven days per week. All salmon; two fish per day, no more than one of which can be a Chinook. All coho must be marked with a healed adipose fin clip (C.1). See gear restrictions and definitions (C.2, C.3). Columbia Control Zone closed (C.4.c). Inseason management may be used to sustain season length and keep harvest within the overall Chinook and coho recreational TACs for north of Cape Falcon (C.5).
March 15 through October 31 (C.6), except as provided below during the all-salmon mark-selective and September non-mark-selective coho fisheries.
Seven days per week. All salmon except coho; two fish per day (C.1). Chinook minimum size limit of 24 inches total length (B). See gear restrictions and definitions (C.2, C.3).
• Non-mark-selective coho fishery: September 4 through the earlier of September 30 or a landed catch of 12,500 non-mark-selective coho quota (C.5).
Seven days per week. All salmon, two fish per day (C.5).
The all salmon except coho season reopens the earlier of October 1 or attainment of the coho quota (C.5).
In 2016, the season between Cape Falcon and Humbug Mountain will open March 15 for all salmon except coho, two fish per day (B, C.1, C.2, C.3).
Fishing in the Stonewall Bank yelloweye rockfish conservation area restricted to trolling only on days the all depth recreational halibut fishery is open (call the halibut fishing hotline 1-800-662-9825 or 206-526-6667 for specific dates) (C.3.b, C.4.d).
All-salmon mark-selective coho fishery: June 27 through earlier of August 9 or a landed catch of 55,000 marked coho.
Seven days per week. All salmon, two fish per day. All retained coho must be marked with a healed adipose fin clip (C.1). Chinook minimum size limit of 24 inches total length (B). See gear restrictions and definitions (C.2, C.3). Any remainder of the mark-selective coho quota will be transferred on an impact neutral basis to the September non-selective coho quota from Cape Falcon to Humbug Mountain (C.5). The all salmon except coho season reopens the earlier of August 10 or attainment of the coho quota.
Fishing in the Stonewall Bank yelloweye rockfish conservation area restricted to trolling only on days the all depth recreational halibut fishery is open (call the halibut fishing hotline 1-800-662-9825 or 206-526-6667 for specific dates) (C.3.b, C.4.d).
May 1 through September 7 (C.6).
Seven days per week. All salmon except coho, except as noted above in the all-salmon mark-selective coho fishery; two fish per day (C.1). Chinook minimum size limit of 24 inches total length (B). See gear restrictions and definitions (C.2, C.3).
May 1 through September 7 (C.6).
Seven days per week. All salmon except coho, two fish per day (C.1). Chinook minimum size limit of 20 inches total length (B). See gear restrictions and definitions (C.2, C.3). Klamath Control Zone closed in August (C.4.e). See California State regulations for additional closures adjacent to the Smith, Eel, and Klamath Rivers.
April 4 through November 8 (C.6).
Seven days per week. All salmon except coho, two fish per day (C.1). Chinook minimum size limit of 20 inches total length (B). See gear restrictions and definitions (C.2, C.3).
In 2016, season opens April 2 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 20 inches total length (B); and the same gear restrictions as in 2015 (C.2, C.3).
April 4 through October 31 (C.6).
Seven days per week. All salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches total length through April 30, 20 inches thereafter (B). See gear restrictions and definitions (C.2, C.3).
In 2016, season opens April 2 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches total length (B); and the same gear restrictions as in 2015 (C.2, C.3).
April 4 through September 7 (C.6).
Seven days per week. All salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches total length through May 31, 20 inches thereafter (B). See gear restrictions and definitions (C.2, C.3).
In 2016, season opens April 2 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches total length (B); and the same gear restrictions as in 2015 (C.2, C.3).
April 4 through July 19 (C.6).
Seven days per week. All salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches total length through May 31, 20 inches thereafter (B). See gear restrictions and definitions (C.2, C.3).
In 2016, season opens April 2 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches total length (B); and the same gear restrictions as in 2015 (C.2, C.3).
California State regulations require all salmon be made available to a CDFW representative for sampling immediately at port of landing. Any person in possession of a salmon with a missing adipose fin, upon request by an authorized agent or employee of the CDFW, shall immediately relinquish the head of the salmon to the state (California Code of Regulations Title 14 Section 1.73).
All salmon on board a vessel must meet the minimum size or other special requirements for the area being fished and the area in which they are landed if that area is open. Salmon may be landed in an area that is closed only if they meet the minimum size or other special requirements for the area in which they were caught. Salmon may not be filleted prior to landing.
Ocean Boat Limits: Off the coast of Washington, Oregon, and California, each fisher aboard a vessel may continue to use angling gear until the combined daily limits of Chinook and coho salmon for all licensed and juvenile anglers aboard have been attained (additional state restrictions may apply).
Salmon may be taken only by hook and line using barbless hooks. All persons fishing for salmon, and all persons fishing from a boat with salmon on board, must meet the gear restrictions listed below for specific areas or seasons.
a. U.S./Canada Border to Point Conception, California: No more than one rod may be used per angler; and no more than two single point, single shank barbless hooks are required for all fishing gear. [Note: ODFW regulations in the state-water fishery off Tillamook Bay may allow the use of barbed hooks to be consistent with inside regulations.]
b. Horse Mountain, California, to Point Conception, California: Single point, single shank, barbless circle hooks (see gear definitions below) are required when fishing with bait by any means other than trolling, and no more than two such hooks shall be used. When angling with two hooks, the distance between the hooks must not exceed five inches when measured from the top of the eye of the top hook to the inner base of the curve of the lower hook, and both hooks must be permanently tied in place (hard tied). Circle hooks are not required when artificial lures are used without bait.
a.
b.
c.
a. The Bonilla-Tatoosh Line—A line running from the western end of Cape Flattery to Tatoosh Island Lighthouse (48°23′30″ N. lat., 124°44′12″ W. long.) to the buoy adjacent to Duntze Rock (48°24′37″ N. lat., 124°44′37″ W. long.), then in a straight line to Bonilla Point (48°35′39″ N. lat., 124°42′58″ W. long.) on Vancouver Island, British Columbia.
b. Grays Harbor Control Zone—The area defined by a line drawn from the Westport Lighthouse (46°53′18″ N. lat., 124°07′01″ W. long.) to Buoy #2 (46°52′42″ N. lat., 124°12′42″ W. long.) to Buoy #3 (46°55′00″ N. lat., 124°14′48″ W. long.) to the Grays Harbor north jetty (46°55′36″ N. lat., 124°10′51″ W. long.).
c. Columbia Control Zone—An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy
d. Stonewall Bank yelloweye rockfish conservation area—The area defined by the following coordinates in the order listed:
e. Klamath Control Zone—The ocean area at the Klamath River mouth bounded on the north by 41°38″48″ N. lat. (approximately six nautical miles north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles off shore); and, on the south, by 41°26′48″ N. lat. (approximately 6 nautical miles south of the Klamath River mouth).
Regulatory modifications may become necessary inseason to meet preseason management objectives such as quotas, harvest guidelines, and season duration. In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance applies:
a. Actions could include modifications to bag limits, or days open to fishing, and extensions or reductions in areas open to fishing.
b. Coho may be transferred inseason among recreational subareas north of Cape Falcon to help meet the recreational season duration objectives (for each subarea) after conferring with representatives of the affected ports and the Council's SAS recreational representatives north of Cape Falcon, and if the transfer would not result in exceeding preseason impact expectations on any stocks.
c. Chinook and coho may be transferred between the recreational and commercial fisheries north of Cape Falcon if there is agreement among the representatives of the SAS, and if the transfer would not result in exceeding preseason impact expectations on any stocks.
d. Fishery managers may consider inseason action modifying regulations restricting retention of unmarked coho. To remain consistent with preseason expectations, any inseason action shall consider, if significant, the difference between observed and preseason forecasted mark rates. Such a consideration may also include a change in bag limit of two salmon, no more than one of which may be a coho.
e. Marked coho remaining from the Cape Falcon to Oregon/California border recreational mark-selective coho quota may be transferred inseason to the Cape Falcon to Humbug Mountain non-mark-selective recreational fishery if the transfer would not result in exceeding preseason impact expectations on any stocks.
Consistent with Council management objectives, the States of Washington, Oregon, and California may establish limited seasons in state waters. Check state regulations for details.
Parts A, B, and C of this section contain requirements that must be followed for lawful participation in the fishery.
May 1 through the earlier of June 30 or 30,000 Chinook quota. All salmon except coho. If the Chinook quota is exceeded, the excess will be deducted from the later all-salmon season (C.5). See size limit (B) and other restrictions (C).
July 1 through the earlier of September 15, or 30,000 preseason Chinook quota (C.5), or 42,599 coho quota. All salmon. See size limit (B) and other restrictions (C).
All boundaries may be changed to include such other areas as may hereafter be authorized by a Federal court for that tribe's treaty fishery.
S'KLALLAM—Washington State Statistical Area 4B (All).
MAKAH—Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N. lat. (Norwegian Memorial) and east of 125°44′00″ W. long.
QUILEUTE—That portion of the FMA between 48°07′36″ N. lat. (Sand Point) and 47°31′42″ N. lat. (Queets River) and east of 125°44′00″ W. long.
HOH—That portion of the FMA between 47°54′18″ N. lat. (Quillayute River) and 47°21′00″ N. lat. (Quinault River) and east of 125°44′00″ W. long.
QUINAULT—That portion of the FMA between 47°40′06″ N. lat. (Destruction Island) and 46°53′18″ N. lat. (Point Chehalis) and east of 125°44′00″ W. long.
a. Single point, single shank, barbless hooks are required in all fisheries.
b. No more than eight fixed lines per boat.
c. No more than four hand held lines per person in the Makah area fishery (Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N. lat. (Norwegian Memorial) and east of 125°44′00″ W. long.).
a. The quotas include troll catches by the S'Klallam and Makah tribes in Washington State Statistical Area 4B from May 1 through September 15.
b. The Quileute Tribe will continue a ceremonial and subsistence fishery during the time frame of September 15 through October 15 in the same manner as in 2004 through 2014. Fish taken
a. The area within a six nautical mile radius of the mouths of the Queets River (47°31′42″ N. lat.) and the Hoh River (47°45′12″ N. lat.) will be closed to commercial fishing.
b. A closure within two nautical miles of the mouth of the Quinault River (47°21′00″ N. lat.) may be enacted by the Quinault Nation and/or the State of Washington and will not adversely affect the Secretary of Commerce's management regime.
In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance applies:
a. Chinook remaining from the May through June treaty-Indian ocean troll harvest guideline north of Cape Falcon may be transferred to the July through September harvest guideline on a fishery impact equivalent basis.
Under the authority of the Northern Pacific Halibut Act, NMFS promulgated regulations governing the Pacific halibut fishery, which appear at 50 CFR part 300, subpart E. On March 17, 2015, NMFS published a final rule (80 FR 13771) to implement the IPHC's recommendations, to announce fishery regulations for U.S. waters off Alaska and fishery regulations for treaty commercial and ceremonial and subsistence fisheries, some regulations for non-treaty commercial fisheries for U.S. waters off the West Coast, and approval of and implementation of the Area 2A Pacific halibut Catch Sharing Plan and the Area 2A management measures for 2015. The regulations and management measures provide that vessels participating in the salmon troll fishery in Area 2A (all waters off the States of Washington, Oregon, and California), which have obtained the appropriate IPHC license, may retain halibut caught incidentally during authorized periods in conformance with provisions published with the annual salmon management measures. A salmon troller may participate in the halibut incidental catch fishery during the salmon troll season or in the directed commercial fishery targeting halibut, but not both.
The following measures have been approved by the IPHC, and implemented by NMFS. During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.28 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on.
License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (IPHC) (phone: 206-634-1838). Applicants must apply prior to mid-March 2016 for 2016 permits (exact date to be set by the IPHC in early 2016). Incidental harvest is authorized only during April, May, and June of the 2015 troll seasons and after June 30 in 2015 if quota remains and if announced on the NMFS hotline (phone: 1-800-662-9825 or 206-526-6667). WDFW, ODFW, and CDFW will monitor landings. If the landings are projected to exceed the 29,035 pound preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to prohibit retention of halibut in the non-Indian salmon troll fishery.
May 1, 2015, through December 31, 2015, and April 1-30, 2016, license holders may land or possess no more than one Pacific halibut per each four Chinook, except one Pacific halibut may be possessed or landed without meeting the ratio requirement, and no more than 12 halibut may be possessed or landed per trip. Pacific halibut retained must be no less than 32 inches in total length (with head on).
Incidental Pacific halibut catch regulations in the commercial salmon troll fishery adopted for 2015, prior to any 2015 inseason action, will be in effect when incidental Pacific halibut retention opens on April 1, 2016, unless otherwise modified by inseason action at the March 2016 Council meeting.
NMFS and the Council request that salmon trollers voluntarily avoid a “C-shaped” YRCA (also known as the Salmon Troll YRCA) in order to protect yelloweye rockfish. Coordinates for the Salmon Troll YRCA are defined at 50 CFR 660.70(a) in the North Coast subarea (Washington marine area 3). See Section 1.C.7. in this document for the coordinates.
Wherever the words “nautical miles off shore” are used in this document, the distance is measured from the baseline from which the territorial sea is measured.
Geographical landmarks referenced in this document are at the following locations:
Notice of inseason management actions will be provided by a telephone hotline administered by the West Coast Region, NMFS, 1-800-662-9825 or 206-526-6667, and by USCG Notice to Mariners broadcasts. These broadcasts are announced on Channel 16 VHF-FM and 2182 KHz at frequent intervals. The announcements designate the channel or frequency over which the Notice to Mariners will be immediately broadcast. Inseason actions will also be published in the
This final rule is necessary for conservation and management of Pacific coast salmon stocks and is consistent with the Magnuson-Stevens Act and other applicable law. These regulations are being promulgated under the authority of 16 U.S.C. 1855(d) and 16 U.S.C. 773(c).
This final rule is not significant under Executive Order 12866.
The Assistant Administrator for Fisheries finds good cause under 5 U.S.C. 553(b)(B), to waive the requirement for prior notice and opportunity for public comment, as such procedures are impracticable and contrary to the public interest.
The annual salmon management cycle begins May 1 and continues through April 30 of the following year. May 1 was chosen because the pre-May harvests constitute a relatively small
The preseason planning and public review process associated with developing Council recommendations is initiated in February as soon as the forecast information becomes available. The public planning process requires coordination of management actions of four states, numerous Indian tribes, and the Federal Government, all of which have management authority over the stocks. This complex process includes the affected user groups, as well as the general public. The process is compressed into a 2-month period culminating with the April Council meeting at which the Council adopts a recommendation that is forwarded to NMFS for review, approval, and implementation of fishing regulations effective on May 1.
Providing opportunity for prior notice and public comments on the Council's recommended measures through a proposed and final rulemaking process would require 30 to 60 days in addition to the two-month period required for development of the regulations. Delaying implementation of annual fishing regulations, which are based on the current stock abundance projections, for an additional 60 days would require that fishing regulations for May and June be set in the previous year, without the benefit of information regarding current stock status. For the 2015 fishing regulations, the current stock status was not available to the Council until February. Because a substantial amount of fishing occurs during May and June, managing the fishery with measures developed using the prior year's data could have significant adverse effects on the managed stocks, including ESA-listed stocks. Although salmon fisheries that open prior to May are managed under the prior year's measures, as modified by the Council at its March meeting, relatively little harvest occurs during that period (
If these measures are not in place on May 1, the 2014 management measures will continue to apply in most areas. This would result in excessive impacts to some salmon stocks, including exceeding the Endangered Species Act (ESA) consultation standard for Lower Columbia River natural coho and Oregon Coast natural coho, as well as the exploitation rate limit under the Pacific Salmon Treaty (PST) for Canada's Interior Fraser (Thompson River) coho.
Overall, the annual population dynamics of the various salmon stocks require managers to vary the season structure of the various West Coast area fisheries to both protect weaker stocks and give fishers access to stronger salmon stocks, particularly hatchery produced fish. Failure to implement these measures immediately could compromise the status of certain stocks, or result in foregone opportunity to harvest stocks whose abundance has increased relative to the previous year thereby undermining the purpose of this agency action.
In addition, public comment is received and considered by the Council and NMFS throughout the process of developing these management measures. As described above, the Council takes comment at its March and April meetings, and hears summaries of comments received at public meetings held between the March and April meetings in each of the coastal states. NMFS also invited comments in a notice published prior to the March Council meeting, and considered comments received by the Council through its representative on the Council. Thus, these measures were developed with significant public input.
Based upon the above-described need to have these measures effective on May 1 and the fact that there is limited time available to implement these new measures after the final Council meeting in April and before the commencement of the ocean salmon fishing year on May 1, NMFS has concluded it is impracticable and contrary to the public interest to provide an opportunity for prior notice and public comment under 5 U.S.C. 553(b)(B).
The Assistant Administrator for Fisheries also finds that good cause exists under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness of this final rule. As previously discussed, data are not available until February and management measures are not finalized until mid-April. These measures are essential to conserve threatened and endangered ocean salmon stocks, and to provide for harvest of more abundant stocks. Delaying the effectiveness of these measures by 30 days could compromise the ability of some stocks to attain their conservation objectives, preclude harvest opportunity, and negatively impact anticipated international, state, and tribal salmon fisheries, thereby undermining the purposes of this agency action and the requirements of the Magnuson-Stevens Act.
To enhance the fishing industry's notification of these new measures, and to minimize the burden on the regulated community required to comply with the new regulations, NMFS is announcing the new measures over the telephone hotline used for inseason management actions and is posting the regulations on its West Coast Region Web site (
Because prior notice and an opportunity for public comment are not required to be provided for these portions of this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
This action contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which have been approved by the Office of Management and Budget (OMB) under control number 0648-0433. The public reporting burden for providing notifications if landing area restrictions cannot be met is estimated to average 15 minutes per response. This estimate includes the time for reviewing instructions, searching existing data
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
NMFS has current ESA biological opinions that cover fishing under these regulations on all listed salmon species. NMFS reiterated their consultation standards for all ESA listed salmon and steelhead species in their annual Guidance letter to the Council dated March 3, 2015. Some of NMFS past biological opinions have found no jeopardy, and others have found jeopardy, but provided reasonable and prudent alternatives to avoid jeopardy. The management measures for 2015 are consistent with the biological opinions that found no jeopardy, and with the reasonable and prudent alternatives in the jeopardy biological opinions. The Council's recommended management measures therefore comply with NMFS' consultation standards and guidance for all listed salmon species which may be affected by Council fisheries. In some cases, the recommended measures are more restrictive than NMFS' ESA requirements.
In 2009, NMFS consulted on the effects of fishing under the Salmon FMP on the endangered Southern Resident Killer Whale Distinct Population Segment (SRKW) and concluded the salmon fisheries were not likely to jeopardize SRKW. The 2015 salmon management measures are consistent with the terms of that biological opinion.
This final rule was developed after meaningful and collaboration with the affected tribes. The tribal representative on the Council made the motion for the regulations that apply to the tribal fisheries.
16 U.S.C. 773-773k; 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Agency decision.
The National Marine Fisheries Service (NMFS) announces the approval of Amendment 108 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP), Amendment 100 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP), and Amendment 46 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (Crab FMP). These amendments correct text omissions in the BSAI FMP, the GOA FMP, and the Crab FMP. These amendments make the fishery management plan (FMP) texts that establish vessel length limits for small vessels exempted from the license limitation program (LLP) in the Bering Sea and Aleutian Islands Management Area (BSAI) groundfish and king and Tanner crab fisheries, and the Gulf of Alaska (GOA) groundfish fisheries, consistent with the original intent of the LLP, current operations in the fisheries, and Federal regulations. This action promotes the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable laws.
The amendment was approved on April 27, 2015.
Electronic copies of Amendment 108 to the BSAI FMP, Amendment 100 to the GOA FMP, Amendment 46 to the Crab FMP, and the analysis prepared for this action are available from the Alaska Region NMFS Web site at
Rachel Baker, 907-586-7228.
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit proposed amendments to a fishery management plan to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens Act also requires that, upon receiving a fishery management plan amendment, NMFS immediately publish in the
The notice of availability for Amendment 108 to the BSAI FMP, Amendment 100 to the GOA FMP, and Amendment 46 to the Crab FMP was published in the
NMFS determined that Amendment 108 to the BSAI FMP, Amendment 100 to the GOA FMP, and Amendment 46 to the Crab FMP are consistent with the Magnuson-Stevens Act and other applicable laws, and the Secretary approved Amendment 108 to the BSAI FMP, Amendment 100 to the GOA FMP, and Amendment 46 to the Crab FMP on April 27, 2015. The February 12, 2015, notice of availability contains additional information on this action. No changes to Federal regulations are necessary to implement Amendment 108 to the BSAI FMP, Amendment 100 to the GOA FMP, and Amendment 46 to the Crab FMP.
Amendment 108 amends Table ES-2 and Section 3.3.1 of the BSAI FMP; Amendment 100 amends Table ES-2 and Section 3.3.1 of the GOA FMP; and Amendment 46 amends Section 8.1.4.2 of the Crab FMP. Specifically, these FMP amendments add “or equal to” to the vessel length limits for small vessels that are exempt from the LLP in the BSAI groundfish and king and Tanner crab fisheries and GOA groundfish fisheries. The amendments have the effect of adding vessels 26 ft (7.9 m) LOA in the GOA and vessels 32 ft (9.8 m) LOA in the BSAI, including BSAI Crab, to the LLP exemption. These additions are necessary for consistency with Federal regulations that exempt from the LLP vessels that do “not exceed 26 ft (7.9 m) LOA” in the GOA and vessels that do “not exceed 32 ft (9.8 m) LOA” in the BSAI. Additional information can be found in the notice of availability for Amendment 108 to the BSAI FMP, Amendment 100 to the GOA FMP, and Amendment 46 to the Crab FMP (80 FR 7816, February 12, 2015) and the analysis prepared for this action (see
Since the implementation of the LLP by Amendment 39 to the BSAI FMP,
NMFS did not receive any comments on Amendment 108 to the BSAI FMP, Amendment 100 to the GOA FMP, and Amendment 46 to the Crab FMP.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 747-100, -200B, -200C, -200F, -300, -400, -400D, and -400F series airplanes. This proposed AD was prompted by reports of significant fuselage skin damage at certain parts of the dorsal fairing, due to wear from the dorsal fairing. This proposed AD would require repetitive detailed inspections for wear and cracks of the fuselage skin under the dorsal fairing, and related investigative and corrective actions if necessary. This proposed AD would also require repetitive post-repair external surface high frequency eddy current inspections of the blended areas of the skin and detailed inspections of the unrepaired areas, and related investigative and corrective actions if necessary. We are proposing this AD to detect and correct fuselage skin damage of the dorsal fairing area, which could result in skin cracking and consequent depressurization of the airplane.
We must receive comments on this proposed AD by June 19, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; phone: 206-544-5000, extension 1; fax: 206-766-5680; Internet
You may examine the AD docket on the Internet at
Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received reports of significant fuselage skin damage at the dorsal fairing forward of station (STA) 2280, due to wear from the dorsal fairing. These two airplanes had accumulated 45,707 and 71,702 total flight hours. The skin damage occurred from inadequate clearance between fuselage crown skin and the lower aft corners of the dorsal fairing. Affected airplanes are limited to those delivered or retrofitted with certain dorsal fairing assemblies. Airplanes with other dorsal fairing configurations are not expected to develop skin wear. This inadequate clearance, if not corrected, could result in skin cracking and consequent depressurization of the airplane.
We reviewed Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014. This service information describes procedures for repetitive inspections, repair, and modification of the fuselage skin under the dorsal fairing. Refer to this service information for information on the procedures and compliance times. This service information is reasonably available at
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information identified previously, except as discussed under “Differences Between this Proposed AD and the Service Information.”
The phrase “related investigative actions” is used in this proposed AD. “Related investigative actions” are follow-on actions that (1) are related to the primary actions, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.
The phrase “corrective actions” is used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
The FAA worked in conjunction with industry, under the Airworthiness Directives Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which steps in the service information are required for compliance with an AD. Differentiating these steps from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The steps that are identified as RC (required for compliance) in any service information identified previously have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.
Steps that are identified as RC must be done to comply with the proposed AD. However, steps that are not identified as RC are recommended. Those steps that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an alternative method of compliance (AMOC), provided the steps identified as RC can be done and the airplane can be put back in a serviceable condition. Any substitutions or changes to steps identified as RC will require approval of an AMOC.
Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
Tables 4 and 5 in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, specify accomplishing the post-repair inspections identified in Part 8 of the service bulletin. Part 8 of the service bulletin allows the option of high frequency eddy current (HFEC) or low frequency eddy current (LFEC) inspections of the blended areas of the skin; however, this proposed AD does not allow the option of an LFEC inspection. This difference has been coordinated with Boeing.
Tables 3, 6, and 7 in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, specify post-modification inspections at certain fuselage crown skin locations, which may be used in support of compliance with section 121.1109(c)(2) or 129.109(b)(2) of the Federal Aviation Regulations (14 CFR 121.1109(c)(2) or 129.109(b)(2)). However, this NPRM does not propose to require those post-modification inspections. This difference has been coordinated with Boeing.
We estimate that this proposed AD affects 93 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 19, 2015.
None.
This AD applies to The Boeing Company Model 747-100, -200B, -200C, -200F, -300, -400, -400D, and -400F series airplanes; certificated in any category, as identified in Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of significant fuselage skin damage at the dorsal fairing forward of station (STA) 2280 due to wear from the dorsal fairing. We are issuing this AD to detect and correct fuselage skin damage of the dorsal fairing area, which could result in skin cracking and consequent depressurization of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the applicable time specified in tables 1 and 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, except as provided by paragraph (j)(1) of this AD, do a detailed inspection of the fuselage skin under the dorsal fairing for wear or cracks, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, except as required by paragraph (j)(2) of this AD. Do all applicable related investigative and corrective actions at the time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014. Repeat the applicable inspections of the fuselage skin thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014.
At the applicable time specified in tables 4 and 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, except as provided by paragraph (j)(1) of this AD, do an external surface high frequency eddy current inspection of the blended areas of the skin and a detailed inspection of the unrepaired areas, and do all applicable related investigative and corrective actions, in accordance with Part 8 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, except as required by paragraph (j)(2) of this AD. Do all applicable related investigative and corrective actions at the time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014. Repeat the applicable inspections of the blended areas of the skin thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014.
The post-modification inspections specified in tables 3, 6, and 7 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, are not required by this AD.
The post-modification inspections specified in tables 3, 6, and 7 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, may be used in support of compliance with section 121.1109(c)(2) or 129.109(b)(2) of the Federal Aviation Regulations (14 CFR 121.1109(c)(2) or 14 CFR 129.109(b)(2)). The corresponding actions specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, are not required by this AD.
(1) Where Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, specifies a compliance time “after the Original Issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(2) Although Boeing Alert Service Bulletin 747-53A2876, dated October 22, 2014, specifies to contact Boeing for repair data, and specifies that action as “RC” (Required for Compliance), this AD requires repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (k)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) Except as required by paragraph (j)(2) of this AD: If any service information contains steps that are identified as RC (Required for Compliance), those steps must be done to comply with this AD; any steps that are not identified as RC are recommended. Those steps that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the steps identified as RC can be done and the airplane can be put back in a serviceable condition. Any substitutions or changes to steps identified as RC require approval of an AMOC.
(1) For more information about this AD, contact Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; phone: 206-544-5000, extension 1; fax: 206-766-5680; Internet:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-300, 747SR, and 747SP series airplanes. This proposed AD was prompted by an evaluation by the design approval holder (DAH) indicating that certain fuselage skin lap joints are subject to widespread fatigue damage (WFD). This proposed AD would require repetitive post-modification inspections for cracking of the skin or internal doubler along the edge fastener rows of the modification, and repair if necessary. We are proposing this AD to detect and correct fatigue cracking in certain fuselage skin lap joints, which could result in rapid depressurization of the airplane.
We must receive comments on this proposed AD by June 19, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Structural fatigue damage is progressive. It begins as minute cracks, and those cracks grow under the action of repeated stresses. This can happen because of normal operational conditions and design attributes, or because of isolated situations or incidents such as material defects, poor fabrication quality, or corrosion pits, dings, or scratches. Fatigue damage can occur locally, in small areas or structural design details, or globally. Global fatigue damage is general degradation of large areas of structure with similar structural details and stress levels. Multiple-site damage is global damage that occurs in a large structural element such as a single rivet line of a lap splice joining two large skin panels. Global damage can also occur in multiple elements such as adjacent frames or stringers. Multiple-site-damage and multiple-element-damage cracks are typically too small initially to be reliably detected with normal inspection methods. Without intervention, these cracks will grow, and eventually compromise the structural integrity of the airplane, in a condition known as WFD. As an airplane ages, WFD will likely occur, and will certainly occur if the airplane is operated long enough without any intervention.
The FAA's WFD final rule (75 FR 69746, November 15, 2010) became effective on January 14, 2011. The WFD rule requires certain actions to prevent structural failure due to WFD throughout the operational life of certain existing transport category airplanes and all of these airplanes that will be certificated in the future. For existing and future airplanes subject to the WFD rule, the rule requires that DAHs establish a limit of validity (LOV) of the engineering data that support the structural maintenance program. Operators affected by the WFD rule may not fly an airplane beyond its LOV, unless an extended LOV is approved.
The WFD rule (75 FR 69746, November 15, 2010) does not require identifying and developing maintenance actions if the DAHs can show that such actions are not necessary to prevent WFD before the airplane reaches the LOV. Many LOVs, however, do depend on accomplishment of future maintenance actions. As stated in the WFD rule, any maintenance actions necessary to reach the LOV will be mandated by airworthiness directives through separate rulemaking actions.
In the context of WFD, this action is necessary to enable DAHs to propose LOVs that allow operators the longest operational lives for their airplanes, and still ensure that WFD will not occur. This approach allows for an implementation strategy that provides flexibility to DAHs in determining the timing of service information development (with FAA approval), while providing operators with certainty regarding the LOV applicable to their airplanes.
This proposed AD was prompted by an evaluation by the DAH indicating
We reviewed Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. This service information describes procedures for inspections for cracks in the skin and doublers along the edge fastener rows of modifications in the fuselage, and repairs. Refer to this service information for information on the procedures and compliance times. This service information is reasonably available at
AD 2010-10-05, Amendment 39-16284 (75 FR 27424, May 17, 2010) requires, among other things, modification of certain lap joints in fuselage sections 41 and 42. This proposed AD would require repetitive post-modification inspections for cracking of the skin or internal doubler along the edge fastener rows of the modification, and repair if necessary.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between this Proposed AD and the Service Information.”
Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, specifies to contact the manufacturer for instructions on how to repair cracking, but this proposed AD would require repairing those conditions in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
We estimate that this proposed AD affects 50 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 19, 2015.
None.
This AD applies to The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-300, 747SR, and 747SP series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by an evaluation by the design approval holder (DAH) indicating that certain fuselage skin lap joints are subject to widespread fatigue damage (WFD). We are issuing this AD to detect and correct fatigue cracking in certain fuselage skin lap joints, which could result in rapid depressurization of the airplane.
Comply with this AD within the compliance times specified, unless already done.
For airplanes identified as Groups 1 through 3, 7, and 8 in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014: Except as provided by paragraph (m) of this AD, at the applicable time specified in table 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, do internal detailed and surface high frequency eddy current (HFEC) inspections for cracks in the skin and internal doubler along the edge fastener rows of the modification; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. In unrepaired areas, repeat the internal detailed and surface HFEC inspections for cracks in the skin or internal doubler along the edge fastener rows of the modification thereafter at the applicable intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.
For airplanes identified as Groups 4 through 6, and 9 through 11 in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, with external doublers installed as specified in Boeing Service Bulletin 747-53-2272: Except as provided by paragraph (m) of this AD, at the applicable time specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, do external detailed, low frequency eddy current (LFEC), and HFEC inspections for cracks in the skin and external doubler, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.
For airplanes with no crack findings during the inspections required by paragraph (h) of this AD: Do the applicable actions required by paragraphs (i)(1) and (i)(2) of this AD.
(1) For airplanes with less than 15,000 flight cycles since stringer 6 external doublers were installed as specified in Boeing Service Bulletin 747-53-2272: At the applicable intervals specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, in unrepaired areas, repeat the external detailed and LFEC inspections for cracks in the skin, and the external detailed and HFEC inspections for cracks in the external doubler, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.
(2) For airplanes with 15,000 or more flight cycles since the stringer 6 external doublers were installed as specified in Boeing Service Bulletin 747-53-2272: At the applicable intervals specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, in unrepaired areas, do external detailed and LFEC inspections for cracks in the skin; and do internal and external detailed and HFEC inspections for cracks in the skin and external doubler; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.
For airplanes identified as Groups 4 through 6, and 9 through 11 in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, with external doublers installed as specified in Boeing Alert Service Bulletin 747-53A2367: Except as provided by paragraph (m) of this AD, at the applicable time specified in table 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, do internal detailed and surface HFEC inspections for cracks in the skin and internal doubler along the edge fastener rows of the modification; and do internal detailed and surface HFEC inspections for cracks in the skin or internal doubler along the edge fastener rows of the modification; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. In unrepaired areas, repeat the internal detailed and surface HFEC inspections for cracks in the skin or internal doubler along the edge fastener rows of the modification thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.
For airplanes identified as Groups 12 and 13 in Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014: Except as provided by paragraph (m) of this AD, at the applicable time specified in table 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, do internal detailed and surface HFEC inspections for cracks in the skin and internal doubler along the edge fastener rows of the modification, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014. In unrepaired areas, repeat the internal detailed and surface HFEC inspections for cracks in the skin or internal doubler along the edge fastener rows of the modification thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014.
If any cracking is found during any inspection required by this AD: Before further flight, repair the cracking using a method approved in accordance with the procedures specified in paragraph (n) of this AD.
Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2367, Revision 5, dated July 8, 2014, specifies a compliance time “after the Revision 5 date of this service bulletin,” this AD requires compliance within the specified compliance time “after the effective date of this AD.”
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (o)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
Federal Energy Regulatory Commission, DOE.
Notice of staff memorandum.
In this document, the Commission is seeking public comment on whether the existing regulations concerning the Uniform Systems of Accounts prescribed for oil pipeline companies and hydropower prefiling requirements, and a requirement imposed in 2001 that Western public and non-public utilities offer available real-time electric energy capacity into the markets and post the availability on their Web sites and the WSPP Web site, warrant a formal public review.
Comments are due by May 26, 2015.
Comments, identified by docket number, may be filed in the following ways:
•
•
Christy Walsh, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, 202-502-6523,
Take notice that the Commission staff is issuing a memorandum seeking public comment on whether the existing regulations concerning the Uniform Systems of Accounts prescribed for oil pipeline companies and hydropower prefiling requirements, and a requirement imposed in 2001 that Western public and non-public utilities offer available real-time electric energy capacity into the markets and post the availability on their Web sites and the WSPP Web site, warrant a formal public review. The memorandum is being issued pursuant to the November 8, 2011
The Staff Memorandum is being placed in the record in the above-referenced administrative docket. The Staff Memorandum will also be available on the Commission's Web site at
Comments on the Staff Memorandum should be filed within 30 days of the issuance of this document. The Commission encourages electronic submission of comments in lieu of paper using the “eFiling” link at
All filings in this docket are accessible on-line at
Questions regarding this document should be directed to: Christy Walsh, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, 202-502-6523,
Employment and Training Administration, Labor.
Proposed rule; extension of comment period.
The Department of Labor (Department) issued a proposed rule in the
The comment period for the proposed rule published on April 15, 2015 (80 FR 20300) is extended. Interested persons are invited to submit written comments on the proposed rule, identified by RIN 1205-AB70, on or before June 1, 2015
You may submit comments, identified by Regulatory Information Number (RIN) 1205-AB70, by any one of the following methods:
•
•
Please submit your comments by only one method and within the designated comment period. Comments received by means other than those listed above or received after the comment period has closed will not be reviewed. The Department will post all comments received on
William W. Thompson, II, Acting Administrator, Office of Foreign Labor Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
This notice extends the public comment period established in the
To submit comments, or access the docket, please follow the detailed instructions provided under
Administrative practice and procedure, Foreign workers, Employment, Employment and training, Enforcement, Forest and forest products, Fraud, Health professions, Immigration, Labor, Passports and visas, Penalties, Reporting and recordkeeping requirements, Unemployment, Wages, Working conditions.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone encompassing certain waters of Prospect Bay. This action is necessary to provide for the safety of life on navigable waters during a fireworks display launched from a barge located between Hog Island and Kent Island in Queen Anne's County, MD on July 4, 2015. This safety zone is intended to protect the maritime public in a portion of the Prospect Bay.
Comments and related material must be received by the Coast Guard on or before June 4, 2015.
You may submit comments identified by docket number using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this rule, call or email Mr. Ronald Houck, Sector Baltimore Waterways Management Division, Coast Guard; telephone 410-576-2674, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under
This rulemaking involves a fireworks display that will take place in Queen Anne's County, MD, on July 4, 2015. The launch site for the fireworks display is from a discharge barge located in Prospect Bay. The permanent safety zones listed in the Table to 33 CFR 165.506 do not apply to this event.
The legal basis and authorities for this rule are found in 33 U.S.C. 1231; 33 CFR 1.05-1, and 160.5; Department of Homeland Security Delegation No. 0170.1., which collectively authorize the Coast Guard to propose, establish, and define regulatory safety zones. Queen Anne's County, of Centerville, MD, will sponsor a fireworks display launched from a barge located in Prospect Bay, scheduled on July 4, 2015 at approximately 9 p.m. In the event of inclement weather, the fireworks will be rescheduled on July 5, 2015. The Coast Guard believes a safety zone is needed to promote public and maritime safety during a fireworks display, and to protect mariners transiting the area from the potential hazards associated with a fireworks display, such as the accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. This rule is needed to ensure safety on the waterway before, during and after the scheduled event.
For the reasons stated above, the Coast Guard proposes to establish a temporary safety zone. The proposed zone would encompass all waters of Prospect Bay, within a 1,000 feet radius of a fireworks discharge barge in approximate position latitude 39°57′49.8″ N., longitude 076°14′58.5″ W., located between Hog Island and Kent Island in Queen Anne's County, MD. The temporary safety zone would be enforced from 8:30 p.m. through 10 p.m. on July 4, 2015, and, if necessary due to inclement weather, from 8:30 p.m. through 10 p.m. on July 5, 2015.
The effect of this temporary safety zone would be to restrict navigation in the regulated area immediately before, during, and immediately after the fireworks display. Vessels would be allowed to transit the waters of Prospect Bay outside the safety zone.
This rule requires that entry into or remaining in this safety zone is prohibited unless authorized by the Coast Guard Captain of the Port Baltimore. All vessels underway within this safety zone at the time it is implemented are to depart the zone. To seek permission to transit the area of the safety zone, the Captain of the Port Baltimore can be contacted at telephone number 410-576-2693 or on Marine Band Radio VHF-FM channel 16 (156.8 MHz). Coast Guard vessels enforcing the safety zone can be contacted on Marine Band Radio VHF-FM channel 16 (156.8 MHz). Federal, state, and local agencies may assist the Coast Guard in the enforcement of the safety zone. The Coast Guard will issue notices to the maritime community to further publicize the safety zone and notify the public of changes in the status of the zone. Such notices will continue until the event is complete.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866
Although this regulation would restrict access to this area, the effect of this proposed rule will not be significant because: (i) The safety zone will only be in effect from 8:30 p.m. through 10 p.m. on July 4, 2015, and, if necessary due to inclement weather, from 8:30 p.m. through 10 p.m. on July 5, 2015, and (ii) the Coast Guard will give advance notification via maritime advisories so mariners can adjust their plans accordingly.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to operate or transit through or within, or anchor in, the safety zone during the enforcement period. This proposed safety zone will not have a significant economic impact on a substantial number of small entities for the reasons provided under Regulatory Planning and Review.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rulemaking elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves establishing a temporary safety zone for a fireworks display. The fireworks are launched from navigable waters of the United States and may negatively impact the safety or other interests of waterway users and near shore activities in the event area. The activity includes fireworks launched from barges near the shoreline that generally rely on the use of navigable waters as a safety buffer to protect the public from fireworks fallouts and premature detonations. This rulemaking is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1) All persons are required to comply with the general regulations governing safety zones found in 33 CFR 165.23.
(2) Entry into or remaining in this zone is prohibited unless authorized by the Coast Guard Captain of the Port Baltimore. All vessels underway within this safety zone at the time it is implemented are to depart the zone.
(3) Persons desiring to transit the area of the safety zone must first obtain authorization from the Captain of the Port Baltimore or his designated representative. To seek permission to transit the area, the Captain of the Port Baltimore and his designated representatives can be contacted at telephone number 410-576-2693 or on Marine Band Radio VHF-FM channel 16 (156.8 MHz). The Coast Guard vessels enforcing this section can be contacted on Marine Band Radio VHF-FM channel 16 (156.8 MHz). Upon being hailed by a U.S. Coast Guard vessel, or other Federal, State, or local agency vessel, by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port Baltimore or his designated representative and proceed as directed while within the zone.
(4) Enforcement. The U.S. Coast Guard may be assisted in the patrol and enforcement of the zone by Federal, State, and local agencies.
(c)
(d)
In proposed rule document 2015-09245 beginning on page 24324 in the issue of Thursday, April 30, 2015 make the following correction(s):
• On page 24324, in the second column, in the
Corporation for National and Community Service.
Proposed rule with request for comments.
The Corporation for National and Community Service (CNCS) proposes new regulations under the Domestic Volunteer Service Act of 1973, as amended, and the National and Community Service Act of 1990, as amended, for the Volunteers in Service to America (VISTA) program, including certain changes to update existing regulations.
To be sure your comments are considered, they must reach CNCS on or before July 6, 2015.
You may send your comments electronically through the Federal government's one-stop
Calvin Dawson, AmeriCorps VISTA, at the Corporation for National and Community Service, 1201 New York Avenue NW., Washington, DC 20525, phone 202-606-6897. The TDD/TTY number is 800-833-3722.
The Economic Opportunity Act of 1964 created the Volunteers in Service to America (VISTA) program. The VISTA program, sometimes referred to as the domestic Peace Corps, has operated since the first VISTA volunteers (VISTAs or VISTA members) were placed in service in December 1964.
In 1971, the VISTA program was transferred from the Office of Economic Opportunity to the former Federal agency, ACTION (the Federal Domestic Volunteer Agency). In 1973, Congress enacted the Domestic Volunteer Service Act of 1973 (DVSA), the VISTA program's enabling legislation. The VISTA program continues to retain its purpose, as stated in the DVSA, “to strengthen and supplement efforts to eliminate and alleviate poverty and poverty-related problems in the United States by encouraging and enabling individuals from all walks of life, all geographical areas, and all age groups, including low-income individuals, elderly and retired Americans, to perform meaningful and constructive volunteer service in agencies, institutions, and situations where the application of human talent and dedication may assist in the solution of poverty and poverty-related problems and secure and exploit opportunities for self-advancement by individuals afflicted with such problems.”
In 1994, the Corporation for National and Community Service (CNCS) was established pursuant to the National and Community Service Trust Act of 1993; at this time, the operations of all service programs previously administered by ACTION, including the VISTA program, began to be administered by CNCS. The VISTA program also became known as the AmeriCorps VISTA program, one of three AmeriCorps programs now administered by CNCS. The other two programs were, and continue to be: (1) The AmeriCorps State and National program; and (2) the AmeriCorps National Civilian Community Corps (NCCC). Since 1994, the VISTA program continues to be primarily operated and administered under the DVSA. The other two AmeriCorps programs are operated under the National and Community Service Act of 1990 (NCSA).
In 2009, Congress enacted the Edward M. Kennedy Serve America Act of 2009 (Serve America Act), which contained certain amendments to both the DVSA and the NCSA. With regard to the VISTA program, the Serve America Act amendments largely related to the Segal AmeriCorps Education Award, a type of end-of-service award for which a VISTA member may be eligible upon successful completion of a term of VISTA service.
This proposed rule covers core aspects of the VISTA program: (a) Entities that are sponsors for VISTA projects; and (b) individuals who are applicants, candidates, and VISTAs (including VISTA leaders and VISTA summer associates), serving at project sites. This proposed rule has four purposes.
First, it conforms the existing regulations to the fact that CNCS administers the VISTA program. References in the existing regulations to the former Federal agency, ACTION, and the administrative structure of ACTION are changed to reflect CNCS and its administrative structure.
Second, this proposed rule codifies the VISTA rules in the same location as the rules for CNCS's other programs. The existing VISTA regulations are codified at 45 CFR parts 1206, 1210, 1211, 1216-1220, 1222, and 1226. This proposed rule places the VISTA regulations within the regulations for CNCS and the other CNCS programs at 45 CFR parts 2505-2556.
On a related note, existing program regulations at 45 CFR parts 1206, 1216, 1220, and 1226, currently apply both to the VISTA program, and to CNCS's National Senior Service Corps programs. This proposed rule places existing program regulations, as they apply to the VISTA program, at 45 CFR parts 2505-2556. Existing program regulations as they apply to the National Senior Service Corps programs will remain, at this time, at 45 CFR parts 1206, 1216, 1220, and 1226. To accommodate the relocation of the existing program regulations as applied to the VISTA program, certain technical changes to the existing program regulations, as applied to the National Senior Service Corps programs, are warranted. These technical changes are not substantive, but are necessary to address the removal of references to the VISTA program and to reflect CNCS and its current administrative structure.
Third, this proposed rule addresses regulations on the VISTA program's elements. The existing regulations cover a limited range of topics. This proposed rule covers a wide range of topics, and updates the topics covered under existing regulations, including: VISTA application and termination processes, volunteer grievance procedures, competitive service eligibility, payment of volunteer legal expenses, nondisplacement of workers, VISTA leaders and summer associates, restrictions for VISTAs on certain political activities under the Hatch Act and other federal laws, and participation of program beneficiaries. Subpart A gives general program information: Purpose, basic program design, definitions used in the proposed rule, and waiver. Subpart B sets out requirements for a VISTA sponsor, and for a sponsor to support a VISTA. Subpart C pertains to being a VISTA, and the requirements for applying to become a VISTA. Subpart D provides the service terms, protections, and benefits that apply to a VISTA. Subpart E addresses termination for cause procedures. Subparts F and G, concern, respectively, VISTA projects with summer associates, and VISTA projects with VISTA leaders. Subpart H gives restrictions and prohibitions on certain political activities for all VISTAs, sponsors, and project sites.
Fourth, this proposed rule updates the provisions of the existing regulations. These changes are described here:
As it applies to the VISTA program, 45 CFR part 1206, which deals with project suspension and termination, is moved to 45 CFR part 2556, subpart B with most substantive provisions remaining unchanged. Under the proposed rule the provisions for suspension remain unchanged, except that the provisions for summary suspension are eliminated and the provisions for suspension on notice are retained. This has the effect of giving notice to sponsors for all suspensions. Under the proposed rule the provisions for termination remain unchanged,
45 CFR part 1210, which deals chiefly
45 CFR part 1211 on grievance procedures for VISTAs is moved to 45 CFR 2556.345-2556.365 and updated to reflect the use of electronic communication technology and the speed at which it can operate. At sections 2556.345-2556.365, the proposed rule clarifies when a VISTA may present a grievance, what matters are considered grievances, and specific steps for bringing a grievance and appealing a response, while eliminating the inclusion of a grievance examiner in the process. Longstanding experience has shown that CNCS has used its administrative review and oversight to afford complaining parties more than sufficient due process, and has effectively remedied inappropriate conditions leading to grievances, without need of grievance examiner services. When grievance examiner services have been invoked, the time, resources and expense incurred by the VISTA program have substantially outweighed the value provided to the parties involved.
45 CFR part 1216 on non-displacement of employed workers and non-impairment of contracts for service is moved to 45 CFR 2556.150(b) -2556.150(e), and the substantive provisions remain unchanged.
45 CFR part 1217 on leaders is moved to 45 CFR part 2556, subpart G and clarifies primary aspects of the leader position in a project.
45 CFR part 1219 on non-competitive eligibility for VISTAs is moved to 45 CFR 2556.340, and its substantive provisions remain unchanged.
45 CFR part 1220 on payment of legal expenses resulting from service activities is moved to 45 CFR 2556.325-2556.335, and its substantive provisions remain unchanged.
45 CFR part 1222 on participation of project beneficiaries is moved to 45 CFR 2556.120, and its substantive provisions remain unchanged.
45 CFR part 1226 on prohibitions and restrictions on certain political activities is moved to 45 CFR part 2556, subpart H and is revised to complement the current limitations and permitted political activities under the Hatch Act, 5 U.S.C. chapter 73, subchapter III. As provided in the DVSA, VISTAs are subject to the requirements of the Hatch Act because they are considered federal employees for purposes of the Hatch Act, 42 U.S.C. 5055(b)(1).
CNCS intends to make any final rule based on this proposal effective no sooner than 90 days after the final rule is published in the
CNCS has determined that the proposed rule is not an “economically significant” rule within the meaning of E.O. 12866 because it is not likely to result in: (1) An annual effect on the economy of $100 million or more, or an adverse and material effect on a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government or communities; (2) the creation of a serious inconsistency or interference with an action taken or planned by another agency; (3) a material alteration in the budgetary impacts of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) the raising of novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605 (b)), CNCS certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. This regulatory action will not result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, CNCS has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601
For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, State, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.
This proposed rule addresses the requirement that entities that wish to apply to be VISTA sponsors complete an application to be a VISTA sponsor that manages at least one VISTA project. Consistent with this requirement is a document: the VISTA program's Project Application (
These requirements constitute two sets of information under the Paperwork Reduction Act (PRA), 44 U.S.C. 507
Under the PRA, an agency may not conduct or sponsor a collection of information unless the collections of information displays valid control numbers. This proposed rule's collections of information are contained in 45 CFR 2556.120 and 2556.205 for the Project Application and AmeriCorps Application, respectively.
This information is necessary to ensure that only eligible and qualified entities serve as VISTA sponsors. This information is also necessary to ensure that only eligible and suitable individuals are approved by the VISTA program to serve as VISTAs in the VISTA program.
The likely respondents to these collections of information are entities interested in or seeking to become VISTA sponsors, current VISTA sponsors, and current and prospective VISTAs.
Executive Order 13132,
Volunteers.
Volunteers.
Volunteers.
Volunteers.
Volunteers.
Volunteers.
Volunteers.
Volunteers.
Volunteers
Elections, Lobbying.
Volunteers, VISTA program.
For the reasons discussed in the preamble, under the authority of 42 U.S.C. 12651c(c), the Corporation for National and Community Service proposes to amend chapters XII and XXV, title 45 of the Code of Federal Regulations as follows:
42 U.S.C. 5052.
(a) This subpart establishes rules and review procedures for the suspension and termination of assistance of National Senior Service Corps grants of assistance provided by the Corporation for National and Community Service pursuant to sections of title II of the Domestic Volunteer Service Act of 1973, Public Law 93-113, 87 Stat. 413 (hereinafter the DVSA) because a recipient failed to materially comply with the terms and conditions of any grant or contract providing assistance under these sections of the DVSA, including applicable laws, regulations, issued program guidelines, instructions, grant conditions or approved work programs.
This subpart applies to programs authorized under title II of the DVSA.
(c) The term
(d) The term
(e) The term
(f) The term
This subpart applies to grantees and contractors receiving financial assistance under title II of the DVSA. The procedures in the subpart do not apply to review of applications for sponsors who receive VISTA members under the DVSA.
As used in this subpart, “Corporation”, “CEO”, and “recipient” are defined in accordance with § 1206.1-3.
(g) If the recipient's budget period expires prior to the final decision by the deciding official, the recipient's
42 U.S.C. 5044(a).
This part establishes rules to assure that the services of volunteers in the Foster Grandparent Program, the Senior Companion Program, and The Retired and Senior Volunteer Program (RSVP), are limited to activities which would not otherwise be performed by employed workers and which will not supplant the hiring of, or result in the displacement of employed workers or impair existing contracts for service. This part implements section 404(a) of the Domestic Volunteer Service Act of 1973, Pub. L. 93-113 (the “Act”).
(a) All volunteers in either the Foster Grandparent Program, the Senior Companion Program, or The Retired and Senior Volunteer Program (RSVP), who are assigned, referred or serving pursuant to grants, contracts, or agreements made pursuant to the Act.
42 U.S.C. 5059.
This part implements section 419 of the Domestic Volunteer Service Act of 1973, Public Law 93-113 (the “Act”). This part provides rules to ensure that the Corporation for National and Community Service, which administers the three federal programs, the Foster Grandparent Program (FGP), the Senior Companion Program (SCP), and The Retired and Senior Volunteer Program (RSVP), pays the expenses incurred in judicial and administrative proceedings for the defense of those volunteers serving in those programs. Payment of such expenses by CNCS for those volunteers include payment of counsel fees, court costs, bail or other expenses incidental to the volunteer's defense.
(a)(1) The Corporation for National and Community Service will pay all reasonable expenses for defense of full-time volunteers up to and including the arraignment of Federal, state, and local criminal proceedings, except in cases where it is clear that the charged offense results from conduct which is not related to his service as a volunteer.
(c) Notwithstanding the foregoing, there may be situations in which the criminal proceeding results from a situation which could give rise to a civil claim under the Federal Tort Claims Act. In such situations, the Justice Department may agree to defend the volunteer. In those cases, unless there is a conflict between the volunteer's interest and that of the government, the Corporation for National and Community Service will not pay for additional private representation for the volunteer.
(a) With respect to a part-time volunteer, the Corporation for National and Community Service will reimburse a sponsor for the reasonable expense it incurs for the defense of the volunteer in Federal, state and local criminal proceedings, including arraignment, only under the following circumstances:
(2) The volunteer receives, or is eligible to receive, compensation, including allowances, stipend, or reimbursement for out-of-pocket expenses, under a Corporation for National and Community Service grant project; and
(b) In certain circumstances volunteers who are ineligible for reimbursement of legal expenses by the Corporation for National and Community Service may be eligible for representation under the Criminal Justice Act (18 U.S.C. 3006A).
(a) Immediately upon the arrest of any volunteer under circumstances in which the payment or bail to prevent incarceration or other serious consequences to the volunteer or the retention of an attorney prior to arraignment is necessary and is covered under §§ 1220.2-1 or 1220.2-2, sponsors shall immediately notify the appropriate Corporation for National and Community Service state office or if the state office cannot be reached, the appropriate Area Manager.
(b) Immediately after notification of the appropriate state office, and with the approval thereof, the sponsor shall advance up to $500 for the payment of bail or such other legal expenses as are necessary prior to arraignment to prevent the volunteer from being incarcerated. In the event it is subsequently determined that the Corporation for National and Community Service or a sponsor is not responsible under this policy for the volunteer's defense, any such advance may be recovered directly from the volunteer or from allowances, stipends,
(d) The General Counsel shall, upon notification by the state office or Area Manager, determine the extent to which the Corporation for National and Community Service will provide funds for the volunteer's defense or reimburse a sponsor for funds it spends on the volunteer's behalf. Included in this responsibility shall be the negotiation of fees and approval of other costs and expenses. State offices and Area Managers are not authorized to commit the Corporation for National and Community Service to the payment of volunteers' legal expenses or to reimburse a sponsor except as provided above, without the express consent of the General Counsel. Additionally, the General Counsel shall, in cases arising directly out of the performance of authorized project activities, ascertain whether the services of the United States Attorney can be made available to the volunteer.
The Corporation for National and Community Service will pay reasonable expenses incurred in the defense of full-time volunteers in Federal, state, and local civil judicial and administrative proceedings where:
(a) The complaint or charge against the volunteer is directly related to his volunteer service and not to his personal activities or obligations.
The Corporation for National and Community Service will reimburse sponsors for the reasonable expenses incidental to the defense of part-time volunteers in Federal, state, and local civil judicial and administrative proceedings where:
(a) The proceeding arises directly out of the volunteer's performance of activities pursuant to the Act;
(b) The volunteer receives or is eligible to receive compensation, including allowances, stipend, or reimbursement for out-of-pocket expenses under the Corporation for National and Community Service grant; and
(c) The conditions specified in paragraphs (b) and (c) in § 1220.3-1 are met.
Immediately upon the receipt by a volunteer of any court papers or administrative orders making a party to any proceeding covered under § 1220.3-1 or § 1220.3-2, the volunteer shall immediately notify his sponsor who in turn shall notify the appropriate Corporation for National and Community Service state office. The procedures referred to in § 1220.2-3, paragraphs (c) through (e), shall thereafter be followed as appropriate.
42 U.S.C. 5043.
This part implements sections 403(a) and (b) of the Domestic Volunteer Service Act of 1973, Public Law 93-113, as amended, hereinafter referred to as the Act, pertaining to the prohibited use of Federal funds or involvement by certain Corporation for National and Community Service programs and volunteers in electoral and lobbying activities. This part implements those provisions of the Act, as they apply to agency programs and volunteers authorized under title II of the Act.
This part applies to all volunteers serving in a program authorized by title II of the Act, including the Foster Grandparent Program, the Senior Companion Program, and The Retired and Senior Volunteer Program (RSVP). This part also applies to employees or sponsoring organizations, whose salaries, or other compensation, are paid, in whole or in part, with agency funds.
The provisions in this subpart are applicable to full time volunteers as described in § 1226.3(c), and to such part-time volunteers as may be otherwise specified herein. Full time volunteers are deemed to be acting in their capacity as volunteers:
(a) When they are actually engaged in their volunteer assignments; or
Sponsor employees whose salaries or other compensation are paid, in whole or in part, with agency funds are subject to the restrictions described in § 1226.8(a), (b), (c) and (d) and the exceptions in § 1226.9:
(a) Whenever they are engaged in an activity which is supported by Corporation for National and Community Service funds; or
(b) Whenever they identify themselves as acting in their capacity as an official of a project which receives Corporation for National and Community Service funds, or could reasonably be perceived by others as acting in such capacity.
Secs. 101, 102, and 103, Pub. L. 93-113, as amended; 5 CFR part 734.
(a) The purpose of the VISTA program is to strengthen and supplement efforts to eliminate and alleviate poverty and poverty-related problems throughout the United States and certain U.S. territories. To effect this purpose, the VISTA program encourages and enables individuals from all walks of life to join VISTA to perform, on a full-time basis, meaningful and constructive service to assist in the solution of poverty and poverty-related problems and secure opportunities for self-advancement of persons afflicted by such problems.
(b) The VISTA program objectives are to:
(1) Generate private sector resources;
(2) Encourage volunteer service at the local level;
(3) Support efforts by local agencies and community organizations to achieve long-term sustainability of projects; and
(4) Strengthen local agencies and community organizations to carry out the purpose of the VISTA program.
This Part may be of interest to:
(a) Private nonprofit organizations, public nonprofit organizations, state government agencies, local government agencies, federal agencies, and tribal government agencies who are participating in the VISTA program as sponsors, or who are interested in participating in the VISTA program as sponsors.
(b) Individuals 18 and older who are serving as a VISTA, or who are interested in serving as a VISTA.
“Act” or “DVSA” means the Domestic Volunteer Service Act of 1973, as amended, Public Law 93-113 (42 U.S.C. 4951
“Alternative oath or affirmation” means a pledge of VISTA service taken by an individual who legally resides within a State, but who is not a citizen or national of the United States, upon that individual's enrollment into the VISTA program as a VISTA.
“Applicant for VISTA service” means an individual who is in the process of completing, or has completed, an application for VISTA service as prescribed by CNCS, but who has been not been approved by CNCS to be a candidate.
“Application for VISTA service” means the materials prescribed by CNCS
“Area Manager” means a CNCS official who is head of a designated, regional set, or cluster of CNCS State Offices, or equivalent CNCS official.
“Assistance” means VISTAs, leaders, or summer associates. “Assistance” also means technical assistance or training of VISTAs, leaders, summer associates, candidates, sponsors, or supervisors that are provided from funds appropriated by Congress for the purpose of supporting activities under the DVSA. “Assistance” also means grant funds.
“Candidate”, when used in the context of an individual who has applied for VISTA service, means an individual whose application for VISTA service has been approved by CNCS, but who has not taken an oath, alternative oath or affirmation to serve in the VISTA program. Candidates may include those who were enrolled in the VISTA program at a prior time.
“Cost share” means when an entity, such as a VISTA sponsor, reimburses CNCS part or all of the expenses associated with the operation of a VISTA project, such as the costs for one or more VISTAs, leaders, or summer associates placed in a VISTA project.
“CNCS” means the Corporation for National and Community Service, established pursuant to section 191 of the National and Community Service Act of 1990, as amended, 42 U.S.C. 12651. CNCS is also sometimes referred to as “the Corporation.”
“Education award” or “Segal AmeriCorps Education Award” means an end-of-service monetary benefit from CNCS's National Service Trust that is directed to designated educational institutions and is awarded to certain qualifying VISTAs who successfully complete an established term of VISTA service.
“Enroll”, “enrolled” or “enrollment”, when used in the context of VISTA service, refers to the status of an individual admitted to serve in the VISTA program. The enrollment period commences when the Oath to serve in the VISTA program is taken by the candidate and ends upon termination from a term of service in the VISTA program. The enrollment period may commence on a date earlier than the first day of a service assignment of an enrolled VISTA member.
“Full-time”, when used in the context of VISTA service means service in which a VISTA, leader, or summer associate remains available for service without regard to regular working hours.
“Leader”, “a leader”, or “a VISTA leader” means a VISTA member who is enrolled for full-time VISTA service, and who is also subject to the terms of Subpart G of this Part.
“Living allowance” or “living allowance payment” means a monetary benefit paid for subsistence purposes to a VISTA member during VISTA service.
“Memorandum of Agreement” means a written agreement between CNCS and a sponsor regarding the terms of the sponsor's involvement and responsibilities in the VISTA program.
“Nonpartisan election” means—(1) An election in which none of the candidates is to be nominated or elected as representing a political party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected; or (2) An election involving a question or issue which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance, or any question or issue of a similar character.
“Oath” means an avowal to VISTA service, taken in accordance with 5 U.S.C. 3331, by an individual who is a U.S. citizen or national. The taking of the Oath effects an individual's enrollment into the VISTA program.
“On-duty” or “during service time” means when a VISTA is either performing VISTA service or scheduled to do so.
“Project” or “VISTA project” means a set of VISTA activities operated and overseen by, and the responsibility of, a sponsor, and assisted under this Part to realize the goals of title I of the DVSA.
“Project applicant” or “VISTA project applicant” means an entity that submits an application to CNCS to operate, oversee, and be responsible for a VISTA project.
“Project application” or “VISTA project application” means the application materials prescribed by CNCS to ascertain information on an applying entity's eligibility and suitability to operate, oversee, and be responsible for, a VISTA project.
“Project director” or “VISTA project director” means a staff person, of legal age, of the sponsor, who has been assigned by the sponsor the overall responsibility for the management of the VISTA project.
“Sponsor”, “VISTA sponsor” or “VISTA project sponsor” means a public agency or private non-profit organization that receives assistance under title I of the DVSA, and is responsible for operating and overseeing a VISTA project. A public agency may be a federal, state, local or tribal government.
“State”, when used as a noun, means one of the several states in the United States of America, District of Columbia, Virgin Islands, Puerto Rico, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.
“State Program Director” means a CNCS official who reports to an Area Manager or equivalent CNCS official, and who is the head of a CNCS State Office.
“Stipend” or “end-of-service stipend” means an end-of-service lump-sum monetary benefit from CNCS that is awarded to certain qualifying VISTAs, who successfully complete an established term of VISTA service.
“Subrecipient” means a public agency or private non-profit organization that enters into an agreement with a VISTA sponsor to receive one or more VISTAs, and to carry out a set of activities, assisted under this Part, to realize the goals of title I of the DVSA. A public agency may be a federal, state, local or tribal government.
“Summer associate” means a VISTA member who is enrolled for VISTA service, during a period between May 1 and September 15, and who is also subject to the terms of Subpart I of this Part. A summer associate must be available to provide continuous full-time service, without other commitments, for a period of at least eight weeks and a maximum of ten weeks.
“Supervisor” or “VISTA Supervisor” means a staff member, of legal age, of the sponsor or a subrecipient, who has been assigned by the sponsor or the subrecipient, the responsibility for the day-to-day oversight of one or more VISTAs.
“Tribe” means any Indian tribe, band, nation, or other organized group or community, including any Alaskan native village or regional village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized by the United States or the State in which it resides as eligible for special programs and services provided to Indians because of their status as Indians.
“VISTA member”, “a VISTA” or “the VISTA” means an individual enrolled full-time for VISTA service in the VISTA program, as authorized under title I of the DVSA.
“VISTA program” means the Federal government program named Volunteers in Service to America and authorized under title I of the Domestic Volunteer Service Act of 1973, as amended, 42 U.S.C. 4950
“VISTA service” means VISTA service activities performed by a VISTA
Upon a determination of good cause, the Chief Executive Officer of CNCS may, subject to statutory limitations, waive any provisions of Part 2556.
Secs. 103(a), 103(f), 104(b), 104(e), 105(b), 106, 403(a), 403(b), 403(c), 404(a), 404(b), 404(c), 404(e), 406, 412, 416, and 417, Pub. L. 93-113, as amended; Sec. 192A(g)(10), Pub. L. 101-610, as amended; Presidential Executive Order 13279 (67 FR 77141, Dec. 16, 2002).
The following entities are eligible to apply to become VISTA sponsors, and thereby undertake projects in the U.S. and certain U.S. territories:
(a) Private nonprofit organization.
(b) Public nonprofit organization.
(c) State government or state government agency.
(d) Local government or local government agency.
(e) Tribal government or tribal government agency.
(a) An entity is prohibited from being a VISTA sponsor or from otherwise receiving VISTA assistance if a principal purpose or activity of the entity includes any of the following:
(1)
(2)
(3)
(b) Any organization that, subsequent to the receipt of VISTA assistance, makes as one of its principal purposes or activities any of the activities described in section 2556.105(a) shall be subject to the procedures in sections 2556.125 through 2556.145.
(a) A sponsor may be approved for one or more VISTA positions.
(b) A sponsor, upon review and approval by CNCS to establish a leader position or positions, and in accordance with criteria set forth at Subpart G of this Part, may be approved for one or more leader positions.
(c) A sponsor, upon approval by CNCS to establish a summer associate position or positions, and in accordance with criteria set forth at Subpart F of this Part, may be approved for one or more summer associate positions.
(d) A sponsor may be eligible to receive certain grant assistance under the terms determined and prescribed by CNCS.
(e) A sponsor may receive training and technical assistance related to carrying out purposes of title I of the DVSA.
(a) A sponsor is not required to provide a cash match for any of the assistance listed in § 2556.110.
(b) A sponsor must provide supervision, work space, service-related transportation, and any other materials necessary to operate and complete the VISTA project and support the VISTA.
(a) To the maximum extent practicable, the people of the communities to be served by VISTA members shall participate in planning, developing, and implementing programs.
(b) The sponsor shall articulate in its project application how it will engage or continue to engage relevant communities in the development and implementation of programs.
(a) CNCS may deny or reduce VISTA assistance where a denial or reduction is based on:
(1) Legislative requirement;
(2) Availability of funding;
(3) Material failure to comply with applicable term(s) or condition(s) of the DVSA, the regulations in this Part, VISTA program policy, or an applicable Memorandum of Agreement;
(4) Ineffective management of CNCS resources;
(5) Substantial failure to comply with CNCS policy and overall objectives under a contract, or applicable Memorandum of Agreement or grant agreement; or
(6) General policy.
(b) In instances where the basis for denial or reduction of VISTA assistance may also be the basis for the suspension or termination of a VISTA project under this subpart, CNCS shall not be limited to the use of this section to the exclusion of the procedures for suspension or termination in this Subpart.
(a) CNCS shall notify the sponsor in writing, at least 75 calendar days before the anticipated denial or reduction of VISTA assistance,that CNCS proposes to deny or reduce VISTA assistance. CNCS's written notice shall state the reasons for the decision to deny or reduce assistance and shall provide an opportunity period for the sponsor to respond to the merits of the proposed decision. CNCS retains sole authority to make the final determination whether the VISTA assistance at issue shall be denied or reduced, as appropriate.
(b) Where CNCS's notice of proposed decision is based upon a specific charge of the sponsor's material failure to comply with an applicable term(s) or condition(s) of the DVSA, the regulations in this Part, VISTA program policy, or an applicable Memorandum of Agreement, the notice shall offer the sponsor an opportunity period to respond in writing to the notice, with any affidavits or other supporting documentation, and to request an informal hearing before a mutually agreed-upon impartial hearing officer. The authority of such a hearing officer shall be limited to conducting the hearing and offering recommendations to CNCS. Regardless of whether or not an informal hearing takes place, CNCS shall retain full authority to make the final determination whether the VISTA assistance is denied or reduced, as appropriate.
(c) If the recipient requests an informal hearing, as set forth above in accordance with paragraph (b) of this section, such hearing shall be held at a date specified by CNCS and held at a location convenient to the sponsor.
(d) If CNCS's proposed decision is based, in whole or in part, on a specific charge(s) of a sponsor's material failure to comply with an applicable term(s) or condition(s) of an applicable
(e) The recipient shall be informed of CNCS's final determination on whether the VISTA assistance at issue shall be denied or reduced, and the basis for the determination.
(a) Suspension is any action by CNCS temporarily suspending or curtailing assistance, in whole or in part, to all or any part of a VISTA project, prior to the time that the project term is concluded. Suspension does not include the denial or reduction of new or additional VISTA assistance.
(b) In an emergency situation for up to 30 consecutive days, CNCS may suspend assistance to a sponsor, in whole or in part, for the sponsor's material failure or threatened material failure to comply with an applicable term(s) or condition(s) of the DVSA, the regulations in this Part, VISTA program policy, or an applicable Memorandum of Agreement. Such suspension in an emergency situation shall be pursuant to notice and opportunity to show cause why assistance should not be suspended.
(c) To initiate suspension proceedings, CNCS shall notify the sponsor in writing that CNCS is suspending assistance in whole or in part. The written notice shall contain the following:
(1) The grounds for the suspension and the effective date of the commencement of the suspension;
(2) The sponsor's right to submit written material in response to the suspension to show why the VISTA assistance should not be suspended, or should be reinstated, as appropriate; and
(3) The opportunity to adequately correct the deficiency, or deficiencies, which led to CNCS's notice of suspension.
(d) In deciding whether to continue or lift the suspension, as appropriate, CNCS shall consider any timely material presented in writing, any material presented during the course of any informal meeting, as well as any showing that the sponsor has adequately corrected the deficiency which led to the initiation of suspension.
(e) During the period of suspension of a sponsor, no new expenditures, if applicable, shall be made by the sponsor's VISTA project at issue and no new obligations shall be incurred in connection with the VISTA project at issue except as specifically authorized in writing by CNCS.
(f) CNCS may, in its discretion, modify the terms, conditions, and nature of the suspension or rescind the suspension action at any time on its own initiative or upon a showing that the sponsor has adequately corrected the deficiency or deficiencies which led to the suspension and that repetition is not foreseeable.
(a) Termination means any action by CNCS permanently terminating or curtailing assistance to all or any part of a sponsor's VISTA project prior to the time that the project term is concluded.
(b) CNCS may terminate assistance to a sponsor in whole or in part for the sponsor's material failure to comply with an applicable term(s) or condition(s) of the DVSA, the regulations in this Part, VISTA program policy, or an applicable Memorandum of Agreement.
(c) To initiate termination proceedings, CNCS shall notify the sponsor in writing that CNCS is proposing to terminate assistance in whole or in part. The written notice shall contain the following:
(1) A description of the VISTA assistance proposed for termination, the grounds that warrant such proposed termination, and the proposed date of effective termination;
(2) Instructions regarding the sponsor's opportunity, within 21 calendar days from the date of issuance of the notice, to respond in writing to the merits of the proposed termination and instructions regarding the sponsor's right to request a full and fair hearing before a mutually agreed-upon impartial hearing officer; and
(3) Invitation of voluntary action by the sponsor to adequately correct the deficiency or deficiencies which led to CNCS's notice of proposed termination.
(d) In deciding whether to effect termination of VISTA assistance, CNCS shall consider any relevant, timely material presented in writing; any relevant material presented during the course of any full and fair hearing; as well as, any showing that the sponsor has adequately corrected the deficiency which led to the initiation of termination proceedings.
(e) Regardless of whether or not a full and fair hearing takes place, CNCS shall retain all authority to make the final determination as to whether the termination of VISTA assistance is appropriate.
(f) The sponsor shall be informed of CNCS's final determination on the proposed termination of VISTA assistance, and the basis or bases for the determination.
(g) CNCS may, in its discretion, modify the terms, conditions, and nature of a termination action or rescind a termination action at any time on its own initiative or upon a showing that the sponsor has adequately corrected the deficiency which led to the termination, or the initiation of termination proceedings, and that repetition is not threatened.
The procedures established by this Subpart shall not preclude CNCS from pursuing any other remedies authorized by law.
(a) A VISTA may not perform any activities in the project application that do not correspond with the purpose of the VISTA program, as described in § 2556.1, or that the Director has otherwise prohibited.
(b) A VISTA may not perform services or duties as a VISTA member that would otherwise be performed by employed workers or other volunteers (not including participants under the DVSA and the National and Community Service Act of 1990, as amended).
(c) A VISTA may not perform any services or duties, or engage in activities as a VISTA member, that supplant the hiring of or result in the displacement of employed workers or other volunteers (not including participants under the DVSA or the National and Community Service Act of 1990, as amended).
(d) A VISTA may not perform any services or duties, or engage in activities as a VISTA member, which impair existing contracts for service.
(e) The requirements of paragraphs 2556.150(b)-(d) of this section do not apply when the sponsor requires the service in order to avoid or relieve suffering threatened by, or resulting
(f) A sponsor or project shall not request or receive any compensation from a VISTA; from a beneficiary of VISTA project services; or any other source for services of a VISTA.
(a) A sponsor may carry out a VISTA project through one or more subrecipients that meet the eligibility criteria of § 2556.100.
(b) The sponsor must enter into a subrecipient agreement with each subrecipient. A subrecipient agreement must have at least the following elements:
(1) A project plan to be implemented by the subrecipient;
(2) Records to be kept and reports to be submitted;
(3) Responsibilities of the parties and other program requirements; and
(4) Suspension and termination policies and procedures.
(c) The sponsor retains the responsibility for compliance with a Memorandum of Agreement; the applicable regulations in this Part; and all applicable policies, procedures, and guidance issued by CNCS regarding the VISTA program.
(d) A sponsor shall not request or receive any compensation from a subrecipient for services performed by a VISTA.
(e) A sponsor shall not receive payment from, or on behalf of, the subrecipient for costs of the VISTA assistance, except in two limited circumstances:
(1) For reasonable and actual costs incurred by the sponsor directly related to the subrecipient's participation in a VISTA project; and
(2) For any cost share related to a VISTA placed with the subrecipient in the VISTA project.
(a) A sponsor shall enter into a written agreement for cost share as prescribed by CNCS.
(b) A sponsor shall make timely cost share payments as prescribed by CNCS and applicable federal law and regulations.
(c) In addition to other sources of funds, a sponsor may use funds from federal, state, or local government agencies, provided the requirements of those agencies and their programs are met.
(d) Subject to review and approval by CNCS, CNCS may enter into an agreement with another entity to receive and utilize funds to make cost share payments on behalf of the sponsor.
All sponsors and projects that employ laborers and mechanics for construction, alteration, or repair of facilities shall pay wages at prevailing rates as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended, 40 U.S.C. 276a.
(a) An individual with responsibility for the operation of a project that receives CNCS assistance must not discriminate against a participant in, or member of the staff of, such project on the basis of race, color, national origin, sex, age, or political affiliation of such participant or staff member, or on the basis of disability, if the participant or staff member is a qualified individual with a disability.
(b) Any CNCS assistance constitutes Federal financial assistance for purposes of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d
(c) An individual with responsibility for the operation of a project that receives CNCS assistance may not discriminate on the basis of religion against a participant in such project or a member of the staff of such project who is paid with CNCS funds. This provision does not apply to the employment (with CNCS assistance) of any staff member of a CNCS-supported project who was employed with the organization operating the project on the date the CNCS assistance was awarded.
(d) Sponsors must notify all program participants, staff, applicants, and beneficiaries of:
(1) Their rights under applicable federal nondiscrimination laws, including relevant provisions of the national service legislation and implementing regulations; and
(2) The procedure for filing a discrimination complaint. No sponsor or subrecipient, or sponsor or subrecipient employee, or individual with responsibility for the implementation or operation of a sponsor or a subrecipient, shall discriminate against a VISTA on the basis of race, color, national origin, gender, age, religion, or political affiliation. No sponsor or subrecipient, or sponsor or subrecipient employee, or individual with responsibility for the implementation or operation of a sponsor or a subrecipient, shall discriminate against a VISTA on the basis of disability, if the VISTA is a qualified individual with a disability.
(a) A VISTA shall not give religious instruction, conduct worship services or engage in any form of proselytizing as part of his or her duties.
(b) A sponsor or project may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use any CNCS assistance, including the services of any VISTA or VISTA assistance, to support any inherently religious activities, such as worship, religious instruction, or proselytizing, as part of the programs or services assisted by the VISTA program. If a VISTA sponsor or project conducts such inherently religious activities, the activities must be offered separately, in time or location, from the programs or services assisted under this Part by the VISTA program.
Secs. 103(b)(3), 103(f), 104(a), 104(b), 104(c), and 404(e), Pub. L. 93-113, as amended.
An individual may apply to serve as a VISTA if all the following requirements are met:
(a) The individual is at least eighteen years of age upon taking an oath or affirmation, as appropriate, to enter VISTA service. There is no upper age limit.
(b) The individual is a United States citizen or national, or is legally residing within a state. For eligibility purposes, a lawful permanent resident alien is considered to be an individual who is legally residing within a state.
(a) To the maximum extent practicable, the individual must make a full-time commitment to remain available for service without regard to regular working hours, at all times during his or her period of service, except for authorized periods of leave.
(b) To the maximum extent practicable, the individual must make a full-time personal commitment to alleviate poverty and poverty-related problems, and to live among and at the economic level of the low-income people served by the project.
(c) The individual's service cannot be used to satisfy service requirements of parole, probation, or community service prescribed by the criminal justice system.
(d) A VISTA candidate or member agrees to undergo an investigation into his or her criminal history or background as a condition of enrollment, or continued enrollment, in the VISTA program.
CNCS has the final authority to approve or deny VISTA applications for VISTA service.
Secs. 104(a), 104(b), 104(d), 105, 404(e), 415, and 419 of Pub. L. 93-113, as amended; Sec. 146(c) of Pub. L. 101-610, as amended.
(a) Except for the purposes listed here, a VISTA is not considered an employee of the federal government. A VISTA is considered a federal employee only for the following purposes:
(1) Federal Tort Claims Act—28 U.S.C. 1346(b); 28 U.S.C. 2671-2680;
(2) Federal Employees' Compensation Act—5 U.S.C. chapter 81, subchapter 1;
(3) Hatch Act—5 U.S.C. chapter 73, subchapter III;
(4) Internal Revenue Service Code—26 U.S.C. 1
(5) Title II of the Social Security Act—42 U.S.C. 401
(b) A VISTA is not considered a federal employee for any purposes other than those set forth in paragraph (a) of this section.
(c) A VISTA is not covered by federal or state unemployment compensation related to their enrollment or service in the VISTA program. A VISTA's service is not considered employment for purposes of eligibility for, or receipt of, federal, state, or any other unemployment compensation.
(d) Monetary allowances, such as living allowances that VISTAs receive during VISTA service are not considered wages. Monetary allowances, such as living allowances, that VISTAs receive during VISTA service are considered income for such purposes as federal income tax and Social Security.
(e) A VISTA is not, under any circumstances, considered an employee of the sponsor or project to which he or she is assigned to serve. No VISTA is in an employment relationship with the sponsor or project to which he or she is assigned. The sponsor is not authorized to make contributions to any state unemployment compensation fund on a VISTA's behalf.
(a) To serve as a VISTA, an individual makes a full-time commitment for a minimum of one year, without regard to regular working hours.
(b) A VISTA carries out activities in accordance with the purpose of the VISTA program, as described in section 2556.1 of this Part.
(c) To the maximum extent practicable, the VISTA shall live among and at the economic level of the low-income community served by the project, and actively seek opportunities to engage with that low-income community without regard to regular work hours.
(d) A VISTA carries out service activities in conformance with the sponsor's approved project application, including any description of a VISTA assignment as contained in the project application; and, in conformance with the purpose of title I of the DVSA. In any case where there is a conflict between the project application and the DVSA, the DVSA takes precedence.
(e) Under no circumstances may an individual be enrolled to serve as a VISTA beyond five years.
(a) The VISTA sponsor is responsible for the day-to-day supervision and oversight of the VISTA.
(b) CNCS is responsible for ongoing monitoring and oversight of the VISTA sponsor's project where the VISTA is assigned. CNCS is responsible for selecting the VISTA, assigning the VISTA to a project, removal of a VISTA from a project, and VISTA separation actions such as termination from the VISTA program.
(a) CNCS may provide official travel for a VISTA candidate or a VISTA, as appropriate, to attend CNCS-directed activities, such as pre-service training, placement at the project site, in-service training events, and return from the project site to home of record.
(b) CNCS must approve all official travel of a VISTA candidate or a VISTA, including the mode of travel.
(c) CNCS may provide for official emergency travel for a VISTA in case of a natural disaster or the critical illness or death of an immediate family member.
(a) A VISTA receives a living allowance computed on a daily rate. Living allowances vary according to the local cost-of-living in the project area where the VISTA is assigned.
(b) Subject to a maximum amount, and at the discretion and upon approval of CNCS, a VISTA may receive payment for settling-in expenses, as determined by CNCS.
(c) Subject to a maximum amount, and at the discretion of CNCS, in the event of an emergency (such as theft, fire loss, or special clothing necessitated by severe climate), a VISTA may receive an emergency expense payment in order to resume VISTA service activities, as determined and approved by CNCS.
(d) Subject to a maximum amount, and at the discretion of CNCS, a VISTA may receive a baggage allowance for the actual costs of transporting personal effects to the project site to which the VISTA is assigned to serve, as determined by CNCS.
(e) To the extent eligible, a VISTA may receive health care through a health benefits program provided by CNCS.
(f) To the extent eligible, a VISTA may receive child care support through a child care program provided by CNCS.
(g) To the extent eligible, a VISTA may elect to receive a Segal AmeriCorps Education Award, and upon successful completion of service, receive that award in an amount prescribed by CNCS, in accordance with the applicable provisions of 45 CFR parts 2526, 2527, and 2528.
(1) A VISTA is eligible to elect to receive a Segal AmeriCorps Education Award if he or she is a citizen, national, or lawful permanent resident alien of the United States.
(2) A VISTA who elects a Segal AmeriCorps Education Award is eligible to request forbearance of a student loan from his or her loan-holder. A VISTA who elects a Segal AmeriCorps Education Award may, upon successful completion of service, be eligible to receive up to 100 percent of the interest accrued on a qualified student loan, consistent with the applicable provisions of 45 CFR 2529.
(3) A VISTA is not eligible to receive more than an amount equal to the
(4) Other than for a summer associate, the amount of a Segal AmeriCorps Education Award for the successful completion of a VISTA term of service is equal to the maximum amount of a Federal Pell Grant under Section 401 of the Higher Education Act of 1965 (20 U.S.C. 1070a) that a student eligible for such grant may receive in the aggregate for the fiscal year in which the VISTA has enrolled in the VISTA program.
(h) A VISTA who does not elect to receive a Segal AmeriCorps Education Award, upon successful completion of service, receives an end-of-service stipend in an amount prescribed by CNCS.
(i) In the event that a VISTA does not successfully complete a full term of service, a VISTA shall not receive a pro-rated Segal AmeriCorps Education Award or a pro-rated end-of-service stipend, except in cases where the appropriate State Program Director determines the VISTA did not successfully complete a full term of service because of a compelling, personal circumstance. Examples of a compelling, personal circumstance are: serious medical condition or disability of a VISTA during VISTA service; critical illness or disability of a VISTA's immediate family member (spouse, domestic partner, parent, sibling, child, or guardian) if this event makes completing a term of service unreasonably difficult; or unusual conditions not attributable to the VISTA, such as natural disaster, strike, or premature closing of a project, that make completing a term unreasonably difficult or infeasible.
(j) In the event of a VISTA's death during service, his or her family or others that he or she named as beneficiary in accordance with section 5582 of title 5, United States Code, shall be paid a pro-rated end-of-service stipend for the period during which the VISTA served. If the VISTA had elected to receive the Segal AmeriCorps Education Award for successful completion of a full term of VISTA service, prior to payment to the named beneficiary, CNCS shall convert that election to an end-of-service stipend and pay the VISTA's family, or others that he or she named as beneficiary, a pro-rated end-of-service stipend accordingly.
Under certain circumstances, as set forth below in sections 2556.330 through 2556.335, CNCS may pay reasonable legal defense expenses incurred in judicial or administrative proceedings for the defense of a VISTA serving in the VISTA program. Such covered legal expenses consist of counsel fees, court costs, bail, and other expenses incidental to a VISTA's legal defense.
(a) For the legal defense of a VISTA member who is charged with a criminal offense related to the VISTA member's service, up to and including arraignment in Federal, state, and local criminal proceedings, CNCS may pay actual and reasonable legal expenses. CNCS is not required to pay any expenses for the legal defense of a VISTA member where he or she is charged with a criminal offense arising from alleged activity or action that is unrelated to that VISTA's service.
(b) A VISTA member's service is clearly unrelated to a charged offense:
(1) When the activity or action is alleged to have occurred prior to the VISTA member's VISTA service.
(2) When the VISTA member is not at his or her assigned project location, such as during periods of approved leave, medical leave, emergency leave, or in administrative hold status in the VISTA program.
(3) When the activity or action is alleged to have occurred at or near his or her assigned project, but is clearly not part of, or required by, the VISTA member's service assignment.
(c) For the legal defense, beyond arraignment in Federal, state, and local criminal proceedings, of a VISTA member who is charged with a criminal offense, CNCS may also pay actual and reasonable legal expenses:
(1) When the charged offense against the VISTA member relates exclusively to his or her VISTA assignment or status as a VISTA member;
(2) When the charge offense against the VISTA member arises from an alleged activity or action that is a part of, or required by, the VISTA member's VISTA assignment;
(3) When the VISTA member has not admitted a willful or knowing violation of law; or
(4) When the charged offense against the VISTA member is not a minor offense or misdemeanor, such as a minor vehicle violation.
(d) Notwithstanding the above paragraphs (a)-(c) of this section, there may be situations in which the criminal proceedings at issue arise from a matter that also gives rise to a civil claim under the Federal Tort Claims Act. In such a situation, the U.S. Department of Justice may, on behalf of the United States, agree to defend the VISTA. If the U.S. Department of Justice agrees to defend the VISTA member, unless there is a conflict between the VISTA member's interest and that of the United States, CNCS will not pay for expenses associated with any additional legal representation (such as counsel fees for private counsel) for the VISTA member.
For the legal defense in Federal, state, and local civil judicial and administrative proceedings of a VISTA member, CNCS may also pay actual and reasonable legal expenses, where:
(a) The complaint or charge is against the VISTA, and is directly related to his or her VISTA service and not to his or her personal activities or obligations;
(b) The VISTA has not admitted to willfully or knowingly pursuing a course of conduct that would result in the plaintiff or complainant initiating such a proceeding; and
(c) The judgment sought involves a monetary award that exceeds $1,000.
(a) Non-competitive eligibility is a status attained by an individual such that the individual is eligible for appointment by a federal agency in the Executive branch, into a civil service position in the federal competitive service, in accordance with 5 CFR 315.605.
(b) An individual who successfully completes at least a year-long term of service as a VISTA, and who has not been terminated for cause from the VISTA program at any time, retains non-competitive eligibility status for one year following the end of the term of service as a VISTA.
(c) In addition to the retention of the one year of non-competitive eligibility status as provided in (b) of this section, an individual's non-competitive eligibility status may extend for two more years to a total of three years if the individual is:
(1) In the military service;
(2) Studying at a recognized institution of higher learning; or
(3) In another activity which, in the view of the federal agency referenced in part (a) of this section, warrants extension.
(a) Under the VISTA program grievance procedure, a grievance may be presented by any individual who is
(b) A VISTA's grievance shall not be construed as reflecting on the VISTA's standing, performance, or desirability as a VISTA.
(c) A VISTA who presents a grievance shall not be subjected to restraint, interference, coercion, discrimination, or reprisal because of presentation of views.
(a) Under the VISTA program grievance procedure, grievances are matters of concern, brought by a VISTA, that arise out of, and directly affect, the VISTA's service situation or that arise out of a violation of a policy, practice, or regulation governing the terms or conditions of the VISTA's service, such that the violation results in the denial or infringement of a right or benefit to the VISTA member.
(b) Matters not within the definition of a grievance as defined above in section (a) are not grievable, and therefore, are excluded from the VISTA program grievance procedure. Though not exhaustive, examples of matters excluded from the VISTA program grievance procedure are:
(1) Those matters related to a sponsor's or project's continuance or discontinuance; the number of VISTAs assigned to a VISTA project; the increases or decreases in the level of support provided to a VISTA project; the suspension or termination of a VISTA project; or the selection or retention of VISTA project staff.
(2) Those matters for which a separate administrative procedure or complaint process is provided, such as early termination for cause, claims of discrimination during service, and federal worker's compensation claims filed for illness or injury sustained in the course of carrying out VISTA activities.
(3) Those matters related to any law, published rule, regulation, policy, or procedure.
(4) Those matters related to housing during a VISTA member's service.
(5) Those matters which are, by law, subject to final administrative review outside CNCS.
(6) Those matters related to actions taken, or not taken, by a VISTA sponsor or project, or CNCS, in compliance with or in order to fulfill the terms of a contract, grant, or other agreement related to the VISTA program.
(7) Those matters related to the internal management of CNCS, unless such matters are shown to specifically and directly affect the VISTA's service situation or terms or conditions of his or her VISTA service.
(a) A VISTA is entitled to review any material in his or her official VISTA file and any relevant CNCS records to the extent permitted by the Freedom of Information Act and the Privacy Act, 5 U.S.C. 552, 552a. Examples of materials that may be withheld include references obtained under pledge of confidentiality, official VISTA files of other VISTAs, and privileged intra-agency documents.
(b) A VISTA may review relevant materials in the possession of a sponsor to the extent such materials are disclosable by the sponsor under applicable freedom of information act and privacy laws.
(a)
(2) A VISTA brings a grievance by presenting it in writing to the executive director, or comparable individual, of the sponsoring organization where the VISTA is assigned, or to the sponsor's representative who is designated to receive grievances from a VISTA.
(3) The sponsor shall review and respond in writing to the VISTA's grievance, within 10 calendar days of receipt of the written grievance. The sponsor may not fail to respond to a complaint raised by a VISTA on the basis that it is not an actual grievance, or that it is excluded from coverage as a grievance, but may, in the written response, dismiss the complaint and refuse to grant the relief requested on either of those grounds.
(4) If the grievance brought by a VISTA involves a matter over which the sponsor has no substantial control or if the sponsor's representative is the supervisor of the VISTA, the VISTA may pass over the procedure set forth above in paragraphs (a)(1)-(a)(3) of this section, and present the grievance in writing directly to the State Program Director, as described below in (b) of this section.
(b)
(i) Within seven calendar days of receipt of the response of the sponsor; or,
(ii) In the event the sponsor has not issued a response to the VISTA within 10 calendar days of receipt of the written grievance, within 17 calendar days.
(2) If the grievance involves a matter over which either the sponsor or project has no substantial control or if the sponsor's representative is the supervisor of the VISTA, as described above in paragraph (a)(4) of this section, the VISTA may pass over the procedure set forth in above in paragraphs (a)(1)-(a)(3) of this section, and submit the grievance in writing directly to the State Program Director. In such a case, the VISTA must submit the grievance to the State Program Director within 15 calendar days of the event giving rise to the grievance occurs, or within 15 calendar days after becoming aware of the event.
(3) Within ten working days of receipt of the grievance, the State Program Director shall respond in writing, regardless of whether or not the matter constitutes a grievance as defined under this grievance procedure, and/or is timely submitted. In the response, the State Program Director may determine that the matter submitted as a grievance is not grievable, is not considered a grievance, or fails to meet the time limit for response. If the State Program Director makes any such determination, he or she may dismiss the complaint, setting forth the reason(s) for the dismissal. In such a case, the State Program Director need not address the complaint on the merits, nor make a determination of the complaint on the merits.
(a) The VISTA may appeal in writing to the appropriate Area Manager the response of the State Program Director to the grievance, as set forth in § 2556.360(b)(3). To be eligible to appeal a grievance response to the Area Manager, the VISTA must have
(b) A VISTA's grievance appeal must be in writing and contain sufficient detail to identify the subject matter of the grievance, specify the relief requested, and be signed by the VISTA.
(c) The VISTA must submit a grievance appeal to the appropriate Area Manager no later than 10 calendar days after the State Program Director issues his or her response to the grievance.
(d) Certain matters contained in a grievance appeal may be rejected, rather than denied on the merits, by the Area Manager. A grievance appeal may be rejected, in whole or in part, for any of the following reasons:
(1) The grievance appeal was not submitted to the appropriate Area Manager within the time limit specified above in (c) of this section;
(2) The grievance appeal consists of matters not contained within the definition of a grievance, as specified in section § 2556.350(a);
(3) The grievance appeal consists of matters excluded from the VISTA program grievance procedure, as specified in § 2556.350(b); or
(4) The grievance appeal contains matters that are moot, or for which relief has otherwise been granted.
(e) Within 14 calendar days of receipt of the grievance, the appropriate Area Manager shall decide the grievance appeal on the merits, or reject the grievance appeal in whole or in part, or both, as appropriate. The Area Manager shall notify the VISTA in writing of the decision and specify the grounds for the appeal decision. The appeal decision shall include a statement of the basis for the decision and is a final decision of CNCS.
Secs. 103(b), 103(c), 103(f), and 404(e), Pub. L. 93-113, as amended.
(a) Termination for cause is discharge of a VISTA from the VISTA program due to a deficiency, or deficiencies, in conduct or performance.
(b) CNCS may terminate for cause a VISTA for any of the following reasons:
(1) Conviction of any criminal offense under Federal, State, or local statute or ordinance;
(2) Violation of any provision of the Domestic Service Volunteer Act of 1973, as amended, or any CNCS or VISTA program policy, regulation, or instruction;
(3) Failure, refusal, or inability to perform prescribed project duties as outlined in the project plan, assignment description, or as directed by the sponsor to which the VISTA is assigned;
(4) Involvement in activities which substantially interfere with the VISTA's performance of project duties;
(5) Intentional false statement, misrepresentation, omission, fraud, or deception in seeking to obtain selection as a VISTA in the VISTA program;
(6) Any conduct on the part of the VISTA which substantially diminishes his or her effectiveness as a VISTA; or
(7) Unsatisfactory performance of an assignment.
(a) CNCS has the sole authority to remove a VISTA from a project where he or she has been assigned.
(b) CNCS has the sole authority to terminate for cause, or otherwise terminate, a VISTA from the VISTA program.
(c) Neither the sponsoring organization nor any of its subrecipients has the authority to remove a VISTA from a project or to terminate a VISTA for cause, or for any other basis, from the VISTA program.
(a) The head of a sponsoring organization, or his or her designee, may request that CNCS remove a VISTA assigned to its project. Any such request must be submitted in writing to the appropriate State Program Director and should state the reasons for the request.
(b) The State Program Director may, at his or her discretion, attempt to resolve the situation with the sponsor so that an alternative solution other than removal of the VISTA from the project assignment is reached.
(c) When an alternative solution, as referenced above in 2556.410(b) of this section is not sought, or is not reached within a reasonable time period, the State Program Director shall remove the VISTA from the project.
Of its own accord, CNCS may remove a VISTA from a project assignment without the sponsor's request for removal.
(a) Termination for cause proceedings are initiated by the State Program Director when CNCS removes a VISTA from a project assignment due to an alleged deficiency, or alleged deficiencies, in conduct or performance.
(b) The State Program Director or other CNCS State Office staff, to the extent practicable, communicates the matter with the VISTA who is removed from a VISTA project and the administrative procedures as set forth below in §§ 2556.420(c) through (e) are followed.
(c) The State Program Director shall notify VISTA in writing of CNCS's proposal to terminate for cause. The written proposal to terminate him or her for cause must give the VISTA the reason(s) for the proposed termination, and notify him or her that he or she has 10 calendar days within which to answer in writing the proposal to terminate him or her for cause, and to furnish any accompanying statements or written material. The VISTA must submit any answer to the appropriate State Program Director identified in the written proposal to terminate for cause within the deadline specified in the proposal to terminate for cause.
(d) Within 10 calendar days of the expiration of the VISTA's deadline to answer the proposal to terminate for cause, the appropriate State Program Director shall issue a written decision regarding the proposal to terminate for cause.
(1) If the decision is to terminate the VISTA for cause, the decision shall set forth the reasons for the determination and the effective date of termination (which may be on or after the date of the decision).
(2) If the decision is not to terminate the VISTA for cause, the decision shall indicate that the proposal to terminate for cause is rescinded.
(e) A VISTA who does not submit a timely answer to the appropriate State Program Director, as set forth in paragraph (c) of this section, is not entitled to appeal the decision regarding the proposal to terminate for cause. In such cases, CNCS may terminate the VISTA for cause, on the date identified in the decision, and the termination action is final.
(a) Within 10 calendar days of the appropriate State Program Director's issuance of the decision to terminate the VISTA for cause, as set forth above in § 2556.420(d), the VISTA may appeal the decision to the appropriate Area Manager. The appeal must be in writing and specify the reasons for the VISTA's disagreement with the decision.
(b) CNCS shall not incur any expenses or travel allowances for the VISTA in connection with the preparation or presentation of the appeal.
(c) The VISTA may have access to records as follows:
(1) The VISTA may review any material in the VISTA's official CNCS file and any relevant CNCS records to the extent permitted by the Freedom of Information Act and the Privacy Act, 5 U.S.C. 552, 552a. Examples of documents that may be withheld include references obtained under pledge of confidentiality, official files of other program participants, and privileged intra-agency documents.
(2) The VISTA may review relevant records in the possession of a sponsor to the extent such documents are disclosable by the sponsor under applicable freedom of information act and privacy laws.
(d) Within 14 calendar days of receipt of any appeal by the VISTA, the Area Manager or equivalent CNCS official shall issue a written appeal determination. The appeal determination shall indicate the reasons for such an appeal determination. The appeal determination shall be final.
(a) Only a VISTA whose early termination from the VISTA program is for cause, and who has answered the proposal to terminate him or her for cause in a timely manner, as set forth in § 2556.420(c), is entitled to appeal the early termination action, as referenced in § 2556.425. A termination for cause is based on a deficiency, or deficiencies, in the performance or conduct of a VISTA.
(b) The following types of early terminations from the VISTA program are not terminations for cause, and are not entitled to appeal under the early termination appeal procedure set forth in §§ 2556.420 and 2556.425:
(1) Resignation from the VISTA program prior to the issuance of a decision to terminate for cause, as set forth in § 2556.420(d);
(2) Early termination from the VISTA program because a VISTA did not secure a suitable reassignment to another project; and
(3) Medical termination from the VISTA program.
Secs. 104(d) and 104(e), Pub. L. 93-113, as amended.
(a) From time-to-time, the State Program Director invites sponsors within the state to apply for one or more positions for individuals to serve as summer associates at the sponsor's VISTA project.
(b) Subject to VISTA assistance availability, CNCS approves the establishment of summer associate positions based on the following factors:
(1) The need in the community, as demonstrated by the sponsor, for the performance of project activities by a summer associate(s);
(2) The content and quality of summer associate project plans;
(3) The capacity of the sponsor to implement the summer associate project activities; and
(4) The sponsor's compliance with all applicable parts of the DVSA, VISTA program policy, and the sponsor's Memorandum of Agreement, which incorporates their project application.
Summer associates differ from other VISTAs in the following ways:
(a) Summer associates are not eligible to receive:
(1) Health care through a health benefits program provided by CNCS;
(2) Child care support through a child care program provided by CNCS;
(3) Payment for settling-in expenses; or
(4) Non-competitive eligibility in accordance with 5 CFR 315.605.
(b) Absent extraordinary circumstances, summer associates are not eligible to receive:
(1) Payment for travel expenses incurred for travel to or from the project site to which the summer associate is assigned; or
(2) A baggage allowance for the costs of transporting personal effects to or from the project site to which the summer associate is assigned to serve.
(c) CNCS may discharge a summer associate due to a deficiency, or deficiencies, in conduct or performance. Summer associates are not subject to Subpart E of this Part, or to the grievance procedures provided to VISTAs set forth above in sections 2556.345 through 2556.365.
Sec. 104(b), Pub. L. 93-113, as amended.
(a) At its discretion, CNCS may approve the establishment of a leader position based on the following factors:
(1) The need for a leader in a project of a substantial size and with multiple VISTAs assigned to serve at that project, or the need for leader for multiple projects located within a contiguous geographic region.
(2) The need for a leader to assist with the communication of VISTA policies and administrative procedures to VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.
(3) The need for a leader to assist with the professional development of VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.
(4) The need for a leader to assist with the recruitment and preparation for the arrival of VISTAs within a project, or throughout the multiple projects within a contiguous geographic region, as applicable.
(5) The capacity of the VISTA supervisor to support and guide the leader.
(b) A sponsor may request, in its project application, that CNCS establish a leader position in its project.
An individual is eligible to apply to serve as a leader if he or she has successfully completed any of the following:
a) At least one year of service as a VISTA;
b) At least one full term of service as a full-time AmeriCorps State and National member;
c) At least one full term of service as a member of the AmeriCorps National Civilian Community Corps (NCCC); or
d) At least one traditional term of service as a Peace Corps Volunteer.
(a)
(b)
(c)
CNCS reviews the application package for the leader position, considers the recommendation of the sponsor, and approves or disapproves the individual to serve as a leader.
The application process to apply to become a leader, as described in § 2556.610, is separate and distinct from the application process to apply to enroll as a VISTA in the VISTA program;
(a) A leader may receive a living allowance computed at a higher daily rate than other VISTAs, as authorized under section 105(a)(1)(B) of the DVSA.
(b) A leader is subject to all the terms and conditions of service described in § 2556.625 of this subpart.
Though not exhaustive, terms and conditions of service as a leader include:
(a) A leader makes a full-time commitment to serve as a leader, without regard to regular working hours, for a minimum of one year.
(b) To the maximum extent practicable, a leader shall live among and at the economic level of the low-income community served by the project and actively seek opportunities to engage with that low-income community.
(c) A leader aids the communication of VISTA policies and administrative procedures to VISTAs.
(d) A leader assists with the leadership development of VISTAs.
(e) A leader is a resource in the development and delivery of training for VISTAs.
(f) A leader may assist the sponsor with recruitment and preparation for the arrival of VISTAs.
(g) A leader may advise a supervisor on potential problem areas and needs of VISTAs.
(h) A leader aids VISTAs in the development of effective working relationships and understanding of VISTA program concepts.
(i) A leader may aid the supervisor and sponsor in directing or focusing the VISTA project to best address the community's needs.
(j) A leader may serve as a collector of data for performance measures of the project and the VISTAs.
(k) A leader is prohibited from supervising VISTAs. A leader is also prohibited from handling or managing, on behalf of the project, personnel-related matters affecting VISTAs. Personnel-related matters affecting VISTAs must be managed and handled by the project and in coordination with the appropriate CNCS State Office.
Secs. 104(a), 403, and 415(b), Pub. L. 93-113, as amended.
(a) All VISTAs, including leaders and summer associates, are subject to this Subpart.
(b) All employees of VISTA sponsors and projects, whose salaries or other compensation are paid, in whole or in part, with VISTA grant assistance are subject to this Subpart.
(c) All VISTA sponsors and projects are subject to this subpart.
For purposes of the regulations in this subpart, “prohibited political activity” means an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.
(a) A VISTA may not use his or her official authority or influence to interfere with or affect the result of an election.
(b) A VISTA may not use his or her official authority or influence to coerce any individual to participate in political activity.
(c) A VISTA may not use his or her official VISTA program title while participating in prohibited political activity.
(d) A VISTA may not participate in prohibited political activities in the following circumstances:
(1) While he or she is on duty;
(2) While he or she is wearing an article of clothing, logo, insignia, or other similar item that identifies CNCS, the VISTA program, or one of CNCS's other national service programs;
(3) While he or she is in any room or building occupied in the discharge of VISTA duties by an individual employed by the sponsor; and
(4) While using a vehicle owned or leased by a sponsor or project, or while using a privately-owned vehicle in the discharge of VISTA duties.
(a) Provided that paragraph (b) of this section is fully adhered to, a VISTA may:
(1) Express his or her opinion privately and publicly on political subjects;
(2) Be politically active in connection with a question which is not specifically identified with a political party, such as a constitutional amendment, referendum, approval of a municipal ordinance, or any other question or issue of similar character;
(3) Participate in the nonpartisan activities of a civic, community, social, labor, or professional organization, or of a similar organization; and
(4) Participate fully in public affairs, except as prohibited by other Federal law, in a manner which does not compromise his or her efficiency or integrity as a VISTA, or compromise the neutrality, efficiency, or integrity of CNCS or the VISTA program.
(b) A VISTA may participate in political activities set forth above in paragraph (a) as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interfere with his or her provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Be a member of a political party or other political group and participate in its activities;
(2) Serve as an officer of a political party or other political group, a member of a national, State, or local committee of a political party, an officer or member of a committee of a political group, or be a candidate for any of these positions;
(3) Attend and participate fully in the business of nominating caucuses of political parties;
(4) Organize or reorganize a political party organization or political group;
(5) Participate in a political convention, rally, or other political gathering; and
(6) Serve as a delegate, alternate, or proxy to a political party convention.
(b) A VISTA may participate in a political organization as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth above in § 2556.710, a VISTA may:
(1) Display pictures, signs, stickers, badges, or buttons associated with political parties, candidates for partisan political office, or partisan political groups, as long as these items are displayed in accordance with the prohibitions set forth above in § 2556.710;
(2) Initiate or circulate a nominating petition for a candidate for partisan political office;
(3) Canvass for votes in support of or in opposition to a partisan political candidate or a candidate for political party office;
(4) Endorse or oppose a partisan political candidate or a candidate for political party office in a political advertisement, broadcast, campaign literature, or similar material; and
(5) Address a convention caucus, rally, or similar gathering of a political party or political group in support of or in opposition to a partisan political candidate or a candidate for political party office.
(b) A VISTA may participate in a political campaign as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Provided that paragraph (b) of this section is fully adhered to, and in accordance with the prohibitions set forth above in § 2556.710, a VISTA may:
(1) Register and vote in any election;
(2) Act as recorder, watcher, challenger, or similar officer at polling places;
(3) Serve as an election judge or clerk, or in a similar position; and
(4) Drive voters to polling places for a partisan political candidate, partisan political group, or political party.
(5) Participate in voter registration activities.
(b) A VISTA may participate in elections as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(a) Except as provided in paragraph (c) of this section, no VISTA may run for the nomination to, or as a candidate for election to, partisan political office.
(b) In accordance with the prohibitions set forth in § 2556.710, a VISTA may participate in elections as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interference with the provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(c) Provided that paragraphs (a) and (b) of this section are adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Run as an independent candidate in a partisan election in designated U.S. municipalities and political subdivisions as set forth at 5 CFR part 733; and
(2) Run as a candidate in a non-partisan election.
(a) Provided that paragraphs (b)-(d) below of this section are fully adhered to, and in accordance with the prohibitions set forth in § 2556.710, a VISTA may:
(1) Make a political contribution to a political party, political group, campaign committee of a candidate for public office in a partisan election;
(2) Attend a political fundraiser; and
(3) Solicit, accept, or receive uncompensated volunteer services for a political campaign from any individual.
(b) A VISTA may participate in fundraising activities as long as such participation:
(1) Does not interfere with the performance of, or availability to perform, his or her assigned VISTA project duties;
(2) Does not interfere with the provision of service in the VISTA program;
(3) Is not conducted in a manner involving the use of VISTA assistance, resources or funds;
(4) Would not result in the identification of the VISTA as being a participant in or otherwise associated with the VISTA program;
(5) Is not conducted during scheduled VISTA service hours; and
(6) Does not interfere with the full-time commitment to remain available for VISTA service without regard to regular working hours, at all times during periods of service, except for authorized periods of leave.
(c) A VISTA may not knowingly:
(1) Personally solicit, accept, or receive a political contribution from another individual;
(2) Personally solicit political contributions in a speech or keynote address given at a fundraiser;
(3) Allow his or her perceived or actual affiliation with the VISTA program, or his or her official title as a VISTA, to be used in connection with fundraising activities; or
(4) Solicit, accept, or receive uncompensated individual volunteer services from a subordinate, (
(d) Except for VISTAs who reside in municipalities or political subdivisions designated under 5 CFR part 733, no VISTA may accept or receive a political contribution on behalf of an individual who is a candidate for local partisan political office and who represents a political party.
(a) A VISTA may not knowingly solicit or discourage the participation in any political activity of any individual who has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before CNCS or the VISTA program.
(b) A VISTA may not knowingly solicit or discourage the participation of any political activity of any individual who is the subject of, or a participant in, an ongoing audit, investigation, or enforcement action being carried out by or through CNCS or the VISTA program.
A VISTA who is the spouse or family member of either a candidate for partisan political office, candidate for political party office, or candidate for public office in a nonpartisan election, is subject to the same restrictions and prohibitions as other VISTAs, as set forth in § 2556.713.
In accordance with the prohibitions set forth in § 2556.710, VISTAs may participate in lawful demonstrations, political rallies, and other political meetings, so long as such participation is in conformance with all of the following:
(a) Occurs only while on authorized leave or while otherwise off duty;
(b) Does not include attempting to represent, or representing the views of VISTAs or the VISTA program on any public issue;
(c) Could not be reasonably understood by the community as being identified with the VISTA program, the project, or other elements of VISTA service; and
(d) Does not interfere with the discharge of VISTA duties.
(a) No VISTA sponsor shall approve a VISTA to be involved in planning, initiating, participating in, or otherwise aiding or assisting in any demonstration or other political meeting.
(b) Any VISTA sponsor which, subsequent to the receipt of any CNCS financial assistance, including the assignment of VISTAs, approves the participation of a VISTA in a demonstration or other political meeting, shall be subject to procedures related to the suspension or termination of such assistance, as provided in Subpart B, §§ 2556.135 to 2556.140.
Violations by a VISTA of any of the prohibitions or restrictions set forth in this Subpart may warrant termination for cause, in accordance with proceedings set forth at §§ 2556.420, 2556.425, and 2556.430.
(a) All sponsors are required to:
(1) Understand the restrictions and prohibitions on the political activities of VISTAs, as set forth in this Subpart;
(2) Provide training to VISTAs on all applicable restrictions and prohibitions on political activities, as set forth in this Subpart, and use training materials that are consistent with these restrictions and prohibitions;
(3) Monitor on a continuing basis the activity of VISTAs for compliance with this Subpart; and
(4) Report all violations, or questionable situations, immediately to the appropriate CNCS State Office.
(b) Failure of a sponsor to comply with the requirements of this Subpart, or a violation of the requirements contained in this Subpart by the sponsor or project, sponsor or project's covered employees, agents, or VISTAs, may be deemed to be a material failure to comply with terms or conditions of the VISTA program. In such a case, the sponsor shall be subject to procedures related to the denial or reduction, or suspension or termination, of such assistance, as provided in §§ 2556.125, 2556.130, and 2556.140.
(a) All employees of VISTA sponsors and projects, whose salaries or other compensation are paid, in whole or in part, with VISTA funds are subject to all applicable prohibitions and restrictions described in this Subpart in the following circumstances:
(1) Whenever they are engaged in an activity that is supported by CNCS or VISTA funds or assistance; and
(2) Whenever they identify themselves as acting in their capacity as an official of a VISTA project that receives CNCS or VISTA funds or assistance, or could reasonably be perceived by others as acting in such a capacity.
(a) No VISTA sponsor shall assign a VISTA to perform service or engage in activities related to influencing the passage or defeat of legislation or proposals by initiative petition.
(b) No VISTA sponsor shall use any CNCS financial assistance, such as VISTA funds or the services of a VISTA, for any activity related to influencing the passage or defeat of legislation or proposals by initiative petition.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes management measures for the 2015 summer flounder, scup, and black sea bass recreational fisheries. The implementing regulations for these fisheries require NMFS to publish recreational measures for the fishing year and to provide an opportunity for public comment. The intent of these measures is to constrain recreational catch to established limits and prevent overfishing of the summer flounder, scup, and black sea bass resources.
Comments must be received by 5 p.m. local time, on May 20, 2015.
You may submit comments on this document, identified by NOAA-NMFS-2015-0051, by either of the following methods:
—OR—
Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on
Copies of the Supplemental Information Report (SIR) and other supporting documents for the recreational harvest measures are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The recreational harvest measures document is also accessible via the Internet at:
Moira Kelly, Fishery Policy Analyst, (978) 281-9218.
The summer flounder, scup, and black sea bass fisheries are managed cooperatively under the provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) developed by the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission, in consultation with the New England and South Atlantic Fishery Management Councils. The management units specified in the FMP include summer flounder (
The Council process for devising recreational management measures to recommend to NMFS for rulemaking is generically described in the following section. All meetings are open to the public and the materials utilized during such meetings, as well as any documents created to summarize the meeting results, are public information and posted on the Council's Web site (
The FMP established monitoring committees for the three fisheries, consisting of representatives from the Commission, the Council, state marine fishery agency representatives from Massachusetts to North Carolina, and NMFS. The FMP's implementing regulations require the monitoring committees to review scientific and other relevant information annually. The objective of this review is to recommend management measures to the Council that will constrain landings within the recreational harvest limits established for the summer flounder, scup, and black sea bass fisheries for the upcoming fishing year. The FMP limits the choices for the types of measures to minimum fish size, per angler possession limit, and fishing season.
The Council's Demersal Species Committee and the Commission's Summer Flounder, Scup, and Black Sea Bass Management Board then consider the monitoring committees' recommendations and any public comment in making their recommendations to the Council and the Commission, respectively. The Council reviews the recommendations of the Demersal Species Committee, makes its own recommendations, and forwards them to NMFS for review. The Commission similarly adopts recommendations for the states. NMFS is required to review the Council's recommendations to ensure that they are consistent with the targets specified for each species in the FMP and all applicable laws and Executive Orders before ultimately implementing measures for Federal waters.
In this rule, NMFS proposes management measures for the 2015 summer flounder, scup, and black sea bass recreational fisheries consistent with the recommendations of the Council. All minimum fish sizes discussed are total length measurements of the fish,
NMFS is proposing the following measures that would apply in the
NMFS proposes to implement the Council and Commission's recommendation to use conservation equivalency to manage the 2015 summer flounder recreational fishery. The 2015 recreational harvest limit for summer flounder is 7.38 million lb (3,347 mt). Projected landings for 2014 are approximately 7.33 million lb (3,324 mt), just below the recreational harvest limit for 2015. As a result, the 2015 recreational landings should be maintained relative to 2014 to prevent the recreational harvest limit from being exceeded.
Conservation equivalency, as established by Framework Adjustment 2 (July 29, 2011; 66 FR 36208), allows each state to establish its own recreational management measures (possession limits, minimum fish size, and fishing seasons) to achieve its state harvest limit partitioned by the Commission from the coastwide recreational harvest limit, as long as the combined effect of all of the states' management measures achieves the same level of conservation as would Federal coastwide measures. Framework Adjustment 6 (July 26, 2006; 71 FR 42315) allowed states to form regions for conservation equivalency in order to minimize differences in regulations for anglers fishing in adjacent waters.
The Council and Board annually recommend that either state- or region-specific recreational measures be developed (conservation equivalency) or that coastwide management measures be implemented to ensure that the recreational harvest limit will not be exceeded. Even when the Council and Board recommend conservation equivalency, the Council must specify a set of coastwide measures that would apply if conservation equivalency is not approved for use in Federal waters.
When conservation equivalency is recommended, and following confirmation that the proposed state or regional measures developed through the Commission's technical and policy review processes achieve conservation equivalency, NMFS may waive the permit condition found at § 648.4(b), which requires Federal permit holders to comply with the more restrictive management measures when state and Federal measures differ. In such a situation, federally permitted summer flounder charter/party permit holders and individuals fishing for summer flounder in the EEZ would then be subject to the recreational fishing measures implemented by the state in which they land summer flounder, rather than the coastwide measures.
In addition, the Council and the Board must recommend precautionary default measures when recommending conservation equivalency. The Commission would require adoption of the precautionary default measures by any state that either does not submit a summer flounder management proposal to the Commission's Summer Flounder Technical Committee, or that submits measures that would exceed the Commission-specified harvest limit for that state.
Much of the conservation equivalency measures development process happens at both the Commission and the individual state level. The selection of appropriate data and analytical techniques for technical review of potential state conservation equivalent measures and the process by which the Commission evaluates and recommends proposed conservation equivalent measures is wholly a function of the Commission and its individual member states. Individuals seeking information regarding the process to develop specific state measures or the Commission process for technical evaluation of proposed measures should contact the marine fisheries agency in the state of interest, the Commission, or both.
The Commission has implemented an addendum to its Summer Flounder FMP (Addendum XXVI) to continue regional conservation equivalency for fishing year 2015. The Commission has adopted the following regions, identical to the regions used in 2014: (1) Massachusetts; (2) Rhode Island; (3) Connecticut, New York, and New Jersey; (4) Delaware, Maryland, and Virginia; and (5) North Carolina. Each state within a region is required by the Council and Commission FMPs to have identical measures. In order to provide the maximum amount of flexibility and to continue to adequately address the state-by-state differences in fish availability, each state in a region is required to establish fishing seasons of the same length, identical minimum fish sizes, and identical possession limits. The Commission will need to certify that these measures, in combination, are the conservation equivalent of coastwide measures that would be expected to result in the recreational harvest limit being achieved, but not exceeded. More information on this addendum is available from the Commission (
Once the states and regions select their final 2015 summer flounder management measures through their respective development, analytical, and review processes and submit them to the Commission, the Commission will conduct further review and evaluation of the submitted proposals, ultimately notifying NMFS as to which proposals have been approved or disapproved. NMFS has no overarching authority in the development of state or Commission management measures, but is an equal participant along with all the member states in the review process. NMFS retains the final authority either to approve or to disapprove the use of conservation equivalency in place of the coastwide measures in Federal waters, and will publish its determination as a final rule in the
States that do not submit conservation equivalency proposals, or whose proposals are disapproved by the Commission, will be required by the Commission to adopt the precautionary default measures. In the case of states that are initially assigned precautionary default measures, but subsequently receive Commission approval of revised state measures, NMFS will publish a notice in the
The 2015 precautionary default measures recommended by the Council and Board are for a 20.0-inch (50.8-cm) minimum fish size, a possession limit of two fish, and an open season of May 1 through September 30, 2015.
In this action, NMFS proposes to implement conservation equivalency with a precautionary default backstop, as previously outlined, for states that either fail to submit conservation equivalent measures or whose measures are not approved by the Commission. NMFS proposes the alternative of coastwide measures (18-inch (45.7-cm) minimum size, 4-fish possession limit, May 1-September 30 open fishing season), if conservation equivalency is not approved in the final rule.
NMFS is proposing to implement the Council and Commission's recommended scup recreational management measures for 2015 in Federal waters. The proposed measures for the 2015 scup recreational fishery are: 9-inch (22.9-cm) minimum fish size; 50-fish per person per trip possession limit; and an open season of January 1 through December 31.
The 2015 scup recreational harvest limit is 6.80 million lb (3,084 mt). Estimated 2014 scup recreational landings are 4.46 million lb (2,023 mt); therefore, no reduction in landings is needed. The increase in the possession limit from 30 to 50 fish is intended to promote an increase in recreational scup fishing in order to more fully achieve, but not exceed, the recreational harvest limit.
NMFS is proposing to implement the Council's recommended recreational management measures to constrain landings for black sea bass. The 2015 black sea bass recreational harvest limit is 2.33 million lb (1,056 mt). The 2014 projected landings are 3.45 million lb (1,115 mt). This requires a 33-percent reduction in 2015 landings relative to 2014.
Recreational black sea bass catch occurs primarily in state waters in the states of New Jersey through Massachusetts (
In 2012, recreational black sea bass catch exceeded the annual catch limit of 2.52 million lb (1,143 mt) by 129 percent. In 2013, recreational black sea bass catch exceeded the annual catch limit of 2.9 million lb (1,315 mt) by 5 percent. Because the average catch exceeds the average annual catch limit, as described in the regulations, an accountability measure is applicable to the 2015 fishery. An accountability measure was implemented for the 2014 fishing year because of the 2012 overage. The proposed 2015 measures are functionally the same as those implemented last year to comply with the accountability measure (12.5-inch (31.8-cm) minimum size, 15-fish possession limit, and 201-day fishing season). Continuing these regulations preserves the accountability measure that was applied last year; as such, no further accountability measures are necessary for 2015.
We are proposing the Council's recommended Federal waters measures, a 12.5-inch (31.8-cm) minimum size, 15-fish possession limit, and open seasons of May 15-September 21 and October 22-December 31. This proposal is contingent upon the northern region, established under the Commission's Addendum XXV, implementing the required 33-percent reduction in their state regulations. If the northern region's measures do not meet the required reduction, NMFS is proposing the Council's default recommendation of a 14-inch (35.6-cm) minimum size, a 3-fish possession limit, and an open season of July 15-September 15 (
This rule would also clarify the regulations for summer flounder, scup, and black sea bass to indicate that the the possession limits are per person, per trip. While it is clear in the FMP and subsequent amendments and framework adjustments that the possession limits are intended to apply for the entirety of a fishing trip, the regulations were less specific. This action would correct that oversight.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
The Council conducted an evaluation of the potential socioeconomic impacts of the proposed measures in conjunction with a supplemental information report. These analyses identified 856 federally permitted charter/party vessels in the Greater Atlantic Region that could be affected by the proposed change. However, only 350 federally permitted charter/party vessels are expected to participate in these fisheries this year. There were 326 unique business entities associated with those 350 vessels, 299 are classified as for-hire businesses, 22 are finfish businesses, and 5 are shellfish businesses. One of the shellfish businesses potentially impacted by this rule is considered a “large” shellfish business; all of the other businesses are considered “small” by the respective Small Business Administration's size standards. The proposed measure would continue the use of conservation equivalency for summer flounder, moderately increase the possession limit for scup in Federal waters, and implement a minor adjustment to the black sea bass recreational fishing season in Federal waters to account for a previous rulemaking. The proposed action would result in essentially status quo measures for these fisheries in Federal waters. Analysis conducted by the Council indicates that these measures would have a minimal, potentially slightly positive, impact on regulated entities.
Because this rule will not have a significant economic impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:
16 U.S.C. 1801
(a)
(c) Summer flounder harvested by vessels subject to the possession limit with more than one person on board may be pooled in one or more containers. Compliance with the possession limit will be determined by dividing the number of summer flounder on board by the number of persons on board, other than the captain and the crew. If there is a violation of the possession limit on board a vessel carrying more than one person, the violation shall be deemed to have been committed by the owner and operator of the vessel.
(a) The Regional Administrator has determined that the recreational fishing measures proposed to be implemented by the states of Maine through North Carolina for 2015 are the conservation equivalent of the season, minimum size, and possession limit prescribed in §§ 648.102, 648.103, and 648.105(a), respectively. This determination is based on a recommendation from the Summer Flounder Board of the Atlantic States Marine Fisheries Commission.
(a)
(c) Scup harvested by vessels subject to the possession limit with more than one person aboard may be pooled in one or more containers. Compliance with the possession limit will be determined by dividing the number of scup on board by the number of persons aboard other than the captain and crew. If there is a violation of the possession limit on board a vessel carrying more than one person, the violation shall be deemed to have been committed by the owner and operator.
(a) During the recreational fishing season specified at § 648.146, no person shall possess more than 15 black sea bass in, or harvested from, per trip the EEZ unless that person is the owner or operator of a fishing vessel issued a black sea bass moratorium permit, or is issued a black sea bass dealer permit. Persons aboard a commercial vessel that is not eligible for a black sea bass moratorium permit may not retain more than 15 black sea bass during the recreational fishing season specified at § 648.146. The owner, operator, and crew of a charter or party boat issued a black sea bass moratorium permit are subject to the possession limit when carrying passengers for hire or when carrying more than five crew members for a party boat, or more than three crew members for a charter boat. This possession limit may be adjusted pursuant to the procedures in § 648.142.
(c) Black sea bass harvested by vessels subject to the possession limit with more than one person aboard may be pooled in one or more containers. Compliance with the possession limit will be determined by dividing the number of black sea bass on board by the number of persons aboard, other than the captain and the crew. If there is a violation of the possession limit on board a vessel carrying more than one person, the violation shall be deemed to have been committed by the owner and operator of the vessel.
Vessels that are not eligible for a moratorium permit under § 648.4(a)(7), and fishermen subject to the possession limit specified in § 648.145(a), may only possess black sea bass from May 15 through September 21, and October 22 through December 31, unless this time period is adjusted pursuant to the procedures in § 648.142.
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that the Animal and Plant Health Inspection Service is making available for public comment a preliminary plant pest risk assessment and draft environmental assessment for Innate
We will consider all comments that we receive on or before June 4, 2015.
You may submit comments by either of the following methods:
•
•
Supporting documents for this petition and any other information we receive on this docket may be viewed at
Supporting documents for this petition are also available on the APHIS Web site at
Dr. John Turner, Director, Environmental Risk Analysis Programs, Biotechnology Regulatory Services, APHIS, 4700 River Road Unit 147, Riverdale, MD 20737-1236; (301) 851-3954, email:
Under the authority of the plant pest provisions of the Plant Protection Act (7 U.S.C. 7701
The regulations in § 340.6(a) provide that any person may submit a petition to the Animal and Plant Health Inspection Service (APHIS) seeking a determination that an article should not be regulated under 7 CFR part 340. APHIS received a petition (APHIS Petition Number 14-093-01p) from the J.R. Simplot Company (Simplot) of Boise, ID, seeking a determination of nonregulated status of potatoes (
According to our process
After public comments are received on a completed petition, APHIS evaluates those comments and then provides a second opportunity for public involvement in our
If APHIS decides, based on its review of the petition and its evaluation and analysis of comments received during the 60-day public comment period on the petition, that the petition involves a GE organism that raises no substantive new issues, APHIS will follow Approach 1 for public involvement. Under Approach 1, APHIS announces in the
If APHIS decides, based on its review of the petition and its evaluation and analysis of comments received during the 60-day public comment period on the petition, that the petition involves a GE organism that raises substantive new issues, APHIS will follow Approach 2. Under Approach 2, APHIS first solicits written comments from the public on a draft EA and PPRA for a 30-day comment period through the publication of a
As part of our decisionmaking process regarding a GE organism's regulatory status, APHIS prepares a PPRA to assess the plant pest risk of the article. APHIS also prepares the appropriate environmental documentation—either an EA or an environmental impact statement—in accordance with NEPA, to provide the Agency and the public with a review and analysis of any potential environmental impacts that may result if the petition request is approved.
APHIS has prepared a PPRA and has concluded that Innate
APHIS has also prepared a draft EA in which we present two alternatives based on our analysis of data submitted by Simplot, a review of other scientific data, field tests conducted under APHIS oversight, and comments received on the petition. APHIS is considering the following alternatives: (1) Take no action,
The EA was prepared in accordance with (1) NEPA, as amended (42 U.S.C. 4321
In accordance with our process for soliciting public input when considering petitions for determinations of nonregulated status for GE organisms, we are publishing this notice to inform the public that APHIS will accept written comments on our draft EA and our PPRA regarding the petition for a determination of nonregulated status from interested or affected persons for a period of 30 days from the date of this notice. Copies of the draft EA and the PPRA, as well as the previously published petition, are available as indicated under
After the comment period closes, APHIS will review all written comments received during the comment period and any other relevant information. After reviewing and evaluating the comments on the draft EA and the PPRA and other information, APHIS will revise the PPRA as necessary and prepare a final EA. Based on the final EA, APHIS will prepare a NEPA decision document (either a FONSI or a notice of intent to prepare an environmental impact statement). If a FONSI is reached, APHIS will furnish a response to the petitioner, either approving or denying the petition. APHIS will also publish a notice in the
7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.
Bureau of the Census, Department of Commerce.
Notice of Public Meeting.
The Bureau of the Census (U.S. Census Bureau) is giving notice of a meeting of the Federal Economic Statistics Advisory Committee (FESAC). The Committee will advise the Directors of the Economics and Statistics Administration's (ESA) two statistical agencies, the Bureau of Economic Analysis (BEA) and the Census Bureau, and the Commissioner of the U.S. Department of Labor's Bureau of Labor Statistics (BLS) on statistical methodology and other technical matters related to the collection, tabulation, and analysis of federal economic statistics. Last minute changes to the agenda are possible, which could prevent giving advance public notice of schedule adjustments.
June 12, 2015. The meeting will begin at approximately 9:00 a.m. and adjourn at approximately 4:30 p.m.
The meeting will be held at the U.S. Census Bureau Conference Center, 4600 Silver Hill Road, Suitland, MD 20746.
James R. Spletzer, Designated Federal Official, Department of Commerce, U.S. Census Bureau, Research and Methodology Directorate, Room 5K175, 4600 Silver Hill Road, Washington, DC 20233, telephone 301-763-4069, email:
Members of the FESAC are appointed by the Secretary of Commerce. The Committee
The meeting is open to the public, and a brief period is set aside for public comments and questions. Persons with extensive questions or statements must submit them in writing at least three days before the meeting to the Designated Federal Official named above. If you plan to attend the meeting, please register by Monday, June 1, 2015. You may access the online registration form with the following link:
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should also be directed to the Designated Federal Official as soon as known, and preferably two weeks prior to the meeting.
Due to increased security and for access to the meeting, please call 301-763-9906 upon arrival at the Census Bureau on the day of the meeting. A photo ID must be presented in order to receive your visitor's badge. Visitors are not allowed beyond the first floor.
U.S. Census Bureau, 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.
To ensure consideration, written comments must be submitted on or before July 6, 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(s) and instructions should be directed to James Hinckley, Census Bureau, Room 6K057-South Building, Washington, DC 20233 (or via the Internet at
The Census Bureau plans to conduct a Precanvass Operation in preparation for the 2017 Commodity Flow Survey to improve the efficiency and accuracy of the sample frame. The Commodity Flow Survey itself will be the subject of a later notice planned for publication in early 2016.
The Commodity Flow Survey, a component of the Economic Census, is the only comprehensive source of multimodal, system-wide data on the volume and pattern of goods movement in the United States. The Commodity Flow Survey is conducted in partnership with the Bureau of Transportation Statistics, Office of the Assistant Secretary for Research and Technology, U.S. Department of Transportation.
The Commodity Flow Survey data are used by policy makers and transportation planners in various federal, state, and local agencies for accessing the demand for transportation facilities and services, energy use, and safety risk and environmental concerns. Additionally, business owners, private researchers, and analysts use the Commodity Flow Survey data for analyzing trends in the movement of goods, mapping, spatial patterns of commodity and vehicle flows, forecasting demands for the movement of goods, and determining needs for associated infrastructure and equipment.
In conducting the Precanvass, the Census Bureau will select a sample from U.S. manufacturing, mining, and wholesale establishments, enterprise support establishments, electronic shopping, mail-order houses, and publishing establishments. The Precanvass will determine if these establishments are engaged in shipping activities, and if so obtain an estimate of the annual value of those shipments, along with updating address and contact information for the 2017 Commodity Flow Survey. Those establishments that do not engage in shipping activity will be eliminated from the sample frame. Identification and elimination of the non-shippers will significantly improve the efficiency of the sample for the 2017 Commodity Flow Survey. In addition, those establishments excluded from the sample frame will be saved the added burden of receiving a 2017 Commodity Flow Survey questionnaire.
The Census Bureau will mail letters to (a) enterprise support establishments in the Census Bureau's Business Register, and (b) the largest establishments in the industries listed in section I that are likely to be included in the 2017 Commodity Flow Survey. The estimated size of the Precanvass is 150,000 establishments. The size is subject to change to meet the goals of the survey, but will be no larger than approximately 150,000 establishments.
The Census Bureau will primarily use electronic data capture methodology, with occasional data capture from facsimile receipts, secured messaging attachments, and telephone call-in responses. Letter mailings and telephone follow-up will be conducted for the nonresponse cases. General information on shipping activity and value of shipments will be collected via check box style questions. Contact information will also be collected and used to improve the mailing and follow-up activities for the 2017 Commodity Flow Survey.
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
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.
First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice and request for comments.
The First Responder Network Authority (“FirstNet”) publishes this
Submit comments on or before June 4, 2015.
The public is invited to submit written comments to this
Eli Veenendaal, First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192; 703-648-4167; or
The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, Title VI, 126 Stat. 256 (codified at 47 U.S.C. 1401
As detailed in our
More specifically, we analyzed the complex definition of the term “public safety entity” under the Act.
Generally speaking, the Act defines public safety entities by the types of services they provide (
Our analysis in the
The Act's public safety entity definition raises three primary interpretive questions regarding non-traditional first responders:
1. Whether an “entity” should be defined as a group or authority of a certain minimum size or nature (such as an entire government agency or department) or can an “entity” include a sub-group or an individual;
2. Whether and to what extent an “entity” that provides public safety services some, but not all the time, can qualify as a public safety entity; and
3. Whether and to what extent an “entity” that provides services close or related to, but not identical to
In general, our preliminary interpretations in the
A “public safety entity” is defined in section 6001(26) of the Act as an “entity that provides public safety services.”
(A)
Section 337(f) of the Communications Act defines “public safety services” to mean services:
(A) The sole or principal purpose of which is to protect the safety of life, health or property;
(B) that are provided by (i) State or local government entities, or (ii) by non-governmental organizations that are authorized by a governmental entity whose primary mission is the provision of such services; and
(C) that are not made commercially available to the public by the provider.
Under the HSA, “emergency response providers” include “Federal, State, and local governmental and nongovernmental emergency public safety, fire, law enforcement, emergency response, emergency medical (including hospital emergency facilities), and related personnel, agencies, and authorities.”
In the
We believe, however, that FirstNet's discretion as to which entities to allow onto the network is contemplated by and important under the framework of the Act. For example, given the finite nature of spectrum resources, the exercise of such discretion is necessary to ensure the proper functioning of the network, in addition to FirstNet's economic self-sustainability for the benefit of public safety. Moreover, such discretion is necessary to give meaning to, among other things, FirstNet's obligation to consult with regional, State, tribal, and local jurisdictions regarding the “assignment of priority
Similarly, given the Act's express consultation obligations with respect to FirstNet's assignment of priority to entities using the network—which could effectively give FirstNet the ability to deprioritize entities even if they qualified under the definition—it would appear to make little sense for Congress to have intended a purely mechanical application of the public safety entity definition.
Finally, although we preliminarily conclude that FirstNet may have discretion within the bounds of the public safety entity definition, we did not mean to imply in the
The public safety entity definition is dependent on the definition of public safety services, which is in turn dependent on two separate definitions from statutes outside the Act. Before trying to draw precise boundaries around any of these terms it is helpful to look at the overall definitional structure, particularly how the two extra-Act definitions interact within the definition of public safety services.
The term “public safety services”:
(A)
(B)
Some commenters objected to this formulation, essentially arguing that the addition of the second prong “(B)” was merely to clarify the scope of prong “(A)” and did not expand it.
We continue to preliminarily conclude, however, that the more natural reading of the definition is as we concluded in the
There are other similar additions to the section 337(f) definition provided by the HSA prong, such as “nongovernmental” entities that do not require separate authorization and hospital emergency facilities, which would not satisfy the section 337(f) requirement that public safety services “are not made commercially available to the public by the provider.”
With regard to supplementing the section 337(f) definition, Congress did not qualitatively characterize services in the second prong other than to say that the definition “includes” services in that prong, and thus we cannot find justification for treating them differently or as lesser-included services.
As a result, we preliminarily conclude that the two prongs form a combined list, as discussed above, and seek further comments on this preliminary conclusion.
A public safety entity is defined in section 6001(26) of the Act as an “entity that provides public safety services.”
An example of where Congress required such a minimum amount of services is contained in the Communications Act prong of the definition of public safety services, where Congress used the phraseology “a governmental entity
This contrast is actually evident entirely within the Communications Act definition of public safety services itself. In describing the entities under section 337(f) of the Communications Act that must be providing a service for it to constitute a public safety service, Congress uses the phrase “that are provided by . . . State or local government entities.” In describing the entities that are permitted to authorize a nongovernmental entity to provide such services, however, Congress used the phrase “a governmental entity
Some commenters, however, advocated that the public safety entity definition should be read more holistically under the Act, rather than treating each portion of the definition—such as each services prong—as a separate interpretation that flowed up to the next stage.
For example, in the context of the Communications Act definition of public safety services, we noted in the
In the context of an organization, FirstNet must also determine whether the organization qualifies as a public safety entity
In the
As an initial matter, we restate our preliminary conclusion from the
Under the HSA prong of the definition, “personnel” (as contrasted with “agencies . . . and authorities”) are expressly included as service providers, and thus we believe it is reasonable to conclude that an “entity” under the Act performing such services should be interpreted to include individual “personnel.”
The section 337(f) prong of the public safety services definition speaks only in terms of “State or local government entities” or “non-governmental organizations.” This raises the question as to whether an individual or group smaller than the whole “entity” or “organization” can provide qualifying services and thus constitute public safety entities under the Act via the section 337(f) prong. In section 337(f), however, Congress included services provided by entities or organizations whose mission was not “primar[ily]” the provision of services the sole or principle purposes of which is the protection of life, health, or property. That is, these entities or organizations by definition may sometimes have other primary missions, but occasionally as a whole or through only some employees provide qualifying services. As a result, we preliminarily conclude that under the section 337(f) prong a public safety entity under the Act can include at least a group of employees smaller than a larger organization.
As an overall framework for qualifying public safety entities, we first preliminarily conclude that where an organization
Next, with respect to organizations that do not meet the above criteria, we preliminarily conclude that those
We note that our preliminary interpretations are by necessity made based on the specific language, context and purpose of the Act. We must therefore interpret the definition of public safety entity by reference to the aggregation of services defined both by the section 337 and HSA prongs of the public safety services definition under the Act, rather than just either prong on a stand-alone basis, as may be required by other agencies in different contexts. In this regard, our interpretation as set forth above would apply regardless of whether the services provided qualified as public safety services under the section 337(f) prong or the HSA prong of the definition in the Act. For example, under the section 337(f) prong, those field and operations personnel of a governmental or authorized nongovernmental entity that provide emergency services the sole or principal purpose of which is to protect the safety of life, health or property would qualify as public safety entities, along with any necessary dispatchers etc.
Under this refined preliminary interpretation, however, where an organization
We recognize that implementation of the above framework may require certifications or other evidence of eligibility of certain customers or groups within organizations. Customer eligibility requirements for specialized services, including communications services, exist and are managed today in the industry. Nevertheless, in addition to comments regarding the above refined preliminary interpretation itself, we seek comments on the appropriate mechanisms for implementing this interpretation assuming it is ultimately adopted.
In the
1. Entities supporting airport operations when “ensuring the routine safety of airline passengers, crews, and airport personnel and property in a complex air transportation environment.”
2. Transportation departments in the design and maintenance of roadways, the installation and maintenance of traffic signals and signs, and other activities that affect the safety of motorists and passengers.
3. Entities protecting the safety of animals, homes, and city infrastructure, particularly in crisis situations.
The FCC's interpretation of section 337(f) predated passage of the Act, and thus Congress is presumed to have knowledge of the interpretation and could have taken steps to modify the definition in the Act in light of the FCC's interpretation, but did not.
In all cases, however, as discussed above, FirstNet is obligated to consult with regional, State, tribal, and local jurisdictions regarding the “selection of entities seeking access to or use of the [network].”
We preliminarily conclude, however, that subject to such consultation and in accordance with our above analyses in this
Regarding the section 337(f) prong, personnel, or subgroups of non-governmental organizations, if authorized under the terms of that section, provide qualifying public safety services under the Act if they provide services “the sole or principal purpose of which is to protect the safety of life, health or property” and those services are not “made commercially available to the public.” We preliminarily conclude, for example, that private utility workers that remove a live electrical wire touching a car at an accident scene is performing a service the principal purpose of which is to protect the safety of life.
As mentioned, however, under the section 337(f) prong, such a private entity would have to be “authorized by a governmental entity whose primary mission is the provision of such services” to qualify as providing public safety services. We preliminarily conclude that in our State and local consultations under the Act regarding the “entities seeking access to or use of the [network],” traditional governmental fire, police, and EMS entities, as examples, may authorize non-governmental entity personnel and subgroups, and thus if such personnel or subgroups also meet the criteria described in part V. of this
Under the HSA prong, no such authorizations of non-governmental entities are necessary. Thus, if personnel or subgroups of non-governmental organizations qualify under the HSA prong as “emergency response . . . personnel” or personnel “related” to such emergency response personnel, they would also qualify as public safety entities under the Act. We thus preliminarily conclude, for example, that a private utility worker that removes a live electrical wire touching a car at an accident scene is performing a service typically provided by an emergency response provider, or, at a minimum, by related personnel supporting such a response provider. We also preliminarily conclude that, subject to further consultations mentioned above regarding entities seeking access to the network, non-governmental personnel involved in or supporting such emergency response activities, such as the utility worker described above removing an electrical wire, can legally qualify under the Act as public safety entities. We seek comments on these preliminary conclusions.
Any non-public oral presentation to FirstNet regarding the substance of this
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce (“Department”) is conducting the administrative review of the antidumping duty order on certain activated carbon from the People's Republic of China (“PRC”) for the period of review (“POR”) April 1, 2013, through March 31, 2014. The Department preliminarily finds that subject merchandise has been sold in the United States at prices below normal value (“NV”) during the POR. The Department invites interested parties to comment on these preliminary results.
Bob Palmer or Frances Veith, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-9068, or (202) 482-4295, respectively.
The merchandise subject to the order is certain activated carbon. The products are currently classifiable under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheading 3802.10.00.
Based on an analysis of U.S. Customs and Border Protection (“CBP”) information, and no shipment certifications submitted by Sinoacarbon International Trading Co., Ltd. (“Sinoacarbon”), the Department preliminarily determines that Sinoacarbon had no shipments during the POR. For additional information regarding this determination,
Consistent with our practice in non-market economy (“NME”) cases, the Department is not rescinding this review, in part, but intends to complete the review with respect to Sinoacarbon, for which it has preliminarily found no shipments, and issue appropriate instructions to CBP based on the final results of the review.
The Department conducted this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (“the Act”). We calculated constructed export prices and export prices in accordance with section 772 of the Act. Because the PRC is a non-market economy (“NME”) within the meaning of section 771(18) of the Act, NV has been calculated in accordance with section 773(c) of the Act.
For a full description of the methodology underlying our conclusions,
The Department preliminarily finds that four companies subject to this review did not establish eligibility for a separate rate. As such, we preliminarily determine they are part of the PRC-wide entity.
For companies subject to this review which established their eligibility for a separate rate, the Department preliminarily determines that the following weighted-average dumping margins exist for the POR from April 1, 2013, through March 31, 2014:
The Department intends to disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19
Interested parties may submit written comments in the form of case briefs within 30 days of publication of the preliminary results and rebuttal comments in the form of rebuttal briefs within five days after the time limit for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) The number of participants; and (3) A list of issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs.
All submissions, with limited exceptions, must be filed electronically using ACCESS. An electronically filed document must be received successfully in its entirety by 5 p.m. Eastern Time (“ET”) on the due date. Documents excepted from the electronic submission requirements must be filed manually (
Unless otherwise extended, the Department intends to issue the final results of this administrative review, which will include the results of its analysis of issues raised in any briefs, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Upon issuance of the final results, the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by this review.
For entries that were not reported in the U.S. sales data submitted by companies individually examined during this review, the Department will instruct CBP to liquidate such entries at the rate for the PRC-wide entity.
In accordance with section 751(a)(2)(C) of the Act, the final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated antidumping duties, where applicable.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For each specific company listed in the final results of review, the cash deposit rate will be equal to the weighted-average dumping margin established in the final results of this review (except, if the rate is
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
International Trade Administration, U.S. Department of Commerce; Transportation Affairs, Bureau for Economic and Business Affairs, U.S. Department of State; Office of Aviation and International Affairs, U.S. Department of Transportation.
Notice and request for comments.
This notice announces that the Departments of Commerce, State, and Transportation are interested in obtaining from interested stakeholders information regarding their views on claims that three foreign airlines—Emirates Airline, Etihad Airways, and Qatar Airways—have received and are benefitting from subsidies from their homeland governments that are distorting the global aviation market.
The comment period for this notice is now open and will remain open for the foreseeable future. As explained below, however, anyone interested in providing input to the Departments before they determine what actions should be taken, if any, should submit information as soon as practicable.
You may submit comments on this document via the Federal e-Rulemaking Portal at
Eugene Alford, Office of Supply Chain, Professional & Business Services, International Trade Administration, U.S. Department of Commerce (Phone: (202) 482-5071 or Email:
Any interested person or group may submit information, responses to existing materials, or any other analysis that they might wish to provide the U.S. government on this subject on the
No provision has been made for submission of confidential material to these dockets. The materials in the docket will not be edited to remove identifying or contact information. The Departments caution against including any information in an electronic submission that one does not want publicly disclosed.
All correspondence on this subject received by the Departments after the issuance of this notice will be considered part of this submission process and will be posted in
Any stakeholder that has previously submitted letters on this matter to the Departments can also submit such previous correspondence to the
The three Departments encourage submissions to be made as soon as practicable, as review of any new material submitted to the joint docket is expected to begin by the end of May, to supplement the U.S. government's ongoing review and evaluation of this matter.
To submit a comment, please visit
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
NMFS and the Northeast Regional Stock Assessment Workshop (SAW) will convene the 60th SAW Stock Assessment Review Committee for the purpose of reviewing stock assessments of scup and the bluefish. The Northeast Regional SAW is a formal scientific peer-review process for evaluating and presenting stock assessment results to managers for fish stocks in the offshore US waters of the northwest Atlantic. Assessments are prepared by SAW working groups and reviewed by an independent panel of stock assessment experts called the Stock Assessment Review Committee, or SARC. The public is invited to attend the presentations and discussions between the review panel and the scientists who have participated in the stock assessment process.
The public portion of the Stock Assessment Review Committee Meeting will be held from June 2 through June 5, 2015. The meeting will commence on June 2, 2015 at 10 a.m. Eastern Daylight Time. Please see
The meeting will be held in the S.H. Clark Conference Room in the Aquarium Building of the National Marine Fisheries Service, Northeast Fisheries Science Center (NEFSC), 166 Water Street, Woods Hole, MA 02543.
Sheena Steiner, 508-495-2177; email:
For further information, please visit the NEFSC Web site at
This meeting is physically accessible to people with disabilities. Special requests should be directed to Sheena Steiner at the NEFSC, 508-495-2177, at least 5 days prior to the meeting date.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before July 6, 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
This request is for revision of a currently approved information collection.
The collection consists of vessel and dealer permits that are part of the National Marine Fisheries Service (NMFS) program to manage fisheries in the Southeast Region. The fisheries in the Southeast Region are managed under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) (16 U.S.C. 1801) and regulations at 50 CFR part 622, 50 CFR part 635 and 50 CFR part 300. NMFS issues permits to fishing vessels and dealers in order to collect information necessary to comply with domestic and international fisheries obligations, secure compliance with regulations, and disseminate necessary information.
This revision would amend the “Federal Permit Application for Vessels Fishing in the Exclusive Economic Zone (EEZ)” to add the collection of an International Maritime Organization/Lloyd's Registry (IMO/LR) number to the permit application for commercial HMS vessels ≥ 20 meters (65' 7”) in length that are obtaining or renewing a HMS limited access permit, including the Atlantic tuna longline, shark incidental, shark directed, swordfish incidental, swordfish directed, and swordfish handgear permits. The International Commission for the Conservation of Atlantic Tunas (ICCAT) approved a recommendation (13-13) for Contracting Parties to require commercial vessels ≥ 20 meters (65′ 7″) in length to obtain an IMO/LR number from IHS/Fairplay by no later than January 1, 2016. Permit applications that do not contain the required supporting documents will be considered incomplete.
This revision would also change the Report for the Deposit or Harvest of Aquacultured Live Rock by adding language to the instructions, specifically, “If not originally approved, then provide a new sample of rock,” adding the USCG documentation number or state registration number for the primary vessel the permit is used on, changing the wording in the instructions for the box describing the deposited material to include the “type and specific geographic origin” of the material, and adding a yes/no check box for whether a sample of the deposit material has been provided to NMFS.
The requirement for commercial HMS vessels to obtain an IMO/LR number is accomplished by accessing a secure Internet automated system supported by IHS/Fairplay (
The Southeast Region's Web site also includes other forms under this collection, including the vessel permit application and the dealer permit application, which can be downloaded and completed electronically, and printed. There is also an option now to complete a vessel permit application online and submit it online, for certain fisheries. All other permitting requirements are currently still paper forms.
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; call for nominations.
In January 2013, NOAA Fisheries publicly solicited nominations for two presidential appointments to serve as U.S. Commissioners to the International Pacific Halibut Commission (IPHC). This multi-step nomination process provided for extensive participation by stakeholders in the Pacific halibut fishery and resulted in the appointment of two highly qualified individuals to serve in this important position. U.S. Commissioners to the IPHC Commission are appointed for a term not to exceed 2 years, but are eligible for reappointment. In order to ensure that the views of relevant stakeholders and others with an on-going interest in the Pacific halibut fishery are adequately reflected, NOAA is again soliciting nominations for two individuals to serve as U.S. Commissioners to the IPHC. Nominations are open to all qualified individuals and may include current Commissioners.
Nominations must be received by June 4, 2015. A list of nominees will be published on the NMFS Alaska Regional Office Web site (
Nominations for U.S. Commissioners to the IPHC may be made in writing to Mr. Patrick E. Moran, Office of International Affairs and Seafood Inspection, National Marine Fisheries Service, at 1315 East-West
Mr. Patrick E. Moran, (301) 427-8370.
The IPHC is a bilateral regional fishery management organization established pursuant to the Convention between Canada and the United States for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention). The Convention was signed at Ottawa, Ontario, on March 2, 1953, and was amended by a Protocol Amending the Convention signed at Washington, DC, on March 29, 1979. The Convention's central objective is to develop the stocks of Pacific halibut in waters off the west coasts of Canada and the United States to levels that will permit the optimum yield from the Pacific halibut fishery and to maintain the stocks at those levels. The IPHC fulfills this objective in part by recommending Pacific halibut fishery conservation and management measures for approval by the United States and Canada. Pursuant to the Northern Pacific Halibut Act of 1982, the Secretary of State, with the concurrence of the Secretary of Commerce, may accept or reject, on behalf of the United States, conservation and management measures recommended by the IPHC. 16 U.S.C. 773b. Measures accepted by the Secretary of State are adopted as binding regulations governing fishing for Pacific halibut in Convention waters of the United States. 16 U.S.C. 773c(b)(1). More information on the IPHC can be found at
Section 773a of the Northern Pacific Halibut Act of 1982 (16 U.S.C. 773a) requires that the United States be represented on the IPHC by three U.S. Commissioners. U.S. Commissioners are appointed for a term not to exceed 2 years, but are eligible for reappointment. Of the Commissioners:
(1) One must be an official of the National Oceanic and Atmospheric Administration; and
(2) Two must be knowledgeable or experienced concerning the Northern Pacific halibut fishery; of these, one must be a resident of Alaska and the other shall be a nonresident of Alaska. Of the three commissioners described in paragraphs (1) and (2), one must also be a voting member of the North Pacific Fishery Management Council.
(3) Commissioners who are not Federal employees are not considered to be Federal employees except for the purposes of injury compensation or tort claims liability as provided in section 8101
In their official IPHC duties, Commissioners represent the interests of the United States and all of its stakeholders in the Pacific halibut fishery. These duties require a modest amount of travel (typically two or three trips per year lasting less than a week), and travel expenses are paid by the U.S. Department of State. Commissioners receive no compensation for their services.
NOAA Fisheries is currently accepting nominations for two U.S. Commissioners for the IPHC who are not officials of NOAA. Successful nominees will be considered for appointment by the President and (pending Presidential action) interim designation by the Department of State. Nomination packages should provide details of an individual's knowledge and experience in the Pacific halibut fishery. Examples of such knowledge and/or experience could include (but are not limited to) such activities as: Participation in commercial, tribal, Community Development Quota (CDQ) and/or sport and charterboat halibut fishing operations; participation in halibut processing operations; and participation in Pacific halibut management activities.
Nomination packages should document an individual's qualifications and state of residence. Self-nominations are acceptable, and current and former IPHC Commissioners are eligible for reappointment. Résumés, curriculum vitae, and/or letters of recommendation are useful but not required. Nomination packages will be evaluated on a case-by-case basis by officials in NOAA and the Department of Commerce who are familiar with the duties and responsibilities of IPHC Commissioners; evaluations will consider the aggregate of an individual's prior experience and knowledge of the Pacific halibut fishery, residency requirements, and any letters of recommendation provided. Nominees will be notified of their status (including rejection or approval) and any need for further information once the nomination process is complete.
Commodity Futures Trading Commission.
Notice of meeting.
The Commodity Futures Trading Commission (CFTC) announces that on June 2, 2015, from 10:00 a.m. to 1:30 p.m., the Market Risk Advisory Committee (MRAC) will hold a public meeting at the CFTC's Washington, DC, headquarters. The MRAC will discuss issues related to: (1) The appropriate industry response to current and potential cybersecurity threats; and (2) the concentration of Futures Commission Merchants, and its effect on, and other factors currently affecting, market liquidity.
The meeting will be held on June 2, 2015, from 10:00 a.m. to 1:30 p.m. Members of the public who wish to submit written statements in connection with the meeting should submit them by June 16, 2015.
The meeting will take place in the Conference Center at the CFTC's headquarters, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581. Written statements should be submitted by mail to: Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, attention: Office of the Secretary, or by electronic mail to:
Petal Walker, MRAC Designated Federal Officer, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581; (202) 418-5794.
The meeting will be open to the public with seating on a first-come, first-served basis. Members of the public may also listen to the meeting by telephone by calling a domestic toll-free telephone or
After the meeting, a transcript of the meeting will be published through a link on the CFTC's Web site,
5 U.S.C. app. 2 § 10(a)(2).
Environmental Protection Agency (EPA).
Notice of meeting.
The Environmental Protection Agency (EPA) announces a public meeting of the Great Lakes Advisory Board (Board). The purpose of this meeting is to discuss the Great Lakes Restoration Initiative (GLRI) covering FY15-19 and other relevant matters.
The meeting will be held on Tuesday, May 19, 2015 from 10 a.m. to 3 p.m. Central Time, 11 a.m. to 4 p.m. Eastern Time. An opportunity will be provided to the public to comment.
The meeting will be held at the U.S. Army Corps of Engineers Offices at 230 S. Clark St., 16th Floor, Fort Dearborn and Lake Michigan Conference Rooms, Chicago, Illinois. Meeting attendees must use the visitor's entrance located at 230 S. Clark St. For security reasons, attendees must provide their full name at least three working days in advance by contacting Rita Cestaric at
Any member of the public wishing further information regarding this meeting may contact Rita Cestaric, Designated Federal Officer (DFO), by email at
The Board consists of 16 members appointed by EPA's Administrator in her capacity as IATF Chair. Members serve as representatives of state, local and tribal government, environmental groups, agriculture, business, transportation, educational institutions, and as technical experts.
Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
Notice of Meeting.
If you plan to attend the meeting in person, we ask that you notify 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 May 29, 2015.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
1.
Federal Trade Commission (“Commission” or “FTC”).
Notice.
The FTC plans to conduct a study to examine consumer perception of class action notices. This is the first of two notices required under the Paperwork Reduction Act (“PRA”) seeking public comments on proposed research before requesting Office of Management and Budget (“OMB”) review of, and clearance for, the collection of information discussed herein.
Comments must be received on or before July 6, 2015.
Interested parties may file a comment at
Robin Moore, Attorney, 202-326-2167, Division of Enforcement, Bureau of Consumer Protection, 600 Pennsylvania Avenue NW., Washington, DC 20580.
The Commission's Class Action Fairness Project strives to ensure that class action settlements in consumer protection and competition matters provide appropriate benefits to consumers and that class action counsel or defendants are not inappropriately benefitting at the expense of class members. As part of this program, the FTC monitors class actions and files amicus briefs or intervenes in appropriate cases;
To further these goals, the FTC plans to conduct an Internet-based consumer research study to explore consumer perceptions of class action notices, including whether consumers understand the options provided in the notices and the implications of such options. The proposed Study will gauge consumer comprehension of the options conveyed by the notice and the implications of each option for the respondent. Specifically, using a treatment-effect methodology, the study will examine whether respondents receiving class action notices
Having considered the costs and benefits of various data collection methods, the FTC staff has concluded that an Internet panel with nationwide coverage will provide the most efficient way to collect data to meet the research objectives within a feasible budget. Thus, the FTC proposes to collect responses from a broad spectrum of the U.S. adult population. Participants will be drawn from an Internet panel maintained by a commercial firm that operates the panel. All participation will be voluntary. While the results will not be generalizable to the U.S. population, the Commission believes that they will provide useful insights into consumer understanding of the claims being considered.
Staff estimates that respondents will require, on average, 20 minutes to complete the questionnaire. Staff will pretest the questionnaire with approximately 100 respondents to ensure that all questions are easily understood. Allowing for an extra three minutes for questions unique to the pretest, the pretest will total approximately 38 hours, cumulatively (100 respondents × 23 minutes each). Once the pretest is completed, the FTC plans to seek information from up to 8,000 respondents for approximately 20 minutes each. Thus, respondents will cumulatively take approximately 2,700 hours. The cost per respondent should be negligible. Participation will not require start up, capital, or labor expenditures.
Under the PRA, 44 U.S.C. 3501-3521, federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. “Collection of information” means agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party.
Pursuant to Section 3506(c)(2)(A) of the PRA, the FTC invites comments on: (1) Whether the reporting requirements are necessary, including whether the information will be practically useful; (2) the accuracy of our burden estimates, including whether the methodology and assumptions used are valid; (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.
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before July 6, 2015. Write “Class Action Notice Consumer Perception Study, Project No. P024210” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually-identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively-sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Class Action Notice Consumer Perception Study, Project No. P024210” on your comment and on the envelope and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
By direction of the Commission.
Federal Trade Commission (“Commission” or “FTC”).
Notice.
The FTC plans to conduct a study to examine the factors influencing consumers' decisions to participate in a class action settlement, opt out of a class action settlement, or object to the settlement. This is the first of two notices required under the Paperwork Reduction Act (“PRA”) seeking public comments on proposed research before requesting Office of Management and Budget (“OMB”) review of, and clearance for, the collection of information discussed herein.
Comments must be received on or before July 6, 2015.
Interested parties may file a comment at
Robin Moore, Attorney, 202-326-2167, Division of Enforcement, Bureau of Consumer Protection, 600 Pennsylvania Avenue NW., Washington, DC 20580.
The Commission's Class Action Fairness Project strives to ensure that class action settlements in consumer protection and competition matters provide appropriate benefits to consumers and that class action counsel or defendants are not inappropriately benefitting at the expense of class members. As part of this program, the FTC monitors class actions and files amicus briefs or intervenes in appropriate cases;
To further these goals, the FTC plans to conduct a consumer research study to determine what factors influence a consumer's decision to participate in a class action settlement, opt out of a class action settlement, or object to the settlement. Specifically, the study will examine whether consumers' comprehension of their options, the amount consumers expect to receive from the settlement, or the complexity of the settlement process impacts their decision to participate in a settlement. To conduct the study, FTC staff will directly contact consumers who have received class action notices. We plan to use the results, along with other information such as public comments, to guide the FTC's Class Action Fairness Project.
Having considered the costs and benefits of various data collection methods, the FTC staff has concluded that directly contacting recipients of nationwide class action notices will provide the most efficient way to collect data to meet the research objectives within a feasible budget. Thus, the FTC proposes to collect responses from a broad spectrum of the U.S. adult population. Participants will be drawn from information provided by settlement administrators who have administered nationwide class actions. All participation will be voluntary. While the results will not be generalizable to the U.S. population, the Commission believes that they will provide useful insights into consumer understanding of the claims being considered.
Staff estimates that respondents will require, on average, 20 minutes to complete the questionnaire. Staff will pretest the questionnaire with approximately 100 respondents to ensure that all questions are easily understood. Allowing for an extra three minutes for questions unique to the pretest, the pretest will total approximately 38 hours, cumulatively (100 respondents × 23 minutes each). Once the pretest is completed, the FTC plans to seek information from up to 8,000 respondents for approximately 20 minutes each. Thus, respondents will cumulatively take approximately 2,700 hours. The cost per respondent should be negligible. Participation will not require start up, capital, or labor expenditures.
Under the PRA, 44 U.S.C. 3501-3521, federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. “Collection of information” means agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party.
Pursuant to Section 3506(c)(2)(A) of the PRA, the FTC invites comments on: (1) Whether the reporting requirements are necessary, including whether the information will be practically useful; (2) the accuracy of our burden estimates, including whether the methodology and assumptions used are valid; (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.
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before July 6, 2015. Write “Class Action Deciding Factors Study, Project No. P024210” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Class Action Deciding Factors Study, Project No. P024210” on your comment and on the envelope and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Room CC-5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
By direction of the Commission.
Office of Human Resources Management (OHRM), General Services Administration (GSA).
Notice of meetings.
The General Services Administration's Labor-Management Relations Council (GLMRC), a Federal Advisory Committee established in accordance with the Federal Advisory Committee Act (FACA), 5 U.S. C., App., and Executive Order 13522, plans to hold two meetings that are open to the public.
The meetings will be held on Tuesday, May 19, 2015, from 9:30 a.m. to 4:30 p.m., and Wednesday, May 20, 2015, 1:00 p.m. to 4:30 p.m., eastern standard time.
The meetings will be held in the General Services Administration's Conference Center, 1800 F Street NW., Washington, DC 20405. This site is accessible to individuals with disabilities. Please refer to the GLMRC Web site on
Ms. Temple L. Wilson, GLMRC Designated Federal Officer (DFO), OHRM, General Services Administration, at telephone 202-969-7110, or email at
The GLMRC is an advisory body composed of representatives of the Federal employee unions representing GSA employees and senior GSA officials. The GLMRC was established consistent with Executive Order 13522, entitled, “Creating Labor-Management Forums to Improve Delivery of Government Services;” which instructs Federal agencies to establish department- or agency-level labor-management forums to help identify problems and propose solutions to better serve the public and Federal agency missions. The GLMRC is tri-chaired by GSA's Chief Human Capitol Officer, together with two senior union officials from each of the two Federal employees' unions representing GSA employees.
The GLMRC works toward promoting cooperative and productive relationships between labor and management, providing an opportunity for employees through their union representatives to engage in pre-decisional involvement in all workplace matters to the fullest extent practicable, and to advise the GSA administrator on innovative ways to improve delivery of services and products to the public while cutting costs and advancing employee interests. The May 19, 2015 and May 20, 2015 meetings will establish GLMRC's priorities for 2015. The GLMRC will also discuss workforce planning and employee training and development.
The meetings are open to the public. In order to gain entry into the Federal building where the meeting is being held, public attendees who are Federal employees should bring their Federal employee identification cards, and members of the general public should bring their driver's license or other government-issued identification.
The public is invited to submit written comments for the meetings until 5:00 p.m. eastern time on Monday, May 18, 2015, by either of the following methods:
Any comments submitted in connection with the GLMRC meeting will be made available to the public under the provisions of the Federal Advisory Committee Act.
Gulf Coast Ecosystem Restoration Council.
Issuance of final procedures.
The Gulf Coast Ecosystem Restoration Council (Council) is hereby issuing final procedures for implementing the National Environmental Policy Act (NEPA). These procedures include categorical exclusions (CEs) of actions the Council has determined do not individually or cumulatively have a significant effect on the human environment and, thus, are categorically excluded from the requirement to prepare an Environmental Assessment (EA) or Environmental Impact Statement (EIS) under NEPA.
On July 6, 2012, the President signed the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012 (“RESTORE Act” or “Act”) into law. The Act establishes a new trust fund in the Treasury of the United States, known as the Gulf Coast Restoration Trust Fund (Trust Fund). Eighty percent of the administrative and civil penalties paid after July 6, 2012, under the Federal Water Pollution Control Act in connection with the
The Act is focused on the Gulf Coast region and has five components. The Direct Component, administered by the Department of the Treasury, sets aside 35 percent of the penalties paid into the Trust Fund for eligible activities proposed by the five Gulf Coast states—Alabama, Florida, Louisiana, Mississippi, and Texas—including local governments within Florida and Louisiana. The Council-Selected Restoration Component sets aside 30 percent of the penalties, plus half of all interest earned on Trust Fund investments, to be managed by a new independent entity in the Federal government called the Gulf Coast Ecosystem Restoration Council (Council). The Council is comprised of members from six Federal agencies or departments and the five Gulf Coast states. One of the Federal members, the Secretary of Commerce, currently serves as Chairperson of the Council. The Council will direct Council-Selected Restoration Component funds to projects and programs for the restoration of the Gulf Coast region, pursuant to an Initial Comprehensive Plan that has been developed by the Council. Under the Spill Impact Component, the Gulf Coast states can use an additional 30 percent of penalties in the Trust Fund for eligible activities pursuant to plans developed by the states and approved by the Council. The remaining five percent of penalties, plus one-half of all interest earned on Trust Fund investments, will be divided equally between the final two components, a National Oceanic and Atmospheric Administration RESTORE Act Science Program and a Department of the Treasury administered Centers of Excellence Research Grants Program.
These procedures establish the Council's policy and procedures to ensure compliance with NEPA and Council on Environmental Quality (CEQ) regulations for implementing NEPA. Each Federal agency is required to develop NEPA procedures as a supplement to the CEQ regulations. The Council's major responsibilities are set out in greater detail in the RESTORE Act, and responsibilities relative to the administration of the Council-Selected Restoration Component are further described below. The Council continues to deliberate policies and procedures relative to implementation of the Spill Impact Component. Information on such matters will be available at a later date.
The below NEPA procedures are applicable to Council actions. Activities funded pursuant to any component of the Act may also be subject to an environmental review under NEPA in instances where there is a separate Federal action. For example, a restoration project funded under the Direct Component would be subject to NEPA if it required a permit to fill wetlands pursuant to Section 404 of the Clean Water Act.
The Act provides 30 percent of penalties deposited into the Trust Fund to the Council, plus one-half of the interest earned on Trust Fund investments, to carry out a Comprehensive Plan. In August 2013, the Council issued the Initial Comprehensive Plan for Restoring the Gulf Coast's ecosystem and economy. This Initial Comprehensive Plan provides a framework to implement a coordinated region-wide restoration effort to restore, protect, and revitalize the Gulf Coast. The Initial Comprehensive Plan was accompanied by a Programmatic Environmental Assessment.
Pursuant to the Act, the Council will develop a “Funded Priority List” (or FPL) of projects and programs to be carried out to advance the goals and objectives set forth in the Initial Comprehensive Plan, subject to available funding. The Council will periodically update the Initial Comprehensive Plan and the FPL, in accordance with the Act.
The FPL and subsequent updates will consist of a list of projects and programs which the Council intends to fund for planning, technical assistance, or implementation purposes. The Council anticipates that once the full amount ultimately to be paid into the Trust Fund is known, future amendments to the FPL will include significantly larger projects and project lists that reflect the full amount available to be spent for restoration activities. A Council commitment to fund implementation of a project or program in the FPL is a Federal action which requires the appropriate level of NEPA review. Examples of NEPA compliance include preparation of new NEPA documentation, adoption of existing NEPA documentation, or application of a CE, as warranted. The FPL may commit planning and technical assistance funds for activities such as engineering, design, and environmental compliance for projects and programs. According to the Initial Comprehensive Plan, a Council commitment of planning or technical assistance funds for a project or program in an FPL does not necessarily guarantee that the Council will subsequently fund implementation
In developing and updating the FPL, the Council will seek to ensure that the projects and programs contained therein reflect a comprehensive approach for Gulf restoration, consistent with the Act and the Initial Comprehensive Plan. To that end, the Council will build upon existing restoration plans and strategies, engage the public, ensure the FPL is based on sound science, and assess the cumulative environmental impacts of projects and programs contained in the FPL, as appropriate.
There has been extensive Gulf coast restoration planning conducted at Federal, state, and local levels. This includes the Gulf Coast Ecosystem Restoration Task Force Strategy (Task Force Strategy), as well as state-level efforts, such as the Louisiana Comprehensive Master Plan for a Sustainable Coast and the Mississippi Coastal Improvement Program (MsCIP). In addition, watershed-level planning efforts have been conducted by Gulf-based National Estuary Programs and other stakeholder groups. The Council intends to build upon these planning efforts in developing the initial FPL and subsequent updates.
The Council will engage the public in the development of the FPL and subsequent updates. Public engagement conducted by the Council members prior to development of the draft FPL will be considered in the Council's project review and selection process. The public will also have an opportunity to review and comment on the draft FPL. Where applicable, the NEPA processes for specific projects and programs in the FPL will also provide opportunities for public input. The public would have the opportunity to provide input during the scoping of EISs as well as an opportunity to review and comment on draft EISs. Under some circumstances, as detailed in the NEPA procedures, the public would also have an opportunity to review and comment on draft EAs.
Independent scientific review of the projects and programs nominated for inclusion in the FPL will help ensure that all funded activities are based on the best available science. In some cases, projects and programs nominated for inclusion in the FPL may be derived from existing restoration plans, which have already undergone independent scientific review. In such cases, the Council's independent scientific review process would complement the scientific foundation established within the respective planning process.
The Council will ensure that the evaluations of projects and programs in the initial FPL and subsequent updates effectively assess potential cumulative impacts in accordance with NEPA, which requires a Federal agency to consider the incremental environmental impacts of the proposed action when combined with relevant past, present, and reasonably foreseeable future actions. The cumulative impact assessments will generally be tailored to the area of influence of the given activity. For example, a project with a large area of influence (such as a river diversion) would have a commensurately broader assessment of cumulative effects, while one with a limited area of influence (such as a small vegetative planting project) would have a more limited assessment of potential cumulative effects. To the extent appropriate, the assessment of cumulative impacts will draw upon existing information in relevant ongoing and completed NEPA documents, including the Initial Comprehensive Plan Programmatic EA, the
On January 16, 2015, the Council published draft NEPA procedures in the
The commenter recommended the Council ensure that the alternatives analysis for projects and programs is robust and complete. The Council agrees that the analysis of alternatives is an essential component of the NEPA process. Consistent with CEQ regulations, the Council will ensure the rigor of the alternatives analysis for a project or program that requires evaluation in an EA or EIS is appropriate relative to the scope and magnitude of the activity being considered. As this is a policy-level recommendation, no change was made to the procedures in response to this comment.
The commenter recommended that the applicability and appropriateness of Council use of a member CE should be included in decision documents that are publically available. In response, the Council will inform the public when it uses a member CE in association with the approval of funding for a project or program under the Council-Selected Restoration Component. The Council will provide the public with the specific CE being used, along with the Council's findings regarding the review of potential extraordinary circumstances. Subsection 4(f) of the procedures has been modified to clarify that such information will be made available to the public on the Council's Web site.
The commenter recommended that the Council provide a list of member agencies' potentially applicable CEs on the Council's Web site or provide links to the federal agency Web sites where those CEs can be found. In response, the Council will provide and endeavor to maintain links to member agencies' CEs on its Web site. It should be noted, however, that the potential applicability of a member CE to a Council action would be determined on a case-by-case basis. By providing links to the member agencies' CEs, the Council is not necessarily indicating its intent to use any of the subject CEs. That is a determination that would be made based on the specific details of the activity to which the CE might be applied. No change was made to the procedures in response to this comment.
The commenter recommended that the Council change the word “may” to “must” in Section 15(b). The Council will advise each recipient of Council-Selected Restoration Component funds of the recipient's obligations to address any and all environmental laws that might be applicable to implementation of a given project or program but that are not necessarily applicable to the Council's approval of funding for the activity. As discussed in the procedures, the Council will also endeavor to concurrently address all environmental requirements applicable to a proposed project or program, to the extent feasible and appropriate. However, there may be instances where it would be appropriate for the Council to issue a Record of Decision that approves funding for a project or program pending completion
The commenter recommended that the Council's NEPA procedures include a sunset provision (
The commenter recommended that the Council consider establishing an interagency co-located team for reviewing and preparing NEPA documents. The Council agrees that the use of interagency teams in the preparation and review of NEPA documents and other compliance information can result in greater efficiency and more robust information. Being comprised of a number of regulatory agencies, the Council is well-positioned to conduct such interagency work. Indeed, the Council has an interagency team that works on a range of issues pertaining to NEPA and environmental compliance. Going forward, the Council intends to consider whether establishing a co-located interagency team would be an appropriate use of resources relative to the potential benefits it could provide. Such resource decisions are in large part contingent upon the ultimate amount of funding the Council will administer, a number that is not currently known. As this is a policy level recommendation, no change was made to the procedures in response to this comment.
The commenter recommended that the Council establish a system to share relevant information and data with Council members and applicants preparing NEPA documents. The commenter also recommended that the Council apply lessons learned from prior NEPA coordination and share best practices with applicants and document preparers. In response, the Council agrees that sharing relevant information, data, and lessons-learned with project sponsors and within the Council membership could help ensure efficient and effective NEPA processes. This is one of the roles of the interagency team referenced above. The Council will continue to conduct such activities, while also looking for other ways to effectively share information to improve environmental compliance outcomes. As this is a policy level recommendation, no change was made to the procedures in response to this comment.
In addition to the modification discussed above, the Council has also made the following minor changes to the procedures to increase clarity and consistency. In Section 9 paragraph (b)(7), the Council added language indicating that copies of final EISs will also be provided to Federal agencies and other parties who commented substantively on the draft EIS. This change ensures consistency with similar language provided in Section 12 paragraph (c)(12) of the procedures. Also, Section 4 paragraph (h) has been revised to omit a reference to functional equivalence because it is not anticipated to be exercised with respect to the Council's activities. Finally, technical corrections were made to Section 4 paragraph (b), Section 5 paragraphs (b) and (c), and Section 13 paragraph (h)(8) to ensure consistency and compliance with NEPA, the CEQ Regulations, and a recent Executive Order.
As an independent Federal entity that is composed of, in part, six Federal agencies, including the Departments of Agriculture, the Army, Commerce, and the Interior, the Department in which the Coast Guard is operating, and the Environmental Protection Agency, the requirements of Executive Orders 12866 and 13563 are inapplicable to these procedures.
The Regulatory Flexibility Act requires the Council to consider whether a document would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. These NEPA procedures apply to Council actions and applicants for funding under the Council-Selected Restoration Component of the Act. These applicants are limited by the Act to the Federal and state members of the Council. Therefore, the Council hereby certifies that these procedures would not have a significant economic impact on a substantial number of small entities.
Under the Paperwork Reduction Act, the Council must have approval from the Office of Management and Budget (OMB) before collecting information from the public (such as forms, general questionnaires, surveys, instructions, and other types of collections). According to these NEPA procedures, applicants for funding under the Council-Selected Restoration Component could be required to prepare and submit NEPA documentation to the Council prior to a decision on whether to fund a given activity. These applicants would be limited to the Federal and state members of the Council and NEPA submissions would be unique to each individual project or program selected for inclusion in the FPL. These procedures would not lead to the collection of information. On this basis, the Council has determined that these procedures would not create any new information collection requirements for the public.
Executive Order 13175 requires the Council to engage in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications. “Policies that have tribal implications” refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the
Executive Order 12898 directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and/or low-income populations. The Council's NEPA procedures specifically call for the consideration of potential environmental justice issues in the development of Environmental Impact Statements, and reference the need to address Executive Order 12898, where applicable. The Council has therefore determined that these NEPA procedures do not raise any environmental justice concerns.
The Council on Environmental Quality regulations do not direct agencies to prepare a NEPA analysis or document before establishing Agency procedures that supplement the CEQ regulations for implementing NEPA. Agencies are required to adopt NEPA procedures that establish specific criteria for, and identification of, three classes of actions: those that normally require preparation of an environmental impact statement; those that normally require preparation of an environmental assessment; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). Categorical exclusions are one part of those agency procedures, and therefore establishing categorical exclusions does not require preparation of a NEPA analysis or document.
This document establishes the Gulf Coast Ecosystem Restoration Council's (Council) policy and procedures (Procedures) to ensure compliance with the requirements set forth in the Council on Environmental Quality (CEQ) regulations 40 CFR parts 1500 through 1508 implementing the provisions of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347. These Procedures also address compliance with other related statutes and directives. More specifically, these Procedures implement the CEQ NEPA regulations requirement that agencies adopt supplemental NEPA procedures.
NEPA and its implementing regulations establish a broad national policy to protect and enhance the quality of the human environment, and develop programs and measures to meet national environmental goals. Section 101 of NEPA sets forth Federal policies and goals to encourage productive harmony between people and their environment. Section 102(2) provides specific direction to Federal agencies, described as “action-forcing” in the CEQ regulations, to further the goals of NEPA. These major provisions include requirements to use a systematic, interdisciplinary approach to planning and decision-making (section 102(2)(A)) and develop methods and procedures to ensure appropriate consideration of environmental values (section 102(2)(B)). Section 102(2)(C) requires preparation of a detailed statement for major Federal actions significantly affecting the quality of the human environment that analyzes the impact of and alternatives to the action.
(a) Comply with NEPA and other environmental laws, regulations, policies, and Executive Orders applicable to Council actions;
(b) Seek and develop partnerships and cooperative arrangements with other Federal, tribal, state, and local governments early in the NEPA process to help ensure efficient regulatory review of Council actions;
(c) Ensure that applicable NEPA compliance and its documentation includes public involvement appropriate to the action being proposed and its potential impacts;
(d) Interpret and administer Federal laws, regulations, Executive Orders, and policies in accordance with the policies set forth pursuant to NEPA, to the fullest extent possible;
(e) Consider the potential environmental impacts of Council actions as early in the planning process as possible; and
(f) Consult, coordinate with, and consider policies, procedures, and activities of other Federal agencies, as well as tribal, state, and local governments.
Depending on the nature of the proposed action and its potential impacts on the human environment, Council actions may be categorically excluded (CE) from additional NEPA review by the Council, or require the preparation of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). An EA results in a Finding of No Significant Impact (FONSI) or a decision to prepare an EIS.
The definitions contained within CEQ's regulation at 40 CFR part 1508 apply to these Procedures. Additional and expanded definitions and acronyms are as follows:
(a) “Council” means the Gulf Coast Ecosystem Restoration Council.
(b) “Council Action” is an action taken by the Council potentially subject to NEPA. Council Actions may be wholly or partially funded by the Council. Council Actions include but are not limited to awarding grants, contracts, purchases, leases, construction, research activities, rulemakings, and amendment or revision of a Comprehensive Plan.
(c) “CE” means Categorical Exclusion.
(d) “CEQ” means the Council on Environmental Quality.
(e) “EA” means an Environmental Assessment.
(f) “EIS” means an Environmental Impact Statement.
(g) “EPA” means the U.S. Environmental Protection Agency.
(h) “Executive Director” means the Executive Director of the Gulf Coast Ecosystem Restoration Council.
(i) “FONSI” means a Finding of No Significant Impact.
(j) “NEPA Documents” are any of the following:
(1) Documentation associated with use of a CE;
(2) Environmental Assessment;
(3) Finding of No Significant Impact;
(4) Notice of Intent (NOI) to Prepare an EIS;
(5) Draft, Final, or Supplemental Environmental Impact Statement;
(6) Record of Decision; and
(7) NOI to Adopt an EA or EIS.
(k) “Project Sponsor” or “Applicant” is the entity that seeks Council Action to fund a project or program.
(l) “Record of Decision” or “ROD”, in cases requiring an EIS, is the decision and public document based on the EIS (
(m) “Responsible Official” is the person delegated authority by the Council to make recommendations to the Council (or the Council's designated decision-maker) regarding compliance with NEPA and in some cases to implement decisions pertaining to NEPA (as described in these Procedures or in the Council's Standard Operating Procedures).
(a)
(b)
(c)
(1) The proposed action fits within a class of actions that is listed below;
(2) There are no extraordinary circumstances indicating the action may have a significant effect (
(3) The proposal has not been segmented to meet the definition of a CE.
(d) The following categories of Council Actions are categorically excluded from further NEPA review in an EA or EIS:
(1)
i. Administrative procurements (
ii. Routine fiscal and administrative activities involving personnel (
iii. Routine procurement of goods and services to support operations and infrastructure, including routine utility services and contracts, conducted in accordance with applicable procurement regulations, Executive Orders, and policies.
iv. Routine administrative office functions (
v. Routine activities and operations conducted in an existing structure that are within the scope and compatibility of the present functional use of the building, will not result in a substantial increase in waste discharge to the environment, will not result in substantially different waste discharges from current or previous activities, and will not result in emissions that exceed established permit limits, if any.
vi. Council meetings, hearings, site visits, technical assistance, public affairs activities, and/or training in classrooms, meeting rooms, other facilities, or via the Internet.
(2)
i. Promulgation or publication of regulations, procedures, manuals, and guidance documents that are of an administrative, financial, legal, technical, or procedural nature.
ii. Internal orders and procedures that need not be published in the
iii. Preparation of studies, reports, or investigations that do not propose a policy, plan, program, or action.
(3)
i. Funding or procurements for activities which do not involve or lead directly to ground-disturbing activities which may have significant effects individually or cumulatively, and do not commit the Council or its applicants to a particular course of action affecting the environment, such as grants to prepare environmental documents, planning, technical assistance, engineering and design activities, or certain research. Use of this CE will be documented following the procedures described in subsection 4(f).
(4)
i. Any environmental restoration, conservation, or protection activity that falls within a CE established by a Federal agency Council member, provided no extraordinary circumstances preclude the use of the CE and the Federal agency that established the CE is involved in the Council action. A Federal agency Council member is involved in the Council action when that Federal agency advises the Council that use of
(e)
(1) A reasonable likelihood of substantial controversy regarding the potential environmental impacts of the proposed action.
(2) Tribal concerns with actions that impact tribal lands or resources.
(3) A reasonable likelihood of adversely affecting environmentally sensitive resources. Environmentally sensitive resources include but are not limited to:
i. Species that are federally listed or proposed for listing as threatened or endangered, or their proposed or designated critical habitats; and
ii. Properties listed or eligible for listing on the National Register of Historic Places.
(4) A reasonable likelihood of impacts that are highly uncertain or involve unknown risks or if there is a substantial scientific controversy over the effects.
(5) A reasonable likelihood of air pollution at levels of concern or otherwise requiring a formal conformity determination under the Clean Air Act.
(6) A reasonable likelihood of a disproportionately high and adverse effect on low income or minority populations (
(7) A reasonable likelihood of contributing to the introduction or spread of noxious weeds or non-native invasive species or actions that may promote the introduction, or spread of such species (
(8) A reasonable likelihood of a release of petroleum, oils, or lubricants (except from a properly functioning engine or vehicle) or reportable releases of hazardous or toxic substances as specified in 40 CFR part 302 (Designation, Reportable Quantities, and Notification); or where the proposed action results in the requirement to develop or amend a Spill Prevention, Control, or Countermeasures Plan in accordance with the Oil Pollution Prevention regulation.
The mere existence of any of the circumstances described above will not necessarily trigger preparation of an EA or EIS. The determination that an extraordinary circumstance exists and an EA or EIS is needed will be based on the potential significance of the proposed action's effects on the environment. If it is not clear whether a CE is appropriate, the Responsible Official, after consulting with the Council, may require preparation of an EA.
(f)
(1) A description of the proposed action.
(2) The CE relied upon, including the information or process used to determine that no extraordinary circumstances are present.
(3) A determination by the Responsible Official that the CE applies.
The Council will post documented CEs on its Web site. The Council, however, generally will not publicly post documentation supporting a CE for activities occurring on:
(1) Private lands; or
(2) Other lands under consideration by the Council for a project if the release of such information could lead to impacts to sensitive lands.
(g)
(1) In cases where the Responsible Official, in consultation with the Council, determines that an EIS is appropriate, the Council will consult with CEQ about alternative arrangements for complying with NEPA in accordance with 40 CFR 1506.11.
(2) In cases where the Responsible Official determines that an environmental assessment is appropriate, the Responsible Official shall consult with the Council to establish alternative arrangements for the environmental assessment. Any such alternative arrangement for an EA must be documented and a copy provided to CEQ.
(h)
(a)
(b)
(c)
Interagency coordination and collaboration can help ensure efficient and effective NEPA processes. To that end, the Council will serve as a Joint Lead, Lead Agency, or Cooperating Agency as appropriate for the
(a)
(b)
(1) The Council will follow CEQ's regulation regarding designation of a Lead Agency when multiple Federal agencies are involved (40 CFR 1501.5). The Lead Agency should consult with the other participating agencies to ensure that the joint action makes the best use of the participating agencies' areas of jurisdiction and special expertise, that the views of participating agencies are considered in the course of the NEPA process, and that the compliance requirements of all participating agencies are met.
(2) When another Federal agency is the Lead Agency, the Council may act as either a Co-Lead Agency or a Cooperating Agency (as detailed in subsection (c) below), as appropriate.
(c)
(a)
(b)
(c)
(d)
The Responsible Official will independently evaluate and prepare a recommendation to the Council regarding whether an applicant's environmental documentation satisfies the requirements of the CEQ regulations and these Procedures. In conducting this review, the Responsible Official will seek the advice of the Council Members and/or subject matter experts, as appropriate. Upon approval by the Council, the documentation will be considered to have been prepared by the Council for purposes of sections 9 through 15 of these Procedures.
(a)
(b)
(c)
(a)
(b)
(1) Develop a list of interested parties, including Federal, regional, state, and local authorities, tribes, environmental groups, individuals, businesses, and community organizations, as applicable.
(2) Publish an NOI in the
(3) Hold public scoping meetings as appropriate to the action.
(4) Circulate the draft EIS for comment to interested parties.
(5) Publicize the availability of the draft EIS by press release, advertisement in local newspapers of general circulation, or other suitable means such as posting the draft EIS on the Council's Web site. As appropriate, the Council will also circulate the draft EIS and supporting documents to public depositories, such as libraries. The EPA will publish a notice of availability in the
(6) If necessary or desirable, using the criteria in 40 CFR 1506.6(c), hold a public meeting or public hearing on the draft EIS. If a public hearing is held, the draft EIS should be made available at least 15 days prior to the hearing.
(7) Consider and respond to all substantive comments in the final EIS and provide copies of the final EIS to all who request a copy, and to Federal agencies and other parties who commented substantively on the draft EIS.
(c)
(a)
(b)
The level of detail and depth of impact analysis should be limited to documenting the potential impacts of the proposed action and whether the proposed action would result in any significant adverse environmental impacts. The EA should contain objective analyses to support its environmental impact conclusions.
(c)
(1) When available, the Responsible Official, or applicant if applicable, should use existing NEPA analyses for assessing the impacts of a proposed action and reasonable alternatives. Procedures for adoption or incorporation by reference of such analyses must be followed where applicable.
(2) If existing NEPA analyses include data and assumptions appropriate for the analysis at hand, the Responsible Official, or applicant if applicable, should use these existing NEPA analyses and/or their underlying data and assumptions where feasible.
(3) An existing environmental analysis prepared pursuant to NEPA and the CEQ regulations may be used in its entirety if the Responsible Official determines, with appropriate supporting documentation, that it adequately assesses the environmental effects of the proposed action and reasonable alternatives. The supporting record must include an evaluation of whether new circumstances, new information or changes in the action or its impacts not previously analyzed may result in significantly different environmental effects.
(4) The Responsible Official, or applicant if applicable, should make the best use of existing NEPA documents by supplementing, tiering to, incorporating by reference, or adopting previous environmental analyses to avoid redundancy and unnecessary paperwork.
(d)
(1) Normally a draft FONSI need not be coordinated in advance outside the Council prior to its issuance. Copies of approved FONSIs will be available to the public, government agencies, or Congress upon request at any time.
(2) The Council will post final EAs and approved FONSIs on its Web site.
(3) To the extent appropriate and practicable, the Council may provide the public with an opportunity to review and comment on draft EAs. When the proposed action is, or is closely similar to, one which normally requires an EIS as identified in Section 12 of these Procedures, or when the nature of the proposed action is one without precedent, the Council will make a draft EA available to the public for review for a period of not less than 30 days before the final determination is made by the Council. The Council will consider any and all comments received prior to making a final decision regarding the associated FONSI.
(e)
(1) The likelihood of the potential effects;
(2) The magnitude of the potential effects; and
(3) Whether any adverse effects on the environment may be significant, even if on balance the proposed project may be beneficial.
(f)
(1) If the Council decides that the proposed action will not have a significant impact on the human environment, the Responsible Official will prepare a draft FONSI in accordance with Section 11 of these Procedures.
(2) If the Council decides that the proposed action has a potentially significant impact, the Responsible Official will prepare an NOI to prepare an EIS, and begin the scoping process (40 CFR 1501.7).
(3) If the proposed action will occur in a wetland or in a 100-year floodplain, the Council will ensure an opportunity for public comment on a draft of the EA. If such a situation is present, the EA also will follow Section 13(h)(6) or (8) of these Procedures, as applicable.
(a)
(b)
(c)
(1) When required, the Responsible Official will prepare a draft FONSI, which will include the EA, or a summary of it, and note any other related environmental documents.
(2) After complying with subsection (c)(1) of this Section, the Responsible Official will present the finding to the Council, which will approve the FONSI or decide an EIS will be prepared. The Council will authorize the Executive Director to sign FONSIs on behalf of the Council.
(d)
(e)
(f)
(1) Identification of the document as a FONSI;
(2) Identification of the Council;
(3) The title of the action;
(4) The preparer(s) of the document (
(5) The month and year of preparation of the document;
(6) The name, title, address, and phone number of the person in the Council who should be contacted to supply further information about the document;
(7) A brief description of the proposed action;
(8) A brief description of, or reference to the page/section in the EA that discusses, the alternatives considered;
(9) A brief discussion of, or reference to the page/section in the EA that discusses, the environmental effects of the proposed action;
(10) Documentation of compliance with Sections 13(h)(6) and (8) of these Procedures, if the proposed action will occur in a wetland or in a 100-year floodplain;
(11) Reference to the page/section in the EA that provides the list of all Federal permits, licenses, and any other approvals or consultations which must be obtained in order to proceed with the proposal;
(12) A discussion of mitigation measures and environmental commitments that will be implemented, if applicable;
(13) A conclusion that the preferred alternative, and where appropriate any other reasonable alternative(s), has no potentially significant impact; and
(14) The Executive Director's signature indicating the approval of the Council as detailed in subsection (c) of this Section.
(a)
(b)
(c)
(1) The Council, or applicant if applicable, should begin the process for preparation of an EIS as soon as it determines, or the EA performed in accordance with Section 10 of these Procedures discloses, that the proposed action has potentially significantly environmental impacts.
(2) If the Council is the Lead Agency or Joint Lead, the Responsible Official will issue an NOI and undertake the scoping process identified in 40 CFR 1501.7 as soon as the Council decides to prepare an EIS.
(3) In preparing a draft EIS, the Responsible Official, or applicant if applicable, will consider any scoping comments, develop the relevant analysis, and engage in applicable coordination in accordance with CEQ's regulations and Section 13 of these Procedures.
(4) The Responsible Official will submit the proposed draft EIS to the Council.
(5) A draft EIS may be formally released outside the Council only after approval by the Council.
(6) The Responsible Official will direct electronic distribution of the draft EIS as follows: EPA; all interested Council regional and state offices; all Federal agencies that have jurisdiction by law or special expertise with respect to the environmental impacts of the proposed action; tribal, state, and local government authorities; to the extent practicable and appropriate, public libraries in the area to be affected by the proposed action; and all other interested parties identified during the preparation of the draft EIS that have requested a copy. Hard copies will be made available upon request. Public notice will be designed to reach potentially
(7) The draft EIS will be made available for public and agency comment for at least 45 days from the date when EPA publishes its Notice of Availability (NOA) in the
(8) Where a public hearing is to be held on the draft EIS, as determined in accordance with Section 9(b)(6) of these Procedures, the draft EIS will be made available to the public at least 15 days prior to the hearing (
(9) The Responsible Official will consider substantive comments received on the draft EIS. If a final EIS is not submitted to the Council for approval within three years from the date of the draft EIS circulation, the Responsible Official or applicant, as appropriate, will prepare a written reevaluation of the draft to determine whether the draft EIS warrants supplementation due to changed circumstances or new information. If so, a supplement to the draft EIS or a new draft EIS will be prepared and circulated as required by subsections (1) through (9) of this subsection. If the draft EIS does not warrant supplementation, the Responsible Official will prepare the final EIS.
(10) The Responsible Official will submit the final EIS and draft ROD to the Council for a decision (
(11) The ROD will become final upon signature of the Executive Director. The Council will delegate authority for signature of RODs to the Executive Director, provided such RODs are first approved by the Council.
(12) The Responsible Official will direct electronic distribution of the final EIS and ROD as follows: EPA; all interested Council regional and state offices; state, tribal, and local authorities; to the extent practicable, public libraries in the area affected by the proposed action; Federal agencies and other parties who commented substantively on the draft EIS; and all agencies, organizations, or individuals that have requested a copy. Hard copies will be provided upon request. The final EIS and ROD will be posted on the Council's Web site and notice will go out to interested parties who have asked to receive notice.
(13) If major steps toward implementation of the proposed action have not commenced, or a major decision point for actions implemented in stages has not occurred, within three years from the date of publication of the final EIS, the Responsible Official will prepare a written evaluation of whether the final EIS warrants supplementation. The Responsible Official will submit this evaluation to the Council.
(d)
(e)
(f)
Previous NEPA analyses should be used, where available, to ensure efficient preparation of an EIS. As appropriate, previous NEPA analyses can be tiered to, incorporated by reference, or may be adopted into the document consistent with CEQ's regulations and the process detailed above in subsection 10(c).
To the fullest extent possible, the Responsible Official, Lead Agency, or applicant, will concurrently draft the EIS while seeking compliance with other applicable environmental requirements.
In addition to the requirements of 40 CFR 1502.10 through 1502.18, and subject to the general provisions of Section 12 of these Procedures, an EIS should contain the following:
(a) Identification of the Council.
(b) The Responsible Official who prepared or oversaw preparation of the document.
(c) The month and year the document was prepared.
(d) In a draft EIS, the name, title, and address of the person in the Council to whom comments on the document should be addressed, and the date by which comments must be received to be considered. Typically this will be the Responsible Official.
(e) A list of those persons, organizations, or agencies assisting the Council in the preparation of the document.
(f) In a final EIS, a list of all agencies, organizations, or persons from whom comments were received on the draft EIS.
(g) A short, introductory description of the environment likely to be affected by the proposed action, including a list of all states, counties, and local areas likely to be affected.
(h) Consistent with the description provided in 40 CFR 1502.16, an analysis of the environmental consequences of the proposed action. The following areas should be considered in the environmental analysis, although their discussion—and the extent of that
(1) Air quality. There should be an assessment of the consistency of the proposal and alternatives with Federal and state plans for the attainment and maintenance of air quality standards.
(2) Water quality. There should be an assessment of the consistency of the alternatives with Federal and state standards concerning drinking water, storm sewer drainage, sedimentation control, and non-point source discharges such as runoff from construction operations. The need for any permits under sections 402 and 404 of the Clean Water Act (33 U.S.C. 1342 and 1344) and Section 10 of the Rivers and Harbors Act should also be assessed.
(3) Noise. The alternatives should be assessed with respect to applicable Federal, state, and local noise standards.
(4) Solid waste disposal. The alternatives should be assessed with respect to state and local standards for sanitary landfill and solid waste disposal.
(5) Natural ecological systems. The EIS should assess both short-term (
(6) Wetlands. In accordance with Executive Order 11990, the EIS should determine whether any of the alternatives will be located in a wetland area. If the proposed action is located in a wetland area, the final EIS should document a determination by the Responsible Official that there is no practicable alternative to such location, and that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use.
(7) Protected species. If applicable, the EIS will discuss the impacts of the alternatives on species that are listed or proposed for listing as threatened or endangered under the Endangered Species Act, or the proposed or designated critical habitats for such species; protected species under the Marine Mammal Protection Act; and birds protected under the Migratory Bird Treaty Act. In such cases, the EIS should discuss any consultation or coordination, as appropriate, with the appropriate Federal agency.
(8) Flood hazard evaluation and floodplain management. Under E.O. 11988, as amended by E.O. 13690, Federal agencies proposing activities in a 100-year floodplain are directed to consider alternatives to avoid adverse effects and incompatible development in the floodplain. If no practicable alternatives exist to siting an action in the floodplain, the EIS should discuss how the action will be designed to minimize potential harm to or within the floodplain.
(9) Coastal zone management. If applicable, the EIS should discuss to what extent the alternatives are consistent with approved coastal zone management programs in affected states, as required by section 307(c)(2) of the Coastal Zone Management Act, 16 U.S.C. 1456(c)(2).
(10) Essential Fish Habitat (EFH). If applicable, the EIS will identify any EFH that could be impacted by the alternatives. Actions that could have the potential to affect EFH require consultation with the National Oceanic and Atmospheric Administration under the Magnuson-Stevens Act to evaluate potential impacts to designated EFH and minimize these impacts. The final EIS should document these consultations.
(11) Use of natural resources other than energy, such as water, minerals, or timber.
(12) Aesthetic environment and scenic resources. The EIS should identify any significant aesthetic changes likely to occur in the natural landscape and in the developed environment.
(13) Land use. The EIS should assess the impacts of each alternative on local land use controls and comprehensive regional planning, as well as on development within the affected environment, including, where applicable, other proposed federal actions in the area.
(14) Socioeconomic environment. The EIS should assess the number and kinds of available jobs likely to be affected by the alternatives. For each alternative considered, the EIS should also discuss the potential for community disruption or cohesion, the possibility of demographic shifts, and impacts on local government services and revenues.
(15) Public health and public safety. The EIS should assess potential environmental impacts relevant to public health and safety. For example, the EIS should assess the transportation or use of any hazardous materials that may be involved in the alternatives, and the level of protection afforded residents of the affected environment from construction period and long-term operations associated with the alternatives.
(16) Recreation areas and opportunities. The EIS should assess the impacts of the alternatives on recreational activities, including impacts on non-site-specific activities, such as hiking and bicycling, and impacts on non-activity-specific sites such as those designated “open space.”
(17) Environmental Justice. The EIS should address environmental justice considerations as required by Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.”
(18) Sites of historical, archeological, architectural, or cultural significance. In accordance with Section 106 of the National Historic Preservation Act, 16 U.S.C. 470(f), and its implementing regulations, 36 CFR part 800, the EIS should identify all properties included in or eligible for inclusion in the National Register of Historic Places that may be affected by the preferred alternative and other reasonable alternatives. The EIS also should include documentation of the status of consultation with the appropriate State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO). The EIS should discuss the criteria of adverse effect on historic properties (36 CFR 800.5) with regard to each alternative. The final EIS should include documentation of the status of consultation with the appropriate SHPO(s) or THPO(s). In the event that the Responsible Official, in consultation with the SHPO or THPO, finds that a proposed action will have an adverse effect on such a site, the final EIS also should include documentation of the status of subsequent consultation with the Advisory Council on Historic Preservation.
(19) Climate Change. The EIS should estimate the greenhouse gas emissions associated with the alternatives, as appropriate, and consider mitigation measures. The EIS should also consider the effects that climate change may have on the proposed alternatives, and consider adaptation alternatives, where appropriate.
(20) Hazardous, radioactive, and toxic waste. The EIS should assess the consistency of the alternatives with Federal and state requirements concerning hazardous, radioactive, and toxic waste management in the program or project area.
(i) A description of the impacts of the alternatives and a detailed description of mitigation measures available or planned to avoid, minimize, rectify, reduce over time, or compensate each adverse impact, if not included in the alternatives. Impacts and mitigation measures should be identified in a table as long-term and/or short-term as applicable. This part of the EIS should also include a summary of any irreversible or irretrievable
(j) A brief discussion of the relationship between local short-term uses of the environment affected by the alternatives, and the maintenance and enhancement of long-term productivity.
(k) A compilation of all applicable Federal, state, and tribal permits, licenses, and approvals which are required before the proposed action may commence. The final EIS should document compliance with the requirements of all applicable Federal environmental laws, regulations, Executive Orders, and policies. If compliance is not possible by the time of final EIS issuance, the final EIS should discuss the status of compliance and should specify that all applicable environmental compliance requirements must be addressed prior to project implementation.
(l) The final EIS should provide a synopsis or compilation of substantive comments received on the draft EIS, whether made in writing or orally at a public hearing, and responses to comments. The response to those comments should be consistent with the procedures set forth in CEQ's regulations (40 CFR 1503.4). Comments may be collected and summarized, except for comments by other Federal agencies which should be provided in total and where otherwise required by Federal law or regulation. Before the EIS is put into final form, every effort should be made to resolve significant issues with the Federal or state agencies administering Federal laws. The final EIS will describe such issues, consultations and efforts to resolve such issues, and provide an explanation of why any remaining issues have not been resolved.
(a) A programmatic NEPA analysis is used to assess the environmental impacts of a proposed action that is broad in reach; analysis of subsequent actions that fall within the program may be tiered to such analyses, as described in the CEQ regulations (40 CFR 1502.20 and 1508.28). A programmatic analysis may be used for proposed policies, plans, and programs that address a given geographic area, common environmental impacts to a class of actions, or activities that are not location-specific.
(b) Programmatic NEPA analyses may take the form of a programmatic environmental assessment or environmental impact statement.
(c) Programmatic NEPA analyses may be used when there are limitations on available information or uncertainty regarding the timing, location, and environmental impacts of subsequent implementing actions.
(d) A programmatic NEPA analysis may also provide the basis for decisions regarding proposed projects prior to the Council's consideration of the impacts for specific projects (
(e) The document should identify program-level alternatives and assess the broad program-wide environmental impacts. To the extent information is available, it should also identify the reasonable alternatives to and potential impacts of project-specific Council Actions within the program, and the impacts on resources.
(f) Where a programmatic environmental document has been prepared, the Responsible Official may examine each project-level action encompassed by the programmatic document to determine whether the project-level action has been sufficiently analyzed in the programmatic document to determine whether and what additional analysis is appropriate.
(g) For any project-level action, the Council, or project applicant, will prepare additional environmental documentation as required by these Procedures, unless the documentation prepared for the programmatic action satisfies the requirements of these Procedures. Project-level documentation should reference and summarize the programmatic document and limit the discussion to the unique alternatives to, impacts of, and mitigation for the project.
(h) An environmental assessment prepared in support of an individual proposed action can be tiered to a programmatic or other broader-scope environmental impact statement. An environmental assessment may be prepared, and a finding of no significant impact reached, for a proposed action with significant effects, whether direct, indirect, or cumulative, if the environmental assessment is tiered to a broader environmental impact statement which fully analyzed those significant effects. Tiering to the programmatic or broader-scope environmental impact statement would allow the preparation of an environmental assessment and a finding of no significant impact for the individual proposed action, so long as any previously unanalyzed effects are not significant. A finding of no significant impact other than those already disclosed and analyzed in the environmental impact statement to which the environmental assessment is tiered may also be called a “finding of no new significant impact.”
(a)
(b)
(c)
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Funding Opportunity Announcement (FOA), RFA-CE-15-003, Evaluating Structural, Economic, Environmental, or Policy Primary Prevention Strategies for Intimate Partner Violence and Sexual Violence.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Special Interest Project (SIP) 15-006, Building Local Community Health Leadership for Action on Preventing Chronic Disease.
Time and Date: 10:00 a.m.-6:00 p.m., EDT, May 28, 2015 (Closed).
Place: Teleconference.
Status: The meeting will be closed to the public in accordance with provisions set forth in Section 552b(c)(4) and (6), Title 5 U.S.C., and the Determination of the Director, Management Analysis and Services Office, CDC, pursuant to Public Law 92-463.
Matters for Discussion: The meeting will include the initial review, discussion, and evaluation of applications received in response to “Building Local Community Health Leadership for Action on Preventing Chronic Disease”, SIP 15-006.
Contact Person for More Information: Brenda Colley Gilbert, Ph.D., M.S.P.H., Director, Extramural Research Program Operations and Services, CDC, 4770 Buford Highway NE., Mailstop F-80, Atlanta, Georgia 30341, Telephone: (770) 488-6295,
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Funding Opportunity Announcement (FOA), RFA-CE-15-004, Evaluating Innovative and Promising Strategies to prevent Suicide among Middle-Aged Men.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:
Please note that the public comment period ends at the time indicated above or following the last call for comments, whichever is earlier. Members of the public who want to comment must sign up by providing their name by mail, email, or telephone, at the addresses provided below by May 29, 2015. Each commenter will be provided up to five minutes for comment. A limited number of time slots are available and will be assigned on a first come, first served basis. Written comments will also be accepted from those unable to attend the public session.
The agenda is subject to change as priorities dictate.
To view the notice, visit
In the event an individual cannot attend, written comments may be submitted. The comments should be limited to two pages and submitted through
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Administration for Community Living, Department of Health and Human Services.
Final priority.
The Administrator of the Administration for Community Living announces priorities for the Disability and Rehabilitation Research Projects (DRRPS) Program administered by the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR). Specifically, we announce two priorities for DRRPs on (1) Center on Knowledge Translation for Employment Research (84.133A-5) and (2) Projects for Translating Disability and Rehabilitation Research into Practice (84.133A-6). The Administrator of the Administration for Community Living may use these priorities for competitions in fiscal year (FY) 2015 and later years. We take this action to focus research attention on an area of national need. We intend for these priorities to contribute to improved outcomes for people with disabilities through improved uptake of research-based knowledge.
Marlene Spencer, U.S. Department of Health and Human Services, 400 Maryland Avenue SW., Room 5133, Potomac Center Plaza (PCP), Washington, DC 20202-2700. Telephone: (202) 245-7532 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
The purpose of NIDILRR's DRRPs, which are funded through the Disability and Rehabilitation Research Projects and Centers Program, is to improve the effectiveness of services authorized under the Rehabilitation Act by developing methods, procedures, and rehabilitation technologies that advance a wide range of independent living and employment outcomes for individuals with disabilities, especially individuals with the most significant disabilities. DRRPs carry out one or more of the following types of activities, as specified and defined in 34 CFR 350.13 through 350.19: Research, training, demonstration, development, utilization, dissemination, and technical assistance.
An applicant for assistance under this program must demonstrate in its application how it will address, in whole or in part, the needs of individuals with disabilities from minority backgrounds (34 CFR 350.40(a)). The approaches an applicant may take to meet this requirement are found in 34 CFR 350.40(b). Additional information on the DRRP program can be found at:
29 U.S. C. 762(g) and 764(b)(2).
We published a notice of proposed priorities (NPP) for this program in the
There are no differences between the proposed priorities and these final priorities.
Generally, we do not address technical and other minor changes. In addition, we do not address general comments that raised concerns not directly related to the proposed priorities.
We received no comments on this priority.
The Administrator of the Administration for Community Living proposes a priority for a Disability and Rehabilitation Research Project to serve as the Center on Knowledge Translation for Employment Research (Center). The purpose of the proposed Center on KT for Employment Research is to promote the use of employment research findings to improve practices and policies that support improved employment outcomes of individuals with disabilities. The center will achieve this purpose by (1) working with employment-focused NIDILRR grantees to identify research findings that can be used to improve employment outcomes for individuals with disabilities, (2) identifying areas in which stakeholders' needs for research-based knowledge are most pressing, and (3) investigating and promoting effective strategies to increase the appropriate use of the best available research-based knowledge in the field.
Under this priority, the Center must be designed to contribute to the following outcomes:
(a) Increased understanding of processes and practices that will lead to successful knowledge translation in the field of employment for individuals with disabilities;
(b) Increased adoption and use of relevant research findings funded by NIDILRR and other entities, to improve employment of individuals with disabilities; and
(c) Increased capacity of NIDILRR's employment-focused grantees to plan and engage in knowledge translation activities.
The Center must contribute to these outcomes by conducting rigorous research, development, technical assistance, dissemination, and utilization activities to increase successful knowledge translation of employment research to improve employment of individuals with disabilities. In planning and conducting all activities, the Center must partner with relevant stakeholders such as employment-focused researchers, individual with disabilities, consumer organizations, employers, State and Federal agencies, and others as appropriate.
The Administrator of the Administration for Community Living proposes a priority for Disability and Rehabilitation Research Projects (DRRP). These DRRP grants will serve as Projects for Translating Disability and Rehabilitation Research into Practice. The purpose of these projects is to support the translation of research findings or products of past or present NIDILRR-funded grants into use or adoption by their stakeholders. Under this priority, grantees must successfully move NIDILRR-sponsored research-based findings or products into actual use or adoption in real-life contexts. Grantees under this priority must also document and disseminate the knowledge translation methods that they used to facilitate the adoption or use of findings or products by stakeholders.
Each knowledge translation grant under this priority must be conducted in partnership with relevant stakeholders. These stakeholders must be actively engaged in the planning, implementation, and evaluation of all knowledge translation grant activities. Grantees under this priority must contribute to the following outcomes:
(1) Use or adoption of NIDILRR-sponsored findings or products by relevant stakeholders;
(2) Changes in policy, practice, or systems that are intended to improve the lives of individuals with disabilities as a result of the use or adoption of NIDILRR-sponsored findings or products; and
(3) Increased understanding of promising practices for knowledge translation in disability, independent living, and rehabilitation research.
Grantees under this priority must contribute to these outcomes by—
(a) Identifying research-based findings or products from a NIDILRR-funded grant or grants that are ready for use or adoption in real-world settings, as well as the context or setting in which they will be used or adopted;
(b) Identifying or developing, and then implementing a knowledge translation plan to facilitate the use or adoption of findings or products in (a) by key stakeholders; and
(c) Identifying measures to evaluate the success of the uses or adoptions achieved under (b).
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This notice does
You may also access documents of the Department published in the
Administration for Community Living, Department of Health and Human Services.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2015.
Catalog of Federal Domestic Assistance (CFDA) Numbers: 84.133A-5 and 84.133A-6.
This notice invites applications for separate competitions. For funding and other key information for each of these competitions, see the chart in the
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.
The purpose of DRRPs, which are under NIDILRR's Disability and Rehabilitation Research Projects and Centers Program, is to improve the effectiveness of services authorized under the Rehabilitation Act of 1973, as amended, by developing methods, procedures, and rehabilitation technologies that advance a wide range of independent living and employment outcomes for individuals with disabilities, especially individuals with the most severe disabilities. DRRPs carry out one or more of the following types of activities, as specified and defined in 34 CFR 350.13 through 350.19: research, training, demonstration, development, dissemination, utilization, and technical assistance. Additionally information on DRRPs can be found at:
These priorities are:
The full text of these priorities is included in the notice of final priorities and definitions published in the
The full text of this priority is included in the notice of final priorities for the Disability and Rehabilitation Research Projects and Centers Program, published in the
29 U.S.C. 764(a).
The Department is not bound by any estimates in this notice.
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If you request an application from Marlene Spencer, be sure to identify this competition as follows: CFDA number 84.133A-5 and 84.133A-6.
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Each LOI should be limited to a maximum of four pages and include the following information: (1) 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; (2) 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; (3) a list of proposed project staff including the Project Director or PI and key personnel; (4) 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 (5) 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 LOI via mail (through the U.S. Postal Service or commercial carrier) or email, by June 9, 2015. The LOI must be sent to: Marlene Spencer, U.S. Department of Health and Human Services, 550 12th Street SW., Room 5133, PCP, Washington, DC 20202; or by email to:
For further information regarding the LOI submission process, contact Marlene Spencer at (202) 245-7532.
• 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).
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) (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 May 26, 2015. Interested parties may participate in this meeting by conference call with NIDILRR staff from the Administration for Community Living 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 call or to arrange for an individual consultation, contact
Applications for grants under these competitions 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 delivery 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 can be created within one-to-two business days.
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:
7.
a.
Applications for grants under Knowledge Translation for Employment Research and Projects for Translating Disability and Rehabilitation Research into Practice, CFDA Number 84.133A-5 and 84.133A-6, 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 Knowledge Translation for Employment Research and Projects for Translating Disability and Rehabilitation Research into Practice DRRP competition at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors,
• 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 program 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-specified identifying number unique to your application).
• 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;
• 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: Marlene Spencer, U.S. Department of Health and Human Services, 400 Maryland Avenue SW., Room 5133, 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 84.133A-5; and 84.133A-6), 550 12th Street SW., Room 7041, Potomac Center Plaza, 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.
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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.
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If your application is not evaluated or not selected for funding, we notify you.
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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.
Marlene Spencer, U.S. Department of Health and Human Services, 400 Maryland Avenue SW., Room 5133, PCP, Washington, DC 20202-2700.
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
Health Resources and Services Administration, HHS.
Notice.
The Health Resources and Services Administration (HRSA) is requesting nominations to fill six vacancies on the Advisory Commission on Childhood Vaccines (ACCV). The ACCV was established by Title XXI of the Public Health Service Act (the Act), as enacted by Public Law (Pub. L.) 99-660 and as subsequently amended, and advises the Secretary of Health and Human Services (the Secretary) on issues related to implementation of the National Vaccine Injury Compensation Program (VICP).
The agency must receive nominations on or before June 4, 2015.
All nominations are to be submitted to the Director, Division of Injury Compensation Programs, Healthcare Systems Bureau (HSB), HRSA, Parklawn Building, Room 11C-26, 5600 Fishers Lane, Rockville, Maryland 20857.
Ms. Annie Herzog, Principal Staff Liaison, Division of Injury Compensation Programs, HSB, HRSA, at (301) 443-6634 or email:
Under the authorities that established the ACCV, the Federal Advisory Committee Act of October 6, 1972, (Pub. L. 92-463) and section 2119 of the Act, 42 U.S.C. 300aa-19, as added by Public Law 99-660 and amended, HRSA is requesting nominations for six voting members of the ACCV.
The ACCV advises the Secretary on the implementation of the VICP. The activities of the ACCV include: recommending changes in the Vaccine Injury Table at its own initiative or as the result of the filing of a petition; advising the Secretary in implementing section 2127 of the Act regarding the need for childhood vaccination products that result in fewer or no significant adverse reactions; surveying federal, state, and local programs and activities related to gathering information on injuries associated with the administration of childhood vaccines, including the adverse reaction reporting requirements of section 2125(b) of the Act; advising the Secretary on the methods of obtaining, compiling, publishing, and using credible data related to the frequency and severity of adverse reactions associated with childhood vaccines; consulting on the development or revision of the Vaccine Information Statements; and recommending to the Director of the National Vaccine Program research related to vaccine injuries which should be conducted to carry out the VICP.
The ACCV consists of nine voting members appointed by the Secretary as follows: (1) Three health professionals, who are not employees of the United States Government and who have expertise in the health care of children, and the epidemiology, etiology, and prevention of childhood diseases, and the adverse reactions associated with vaccines, of whom at least two shall be pediatricians; (2) three members from the general public, of whom at least two shall be legal representatives (parents or guardians) of children who have suffered a vaccine-related injury or death; and (3) three attorneys, of whom at least one shall be an attorney whose specialty includes representation of persons who have suffered a vaccine-related injury or death, and of whom one shall be an attorney whose specialty includes representation of vaccine manufacturers. In addition, the Director of the National Institutes of Health, the Assistant Secretary for Health, the Director of the Centers for Disease Control and Prevention, and the Commissioner of the Food and Drug Administration (or the designees of such officials) serve as nonvoting ex officio members.
Specifically, HRSA is requesting nominations for six voting members of the ACCV representing: (1) Two health professionals, who have expertise in the health care of children and the epidemiology, etiology, and prevention of childhood diseases, of whom at least one shall be a pediatrician; (2) two members of the general public, of whom at least one shall be a legal representative (parent or guardian) of a child who has suffered a vaccine-related injury or death; and (3) two attorneys, of whom at least one shall be an attorney whose specialty includes representation of persons who have suffered a vaccine-related injury or death, and of whom one shall be an attorney whose specialty includes representation of vaccine manufacturers. Nominees will be invited to serve a 3-year term beginning January 1, 2016, and ending December 31, 2018.
The Department of Health and Human Services (HHS) will consider nominations of all qualified individuals with a view to ensuring that the ACCV includes the areas of subject matter expertise noted above. Based on a recommendation made by the ACCV, the Secretary will consider having a health professional with expertise in obstetrics as the second member of the general public. Interested persons may nominate one or more qualified persons for membership on the ACCV. Nominations shall state that the nominee is willing to serve as a member of the ACCV.
ACCV members are appointed as Special Government Employees. As such, they are covered by the federal ethics rules, including the criminal conflict of interest statutes governing executive branch employees. For example, an ACCV member may be prohibited from discussions about making changes to the Vaccine Injury Table and Vaccine Information Statements for the Hepatitis B vaccine if he/she or his/her spouse owns stock valued above a certain amount in companies which manufacture this vaccine, affecting their own pecuniary
A nomination package should include the following information for each nominee: (1) A letter of nomination stating the name, affiliation, and contact information for the nominee, the basis for the nomination (
The Department of Health and Human Services (HHS) strives to ensure that the membership of the HHS Federal Advisory Committee is fairly balanced in terms of points of view presented and the committee's function. Every effort is made to ensure that the views of women, all ethnic and racial groups, and people with disabilities are represented on HHS Federal Advisory Committees and, therefore, the Department encourages nominations of qualified candidates from these groups. The Department also encourages geographic diversity in the composition of the Committee. Appointment to this Committee shall be made without discrimination on basis of age, race, ethnicity, gender, sexual orientation, disability, and cultural, religious, or socioeconomic status.
Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice; amendment.
A notice was published in the
The solicitation period has been extended. All nominations are due to be submitted on or before May 13, 2015.
All nominations should be sent to: Bruce Gellin, M.D., M.P.H., Deputy Assistant Secretary for Health; Office of the Assistant Secretary for Health; Department of Health and Human Services; 200 Independence Avenue SW., Room 715H; Washington, DC 20201. Nomination materials, including attachments, also may be submitted electronically to
Bruce Gellin, M.D., M.P.H., Deputy Assistant Secretary for Health; Office of the Assistant Secretary for Health; Department of Health and Human Services; Telephone: (202) 260-6638; Fax: (202) 690-4631; Email address:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Environmental Health Sciences Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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.
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 a meeting of the National Advisory Council on Alcohol Abuse and Alcoholism.
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/or 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 grant applications and/or contract proposals, 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.
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. Appendix 2), notice is hereby given of the meeting of the Council of Councils.
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 open session will be videocast and can be accessed from the NIH Videocasting and Podcasting Web site (
A portion of 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.
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 Council of Council's home page at
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 Board of Scientific Counselors, NICHD.
The meeting will be open to the public as indicated below, with the 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 as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the EUNICE KENNEDY SHRIVER NATIONAL INSTITUTE OF CHILD HEALTH AND HUMAN DEVELOPMENT, including consideration of personnel qualifications and performance, and the competence of individual investigators, 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:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Arthritis and Musculoskeletal and Skin Diseases Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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.
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH), has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
Direct Comments to OMB: Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated
Comment Due Date: Comments regarding this information collection are best assured of having their full effect if received within 30 days of the date of this publication.
To obtain a copy of the data collection plans and instruments, or request more information on the proposed project, contact: Sudha Sivaram, Program Director, Center for Global Health, National Cancer Institute, 9609 Medical Center Dr., RM 3W528, Rockville MD, 20850 or call non-toll-free number 240-276-5804 or Email your request, including your address to:
Proposed Collection: The Study of the Center for Global Health's (CGH) Workshops (NCI), 0925—NEW, National Cancer Institute (NCI), National Institutes of Health (NIH).
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 805.
Pursuant to Public Law 92-463, notice is hereby given that the Substance Abuse and Mental Health Services Administration's (SAMHSA) Center for Substance Abuse Prevention (CSAP) Drug Testing Advisory Board (DTAB) will meet via web conference on June 11-12, 2015, from 10:00 a.m. to 3:30 p.m. E.D.T. The DTAB will convene in both open and closed sessions on these two days.
The Board will meet in closed session on June 11, 2015, from 10:00 a.m. to 3:30 p.m., to discuss the proposed revisions to the Mandatory Guidelines for Federal Workplace Drug Testing Programs. Therefore, this meeting is closed to the public as determined by the Administrator, SAMHSA, in accordance with 5 U.S.C. 552b(c)(9)(B) and 5 U.S.C. App. 2, Section 10(d).
On June 12, 2015, from 10:00 a.m. to 3:30 p.m., the meeting will be open to the public. The meeting will include updates on the previously announced DTAB recommendations, the public comments to the request for information on hair, DTAB's process for evaluating the scientific supportability of alternate specimens for federal workplace drug testing programs, HHS approval of entities that certify medical review officers, and the federal custody and control form. The meeting also will include drug testing updates from the Department of Transportation, the Nuclear Regulatory Commission, the Department of Defense, and the Federal Drug-Free Workplace Programs.
The public is invited to attend via web conference. Due to the limited call-in capacity, registration is requested. Public comments are welcome. To obtain the web conference call-in numbers and access codes, submit written or brief oral comments, or request special accommodations for persons with disabilities, please register at the SAMHSA Advisory Committees Web site at
Meeting information and a roster of DTAB members may be obtained by accessing the SAMHSA Advisory Committees Web site,
The Office of Intergovernmental Affairs, DHS.
Notice of partially closed Federal Advisory Committee meeting.
The Homeland Security Advisory Council (HSAC) will meet in person on May 21, 2015. Members of the public may participate in person. The meeting will be partially closed to the public.
The HSAC will meet Thursday, May 21, 2015, from 11:00 a.m. to 5:15 p.m. EDT. The meeting will be open to the public from 1:45 p.m. to 4:00 p.m. EDT. Please note that the meeting may close early if the Council has completed its business. The portion from 11:00 a.m. to 1:30 p.m. EDT and 4:15 p.m. to 5:15 p.m. EDT will be closed to the public.
The meeting will be held at the Woodrow Wilson International Center for Scholars (“Wilson Center”), located at 1300 Pennsylvania Avenue NW., Washington, DC 20004. All visitors will be processed through the lobby of the Wilson Center. Written public comments prior to the meeting must be received by 5:00 p.m. EDT on May 15, 2015, and must be identified by Docket No. DHS-2015-0013. Written
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Mike Miron at
Notice of this meeting is given under Section 10(a) of the Federal Advisory Committee Act (FACA), Public Law 92-463 (5 U.S.C. App.) requires each FACA committee meeting to be open to the public.
The HSAC provides organizationally independent, strategic, timely, specific, and actionable advice and recommendations for the consideration of the Secretary of the Department of Homeland Security (DHS) on matters related to homeland security. The Council is comprised of leaders of local law enforcement, first responders, state and local government, the private sector, and academia.
The HSAC will meet in open session between 1:45 p.m. and 4:00 p.m. EDT. The HSAC will receive observations and remarks from DHS senior leadership, and swear in new HSAC members. Members will receive reports from the following HSAC subcommittees: the DHS Employee Task Force, the Foreign Fighter Task Force, the DHS Grant Review Task Force, and the Customs and Border Protection Integrity Advisory Panel.
The HSAC will meet in closed session between 11:00 a.m. and 1:30 p.m. as well as 4:15 p.m. and 5:15 p.m. EDT to receive sensitive operational information from senior DHS leadership. This information regards threats to our homeland, specifically operational updates on the Transportation Security Administration's (TSA) aviation security program, cyber security and the current threat environment.
The HSAC will receive closed session briefings from DHS officials on the Transportation Security Administration's (TSA) aviation security program, and operational updates on cyber security and the current threat environment. This will include lessons learned and enhanced security measures associated with operations and management. These briefings will concern matters sensitive to homeland security within the meaning of 5 U.S.C. 552b(c)(7)(E) and 552b(c)(9)(B). Public disclosure of this information would provide terrorists and other adversaries with guidelines to thwart the Department's strategic initiatives. Under 5 U.S.C. 552b(c)(9)(B), disclosure of these techniques and procedures could frustrate the successful implementation of protective measures designed to keep our country safe. In addition, Under 5 U.S.C. 552b(c)(7)(E), disclosure of that information could reveal investigative techniques and procedures not generally available to the public, allowing terrorists and those with interests against the United States to circumvent the law.
Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
For a state or local law to be certified as “substantially equivalent” and therefore be eligible to participate in the Fair Housing Assistance Program (FHAP), the Assistant Secretary for Fair Housing and Equal Opportunity must determine that the state or local law provides substantive rights, procedures, remedies, and the availability of judicial review that are substantially equivalent to those provided in the federal Fair Housing Act (the Act).
State and local fair housing enforcement agencies that are seeking certification in accordance with Section 810(f) of the Act submit a request to the Assistant Secretary for Fair Housing and Equal Opportunity. The request must be supported by the text of the jurisdiction's fair housing law, the law creating and empowering the agency, all laws referenced in the jurisdiction's fair housing law, any regulations and directives issued under the law, and any formal opinions of the State Attorney General or the chief legal officer of the jurisdiction that pertain to the jurisdiction's fair housing law.
Once agencies are deemed substantially equivalent and are participating in the FHAP, HUD collects sufficient information to monitor agency performance in accordance with 24 CFR 115.206, which sets forth the performance standards for agencies participating in the FHAP. These standards are meant to ensure that the state or local law, both “on its face” and “in operation,” provides substantive rights, procedures, remedies, and judicial review procedures for alleged discriminatory housing practices that are substantially equivalent to those provided in the Act. In addition, HUD collects sufficient information to monitor agency compliance with 24 CFR 115.307 and 24 CFR 115.308, which set forth requirements for FHAP participation and reporting and record keeping requirements including, but not limited to, the requirement that FHAP agencies use HUD's official complaint data information system, and input complaint processing information into that system in a timely manner.
The Department estimates that reporting
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), have received, from the City of Everett (Everett), an application for an enhancement of survival permit for the federally threatened northern spotted owl and marbled murrelet under the Endangered Species Act of 1973, as amended (ESA). The permit application includes a draft safe harbor agreement (SHA) and implementing agreement (IA) between Everett and the Service addressing habitat conservation and forest management, including timber harvest on lands within Everett's municipal watershed in Snohomish County, Washington. We invite comments from all interested parties on the application, including the draft SHA, draft IA, and a draft environmental action statement (EAS) prepared pursuant to the requirements of the National Environmental Policy Act (NEPA).
To ensure consideration, written comments must be received from interested parties by June 4, 2015.
To request further information or submit written comments, please use one of the following methods, and note that your information request or comments are in reference to the Everett Draft SHA.
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Mark Ostwald, U.S. Fish and Wildlife Service (see
Under a SHA, participating landowners voluntarily undertake management activities on their property to enhance, restore, or maintain habitat benefiting species listed under the ESA (16 U.S.C. 1531
The Service has received from Everett an application for an enhancement of survival permit under the ESA to authorize incidental take of the federally threatened northern spotted owl (
There is one known marbled murrelet-occupied site on the LCT. The LCT is within a marbled murrelet detection area as defined by WAC 222-16-101. No federally designated marbled murrelet critical habitat occurs on the LCT; however, approximately 80 percent of the LCT perimeter is adjacent to properties that are designated critical habitat for the marbled murrelet. There are no known northern spotted owl site centers on the LCT; however, recent surveys have not been conducted in all areas of suitable habitat. The LCT is situated between two northern spotted owl special emphasis areas designated by Washington Forest Practices Rules. The nearest federally designated northern spotted owl critical habitat is approximately 8 miles northeast of the LCT.
Everett is simultaneously applying to the Washington State Department of Natural Resources (WDNR) for a Cooperative Habitat Enhancement Agreement (CHEA) under the Washington State Forest Practice Rules (WAC 222-16-105). The SHA and CHEA are one document that serves the requirements of both the Service and the WDNR. The applicant worked closely with the Service, the Washington Department of Fish and Wildlife, and the WDNR to develop the SHA and CHEA.
The Service proposes to enter into the SHA and IA and to issue an enhancement of survival permit to Everett for incidental take of the northern spotted owl and the marbled murrelet caused by covered activities, if permit issuance criteria are met. Both the SHA and the permit would have a term of 50 years.
Due to the overlap of suitable habitat characteristics for marbled murrelets and northern spotted owls and the nature of the LCT forest stands, the SHA's baseline is unified for both covered species. The baseline totals about 447 acres and consists of 4 separate large blocks of the highest quality forest habitat for the covered species on the LCT. The baseline represents the areas on the LCT that are most likely to be occupied by the covered species currently and during the term of the SHA.
The conservation benefits for the marbled murrelet and the northern spotted owl under the SHA are expected to be realized through implementation of the following management actions: Reconfiguration of the special set asides (SSAs), enhancement of riparian buffers, an increase in special management areas (SMAs), longer harvest rotations, and enhanced protection of occupied sites. The SSAs are old-growth management areas and permanent mixed hardwood and conifer forests, which will not be harvested during the term of the agreement. Under the draft SHA, most of the original old-growth management areas and some of the permanent mixed forests on the LCT were reconfigured into the baseline blocks. Those not included in the baseline remain as SSAs, except for 56 acres that will be harvested to offset the addition of formerly harvestable areas to the baseline. The enhanced riparian buffers under this SHA will result in more trees within the buffer zones than would be required under the standard Washington State Forest Practice Rules, and there will be 32 more acres of SMAs, including green tree areas, unstable slopes, and forested wetlands. Regeneration harvest rotations will average 60 years, compared to the industry standard of 45 years. Additional management actions under the proposed SHA to benefit the northern spotted owl are enhanced snag and downed wood retention measures, plus planting and thinning to encourage understory plants that support northern spotted owl prey species.
Under the proposed SHA, Everett will not be required to survey for marbled murrelets or northern spotted owls; however, if Everett becomes aware of the presence of an occupied site, the draft SHA identifies specific measures to avoid disturbance of the site and to protect the habitat. Occupancy by the marbled murrelet and the northern spotted owl is most likely to occur within the baseline blocks, SSAs, and riparian buffers where suitable marbled murrelet and northern spotted owl habitat will continue to improve or develop over time because harvest is deferred during the term of the proposed permit in these areas. In these areas, deferring harvest would already protect the habitat associated with an occupied site; however, depending on the exact location of a site, it may need to be protected from noise and other human disturbance as described in the draft SHA. Each year, if marbled murrelet or northern spotted owl occupancy occurs outside of the deferred-harvest areas, then core areas for one occupied site for each covered species will be protected from harvest and disturbance for at least 5 years.
Incidental take of the covered species in the form of harassment from noise or visual disturbance may occur during the term of the permit from forest management activities. Incidental take in the form of direct mortality or harm from altering occupied sites is not likely because occupancy is most likely going to occur in the deferred-harvest areas. Direct mortality or harm of the covered species could occur in the unlikely event that areas not deferred from harvest become occupied prior to harvesting. All forms of incidental take of the covered species could occur from timber harvesting activities in the SSAs, SMAs, or riparian areas in association with a return to the identified agreed-upon baseline habitat conditions. However, if similar Washington State Forest Practices Rules are in effect at the time, some of these areas may continue to be retained under those rules.
The net conservation benefits for both covered species are expected to be realized through the reconfiguration and retention of four large blocks of habitat designated as the baseline condition for the proposed SHA. The reconfiguration should enhance future nesting potential for both marbled murrelets and dispersing northern spotted owls, especially as the habitat continues to improve in quality over the term of the SHA. An increase in the quantity and distribution of SMAs will benefit the covered species by providing additional buffers adjacent to suitable nesting habitat in deferred-harvest areas. If occupancy by covered species occurs outside of deferred-harvest areas, the minimum protection period for an occupied site is increased by 2.5 years for the marbled murrelet and 5 years for the northern spotted owl compared to standard Washington State Forest Practices Rules. All of these habitat improvements are expected to increase the number and distribution of marbled murrelets and northern spotted owls on the LCT compared to what would likely occur under standard forest practices.
The development of the draft SHA and the proposed issuance of an enhancement of survival permit is a Federal action that triggers the need for compliance with the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
You may submit your comments and materials by one of the methods listed in the
(1) Whether the implementation of the proposed SHA and IA would provide a net conservation benefit to the covered species;
(2) Other conservation measures that would lead to a net-conservation benefit for the covered species;
(3) The length of the proposed term of the enhancement of survival permit;
(4) The direct, indirect, and cumulative effects that implementation of the SHA and IA could have on the human environment;
(5) Other plans, projects, or information that might be relevant to evaluating the effects of this proposed action; and
(6) Information regarding the adequacy of the proposed SHA and IA pursuant to the requirement for permits at 50 CFR parts 13 and 17.
All comments and materials we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personally
We will evaluate the draft SHA, associated documents, and any public comments we receive to determine whether the permit application and the EAS meet the requirements of section 10(a) of the ESA and NEPA, respectively, and their respective implementing regulations. We will also evaluate whether issuance of an enhancement of survival permit would comply with section 7 of the ESA by conducting an intra-Service section 7 consultation on the proposed permit action. If we determine that all requirements are met, we will sign the proposed SHA and IA, and issue an enhancement of survival permit under section 10(a)(1)(A) of the ESA to the applicant, Everett, for incidental take of the northern spotted owl and the marbled murrelet caused by covered activities in accordance with the terms of the permit, SHA, and IA. We will not make our final decision until after the end of the 30-day public comment period, and we will fully consider all comments and information we receive during the public comment period.
We provide this notice pursuant to section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice of filing of plats of survey; Colorado.
The Bureau of Land Management (BLM) Colorado State Office is publishing this notice to inform the public of the intent to officially file the survey plats listed below and afford a proper period of time to protest this action prior to the plat filing. During this time, the plats will be available for review in the BLM Colorado State Office.
Unless there are protests of this action, the filing of the plats described in this notice will happen on June 4, 2015.
BLM Colorado State Office, Cadastral Survey, 2850 Youngfield Street, Lakewood, CO 80215-7093.
Randy Bloom, Chief Cadastral Surveyor for Colorado, (303) 239-3856.
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, seven days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The plat and field notes of the dependent resurvey and survey in Township 46 North, Range 12 East, New Mexico Principal Meridian, Colorado, were accepted on March 18, 2015.
The plat incorporating the field notes of the corrective dependent resurvey in Township 1 South, Range 78 West, Sixth Principal Meridian, Colorado, was accepted on March 20, 2015.
The plat and field notes of the metes-and-bounds survey in partially surveyed Township 41 North, Range 9 West, New Mexico Principal Meridian, Colorado, were accepted on April 9, 2015.
The plat, in 2 sheets, and field notes of the dependent resurvey and survey in Township 50 North, Range 14 West, New Mexico Principal Meridian, Colorado, were accepted on April 15, 2015.
Bureau of Land Management, Interior.
Notice of Filing of Plats of Survey; Colorado
The Bureau of Land Management (BLM) Colorado State Office is publishing this notice to inform the public of the official filing of the survey plats listed below. The plats will be available for viewing at
The plats described in this notice were filed on April 17, 2015.
BLM Colorado State Office, Cadastral Survey, 2850 Youngfield Street, Lakewood, CO 80215-7093.
Randy Bloom, Chief Cadastral Surveyor for Colorado, (303) 239-3856.
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, seven days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The supplemental plat of section 20 in Township 13 South, Range 90 West, Sixth Principal Meridian, Colorado, was accepted on April 16, 2015, and filed on April 17, 2015.
The supplemental plat of sections 25, 35, and 36 in Township 13 South, Range 90 West, Sixth Principal Meridian, Colorado, was accepted on April 16, 2015, and filed on April 17, 2015.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to rescind the exclusion orders issued in the following investigations:
Clint Gerdine, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-2310. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
U.S. Customs and Border Protection (“CBP”) notified the Commission that the six above-identified exclusion orders may be candidates for rescission based on changed conditions of fact or law. Each of the above-identified exclusion orders issued over twenty (20) years ago and each resulted from a Commission investigation alleging a violation of section 337 based on at least trademark or trade dress infringement. CBP's preliminary investigation indicated that the trademarks or trade dress at issue in the exclusion orders were no longer used in commerce or that complainant had stopped making required compliance filings.
On October 22, 2014, the Commission issued a notice requesting submissions from the public, including the owners of the intellectual property (
Based on the foregoing, the Commission has determined that the lack of a showing of continued use of the intellectual property at issue in the 287 and 295 investigations, and the lack of an interest in continuing the remedy in the 055 investigation constitute “changed conditions of fact or law, or the public interest” sufficient to justify rescission of the exclusion orders issued in those investigations pursuant to 19 CFR § 210.76(a)(1). The Commission has therefore rescinded those exclusion orders.
Also pursuant to Commission rule 210.76(a)(1), the Commission has modified the exclusion orders issued in
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in Part 210 of the Commission's Rules of Practice and Procedure, 19 CFR part 210.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until June 4, 2015.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E-405B, Washington, DC 20530.
On April 28, 2015, the Department of Justice filed a complaint and lodged a Consent Decree with the United States District Court for the Northern District of California pertaining to the cement manufacturing and limestone mining facility (“Facility”) in Cupertino, California owned by Hanson Permanente Cement, Incorporated (“Hanson”) and operated by Lehigh Southwest Cement Company (“Lehigh”). The complaint and proposed Consent Decree were filed contemporaneously in the matter of
The Consent Decree resolves claims under Sections 301 and 402 of the Clean Water Act, 33 U.S.C. 1311 and 1342, and related state law claims, arising from releases of selenium, mercury, hexavalent chromium, nickel, thallium, and other pollutants from the Facility to Permanente Creek. The Consent Decree provides that Lehigh and Hanson will pay a civil penalty of $2,550,000 to the United States and the State of California (with the United States and the State of California each receiving half of the civil penalty payment), and will install treatment for the pollutants described above in order to come into compliance with the Clean Water Act.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $11.00 (25 cents per page reproduction cost) for the Consent Decree, payable to the United States Treasury.
On April 29, 2015, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of Massachusetts
In the Complaint, the United States, on behalf of the U.S. Environmental Protection Agency (EPA), alleges that the defendant City of Lawrence (“the City”) violated the Clean Water Act (“CWA”), 33 U.S.C. 1251,
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $14.50 (25 cents per page reproduction cost), not including Appendices, payable to the United States Treasury.
Community Oriented Policing Services (COPS) Office, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Community Oriented Policing Services (COPS) Office, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until June 4, 2015.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Kimberly J. Brummett, Program Specialist, Department of Justice, Community Oriented Policing Services (COPS) Office, 145 N Street NE., Washington, DC 20530 (202-353-9769). Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20530 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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The affected public who will be asked to respond to the surveys include:
• Community residents of the CRI-TA site over the age of 18;
• Sworn and non-sworn police officers; and
The information collected through the two respective surveys is to establish a baseline to measure the impact of technical assistance given to Collaborative Reform Initiative (CRI) sites to advance community police and improve community confidence in the police. The four technical assistance providers (The Police Foundation, the Center for Naval Analyses (CNA), Institute of Intergovernmental Research (IIR), and Hillard Heintze) or one or more survey administration organizations will utilize each of the two surveys at one point in time for two different populations. The surveys will be administered prior to the application of technical assistance (or shortly thereafter) to establish a baseline of public and police perception of safety, community policing, and police-community relations. The data collected will cover one point in time in 2015 to establish this baseline. The survey results will not be used to draw conclusions that can be applied to the entire nation, but rather only for sites COPS chooses to provide technical assistance, so a nationally representative sample is not recommended. However, the surveys can be used in any municipality or region in the United States. To enhance site sustainability, the surveys will serve as tools for CRI sites (and future COPS community policing sites) to monitor their own
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• 400 surveys × 50 sites (20,000 surveys) × 20 minutes = 6,667 hours.
• 100 surveys × 50 sites (5,000 surveys) × 20 minutes = 1,667 hours.
The total estimated burden associated with this collection is 8,334 hours.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
The National Science Board, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of certain CHANGES in the scheduling of two meetings for the transaction of National Science Board business, as noted below. The original notice was published in the
Public meetings and public portions of meetings will be webcast. To view the meetings, go to
• Presentation by the recipient of the NSB 2015 Vannevar Bush Award, Dr. James Duderstadt.
• Awards and Agreements/CPP action items, including RCRV, NOAO, NRAO, Gemini Observatory, and NHMFL.
Nuclear Regulatory Commission.
License amendment request; opportunity to comment, request a hearing, and petition for leave to intervene; order.
The U.S. Nuclear Regulatory Commission (NRC) received and is considering approval of five amendment requests. The amendment requests are for Kewaunee Power Station; Millstone Power Station, Units 2 and 3; North Anna Power Station, Units 1 and 2; Surry Power Station, Units 1 and 2; Braidwood Station, Units 1 and 2; Byron Station, Units 1 and 2; Calvert Cliffs Nuclear Power Plant, Units 1 and 2; Clinton Power Station, Unit 1; Dresden Nuclear Power Station, Units 2 and 3; LaSalle County Station, Units 1 and 2; Limerick Generating Station, Units 1 and 2; Nine Mile Point Nuclear Station, Units 1 and 2; Oyster Creek Nuclear Generating Station; Peach Bottom Atomic Power Station, Units 2 and 3; Quad Cities Nuclear Power Station, Units 1 and 2; R.E. Ginna Nuclear Power Plant; Three Mile Island Nuclear Station, Unit 1; Davis-Besse Nuclear Power Station, Unit 1; Browns Ferry Nuclear Plant, Unit 3; and Browns Ferry Nuclear Plant, Units 1, 2, and 3. The NRC proposes to determine that each amendment request involves no significant hazards consideration. In addition, each amendment request contains sensitive unclassified non-safeguards information (SUNSI).
Comments must be filed by June 4, 2015. A request for a hearing must be filed by July 6, 2015. Any potential party as defined in § 2.4 of Title 10 of the
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Kay Goldstein, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-1506, email:
Please refer to Docket ID NRC-2015-0092 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2015-0092, facility name, unit number(s), application date, and subject in your comment submission.
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 will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
Pursuant to Section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the NRC is publishing this notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This notice includes notices of amendments containing SUNSI.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated, or (2) create the possibility of a new or different kind of accident from any accident previously evaluated, or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish a notice of issuance in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (First Floor), Rockville, Maryland 20852. The NRC's regulations are accessible
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i)-(iii).
For further details with respect to this amendment action, see the application for amendment which is available for public inspection at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (First Floor), Rockville, Maryland 20852. Publicly-available documents created or received at the NRC are accessible online in the ADAMS Public Documents collection at
Criterion 1: The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The amendment proposes a change to the CSP Milestone 8 full implementation date as set forth in the CSP implementation schedule. The revision of the full implementation date for the CSP does not involve modifications to any safety-related structures, systems or components (SSCs). Rather, the implementation schedule provides a timetable for fully implementing the CSP. The CSP describes how the requirements of 10 CFR 73.54 are to be implemented to identify, evaluate, and mitigate cyber attacks up to and including the design basis cyber attack threat, thereby achieving high assurance that the facility's digital computer and communications systems and networks are protected from cyber attacks. The revision of the CSP implementation schedule will not alter previously evaluated design basis accident analysis assumptions, add any accident initiators, modify the function of the plant safety-related SSCs, or affect how any plant safety-related SSCs are operated, maintained, modified, tested, or inspected.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
Criterion 2: The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
A revision to the CSP implementation schedule does not require any plant modifications. The proposed revision to the CSP implementation schedule does not alter the plant configuration, require new plant equipment to be installed, alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. Revision of the CSP implementation schedule does not introduce new equipment that could create a new or different kind of accident, and no new equipment failure
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
Criterion 3: The proposed change does not involve a significant reduction in a margin of safety.
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed revision to the CSP implementation schedule does not alter the way any safety-related SSC functions and does not alter the way the plant is operated. The CSP provides assurance that safety-related SSCs are protected from cyber attacks. The proposed revision to the CSP implementation schedule does not introduce any new uncertainties or change any existing uncertainties associated with any safety limit. The proposed revision to the CSP implementation schedule has no effect on the structural integrity of the fuel cladding, reactor coolant pressure boundary, or containment structure. Based on the above considerations, the proposed revision to the CSP implementation schedule would not degrade the confidence in the ability of the fission product barriers to limit the level of radiation to the public.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendment involves no significant hazards consideration.
Exelon Generation Company, LLC (EGC) has evaluated whether or not a significant hazards consideration is involved with the proposed amendments by focusing on the three standards set forth in 10 CFR 50.92, “Issuance of amendment,” as discussed below:
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The amendment proposes a change to the Cyber Security Plan (CSP) Milestone 8 (MS8) full implementation date as set forth in the CSP Implementation Schedule and associated regulatory commitments. The revision of the MS8 implementation date for the CSP does not involve modifications to any safety-related structures, systems, or components (SSCs). The revision of the CSP Implementation Schedule will not alter previously evaluated design basis accident analysis assumptions, add any accident initiators, modify the function of the plant safety-related SSCs, or affect how any plant safety-related SSCs are operated, maintained, modified, tested, or inspected.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The amendment proposes a change to the CSP MS8 full implementation date as set forth in the CSP Implementation Schedule and associated regulatory commitments. The revision of the MS8 full implementation date for the CSP does not involve modifications to any safety-related SSCs. No new accident scenarios, failure mechanisms, or limiting single failures are introduced as a result of this proposed amendment.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The amendment proposes a change to the CSP MS8 full implementation date as set forth in the CSP Implementation Schedule and associated regulatory commitments. The revision of the MS8 full implementation date for the CSP does not involve modifications to any safety-related SSCs. The proposed amendment has no effect on the structural integrity of the fuel cladding, reactor coolant pressure boundary, or containment structure.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, EGC concludes that the proposed amendment(s) does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of no significant hazards consideration is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendment involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed amendment extends the completion date for milestone 8 of the Cyber Security Plan (CSP) implementation schedule. Revising the full implementation date for the CSP does not involve modifications to any safety related structures, systems, or components (SSCs). The implementation schedule provides a timeline for fully implementing the CSP. The CSP describes how the requirements of 10 CFR 73.54 are to be implemented to identify, evaluate, and mitigate cyber attacks up to and including the design basis cyber attack threat; thereby achieving high assurance that the facility's digital computer and communications systems and networks are protected from cyber-attacks. The revision of the CSP Implementation Schedule will not alter previously evaluated design basis accident analysis assumptions, add any accident initiators, modify the function of the plant safety-related SSCs, or affect how any plant safety-related SSCs are operated, maintained, tested, or inspected.
As the proposed change does not directly impact SSCs, and milestones 1 through 7 provide significant protection against cyber-attacks, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not introduce a new mode of plant operation or involve a physical modification to the plant. New equipment is not installed with the proposed amendment, nor does the proposed amendment cause existing equipment to be operated in a new or different manner. The change to cyber security implementation plan milestone 8 is administrative in nature and relies on the significant protection against cyber-attacks that has been gained through the implementation of CSP milestones 1 through 7. Since the proposed amendment does not involve a change to the plant design or operation, no new system interactions are created by this change. The proposed changes do not result in any new failure modes, and thus cannot initiate an accident different from those previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed amendment does not affect the performance of any structures, systems or components as described in the design basis analyses. The change to milestone 8 of the cyber security implementation plan is administrative in nature. The proposed change does not introduce a new mode of plant operation or involve a physical modification to the plant. The proposed amendment does not introduce changes to limits established in the accident analysis. Since there is no impact to any SSCs, or any maintenance or operational practice, there is also no reduction in any margin of safety.
As the proposed change does not directly impact SSCs, and milestones 1 through 7 provide significant protection against cyber-attacks, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Specifically, the proposed change affects the current sets of TS Figures 3.4.9-1, “Pressure/Temperature Limits for Mechanical Heat up, Cooldown following Shutdown, and Reactor Critical Operations,” and 3.4.9-2, “Pressure/Temperature Limits for Reactor In-Service Leak and Hydrostatic Testing.” The proposed change replaces the current set valid up to 20 effective full power years (EFPYs) with a new set valid up to 38 EFPYs, and replaces the current set valid up to 28 EFPYs with a new set valid up to 54 EFPYs.
1. Does the proposed amendment involve a significant increase in the probability or consequences of any accident previously evaluated?
Response: No.
The proposed changes are to accept operating parameters that have been approved in previous license amendments. The changes to P/T limit curves were developed based on NRC-approved methodologies. The proposed changes deal exclusively with the reactor vessel P/T limit curves, which define the permissible regions for operation and testing. Failure of the reactor vessel is not considered as a design basis accident. Through the design conservatisms used to calculate the P/T limit curves, reactor vessel failure has a low probability of occurrence and is not considered in the safety analyses. The proposed changes adjust the reference temperature for the limiting material to account for irradiation effects and provide the same level of protection as previously evaluated and approved.
The adjusted reference temperature calculations were performed in accordance with the requirements of 10 CFR 50 Appendix G, using the guidance contained in Regulatory Guide 1.190, “Calculational and Dosimetry Methods for Determining Pressure Vessel Neutron Fluence,” to reflect use of the operating limits to no more than 54 Effective Full Power Years (EFPY). These changes do not alter or prevent the operation of equipment required to mitigate any accident analyzed in the BFN Final Safety Analysis Report.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes are accepted operating parameters that have been approved in previous license amendments. The changes to the P/T limit curves were developed based on NRC-approved methodologies. The proposed changes to the reactor vessel P/T limit curves do not involve a modification to plant equipment. No new failure modes are introduced. There is no effect on the function of any plant system, and no new system interactions are introduced by this change.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes are accepted operating parameters that have been approved in previous license amendments. The changes to P/T curves were developed based on NRC-approved methodologies. The proposed curves conform to the guidance contained in Regulatory Guide 1.190, “Calculational and Dosimetry Methods for Determining Pressure Vessel Neutron Fluence,” and maintain the safety margins specified in 10 CFR 50 Appendix G.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change to the safety limit in TS Section 2.1.1 will continue to support the validity of the existing critical power correlations applied at the units. The proposed TS revision involves no change to the operation of any system or component during normal, accident, or transient operating conditions. The proposed amendment does not involve any modification to plant hardware, design, or operation.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed reduction in the reactor dome pressure safety limit from 785 psig to 585 psig is an administrative change and does not involve changes to the plant hardware or its operating characteristics. As a result, no new failure modes are being introduced.
Therefore, the proposed amendment does not introduce a new or different kind of accident from those previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The margin of safety is established through the design of plant structures, systems, and components, and through the parameters for safe operation and setpoints of equipment relied upon to respond to transients and design basis accidents. The proposed change in reactor dome pressure does not change the requirements governing operation or availability of safety equipment assumed to operate to preserve the margin of safety. The change does not alter the behavior of the plant equipment, which remains unchanged.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on its own analysis, determines that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing SUNSI.
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication of this notice will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly-available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline. This provision does not extend the time for filing a request for a hearing and petition to intervene, which must comply with the requirements of 10 CFR 2.309.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and need for access, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) officer if that officer has been designated to rule on information access issues.
H. Review of Grants of Access. A party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will
For the Nuclear Regulatory Commission.
On August 15, 2014, NYSE Arca, Inc. (“NYSEArca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade the Shares under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares. The Shares will be offered by PIMCO ETF Trust (“Trust”),
The Exchange has made the following representations and statements in describing the Funds and its investment strategies, including other portfolio holdings and investment restrictions.
Each Fund will seek total return that exceeds the total return of its equity securities index benchmark, and under normal circumstances would seek to achieve its investment objective by investing in derivatives overlying its benchmark and a portfolio of Fixed Income Instruments (defined below), which would be managed using an absolute return approach. Typically, the Funds would use derivative instruments as a substitute for taking a position in the underlying asset
“Fixed Income Instruments” are: Securities issued or guaranteed by the U.S. Government, its agencies, or government-sponsored enterprises (“U.S. Government Securities”); corporate debt securities of U.S. and non-U.S. issuers, including convertible securities and corporate commercial paper; mortgage-backed and other asset-backed securities; inflation-indexed bonds issued both by governments and corporations; structured notes, including hybrid or “indexed” securities, and event-linked bonds;
While each of the Funds, under normal circumstances,
The Funds may invest in securities and instruments that are economically tied to foreign (non-U.S.) countries. The Funds may invest in securities denominated in foreign (non-U.S.) currencies and in U.S. dollar-denominated securities of foreign (non-U.S.) issuers, subject to applicable limitations set forth in the proposed rule change. With respect to the Funds' absolute return investments, each Fund will normally limit its foreign currency exposure (from non-U.S. dollar-denominated securities or currencies) to 20% of its total assets. With respect to the Funds' absolute return investments, each Fund may invest up to 25% of its total assets in securities and instruments that are economically tied to emerging market countries.
Each of the Funds may also engage in foreign currency transactions on a spot (cash) basis or forward basis, and each of the Funds may invest in foreign currency futures contracts and options contracts. The Funds may enter into these contracts to hedge against foreign exchange risk, to increase exposure to a foreign currency, or to shift exposure to foreign currency fluctuations from one currency to another. Suitable hedging transactions may not be available in all circumstances and there can be no assurance that the Funds will engage in such transactions at any given time or from time to time.
The Funds may purchase or sell securities on a when-issued, delayed delivery or forward commitment basis and may engage in short sales.
Each of the Funds may invest up to 10% of its total assets in preferred stocks, convertible securities, and other equity-related securities. Each Fund may invest up to 20% of its total assets in: (i) Trade claims; (ii) junior bank loans; (iii) exchange-traded and OTC-traded structured products, including credit-linked securities and commodity-linked notes; and (iv) privately placed and unregistered securities. This 20% limitation, however, does not apply to privately placed and unregistered securities that comply with the generic fixed income initial listing requirements in NYSE Arca Equities Rule 5.2(j)(3), Commentary .02(a)(6).
Each Fund may, with up to 20% of its total assets, enter into repurchase agreements on instruments other than Fixed Income Instruments. Each Fund may also, with up to 20% of its total assets, enter into reverse repurchase agreements on instruments other than Fixed Income Instruments, subject to the Fund's limitations on borrowings.
Each Fund may invest up to 20% of its total assets in “high yield securities” or unrated securities determined by PIMCO to be of comparable quality (except that within this limitation, the Fund may invest in mortgage-related securities rated below B).
Each Fund may invest up to 20% of its assets in mortgage-related and other asset-backed securities, although this 20% limitation does not apply to securities issued or guaranteed by Federal agencies or U.S. government sponsored instrumentalities. Each Fund may invest up to 20% of its total assets in senior bank loans.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act
Quotation and last-sale information for the Shares will be available via the Consolidated Tape Association (“CTA”) high-speed line. In addition, the Portfolio Indicative Value (“PIV”) as defined in NYSE Arca Equities Rule 8.600(c)(3), will be widely disseminated at least every fifteen seconds during the NYSE Arca Core Trading Session by one or more major market data vendors.
In addition, a basket composition file, which includes the security names and share quantities required to be delivered in exchange for each of the Funds' Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the Exchange via National Securities Clearing Corporation. The NAV of each of the Funds will be
Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. Information regarding the previous day's closing price and trading volume information for the Shares will be published daily in the financial section of newspapers. Intra-day and closing prices of equity securities traded on a national securities exchange, including common stocks, preferred stocks, securities convertible into stocks, closed-end funds, exchange traded-funds, and other equity-related securities, as well as any options (including options on futures) and futures, will be available from the exchange on which those securities and instruments are traded. U.S. exchange-traded options quotation and last sale information is available via the Options Price Reporting Authority. Intra-day and closing price information for Fixed Income Instruments will be available from major market data vendors. In addition, price information for debt securities and other financial instruments, forwards, OTC options, swaps, money market instruments, trade claims, privately placed and unregistered securities, bank loans, and structured products held by each Fund will be available through major market data vendors. Price information regarding other investment company securities will be available from on-line information services and from the Web site for the applicable investment company security. The Trust's Web site will include a form of the prospectus for each of the Funds and additional data relating to NAV and other applicable quantitative information for the Funds.
The Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. Trading in Shares will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable,
The Commission notes that the Shares and the Funds must comply with the initial and continued listing criteria in NYSE Arca Equities Rule 8.600 for the Shares to be listed and traded on the Exchange. The Exchange represents that it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has also made the following representations:
(1) The Shares will be subject to NYSE Arca Equities Rule 8.600, which sets forth the initial and continued listing criteria applicable to Managed Fund Shares.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, exchange-traded options, equity securities, futures and options on futures with other markets and other entities that are members of ISG, and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Shares, exchange-traded options, equity securities, futures and options on futures from these markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares, exchange-traded options, equity securities, futures and options on futures from ISG member markets or markets with which the Exchange has in place a comprehensive surveillance sharing agreement.
(4) With respect to its exchange-traded equity securities investments, the Funds will invest not more than 10% of its net assets in equity securities that trade in markets that are neither members of the ISG nor parties to a comprehensive surveillance sharing agreement with the Exchange. To the extent that any of the Funds invest in futures contracts or exchange-traded options, not more than 10% of such investments will be in futures contracts or exchange-traded options whose principal trading market is neither a member of ISG nor a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
(5) Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an
(6) For initial and continued listing, the Funds will be in compliance with Rule 10A-3 under the Act,
(7) Each of the Funds may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment).
(8) A minimum of 100,000 Shares for each of the Funds will be outstanding at the commencement of trading on the Exchange.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendments Nos. 1 and 2, is consistent with Section 6(b)(5) of the Act
Interested persons are invited to submit written data, views, and arguments concerning whether Amendments Nos. 1 and 2 are 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendments Nos. 1 and 2, prior to the thirtieth day after the date of publication of notice of the amendments in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1)
The proposed rule change consists of proposed revisions to the DTC Settlement Service Guide (“Guide”) to provide that any Settling Bank that does not timely acknowledge its end-of-day
In its filing with the Commission, DTC 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. DTC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this rule filing is to propose a rule change to mitigate a risk to DTC in settlement relating to a Settling Bank's failure to take the action required to: (i) Acknowledge its end-of-day net-net settlement balance, or (ii) notify DTC of a refusal to settle for any Participant for which it is the designated Settling Bank, by the Acknowledgment Cutoff Time (as defined below).
The DTC end-of-day net settlement structure depends upon the use of Settling Banks.
DTC needs certainty to complete settlement. If the Settling Bank does not respond to DTC with either an acknowledgment of its end-of-day net-net settlement balance or notification of a refusal to settle for a Participant for which it is the designated Settling Bank, this introduces uncertainty with respect to timely completion of settlement.
To promote settlement certainty, DTC is proposing to treat a Settling Bank that fails to timely provide its acknowledgement of its end-of-day net-net settlement balance or notify DTC of its refusal to settle for one or more Participants for which it is the designated Settling Bank, as having acknowledged its end-of-day net-net settlement balance for the purpose of settlement processing. DTC proposes to modify the Guide to provide that a Settling Bank that: (i) Fails to affirmatively acknowledge its end-of-day net-net settlement balance, or (ii) does not notify DTC of its refusal to settle on behalf of a Participant or Participants for which it is the designated Settling Bank, by the Acknowledgement Cutoff Time would be deemed to have acknowledged its end-of-day net-net settlement balance. The Settling Bank's balance would then in the ordinary course of settlement processing, be debited from or credited to its designated Fed Account through the NSS process. Likewise, DTC proposes that the Guide provide that a Settling Bank that fails to immediately upon receipt acknowledge its Adjusted Balance, if any, would be deemed to have acknowledged its Adjusted Balance and the Adjusted Balance would then in the ordinary course of settlement processing, be debited from or credited to its designated Fed Account through the NSS process.
DTC maintains flexibility to allow for a Settling Bank to request extra time if the Settling Bank has a problem relating to its connectivity with DTC or another good faith reason that it cannot affirmatively acknowledge or refuse, so long as the Settling Bank notifies DTC accordingly at or before the Acknowledgement Cutoff Time, or, in the case of an Adjusted Balance, it notifies DTC immediately where it is unable to affirmatively acknowledge. In this regard, the Guide would be updated to clarify that the Settling Bank is required to notify DTC of its request via a dedicated DTC Settlement phone “hotline” prior to the Acknowledgment Cutoff Time. As it does today, DTC would attempt to contact the Settling Bank if it does not receive a response in the form of: (i) An acknowledgment or refusal prior to the Acknowledgment Cutoff Time, or (ii) as applicable, an immediate acknowledgment of an Adjusted Balance.
Additionally, DTC would revise the Guide to: (i) Clarify that a Settling Bank that settles only for itself is not required
The effective date of the proposed rule change would be announced via a DTC Important Notice.
The proposed rule change would reduce delays in the settlement process by allowing DTC to collect net debits and release net credits within scheduled timeframes despite the failure of a Settling Bank to affirmatively acknowledge its end-of-day net-net settlement balance or notify DTC of its refusal to settle for a Participant for which it is the designated Settling Bank on a timely basis. Therefore, the proposed rule change is consistent with the provisions of section 17A(b)(3)(F)
DTC does not believe that the proposed rule change would have any impact, or impose any burden, on competition.
Written comments relating to the proposed rule change have not yet been solicited or received. DTC will notify the Commission of any written comments received by DTC.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade the shares of the following under NYSE Arca Equities Rule 8.600: ALPS Enhanced Put Write Strategy ETF. 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 list and trade the shares (“Shares”) of the following under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares on the Exchange:
ALPS Advisors, Inc. is the investment adviser (“Adviser”) to the Fund. Rich Investment Solutions, LLC is the investment sub-adviser (“Sub-Adviser”) to the Fund. ALPS Fund Services, Inc. (“ALPS Fund Services”) serves as the Trust's administrator. The Bank of New York Mellon also serves as custodian (“Custodian”) and transfer agent (“Transfer Agent”) for the Fund. ALPS Portfolio Solutions Distributor, Inc. is the distributor (“Distributor”) of the Fund's Shares.
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio. In addition, Commentary .06 further requires that personnel who make decisions on the open-end fund's portfolio composition must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the open-end fund's portfolio.
According to the Registration Statement, the investment objective of the Fund is to seek total return, with an emphasis on income as the source of that total return. The Fund will seek to achieve its investment objective by selling listed one-month put options on the SPDR® S&P 500® ETF Trust (“SPY”). SPY is an exchange-traded fund (“ETF”) that seeks to provide investment results that, before expenses, correspond generally to the price and yield performance of the S&P 500® Index (“SPX” or “Index”). SPY holds a portfolio of the common stocks that are included in the SPX, with the weight of each stock in its portfolio substantially corresponding to the weight of such stock in the SPX. The Fund may also sell listed one-month put options directly on the SPX under certain circumstances (such as if such options have more liquidity and narrower spreads than options on SPY). SPY shares are listed on the Exchange and traded on national securities exchanges. SPX options are traded on the Chicago Board Options Exchange (“CBOE”). Options on SPY are traded on national securities exchanges.
Each listed put option sold by the Fund will be an “American-style” option (
The option premiums and cash (in respect of orders to create Shares in large aggregations known as “Creation Units,” as further described below) received by the Fund will be invested in an actively-managed portfolio of investment grade debt securities (the “Collateral Portfolio”) at least equal in value to the Fund's maximum liability under its written options (
Under normal market conditions,
The Fund may invest up to 20% of its net assets in non-agency MBS and ABS in the aggregate.
The Fund may seek to obtain exposure to U.S. agency mortgage pass-through securities primarily through the use of “to-be-announced” or “TBA transactions.” “TBA” refers to a commonly used mechanism for the forward settlement of U.S. agency mortgage pass-through securities, and not to a separate type of mortgage-backed security. Most transactions in mortgage pass-through securities occur through the use of TBA transactions. TBA transactions generally are conducted in accordance with widely-accepted guidelines which establish commonly observed terms and conditions for execution, settlement and delivery. In a TBA transaction, the buyer and seller decide on general trade parameters, such as agency, settlement date, par amount, and price. The actual pools delivered generally are determined two days prior to settlement date. The Fund will enter into TBA transactions only with established counterparties (such as major broker-dealers) and the Sub-Adviser will monitor the creditworthiness of such counterparties.
According to the Registration Statement, every month, the options sold by the Fund will be settled by delivery at expiration or expire with no value and new option positions will be established while the Fund sells any units of SPY it owns as a result of such settlements or of the Fund's prior option positions having been exercised.
With respect to no more than 20% of the Fund's assets, the Fund may engage in certain opportunistic “put spread” and “call spread” strategies. Specifically, when the Sub-Adviser believes the SPX (and thus SPY) will rise or not decline in value, the Fund may engage in “put spreads” whereby the Fund will buy back certain of the written put options which are out of the money (
Roll Date Transactions—At each roll date, any settlement loss from the expiring puts will be financed by the Fund's portfolio of investment grade debt securities (the “Collateral Portfolio”) and a new batch of at-the-money puts will be sold. The revenue from their sale will be added to the Fund's Collateral Portfolio. The Fund's total cash available will be reinvested daily in the Fund's Collateral Portfolio.
Number of Puts Sold—The number of puts sold will be chosen to ensure full collateralization. This means that at the expiration of the puts, the total value of the Collateral Portfolio must be equal to the maximum possible loss from final settlement of the put options.
Example: SPY trades at $50 per share at the start of the one month period, and a listed put “American style” option with a term of one month was sold by
Trading at or above the strike price: If at all times during the one month period prior to expiration, SPY trades at or above the strike price of $50.00, then the option would expire worthless and the Fund's value would reflect the retention of the $0.50 per share premium. The Fund's value thus would be increased by $0.50 per share on the SPY option position.
Trading below the strike price: If at any time during the one month period prior to expiration, SPY trades at or below $49.99, then the option buyer would have the right, but not the obligation, to exercise the option. The Fund's value would change as if the Fund had been put (
While, under normal market conditions, substantially all of the Fund's net assets will be invested in options on SPY or SPX, or in the Collateral Portfolio, the Fund may invest its remaining assets in other securities and financial instruments, as described below. The Fund may invest its remaining assets in any one or more of the following instruments: Money market instruments (as described below), in addition to those in which the Fund invests as part of the Collateral Portfolio, and including repurchase agreements or other funds which invest exclusively in money market instruments; convertible securities; structured notes (notes on which the amount of principal repayment and interest payments are based on the movement of one or more specified factors, such as the movement of a particular stock or stock index); forward foreign currency exchange contracts; swaps; over-the-counter (“OTC”) options on SPY or on the S&P 500 Index; and futures contracts and options on futures contracts, as described further below. Swaps, options and futures contracts may be used by the Fund in seeking to achieve its investment objective, and in managing cash flows. The Fund may also invest in money market instruments or other short-term fixed income instruments as part of a temporary defensive strategy to protect against temporary market declines.
The Fund may invest in high-quality money market instruments on an ongoing basis to provide liquidity. The instruments in which the Fund may invest include: (i) Short-term obligations issued by the U.S. Government;
The Fund may enter into reverse repurchase agreements, which involve the sale of securities with an agreement to repurchase the securities at an agreed-upon price, date and interest payment and have the characteristics of borrowing. The securities purchased with the funds obtained from the agreement and securities collateralizing the agreement will have maturity dates no later than the repayment date.
The Fund may invest in the securities of other investment companies (including money market funds), subject to applicable restrictions under the 1940 Act.
The Fund may utilize U.S. exchange-traded futures contracts on the S&P 500 Index and U.S. exchange-traded options on futures contracts on the S&P 500 Index.
The Fund may utilize such options on futures contracts as a hedge against changes in value of its portfolio securities, or in anticipation of the purchase of securities, and may enter into closing transactions with respect to such options to terminate existing positions.
The Fund may enter into swap agreements based on the S&P 500 Index.
The Fund may invest in investment grade debt obligations traded in the U.S. Such debt obligations include, among others, bonds, notes, debentures and variable rate demand notes. In choosing corporate debt securities on behalf of the Fund, the Sub-Adviser may consider (i) general economic and financial conditions; and (ii) the specific issuer's (a) business and management, (b) cash flow, (c) earnings coverage of interest and dividends, (d) ability to operate under adverse economic conditions, (e) fair market value of assets, and (f) other considerations deemed appropriate.
The Fund may invest up to 100% of its total assets in debt securities that are rated investment grade by an NRSROs [sic], or are unrated securities that the Sub-Adviser believes are of comparable quality.
The Fund may invest in securities that have variable or floating interest rates which are readjusted on set dates (such as the last day of the month or calendar quarter) in the case of variable rates or whenever a specified interest rate change occurs in the case of a floating rate instrument.
The Fund may use delayed delivery transactions as an investment technique. Delayed delivery transactions, also referred to as forward commitments, involve commitments by the Fund to dealers or issuers to acquire or sell securities at a specified future date beyond the customary settlement for such securities. These commitments may fix the payment price and interest rate to be received or paid on the investment. The Fund may purchase securities on a delayed delivery basis to the extent that it can anticipate having available cash on the settlement date. Delayed delivery agreements will not be used as a speculative or leverage technique.
The Fund may purchase when-issued securities.
The Fund may invest in zero-coupon or pay-in-kind securities. These securities are debt securities that do not make regular cash interest payments. Zero-coupon securities are sold at a deep discount to their face value. Pay-in-kind securities pay interest through the issuance of additional securities.
The Fund may hold up to an aggregate of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Adviser or Sub-
The Fund intends to qualify for and to elect to be treated as a separate regulated investment company (a “RIC”) under Subchapter M of the Internal Revenue Code.
The Fund's investments will be consistent with its investment objective and will not be used to enhance leverage.
The net asset value (“NAV”) per Share of the Fund will be computed by dividing the value of the net assets of the Fund (
In computing the Fund's NAV, the Fund's securities holdings traded on a national securities exchange (including listed put options sold by the Fund and any exchange-traded equity securities held by the Fund) will be valued based on their last sale price. Price information on listed securities will be taken from the exchange where the security is primarily traded. Other portfolio securities and assets for which market quotations are not readily available will be valued based on fair value as determined in good faith in accordance with procedures adopted by the Trust's Board.
Non-exchange traded investment company securities will be priced at NAV.
The Fund's debt securities will be valued at market value. Market value generally means a valuation (i) obtained from an exchange, a pricing service or a major market maker (or dealer), (ii) based on a price quotation or other equivalent indication of value supplied by an exchange, a pricing service or a major market maker (or dealer), or (iii) based on amortized cost. The Fund's debt securities will be thus valued by reference to a combination of transactions and quotations for the same or other securities believed to be comparable in quality, coupon, maturity, type of issue, call provisions, trading characteristics and other features deemed to be relevant. To the extent the Fund's debt securities are valued based on price quotations or other equivalent indications of value provided by a third-party pricing service, any such third-party pricing service may use a variety of methodologies to value some or all of the Fund's debt securities to determine the market price. For example, the prices of securities with characteristics similar to those held by the Fund may be used to assist with the pricing process. In addition, the pricing service may use proprietary pricing models. Short-term fixed income securities having a remaining maturity of 60 days or less will generally be valued at amortized cost. The Fund's listed put options, as well as exchange-traded equity securities held by the Fund, will be valued at the last reported sale price on the principal exchange on which such securities are traded, as of the close of regular trading on NYSE Arca on the day the securities are being valued or, if there are no sales, at the mean of the most recent bid and asked prices. Other derivatives will generally be valued on the basis of quotes obtained from brokers and dealers or pricing services using data reflecting the earlier closing of the principal markets for those assets. Local closing prices will be used for all instrument valuation purposes. Foreign currency-denominated derivatives will generally be valued as of the respective local region's market close. With respect to specific derivatives, and [sic] forward rates from major market data vendors will generally be determined as of the NYSE Close; futures will generally be valued at the settlement price of the relevant exchange; index swaps will be valued at the publicly available index price; index options, and options on futures will generally be valued at the official settlement price determined by the relevant exchange, if available; OTC and exchange-traded equity options will generally be valued on the basis of quotes of quotes received from a quotation reporting system, established market makers, or pricing services or'for [sic] exchange-traded options, at the settlement price of the applicable exchange. Money market instruments (other than debt securities noted above), structured notes, repurchase
The Trust will issue and sell Shares of the Fund only in “Creation Unit Aggregations” of 50,000 Shares each on a continuous basis through the Distributor, without a sales load, at its NAV next determined after receipt, on any business day, of an order in proper form.
Creation Units of the Fund generally will be sold for cash only, calculated based on the NAV per Share multiplied by the number of Shares representing a Creation Unit (“Deposit Cash”), plus a transaction fee.
The Custodian, through the National Securities Clearing Corporation (“NSCC”), will make available on each business day, prior to the opening of business on the NYSE Arca (currently 9:30 a.m., Eastern time), the amount of the Deposit Cash to be deposited in exchange for a Creation Unit Aggregation of the Fund.
To be eligible to place orders with the Distributor and to create a Creation Unit Aggregation of the Fund, an entity must be a Depositary Trust Company (“DTC”) Participant that has executed an agreement with the Distributor, with respect to creations and redemptions of Creation Units (“Participant Agreement”). A DTC Participant that has executed a Participant Agreement is referred to as an “Authorized Participant.”
All orders to create Creation Unit Aggregations must be received by the Distributor no later than the closing time of the regular trading session on the NYSE (“Closing Time”) (ordinarily 4:00 p.m., Eastern time) in each case on the date such order is placed in order for creation of Creation Unit Aggregations to be effected based on the NAV of Shares of the Fund as next determined on such date after receipt of the order in proper form. The date on which an order to create Creation Unit Aggregations is placed is referred to as the “Transmittal Date.” Orders must be transmitted by an Authorized Participant by telephone or other transmission method acceptable to the Distributor pursuant to procedures set forth in the “Participant Agreement”.
Authorized Participants will be required to pay a fixed creation transaction fee payable regardless of the number of creations made each day.
Fund Shares may be redeemed only in Creation Unit size at the NAV next determined after receipt of a redemption request in proper form by the Fund through the Transfer Agent and only on a business day. The Fund will not redeem Shares in amounts less than Creation Unit Aggregations.
With respect to the Fund, the Custodian, through the NSCC, will make available prior to the opening of business on NYSE Arca on each business day, the amount of cash that will be paid (subject to possible amendment or correction) in respect of redemption requests received in proper form on that day (the “Redemption Cash”).
The redemption proceeds for a Creation Unit generally consist of the Redemption Cash—as announced on the business day of the request for redemption received in proper form—less a redemption transaction fee.
The right of redemption may be suspended or the date of payment postponed (i) for any period during which the NYSE is closed (other than customary weekend and holiday closings); (ii) for any period during which trading on the NYSE is suspended or restricted; (iii) for any period during which an emergency exists as a result of which disposal of the Shares of the Fund or determination of the Fund's NAV is not reasonably practicable; or (iv) in such other circumstances as is permitted by the Commission.
Orders to redeem Creation Units must be delivered through a DTC Participant that has executed the Participant Agreement. An order to redeem Creation Units is deemed received by the Trust on the Transmittal Date if (i) such order is received by the Transfer Agent not later than 4:00 p.m., Eastern time on such Transmittal Date; (ii) such order is accompanied or followed by the requisite number of Shares of the Fund, which delivery must be made through DTC to the Custodian no later than 11:00 a.m., Eastern time (for the Fund Shares), on the next business day immediately following such Transmittal Date (the “DTC Cut-Off-Time”) and 2:00 p.m., Eastern time for any cash component, if any owed to the Fund; and (iii) all other procedures set forth in the Participant Agreement are properly followed. After the Trust has deemed an order for redemption received, the Trust will initiate procedures to transfer the requisite Redemption Cash which is expected to be delivered within three business days.
The approximate value of the Fund's investments on a per-Share basis, the Indicative Intra-Day Value (“IIV”), which is the Portfolio Indicative Value as defined in NYSE Arca Equities Rule 8.600(c)(3), will be disseminated by one or more major market data vendors every 15 seconds during the Exchange's Core Trading Session. The IIV should not be viewed as a “real-time” update of NAV because the IIV will be calculated by an independent third party calculator and may not be calculated in the exact same manner as NAV, which will be computed daily.
The IIV will be calculated during the Exchange's Core Trading Session by dividing the “Estimated Fund Value” as of the time of the calculation by the total number of outstanding Shares. “Estimated Fund Value” is the sum of the estimated amount of cash held in the Fund's portfolio, the estimated amount of accrued interest owing to the Fund and the estimated value of the securities and other assets held in the Fund's portfolio, minus the estimated amount of liabilities. The IIV will be calculated based on the same portfolio holdings disclosed on the Fund's Web site. In determining the estimated value for each of the component securities and other assets, the IIV will use last sale, market prices or other methods that would be considered appropriate for pricing securities held by registered investment companies.
The Fund's Web site (
The Fund will disclose on the Fund's Web site the following information regarding each portfolio holding, as applicable to the type of holding: Ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding, such as the type of swap); the identity of the security, commodity, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in the Fund's portfolio. The Web site information will be publicly available at no charge.
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's shareholder reports, and its Form N-CSR and Form N-SAR, filed twice a year. The Trust's SAI and Shareholder Reports will be available free upon request from the Trust, and those documents and the Form N-CSR and Form N-SAR may be viewed on-screen or downloaded from the Commission's Web site at
Quotation and last sale information for the Shares and U.S. exchange-listed equities (including SPY) will be available via the Consolidated Tape Association (“CTA”) high-speed line, and from the Exchange. Quotation and last sale information for exchange-listed options cleared via the Options Clearing Corporation will be available via the Options Price Reporting Authority. Intra-day and closing price information regarding exchange-traded options (including options on futures) and futures will be available from the exchange on which such instruments are traded. Intra-day and closing price information regarding debt securities; money market instruments; convertible securities; structured notes; forward foreign currency exchange contracts; swaps; repurchase agreements; reverse repurchase agreements; US government securities; MBS and ABS; mortgage pass-throughs; variable or floating interest rate securities; when-issued securities; delayed delivery securities; and zero-coupon securities also will be available from major market data vendors. Price information for non-exchange-traded investment company securities will be available from major market data vendors and from the Web site of the applicable investment company.
In addition, the IIV will be widely disseminated at least every 15 seconds during the Core Trading Session by one or more major market data vendors.
Additional information regarding the Trust and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions and taxes is included in the Registration Statement. All terms relating to the Fund that are referred to, but not defined in, this proposed rule change are defined in the Registration Statement.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
If the IIV, Index value or the value of the Index components is not being disseminated as required, the Exchange may halt trading during the day in which the disruption occurs; if the interruption persists past the day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption. Under NYSE Arca Equities Rule 7.34(a)(5), if the Exchange becomes aware that the NAV for the Fund is not being disseminated to all market participants at the same time, it will halt trading in the Shares until such time as the NAV is available to all market participants.
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. Consistent with NYSE Arca Equities Rule 8.600(d)(2)(B)(ii), the Adviser will implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of the Fund's portfolio. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A-3
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m. ET in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares
The Exchange represents that the trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, other exchange-traded equity securities, exchange-traded investment company securities, futures contracts, and exchange-traded options contracts with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Shares, other exchange-traded equity securities, exchange-traded investment company securities, futures contracts and exchange-traded options contracts from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares, other exchange-traded equity securities, exchange-traded investment company securities, futures contracts and exchange-traded options contracts from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading of Shares in the Fund, the Exchange will inform its ETP Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated IIV or Index value will not be calculated or publicly disseminated; (4) how information regarding the IIV, the Disclosed Portfolio and the Index value will be disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m., Eastern time each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Shares will be subject to the existing trading surveillances, administered by FINRA on behalf of the Exchange, which are designed to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange. FINRA and the Exchange, as applicable, may each obtain information via ISG from other exchanges that are members of ISG, and in the case of the Exchange, from other market or entities with which the Exchange has entered into a comprehensive surveillance sharing agreement. The Adviser is not a registered broker-dealer but is affiliated with a broker-dealer and has implemented a “fire wall” with respect to such broker-dealer regarding access to information concerning the composition and/or changes to the Fund's portfolio. The Sub-Adviser is not registered as a broker-dealer and is not affiliated with a broker-dealer. The Fund's investments will be consistent with its investment objective and will not be used to enhance leverage.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Adviser or Sub-Adviser, consistent with Commission guidance. The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily every day the NYSE is open, and that the NAV will be made available to all market participants at the same time. In addition, a large amount of publicly available information will be publicly available
Moreover, the IIV will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Core Trading Session. On each business day, before commencement of trading in the Shares in the Core Session on the Exchange, the Fund will disclose on its Web site the portfolio that will form the basis for the Fund's calculation of NAV at the end of the business day. Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services, and quotations and last sale information will be available via the CTA high-speed line. Quotation and last sale information for the Shares will be available via the CTA high-speed line, and from the Exchange. Quotation and last sale information for exchange-listed options cleared via the Options Clearing Corporation will be available via the Options Price Reporting Authority. Intra-day and closing price information regarding exchange-traded options (including options on futures) and futures will be available from the exchange on which such instruments are traded. Intra-day and closing price information regarding debt securities; money market instruments; convertible securities; structured notes; forward foreign currency exchange contracts; swaps; US government securities; MBS and ABS; mortgage pass-throughs; variable or floating interest rate securities; when-issued securities; delayed delivery securities; zero-coupon securities; repurchase agreements; reverse repurchase agreements; and pay-in-kind securities also will be available from major market data vendors.
In addition, the IIV will be widely disseminated at least every 15 seconds during the Core Trading Session by one or more major market data. The Web site for the Fund will include the prospectus for the Fund and additional data relating to NAV and other applicable quantitative information. Moreover, prior to commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading the Shares inadvisable. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the IIV, the Fund's portfolio, and quotation and last sale information for the Shares.
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 in that it will facilitate the listing and trading of an additional type of exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Shares will be subject to the existing trading surveillances, administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange. FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, other exchange-traded equity securities, exchange-traded investment company securities, futures contracts, and exchange-traded options contracts with other market and other entities that are members of ISG, and FINRA, on behalf of the Exchange, may obtain trading information in the Shares, other exchange-traded equity securities, exchange-traded investment company securities, futures contracts, and exchange-traded options contracts from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares, other exchange-traded equity securities, exchange-traded investment company securities, futures contracts, and exchange-traded options contracts from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain fixed income securities held by the Fund reported to FINRA's TRACE. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the IIV, and quotation and last sale information for the Shares.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of an additional type of actively managed ETF that will enhance competition among market participants, 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 the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE proposes to amend Rule 502 to allow the listing of options overlying Exchange-Traded Fund Shares (“ETFs”) that are listed pursuant to generic listing standards on equities exchanges for series of portfolio depositary receipts and index fund shares based on international or global indexes under which a comprehensive surveillance agreement is not required. 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 502 to allow the listing of options overlying ETFs that are listed pursuant to generic listing standards on equities exchanges for series of portfolio depositary receipts and index fund shares based on international or global indexes under which a comprehensive surveillance sharing agreement (“comprehensive surveillance agreement” or “CSSA”) is not required.
The Exchange allows for the listing and trading of options on ETFs. Rule 502(h)(B)(1)-(3) provide the listings standards for options on ETFs with non-U.S. component securities, such as ETFs based on international or global indexes. Rule 502(h)(B)(1) requires that any non-U.S. component securities of an index or portfolio of securities on which the Exchange-Traded Fund Shares are based that are not subject to comprehensive surveillance agreements do not in the aggregate represent more than 50% of the weight of the index or portfolio.
The Exchange notes that the Commission has previously approved generic listing standards pursuant to Rule 19b-4(e)
In addition, the Commission has previously approved the listing and trading of ETFs based on international indexes—those based on non-U.S. component stocks—as well as global indexes—those based on non-U.S. and U.S. component stocks.
In approving ETFs for equities exchange trading, the Commission thoroughly considered the structure of the ETFs, their usefulness to investors and to the markets, and SRO rules that govern their trading. The Exchange believes that allowing the listing of options overlying ETFs that are listed pursuant to the generic listing standards on equities exchanges for ETFs based on international and global indexes and applying Rule 19b-4(e)
Options on ETFs listed pursuant to these generic standards for international and global indexes would be traded, in all other respects, under the Exchange's existing trading rules and procedures that apply to options on ETFs and would be covered under the Exchange's surveillance program for options on ETFs.
Pursuant to the proposed rule, the Exchange may list and trade options on an ETF without a CSSA provided that the ETF is listed pursuant to generic listing standards for series of portfolio depositary receipts and index fund shares based on international or global indexes under which a comprehensive surveillance agreement is not required. The Exchange believes that these generic listing standards are intended to ensure that stocks with substantial market capitalization and trading volume account for a substantial portion of the weight of an index or portfolio.
The Exchange believes that this proposed listing standard for options on ETFs is reasonable for international and global indexes, and, when applied in conjunction with the other listing requirements,
The Exchange believes that ETFs based on international and global indexes that have been listed pursuant to the generic standards are sufficiently broad-based enough as to make options overlying such ETFs not susceptible instruments for manipulation. The Exchange believes that the threat of manipulation is sufficiently mitigated for underlying ETFs that have been listed on equities exchanges pursuant to generic listing standards for series of portfolio depositary receipts and index fund shares based on international or global indexes under which a comprehensive surveillance agreement is not required and for the overlying options, that the Exchange does not see the need for CSSA to be in place before listing and trading options on such ETFs. The Exchange notes that its proposal does not replace the need for a CSSA as provided in the current rule. The provisions of the current rule, including the need for a CSSA, remain materially unchanged in the proposed rule and will continue to apply to options on ETFs that are not listed on an equities exchange pursuant to generic listing standards for series of portfolio depositary receipts and index fund shares based on international or global indexes under which a comprehensive surveillance agreement is not required. Instead, the proposed rule adds an additional listing mechanism for certain qualifying options on ETFs to be listed on the Exchange.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposed rule change is a competitive change that is substantially similar to recent rule changes filed by the MIAX Options Exchange (“MIAX”) and NASDAQ OMX PHLX, LLC (“Phlx”).
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.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under 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 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 to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 15 to reflect that Exchange systems will not publish Order Imbalance Information on the initial public offering (“IPO”) of a security. 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 Rule 15 to reflect that Exchange systems will not publish Order Imbalance Information if a security is an IPO.
Rule 15(c) currently provides that Exchange systems may make available, from time to time and as the Exchange shall determine, Order Imbalance Information
To reduce confusion regarding pricing of an IPO, the Exchange proposes to discontinue publishing Order Imbalance Information if a security is an IPO. The Exchange believes that the Order Imbalance Information currently published for IPOs may not be the most accurate indication of the state of the market for individual IPO securities. In calculating Order Imbalance Information for IPOs, Exchange systems do not have access to interest represented in the crowd by Floor brokers,
The Exchange notes that indications as required pursuant to Rules 15(a) and/or 123D(1), if applicable,
To effectuate this change, the Exchange proposes to delete the rule text in subpart (D) of Rule 15(c)(2)(ii), which requires the Exchange to use the IPO price as the reference price for automated Order Imbalance Information, and renumber current Rule 15(c)(2)(ii)(E) as new Rule 15(c)(2)(ii)(D). No other changes to the Exchange's rules are necessary.
Because of the technology changes associated with the proposed rule change, the Exchange proposes to announce the implementation date via Trader Update.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather improve the current process of providing pre-market information to customers and the investing public about a security that is an IPO.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 15—Equities to reflect that Exchange systems will not publish Order Imbalance Information on the initial public offering (“IPO”) of a security. 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 Rule 15—Equities (“Rule 15”) to reflect that Exchange systems will not publish Order Imbalance Information if a security is an IPO.
Rule 15(c) currently provides that Exchange systems may make available, from time to time and as the Exchange shall determine, Order Imbalance Information
To reduce confusion regarding pricing of an IPO, the Exchange proposes to discontinue publishing Order Imbalance Information if a security is an IPO. The Exchange believes that the Order Imbalance Information currently published for IPOs may not be the most accurate indication of the state of the market for individual IPO securities. In calculating Order Imbalance Information for IPOs, Exchange systems do not have access to interest represented in the crowd by Floor brokers,
The Exchange notes that indications as required pursuant to Rules 15(a) and/or 123D(1)—Equities, if applicable,
To effectuate this change, the Exchange proposes to delete the rule text in subpart (D) of Rule 15(c)(2)(ii), which requires the Exchange to use the IPO offering price as the reference price for automated Order Imbalance Information, and renumber current Rule 15(c)(2)(ii)(E) as new Rule 15(c)(2)(ii)(D). No other changes to the Exchange's rules are necessary.
Because of the technology changes associated with the proposed rule change, the Exchange proposes to announce the implementation date via Trader Update
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather improve the current process of providing pre-market information to customers and the investing public about a security that is an IPO.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 15c2-8 under the Securities Exchange Act of 1934 (15 U.S.C. 78a
Additionally, managing underwriters are required to take reasonable steps to ensure that all broker-dealers participating in the distribution of or trading in the security have sufficient copies of the preliminary or final prospectus, as requested by them, to enable such broker-dealer to satisfy their respective prospectus delivery obligations pursuant to Rule 15c2-8, as well as Section 5 of the Securities Act of 1933.
Rule 15c2-8 implicitly requires that broker-dealers collect information, as such collection facilitates compliance with the rule. There is no requirement to submit collected information to the Commission. In order to comply with the rule, broker-dealers participating in a securities offering must keep accurate records of persons who have indicated interest in an IPO or requested a prospectus, so that they know to whom they must send a prospectus.
The Commission estimates that the time broker-dealers will spend complying with the collection of information required by the rule is 11,900 hours for equity IPOs and 86,460 hours for other offerings. The Commission estimates that the total annualized cost burden (copying and postage costs) is $23,800,000 for IPOs and $3,458,400 for other offerings.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden 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. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549, or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend NASDAQ Rule 7015(b) and (g) to modify the port fees charged to members and non-members for ports used to enter orders into Nasdaq systems, in connection with the use of the FIX and OUCH trading telecommunication protocols.
The text of the proposed rule change is below; proposed new language is italicized; proposed deletions are in brackets.
(a) No change.
(b) Financial Information Exchange (FIX).
(c)-(f) No change.
(g) Other Port Fees.
Remote Multi-cast ITCH Wave Ports.
The following port fees shall apply in connection with the use of other trading telecommunication protocols:
• $5
• An additional $200 per month for each port used for entering orders or quotes over the Internet.
• An additional $600 per month for each port used for market data delivery over the Internet.
The Dedicated OUCH Port Infrastructure subscription allows a member firm to assign up to 30 of its OUCH ports to a dedicated server infrastructure for its exclusive use. A Dedicated OUCH Port Infrastructure subscription is available to a member firm for a fee of $5,000 per month, which is in addition to the standard fees assessed for each OUCH port. A one-time installation fee of $5,000 is assessed subscribers for each Dedicated OUCH Port Server subscription.
(h)-(i) No change.
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.
Nasdaq is proposing to amend Nasdaq Rule 7015(b) and (g) to modify the monthly fee it charges for ports used to enter orders in the Nasdaq Market Center for the trading of equities, in connection with the use of FIX and OUCH trading telecommunication protocols.
The enhanced ports will use field-programmable gate array (“FPGA”) technology, which is a hardware-based delivery mechanism and an upgrade to the existing software and software-and-hardware based mechanisms. By taking advantage of hardware parallelism, FPGA technology is capable of processing more data packets during peak market conditions without the introduction of variable queuing latency. In other words, the upgrade to FPGA will improve the predictability of the telecommunications ports and thereby add value to the user experience.
The Exchange is offering new technology and pricing in order to keep pace with changes in the industry and evolving customer needs as new technologies emerge and products continue to develop and change. The costs associated with the hardware-based delivery system cover creating, shipping, installing and maintaining the new equipment and codebase. From a messaging perspective, the data content and sequencing on the new hardware version of the OUCH ports will be the same as on the legacy software-based versions of NASDAQ ports that are being replaced.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes the proposed rule change is consistent with Section 6(b)(4) of the Act
The Exchange believes that the proposed fees are reasonable in that they are based on the costs associated with purchasing hardware (capital expenditures) and supporting and maintaining the infrastructure (operating expenditures) for the FPGA enhancement for member firms. In addition, the FPGA enhancements will provide value to members far exceeding the incremental costs imposed. The Exchange also believes that the proposed fees are equitable and not unfairly discriminatory because the fees apply equally to all users of the FPGA-enhanced ports. Moreover, the fees apply in direct proportion to the number of ports used by each member.
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. To the contrary, NASDAQ believes that the proposed rule change is pro-competitive in that the enhancements improve the competitiveness of the NASDAQ Market Center and the overall quality of the national market system. If, as NASDAQ believes, the FPGA enhancement provides NASDAQ a competitive advantage, other exchanges will quickly respond by enhancing their own markets in the same way. Such innovation and imitation is the very essence of the competition the Exchange Act is designed to promote.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the 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, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a closed meeting on Thursday, May 7, 2015 at 12 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the closed meeting.
Commissioner Gallagher, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matter of the closed meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Adjudicatory matters; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted, or postponed, please contact the Office of the Secretary at (202) 551-5400.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 342 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the Dodd-Frank Act) provided that certain agencies, including the Commission, establish an Office of Minority and Women Inclusion (OMWI).
In addition, section 342(c)(3)(A) requires the OMWI Director to establish standards and procedures for determining whether an agency contractor or subcontractor “has failed to make a good faith effort to include minorities and women” in its workforce. Section 342(c)(3)(B)(i) provides that if the OMWI Director
The Commission developed a Contract Standard for Contractor Workforce Inclusion (Contract Standard) to implement the requirements of section 342(c) of the Dodd-Frank Act. The Contract Standard, which will be included in the Commission's solicitations and resulting contracts for services with a dollar value of $100,000 or more, contains a “collection of information” within the meaning of the Paperwork Reduction Act. The Contract Standard requires that a Commission contractor provide documentation, upon request from the OMWI Director, to demonstrate that it has made good faith efforts to ensure the fair inclusion of minorities in its workforce and, as applicable, to demonstrate its covered subcontractors have made such good faith efforts. The documentation requested may include, but is not limited to: (1) The total number of employees in the contractor's workforce, and the number of employees by race, ethnicity, gender, and job title or EEO-1 job category (
The information collection would be mandatory. The Commission estimates that 170 contractors
The estimated 50 contractors that employ fewer than 50 employees are required under the regulations implementing EO 11246 to maintain records showing the race, ethnicity and gender of each employee. The Commission believes that these contractors also keep job title information during the normal course of business. However, contractors that have fewer than 50 employees may not have the written program prescribed by the EO 11246 regulations or similar plan that could be submitted as part of the documentation to demonstrate their good faith efforts to ensure the fair inclusion of minorities and women in their workforces. Accordingly, contractors with fewer than 50 employees may have to create a plan to ensure workforce inclusion of minorities and women.
In order to estimate the burden on contractors associated with creating a workforce inclusion plan, the Commission considered the burden estimates for developing the written programs required under the regulations implementing EO 11246.
The Contract Standard also requires contractors to maintain information about covered subcontractors' ownership status, workforce demographics, and workforce inclusion plans. Contractors would request this information from their covered subcontractors, who would have an obligation to keep workforce demographic data and maintain workforce inclusion plans because the substance of the Contract Standard would be included in their subcontracts. Based on data describing recent Commission subcontractor activity, the Commission believes that very few subcontractors will have subcontracts
With respect to the reporting burden, the Commission estimates that it would take all contractors on average approximately one hour to retrieve and submit to the OMWI Director the documentation specified in the Contract Standard. The Commission expects to request documentation from up to 100 contractors each year and therefore the Commission estimates the total annual reporting burden would be 100 hours.
The estimated annualized cost to contractors for the recordkeeping and reporting burden hours resulting from the information collection requirement under the Contract Standard is based on Bureau of Labor Statistics data in the publication “Employer Costs for Employee Compensation” (2014), which lists total compensation for management, professional, and related occupations as $55 per hour and administrative support as $25.
As for the reporting burden, the Commission estimates that 75 percent of the burden hours for retrieving and submitting documentation to the OMWI Director would be administrative support and 25 percent would be professional, management, and related occupations. The Commission estimates that the annual reporting cost related to compliance with the Contract Standard is $3250 (100 responses each year × $32.50 per response).
On February 13, 2015, the Commission published for public comment a notice of the proposed Contract Standard, which also included the notice required under the Paperwork Reduction Act and allowed the public 60 days to submit comments.
Written comments continue to be invited on: (a) Whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information 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.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Background documentation for this information collection may be viewed at the following Web site,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend the Phlx Pricing Schedule (“Pricing Schedule”) at Section VI pertaining to the Phlx Permit Fee and at Section VII pertaining to the Order Entry Port Fee, the Clearing Trade Interface (“CTI”) Port Fee, and the Active Specialized Quote Feed (“SQF”) Port Fee.
While the changes proposed herein are effective upon filing, the Exchange has designated the amendments become operative on May 1, 2015.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the Exchange's Pricing Schedule at Section VI pertaining to the Phlx Permit Fee and at Section VII pertaining to the Order Entry Port Fee, the CTI Port Fee, and the Active SQF Port Fee. The Exchange also proposes technical changes to the language of the Pricing Schedule. The proposed changes are discussed below.
The Exchange currently has a Permit Fee for Phlx members, which is $2,150 for Specialists
Phlx Permit Fees for all other member and member organizations are currently $4,000 in a given month, unless the member or member organization or member organizations under Common Ownership
The Exchange is seeking to recoup costs incurred from the membership administration function while continuing to encourage bringing options liquidity to the Exchange.
The Exchange currently has an Order Entry Port Fee that is $600 per month per mnemonic.
The Order Entry Port Fee is a connectivity fee related to routing orders to the Exchange via an external order entry port. Phlx members access the Exchange's network through order entry ports. A Phlx member may have more than one order entry port. Today, the Exchange assesses members an Order Entry Port Fee of $600 per month per mnemonic. The Exchange proposes to increase the Order Entry Port Fee to $650 per month per mnemonic. The current practice will continue whereby the Order Entry Port Fee will be waived for mnemonics that are used exclusively for Complex Orders
The Exchange currently has a CTI Port Fee that is $600 per port per month for each of the first 5 CTI ports, and $100 per port for each port thereafter. The Exchange proposes to modestly increase the CTI Port Fee from $600 to $650 and to continue to charge a smaller amount for the subsequent ports in order to encourage use of CTI ports on the Exchange.
CTI offers real-time clearing trade updates. A real-time clearing trade update is a message that is sent to a member after an execution has occurred and contains trade details. The message containing the trade details is also simultaneously sent to The Options Clearing Corporation (“OCC”). The trade messages are routed to a member's connection containing certain information. The administrative and market event messages include, but are not limited to: System event messages to communicate operational-related events; options directory messages to relay basic option symbol and contract information for options traded on the Exchange; complex strategy messages to relay information for those strategies traded on the Exchange; trading action messages to inform market participants when a specific option or strategy is halted or released for trading on the Exchange; and an indicator which distinguishes electronic and non-electronically delivered orders. This information will be available to members on a real-time basis.
The Exchange assesses port fees for similar ports, namely the Order Entry Ports, CTI Ports and Active SQF Ports,
SQF is an interface that enables Specialists, Streaming Quote Traders (“SQTs”)
Last year, as discussed below, the Exchange underwent a technology refresh (“refresh” or “technology refresh”), which is completed. During the technology refresh, Exchange members had to use old Active SQF Ports and new Active SQF Ports as these were being developed, tested, and implemented. Where the Exchange had been offering Active SQF Ports in sets of four to accommodate the connections necessary to access the match engine, as a result of the refresh (discussed below) firms could use fewer ports for a connection.
To help Exchange members through the refresh period, the Exchange last year filed an immediately effective proposal regarding Active SQF Port Fees (the “prior SQF filing”).
Currently, Section VII B. of the Pricing Schedule states that as of April 1, 2015 all Specialists and Market Makers are subject to the following tiered Active SQF Port Fee (“variable Active SQF Port Fee”):
At the time that the variable Active SQF Port Fees were put into current Section VII B. of the Pricing Schedule during the technology refresh, four ports were needed to connect to the matching engine; after the refresh, only one port is needed. As noted in the prior SQF filing, the technology refresh was instituted last year in order that the Exchange may provide an equal opportunity to Specialists and Market Makers to access SQF data at a lower cost. The goal was to deploy state-of-the-art hardware and software architecture for a more efficient and robust infrastructure that would support the growing needs of market participants. The refresh changed the previously-needed multi-port connection to the matching engine to only one port. The functionality did not change as a result of the concluded refresh. As the Exchange had anticipated,
In addition, the Exchange proposes some technical housekeeping changes. First, the Exchange proposes to delete a bullet point in note 26 to Section VII B. of the Pricing Schedule, which is applicable to the Active SQF Port Fee section; the bullet point is not necessary. Second, the Exchange proposes to fix a typographical error by adding an “l” in the word “wil” in note 26.
The Exchange proposes to amend the Phlx Permit Fee, Order Entry Port Fee and CTI Port Fee. This proposal reflects a modest price increase to members and member organizations while allowing the Exchange to recoup a certain portion of costs associated with permits and ports, namely the Order Entry Port and the CTI Port. The Exchange proposes to also delete the variable Active SQF Port Fee that is applicable to Specialists and Market Makers as of April 1, 2015, and the refresh accommodation language that is no longer necessary. The Exchange believes that the proposed changes are in conformity with the Act.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange's proposal to amend Phlx Permit Fees is reasonable because the Exchange is seeking to recoup costs that are incurred by the Exchange.
The Exchange believes it is reasonable to assess different market participants different Permit Fees because each market participant has a different business model and, as a result, pays various other fees to the Exchange to maintain his or her business. Certain market participants such as Floor Brokers, Specialists and Market Makers pay other types of fees. For example, a Floor Broker requires space on the Exchange's trading floor, and infrastructure to support floor trading.
The Exchange's proposal to amend Phlx Permit Fees is equitable and not unfairly discriminatory for the reasons which follow. The Exchange believes that continuing to assess Floor Brokers, Specialists and Market Participants effectively the same proposed rate of $2,300 (rather than $2,150) for a Permit Fee recognizes the overall total fee structure of these market participants on Phlx. As mentioned herein, Floor Brokers, Specialists and Market Makers incur fees which are not borne by other market participants.
The Exchange believes it is equitable and not unfairly discriminatory to assess effectively the same proposed Permit Fee of $2,300 (rather than $2,150) to Other Market Participants, equivalent to the fee assessed on Floor Brokers, Specialists and Market Makers, in any given month in which the Other Market Participants achieve the requisite volume because of the liquidity and revenue they bring to Phlx. The opportunity to lower Permit Fees affords Other Market Participants the opportunity to lower their fees by offering a means to benefit the Exchange by bringing liquidity to the marketplace.
The Exchange's proposal to amend CTI Port Fees and Order Entry Port Fees is reasonable because the Exchange is seeking to recoup costs that are incurred by the Exchange.
The Exchange believes that continuing to assess a CTI Port Fee on the Exchange at a proposed $650 (rather that $600) per port per month for each of the first 5 CTI ports, and $100 per port for each port thereafter, is reasonable because it would allow the Exchange to recoup costs associated with offering the CTI ports. The Exchange notes that until recently it had a Real-Time Risk Management Fee,
As with other port fees in subsection Section VII B. of the Pricing Schedule, the CTI Port Fees reflect a portion of the costs that the Exchange bears with respect to offering and maintaining the CTI ports. The CTI Port Fees are reasonable because they enable the Exchange to offset, in part, its connectivity costs associated with making such ports available, including costs based on gateway software and hardware enhancements and resources dedicated to gateway development, quality assurance, and support. The proposal to modestly increase the fees is reasonable to continue to recoup costs while encouraging members to connect to the Exchange.
The Exchange believes that continuing to assess an Order Entry Port Fee on the Exchange at a proposed $650 per port per mnemonic is, similarly to the CTI Port Fee, reasonable because it would allow the Exchange to recoup costs associated with offering the Order Entry Ports. As noted, until recently the Exchange had a Real-Time Risk Management Fee that was deleted in favor of using Port Fees, which the Exchange has found is an effective way to recoup costs. This proposal reflects a modest price increase while allowing the Exchange to recoup a certain portion of costs associated with ports, namely the Order Entry Port and CTI Port.
The Exchange believes that the CTI Port Fees for the CTI ports at a proposed $650 per port per month for each of the first 5 CTI ports, and $100 per port for each port thereafter, is equitable and not unfairly discriminatory because the Exchange will assess the same fees for all CTI ports to all members.
The Exchange believes that the Order Entry Fees for the Order Entry Ports at a proposed $650 per month per mnemonic is similarly equitable and not unfairly discriminatory because the Exchange will assess the same fees for all Order Entry Ports to all members.
As with other port fees in Section VII B. of the Pricing Schedule, the CTI Port Fee and the Order Entry Port Fee reflect a portion of the costs that the Exchange bears with respect to offering and maintaining the ports; such fees allow the Exchange to keep pace with increasing technology costs. These fees enable the Exchange to offset, in part, its connectivity costs associated with making such ports available, including costs based on gateway software and hardware enhancements.
The Exchange believes that it is reasonable to delete the variable Active SQF Port Fees. The variable Active SQF Port Fees were, as discussed, put into current Section VII B. of the Pricing Schedule during the technology refresh of the Phlx trading system, which, among other things, allowed the use of one port to connect to the match engine as compared to a set of four ports. The functionality did not change as a result of the refresh. The Exchange properly anticipated that Specialists and Market Makers would benefit from the efficiency of the service that will be available to them as a result of the refresh.
Currently, as of April 1, 2015, Specialists and Market Makers are subject to a variable Active SQF Port Fee based on the number of active ports per month as follows: $2,500 for 1 port, $4,000 for 2-6 ports and $15,000 for 7 or more ports. The Exchange believes that it is reasonable to delete the variable Active SQF Port Fee applicable to Specialists and Market Makers, and replace it with the proposed $1,250 per port per month Active SQF Port Fee applicable to all.
The Exchange believes it is equitable and not unfairly discriminatory to delete the variable Active SQF Port Fee, and replace it with the proposed Active SQF Port Fee because all Specialists and Market Makers would be subject to the same Active SQF Port Fee.
Because of the technology refresh, the Exchange added refresh accommodation language into Section VII B. of the Pricing Schedule to avoid double charging and to enable firms to get through the refresh transition period.
The Exchange believes that deletion of the refresh accommodation language is equitable and not unfairly discriminatory because with the deleted refresh accommodation language, the Exchange will assess all current users of Active SQF Ports a fee based on the same criteria.
Currently, per note 26 to Section VII of the Pricing Schedule, the Active SQF Port Fee is capped at $42,000, but includes language that the fee is capped at $41,000 per month through March 31, 2015. The Exchange proposes to delete the unnecessary language referring to March 31, 2015. The Exchange believes that this is reasonable because the $42,000 Active SQF Port Fee Cap is currently in effect and the Exchange is just taking the unneeded language out the Active SQF Port Fee Cap provision.
The Exchange believes that deleting the unnecessary language referring to March 31, 2015 is equitable and not unfairly discriminatory because the Exchange is simply cleaning up the language and will apply the Active SQF Port Fee Cap to all Specialists and Market Makers uniformly.
Finally, the Exchange proposes two technical housekeeping changes. First, the Exchange proposes to delete a bullet point in note 26 to Section VII of the Pricing Schedule, which is applicable to the Active SQF Port Fee section; the bullet point is not necessary. Second, the Exchange proposes to fix a typographical error by adding an “l” in the word “wil” in note 26; the word is misspelled. The Exchange believes that the changes are reasonable because they will delete unneeded language and clarify it.
The Exchange believes that the technical housekeeping changes are equitable and not unfairly discriminatory because the Exchange will apply them equally per the Pricing Schedule.
The Exchange does not believe that the proposed rule change will impose an undue burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes that offering Specialists and Market Makers the opportunity to utilize certain Active SQF ports, during this transition with XL, at no cost ensured that the transition was done smoothly. Specialists and Market Makers continued to be assessed the Active SQF Port Fees for current ports at a rate that is representative of their typical usage. The Exchange allowed these market participants to utilize new ports at no cost without limit. As discussed, the Exchange used certain refresh accommodation language to help the refresh go forward. The Exchange believes that deletion of these unneeded provisions will not impose an undue burden on competition. Similarly, the modest proposed increases in fees and establishing that all are liable for the proposed Active SQF Port Fee will not impose an undue burden on competition. Moreover, deleting the unnecessary language that the Active SQF Port Fee is capped at $41,000 per month through March 31, 2015 will not impose an undue burden on competition because the Active SQF Port Fee is already capped at $42,000 per month and the Exchange is merely taking out the unneeded language; moreover, the Active SQF Port Fee Cap would be applied uniformly to all market participants. Finally, the CTI Port Fee and the Order Entry Port Fee reflect a portion of the costs that the Exchange bears with respect to offering and maintaining the Order Entry Ports. Such fees allow the Exchange to keep pace with increasing technology costs, and will not impose an undue burden on competition because the fees would be applied uniformly to all market participants.
The Exchange operates in a highly competitive market, comprised of twelve options exchanges, in which market participants can easily and readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or rebates to be inadequate. Accordingly, the above-described fees that are assessed by the Exchange (as also the rebates paid by the Exchange) are influenced by these robust market forces and therefore must remain competitive with fees charged and rebates paid by other venues and therefore must continue to be reasonable and equitably allocated to those members that opt to direct orders to the Exchange rather than competing venues.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to modify its rules to provide for the use of ports that provide connectivity to the Exchange's trading systems solely for the cancellation or “takedown” of quotes. In addition, the proposed rule change reflects changes to the NYSE Amex Options Fee Schedule (“Fee Schedule”) related to this quote takedown service. 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 modify its rules to provide for the use of ports that provide connectivity to the Exchange's trading systems solely for the cancellation or “takedown” of quotes. In addition, the proposed rule change reflects changes to the Fee Schedule related to this quote takedown service.
The Exchange currently makes available to ATP Holders order/quote entry ports for connectivity to Exchange trading systems (each an “order/quote entry port”). ATP Holders may be authorized to utilize order/quote entry ports for option activity on NYSE Amex Options and incur monthly Port Fees. Currently, the Exchange charges $450 per month, per order/quote entry port for the first 40 ports and $150 per month, per order/quote entry port for any additional ports in excess of 40 (
While order/quote entry ports may be used by ATP Holders registered as Market Makers to both enter and cancel or remove quotes, Market Makers may dedicate certain ports solely to the removal of quotes,
The Exchange is proposing to modify its rules to provide ports specifically dedicated to quote cancellation or “quote takedown” (each a “Quote Takedown Port”) as a service distinct from order/quote entry ports, which may be used both for entering quotes or orders and removing or cancelling quotes. The proposed Quote Takedown Ports would be designed to assist ATP Holders registered as Marker Makers in the management of, and risk control over, their quotes, particularly if they have a large number of options issues in their appointment. For example, if a Market Maker detects market indications that may influence the direction or bias of its quotes, the Market Maker may attempt to cancel all of its quotes in a number of classes, thereby avoiding unintended executions, while it evaluates the direction of the market. Thus, to reduce uncertainty, the Marker Maker may submit to the Exchange a “quote takedown” message through a dedicated Quote Takedown Port for the prompt removal of quotes. By entering a quote takedown message through a dedicated Quote Takedown Port, a Market Maker may reduce its exposure to risk because of heavy quote traffic-induced latency.
The Exchange proposes to modify the Fee Schedule to provide that certain Quote Takedown Ports would not be subject to Port Fees. Specifically, for each order/quote entry port utilized, the Exchange proposes to allow Market Makers to utilize, free of charge, one Quote Takedown Port. Because Quote Takedown Ports would not be available for quote or order submission, the Exchange is proposing to allow one Quote Takedown Port free of charge for every order/quote entry port that a Market Maker utilizes. In other words, provided a Market Maker does not exceed a 1-to-1 ratio of order/quote entry port-to-Quote Takedown Port, the Quote Takedown Port(s) would be free (the “1-to-1 ratio”). However, a Market Maker that exceeds the 1-to-1 ratio would be charged for additional Quote Takedown Ports. For example, a Market Maker with thirty-five (35) order/quote entry ports and forty-two (42) Quote Takedown Ports would have forty-two (42) ports subject to charge because the Exchange would charge for the 35 order/quote entry ports and the seven Quote Takedown Ports that exceed the 1-1 ratio (42-35=7). The Exchange would not charge for the first 35 Quote Takedown Ports because those ports would meet the 1-to-1 ratio.
Similarly, the Exchange would not include those Quote Takedown Ports that meet the 1-to-1 ratio to determine a Market Maker's total number of ports for purposes of calculating Port Fees. As noted above, the Exchange charges $450 per month, per port for the first forty ports, and $150 per month for each additional port in excess of forty. Thus, using the example above, the Exchange would not count the thirty-five (35) Quote Takedown Ports (which align with the 35 order/quote entry ports) against the Market Maker's total number of ports utilized, but would count seven (7) additional Quote Takedown Ports. Thus, because the Market Maker would have forty-two (42) chargeable ports, the Market Maker's total monthly port fee would be $18,300 (
The Exchange notes that options Market Makers typically require more than forty (40) order/quote entry ports, in part to satisfy their obligation to maintain continuous two-sided markets in their appointed classes. Thus, the Exchange believes that the proposed change would enhance the ability of Market Maker firms to manage quotes, quote traffic, and their quoting obligations by eliminating fees for certain Quote Takedown Ports, which function as risk management tools rather than trade opportunity tools. The Exchange believes this proposed change would permit the Exchange to remain competitive with other exchanges with respect to fees charged for ports.
To reflect the proposed change, the Exchange proposes to add to the Fee Schedule, in Section V. (Technology & System Access Fees), subsection A. (Port Fees), a new category for “Quote Takedown Ports,” together with the following language: “For each order/quote entry port utilized, NYSE Amex Options Market Makers may utilize, free of charge, one port dedicated to quote cancellation or `quote takedown,' which port(s) will not be included in the count of order/quote entry ports utilized. Any quote takedown port utilized by a NYSE Amex Options Market Maker that is in excess of the number of order/quote entry ports utilized will be counted and charged as an order/quote entry port.” The Exchange also proposes to make clear that the Quote Takedown Ports of Affiliates, like order/quote entry ports, are aggregated.
The Exchange believes the proposal to offer Quote Takedown Ports would ensure a fair and reasonable use of resources by eliminating charges to Market Makers for certain Quote Takedown Ports (described above), which are used to control and manage risk exposure to the benefit of all marker participants.
The proposed rule change is consistent with Section 6(b)
The Exchange believes that the proposed rule change would promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market because offering ATP Holders registered as Market Makers designated Quote Takedown Ports would enhance Market Makers' ability to manage quotes, quote traffic, and their quoting obligations, which would, in turn, improve their risk controls to the benefit of all participants. The Exchange believes that the Quote Takedown Ports would foster cooperation and coordination with persons engaged in facilitating transactions in securities because Quote Takedown Ports minimize latency for quote takedown, which would enable the fair and reasonable use of Market Makers' resources. Because Quote Takedown Ports, as the name suggests, are only available for quote takedowns and not order or quote entry (or order cancellation), the Quote Takedown Ports are not designed to permit unfair discrimination but rather are designed to enable Market Makers, that are subject to heightened obligations that other market participants are not, to meet their quoting obligations, which, in turn, benefits all market participants.
The Exchange also believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes the proposed change is reasonable, equitable and not unfairly discriminatory for the following reasons. First, all ATP Holders would be subject to the same schedule of Port Fees and ATP Holders would continue to be able to request, and pay for only those ports that they require, with no impact to other ATP Holders. As noted above, because Quote Takedown Ports are uniquely designed to address quotes and only Market Makers are obliged to quote, the proposed fee structure for Quote Takedown Ports would not disadvantage non-Market Makers trading on the Exchange. Second, the proposal to enable Market Makers to utilize certain Quote Takedown Ports free of charge would result in the fair and reasonable use of resources by Market Makers, and would encourage trading on the Exchange, thus improving liquidity and price discovery, to the benefit of all market participants. In addition, providing Market Makers a free Quote Takedown Port for each order/quote entry port may increase use of Quote Takedown Ports as a cost effective means of improving risk controls. The increased use of Quote Takedown Ports by Market Makers would improve Market Makers' ability to manage quotes, quote traffic, and their quoting obligations, which would, in turn, improve their risk controls to the benefit of all participants.
The Exchange likewise believes that not including those Quote Takedown Ports that meet the 1-to-1 ratio (order/quote entry ports-to-Quote Takedown Ports) in the count against a Market Maker's total number of ports utilized for purposes of calculating the monthly Port Fees is reasonable, equitable and not unfairly discriminatory. The Exchange notes that options Market Makers, require more than 40 ports in order to satisfy their responsibilities and obligations to investors, which stem from the significant number of series that exist for any particular option class
Finally, the Exchange believes that the proposed change is reasonable, because the Quote Takedown Ports are used for purposes distinct from order/quote entry ports, for which the Exchange charges.
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 Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
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)
The Exchange proposes to modify its rules to provide for the use of ports that provide connectivity to the Exchange's trading systems solely for the cancellation or “takedown” of quotes. In addition, the proposed rule change reflects changes to the NYSE Arca Options Fee Schedule (“Fee Schedule”) related to this quote takedown service. 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 modify its rules to provide for the use of ports that provide connectivity to the Exchange's trading systems solely for the cancellation or “takedown” of quotes. In addition, the proposed rule change reflects changes to the Fee Schedule related to this quote takedown service.
The Exchange currently makes available to OTP Holders and OTP Firms (“OTPs”) order/quote entry ports for connectivity to Exchange trading systems (each an “order/quote entry port”). OTPs may be authorized to utilize order/quote entry ports for option activity on NYSE Arca Options and incur monthly Port Fees. Currently, the Exchange charges $450 per month, per order/quote entry port for the first 40 ports and $150 per month, per order/quote entry port for any additional ports in excess of 40 (
The Exchange is proposing to modify its rules to provide ports specifically dedicated to quote cancellation or “quote takedown” (each a “Quote Takedown Port”) as a service distinct from order/quote entry ports, which may be used both for entering quotes or orders and removing or cancelling quotes. The proposed Quote Takedown Ports would be designed to assist OTPs registered as Marker Makers in the management of, and risk control over, their quotes, particularly if they have a large number of options issues in their appointment. For example, if a Market Maker detects market indications that may influence the direction or bias of its quotes, the Market Maker may attempt to cancel all of its quotes in a number of classes, thereby avoiding unintended executions, while it evaluates the direction of the market. Thus, to reduce uncertainty, the Marker Maker may submit to the Exchange a “quote takedown” message through a dedicated Quote Takedown Port for the prompt removal of quotes. By entering a quote takedown message through a dedicated Quote Takedown Port, a Market Maker may reduce its exposure to risk because of heavy quote traffic-induced latency.
The Exchange proposes to modify the Fee Schedule to provide that certain Quote Takedown Ports would not be subject to Port Fees. Specifically, for each order/quote entry port utilized, the Exchange proposes to allow Market Makers to utilize, free of charge, one Quote Takedown Port. Because Quote Takedown Ports would not be available for quote or order submission, the Exchange is proposing to allow one Quote Takedown Port free of charge for every order/quote entry port that a Market Maker utilizes. In other words, provided a Market Maker does not exceed a 1-to-1 ratio of order/quote entry port-to-Quote Takedown Port, the Quote Takedown Port(s) would be free (the “1-to-1 ratio”). However, a Market Maker that exceeds the 1-to-1 ratio would be charged for additional Quote Takedown Ports. For example, a Market Maker with thirty-five (35) order/quote entry ports and forty-two (42) Quote Takedown Ports would have forty-two (42) ports subject to charge because the Exchange would charge for the 35 order/quote entry ports and the seven Quote Takedown Ports that exceed the 1-1 ratio (42 − 35 = 7). The Exchange would not charge for the first 35 Quote Takedown Ports because those ports would meet the 1-to-1 ratio.
Similarly, the Exchange would not include those Quote Takedown Ports that meet the 1-to-1 ratio to determine a Market Maker's total number of ports for purposes of calculating Port Fees. As noted above, the Exchange charges $450 per month, per port for the first forty ports, and $150 per month for each additional port in excess of forty. Thus, using the example above, the Exchange would not count the thirty-five (35) Quote Takedown Ports (which align with the 35 order/quote entry ports) against the Market Maker's total number of ports utilized, but would count seven (7) additional Quote Takedown Ports. Thus, because the Market Maker would have forty-two (42) chargeable ports, the Market Maker's total monthly port fee would be $18,300 (
The Exchange notes that options Market Makers typically require more than forty (40) order/quote entry ports, in part to satisfy their obligation to maintain continuous two-sided markets in their appointed classes. Thus, the Exchange believes that the proposed change would enhance the ability of Market Maker firms to manage quotes, quote traffic, and their quoting obligations by eliminating fees for certain Quote Takedown Ports, which function as risk management tools rather than trade opportunity tools. The Exchange believes this proposed change would permit the Exchange to remain competitive with other exchanges with respect to fees charged for ports.
To reflect the proposed change, the Exchange proposes to add to the Fee Schedule, in the table regarding Port Fees under the section “NYSE Arca OPTIONS: FLOOR and EQUIPMENT and CO-LOCATION FEES,” a new category for “Quote Takedown Ports,” together with the following language: “For each order/quote entry port utilized, NYSE Arca Market Makers may utilize, free of charge, one port dedicated to quote cancellation or `quote takedown,' which port(s) will not be included in the count of order/quote entry ports utilized. Any quote takedown port utilized by a NYSE Arca Market Maker that is in excess of the number of order/quote entry ports utilized will be counted and charged as an order/quote entry port.” In addition, to add clarity regarding Port Fees, the Exchange proposes to move the existing text regarding how the Exchange will aggregate the order/quote entry ports of a Marker Maker's affiliate to appear immediately below the Quote Takedown Ports and to specify that the Exchange will similarly aggregate the Quote Takedown Ports of affiliates.
The Exchange believes the proposal to offer Quote Takedown Ports would ensure a fair and reasonable use of resources by eliminating charges to Market Makers for certain Quote Takedown Ports (described above), which are used to control and manage risk exposure to the benefit of all marker participants.
The proposed rule change is consistent with Section 6(b)
The Exchange believes that the proposed rule change would promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market because offering OTPs registered as Market Makers designated Quote Takedown Ports would enhance Market Makers' ability to manage quotes, quote traffic, and their quoting obligations, which would, in turn, improve their risk controls to the benefit of all participants. The Exchange believes that the Quote Takedown Ports would foster
The Exchange also believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes the proposed change is reasonable, equitable and not unfairly discriminatory for the following reasons. First, all OTPs would be subject to the same schedule of Port Fees and OTPs would continue to be able to request, and pay for only those ports that they require, with no impact to other OTPs. As noted above, because Quote Takedown Ports are uniquely designed to address quotes and only Market Makers are obliged to quote, the proposed fee structure for Quote Takedown Ports would not disadvantage non-Market Makers trading on the Exchange. Second, the proposal to enable Market Makers to utilize certain Quote Takedown Ports free of charge would result in the fair and reasonable use of resources by Market Makers and would encourage trading on the Exchange, thus improving liquidity and price discovery, to the benefit of all market participants. In addition, providing Market Makers a free Quote Takedown Port for each order/quote entry port may increase use of Quote Takedown Ports as a cost effective means of improving risk controls. The increased use of Quote Takedown Ports by Market Makers would improve Market Makers' ability to manage quotes, quote traffic, and their quoting obligations, which would, in turn, improve their risk controls to the benefit of all participants.
The Exchange likewise believes that not including those Quote Takedown Ports that meet the 1-to-1 ratio (order/quote entry ports-to-Quote Takedown Ports) in the count against a Market Maker's total number of ports utilized for purposes of calculating the monthly Port Fees is reasonable, equitable and not unfairly discriminatory. The Exchange notes that options Market Makers, require more than 40 ports in order to satisfy their responsibilities and obligations to investors, which stem from the significant number of series that exist for any particular option class
Finally, the Exchange believes that the proposed change is reasonable, because the Quote Takedown Ports are used for purposes distinct from order/quote entry ports, for which the Exchange charges.
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 Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
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)
The proposed rule change consists of a change to DTC's Fee Schedule (“Fee Schedule”) with respect to the DTC Custody Service.
In its filing with the Commission, DTC 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. DTC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The proposed rule change would revise the Fee Schedule with respect to a fee charged to Participants that use the Custody Service, as described below.
The Custody Service provides safe keeping and physical transaction processing for securities certificates and other items (collectively, “certificates”), including certificates for securities and other assets not eligible for deposit in DTC's core depository services.
Pursuant to the proposed rule change, in order to better align fees with the cost of offering the Custody Service, DTC would revise the Fee Schedule to replace the Current Fee with a reduced fee to be named the “Custody Certificate Position” Fee (“New Fee”). The New Fee would be a monthly fee calculated in accordance with a “tiered” fee structure taking into account the quantity of certificates held in the Custody Service for the Participant on a per account basis as follows:
For example, a Participant with 200,000 certificates held in the Custody Service as of a month-end for one of its accounts would be charged New Fees for the month as follows for that account:
Since the New Fee would be charged on a per account basis, a Participant with multiple accounts would be charged a New Fee amount for each account, as applicable. The amount would be calculated based upon the quantity of certificates held for that account only (
The proposed fee change would take effect on May 1, 2015.
The proposed rule change would better align DTC's fees with its costs of providing safe keeping for certificates in the Custody Service, and the proposed fee would apply equally in accordance with Participants' use of the Custody Service. Therefore, DTC believes the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to DTC, in particular section 17A(b)(3)(D)
DTC does not believe that the proposed rule change would have any impact, or impose any burden, on competition.
Written comments relating to the proposed rule change have not yet been solicited or received. DTC will notify the Commission of any written comments received by DTC.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A)
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.
U.S. Small Business Administration.
Notice.
The U.S. Small Business Administration (SBA) announces the “America's Seed Fund” Logo Design Competition, pursuant to the America Competes Act, to encourage artists and designers to create a thoughtful and imaginative visual representation of the government's largest innovation effort focused on research-driven, innovative and cutting-edge small businesses through the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Programs.
The submission period for entries begins 12:00 p.m. EDT, May 4, 2015 or when this notice is published if a later date and ends May 29, 2015 at 11:59 p.m. EDT. The winning contestant will be announced and the winning design will be unveiled during a White House ceremony on June 15, 2015. The winning contestant will be notified in advance of the public announcement.
Nagesh Rao, Chief Technologist, Office of Investment and Innovation, U.S. Small Business Administration, 409 Third Street SW., 6th Floor, Washington, DC 20416, (202) 205-7576,
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(a) Must register to participate in the competition under the link designated for that purpose by SBA on
(b) Must comply with all the requirements under this notice and the America Competes Act of 2010 (Pub. L. 111-358);
(c) Must be a citizen or permanent resident of the United States before the submission period ends;
(d) May not be a Federal employee acting within the scope of your employment; and,
(e) May not be an entity with an outstanding, unresolved financial obligation to, or that is currently suspended or debarred by, the Federal government.
If you are under 18 years of age, you must have the permission of a parent or legal guardian to participate. If you are a Federal grantee, you may not use Federal funds to develop applications for this competition unless such use is consistent with the purpose of your grant award. If you are a Federal contractor, you may not use Federal funds from a contract to develop or fund efforts in support of applications for this competition. You may use Federal facilities or consult with Federal employees during the competition if the facilities and employees are made available to all contestants participating in the competition on an equitable basis.
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Things to keep in mind as you design your “America's Seed Fund” Logo:
(a) Translating the common programmatic elements of the SBIR and STTR programs—to support scientific excellence and technological innovation through the investment of Federal research funds in critical American priorities to build a strong national economy . . . one small business at a time. (For more information about the SBIR and STTR Programs, visit the Web site at
(b) Reflecting the importance of the SBIR/STTR Programs in an insightful and ultimately innovative manner; and,
(c) Evoking through imagery thoughts related to words such as—Innovation, Inventions, High-Tech, Cutting Edge, Technology, Startups, Seed Money, STEM driven, Angel Funding, Seeding Ideas, Business Plans, Forward-Looking, Venture Capital, Widely Applicable, High-Growth Entrepreneurship, National Competitiveness, and Next Generation Solutions.
When uploading your “America's Seed Fund” Logo design, in the “Submission Text” field please also include a brief description about your logo entry and thought process behind the design—how it relates to the SBIR/STTR Programs as “America's Seed Fund”.
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Judges will use the following criteria to judge the submitted designs:
(a) Design relates to the SBIR/STTR Programs as “America's Seed Fund”. The subjects and ideas of small business, innovation, technological advancement, commercialization, and research and development need to be conveyed in the design of the logo. This may be done through a realistic or abstract design.
(b) Creativity and originality. Is the visual quality of the design at once informative and representative of imagery connected to the SBIR/STTR Programs?
(c) Design can be easily replicated. Can this design be replicated successfully, without excessive cost, for many media formats?
The judging panel will evaluate the submissions and select up to ten logos to recommend to the SBA Administrator, who will choose the final winning design from all submissions, including the up to ten logos recommended to the SBA Administrator by the judging panel. All judging will take place between approximately May 19, 2015, and approximately May 29, 2015. SBA will publicly announce the winner and unveil the winning logo on June 15, 2015. For questions or further information, please see the contact information listed above.
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(a) By submitting a design to this competition, you represent and warrant that you are the sole author and owner of the submitted design. Designs must be your original work, and must not violate or infringe the rights of other parties, including but not limited to privacy, publicity, or intellectual property rights, or material that constitutes copyright or license infringement. Your design may not contain any material that is inappropriate, indecent, obscene, hateful, defamatory, or in any way disparaging. Your design cannot have been submitted previously in another promotion or contest of any kind.
(b) You understand and agree that if your entry is selected as the winning design, it may be modified or altered by SBA, in its sole discretion, as deemed appropriate or necessary to execute, produce, or distribute the winning design in its final logo format.
(c) The winning contestant will, in consideration of the prize to be awarded, grant to SBA an irrevocable, royalty-free, exclusive worldwide license to reproduce, distribute, copy, display, create derivative works, and publicly post, link to, and share, the winning design or parts thereof, for the purpose of the design competition and for any official SBA, SBIR Program and/or STTR Program purpose.
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(b) By participating in this competition, you agree to indemnify the Federal government against third party claims for damages arising from or related to competition activities.
(c) By registering and entering a submission, each contestant further represents and warrants that it possesses sufficient liability insurance or financial resources to cover claims by a third party for death, bodily injury, or property damage or loss resulting from any activity it carries out in connection with its participation in this competition, or claims by the Federal Government for damage or loss to Government property resulting from such an activity. Challenge winners should be prepared to demonstrate proof of insurance or financial responsibility in the event SBA deems it necessary.
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Award Approving Official: Javier Saade, Associate Administrator, Office of Investment and Innovation, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416.
Pub. L. 111-358 (2011).
Small Business Administration.
30-Day notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35), which requires agencies to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before June 4, 2015.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205-7030
Small Business Administration Form 700 provides a record of interviews conducted by SBA personnel with small business owners, homeowners and renters (disaster victims) who seek financial assistance to help in the recovery from physical or economic disasters. The basic information collected helps the Agency to make preliminary eligibility assessment.
Comments may be submitted on (a) whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
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Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
DATE(S): The Department will accept comments from the public up to July 6, 2015.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Megan Huber, Bureau of Educational and Cultural Affairs; U.S. Department of State; SA-5, 2200 C Street NW., Washington, DC 20522, who may be reached on 202-632-9487 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The Exchange Alumni Virtual Program provides a platform for former participants of U.S. government-sponsored exchange programs to extend and multiply the impacts of their exchanges by virtually engaging with foreign alumni and students. The program supports critical foreign policy goals, such as enhancing English learning and the promotion of American culture and values abroad, particularly in countries where views of American culture may not always be positive. The program also provides American alumni with an opportunity to develop their foreign language skills in critical languages or other competencies gained on their exchange programs, while continuing to deepen their own cultural awareness and global skills.
The information is sought pursuant to the Mutual Educational and Cultural Exchange Act of 1961, as amended (also known as the Fulbright-Hays Act) (22 U.S.C. 2451
Respondents to this form are U.S. government-sponsored exchange program alumni. Alumni Affairs collects data from program applicants in order to determine eligibility and to choose the best candidates for the program.
Information will be collected electronically, via the International Exchange Alumni Web site,
Based upon a review of the Administrative Record assembled in this matter pursuant to Section 219(a)(4)(C) and (b) of the Immigration and Nationality Act, as amended (8 U.S.C. 1189(a)(4)(C), (b)) (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, the Secretary of State concludes that the circumstances that were the basis for the 2009 decision to maintain the designation of the aforementioned organization as a Foreign Terrorist Organization have not changed in such a manner as to warrant revocation of the designation and that the national security of the United States does not warrant a revocation of the designation.
Therefore, the Secretary of State hereby determines that the designation of the aforementioned organization as a Foreign Terrorist Organization, pursuant to Section 219 of the INA (8 U.S.C. 1189), shall be maintained.
This determination shall be published in the
The TVA Board of Directors will hold a public meeting on May 7, 2015, at the Von Braun Center's East Hall 2, 700 Monroe Street, Huntsville, Alabama. The public may comment on any agenda item or subject at a public listening session which begins at 8:30 a.m. (CT). Following the end of the public listening session, the meeting will be called to order to consider the agenda items listed below. On-site registration will be available until 15 minutes before the public listening session begins at 8:30 a.m. (CT). Preregistered speakers will address the Board first. TVA management will answer questions from the news media following the Board meeting.
Status: Open.
For more information: Please call TVA Media Relations at (865) 632-6000, Knoxville, Tennessee. People who plan to attend the meeting and have special needs should call (865) 632-6000. Anyone who wishes to comment on any of the agenda in writing may send their comments to: TVA Board of Directors, Board Agenda Comments, 400 West Summit Hill Drive, Knoxville, Tennessee 37902.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 21 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective June 4, 2015. Comments must be received on or before June 4, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. [Docket No. FMCSA-2000-7918; FMCSA-2002-13411; FMCSA-2003-14504; FMCSA-2006-24015; FMCSA-2006-26066; FMCSA-2008-0398; FMCSA-2011-0024; FMCSA-2012-0338], using any of the following methods:
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Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 21 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 21 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
The exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retains a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 21 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (65 FR 66286; 66 FR 13825; 67 FR 76439; 68 FR 10298; 68 FR 13360; 68 FR 19598; 68 FR 33570; 70 FR 14747; 70 FR 25878; 71 FR 14566; 71 FR 30227; 71 FR 63379; 72 FR 1050; 72 FR 27624; 72 FR 28093; 74 FR 980; 74 FR 7097; 74 FR 8302; 74 FR 15584; 74 FR 19270; 74 FR 20253; 76 FR 4414; 76 FR 11215; 76 FR 15361; 76 FR 17481; 76 FR 25762; 76 FR 28125; 76 FR 29026; 77 FR 74731; 78 FR 798; 78 FR 12811; 78 FR 12822; 78 FR 16761; 78 FR 18667; 78 FR 24300; 78 FR 30954). Each of these 21 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA-2000-7918; FMCSA-2002-13411; FMCSA-2003-14504; FMCSA-2006-24015; FMCSA-2006-26066; FMCSA-2008-0398; FMCSA-2011-0024; FMCSA-2012-0338), indicate the specific section of this document to which each comment applies, and provide a reason for each
To submit your comment online, got to
To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 10 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective June 12, 2015. Comments must be received on or before June 4, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. [Docket No. FMCSA-2008-0106; FMCSA-2009-0086], using any of the following methods:
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Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 10 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 10 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
The exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retains a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 10 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (74 FR 19267; 74 FR 28094; 76 FR 32016; 78 FR 32703). Each of these 10 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA-2008-0106; FMCSA-2009-0086), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to
KEY DATES:
This NOFA is issued in connection with the fiscal year (FY) 2015 funding round of the Bank Enterprise Award Program (BEA Program). The BEA Program is administered by the U.S. Department of the Treasury's Community Development Financial Institutions Fund (CDFI Fund). Through the BEA Program, the CDFI Fund awards formula-based grants to depository institutions that are insured by the Federal Deposit Insurance Corporation (FDIC) for increasing their levels of loans, investments, service activities, and technical assistance within Distressed Communities, and financial assistance to Community Development Financial Institutions (CDFIs) through equity investments, equity-like loans, grants, stock purchases, loans, deposits, and other forms of financial and technical assistance, during a specified period.
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The BEA Program complements the community development activities of banks and thrifts (collectively referred to as banks for purposes of this Notice) by providing financial incentives to expand investments in CDFIs and to increase lending, investment, and service activities within Distressed Communities. Providing monetary awards to banks for increasing their community development activities leverages the CDFI Fund's dollars and puts more capital to work in Distressed Communities throughout the nation.
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1. Estimated award amounts for Applicants that are CDFIs will be equal to three times the award percentages for activities undertaken by Applicants that are not CDFIs;
2. Priority Factors based on Applicant's asset size, as described in Section V.D. of this NOFA (“Application Review Information: Priority Factors”); and
3. Priority of awards: The CDFI Fund will rank Applicants in each category of Qualified Activity according to the priorities described in Section V.F.4 of this NOFA (“Application Review Information: Award Percentages, Award Amounts, Application Review Process, Selection Process, Programmatic Financial Risk, and Application Rejection: Selection Process”).
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Distressed Community Financing Activities (12 CFR 1806.103(u)) include Affordable Housing Loans, Affordable Housing Development Loans and related Project Investments; Education Loans; Commercial Real Estate Loans and related Project Investments; Home Improvement Loans; Small Business Loans and related Project Investments, and Small Dollar Consumer Loans. Service Activities (12 CFR 1806.103(oo)) include Deposit Liabilities, Financial Services, Community Services, Targeted Financial Services, and Targeted Retail Savings/Investment Products. When calculating BEA Program Award amounts, the CDFI Fund will only consider the amount of a Qualified Activity that has been fully disbursed or, in the case of a partially disbursed Qualified Activity, will only consider the amount that an Applicant reasonably expects to disburse for a Qualified Activity within 12 months from the end of the Assessment Period. Subject to the requirements outlined in Section VII. B.1. of this NOFA, in the case of Commercial Real Estate Loans and related Project Investments, the total principal amount of the transaction must be $10 million or less to be considered a Qualified Activity. Notwithstanding the foregoing, the CDFI Fund, in its sole discretion, may consider transactions with a total principal value of over $10 million, subject to review. An activity funded with prior BEA Program Award dollars, or funded to satisfy requirements of a BEA Program Award Agreement from a prior Award, shall not constitute a Qualified Activity for the purposes of calculating or receiving an Award.
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Applicants applying for a BEA Program Award for performing Distressed Community Financing Activities or Service Activities must verify that addresses of both Baseline and Assessment Period activities are in Distressed Communities when completing their Application.
Please note that a Distressed Community as defined by the BEA Program is not necessarily the same as an Investment Area as defined by the CDFI Program or a Low-Income Community as defined by the NMTC Program.
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a. Selecting a census tract that meets the minimum area and eligibility requirements; or by
b. selecting two or more contiguous census tracts that, in the aggregate, meet minimum area and eligibility requirements set forth in paragraph (1) of this section. A CDFI Partner designates a Distressed Community by submitting a map of the Distressed Community as described in the BEA Program Application. CDFI Partners must use CIMS3 to designate a Distressed Community. CIMS3 is accessed through myCDFIFund and contains step-by-step instructions on how to create and save the aforementioned map of the Distressed Community. myCDFIFund is an electronic interface that is accessed through the CDFI Fund's Web site (
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a. Selecting a census tract where the Qualified Activity occurred that meets the minimum area and eligibility requirements; or
b. selecting the census tract where the Qualified Activity occurred, plus one or more census tracts directly contiguous to where the Qualified Activity occurred that when considered in the aggregate, meet the minimum area and eligibility requirements set forth in paragraph (1) of this section.
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An active SAM account is required to submit Applications via Grants.gov. Neither the SAM account, EIN, nor the DUNS number can be that of the depository institution holding company of the Applicant. Applicants are advised to allow ample time to complete the entire registration and submission process prior to the application deadline. The SAM registration process can take several weeks to complete. Applicants that have previously completed the SAM registration process must verify that their SAM accounts are current and active. Each Applicant must continue to maintain an active SAM registration with current information at all times during which it has an active Federal award or an Application under consideration by a Federal awarding agency. The CDFI Fund will not consider any Applicant that fails to properly register or activate its SAM account and, as a result, is unable to submit its Application by the Application deadline. Applicants must contact SAM directly with questions related to registration or SAM account changes as the CDFI Fund does not maintain this system. For more information about SAM, please visit
An Application that does not include an EIN or DUNS number is incomplete and cannot be transmitted to the CDFI Fund. The preceding sentences do not limit the CDFI Fund's ability to contact an Applicant for the purpose of confirming or clarifying information regarding a DUNS number or EIN. Once an Application is submitted, the Applicant will not be allowed to change any element of the Application.
The CDFI Fund reserves the right to request and review other pertinent or public information that has not been specifically requested in this NOFA or the Application. As set forth in further detail in the Application, any Qualified Activity missing the required documentation will be disqualified. Applicants will not be allowed to submit missing documentation for Qualified Activities after the Application deadline. Information submitted by the Applicant that the CDFI Fund has not specifically requested will not be reviewed or considered as part of the Application. Applicants must submit Applications under this NOFA via Grants.gov and with certain required documentation via myCDFIFund according to the instructions in the Application.
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1. A Recipient shall use BEA Program funds only for the eligible activities described in Section II. D. of this NOFA and its Award Agreement.
2. A Recipient may not distribute BEA Program funds to an Affiliate, Subsidiary, or any other entity, without the CDFI Fund's prior written approval.
3. BEA Program funds shall only be disbursed to the Recipient.
4. The CDFI Fund, in its sole discretion, may disburse BEA Program funds in amounts, or under terms and conditions, which are different from those requested by an Applicant.
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a. For purposes of this NOFA, “materially below market interest rate” is defined as an annual percentage rate that does not exceed 100 percent of yields on Treasury securities at constant maturity as interpolated by Treasury from the daily yield curve and available on the Treasury Web site at
b. For purposes of this NOFA, a deposit placed by an Applicant directly with a CDFI Partner that participates in a deposit network or service may be treated as eligible under this NOFA if it otherwise meets the criteria for deposits in 1806.103(q) and the CDFI Partner retains the full amount of the initial deposit or an amount equivalent to the full amount of the initial deposit through a deposit network exchange transaction.
6.
7.
a. At the end of the initial term, the loan must have a definite rolling maturity date that is automatically extended on an annual basis if the CDFI borrower continues to be financially sound and carry out a community development mission;
b. Periodic payments of interest and/or principal may only be made out of the CDFI borrower's available cash flow after satisfying all other obligations;
c. Failure to pay principal or interest (except at maturity) will not automatically result in a default of the loan agreement; and
d. The loan must be subordinated to all other debt except for other Equity-Like Loans. Notwithstanding the foregoing, the CDFI Fund reserves the right to determine, in its sole discretion and on a case-by-case basis, whether an instrument meets the above-stated characteristics of an Equity-Like Loan.
8.
9.
10.
a. Commercial Real Estate Loans and related Project Investments: For purposes of this NOFA, eligible Commercial Real Estate Loans (12 CFR 1806.103(k)) and related Project Investments (12 CFR 1806.103(ll)) are generally limited to transactions with a total principal value of $10 million or less. Notwithstanding the foregoing, the CDFI Fund, in its sole discretion, may consider transactions with a total principal value of over $10 million, subject to review. For such transactions, Applicants must provide a separate
b. Small Dollar Consumer Loan: For purposes of this NOFA, eligible Small Dollar Consumer Loans are affordable loans that serve as available alternatives to the marketplace for individuals who are Eligible Residents with a total principal value between $500 and $5,000 and have a term of ninety (90) days or more.
11.
a. $100.00 per account for Targeted Financial Services including youth savings accounts, Electronic Transfer Accounts and Individual Development Accounts;
b. $50.00 per account for checking and savings accounts that do not meet the definition of Targeted Financial Services;
c. $5.00 per check cashing transaction;
d. $25,000 per new ATM installed at a location in a Distressed Community;
e. $2,500 per ATM operated at a location in a Distressed Community;
f. $250,000 per new retail bank branch office opened in a Distressed Community, including school-based bank branches approved by the Applicant's Federal bank regulator; and
g. In the case of Applicants engaging in Financial Services activities not described above, the CDFI Fund will determine the unit value of such services.
h. When reporting the opening of a new retail bank branch office, the Applicant must certify that it has not operated a retail branch in the same Distressed Community in which the new retail branch office is being opened in the past three years, and that such new branch will remain in operation for at least the next five years.
i. Financial Service Activities must be provided by the Applicant to Low- and Moderate-Income Residents. An Applicant may determine the number of Low- and Moderate-Income individuals who are recipients of Financial Services by either: (i) Collecting income data on its Financial Services customers, or (ii) certifying that the Applicant reasonably believes that such customers are Low- and Moderate-Income individuals and providing a brief analytical narrative with information describing how the Applicant made this determination. Citations must be provided for external sources. In addition, if external sources are referenced in the narrative, the Applicant must explain how it reached the conclusion that the cited references are directly related to the Low-and Moderate-Income residents to whom it is claiming to have provided the Financial Services.
j. When reporting changes in the dollar amount of deposit accounts, only calculate the net change in the total dollar amount of eligible Deposit Liabilities between the Baseline Period and the Assessment Period. Do not report each individual deposit. If the net change between the Baseline Period and Assessment Period is a negative dollar amount, then a negative dollar amount may be recorded for Deposit Liabilities only. Instructions for determining the net change is available in the Supplemental Guidance to the FY 2015 BEA Program Application.
12.
13.
a.
b.
c.
d.
e.
f.
14.
a.
In Distressed Community Financing Activities and Service Activities categories, for a CDFI Applicant, the estimated Award amount will be equal to 9 percent of the weighted value of the increase in Qualified Activity for the category. If an Applicant is not a CDFI Applicant, the estimated Award amount will be equal to 3 percent of the weighted value of the increase in Qualified Activity for the category.
b.
For purposes of calculating Award disbursement amounts, the CDFI Fund will treat Qualified Activities with a total principal amount less than or equal to $250,000 as fully disbursed. For all other Qualified Activities, Award Recipients will have 12 months from the end of the Assessment Period to make disbursements and 18 months from the end of the Assessment Period to submit to the CDFI Fund disbursement requests for the corresponding portion of their Awards, after which the CDFI Fund will rescind and de-obligate any outstanding Award balance and said outstanding Award balance will no longer be available to the Award Recipient.
B.
1.
2.
Within each category, CDFI Applicants will be ranked first according to the ratio of the actual Award amount calculated by the CDFI Fund for the category to the total assets of the Applicant, followed by Applicants that are not CDFI Applicants according to the ratio of the actual Award amount calculated by the CDFI Fund for the category to the total assets of the Applicant.
Selections within each priority category will be based on the Applicants' relative rankings within each such category, subject to the availability of funds and any established maximum dollar amount of total awards that may be awarded for the Distressed Community Financing Activities category of Qualified Activities, as determined by the CDFI Fund.
The CDFI Fund, in its sole discretion: (i) May adjust the estimated Award amount that an Applicant may receive, (ii) may establish a maximum amount that may be awarded to an Applicant, and (iii) reserves the right to limit the amount of an Award to any Applicant if the CDFI Fund deems it appropriate.
The CDFI Fund reserves the right to contact the Applicant to confirm or clarify information. If contacted, the Applicant must respond within the CDFI Fund's time parameters or run the risk of having its Application rejected.
The CDFI Fund reserves the right to change its eligibility and evaluation criteria and procedures. If those changes materially affect the CDFI Fund's Award decisions, the CDFI Fund will provide information regarding the changes through the CDFI Fund's Web site.
3.
Furthermore, the CDFI Fund will not approve a BEA Program Award for the following reasons if at the time of application the Applicant received any of the following:
a. A CRA assessment rating of below “Satisfactory” on its most recent examination;
b. a going concern opinion on its most recent audit;
c. a Prompt Corrective Action directive from its regulator.
Applicants and/or their appropriate Federal bank regulator agency may be contacted by the CDFI Fund to provide additional information related to Federal bank regulatory or CRA information. The CDFI Fund will consider this information and may choose to disapprove a BEA Program Award for an Applicant if the information indicates that the Applicant may be unable to responsibly manage, re-invest, and/or report on a BEA Program Award during the performance period.
4.
There is no right to appeal the CDFI Fund's Award decisions. The CDFI Fund's Award decisions are final. The CDFI Fund will not discuss the specifics of an Applicant's BEA Program Application or provide reasons why an Applicant did not receive a BEA Program Award. The CDFI Fund will only respond to general questions regarding the FY 2015 Application and Award decision process until 30 days after the award announcement date.
C.
A.
B.
If the Award Recipient's certification status as a CDFI changes, the CDFI Fund reserves the right, in its sole discretion, to re-calculate the Award, modify the Notice of Award, and modify the Award Agreement based on the Award Recipient's non-CDFI status.
By executing an Award Agreement, the Award Recipient agrees that, if the CDFI Fund becomes aware of any information (including an administrative error) prior to the Effective Date of the Award Agreement that either adversely affects the Award Recipient's eligibility for an Award, or adversely affects the CDFI Fund's evaluation of the Award Recipient's Application, or indicates fraud or mismanagement on the part of the Award Recipient, the CDFI Fund may, in its discretion and without advance notice to the Award Recipient, terminate the Award Agreement or take other actions as it deems appropriate. The CDFI Fund reserves the right, in its sole discretion, to rescind an award if the Award Recipient fails to return the Award Agreement, signed by the authorized representative of the award Recipient, and/or provide the CDFI Fund with any other requested documentation, within the CDFI Fund's deadlines. In addition, the CDFI Fund reserves the right, in its sole discretion, to terminate and rescind the Award Agreement and the award made under this NOFA for any criteria described in the following table:
Award Agreement: After the CDFI Fund selects an Award Recipient, unless an exception detailed in this NOFA applies, the CDFI Fund and the Award Recipient will enter into an Award Agreement. The Award Agreement will set forth certain required terms and conditions of the Award, which will include, but not be limited to: (i) The amount of the Award; (ii) the type of the Award; (iii) the approved uses of the Award; (iv) the performance goals and measures; (v) the performance periods; and (vi) the reporting requirements. The Award Agreement shall provide that an Award Recipient shall: (i) Carry out its Qualified Activities in accordance with applicable law, the approved Application, and all other applicable requirements; (ii) not receive any disbursement of award dollars until the CDFI Fund has determined that the Award Recipient has fulfilled all applicable requirements; and (iii) use the BEA Award amount for BEA Qualified Activities.
C.
The CDFI Fund may collect information from each Recipient including, but not limited to, an Annual Report with the following components:
Each Award Recipient is responsible for the timely and complete submission of the Reporting requirements. The CDFI Fund reserves the right to contact the Award Recipient to request additional information and documentation. The CDFI Fund will use such information to monitor each Award Recipient's compliance with the requirements in the Award Agreement and to assess the impact of the BEA Program. The CDFI Fund reserves the right, in its sole discretion, to modify these reporting requirements if it determines it to be appropriate and necessary; however,
D.
Each of the Qualified Activities categories will be ineligible for indirect costs and an associated indirect cost rate. The cost principles used by award Recipients must be consistent with Federal cost principles and support the accumulation of costs as required by the principles, and must provide for adequate documentation to support costs charged to the BEA Program award. In addition, the CDFI Fund will require award Recipients to: maintain effective internal controls; comply with applicable statutes, regulations, and the Award Agreement; evaluate and monitor compliance; take action when not in compliance; and safeguard personally identifiable information.
A.
The following table lists CDFI Fund contact information:
B.
C.
D.
A.
B.
C.
12 U.S.C. 1834a, 4703, 4703 note, 4713; 12 CFR part 1806.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of five individuals and one entity whose property and interests in property have been unblocked pursuant to the Foreign Narcotics Kingpin Designation Act (Kingpin Act) (21 U.S.C. 1901-1908, 8
The unblocking and removal from the SDN List of the individuals and entity identified in this notice whose property and interests in property were blocked pursuant to the Kingpin Act, is effective on April 28, 2015. Additionally, the update to the SDN List of the individual identified in this notice is also effective on April 28, 2015.
Assistant Director, Sanctions Compliance & Evaluation, Department of the Treasury, Office of Foreign Assets Control, Washington, DC 20220, Tel: (202) 622-2420.
This document and additional information concerning OFAC are available from OFAC's Web site at
On December 3, 1999, the Kingpin Act was signed into law by the President of the United States. The Kingpin Act provides a statutory framework for the President to impose sanctions against significant foreign narcotics traffickers and their organizations on a worldwide basis, with the objective of denying their businesses and agents access to the U.S. financial system and to the benefits of trade and transactions involving U.S. persons and entities.
The Kingpin Act blocks all property and interests in property, subject to U.S. jurisdiction, owned or controlled by significant foreign narcotics traffickers as identified by the President. In addition, the Secretary of the Treasury consults with the Attorney General, the Director of the Central Intelligence Agency, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security when designating and blocking the property or interests in property, subject to U.S. jurisdiction, of persons or entities found to be: (1) Materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of a person designated pursuant to the Kingpin Act; (2) owned, controlled, or directed by, or acting for or on behalf of, a person designated pursuant to the Kingpin Act; and/or (3) playing a significant role in international narcotics trafficking.
On April 28, 2015, the Associate Director of the Office of Global Targeting removed from the SDN List the individuals and entity listed below, whose property and interests in property were blocked pursuant to the Kingpin Act: Individuals:
Additionally on April 28, 2015, the Associate Director of the Office of Global Targeting updated the SDN record for the individual listed below, whose property and interests in property continue to be blocked pursuant to the Kingpin Act:
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of the five individuals and three entities whose property and interests in property have been unblocked pursuant to Executive Order 12978 of October 21, 1995, “Blocking Assets and Prohibiting Transactions With Significant Narcotics Traffickers”. Additionally, OFAC is publishing an update to the name of one individual currently included in the list of Specially Designated Nationals and Blocked Persons (SDN List).
The unblocking and removal from the list of Specially Designated Nationals and Blocked Persons (SDN List) of the five individuals and three entities identified in this notice whose property and interests in property were blocked pursuant to Executive Order 12978 of October 21, 1995, is effective on April 28, 2015. Additionally, the update to the SDN List of the individual identified in this notice is also effective on April 28, 2015.
Assistant Director, Sanctions Compliance & Evaluation, Department of the Treasury, Office of Foreign Assets Control, Washington, DC 20220, Tel: (202) 622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site
On October 21, 1995, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The foreign persons listed in an Annex to the Order; (2) any foreign person determined by the Secretary of Treasury, in consultation with the Attorney General and the Secretary of State: (a) To play a significant role in international narcotics trafficking centered in Colombia; or (b) to materially assist in, or provide financial or technological support for or goods or services in support of, the narcotics trafficking activities of persons designated in or pursuant to the Order; and (3) persons determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to be owned or controlled by, or to act for or on behalf of, persons designated pursuant to the Order.
On April 28, 2015, the Associate Director of the Office of Global Targeting removed from the SDN List the individuals and entities listed below, whose property and interests in property were blocked pursuant to the Order:
Additionally, on April 28, 2015, the Associate Director of the Office of Global Targeting updated the SDN record for the individual listed below, whose property and interests in property continue to be blocked pursuant to Executive Order 12978:
United States Sentencing Commission.
Notice of submission to Congress of amendments to the sentencing guidelines effective November 1, 2015.
Pursuant to its authority under 28 U.S.C. 994(p), the Commission has promulgated amendments to the sentencing guidelines, policy statements, commentary, and statutory index. This notice sets forth the amendments and the reason for each amendment.
The Commission has specified an effective date of November 1, 2015, for the amendments set forth in this notice.
Jeanne Doherty, Public Affairs Officer, (202) 502-4502,
The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) not later than the first day of May each year. Absent action of Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress).
Notice of proposed amendments was published in the
28 U.S.C. 994(a), (o), and (p); USSC Rules of Practice and Procedure 4.1.
1.
“all acts and omissions of others that were—
(i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal activity;”.
The Commentary to § 1B1.3 captioned “Application Notes” is amended by striking Note 2 as follows:
“2. A `jointly undertaken criminal activity' is a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy.
In the case of a jointly undertaken criminal activity, subsection (a)(1)(B) provides that a defendant is accountable for the conduct (acts and omissions) of others that was both:
(A) In furtherance of the jointly undertaken criminal activity; and
(B) reasonably foreseeable in connection with that criminal activity.
Because a count may be worded broadly and include the conduct of many participants over a period of time, the scope of the criminal activity jointly undertaken by the defendant (the `jointly undertaken criminal activity') is not necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the same for every participant. In order to determine the defendant's accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake (
In determining the scope of the criminal activity that the particular defendant agreed to jointly undertake (
Note that the criminal activity that the defendant agreed to jointly undertake, and the reasonably foreseeable conduct of others in furtherance of that criminal activity, are not necessarily identical. For example, two defendants agree to commit a robbery and, during the course of that robbery, the first defendant assaults and injures a victim. The second defendant is accountable for the assault and injury to the victim (even if the second defendant had not agreed to the assault and had cautioned the first defendant to be careful not to hurt anyone) because the assaultive conduct was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense).
With respect to offenses involving contraband (including controlled substances), the defendant is accountable for all quantities of contraband with which he was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook.
The requirement of reasonable foreseeability applies only in respect to the conduct (
A defendant's relevant conduct does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of that conduct (
(1) Defendant A is one of ten persons hired by Defendant B to off-load a ship containing marihuana. The off-loading of the ship is interrupted by law enforcement officers and one ton of marihuana is seized (the amount on the ship as well as the amount off-loaded). Defendant A and the other off-loaders are arrested and convicted of importation of marihuana. Regardless of the number of bales he personally unloaded, Defendant A is accountable for the entire one-ton quantity of marihuana. Defendant A aided and abetted the off-loading of the entire shipment of marihuana by directly participating in the off-loading of that shipment (
In certain cases, a defendant may be accountable for particular conduct under more than one subsection of this guideline. As noted in the preceding paragraph, Defendant A is accountable for the entire one-ton shipment of marihuana under subsection (a)(1)(A). Defendant A also is accountable for the entire one-ton shipment of marihuana on the basis of subsection (a)(1)(B)(applying to a jointly undertaken criminal activity). Defendant A engaged in a jointly undertaken criminal activity (the scope of which was the importation of the shipment of marihuana). A finding that the one-ton quantity of marihuana was reasonably foreseeable is warranted from the nature of the undertaking itself (the importation of marihuana by ship typically involves very large quantities of marihuana). The specific circumstances of the case (the defendant was one of ten persons off-loading the marihuana in bales) also support this finding. In an actual case, of course, if a defendant's accountability for particular conduct is established under one provision of this guideline, it is not necessary to review alternative provisions under which such accountability might be established.
(1) Defendant C is the getaway driver in an armed bank robbery in which $15,000 is taken and a teller is assaulted and injured. Defendant C is accountable for the money taken under subsection (a)(1)(A) because he aided and abetted the act of taking the money (the taking of money was the specific objective of the offense he joined). Defendant C is accountable for the injury to the teller under subsection (a)(1)(B) because the assault on the teller was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense).
As noted earlier, a defendant may be accountable for particular conduct under more than one subsection. In this example, Defendant C also is accountable for the money taken on the basis of subsection (a)(1)(B) because the taking of money was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable (as noted, the taking of money was the specific objective of the jointly undertaken criminal activity).
(1) Defendant D pays Defendant E a small amount to forge an endorsement on an $800 stolen government check. Unknown to Defendant E, Defendant D then uses that check as a down payment in a scheme to fraudulently obtain $15,000 worth of merchandise. Defendant E is convicted of forging the $800 check and is accountable for the forgery of this check under subsection (a)(1)(A). Defendant E is not accountable for the $15,000 because the fraudulent scheme to obtain $15,000 was not in furtherance of the criminal activity he jointly undertook with Defendant D (
(2) Defendants F and G, working together, design and execute a scheme to sell fraudulent stocks by telephone. Defendant F fraudulently obtains $20,000. Defendant G fraudulently obtains $35,000. Each is convicted of mail fraud. Defendants F and G each are accountable for the entire amount ($55,000). Each defendant is accountable for the amount he personally obtained under subsection (a)(1)(A). Each defendant is accountable for the amount obtained by his accomplice under subsection (a)(1)(B) because the conduct of each was in furtherance of the jointly undertaken criminal activity and was reasonably foreseeable in connection with that criminal activity.
(3) Defendants H and I engaged in an ongoing marihuana importation conspiracy in which Defendant J was hired only to help off-load a single shipment. Defendants H, I, and J are included in a single count charging conspiracy to import marihuana. Defendant J is accountable for the entire single shipment of marihuana he helped import under subsection (a)(1)(A) and any acts and omissions in furtherance of the importation of that shipment that were reasonably foreseeable (
(4) Defendant K is a wholesale distributor of child pornography. Defendant L is a retail-level dealer who purchases child pornography from Defendant K and resells it, but otherwise operates independently of Defendant K. Similarly, Defendant M is a retail-level dealer who purchases child pornography from Defendant K and resells it, but otherwise operates independently of Defendant K. Defendants L and M are aware of each other's criminal activity but operate independently. Defendant N is Defendant K's assistant who recruits customers for Defendant K and frequently supervises the deliveries to Defendant K's customers. Each defendant is convicted of a count charging conspiracy to distribute child pornography. Defendant K is accountable under subsection (a)(1)(A) for the entire quantity of child pornography sold to Defendants L and M. Defendant N also is accountable for the entire quantity sold to those defendants under subsection (a)(1)(B) because the entire quantity was within the scope of his jointly undertaken criminal activity and reasonably foreseeable. Defendant L is accountable under subsection (a)(1)(A) only for the quantity of child pornography that he purchased from Defendant K because the scope of his jointly undertaken criminal activity is limited to that amount. For the same reason, Defendant M is accountable under subsection (a)(1)(A) only for the quantity of child pornography that he purchased from Defendant K.
(5) Defendant O knows about her boyfriend's ongoing drug-trafficking activity, but agrees to participate on only one occasion by making a delivery for him at his request when he was ill. Defendant O is accountable under subsection (a)(1)(A) for the drug quantity involved on that one occasion. Defendant O is not accountable for the other drug sales made by her boyfriend because those sales were not in furtherance of her jointly undertaken criminal activity (
(6) Defendant P is a street-level drug dealer who knows of other street-level drug dealers in the same geographic area who sell the same type of drug as he sells. Defendant P and the other dealers share a common source of supply, but otherwise operate independently. Defendant P is not accountable for the quantities of drugs sold by the other street-level drug dealers because he is not engaged in a jointly undertaken criminal activity with them. In contrast, Defendant Q, another street-level drug dealer, pools his resources and profits with four other street-level drug dealers. Defendant Q is engaged in a jointly undertaken criminal activity and, therefore, he is accountable under subsection (a)(1)(B) for the quantities of drugs sold by the four other dealers during the course of his joint undertaking with them because those sales were in furtherance of the jointly undertaken criminal activity and reasonably foreseeable in connection with that criminal activity.
(7) Defendant R recruits Defendant S to distribute 500 grams of cocaine. Defendant S knows that Defendant R is the prime figure in a conspiracy involved in importing much larger quantities of cocaine. As long as Defendant S's agreement and conduct is limited to the distribution of the 500 grams, Defendant S is accountable only for that 500 gram amount (under subsection (a)(1)(A)), rather than the much larger quantity imported by Defendant R.
(8) Defendants T, U, V, and W are hired by a supplier to backpack a quantity of marihuana across the border from Mexico into the United States. Defendants T, U, V, and W receive their individual shipments from the supplier at the same time and coordinate their importation efforts by walking across the border together for mutual assistance and protection. Each defendant is accountable for the aggregate quantity of marihuana transported by the four defendants. The four defendants engaged in a jointly undertaken criminal activity, the object
“2.
3.
(A)
In the case of a jointly undertaken criminal activity, subsection (a)(1)(B) provides that a defendant is accountable for the conduct (acts and omissions) of others that was:
(i) Within the scope of the jointly undertaken criminal activity;
(ii) in furtherance of that criminal activity; and
(iii) reasonably foreseeable in connection with that criminal activity.
The conduct of others that meets all three criteria set forth in subdivisions (i) through (iii) (
(B)
In cases involving contraband (including controlled substances), the scope of the jointly undertaken criminal activity (and thus the accountability of the defendant for the contraband that was the object of that jointly undertaken activity) may depend upon whether, in the particular circumstances, the nature of the offense is more appropriately viewed as one jointly undertaken criminal activity or as a number of separate criminal activities.
A defendant's relevant conduct does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of that conduct (
(C)
(D)
Note that the criminal activity that the defendant agreed to jointly undertake, and the reasonably foreseeable conduct of others in furtherance of that criminal activity, are not necessarily identical. For example, two defendants agree to commit a robbery and, during the course of that robbery, the first defendant assaults and injures a victim. The second defendant is accountable for the assault and injury to the victim (even if the second defendant had not agreed to the assault and had cautioned the first defendant to be careful not to hurt anyone) because the assaultive conduct was within the scope of the jointly undertaken criminal activity (the robbery), was in furtherance of that criminal activity (the robbery), and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense).
With respect to offenses involving contraband (including controlled substances), the defendant is accountable under subsection (a)(1)(A) for all quantities of contraband with which he was directly involved and, in the case of a jointly undertaken criminal activity under subsection (a)(1)(B), all quantities of contraband that were involved in transactions carried out by other participants, if those transactions were within the scope of, and in furtherance of, the jointly undertaken criminal activity and were reasonably foreseeable in connection with that criminal activity.
The requirement of reasonable foreseeability applies only in respect to the conduct (
4.
(A)
(i) Defendant A is one of ten persons hired by Defendant B to off-load a ship containing marihuana. The off-loading of the ship is interrupted by law enforcement officers and one ton of marihuana is seized (the amount on the ship as well as the amount off-loaded).
In certain cases, a defendant may be accountable for particular conduct under more than one subsection of this guideline. As noted in the preceding paragraph, Defendant A is accountable for the entire one-ton shipment of marihuana under subsection (a)(1)(A). Defendant A also is accountable for the entire one-ton shipment of marihuana on the basis of subsection (a)(1)(B) (applying to a jointly undertaken criminal activity). Defendant A engaged in a jointly undertaken criminal activity and all three criteria of subsection (a)(1)(B) are met. First, the conduct was within the scope of the criminal activity (the importation of the shipment of marihuana). Second, the off-loading of the shipment of marihuana was in furtherance of the criminal activity, as described above. And third, a finding that the one-ton quantity of marihuana was reasonably foreseeable is warranted from the nature of the undertaking itself (the importation of marihuana by ship typically involves very large quantities of marihuana). The specific circumstances of the case (the defendant was one of ten persons off-loading the marihuana in bales) also support this finding. In an actual case, of course, if a defendant's accountability for particular conduct is established under one provision of this guideline, it is not necessary to review alternative provisions under which such accountability might be established.
(B)
(i) Defendant C is the getaway driver in an armed bank robbery in which $15,000 is taken and a teller is assaulted and injured. Defendant C is accountable for the money taken under subsection (a)(1)(A) because he aided and abetted the act of taking the money (the taking of money was the specific objective of the offense he joined). Defendant C is accountable for the injury to the teller under subsection (a)(1)(B) because the assault on the teller was within the scope and in furtherance of the jointly undertaken criminal activity (the robbery), and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense).
As noted earlier, a defendant may be accountable for particular conduct under more than one subsection. In this example, Defendant C also is accountable for the money taken on the basis of subsection (a)(1)(B) because the taking of money was within the scope and in furtherance of the jointly undertaken criminal activity (the robbery), and was reasonably foreseeable (as noted, the taking of money was the specific objective of the jointly undertaken criminal activity).
(C)
(i) Defendant D pays Defendant E a small amount to forge an endorsement on an $800 stolen government check. Unknown to Defendant E, Defendant D then uses that check as a down payment in a scheme to fraudulently obtain $15,000 worth of merchandise. Defendant E is convicted of forging the $800 check and is accountable for the forgery of this check under subsection (a)(1)(A). Defendant E is not accountable for the $15,000 because the fraudulent scheme to obtain $15,000 was not within the scope of the jointly undertaken criminal activity (
(ii) Defendants F and G, working together, design and execute a scheme to sell fraudulent stocks by telephone. Defendant F fraudulently obtains $20,000. Defendant G fraudulently obtains $35,000. Each is convicted of mail fraud. Defendants F and G each are accountable for the entire amount ($55,000). Each defendant is accountable for the amount he personally obtained under subsection (a)(1)(A). Each defendant is accountable for the amount obtained by his accomplice under subsection (a)(1)(B) because the conduct of each was within the scope of the jointly undertaken criminal activity (the scheme to sell fraudulent stocks), was in furtherance of that criminal activity, and was reasonably foreseeable in connection with that criminal activity.
(iii) Defendants H and I engaged in an ongoing marihuana importation conspiracy in which Defendant J was hired only to help off-load a single shipment. Defendants H, I, and J are included in a single count charging conspiracy to import marihuana. Defendant J is accountable for the entire single shipment of marihuana he helped import under subsection (a)(1)(A) and any acts and omissions of others related to the importation of that shipment on the basis of subsection (a)(1)(B) (
(iv) Defendant K is a wholesale distributor of child pornography. Defendant L is a retail-level dealer who purchases child pornography from Defendant K and resells it, but otherwise operates independently of Defendant K. Similarly, Defendant M is a retail-level dealer who purchases child pornography from Defendant K and resells it, but otherwise operates independently of Defendant K. Defendants L and M are aware of each other's criminal activity but operate independently. Defendant N is Defendant K's assistant who recruits customers for Defendant K and frequently supervises the deliveries to Defendant K's customers. Each defendant is convicted of a count charging conspiracy to distribute child pornography. Defendant K is accountable under subsection (a)(1)(A) for the entire quantity of child pornography sold to Defendants L and M. Defendant N also is accountable for the entire quantity sold to those defendants under subsection (a)(1)(B) because the entire quantity was within the scope of his jointly undertaken criminal activity (to distribute child pornography with Defendant K), in furtherance of that criminal activity, and reasonably foreseeable. Defendant L is accountable under subsection (a)(1)(A) only for the quantity of child pornography that he purchased from Defendant K because he is not engaged in a jointly undertaken criminal activity with the other defendants. For the same reason, Defendant M is accountable under subsection (a)(1)(A) only for the quantity of child pornography that he purchased from Defendant K.
(v) Defendant O knows about her boyfriend's ongoing drug-trafficking activity, but agrees to participate on
(vi) Defendant P is a street-level drug dealer who knows of other street-level drug dealers in the same geographic area who sell the same type of drug as he sells. Defendant P and the other dealers share a common source of supply, but otherwise operate independently. Defendant P is not accountable for the quantities of drugs sold by the other street-level drug dealers because he is not engaged in a jointly undertaken criminal activity with them. In contrast, Defendant Q, another street-level drug dealer, pools his resources and profits with four other street-level drug dealers. Defendant Q is engaged in a jointly undertaken criminal activity and, therefore, he is accountable under subsection (a)(1)(B) for the quantities of drugs sold by the four other dealers during the course of his joint undertaking with them because those sales were within the scope of the jointly undertaken criminal activity, in furtherance of that criminal activity, and reasonably foreseeable in connection with that criminal activity.
(vii) Defendant R recruits Defendant S to distribute 500 grams of cocaine. Defendant S knows that Defendant R is the prime figure in a conspiracy involved in importing much larger quantities of cocaine. As long as Defendant S's agreement and conduct is limited to the distribution of the 500 grams, Defendant S is accountable only for that 500 gram amount (under subsection (a)(1)(A)), rather than the much larger quantity imported by Defendant R. Defendant S is not accountable under subsection (a)(1)(B) for the other quantities imported by Defendant R because those quantities were not within the scope of his jointly undertaken criminal activity (
(viii) Defendants T, U, V, and W are hired by a supplier to backpack a quantity of marihuana across the border from Mexico into the United States. Defendants T, U, V, and W receive their individual shipments from the supplier at the same time and coordinate their importation efforts by walking across the border together for mutual assistance and protection. Each defendant is accountable for the aggregate quantity of marihuana transported by the four defendants. The four defendants engaged in a jointly undertaken criminal activity, the object of which was the importation of the four backpacks containing marihuana (subsection (a)(1)(B)), and aided and abetted each other's actions (subsection (a)(1)(A)) in carrying out the jointly undertaken criminal activity (which under subsection (a)(1)(B) were also in furtherance of, and reasonably foreseeable in connection with, the criminal activity). In contrast, if Defendants T, U, V, and W were hired individually, transported their individual shipments at different times, and otherwise operated independently, each defendant would be accountable only for the quantity of marihuana he personally transported (subsection (a)(1)(A)). As this example illustrates, the scope of the jointly undertaken criminal activity may depend upon whether, in the particular circumstances, the nature of the offense is more appropriately viewed as one jointly undertaken criminal activity or as a number of separate criminal activities.
The Commentary to § 2K2.1 captioned “Application Notes” is amended in Note 14(E) by striking “Application Note 9” both places such term appears and inserting “Application Note 11”.
The Commentary to § 2X3.1 captioned “Application Notes” is amended in Note 1 by striking “Application Note 10” and inserting “Application Note 12”.
The Commentary to § 2X4.1 captioned “Application Notes” is amended in Note 1 by striking “Application Note 10” and inserting “Application Note 12”.
The amendment makes clarifying revisions to § 1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)). It restructures the guideline and its commentary to set out more clearly the three-step analysis the court applies in determining whether a defendant is accountable for the conduct of others in a jointly undertaken criminal activity under § 1B1.3(a)(1)(B). The three-step analysis requires that the court (1) identify the scope of the jointly undertaken criminal activity; (2) determine whether the conduct of others in the jointly undertaken criminal activity was in furtherance of that criminal activity; and (3) determine whether the conduct of others was reasonably foreseeable in connection with that criminal activity.
Prior to this amendment, the “scope” element of the three-step analysis was identified in the commentary to § 1B1.3 but was not included in the text of the guideline itself. This amendment makes clear that, under the “jointly undertaken criminal activity” provision, a defendant is accountable for the conduct of others in a jointly undertaken criminal activity if the conduct meets all three criteria of the three-step analysis. This amendment is not intended as a substantive change in policy.
2.
“(1) If the loss exceeded $5,000, increase the offense level as follows:
“(1) If the loss exceeded $6,500, increase the offense level as follows:
Section 2B1.4(b)(1) is amended by striking “$5,000” and inserting “$6,500”.
Section 2B1.5(b)(1) is amended by striking “$2,000” and inserting “$2,500”; and by striking “$5,000” both places such term appears and inserting “$6,500”.
Section 2B2.1(b) is amended by striking paragraph (2) as follows:
“(2) If the loss exceeded $2,500, increase the offense level as follows:
“(2) If the loss exceeded $5,000, increase the offense level as follows:
Section 2B2.3(b)(3) is amended by striking “$2,000” and inserting “$2,500”; and by striking “$5,000” both places such term appears and inserting “$6,500”.
Section 2B3.1(b) is amended by striking paragraph (7) as follows:
“(7) If the loss exceeded $10,000, increase the offense level as follows:
“(7) If the loss exceeded $20,000, increase the offense level as follows:
Section 2B3.2(b)(2) is amended by striking “$10,000” and inserting “$20,000”.
Sections 2B3.3(b)(1), 2B4.1(b)(1), 2B5.1(b)(1), 2B5.3(b)(1), and 2B6.1(b)(1) are each amended by striking “$2,000” and inserting “$2,500”; and by striking “$5,000” both places such term appears and inserting “$6,500”.
Sections 2C1.1(b)(2), 2C1.2(b)(2), and 2C1.8(b)(1) are each amended by striking “$5,000” and inserting “$6,500”.
Sections 2E5.1(b)(2) and 2Q2.1(b)(3) are each amended by striking “$2,000” and inserting “$2,500”; and by striking “$5,000” both places such term appears and inserting “$6,500”.
Section 2R1.1(b) is amended by striking paragraph (2) as follows:
“(2) If the volume of commerce attributable to the defendant was more than $1,000,000, adjust the offense level as follows:
Section 2T3.1(a) is amended by striking “$1,000” both places such term appears and inserting “$1,500”; and by striking “$100” both places such term appears and inserting “$200”.
Section 2T4.1 is amended by striking the following:
Section 5E1.2 is amended in subsection (c)(3) by striking the following:
and by inserting after subsection (g) the following new subsection (h):
“(h) Special Instruction
(1) For offenses committed prior to November 1, 2015, use the applicable fine guideline range that was set forth in the version of § 5E1.2(c) that was in effect on November 1, 2014, rather than the applicable fine guideline range set forth in subsection (c) above.”.
Section 8C2.4 is amended in subsection (d) by striking the following:
“(e) Special Instruction
(1) For offenses committed prior to November 1, 2015, use the offense level fine table that was set forth in the version of § 8C2.4(d) that was in effect on November 1, 2014, rather than the offense level fine table set forth in subsection (d) above.”.
• Amounts greater than $100,000,000 to the nearest multiple of $50,000,000;
• amounts greater than $10,000,000 to the nearest multiple of $5,000,000;
• amounts greater than $1,000,000 to the nearest multiple of $500,000;
• amounts greater than $100,000 to the nearest multiple of $50,000;
• amounts greater than $10,000 to the nearest multiple of $5,000;
• amounts greater than $1,000 to the nearest multiple of $500; and
• amounts of $1,000 or less to the nearest multiple of $50.
In addition, the amendment includes conforming changes to other Chapter Two guidelines that refer to the monetary tables.
Congress has generally mandated that agencies in the executive branch adjust the civil monetary penalties they impose to account for inflation using the CPI.
Due to inflationary changes, there has been a gradual decrease in the value of the dollar over time. As a result, monetary losses in current offenses reflect, to some degree, a lower degree of harm and culpability than did equivalent amounts when the monetary tables were established or last substantively amended. Similarly, the fine levels recommended by the guidelines are lower in value than when they were last adjusted, and therefore, do not have the same sentencing impact as a similar fine in the past. Based on its analysis and widespread support for inflationary adjustments expressed in public comment, the Commission concluded that aligning the above monetary tables with modern dollar values is an appropriate step at this time.
The amendment adjusts each table based on inflationary changes since the year each monetary table was last substantially amended:
• Loss table in § 2B1.1 and tax table in § 2T4.1: adjusting for inflation from 2001 ($1.00 in 2001 = $1.34 in 2014);
• Loss tables in §§ 2B2.1 and 2B3.1 and fine table for individual defendants at § 5E1.2(c)(3): adjusting for inflation
• Volume of Commerce table in § 2R1.1: adjusting for inflation from 2005 ($1.00 in 2005 = $1.22 in 2014); and
• Fine table for organizational defendants at § 8C2.4(d): adjusting for inflation from 1991 ($1.00 in 1991 = $1.74 in 2014).
Adjusting from the last substantive amendment year appropriately accounts for the Commission's previous work in revising these tables at various times. Although not specifically focused on inflationary issues, previous Commissions engaged in careful examination (and at times, a wholesale rewriting) of the monetary tables and ultimately included monetary and enhancement levels that it considered appropriate at that time. The Commission estimates that this amendment would result in the Bureau of Prisons having approximately 224 additional prison beds available at the end of the first year after implementation, and approximately 956 additional prison beds available at the end of its fifth year of implementation.
Finally, the amendment adds a special instruction to both §§ 5E1.2 and 8C2.4 providing that, for offenses committed prior to November 1, 2015, the court shall use the fine provisions that were in effect on November 1, 2014, rather than the fine provisions as amended for inflation. This addition responds to concerns expressed in public comment that changes to the fine tables might create
3.
“(Apply the greatest) If the offense—
(A) (i) involved 10 or more victims; or (ii) was committed through mass-marketing, increase by 2 levels;
(B) involved 50 or more victims, increase by 4 levels; or
(C) involved 250 or more victims, increase by 6 levels.”,
and inserting the following:
“(Apply the greatest) If the offense—
(A) (i) involved 10 or more victims; (ii) was committed through mass-marketing; or (iii) resulted in substantial financial hardship to one or more victims, increase by 2 levels;
(B) resulted in substantial financial hardship to five or more victims, increase by 4 levels; or
(C) resulted in substantial financial hardship to 25 or more victims, increase by 6 levels.”;
in subsection (b)(10)(C) by inserting after “the offense otherwise involved sophisticated means” the following: “and the defendant intentionally engaged in or caused the conduct constituting sophisticated means”;
and in subsection (b)(16)(B) by inserting “or” at the end of subdivision (i), and by striking “; or (iii) substantially endangered the solvency or financial security of 100 or more victims”.
The Commentary to § 2B1.1 captioned “Application Notes” is amended in Note 3(A)(ii) by striking “(I) means the pecuniary harm that was intended to result from the offense; and” and inserting “(I) means the pecuniary harm that the defendant purposely sought to inflict; and”;
in Note 3(F)(ix) by striking “there shall be a rebuttable presumption that the actual loss attributable to the change in value of the security or commodity is the amount determined by—” and inserting “the court in determining loss may use any method that is appropriate and practicable under the circumstances. One such method the court may consider is a method under which the actual loss attributable to the change in value of the security or commodity is the amount determined by—”;
in Note 4 by striking “50 victims” and inserting “10 victims” at subdivision (C)(ii); and by inserting at the end the following new subdivision (F):
“(F)
(i) becoming insolvent;
(ii) filing for bankruptcy under the Bankruptcy Code (title 11, United States Code);
(iii) suffering substantial loss of a retirement, education, or other savings or investment fund;
(iv) making substantial changes to his or her employment, such as postponing his or her retirement plans;
(v) making substantial changes to his or her living arrangements, such as relocating to a less expensive home; and
(vi) suffering substantial harm to his or her ability to obtain credit.”;
in Note 9 by striking “Sophisticated Means Enhancement under” in the heading and inserting “Application of”; and by inserting at the end of the heading of subdivision (B) the following: “under Subsection (b)(10)(C)”;
and in Note 20(A)(vi) by striking both “or credit record” and “or a damaged credit record”.
First, the amendment revises the victims table in § 2B1.1(b)(2) to specifically incorporate substantial financial hardship to victims as a factor in sentencing economic crime offenders. As amended, the first tier of the victims table provides for a 2-level enhancement where the offense involved 10 or more victims or mass-marketing, or if the offense resulted in substantial financial hardship to one or more victims. The 4-level enhancement applies if the offense resulted in substantial financial hardship to five or more victims, and the 6-level enhancement applies if the offense resulted in substantial financial hardship to 25 or more victims. As a conforming change, the special rule in Application Note 4(C)(ii)(I), pertaining to theft of undelivered mail, is also revised to refer to 10 rather than 50 victims.
In addition, the amendment adds a non-exhaustive list of factors for courts to consider in determining whether the offense caused substantial financial hardship. These factors include: becoming insolvent; filing for bankruptcy; suffering substantial loss of a retirement, education, or other savings or investment fund; making substantial changes to employment; making substantial changes to living arrangements; or suffering substantial harm to the victim's ability to obtain credit. Two conforming changes are also included. First, one factor—substantial harm to ability to obtain credit—was previously included in Application Note 20(A)(vi) as a potential departure consideration. The amendment removes this language from the Application
The Commission continues to believe that the number of victims is a meaningful measure of the harm and scope of an offense and can be indicative of its seriousness. It is for this reason that the amended victims table maintains the 2-level enhancement for offenses that involve 10 or more victims or mass marketing. However, the revisions to the victims table also reflect the Commission's conclusion that the guideline should place greater emphasis on the extent of harm that particular victims suffer as a result of the offense. Consistent with the Commission's overall goal of focusing more on victim harm, the revised victims table ensures that an offense that results in even one victim suffering substantial financial harm receives increased punishment, while also lessening the cumulative impact of loss and the number of victims, particularly in high-loss cases.
Second, the amendment revises the commentary at § 2B1.1, Application Note 3(A)(ii), which has defined intended loss as “pecuniary harm that was intended to result from the offense.” In interpreting this provision, courts have expressed some disagreement as to whether a subjective or an objective inquiry is required.
The amendment adopts the approach taken by the Tenth Circuit by revising the commentary in Application Note 3(A)(ii) to provide that intended loss means the pecuniary harm that “the defendant purposely sought to inflict.” The amendment reflects the Commission's continued belief that intended loss is an important factor in economic crime offenses, but also recognizes that sentencing enhancements predicated on intended loss, rather than losses that have actually accrued, should focus more specifically on the defendant's culpability.
Third, the amendment narrows the focus of the specific offense characteristic at § 2B1.1(b)(10)(C) to cases in which the defendant intentionally engaged in or caused conduct constituting sophisticated means. Prior to the amendment, the enhancement applied if “the offense otherwise involved sophisticated means.” Based on this language, courts had applied this enhancement on the basis of the sophistication of the overall scheme without a determination of whether the defendant's own conduct was “sophisticated.”
Finally, the amendment revises the special rule at Application Note 3(F)(ix) relating to the calculation of loss in cases involving the fraudulent inflation or deflation in the value of a publicly traded security or commodity. When this special rule was added to the guidelines, it established a rebuttable presumption that the specified loss calculation methodology provides a reasonable estimate of the actual loss in such cases. As amended, the method provided in the special rule is no longer the presumed starting point for calculating loss in these cases. Instead, the revised special rule states that the provided method is one method that courts may consider, but that courts, in determining loss, are free to use any method that is appropriate and practicable under the circumstances. This amendment reflects the Commission's view that the most appropriate method to determine a reasonable estimate of loss will often vary in these highly complex and fact-intensive cases.
This amendment, in combination with related revisions to the mitigating role guideline at § 3B1.2 (Mitigating Role), reflects the Commission's overall goal of focusing the economic crime guideline more on qualitative harm to victims and individual offender culpability.
4.
The annotation to § 2D1.1(c) captioned “Notes to Drug Quantity Table” is amended in Note (B) in the last paragraph by striking “The term `Oxycodone (actual)' refers” and inserting “The terms `Hydrocodone (actual)' and `Oxycodone (actual)' refer”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 8(D), under the heading relating to Schedule I or II Opiates, by striking the line referenced to Hydrocodone/Dihydrocodeinone and inserting the following:
“
In 2013 and 2014, the Food and Drug Administration approved several new pharmaceuticals containing hydrocodone which can contain up to twelve times as much hydrocodone in a single pill than was previously available. Separately, in October 2014, the Drug Enforcement Administration moved certain commonly-prescribed pharmaceuticals containing hydrocodone from the less-restricted Schedule III to the more-restricted Schedule II. Among other things, the scheduling doubled the statutory maximum term of imprisonment available for trafficking in the pharmaceuticals that were previously controlled under Schedule III from 10 years to 20 years. The change also rendered obsolete the entries in the Drug Quantity Table and Drug Equivalency Table in § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) that set a marihuana equivalency for the pharmaceuticals that were previously controlled under Schedule III.
As a result of these administrative actions, all pharmaceuticals that include hydrocodone are now subject to the same statutory penalties. There is wide variation in the amount of hydrocodone available in these pharmaceuticals and in the amount of other ingredients (such as binders, coloring, acetaminophen, etc.) they contain. This variation raises significant proportionality issues within § 2D1.1, where drug quantity for hydrocodone offenses has previously been calculated based on the weight of the entire substance that contains hydrocodone or on the number of pills. Neither of these calculations directly took into account the amount of actual hydrocodone in the pills.
The amendment addresses these changed circumstances by setting a new marihuana equivalency for hydrocodone based on the weight of the hydrocodone alone. Without this change, defendants with less actual hydrocodone could have received a higher guideline range than those with more hydrocodone because pills with less hydrocodone can sometimes contain more non-hydrocodone ingredients, leading the lower-dose pills to weigh more.
In setting the marihuana equivalency, the Commission considered: Potency of the drug, medical use of the drug, and patterns of abuse and trafficking, such as prevalence of abuse, consequences of misuse including death or serious bodily injury from use, and incidence of violence associated with its trafficking. The Commission noted that the Drug Enforcement Administration's rescheduling decision relied in part on the close relationship between hydrocodone and oxycodone, a similar and commonly-prescribed drug that was already controlled under Schedule II. Scientific literature, public comment, and testimony supported the conclusion that the potency, medical use, and patterns of abuse and trafficking of hydrocodone are very similar to oxycodone. In particular, the Commission heard testimony from abuse liability specialists and reviewed scientific literature indicating that, in studies conducted under standards established by the Food and Drug Administration for determining the abuse liability of a particular drug, the potencies of hydrocodone and oxycodone when abused are virtually identical, even though some physicians who prescribe the two drugs in a clinical setting might not prescribe them in equal doses. Public comment indicated that both hydrocodone and oxycodone are among the top ten drugs most frequently encountered by law enforcement and that their methods of diversion and rates of diversion per kilogram of available drug are similar. Public comment and review of the scientific literature also indicated that the users of the two drugs share similar characteristics, and that some users may use them interchangeably, a situation which may become more common as the more powerful pharmaceuticals recently approved by the Food and Drug Administration become available.
Based on proportionality considerations and the Commission's assessment that, for purposes of the drug guideline, hydrocodone and oxycodone should be treated equivalently, the amendment adopts a marihuana equivalency for hydrocodone (actual) that is the same as the existing equivalency for oxycodone (actual): 1 gram equals 6,700 grams of marihuana.
5.
“In determining whether to apply subsection (a) or (b), or an intermediate adjustment, the court should consider the following non-exhaustive list of factors:
(i) the degree to which the defendant understood the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant's participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit from the criminal activity.
For example, a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline.
The fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative. Such a defendant may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.”;
in Note 4 by striking “concerted” and inserting “the criminal”;
and in Note 5 by inserting after “than most other participants” the following: “in the criminal activity”.
This amendment provides additional guidance to sentencing courts in determining whether a mitigating role adjustment applies. Specifically, it addresses a circuit conflict and other case law that may be discouraging courts from applying the adjustment in otherwise appropriate circumstances. It also provides a non-exhaustive list of factors for the court to consider in determining whether an adjustment applies and, if so, the amount of the adjustment.
Section 3B1.2 provides an adjustment of 2, 3, or 4 levels for a defendant who plays a part in committing the offense that makes him or her “substantially less culpable than the average participant.” However, there are differences among the circuits about what determining the “average participant” requires. The Seventh and Ninth Circuits have concluded that the “average participant” means only those persons who actually participated in the criminal activity at issue in the defendant's case, so that the defendant's relative culpability is determined only by reference to his or her co-participants in the case at hand.
The amendment generally adopts the approach of the Seventh and Ninth Circuits, revising the commentary to specify that, when determining mitigating role, the defendant is to be compared with the other participants “in the criminal activity.” Focusing the court's attention on the individual defendant and the other participants is more consistent with the other provisions of Chapter Three, Part B.
Next, the amendment addresses cases in which the defendant was “integral” or “indispensable” to the commission of the offense. Public comment suggested, and a review of case law confirmed, that in some cases a defendant may be denied a mitigating role adjustment solely because he or she was “integral” or “indispensable” to the commission of the offense.
The amendment also revises two paragraphs in Note 3(A) that illustrate how mitigating role interacts with relevant conduct principles in § 1B1.3. Specifically, the illustrations provide that certain types of defendants are “not precluded from consideration for” a mitigating role adjustment. The amendment revises these paragraphs to state that these types of defendants “may receive” a mitigating role adjustment. The Commission determined that the double-negative tone (“not precluded”) may have had the unintended effect of discouraging courts from applying the mitigating role adjustment in otherwise appropriate circumstances.
Finally, the amendment provides a non-exhaustive list of factors for the court to consider in determining whether to apply a mitigating role adjustment and, if so, the amount of the adjustment. The factors direct the court to consider the degree to which the defendant understood the scope and structure of the criminal activity, participated in planning or organizing the criminal activity, and exercised decision-making authority, as well as the acts the defendant performed and the degree to which he or she stood to benefit from the criminal activity. The Commission was persuaded by public comment and a detailed review of cases involving low-level offenders, particularly in fraud cases, that providing a list of factors will give the courts a common framework for determining whether to apply a mitigating role adjustment (and, if so, the amount of the adjustment) and will help promote consistency.
The amendment further provides, as an example, that a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for a mitigating role adjustment.
6.
Section 4A1.1(e) is amended by striking “such sentence was counted as a single sentence” and inserting “such sentence was treated as a single sentence”.
The Commentary to § 4A1.1 captioned “Application Notes” is amended in Note 5 by striking “are counted as a single sentence” and inserting “are treated as a single sentence”; and by striking “are counted as a single prior
Section 4A1.2(a)(2) is amended by striking “those sentences are counted separately or as a single sentence” and inserting “those sentences are counted separately or treated as a single sentence”; by striking “Count any prior sentence” and inserting “Treat any prior sentence”; and by striking “if prior sentences are counted as a single sentence” and inserting “if prior sentences are treated as a single sentence”.
The Commentary to § 4A1.2 captioned “Application Notes” is amended in Note 3 by redesignating Note 3 as Note 3(B), and by inserting at the beginning the following:
“
(A)
For example, a defendant's criminal history includes one robbery conviction and one theft conviction. The sentences for these offenses were imposed on the same day, eight years ago, and are treated as a single sentence under § 4A1.2(a)(2). If the defendant received a one-year sentence of imprisonment for the robbery and a two-year sentence of imprisonment for the theft, to be served concurrently, a total of 3 points is added under § 4A1.1(a). Because this particular robbery met the definition of a felony crime of violence and independently would have received 2 criminal history points under § 4A1.1(b), it may serve as a predicate under the career offender guideline.
Note, however, that if the sentences in the example above were imposed thirteen years ago, the robbery independently would have received no criminal history points under § 4A1.1(b), because it was not imposed within ten years of the defendant's commencement of the instant offense.
and in Note 3(B) (as so redesignated) by striking “Counting multiple prior sentences as a single sentence” and inserting “Treating multiple prior sentences as a single sentence”; and by striking “and the resulting sentences were counted as a single sentence” and inserting “and the resulting sentences were treated as a single sentence”.
The Commentary to § 4B1.2 captioned “Application Notes” is amended in Note 1 by striking “the sentences for the two prior convictions will be counted as a single sentence” and inserting “the sentences for the two prior convictions will be treated as a single sentence”.
When the defendant's criminal history includes two or more prior sentences that meet certain criteria specified in § 4A1.2(a)(2), those prior sentences are counted as a “single sentence” rather than separately. Generally, this operates to reduce the cumulative impact of prior sentences in determining a defendant's criminal history score. Courts, however, are divided over whether this “single sentence” rule also causes certain prior convictions that ordinarily would qualify as predicate offenses under the career offender guideline to be disqualified from serving as predicate offenses.
In 2010, in
In 2014, in
After the
The amendment generally follows the Sixth Circuit's approach in
The amendment ensures that those defendants who have committed more crimes, in addition to a predicate offense, remain subject to enhanced penalties under certain guidelines such as the career offender guideline. Conversely, by clarifying how the single sentence rule interacts with the time limits set forth in § 4A1.2(e), the amendment provides that when a prior sentence was so remote in time that it does not independently receive criminal history points, it cannot serve as a predicate offense.
7.
The Commentary to § 2B4.1 captioned “Statutory Provisions” is amended by striking “41 U.S.C. 53, 54” and inserting “41 U.S.C. 8702, 8707”.
The Commentary to § 2B4.1 captioned “Background” is amended by striking “41 U.S.C. 51, 53-54” and inserting “41 U.S.C. 8702, 8707”.
The Commentary to § 2C1.8 captioned “Statutory Provisions” is amended by striking “2 U.S.C.” and all that follows through “441k;” and after “18 U.S.C. 607” inserting “; 52 U.S.C. 30109(d), 30114, 30116, 30117, 30118, 30119, 30120, 30121, 30122, 30123, 30124(a), 30125, 30126”; and by striking “Statutory Index (Appendix A)” and inserting “Appendix A (Statutory Index)”.
The Commentary to § 2C1.8 captioned “Application Notes” is amended in Note 1 by striking “2 U.S.C. 441e(b)” and inserting “52 U.S.C. 30121(b)”; by striking “2 U.S.C. 431 et seq” and inserting “52 U.S.C. 30101
Section 2D1.11(e)(7) is amended in the line referenced to Norpseudoephedrine by striking “400” and inserting “400 G”.
The Commentary to § 2H2.1 captioned “Statutory Provisions” is amended by striking “42 U.S.C. 1973i, 1973j(a), (b)” and inserting “52 U.S.C. 10307, 10308(a), (b)”.
The Commentary to § 2H4.2 captioned “Application Notes” is amended in Note 2 by striking “
The Commentary to § 2M3.9 is amended by striking “§ 421” each place such term appears and inserting “§ 3121”; and by striking “§ 421(d)” and inserting “§ 3121(d)”.
The Commentary following § 3D1.5 captioned “Illustrations of the Operation of the Multiple-Count Rules” is amended by striking the heading as follows:
“
and inserting the following new heading:
“
in Example 1 by striking “convicted on” and inserting “convicted of”; and by striking “$12,000” and inserting “$21,000”;
in Example 2 by striking “Defendant C” and inserting “Defendant B”; by striking “convicted on” and inserting “convicted of”; and by striking “offense level for bribery (22)” and inserting “offense level for bribery (20)”;
and in Example 3 by striking “Defendant D” and inserting “Defendant C”; by striking “$27,000”, “$12,000”, “$15,000”, and “$20,000” and inserting “$1,000” in each place such terms appear; by striking “$74,000” and inserting “$4,000”; and by striking “16” both places such term appears and inserting “9”.
The Commentary to § 5E1.2 captioned “Application Notes” is amended in Note 5 by striking “2 U.S.C. 437g(d)(1)(D)” and inserting “52 U.S.C. 30109(d)(1)(D)”; and by striking “2 U.S.C. 441f” and inserting “52 U.S.C. 30122”.
Appendix A (Statutory Index) is amended by striking the following line references:
and inserting at the end the following new line references:
by striking the following line references:
and inserting after the line referenced to 50 U.S.C. App. § 2410 the following new line references:
and by striking the line referenced to 50 U.S.C. 421 and inserting after the line referenced to 50 U.S.C. 1705 the following new line reference:
First, the amendment sets forth technical changes to reflect the editorial reclassification of certain sections in the United States Code. Effective February 2014, the Office of the Law Revision Counsel transferred provisions relating to voting and elections from titles 2 and 42 to a new title 52. It also transferred provisions of the National Security Act of 1947 from one place to another in title 50. To reflect the new section numbers of the reclassified provisions, changes are made to—
(1) the Commentary to § 2C1.8 (Making, Receiving, or Failing to Report a Contribution, Donation, or Expenditure in Violation of the Federal Election Campaign Act; Fraudulently Misrepresenting Campaign Authority; Soliciting or Receiving a Donation in Connection with an Election While on Certain Federal Property);
(2) the Commentary to § 2H2.1 (Obstructing an Election or Registration);
(3) the Commentary to § 2M3.9 (Disclosure of Information Identifying a Covert Agent);
(4) Application Note 5 to § 5E1.2 (Fines for Individual Defendants); and
(5) Appendix A (Statutory Index).
Second, it makes stylistic and technical changes to the Commentary following § 3D1.5 (Determining the Total Punishment) captioned “Illustrations of the Operation of the Multiple-Count Rules” to better reflect its purpose as a concluding commentary to Part D of Chapter Three.
Finally, it makes clerical changes to—
(1) the Background Commentary to § 1B1.11 (Use of Guidelines Manual in Effect on Date of Sentencing (Policy Statement)), to correct a typographical error in a U.S. Reports citation;
(2) the Commentary to § 2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery), to correct certain United States Code citations to correspond with their respective references in Appendix A
(3) subsection (e)(7) to § 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), to add a missing measurement unit to the line referencing Norpseudoephedrine; and
(4) Application Note 2 to § 2H4.2 (Willful Violations of the Migrant and Seasonal Agricultural Worker Protection Act), to correct a typographical error in an abbreviation.
The Office of Management, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that The Office of Management, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before June 4, 2015.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7492 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Bureau of Industry and Security, Department of Commerce.
Proposed rule.
This proposed rule describes how articles the President determines no longer warrant control under Category XII (Fire Control, Range Finder, Optical and Guidance and Control Equipment) of the United States Munitions List (USML) of the International Traffic in Arms Regulations (ITAR) would be controlled under the Commerce Control List (CCL) by creating new “600 series” Export Control Classification Numbers (ECCN)s 6A615, 6B615 and 6D615 for military fire control, range finder, and optical items, by revising ECCN 7A611 and by creating new ECCNs 7B611, 7C611 and 7E611 for military optical and guidance items. In addition, for certain night vision items currently subject to the Export Administration Regulations (EAR), this rule proposes to expand the scope of control, eliminate the use of some license exceptions, and create new ECCNs for certain software and technology related to night vision items. This proposed rule would also expand the scope of end-use restrictions on certain exports and reexports of certain cameras, systems, or equipment and expand the scope of military commodities described in ECCN 0A919.
Comments must be received by July 6, 2015.
You may submit comments by any of the following methods:
• Federal eRulemaking Portal:
• By email directly to
• By mail or delivery to Regulatory Policy Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 2099B, 14th Street and Pennsylvania Avenue NW., Washington, DC 20230. Refer to RIN 0694-AF75.
Dennis Krepp, Office of National Security and Technology Transfer Controls, Bureau of Industry and Security, Telephone: 202-482-1309, Email:
This proposed rule is part of the Administration's Export Control Reform Initiative, the objective of which is to protect and enhance U.S. national security interests. The Initiative began in August 2009 when President Obama directed the Administration to conduct a broad-based review of the U.S. export control system to identify additional ways to enhance national security. Once the Department of State's International Traffic in Arms Regulations (ITAR) and its U.S. Munitions List (USML) are amended to control only the items that provide the United States with a critical military or intelligence advantage or otherwise warrant such controls, and the Export Administration Regulations (EAR) are amended to control military items that do not warrant USML controls, the U.S. export control system will enhance national security by (i) improving interoperability of U.S. military forces with allied countries, (ii) strengthening the U.S. industrial base by, among other things, reducing incentives for foreign manufacturers to design out and avoid US-origin content and services, and (iii) allowing export control officials to focus government resources on transactions that pose greater concern.
Pursuant to section 38(f) of the Arms Export Control Act (AECA), the President is obligated to review the USML “to determine what items, if any, no longer warrant export controls under” the AECA. The President must report the results of the review to Congress and wait 30 days before removing any such items from the USML. The report must “describe the nature of any controls to be imposed on that item under any other provision of law.” 22 U.S.C. 2778(f)(1).
BIS has published and will continue to publish additional
Following the structure set forth in the final rule entitled “Revisions to the Export Administration Regulations: Initial Implementation of Export Control Reform” (78 FR 22660, April 16, 2013) (“April 16 (initial implementation) rule”), this proposed rule describes BIS's proposal for controlling under the EAR and its CCL fire control, range finder, optical, and guidance and control equipment, and related articles now controlled by the ITAR's USML Category XII. The proposed changes described in this proposed rule and the corresponding changes in the State Department's proposed amendment to Category XII of the USML are based on a review of Category XII by the Defense Department, which worked with the Departments of State and Commerce in preparing the proposed amendments. The review was focused on identifying the types of articles that are currently controlled by USML Category XII that are either (i) inherently military and otherwise warrant control on the USML or (ii) if it is a type common to non-military equipment, possess parameters or characteristics that provide a critical military or intelligence advantage to the United States, and that are almost exclusively available from the United States. If an article satisfied one or both of those criteria, the article remained on the USML. If an article did not satisfy either standard, but was nonetheless a type of article that is, as a result of differences in form and fit, “specially designed” for military applications, it was identified in current or new ECCNs proposed in this notice.
In the April 16 (initial implementation) rule, BIS created a series of new ECCNs to control items that would be removed from the USML, or that are items from the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies Munitions List (Wassenaar Arrangement Munitions List or WAML) that are already controlled elsewhere on the CCL. That final rule referred to this series as the “600 series” because the third character in each of the new ECCNs would be a “6.” The first two characters of the 600 series ECCNs serve the same function as any other ECCN as described in § 738.2 of the EAR. The first character is a digit in the range 0 through 9 that identifies the
A “600 series” ECCN will not be created, however, if an existing ECCN is subject to controls for reasons other than Anti-Terrorism (AT) reasons and allows for identification, classification, and control of items transferred from the USML. Many of the items controlled under Category XII of the ITAR would also be subject to controls established by the Wassenaar Arrangement List of Dual-Use Goods and Technologies, which are reflected in many existing ECCNs on the CCL. Consequently, for many items, the review identified control parameters to delineate those items that would remain controlled under USML Category XII of the ITAR from those that would be subject to the lower threshold controls identified in the CCL. Accordingly, this proposed rule would revise the following existing ECCNs: 0A987, optical sighting devices for firearms; 2A984, concealed object detection equipment; 6A004, optical equipment and components; 6A005, lasers, components, and optical equipment; 6A007, gravity meters and gravity gradiometers; 6A008, radar systems, equipment, and assemblies; 6A107, gravity meters and gravity gradiometers; 7A001, accelerometers; 7A002, gyros or angular rate sensors; 7A003, inertial measurement equipment or systems; 7A005, Global Navigation Satellite Systems receiving equipment; 7A101, accelerometers; and 7A102, gyros. In order to maintain consistency with the Wassenaar Arrangement, proposed revisions to these ECCNs would not amend the control parameters in the Items paragraph of the ECCNs. Rather, most amendments add notes to the Related Controls paragraph or specific subparagraphs of the Items paragraph to reference the corresponding control under Category XII of the USML.
The review also identified several sensors and cameras that provide important night vision capability for military use but are also widely used in civil products and applications. In order to address the sensitivity of these items that are currently on the Wassenaar Arrangement's Dual-Use Control List and thus controlled under ECCNs 6A002 (optical sensors or equipment and components therefor) and 6A003 (cameras, systems or equipment, and components therefor) on the Commerce Control List, this proposed rule would amend the availability of License Exceptions STA and APR for certain items; revise the license review policy; expand the license requirement in § 744.9; expand software controls related to ECCNs 6A002 and 6A003 by revising ECCNs 6D002, 6D003, and 6D991; and create new ECCNs 6D994 and 6E994 for repair, maintenance, or overhaul software or technology for ECCNs 6A002, 6A003, or 6A990 commodities. In addition, this proposed rule proposes to revise controls for certain read-out integrated circuits in ECCN 6A990 and related software and technology in ECCNs 6D991 and 6E990, as well as newly proposed ECCNs 6D994 and 6E994. To ensure interagency review of all items in ECCNs 6A002 and 6A990, this proposed rule would establish a new RS control that would require a license to export or reexport these commodities, as well as related software and technology, to all destinations, including Canada. This worldwide RS control, described further in § 742.6(a)(8), would effectively add a license requirement for Canada for all exports and reexports of ECCNs 6A002 and 6A990 commodities.
This proposed rule would also amend ECCN 6A002 to specify that focal plane arrays controlled under that ECCN include certain focal plane arrays in a “permanent encapsulated sensor assembly”, as that term is proposed to be defined in § 772.1, are subject to the EAR. Under this proposed rule, focal plane arrays described in ECCN 6A002 that are not in a “permanent encapsulated sensor assembly” would be subject to the ITAR. Although these items are proposed to be subject to a worldwide license requirement, these commodities would be eligible for
This proposed rule would also revise controls pertaining to cameras classified under ECCN 6A993.a as a result of meeting the criteria to Note 3.a to ECCN 6A003.b.4.b (
For those items being transferred from Category XII of the ITAR that are not covered by an existing ECCN that have controls for reasons other than AT reasons, this proposed rule would create (or revise in the case of 7A611) the following “600 series” ECCNs: 6A615, military fire control, range finder, and optical equipment; 6B615, test, inspection, and production “equipment” and related commodities “specially designed” for the “development” or “production” of military fire control, range finder, and optical equipment; 6D615, software “specially designed” for the “development,” “production,” operation, or maintenance of military fire control, range finder, and optical equipment controlled by ECCNs 6A615 or 6B615; 6E615, technology “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of military fire control, range finder, and optical equipment controlled by 6A615 or 6B615 or software controlled under 6D615; 7A611, military guidance and control equipment; 7B611, test, inspection, and production “equipment” and related commodities “specially designed” for military guidance and control equipment; 7D611, software “specially designed” for the “development,” “production,” operation, or maintenance of commodities controlled by 7A611 or equipment controlled by 7B611; and 7E611, technology “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul or refurbishing of commodities controlled by 7A611, equipment controlled by 7B611, or software controlled by 7D611.
As the U.S. Government works through the proposed revisions to the USML and the related proposed new controls on the CCL, the agencies recognize that some proposed control parameters may control items in normal commercial use and on the Wassenaar Arrangement's Dual Use List. BIS believes that multiple perspectives would be beneficial to this process, and, while welcoming comments from all interested persons concerning any aspect of this proposed rule, it believes that input from users of the lists on the following issues would be particularly helpful.
(1) A key goal of this rulemaking is to ensure the USML and the CCL together control all items that meet Wassenaar Arrangement commitments embodied in USML Category XII. To that end, the public is asked to identify any potential lack of coverage brought about by the proposed rules when reviewed together.
(2) Another key goal of this rulemaking is to identify items proposed for control on the USML or the CCL that are not controlled on the Wassenaar Arrangement's Munitions or Dual Use List. The public is asked to identify any items proposed for control on the CCL that are not controlled on the Wassenaar Arrangement's Munitions or Dual Use List.
(3) A third key goal of this rulemaking is to establish a “bright line” between the USML and the CCL, and between the CCL's 600 series and the rest of the CCL, for control of the items at issue. The public is asked to provide specific examples of control criteria that do not clearly describe items that would be defense articles, and thus do not establish a “bright line” between the USML and the CCL, or between the 600 series and the rest of the CCL.
(4) Although the proposed revisions to the USML and the CCL do not preclude the possibility that items in normal commercial use would or should be ITAR-controlled because,
(5) If there are any criteria proposed in the revised USML Category XII or new 600 series entries that the public believes control items in normal commercial use, the public is asked to identify different parameters or characteristics that would cover items exclusively or primarily in military use.
(6) If there are any criteria the public believes control items in normal commercial use, the public is asked to identify the multilateral controls (such as the Wassenaar Arrangement's Dual Use List), if any, for such items, and the consequences of such items being controlled on the USML or the 600 series entries.
(7) BIS seeks public comment on the use of the phrase “permanent encapsulated sensor assembly” in this proposed rule.
(8) BIS also encourages comments on the proposed expansion of license requirements and removal of license exception availability on items, as described in this rule, that are currently exportable without a license or under a license exception.
(9) Finally, BIS seeks comments on the impact of the proposed new license requirements for the export to Canada of items described in this rule.
To address concerns regarding the control of night vision items currently subject to the EAR or proposed to be transferred from USML Category XII to the CCL, as well as foreign-made military commodities incorporating night vision items, this proposed rule would revise the policies for night vision items controlled in Category 6 by amending §§ 734.4(a), 740.16, 740.20, 742.6, and 744.9 of the EAR. These changes are described more fully herein.
Section 734.4(a)(5) of the EAR currently provides that there is no
Section 740.2 sets forth restrictions on all license exceptions. This rule would make technology for production of commodities defined in ECCNs 6A002.a.2 (image intensifier tubes), 6A002.a.3 (certain focal plane arrays), or 6A990 (read-out integrated circuits specially designed for focal plane arrays controlled by ECCN 6A003.a.2) and controlled under ECCNs 6E002 or 6E990 ineligible for any license exception. The restriction is being proposed because of the potential use of these tubes, arrays and integrated circuits in night vision devices.
Section 740.16 of the EAR currently authorizes specified reexports of items subject to the EAR by certain countries to specified destinations without individual licenses from BIS. To ensure appropriate control for items in ECCNs 6A002, 6A003, and 6A990, as well as items covered by ECCN 0A919 incorporating such items, this rule proposes to remove APR availability for reexports from Country Group A:1 or cooperating countries for items described in ECCNs 6A002, 6A003, and 6A990. However, cameras described in ECCN 6A003 may be exported or reexported under License Exception APR to and among Albania, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, South Africa, South Korea, Spain, Sweden, Switzerland, Turkey, and the United Kingdom if such cameras are fully packaged for use as consumer ready civil products or such cameras with not more than 111,000 elements are to be embedded in civil products. This rule also would make commodities described in ECCN 0A897 (optical sighting devices for firearms) that incorporate an image intensifier tube ineligible for export to and among countries in Country Group A:1 and cooperating countries under License Exception APR because of the night vision capability of those devices.
The EAR currently restricts the use of License Exception STA for specific commodities controlled by ECCNs 6A002 or 6A003, as well as related technology controlled by 6E001 or 6E002, for export or reexport to countries listed in § 740.20(c)(2). By amending § 740.20(b)(2), this rule proposes to remove License Exception STA availability for newly-proposed technology controlled under ECCN 0E987; all commodities controlled under ECCN 6A002; commodities
Section 742.6 sets forth controls that support U.S. foreign policy to maintain regional stability. This proposed rule would add new § 742.6(a)(8) to require a license worldwide for the export or reexport of some Category 0 and 6 items. Specifically, the new provision would pertain to: Commodities described in ECCNs 6A002 or 6A990; “software” described in ECCN 6D002 for the “use” of ECCN 6A002.b commodities; “software” described in ECCN 6D003.c; “software” described in ECCN 6D991 for the “development,” “production,” or “use” of ECCN 6A002, 6A003, or 6A990 commodities; “software” described in ECCN 6D994; “technology” described in ECCN 0E987; “technology” described in ECCN 6E001 for the “development” of ECCN 6A002 or 6A003 commodities; “technology” described in ECCN 6E002 for the “production” of ECCN 6A002 or 6A003 commodities; “technology” described in ECCN 6E990; and “technology” described in ECCN 6E994.
With the exception of military commodities controlled under ECCN 0A919, license applications for all commodities described above subject to the worldwide RS control will be reviewed on a case-by-case basis, as described in § 742.6(b)(1)(ii). However, license applications for all items described in the above paragraph, including military commodities controlled under ECCN 0A919, would be subject to ITAR licensing policies for exports or reexports of such items to military end users described in § 744.9(d) or for incorporation into a “military commodity” controlled by ECCN 0A919.
This rule further proposes to revise § 742.6(b)(1) to set forth a presumption of denial for exports or reexports of software controlled under ECCNs 6D002 (for the “use” of ECCN 6A002.b commodities), 6D003.c, and 6D991 (for the “development,” “production,” or “use” of commodities controlled under ECCNs 6A002, 6A003, or 6A990). Software controlled under ECCN 6D994, however, would be reviewed on a case-by-case basis.
With respect to technology, this proposed rule would revise § 742.6(b)(1) to set forth a presumption of denial for exports or reexports of technology controlled under ECCNs 0E987, 6E001 (for “development” of ECCN 6A002 or 6A003 commodities), 6E002 (for “production” of ECCN 6A002 or 6A003 commodities except for technology required for integration, mounting, inspection, testing, or quality assurance), and 6E990. However, applications for ECCN 6E002 “build-to-print technology” that is required for integration, mounting, inspection, testing, or quality assurance would be reviewed on a case-by-case basis.
This rule also would add ECCN 6A003.b (certain imaging cameras) to § 742.6(b)(1)(iii)(C) to apply the license application review policy of the ITAR if being exported or reexported for incorporation into a “military commodity” controlled by ECCN 0A919.
Finally, this rule proposes no substantive changes to the existing licensing policy described in current § 742.6(b)(1), but this rule does propose to re-structure the description of those policies under § 742.6(b)(1)(i)-(b)(1)(iv).
Section 744.9 currently requires a license for the export or reexport to any destination other than Canada for cameras controlled by ECCNs 6A003.b.3, 6A003.b.4.b, or 6A003.b.4.c when the exporter knows or is informed that the item is intended to be used by a “military end-user” or to be incorporated into a “military commodity” controlled by ECCN 0A919, in addition to other applicable license requirements in the EAR.
This proposed rule would revise § 744.9 to require a license for exports, reexports, or transfers (in-country) of commodities controlled by ECCN 0A987 (incorporating items in ECCNs 6A002 and 6A003, or certain cameras in 6A993.a), ECCN 6A002, ECCN 6A003, ECCN 6A990, ECCN 6A993.a commodities meeting the criteria of Note 3.a to ECCN 6A003.b.4.b., ECCN 8A002.d.1.c, and ECCN 8A002.d.2, when the exporter or reexporter knows or is informed that the item is intended to be used by a “military end-user” or to be incorporated into a “military commodity” controlled by ECCN 0A919. Commodities controlled by ECCN 6A993.a as a result of meeting the criteria of Note 3.a to ECCN 6A003.b.4.b are cameras with a maximum frame rate equal to or less than 9 Hz. Although these 9 Hz cameras are subject only to Anti-Terrorism controls, the U.S. Government determined that 9 Hz cameras are used in foreign-made military commodities and thus merited inclusion in § 744.9.
License applications submitted as a result of the proposed revisions of § 744.9 would be reviewed under the ITAR licensing policy described in §§ 742.6(b)(1)(iii) and 744.9(c).
To more precisely address the jurisdictional split for focal plane arrays described in ECCN 6A002, this rule proposes to add a definition for focal plane arrays in a “permanent encapsulated sensor assembly.” Focal plane arrays described in ECCN 6A002 that are focal plane arrays in a “permanent encapsulated sensor assembly” and are not otherwise subject to the ITAR would be subject to the EAR, while focal plane arrays described in ECCN 6A002 that are not in a “permanent encapsulated sensor assembly” would be subject to the ITAR.
ECCN 0A919 currently controls “military commodities” produced and located outside the United States that are not subject to the ITAR, and incorporate one or more cameras controlled under ECCNs 6A003.b.3, 6A003.b.4.b, or 6A003.b.4.c. In addition, ECCN 0A919 controls such “military commodities” if they incorporate more than a
To control the reexport of such military commodities that incorporate a wider group of items on the CCL, this proposed rule would revise ECCN 0A919 to control military commodities produced outside the United States that are not subject to the ITAR, and have any of the following characteristics: (i) Incorporate one or more commodities classified under ECCNs 6A002, 6A003, or 6A990; (ii) incorporate one or more commodities controlled under ECCN 6A993.a as a result of meeting the criteria specified in Note 3.a to ECCN 6A003.b.4.b (
This proposed rule would create a new ECCN for technology required for the “development” or “production” of commodities controlled by ECCN 0A987, if such commodities incorporate a focal plane array or image intensifier tube. ECCN 0E987 would be subject to a worldwide RS control and Anti-Terrorism (AT Column 1) control. In addition, items controlled by 0E987 would not be eligible for License Exception STA.
ECCN 6A002 currently controls specified optical sensors or equipment and components therefor. The Department of State's proposed rule for Category XII, which is being published concurrently with this rule, enumerates certain optical sensors and components, such as image intensifier tubes and focal plane arrays, that are subject to the ITAR. Consequently, this proposed rule adds references to the ITAR in the Related Controls paragraph of ECCN 6A002, as well as references to ECCN 0A919, § 744.9, and other related ECCNs.
ECCN 6A002 is currently subject to National Security (NS), Missile Technology (MT), Crime Control (CC), RS, Anti-Terrorism (AT), and United Nations (UN) reasons for control. To ensure interagency review of any proposed export or reexport of an ECCN 6A002 commodity, this proposed rule would revise this ECCN's RS control to require a license for all destinations, including Canada, for the entire entry. The proposed worldwide RS control eliminates the need to maintain the current RS column 1 control. Consequently, this proposed rule would revise the License Requirements section of ECCN 6A002 accordingly. Also, this rule proposes to add notes within the Items paragraph of the ECCN to further specify when items described in ECCN 6A002 (and on the Wassenaar Arrangement's Lists of Dual-Use Goods and Technologies) would be subject to the ITAR.
ECCN 6A003 currently controls specified cameras, systems or equipment and components therefor. Under the Department of State's proposed rule, Category XII(c) more positively enumerates certain items that are also described by ECCN 6A003. Consequently, this proposed rule adds a reference to USML Category XII(c) in the Related Controls paragraph of ECCN 6A003. Also, this rule revises the Related Controls references to ECCN 0A919 and § 744.9 to reflect the expansion of the applicability of those provisions to all of ECCN 6A003.
Under the Department of State's proposed rule to revise USML Category XII, certain read-out integrated circuits would be controlled under XII(e). Read-out integrated circuits (ROICs) that are “specially designed” for focal plane arrays controlled under ECCN 6A002.a.3 would be classified under ECCN 6A990 and subject to the worldwide RS control described in § 742.6(a)(8). In addition, these items would not be eligible for License Exception STA and would be subject to the limitations on the use of License Exception APR in § 740.16(a)(2) and (b)(2). This rule also proposes to insert references to Category XII(e), ECCN 0A919, and § 744.9 under the Related Controls paragraph. Also, this rule would allow for the use of License Exception LVS for this ECCN with a $500 value limit. This change would ensure that controls on ROICs subject to the EAR are not more restrictive than controls for ROICs proposed to be controlled in USML Category XII(e), which would be eligible for the exemption in § 123.16(b)(2) of the ITAR.
As previously mentioned, § 744.9 is proposed to be revised to require a license for 9 Hz cameras if exported to a “military end user” or if incorporated into a “military commodity.” To remind readers of the applicability of § 744.9 and ECCN 0A919 to 9 Hz cameras, this rule provides a reference to those provisions under the Related Controls paragraph of 6A993.
The Wassenaar Arrangement's Lists of Dual-Use Goods and Technologies impose limited controls on software related to commodities controlled under ECCNs 6A002 and 6A003. As a result, the CCL currently has the following multilateral and unilateral software controls related to such items: ECCN 6D002 (software “specially designed” for the “use” of commodities controlled under ECCN 6A002.b), ECCN 6D003.c (software designed or modified for cameras incorporating “focal plane arrays” specified by ECCN 6A002.a.3.f and designed or modified to remove a frame rate restriction and allow the camera to exceed the frame rate specified in ECCN 6A003.b.4 Note 3.a), and ECCN 6D991 (software specially designed for the “use” of commodities controlled under ECCN 6A002.a.1.d).
To address concerns regarding the lack of comprehensive software controls related to commodities controlled under ECCNs 6A002 and 6A003, as well as read-out integrated circuits in 6A990, this proposed rule would consolidate existing, unilateral software controls and would expand them to revise ECCN 6D991 to also control software, not elsewhere specified, that is “specially designed” for the “development,” “production,” or “use” of commodities controlled by ECCNs 6A002, 6A003, or 6A990. In addition, this proposed rule would create ECCN 6D994 to control software, not elsewhere specified, that is “specially designed” for the maintenance, repair, or overhaul of commodities controlled by ECCNs 6A002, 6A003, or 6A990. Under this proposed rule, ECCNs 6D002 (for ECCN 6A002.b commodities only), 6D003.c, 6D991 (for ECCNs 6A002, 6A003, or 6A990), and 6D994 would impose a worldwide RS control, which would be subject to the licensing policy described in § 742.6(a)(8). Also, this proposed rule would remove eligibility to use License Exception TSR for the software described above in ECCNs 6D002 and 6D003.
To prevent confusion over multiple ECCNs potentially controlling the same software, this proposed rule would add language to the Related Controls paragraphs of ECCNs 6D991 and 6D994 to confirm that software currently controlled under ECCNs 6D002 and 6D003.c would remain controlled under those provisions. To reflect this understanding, this proposed rule would also revise the Related Controls paragraphs of ECCNs 6D002 and 6D003 to provide references to ECCNs 6D991 and 6D994. Additionally, to ensure consistency of controls among ECCNs 6D002, 6D003, 6D991, and 6D994, this proposed rule would establish a worldwide RS control for 6D002 software “specially designed” for the “use” of commodities controlled under 6A002.b and for 6D003.c software.
ECCNs 6E001 and 6E002 currently control “development” and “production” technology, respectively, related to multiple ECCNs in Category 6, including items related to night vision in ECCNs 6A002 and 6A003. Since this proposed rule would expand the level of control for commodities in ECCNs 6A002 and 6A003 by adding a worldwide RS control, this rule would also add a worldwide RS control for 6E001 technology related to commodities controlled under ECCNs 6A002 or 6A003. Similarly, this rule would add a worldwide RS control for
Since this rule proposes to revise the entry for read-out integrated circuits in ECCN 6A990, which would be subject to a worldwide RS control, this rule would also revise ECCN 6E990, which would apply to “development” and “production” technology for such read-out integrated circuits. To ensure consistency of control, this proposed rule would add a worldwide RS license requirement, as described in § 742.6(a)(8), for such technology.
Since not all technology moving from USML Category XII to the CCL would be controlled under ECCN 6E615 or 7E611, this proposed rule would create new ECCN 6E994 to control technology required for the repair, maintenance, or overhaul of commodities controlled under ECCNs 6A002, 6A003, or 6A990. Such technology is not currently controlled under existing technology ECCNs in Category 6. Technology controlled under ECCN 6E994 would be subject to an RS control, which would impose a worldwide license requirement. License applications for 6E994 technology would be reviewed on a case-by-case basis, as described in proposed § 742.6(b)(1)(ii).
This proposed rule would create new ECCN 6A615 to control fire control, range finder, and optical commodities that would be removed from the USML and would not be covered by an existing ECCN subject to controls for reasons other than Anti-Terrorism (AT) reasons. ECCN 6A615.a through .c controls light detection and ranging (LIDAR), laser detection and ranging (LADAR), or laser range-gated systems or equipment having a resolution (
New ECCN 6B615 would control test, inspection, and production equipment and related commodities “specially designed” for the “development” or “production” of commodities described in ECCN 6A615 or military fire control, range finder, and optical equipment described in USML Category XII. Paragraph .a would impose controls on test, inspection, and production equipment “specially designed” for items controlled in ECCN 6A615 (excluding any items to be added to 6A615.y) or USML Category XII that are not enumerated in USML Category XII or controlled by a “600 series” ECCN. Paragraph .b would control environmental test facilities “specially designed” for certification, qualification, or testing of commodities controlled in ECCN 6A615 (except 6A615.y) or USML Category XII that are not enumerated in USML Category XII or a “600 series” ECCN. ECCN 6B615.c through .w would be reserved. Paragraph .x would control “parts,” “components,” “accessories,” and “attachments” that are “specially designed” for such test, inspection and production end items and equipment that are not enumerated on the USML or controlled by another “600 series” ECCN. Items in ECCN 6B615 would be controlled for NS, RS, AT, and UN reasons.
New ECCN 6D615 would control software “specially designed” for the “development,” “production,” operation, or maintenance of commodities controlled by 6A615 or 6B615. Such software would be controlled for NS, RS, AT, and UN reasons, with the exception of any software that would be added to 6D615.y, which would be controlled for AT reasons only.
New ECCN 6E615 would control “technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of items controlled by 6A615, 6B615, or 6D615. Such technology would be controlled for NS, RS, AT, and UN reasons, with the exception of any technology that would be added to 6E615.y, which would be controlled for AT reasons only.
This proposed rule would establish a “600 series” under ECCNs 7A611, 7B611, 7D611, and 7E611 for military guidance and control equipment, software, and technology. Categories 6 and 7 of the CCL currently control certain guidance and control equipment
Under this proposed “600 series,” ECCN 7A611 would control military guidance and control equipment that would be removed from USML Category XII and that are not covered by an existing ECCN subject to controls for reasons other than Anti-Terrorism (AT) reasons. Paragraph .a would control guidance, navigation, or control systems “specially designed” for a defense article enumerated on the USML or for a “600 series” ECCN and meeting any of the parameters described in 7A611.a.1 through a.5. Paragraph .b would control inertial measurement units, inertial reference units, or attitude and heading reference systems “specially designed” for a defense article enumerated on the USML or for a “600 series” ECCN, and incorporating accelerometers controlled by 7A611.c.1 or certain gyros controlled by 7A611.d. Paragraph .c would control accelerometers “specially designed” for a defense article enumerated on the USML or for a “600 series” ECCN and meeting any of the parameters described in 7A611.c.1 through c.3. Paragraph .d would control gyros “specially designed” for a defense article enumerated on the USML or for a “600 series” ECCN and meeting any of the parameters described in 7A611.d.1 through d.3. Paragraph .e would control gravity meters (gravimeters) “specially designed” for a defense article enumerated on the USML or for a “600 series” ECCN, and having automatic motion compensation and an accuracy of less (better) than 2 mGal and greater (worse) than 1 mGal. Paragraphs .f through .w would be reserved. Paragraph .x would control “parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity controlled by ECCN 7A611 (except 7A611.y) or a guidance and control defense article in USML Category XII and not controlled elsewhere on the USML or in 7A611.y or 3A611.y. All items controlled under 7A611 (excluding 7A611.y) would be controlled for NS, RS, AT, and UN reasons, while some of such items would also be controlled for MT reasons. Paragraph .y would control specific “parts,” “components,” “accessories,” and “attachments” “specially designed” for a commodity subject to control in ECCN 7A611, or a guidance and control defense article in USML Category XII and not elsewhere specified on the USML or in the CCL, and “parts,” “components,” “accessories,” and “attachments” “specially designed” therefor. No items would be listed in 7A611.y under this proposed rule, but should any items be added, they would be subject to AT controls only.
New ECCN 7B611 would impose controls on test, inspection, and production equipment and related commodities “specially designed” for military guidance and control equipment. Paragraph .a would control such equipment “specially designed” for the “production,” “development,” repair, overhaul, or refurbishing of items controlled in ECCN 7A611 or guidance and control items in USML Category XII that are not enumerated in USML Category XII or controlled by a “600 series” ECCN. Paragraph .b would control environmental test facilities “specially designed” for certification, qualification, or testing of commodities controlled in ECCN 7A611 (except 7A611.y) or guidance and control commodities in USML Category XII that are not enumerated in USML Category XII or a “600 series” ECCN. Paragraphs .c through .w are reserved. Paragraph .x would control parts, components, accessories, and attachments that are “specially designed” for such test, inspection and production equipment that are not enumerated on the USML or controlled by another “600 series” ECCN. Items in ECCN 7B611 would be controlled for NS, RS, AT, and UN reasons, with some items also being controlled for MT reasons.
New ECCN 7D611 would control software “specially designed” for the “development,” “production,” operation, or maintenance of commodities controlled by 7A611 or equipment controlled by 7B611. Such software would be controlled for NS, RS, AT, and UN reasons, with some software also being controlled for MT reasons. Any software added to 7D611.y would be controlled for AT reasons only. “Development” and “production” software described in 7D611.a would not be eligible for License Exception STA.
New ECCN 7E611 would control technology “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of items controlled by 7A611, 7B611, or 7D611. Such technology would be controlled for NS, RS, AT, and UN reasons, with some technology also being controlled for MT reasons. Any technology added to 7E611.y would be controlled for AT reasons only. “Development” and “production” technology described in 7E611.a would not be eligible for License Exception STA.
ECCNs 6A007 and 6A107 currently control certain gravity meters (gravimeters) and gravity gradiometers. Under the State Department's proposed rule, gravity meters and gravity gradiometers subject to the ITAR would be controlled under USML Category XII(d)(4) and (d)(5), respectively. Consequently, this proposed rule would add references to the Related Controls paragraphs of ECCNs 6A007 and 6A107 to refer readers to Category XII(d)(4) and (d)(5), as well as to gravity meters controlled under proposed ECCN 7A611.
ECCN 7A001 currently controls linear accelerometers in ECCN 7A001.a and angular or rotational accelerometers in ECCN 7A001.b that meet the parameters identified in those provisions. These parameters serve as the threshold for control under the Wassenaar Arrangement List of Dual-Use Goods and Technologies. Under the State Department's proposed rule, proposed Category XII(d)(2) identifies those parameters for accelerometers that would be subject to the ITAR. This proposed rule would add language to the Related Controls paragraph of ECCN 7A001 to refer readers to Category XII(d)(2) to help ensure jurisdictional clarity. Additionally, this rule proposes to add a reference to ECCN 7A611 for accelerometers controlled under the new 600 series.
ECCN 7A101 controls accelerometers other than those controlled under ECCN 7A001. As with the amendment to ECCN 7A001, this proposed rule would also add language to the Related
ECCN 7A002 controls gyros or angular rate sensors that meet the specifications set forth in the Wassenaar Arrangement List of Dual-Use Goods and Technologies. Under the State Department's proposed rule, proposed Category XII(d)(3) identifies those gyros that would be subject to the ITAR and distinguishes them from gyros subject to the EAR that meet the parameters established by the Wassenaar Arrangement. As such, this proposed rule would amend the Related Controls paragraph of ECCN 7A002 to add a reference to gyros controlled under proposed Category XII(d)(3). For gyros and angular rate sensors proposed to be moved from Category XII to the new 600 series, this rule proposes to add a reference to ECCN 7A611.
ECCN 7A102 controls gyros, other than those controlled under ECCN 7A002. As with the amendment to ECCN 7A002, this proposed rule would also add language to the Related Controls section of ECCN 7A102 to refer readers to the State Department's Category XII(d)(3) for gyros subject to the ITAR and to ECCN 7A611 for gyros controlled under the new “600 series.” This rule would also add references to ECCNs 7A002 and 7A994.
ECCN 7A003 controls inertial measurement equipment or systems that meet the parameters set forth in the Wassenaar Arrangement List of Dual-Use Goods and Technologies. Largely using many of the parameters identified by Wassenaar, proposed Category XII(d)(1) sets the threshold for guidance or navigation systems to be subject to the ITAR. As a result, this proposed rule would amend the Related Controls paragraph of ECCN 7A003 to refer readers to Category XII(d)(1) for such systems. In addition, this rule proposes to add a reference to ECCN 7A611 for inertial measurement units, inertial reference units, or heading reference systems controlled under the new “600 series.”
ECCN 0A987 currently controls specified optical sighting devices, and this proposed rule revises ECCN 0A987.f to specify that the entry controls laser aiming devices or laser illuminators designed for use on firearms, and having an operational wavelength exceeding 400 nm but not exceeding 710 nm with an output power less than or equal to 5 mW. A proposed note to ECCN 0A987.f would further specify that the entry does not control laser boresighting devices that must be placed in the bore or chamber to provide a reference for aligning the firearms sights. This proposed rule would also provide jurisdictional guidance in the Related Controls paragraph to more clearly delineate jurisdiction between USML Category XII and ECCN 0A987.
ECCN 2A984 currently controls concealed object detection equipment that operates in the frequency range from 30 GHz to 3000 GHz and has a spatial resolution of 0.5 milliradians up to and including 1 milliradian at a standoff distance of 100 meters. Under the Department of State's proposed revisions to USML Category XII, terahertz imaging equipment or systems having a peak response in the same frequency range but having a better resolution (
No items would move from the USML to ECCN 2A984 as a result of this proposed amendment. Rather, this proposed amendment helps establish a bright line to determine export control jurisdiction for these items.
ECCN 6A004 currently controls optical equipment and components, including gimbals meeting a number of parameters, including slew, bandwidth, angular pointing error, diameter, and angular acceleration. The Department of State proposes to control gimbals under Category XII(c) based on number of axes of active stabilization, minimum root-mean-square stabilization, and in some instances whether they are “specially designed” for items controlled under Category XII. Since the control parameters between ECCN 6A004 and Category XII(c) vary, this proposed rule would classify gimbals moving from the USML to the CCL under the 600 series ECCN 6A615. In addition, the proposed use of ECCN 6A615 over ECCN 6A004 reflects the concern that the gimbals should be controlled for RS column 1 reasons rather than national security (NS) column 2 reasons. To aid in properly determining jurisdiction and classification of gimbals, this proposed rule would amend the Related Controls paragraph of ECCN 6A004 to reference gimbals controlled under Category XII(c), gimbals controlled under new ECCN 6A615, and certain “space qualified” components subject to the ITAR.
ECCN 6A005 currently controls specified lasers, components and optical equipment. The Department of State's proposed rule for Category XII would establish controls for lasers under XII(b)(9) through (b)(13) that largely follow the control parameters established by the Wassenaar Arrangement List of Dual-Use Goods and Technologies. Essentially, the current Wassenaar controls establish a baseline of controls with no upper limit to designate those lasers that are inherently military. Therefore, the State Department's proposed rule amending Category XII would establish the upper threshold parameters for lasers subject to the ITAR. To reflect these parameters, this proposed rule would amend ECCN 6A005 to provide corresponding references under the applicable Items subparagraph. For example, this proposed rule would add a note to tunable lasers having an output wavelength exceeding 1,400 nm controlled under ECCN 6A005.c.3.b to refer readers to tunable semiconductor lasers in the same wavelength parameter that are controlled under USML Category XII(b)(10). This proposed rule would add similar reference notes to ECCNs 6A005.d.1.a.2, d.1.b.3, d.1.d.1.d, d.1.d.2.d, and d.1.d.3.b.
This proposed rule also proposes to revise the Related Controls paragraph of ECCN 6A005 to provide general references to lasers controlled under USML Category XII based on the parameters established by Wassenaar. Additionally, this proposed rule would add references in the Related Controls paragraph to XII(b)(9) for certain lasers for electronic combat systems controlled in Category XI, XII(b)(14) for developmental laser and laser systems funded by the Department of Defense, and XVIII for certain laser-based directed energy weapon items.
ECCN 6A008 currently controls radar systems, equipment, and assemblies, including certain laser detection and ranging (LADAR) and light detection and ranging (LIDAR) equipment under ECCN 6A008.j. The Department of
ECCN 7A005 currently controls specified Global Navigation Satellite Systems (GNSS) receiving equipment. No GNSS receiving equipment, including Global Position Satellite equipment, is proposed to move from the USML to the CCL as a result of the review of Category XII of the ITAR. However, this proposed rule proposes to amend the Related Controls section of ECCN 7A005 to use “GNSS” in place of “GPS” and to provide a reference to Categories XI and XII, which are the USML locations of such receivers.
To reflect the expansion of the scope of § 744.9 to apply to 8A002.d.1.c and .d.2 items, this proposed rule would add an additional sentence regarding § 744.9 to the Related Controls paragraph of 8A002.
The April 16 (initial implementation) rule imposed certain unique
Unless subject to the restrictions on the use of STA in § 740.20(b)(2), many of the fire control, range finder, optical, and guidance and control items described in this proposed rule would become eligible for several license exceptions, including STA, which would be available for exports to certain government agencies of NATO and other multi-regime allies. The exchange of information and statements required under STA is substantially less burdensome than the license application requirements currently required under the ITAR, as discussed in more detail in the “Regulatory Requirements” section of this proposed rule. Some items covered by this rule also would be eligible for the following license exceptions: LVS (limited value shipments), up to $1500, and RPL (servicing and parts replacement).
The Administration has stated since the beginning of the Export Control Reform Initiative that the reforms will be consistent with U.S. obligations to the multilateral export control regimes. Accordingly, the Administration will, in this proposed rule, exercise its national discretion to implement, clarify, and, to the extent feasible, align its controls with those of the regimes. USML Category XII encompasses multiple WAML categories, including ML 5 (
BIS seeks comments on this proposed rule. BIS will consider all comments received on or before July 6, 2015. All comments must be in writing and submitted via one or more of the methods listed under the
Since August 21, 2001, the Export Administration Act of 1979, as amended, has been in lapse. However, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 7, 2014, 79 FR 46959 (August 11, 2014) has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).
2. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the
As stated in the proposed rule published on July 15, 2011 (76 FR 41958) (“July 15 proposed rule”), BIS initially believed that the combined effect of all rules to be published adding items to the EAR that will be removed from the ITAR as part of the administration's Export Control Reform Initiative will increase the number of license applications to be submitted by approximately 16,000 annually. As the review of the USML has progressed, the interagency group has gained more specific information about the number of items that will come under BIS jurisdiction and whether those items would be eligible for export under license exception. As of June 21, 2012, BIS revised that estimate to an increase in license applications of 30,000 annually, resulting in an increase in burden hours of 8,500 (30,000 transactions at 17 minutes each) under control number 0694-0088. BIS continues to believe that its revised estimate is accurate.
Some items formerly on the USML would become eligible for License Exception STA under this rule. As stated in the July 15 proposed rule, BIS believes that the increased use of License Exception STA resulting from the combined effect of all rules to be published adding items to the EAR that would be removed from the ITAR as part of the Administration's Export Control Reform Initiative would increase the burden associated with control number 0694-0137 by about 23,858 hours (20,450 transactions at 1 hour and 10 minutes each).
BIS expects that this increase in burden would be more than offset by a reduction in burden hours associated with approved collections related to the ITAR. This proposed rule addresses controls on fire control, range finder, optical, and guidance and control items. With few exceptions, most exports of such items, even when destined to NATO member states and other close allies, require State Department authorization. In addition, the exports of technology necessary to produce such items in the inventories of the United States and its NATO and other close allies require State Department authorizations. Under the EAR, as proposed, such technology would become eligible for export to NATO member states and other close allies under License Exception STA unless otherwise specifically excluded. Use of License Exception STA imposes a paperwork and compliance burden because, for example, exporters must furnish information about the item being exported to the consignee and obtain from the consignee an acknowledgement and commitment to comply with the EAR. However, the Administration believes that complying with the requirements of STA is likely less burdensome than applying for licenses. For example, under License Exception STA, a single consignee statement can apply to an unlimited number of products, need not have an expiration date, and need not be submitted to the government in advance for approval. Suppliers with regular customers can tailor a single statement and assurance to match their business relationship rather than applying repeatedly for licenses with every purchase order to supply reliable customers in countries that are close allies or members of export control regimes or both.
This proposed rule would also require licenses for Canada for the following ECCNs that do not currently require a license for that destination: 6A002, 6A990, 6D002 (for 6A002.b items), 6D003.c, 6E001 (for 6A002 or 6A003 items), 6E002 (for 6A002 or 6A003 items), and 6E990. Further, this proposed rule would implement a worldwide license requirement for the following ECCNs that are currently controlled for anti-terrorism reasons or for new ECCNs that would control items currently designated as EAR99: 0E987; 6D991 (for 6A002, 6A003, or 6A990); and 6E994. In addition, the items described in this paragraph would be ineligible for License Exception STA under this proposed rule. BIS anticipates that these proposed changes would increase the number of license applications submitted and the number of § 743.3 reports submitted under control number 0694-0137. However, these proposed changes would also apply to items moving from Category XII of the USML to the CCL, and the burden likely will be reduced for such items when comparing license requirements of the ITAR to those of the EAR. In particular, license applications for exports of technology transferred from the USML to the CCL are likely to be less complex and burdensome than the authorizations required to export ITAR-controlled technology,
3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.
4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
This proposed rule is part of the Administration's Export Control Reform Initiative, which seeks to revise the USML to a positive list—one that does not use generic, catch-all controls for items listed—and to move some items that the President has determined no longer merit control under the ITAR to control under the CCL.
Although BIS does not collect data on the size of entities that apply for and are issued export licenses, and is therefore unable to estimate the exact number of small entities—as defined by the Small Business Administration's regulations implementing the RFA—BIS acknowledges that some small entities may be affected by this proposed rule.
The main effects on small entities resulting from this rule will be in application times, costs, and delays in receiving licenses to export goods subject to the CCL. However, while
Even where an exporter or reexporter would need to obtain a license under the EAR, that process is both cheaper and the process is more flexible than obtaining a license under the ITAR. For example, unlike the ITAR, the EAR does not require license applicants to provide BIS with a purchase order with the application, meaning that small (or any) entities can enter into negotiations or contracts for the sale of goods without having to caveat any sale presentations with a reference to the need to obtain a license under the ITAR before shipment can occur. Second, the EAR allows license applicants to obtain licenses to cover all expected exports or reexports to a particular consignee over the life of a license, rather than having to obtain a new license for every transaction.
In short, BIS expects that the changes to the EAR proposed in this rule will have a positive effect on all affected entities, including small entities. While BIS acknowledges that this rule may have some cost impacts to small (and other) entities, those costs are more than offset by the benefits to the entities from the licensing procedures under the EAR, which are much less costly and less time consuming than the procedures under the ITAR. Accordingly, the Chief Counsel for Regulation for the Department of Commerce has certified that this rule, if implemented, will not have a significant economic impact on a substantial number of small entities. Accordingly, an initial regulatory flexibility analysis is not required, and none has been prepared.
Administrative practice and procedure, Exports, Inventions and patents, Research Science and technology.
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Exports, Terrorism.
Exports, Reporting and recordkeeping requirements, Terrorism.
Exports.
Exports, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Export Administration Regulations (15 CFR parts 730-774) are proposed to be amended as follows:
50 U.S.C. app. 2401
(a) * * *
(5) There is no
50 U.S.C. app. 2401
(a) * * *
(7) Technology for “production” of commodities defined in ECCNs 6A002.a.2, 6A002.a.3, or 6A990 that is controlled under ECCNs 6E002 or 6E990.
(a) * * *
(2) The commodities being reexported are not controlled for NP, CB, MT, SI or CC reasons and are not military commodities described in ECCN 0A919; commodities described in 3A001.b.2 or b.3 (except those that are being reexported for use in civil telecommunications applications); or commodities described in ECCNs 6A002, 6A003, or 6A990; and
(b) * * *
(2) Except as provided in paragraph (b)(3) of this section, “military commodities” described in ECCN 0A919 and commodities described in ECCNs 6A002, 6A003, or 6A990 or commodities described in ECCN 0A987 incorporating an image intensifier tube, may not be reexported under this paragraph (b).
(3) Cameras described in ECCNs 6A003 may be exported or reexported to and among countries in Albania, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, South Africa, South Korea,
(i) Such cameras are fully packaged for use as consumer ready civil products; or,
(ii) Such cameras with not more than 111,000 elements are to be embedded in civil products.
(b) * * *
(2) * * *
(ii) License Exception STA may not be used for any item controlled under ECCNs 0A981, 0A982, 0A983, 0A985, 0E982, or 0E987.
(x) License Exception STA may not be used for items controlled by ECCNs 6A002; 6A990; 6D002 (software specially designed for the “use” of commodities controlled under 6A002.b); 6D003.c; 6D991 (software “specially designed” for the “development,” “production,” or “use” of commodities controlled under 6A002, 6A003, or 6A990); 6D994; 6E001 (“technology” for the “development” of commodities controlled under ECCNs 6A002 or 6A003); 6E002 “technology” (for the “production” of commodities controlled under ECCNs 6A002 or 6A003); 6E990; or 6E994.
50 U.S.C. app. 2401
(a) * * *
(8)
(i) “Technology” controlled under ECCN 0E987;
(ii) All commodities controlled under ECCNs 6A002;
(iii) All commodities controlled under ECCN 6A990;
(iv) “Software” controlled under ECCN 6D002 for the “use” of commodities controlled under 6A002.b;
(v) “Software” controlled under ECCN 6D003.c;
(vi) “Software” controlled under ECCN 6D991 for the “development,” “production,” or “use” of commodities controlled under ECCNs 6A002, 6A003, or 6A990;
(vii) “Software” controlled under ECCN 6D994;
(viii) “Technology” controlled under ECCN 6E001 for the “development” of commodities controlled under 6A002 or 6A003;
(ix) “Technology” controlled under ECCN 6E002 for the “production” of commodities controlled under 6A002 or 6A003;
(x) “Technology” controlled under 6E990; and
(xi) “Technology” controlled under ECCN 6E994.
(b)
(i) Applications for exports and reexports of 9x515 and “600 series” items will be reviewed on a case-by-case basis to determine whether the transaction is contrary to the national security or foreign policy interests of the United States, including the foreign policy interest of promoting the observance of human rights throughout the world. Applications for export or reexport of items classified under any 9x515 or “600 series” ECCN requiring a license in accordance with paragraph (a)(1) of this section will also be reviewed consistent with United States arms embargo policies in § 126.1 of the ITAR if destined to a country set forth in Country Group D:5 in Supplement No. 1 to part 740 of the EAR. Applications for export or reexport of “parts,” “components,” “accessories,” “attachments,” “software,” or “technology” “specially designed” or otherwise required for the F-14 aircraft will generally be denied. When destined to the People's Republic of China or a country listed in Country Group E:1 in Supplement No. 1 to Part 740 of the EAR, items classified under any 9x515 ECCN will be subject to a policy of denial.
(ii) Applications for exports and reexports described in paragraphs (a)(1), (a)(2), (a)(6), (a)(7), (a)(8)(ii), (a)(8)(iii), (a)(8)(vii), and (a)(8)(xi) of this section will be reviewed on a case-by-case basis to determine whether the export or reexport could contribute directly or indirectly to any country's military capabilities in a manner that would alter or destabilize a region's military balance contrary to the foreign policy interests of the United States.
(iii) The following applications will be reviewed applying the policies for similar items that are subject to the International Traffic in Arms Regulations (22 CFR parts 120-130):
(A) Reexports of items described in paragraph (a)(3) of this section;
(B) Exports or reexports of items described in paragraph (a)(8) of this section to military end users described in § 744.9(d); and
(C) Exports or reexports of commodities described in paragraphs (a)(8)(ii) and (a)(8)(iii) of this section or in ECCN 6A003.b for incorporation into a “military commodity” controlled by ECCN 0A919.
(iv) Applications for exports or reexports of software or technology described in paragraphs (a)(8)(i), (a)(8)(iv), (a)(8)(v), (a)(8)(vi), (a)(8)(viii), and (a)(8)(x) will be reviewed with a presumption of denial. There is also a presumption of denial for technology described in paragraph (a)(8)(ix), unless it is “build-to-print technology” that is required for integration, mounting, inspection, testing, or quality assurance (
50 U.S.C. app. 2401
(a)
(1) Used by a “military end-user,” as defined in paragraph (d) of this section; or
(2) Incorporated into a “military commodity” controlled by ECCN 0A919.
(b)
50 U.S.C. app. 2401
50 U.S.C. app. 2401
a. “Military commodities” produced and located outside the United States that are not subject to the International Traffic in Arms Regulations (22 CFR parts 120-130) and having any of the following characteristics:
a.1. Incorporate one or more commodities classified under ECCNs 6A002, 6A003, 6A990, or 6A993.a (having a maximum frame rate equal to or less than 9 Hz and thus meeting the criterion of Note 3.a to 6A003.b.4);
a.2. Incorporate more than a
a.3. Are direct products of U.S.-origin “600 series” technology or software (see § 736.2(b)(3) of the EAR).
b. [Reserved]
f. Laser aiming devices or laser illuminators designed for use on firearms, and having an operational wavelength exceeding 400 nm but not exceeding 710 nm with an output power less than or equal to 5 mW.
The list of items controlled is contained in the ECCN heading.
a. * * *
a.1. * * *
a.2. Image intensifier tubes and “specially designed” “components” therefor, as follows:
a.2.a. Image intensifier tubes having all of the following:
a.2.a.1. A peak response in the wavelength range exceeding 400 nm but not exceeding 1,050 nm;
a.2.a.2. Electron image amplification using any of the following:
a.2.a.2.a. A microchannel plate with a hole pitch (center-to-center spacing) of 12 μm or less;
a.2.a.2.b. An electron sensing device with a non-binned pixel pitch of 500 μm or less, “specially designed” or modified to achieve `charge multiplication' other than by a microchannel plate;
a.2.a.3. Any of the following photocathodes:
a.2.a.3.a. Multialkali photocathodes (
a.2.a.3.b. GaAs or GaInAs photocathodes;
a.2.a.3.c. Other “III-V compound” semiconductor photocathodes having a maximum “radiant sensitivity” exceeding 10 mA/W;
a.2.b. Image intensifier tubes having all of the following:
a.2.b.1. A peak response in the wavelength range exceeding 1,050 nm but not exceeding 1,800 nm;
a.2.b.2. Electron image amplification using any of the following:
a.2.b.2.a. A microchannel plate with a hole pitch (center-to-center spacing) of 12 μm or less;
a.2.b.2.b. An electron sensing device with a non-binned pixel pitch of 500 μm or less, “specially designed” or modified to achieve ‘charge multiplication' other than by a microchannel plate;
a.2.b.3. “III/V compound” semiconductor (
a.2.c. “Specially designed” “components” as follows:
a.2.c.1. Microchannel plates having a hole pitch (center-to-center spacing) of 12 μm or less;
a.2.c.2. An electron sensing device with a non-binned pixel pitch of 500 μm or less, “specially designed” or modified to achieve ‘charge multiplication’ other than by a microchannel plate;
a.2.c.3. “III-V compound” semiconductor (
a.3. Non-“space-qualified” “focal plane arrays” as follows:
a.3.a. Non-“space-qualified” “focal plane arrays” having all of the following:
a.3.a.1. Individual elements with a peak response within the wavelength range exceeding 900 nm but not exceeding 1,050 nm;
a.3.a.2. Any of the following:
a.3.a.2.a. A response “time constant” of less than 0.5 ns;
a.3.a.2.b. “Specially designed” or modified to achieve `charge multiplication' and having a maximum “radiant sensitivity” exceeding 10 mA/W;
a.3.b. Non-“space-qualified” “focal plane arrays” having all of the following:
a.3.b.1. Individual elements with a peak response in the wavelength range exceeding 1,050 nm but not exceeding 1,200 nm;
a.3.b.2. Any of the following:
a.3.b.2.a. A response “time constant” of 95 ns or less;
a.3.b.2.b. “Specially designed” or modified to achieve `charge multiplication' and having a maximum “radiant sensitivity” exceeding 10 mA/W;
a.3.c. Non-“space-qualified” non-linear (2-dimensional) “focal plane arrays” having individual elements with a peak response in the wavelength range exceeding 1,200 nm but not exceeding 30,000 nm;
a.3.d. Non-“space-qualified” linear (1-dimensional) “focal plane arrays” having all of the following:
a.3.d.1. Individual elements with a peak response in the wavelength range exceeding 1,200 nm but not exceeding 3,000 nm;
a.3.d.2. Any of the following:
a.3.d.2.a. A ratio of `scan direction' dimension of the detector element to the `cross-scan direction' dimension of the detector element of less than 3.8;
a.3.d.2.b. Signal processing in the detector elements;
a.3.e. Non-“space-qualified” linear (1-dimensional) “focal plane arrays” having individual elements with a peak response in the wavelength range exceeding 3,000 nm but not exceeding 30,000 nm;
a.3.f. Non-“space-qualified” non-linear (2-dimensional) infrared “focal plane arrays” based on `microbolometer' material having individual elements with an unfiltered response in the wavelength range equal to or exceeding 8,000 nm but not exceeding 14,000 nm;
a.3.g. Non-“space-qualified” “focal plane arrays” having all of the following:
a.3.g.1. Individual detector elements with a peak response in the wavelength range exceeding 400 nm but not exceeding 900 nm;
a.3.g.2. “Specially designed” or modified to achieve ‘charge multiplication’ and having a maximum “radiant sensitivity” exceeding 10 mA/W for wavelengths exceeding 760 nm;
a.3.g.3. Greater than 32 elements;
c. * * *
c.3. * * *
c.3.b. * * *
d. * * *
d.1. * * *
d.1.a. * * *
d.1.a.2. * * *
d.1.b. * * *
d.1.b.3. * * *
d.1.d. * * *
d.1.d.1. * * *
d.1.d.1.d. * * *
d.1.d.2. * * *
d.1.d.2.d. * * *
d.1.d.3. * * *
d.1.d.3.b. * * *
a. Light Detection and Ranging (LIDAR), Laser Detection and Ranging (LADAR), or laser range-gated systems or equipment having a resolution (
b. Gimbals permanently configured to contain a single payload consisting of a camera operating exclusively in the visible spectrum (
c. Zinc selenide, zinc sulfide, germanium or chalcogenide optics blanks, being flat or initially curved, and having any of the following:
c.1. Diameter exceeding 3 inches and thickness exceeding 1.5 inches;
c.2. Diameter exceeding 5 inches;
c.3. Length and width both exceeding 3 inches and thicknesses exceeding 1.5 inches; or
c.4. Length and width both exceeding 5 inches.
d. Weapon sights, weapon aiming systems or equipment, and weapon imaging systems or equipment (
e. Targeting or target location systems or equipment incorporating or “specially designed” to incorporate a laser rangefinder controlled in USML Cat XII(b)(3).
f. Mobile reconnaissance, scout or surveillance systems or equipment providing real-time target location.
g. Combat vehicle, tactical wheeled vehicle, naval vessel, or aircraft pilotage systems or equipment incorporating a variable field of view or field of regard, and incorporating a photon detector-based infrared focal plane array having less than 640 elements.
h. to w. [RESERVED]
x. “Parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity enumerated or otherwise described in ECCN 6A615 (except 6A615.y) or a defense article enumerated or otherwise described in Category XII and not elsewhere specified on the USML, in 6A615.y, or 3A611.y.
y. Specific “parts,” “components,” “accessories,” and “attachments” “specially designed” for a commodity subject to control in this ECCN or a fire control, range finder, or optical defense article in USML Category XII and not elsewhere specified on the USML or in the CCL, as follows, and “parts,” “components,” “accessories,” and “attachments” “specially designed” therefor:
y.1 [RESERVED]
a. Test, inspection, and production equipment (other than production equipment and components controlled in paragraph y of this entry) “specially designed” for the “production” or “development” of commodities controlled in ECCN 6A615 (except 6A615.y) or USML Category XII that are not enumerated in USML Category XII or “600 series” ECCN.
b. Environmental test facilities “specially designed” for the certification, qualification or testing of commodities controlled in ECCN 6A615 (except 6A615.y) or USML Category XII that are not enumerated in USML Category XII or “600 series” ECCN.
c. to w. [RESERVED]
x. “Parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity listed in this entry and that are not enumerated on the USML or controlled by another “600 series” ECCN.
a. “Software” “specially designed” for the “development,” “production,” operation or maintenance of commodities controlled by ECCNs 6A615 (except 6A615.y) or 6B615.
b. to x. [RESERVED]
y. Specific “software” “specially designed” for the “production,” “development,” or operation or maintenance of commodities described in 6A615.y.
The list of items controlled is contained in the ECCN heading.
The list of items controlled is contained in the ECCN heading.
(1) Items controlled for MT reasons;
(2) “Technology” for commodities controlled by 6A002, 6A003, 6A004.e, 6A008.j.1; or
(3) Exports or reexports to destinations outside of those countries listed in Country Group A:5 (See Supplement No. 1 to part 740 of the EAR) of “technology” for the “production” of the following: (a) Items controlled by 6A001.a.1.b, 6A001.a.1.e, 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.3, 6A001.a.2.a.5, 6A001.a.2.a.6, 6A001.a.2.b, 6A004.c, 6A004.d, 6A006.a.2, 6A006.c.1, 6A006.d, 6A006.e, 6A008.d, 6A008.h, 6A008.k, 6B008; and (b) Items controlled by 6A001.a.2.c and 6A001.a.2.f when “specially designed” for real time applications.
a. “Technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of commodities or software controlled by ECCNs 6A615 (except 6A615.y), 6B615, or 6D615 (except 6D615.y).
b. through x. [RESERVED]
y. Specific “technology” “required” for the “production,” “development,” operation, installation, maintenance, repair, or overhaul of commodities or “software” in ECCN 6A615.y or 6D615.y.
The list of items controlled is contained in the ECCN heading.
The list of items controlled is contained in the ECCN heading.
a. Guidance, navigation, or control systems “specially designed” for a defense article enumerated on the USML or for a “600 series” ECCN, and having any of the following:
a.1. A “CEP” of position error rate of less (better) than or equal to 0.70 nautical miles per hour and greater (worse) than 0.35 nautical miles per hour;
a.2. A heading error or true north determination of less (better) than or equal to 0.060 degree secant (latitude) and greater (worse) than 0.02865 degree secant (latitude);
a.3. Specified to function at linear acceleration levels exceeding 6 g and less than or equal to 25 g;
a.4. Stored heading aircraft carrier alignment features; or
a.5. Inertial measurement equipment or systems designed to use data from Global Navigation Satellite System (GNSS) or “DBRN” systems and having an INS navigation position accuracy subsequent to normal alignment of:
a.5.a. 20 meters CEP after loss of GNSS or “DBRN” for a period greater than 4 minutes but less than or equal to 30 minutes; or
a.5.b. 30 meters CEP after loss of GNSS or “DBRN” for a period greater than 30 minutes;
b. Inertial measurement units, inertial reference units, or attitude and heading reference systems “specially designed” for a defense article enumerated on the USML or for a “600 series” ECCN, and incorporating accelerometers meeting the control thresholds of 7A611.c.1, 7A611.c.2, 7A611.c.3, or USML Category XII(d), or gyros meeting the control thresholds of 7A611.d.1, 7A611.d.2, 7A611.d.3, or USML Category XII(d);
c. Accelerometers “specially designed” for a defense article enumerated on the USML or for a “600 series” ECCN, and having any of the following:
c.1. A bias stability of less (better) than or equal to 200 micro g and greater (worse) than or equal to 20 micro g;
c.2. A scale factor stability of less (better) than or equal to 200 parts per million and greater than or equal to 20 parts per million; or
c.3. Specified to function at linear acceleration levels exceeding 10 g;
d. Gyros or angular rate sensors “specially designed” for a defense article enumerated on the USML or for a “600 series” ECCN, and having any of the following:
d.1. An “angle random walk” of less (better) than or equal to 0.010 degree per square root hour and greater than or equal to 0.00125 degrees per square root hour;
d.2. A bias stability of less (better) than or equal to 0.015 degree per hour and greater than or equal to 0.0015 degrees per hour; or
d.3. Specified to function at linear acceleration levels exceeding 10 g;
e. Gravity meters (gravimeters) “specially designed” for a defense article enumerated on the USML or for a “600 series” ECCN, and having automatic motion compensation and an accuracy of less (better) than 2 mGal and greater (worse) than 1mGal.
f. to w. [RESERVED]
x. “Parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity enumerated or otherwise described in ECCN 7A611 (except 7A611.y) or a guidance and control defense article in Category XII and not elsewhere specified on the USML, in 7A611.y, or 3A611.y.
y. Specific “parts,” “components,” “accessories,” and “attachments” “specially designed” for a commodity subject to control in this ECCN or a guidance and control defense article in Category XII and not elsewhere specified on the USML or in the CCL, as follows, and “parts,” “components,” “accessories,” and “attachments” “specially designed” therefor:
y.1 [RESERVED]
a. Test, inspection, and production “equipment” “specially designed” for the “development,” “production,” repair, overhaul, or refurbishing of commodities controlled in ECCN 7A611 or guidance and control equipment in USML Category XII that are not enumerated in USML Category XII or “600 series” ECCN.
b. Environmental test facilities “specially designed” for the certification, qualification, or testing of commodities controlled in ECCN 7A611 (except 7A611.y) or guidance and control equipment in USML Category XII that are not enumerated in USML Category XII or “600 series” ECCN.
c. to w. [RESERVED]
x. “Parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity listed in this entry and that are not enumerated on the USML or controlled by another “600 series” ECCN.
a. “Software” “specially designed” for the “development,” “production,” operation or maintenance of commodities controlled by ECCNs 7A611 (except 7A611.y) or 7B611.
b. to x. [RESERVED]
y. Specific “software” “specially designed” for the “production,” “development,” or operation or maintenance of commodities described in 7A611.y.
a. “Technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of commodities or “software” controlled by ECCNs 7A611 (except 7A611.y), 7B611, or 7D611 (except 7D611.y).
b. through x. [RESERVED]
y. Specific “technology” “required” for the “production,” “development,” operation, installation, maintenance, repair, or overhaul of commodities or software controlled by ECCNs 7A611.y or 7D611.y.
Department of State.
Proposed rule.
As part of the President's Export Control Reform effort, the Department of State proposes to amend the International Traffic in Arms Regulations (ITAR) to revise Category XII (fire control, range finder, optical and guidance and control equipment) of the U.S. Munitions List (USML) to describe more precisely the articles warranting control on the USML.
The Department of State will accept comments on this proposed rule until July 6, 2015.
Interested parties may submit comments within 60 days of the date of publication by one of the following methods:
•
•
Mr. C. Edward Peartree, Director, Office of Defense Trade Controls Policy, Department of State, telephone (202) 663-2792; email
The Directorate of Defense Trade Controls (DDTC), U.S. Department of State, administers the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to the jurisdiction of the ITAR,
This proposed rule revises USML Category XII, covering fire control, range finder, optical and guidance and control equipment, to advance the national security objectives set forth above and to more accurately describe the articles within the category, in order to establish a “bright line” between the USML and the CCL for the control of these articles.
Paragraph (a) is revised to add subparagraphs (1) through (9) to more clearly describe the articles controlled in (a).
Paragraph (a)(1) is added for fire control systems and equipment.
Paragraph (a)(2) is added for weapons sights and weapons aiming or imaging systems, with certain infrared focal plane arrays, image intensifier tubes, ballistic computers, or lasers.
Paragraph (a)(3) is added for electronic or optical weapon positioning, laying, or spotting systems or equipment.
Paragraph (a)(4) is added for certain laser spot trackers and laser spot detectors.
Paragraph (a)(5) is added for bomb sights and bombing computers.
Paragraph (a)(6) is added for electro-optical missile or ordnance tracking or guidance systems.
Paragraph (a)(7) is added for electro-optical systems or equipment that automatically detect and locate weapons launch or fire.
Paragraph (a)(8) is added for certain remote wind sensing systems or equipment for enhanced targeting.
Paragraph (a)(9) is added for certain helmet mounted display (HMD) systems.
Paragraph (b) is revised to add subparagraphs (1) through (14) to more clearly describe the articles controlled in (b).
Paragraph (b)(1) is added for laser target designators or coded target markers.
Paragraph (b)(2) is added for certain infrared laser aiming or target illumination systems.
Paragraph (b)(3) is added for certain laser range finders.
Paragraph (b)(4) is added for certain targeting or target location systems.
Paragraph (b)(5) is added for optical augmentation systems.
Paragraph (b)(6) is added for certain light detection and ranging (LIDAR), laser detection and ranging (LADAR), or range-gated systems and includes a carve out for certain LIDAR systems for civil automotive applications.
Paragraph (b)(7) is added for certain synthetic aperture LIDAR or LADAR systems.
Paragraph (b)(8) is added for LIDAR, LADAR, or other laser range-gated identified in subparagraphs (i)-(vi).
Paragraph (b)(9) is added for certain lasers for electronic combat systems controlled in Category XI(a)(4).
Paragraph (b)(10) is added for certain tunable semiconductor lasers.
Paragraph (b)(11) is added for certain non-tunable single transverse mode semiconductor lasers.
Paragraph (b)(12) is added for certain non-tunable multiple transverse mode semiconductor lasers.
Paragraph (b)(13) is added for laser stacked arrays identified in subparagraphs (i)-(iv).
Paragraph (b)(14) is added for developmental lasers funded by the Department of Defense.
Paragraph (c) is revised to add subparagraphs (1) through (21) to more clearly describe the articles controlled in (c).
Paragraph (c)(1) is added for certain second and third generations image intensifier tubes (IITs).
Paragraph (c)(2) is added for certain photon detector, microbolometer detector, or multispectral detector infrared focal plane arrays (IRFPAs).
Paragraph (c)(3) is added for certain one-dimensional photon detector IRFPAs in a permanent encapsulated sensor assembly.
Paragraph (c)(4) is added for certain two-dimensional photon detector IRFPAs in a permanent encapsulated sensor assembly.
Paragraph (c)(5) is added for certain microbolometer IRFPAs in a permanent encapsulated sensor assembly.
Paragraph (c)(6) is added for multispectral IRFPAs in a permanent encapsulated sensor assembly.
Paragraph (c)(7) is added for certain charge multiplication focal plane arrays.
Paragraph (c)(8) is added for certain charge multiplication focal plane arrays in a permanent encapsulated sensor assembly.
Paragraph (c)(9) is added for certain integrated IRFPA dewar cooler assemblies (IDCAs).
Paragraph (c)(10) is added for gimbals with two or more axes of active stabilization having a minimum root-mean-square (RMS) stabilization better (less) than 200 microradians.
Paragraph (c)(11) is added for gimbals with two or more axes of active stabilization having a minimum root-mean-square (RMS) stabilization better (less) than 100 microradians.
Paragraph (c)(12) is added for infrared imaging camera cores identified in subparagraphs (i)-(xi). Camera cores meeting the shock tolerance criteria described in (c)(12)(ii) are controlled on the USML whether or not they are tested to meet these criteria.
Paragraph (c)(13) is added for binoculars, bioculars, monoculars, goggles, or head- or helmet-mounted imaging systems with IITs or camera cores controlled in this category.
Paragraph (c)(14) is added for certain targeting systems.
Paragraph (c)(15) is added for infrared search and track (IRST) systems.
Paragraph (c)(16) is added for infrared imaging systems identified in subparagraphs (i)-(ix).
Paragraph (c)(17) is added for certain terahertz imaging systems.
Paragraph (c)(18) is added for near-to-eye display systems or equipment, specially designed for articles controlled in this subchapter.
Paragraph (c)(19) is added for systems or equipment that project radiometrically calibrated scenes directly into the entrance aperture of an electro-optical or infrared (EO/IR) sensor controlled in this subchapter within either the spectral band exceeding 10 nm but not exceeding 400 nm, or the spectral band exceeding 900 nm but not exceeding 30,000 nm.
Paragraph (c)(20) is added for certain systems or equipment incorporating an infrared beacon or emitter specially designed for Identification Friend or Foe (IFF) and specially designed parts and components therefor.
Paragraph (c)(21) is added for developmental imaging systems funded by the Department of Defense.
A note is added to paragraph (c) to address the incorporation of these defense articles into commercial items. With minor exceptions, all bare IRFPAs are controlled in Category XII, paragraph (c)(2). However, once an IRFPA has been incorporated into a permanent encapsulated sensor assembly, it ceases to be controlled in paragraph (c)(2) because it is incorporated into a higher order assembly. The permanent encapsulated sensor assembly will be controlled in paragraphs (c)(3)-(6), if it meets the control parameters of one of those paragraphs. These control parameters are set at a level that the Department has determined excludes most commercial products. Further, once most IRFPAs and permanent encapsulated sensor assemblies are incorporated into a camera core, monocular, or binocular or other higher order system, that system will not be subject to the ITAR or require authorization from the Department for export, unless it is specifically enumerated. Most multi-spectral IRFPAs and IRFPAs with charge multiplication are excluded from the note and remain subject to the ITAR, even when incorporated into higher order assemblies or end-items. IRFPA, permanent encapsulated sensor assemblies, camera cores, monoculars, binoculars, and other higher order systems not enumerated on the USML are generally subject to the EAR.
Paragraph (d) is revised to move controls on Global Navigation Satellite System (GNSS) equipment from Category XV and to add subparagraphs (1) through (9) to more clearly describe the articles controlled in (d).
Paragraph (d)(1) is added for certain guidance or navigation systems.
Paragraph (d)(2) is added for certain accelerometers.
Paragraph (d)(3) is added for certain gyroscopes or angular rate sensors.
Paragraph (d)(4) is added for certain mobile relative gravimeters.
Paragraph (d)(5) is added for certain mobile gravity gradiometers.
Paragraph (d)(6) is added for Global Navigation Satellite System receiving equipment from Category XV.
Paragraph (d)(7) is added for certain GNSS anti-jam systems employing adaptive antennas.
Paragraph (d)(8) is added for certain GNSS security devices.
Paragraph (d)(9) is added for developmental guidance, navigation, or control devices, systems or equipment funded by the Department of Defense.
Paragraph (e) is revised to add subparagraphs (1) through (15) to more clearly describe the parts and components controlled in (e).
A significant aspect of this more positive, but not yet tiered, proposed USML category is that it does not contain controls on all generic parts, components, accessories, and attachments that are specifically designed or modified for a defense article, regardless of their significance to maintaining a military advantage for the United States. Rather, it contains, with a few exceptions, a positive list of specific types of parts, components, accessories, and attachments that continue to warrant control on the USML. The exceptions pertain to those parts, components, accessories, and attachments identified as “specially designed.”
Paragraph (e)(1) is added for specially designed optical sensors for electronic combat systems controlled in Category XI(a)(4).
Paragraph (e)(2) is added for certain image intensifier tube (IIT) parts and components identified in subparagraphs (i)-(vii).
Paragraph (e)(3) is added for certain wafers incorporating structures for Read-Out Integrated Circuits (ROICs)
Paragraph (e)(4)is added for ROICs specially designed for IRFPAs.
Paragraph (e)(5) is added for certain ROICs specially designed for a system, camera core, or packaged IRFPA controlled in paragraph (c).
Paragraph (e)(6) is added for specially designed vacuum packages or other sealed enclosures for an IRFPA or IIT controlled in paragraph (c).
Paragraph (e)(7) is added for integrated IRFPA dewar cooler assembly (IDCA) parts and components identified in subparagraphs (i)-(iv).
Paragraph (e)(8) is added for specially designed IRFPA Joule-Thomson (JT) self-regulating cryostats.
Paragraph (e)(9) is added for specially designed infrared lenses, mirrors, beam splitters or combiners, filters, and treatments and coatings.
Paragraph (e)(10) is added for specially designed drive, control, signal or image processing electronics.
Paragraph (e)(11) is added for signal processing electronics identified in subparagraphs (i)-(iii).
Paragraph (e)(12) is added for specially designed near-to-eye displays.
Paragraph (e)(13) is added for specially designed resonators, receivers, transmitters, modulators, gain media, and drive electronics or frequency converters.
Paragraph (e)(14) is added for two-dimensional infrared scene projector emitter arrays (
Paragraph (e)(15) is added for classified parts, components, accessories, attachments, and associated equipment.
A note is added to paragraph (e) to address the incorporation of these defense articles into commercial items.
Paragraph (f) is revised to more clearly describe the technical data and defense services controlled in paragraph (f).
Three notes are added to paragraph (f) to address technical data and defense services when incorporating defense articles into commercial items. Note 1 clarifies that technical data directly related to IITs, IRFPAs, integrated IRFPA dewar cooler assemblies and related wafers and ROICs controlled in this Category remains USML controlled, even when those defense articles are part of a system that is subject to the EAR. Note 2 enumerates certain technical data and software that are directly related to the defense articles controlled in this Category in paragraphs A, B, and C. It also includes a note to paragraph A, identifying certain technology that is not technical data. Note 3 states that certain technology for the incorporation or integration of IRFPAs and IITs in to items subject to the EAR, including into permanent encapsulated sensor assemblies, is subject to the EAR.
A new (x) paragraph has been added to USML Category XII, allowing ITAR licensing for commodities, software, and technology subject to the EAR provided those commodities, software, and technology are to be used in or with defense articles controlled in USML Category XII
Finally, articles common to the Missile Technology Control Regime (MTCR) Annex and the USML are to be identified on the USML with the parenthetical “(MT)” at the end of each section containing such articles. A separate proposed rule will address the sections in the ITAR that include MTCR definitions.
The following definitions explain and amplify terms used in this Category and are provided to assist exporters in understanding the scope of the proposed control.
Charge multiplication is a form of electronic image amplification, the generation of charge carriers as a result of an impact ionization gain process.
Focal plane array is a linear or two-dimensional planar layer, or combination of planar layers, of individual detector elements, with or without readout electronics, which work in the focal plane.
This definition does not include a stack of single detector elements or any two, three, or four element detectors provided time delay and integration is not performed within the element.
Image intensifier tube refers to an imaging device that incorporates a photoemissive transducer (
Microbolometer is a thermal imaging detector that, as a result of a temperature change in the detector caused by the absorption of infrared radiation, is used to generate a usable signal.
Multispectral refers to producing discrete outputs associated with more than one spectral band of response.
As the U.S. Government works through the proposed revisions to the USML, some control parameters are proposed recognizing that they will control items in normal commercial use and on the Wassenaar Arrangement's Dual Use List. With the thought that multiple perspectives would be beneficial to the USML revision process, the Department welcomes the assistance of users of the lists and requests input on the following:
(1) A key goal of this rulemaking is to ensure the USML and the CCL together control all the items that meet Wassenaar Arrangement commitments embodied in Munitions List Categories 5, 11 and 15 (WA-ML15) and the relevant Dual Use List Categories including the IRFPAs in Category 6 (WA-DU 6.A.2). To that end, the public is asked to identify any potential lack of coverage brought about by the proposed rules for Category XII contained in this notice and the new and revised ECCNs published separately by the Department of Commerce when reviewed together.
(2) Another key goal of this rulemaking is to identify items proposed for control on the USML or the CCL that are not controlled on the Wassenaar Arrangement's Munitions or Dual Use List. The public is asked to identify any items proposed for control on the USML that are not controlled on the Wassenaar Arrangement's Munitions or Dual Use List.
(3) A third key goal of this rulemaking is to establish a “bright line” between the USML and the CCL for the control of these materials. The public is asked to provide specific examples of control criteria that do not clearly describe items that would be defense articles and thus do not establish a “bright line” between the USML and the CCL.
(4) Although the proposed revisions to the USML do not preclude the possibility that items in normal commercial use would or should be ITAR-controlled because,
(5) For any criteria the public believes control items in normal commercial use, the public is asked to identify parameters or characteristics that cover
(6) For any criteria the public believes control items in normal commercial use, the public is asked to identify the multilateral controls (such as the Wassenaar Arrangement's Dual Use List), if any, for such items, and the consequences of such items being controlled on the USML.
(7) DDTC seeks public comments on each paragraph of the proposed USML Category XII. In addition, DDTC specifically seeks public comments on the following concepts that are introduced in proposed USML Category XII: A) Using integration of an IRFPA into a permanent encapsulated sensor assembly as a control parameter; B) using the incorporation of an IRFPA into an infrared imaging camera core as a control parameter and the definition of camera cores in the note to XII(c)(12); C) the weapon shock load control criterion in XII(c)(12)(ii); and D) proposed controls on specific technical data in XII(f).
The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules implementing this function are exempt from sections 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act (APA). Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule with a 60-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function.
Since this rule is exempt from the rulemaking provisions of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.
This proposed amendment does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This proposed amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.
This proposed amendment will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this proposed amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this proposed amendment.
Executive Orders 13563 and 12866 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).
The Department of State has reviewed the proposed amendment in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, Executive Order 13175 does not apply to this rulemaking.
Following is a listing of approved Department of State collections that will be affected by revision of the U.S. Munitions List (USML) and the Commerce Control List pursuant to the President's Export Control Reform (ECR) initiative. The list of collections and the description of the manner in which they will be affected pertains to revision of the USML in its entirety, not only to the categories published in this rule. In accordance with the Paperwork Reduction Act, the Department of State will request comment on these collections from all interested persons at the appropriate time. In particular, the Department will seek comment on changes to licensing burden based on implementation of regulatory changes pursuant to ECR, and on projected changes based on continued implementation of regulatory changes pursuant to ECR. The information collections are as follows:
(1) Statement of Registration, DS-2032, OMB No. 1405-0002. The Department estimates that between 3,000 and 5,000 of the currently-registered persons will not need to maintain registration following full revision of the USML. This would result in a burden reduction of between 6,000 and 10,000 hours annually, based on a revised time burden of two hours to complete a Statement of Registration.
(2) Application/License for Permanent Export of Unclassified Defense Articles and Related Unclassified Technical Data, DSP-5, OMB No. 1405-0003. The Department estimates that there will be 35,000 fewer DSP-5 submissions annually following full revision of the USML. This would result in a burden reduction of 35,000 hours annually.
(3) Application/License for Temporary Import of Unclassified Defense Articles, DSP-61, OMB No. 1405-0013. The Department estimates that there will be 200 fewer DSP-61 submissions annually following full revision of the USML. This would result in a burden reduction of 100 hours annually.
(4) Application/License for Temporary Export of Unclassified Defense Articles, DSP-73, OMB No. 1405-0023. The Department estimates that there will be 800 fewer DSP-73 submissions annually following full revision of the USML. This would result in a burden reduction of 800 hours annually.
(5) Application for Amendment to License for Export or Import of Classified or Unclassified Defense Articles and Related Technical Data, DSP-6, -62, -74, -119, OMB No. 1405-
(6) Request for Approval of Manufacturing License Agreements, Technical Assistance Agreements, and Other Agreements, DSP-5, OMB No. 1405-0093. The Department estimates that there will be 1,000 fewer agreement submissions annually following full revision of the USML. This would result in a burden reduction of 2,000 hours annually.
(7) Maintenance of Records by Registrants, OMB No. 1405-0111. The requirement to actively maintain records pursuant to provisions of the ITAR will decline commensurate with the drop in the number of persons who will be required to register with the Department pursuant to the ITAR. As stated above, the Department estimates that up to 5,000 of the currently-registered persons will not need to maintain registration following full revision of the USML. This would result in a burden reduction of 100,000 hours annually. However, the ITAR does provide for the maintenance of records for a period of five years. Therefore, persons newly relieved of the requirement to register with the Department may still be required to maintain records.
Arms and munitions, Exports.
Accordingly, for the reasons set forth above, title 22, chapter I, subchapter M, part 121 is proposed to be amended as follows:
Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.
*(a) Fire control, weapons sights, aiming, and imaging systems and equipment, as follows:
(1) Fire control systems or equipment, and specially designed parts and components therefor;
(2) Weapon sights, weapon aiming systems or equipment, and weapon imaging systems or equipment (
(i) An infrared focal plane array having a peak response at a wavelength exceeding 1,000 nm;
(ii) An article subject to this subchapter; or
(iii) A ballistic computer for adjusting the aim point display;
(3) Electronic or optical weapon positioning, laying, or spotting systems or equipment;
(4) Laser spot trackers or laser spot detection, location or imaging systems or equipment, with an operational wavelength shorter than 400 nm or longer than 710 nm, and a detection range greater than 300 m;
For controls on LIDAR, see paragraph (b)(9) of this category.
(5) Bomb sights or bombing computers;
(6) Electro-optical missile or ordnance tracking systems or equipment, or electro-optical ordnance guidance systems or equipment;
(7) Electro-optical systems or equipment that automatically detect and locate weapons launch or fire;
(8) Remote wind-sensing systems or equipment specially designed for ballistic-corrected aiming, and specially designed parts and components therefor;
(9) Helmet mounted display (HMD) systems or equipment, incorporating optical sights or slewing devices, which include the ability to aim, launch, track, or manage munitions, or control infrared imaging systems or equipment, other than such items controlled in Category VIII, (
*(b) Lasers, and laser systems and equipment, as follows:
(1) Laser target designators or coded target markers;
(2) Aiming or target illumination systems or equipment having a laser output wavelength exceeding 710 nm;
(3) Laser rangefinders having any of the following:
(i) Q-switched laser pulse; or
(ii) Laser output wavelength exceeding 1,000 nm;
(4) Targeting or target location systems or equipment incorporating or specially designed to incorporate a laser rangefinder controlled in paragraph (b)(3) of this category, and incorporating or specially designed to incorporate a Global Navigation Satellite System (GNSS), guidance or navigation article controlled in paragraph (d) of this category (MT if designed or modified for rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems capable of delivering at least a 500 kg payload to a range of at least 300 km range);
(5) Systems or equipment that use laser energy with an output wavelength exceeding 710 nm to exploit differential target-background retroreflectance in order to detect personnel or optical/electro-optical equipment (
(6) Light detection and ranging (LIDAR), laser detection and ranging (LADAR), or range-gated systems or equipment, incorporating or specially designed to incorporate an article controlled in this subchapter (MT if designed or modified for rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems capable of delivering at least a 500 kg payload to a range of at least 300 km);
This paragraph does not control LIDAR systems or equipment for civil automotive applications having a range limited to 200 m or less.
(7) Synthetic aperture LIDAR or LADAR systems or equipment, having a stand-off range of 100 m or greater (MT if designed or modified for rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems capable of delivering at least a 500 kg payload to a range of at least 300 km);
(8) LIDAR, LADAR, or other laser range-gated systems or equipment, as follows (MT if designed or modified for rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems capable of delivering at least a 500 kg payload to a range of at least 300 km):
(i) Systems or equipment having a resolution (
(ii) Aircraft systems or equipment having a laser output wavelength exceeding 1,000 nm and a detection range exceeding 500 m for an obstacle
(iii) Systems or equipment having an electrical bandwidth of 100 MHz or greater, and incorporating or specially designed to incorporate either a Geiger-mode detector array having at least 32 elements or a linear-mode detector array having at least 128 elements;
(iv) Systems or equipment employing coherent heterodyne or coherent homodyne detection techniques, having an angular resolution of less (better) than 100 microradians and an operational carrier noise ratio (CNR) less than 10;
(v) Systems or equipment that automatically classify or identify submersibles, mines, unexploded ordnance or improvised explosive devices (IEDs); or
(vi) Systems or equipment specially designed for obstacle avoidance or autonomous navigation in ground vehicles controlled in Category VII;
“Payload” is the total mass that can be carried or delivered by the specified rocket, missile, SLV, drone or unmanned aerial vehicle that is not used to maintain flight. For definition of “range” as it pertains to rocket systems, see note 1 to paragraph (a) of USML Category IV. For definition of “range” as it pertains to aircraft systems, see note to paragraph (a) of USML Category VIII.
(9) Lasers operating at a wavelength exceeding 3,000 nm that provide a modulated output for systems or equipment controlled in Category XI(a)(4);
(10) Tunable semiconductor lasers having an output wavelength exceeding 1,400 nm and an output power greater than 1 W;
(11) Non-tunable single transverse mode semiconductor lasers having an output wavelength exceeding 1,510 nm and either an average output power or continuous wave (CW) output power greater than 2 W;
(12) Non-tunable multiple transverse mode semiconductor lasers having an output wavelength exceeding 1,900 nm and either an average output power or CW output power greater than 2 W;
(13) Laser stacked arrays as follows:
(i) Having an output wavelength not exceeding 1,400 nm and a peak pulsed power density greater than 3,300 W/cm
(ii) Having an output wavelength exceeding 1,400 nm but less than 1,900 nm and a peak pulsed power density greater than 700 W/cm
(iii) Having an output wavelength exceeding 1,900 nm and a peak pulsed power density greater than 70 W/cm
(iv) Having an output wavelength exceeding 1,900 nm, and either an average output power or CW output power greater than 20W;
(14) Developmental lasers and laser systems or equipment funded by the Department of Defense;
This paragraph does not control developmental lasers and laser systems or equipment (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination (see § 120.4 of this subchapter), or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This provision is applicable to those contracts or other funding authorizations that are dated XXXX, 2016, or later.
*(c) Infrared focal plane arrays, image intensifier tubes, night vision, electro-optic, infrared and terahertz systems, equipment and accessories, including cameras and cores, as follows:
(1) Image intensifier tubes (IITs) having a peak response within the wavelength range exceeding 400 nm but not exceeding 2,050 nm and incorporating either a microchannel plate described in paragraph (e)(2)(i) of this category or electron sensing device described in paragraph (e)(2)(iv) of this category, as follows, and specially designed parts and components therefor:
(i) Incorporating a multialkali photocathode having a luminous sensitivity exceeding 500 microamps per lumen (
(ii) Incorporating a compound semiconductor photocathode having a radiant sensitivity exceeding 20 mA/W (
(2) Photon detector, microbolometer detector, or multispectral detector infrared focal plane arrays (IRFPAs) having a peak response within the wavelength range exceeding 900 nm but not exceeding 30,000 nm and not integrated into a permanent encapsulated sensor assembly, and detector elements therefor;
This paragraph does not control lead sulfide or lead selenide IRFPAs having a peak response within the wavelength range exceeding 1,000 nm but not exceeding 5,000 nm and not exceeding 16 detector elements, or pyrolectric IRFPAs with detectors composed of any of the following or their variants: Triglycine sulphate, lead-lanthanum-zirconium titanate, lithium tantalite, polyvinylidene fluoride, or strontium barium niobate.
For controls on readout integrated circuits (ROICs), see paragraphs (e)(4) and (e)(5) of this category.
(3) One-dimensional photon detector IRFPAs described in paragraph (c)(2) of this category in a permanent encapsulated sensor assembly, having greater than 640 detector elements;
(4) Two-dimensional photon detector IRFPAs described in paragraph (c)(2) of this category in a permanent encapsulated sensor assembly, having greater than 256 detector elements;
(5) Microbolometer IRFPAs described in paragraph (c)(2) of this category in a permanent encapsulated sensor assembly, having greater than 328,000 detector elements;
(6) Multispectral IRFPAs in a permanent encapsulated sensor assembly, having a peak response in any spectral band within the wavelength range exceeding 1,500 nm but not exceeding 30,000 nm;
(7) Charge multiplication focal plane arrays having greater than 1,600 elements in any dimension and having a maximum radiant sensitivity exceeding 50 mA/W for any wavelength exceeding 760 nm but not exceeding 900 nm, and avalanche detector elements therefor;
(8) Charge multiplication focal plane arrays described in paragraph (c)(7) of this category in a permanent encapsulated sensor assembly, and avalanche detector elements therefor;
(9) Integrated IRFPA dewar cooler assemblies (IDCAs), with or without an IRFPA, having any of the following:
(i) Cryocoolers having a cooling source temperature below 218 K and a mean-time-to-failure (MTTF) in excess of 3000 hours;
(ii) Active cold fingers;
(iii) Variable or dual aperture mechanisms; or
(iv) Dewars specially designed for articles controlled in paragraphs (a), (b), or (c) of this category;
(10) Gimbals with two or more axes of active stabilization having a minimum root-mean-square (RMS) stabilization better (less) than 200 microradians, and specially designed for articles controlled in this subchapter;
(11) Gimbals with two or more axes of active stabilization having a minimum root-mean-square (RMS) stabilization better (less) than 100 microradians;
This paragraph does not control gimbals containing only a non-removable camera payload operating exclusively in the visible spectrum (
(12) Infrared imaging camera cores (
(i) An image intensifier tube described in paragraph (c)(1) of this category;
(ii) Output imagery when subject to more than 20 weapon shock load events of 325 g for 0.4 ms and a microbolometer IRFPA having greater than 111,000 detector elements;
(iii) A microbolometer IRFPA described in paragraph (c)(2) of this category having greater than 328,000 detector elements, or a microbolometer IRFPA described in paragraph (c)(5) of this category;
(iv) An IDCA described in paragraph (c)(9) of this category, or IDCA parts or components described in paragraph (e)(7) of this category;
(v) A one-dimensional photon detector IRFPA described in paragraph (c)(2) of this category having a peak response within the wavelength range exceeding 900 nm but not exceeding 2,500 nm and greater than 640 detector elements;
(vi) A one-dimensional or two-dimensional photon detector IRFPA described in paragraph (c)(2) of this category having a peak response within the wavelength range exceeding 2,500 nm but not exceeding 30,000 nm and greater than 256 detector elements;
(vii) A one-dimensional photon detector IRFPA described in paragraph (c)(3) of this category;
(viii) A two-dimensional photon detector IRFPA described in paragraph (c)(2) or (4) of this category having a peak response within the wavelength range exceeding 900 nm but not exceeding 2,500 nm, and greater than 111,000 detector elements;
(ix) A two-dimensional photon detector IRFPA described in paragraph (c)(4) of this category having a peak response within the wavelength range exceeding 2,500 nm but not exceeding 30,000 nm;
(x) A multispectral infrared focal plane array described in paragraph (c)(2) or (6) of this category; or
(xi) A charge multiplication IRFPA controlled in paragraph (c)(7) or (8) of this category;
The articles controlled by this paragraph have sufficient electronics to enable as a minimum the output of an analog or digital signal once power is applied.
(13) Binoculars, bioculars, monoculars, goggles, or head or helmet-mounted imaging systems or equipment (including video-based articles having a separate near-to-eye display) that incorporate or are specially designed to incorporate any of the following, and specially designed electronics, optics, and displays therefor:
(i) An IIT controlled in this category; or
(ii) An infrared imaging camera core controlled in paragraph (c)(12)(i) through (xi) of this category;
The articles controlled in this paragraph include binoculars, bioculars, monoculars, goggles, or head- or helmet-mounted imaging systems or equipment (including video-based articles having a separate near-to-eye display) that incorporate or are specially designed to incorporate an IRFPA or IIT article (
(14) Targeting systems or equipment incorporating or specially designed to incorporate an article controlled in this category (
(15) Infrared search and track (IRST) systems or equipment that incorporate or are specially designed to incorporate an article controlled in this category, and maintain positional or angular state of a target through time, and specially designed parts and components therefor;
(16) Infrared imaging systems or equipment (
(i) Having two or more axes of active stabilization and a minimum root-mean-square (RMS) stabilization better (less) than 200 microradians;
(ii) Mobile reconnaissance, scout, or surveillance systems or equipment providing real-time target location at ranges greater than 5 km (
(iii) Fixed-site reconnaissance, surveillance or perimeter security systems or equipment having greater than 640 detector elements in any dimension;
(iv) Combat vehicle, tactical wheeled vehicle, naval vessel, or aircraft pilotage systems or equipment having a variable field of view or field of regard (
This paragraph does not control distributed aperture sensors specially designed for civil automotive lane departure warning or collision avoidance.
(v) Multispectral imaging systems or equipment that either incorporate a multispectral IRFPA described in paragraph (c)(2) or (6) of this category, or classify or identify military or intelligence targets or characteristics;
(vi) Automated missile detection or warning;
(vii) Hardened to withstand electromagnetic pulse (EMP) or chemical, biological, or radiological threats;
(viii) Incorporating mechanism(s) to reduce signature; or
(ix) Specially designed for military platforms controlled in USML Categories VI, VII or VIII (MT if designed or modified for unmanned aerial vehicle systems capable of delivering at least a 500 kg payload to a range of at least 300 km);
(17) Terahertz imaging systems or equipment having a peak response in the frequency range exceeding 30 GHz but not exceeding 3000 GHz and having a resolution less (better) than 0.5 milliradians at a standoff range of 100 m;
(18) Near-to-eye display systems or equipment, specially designed for articles controlled in this subchapter;
(19) Systems or equipment that project radiometrically calibrated scenes directly into the entrance aperture of an electro-optical or infrared (EO/IR) sensor controlled in this subchapter within either the spectral band exceeding 10 nm but not exceeding 400 nm, or the spectral band exceeding 900 nm but not exceeding 30,000 nm; or
(20) Systems or equipment incorporating an infrared (IR) beacon or emitter specially designed for Identification Friend or Foe (IFF), and specially designed parts and components therefor;
(21) Developmental imaging systems or equipment funded by the Department of Defense.
This paragraph does not control imaging systems or equipment (a) in production; (b) determined to be subject to the EAR via a commodity jurisdiction determination (see § 120.4 of this subchapter), or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This provision is applicable to those contracts or other funding authorizations that are dated XXXX, 2016, or later.
A permanent encapsulated sensor assembly (
The articles described in paragraphs (c)(1) through (5), (c)(7), (c)(8), and (c)(12) other than (c)(12)(ix) having greater than 640 detector elements in any dimension, and (c)(12)(x) are subject to the EAR when, prior to export, reexport, retransfer, or temporary import, they are integrated into and included as an integral part of an item subject to the EAR, and cannot be removed without destruction or damage to the article or render the item inoperable. Articles are not subject to the EAR until integrated into the item subject to the EAR. Defense articles intended to be integrated, and technical data and defense services directly related thereto remain subject to the ITAR prior to integration. See paragraph (f) of this category for enumerated technical data and software, and specific information subject to the EAR.
(d) Guidance, navigation, and control systems and equipment as follows:
(1) Guidance or navigation systems (
(i) Having a circle of equal probability (CEP) of position error rate less (better) than 0.35 nautical miles per hour;
(ii) Having a heading error or true north determination of less (better) than 0.50 mrad secant (latitude) (0.02865 degrees secant (latitude)); or
(iii) Specified to function at linear acceleration levels exceeding 25 g;
For aircraft and unmanned aerial vehicle guidance or navigation systems, see USML Category VIII(e). For rocket or missile flight control and guidance systems (including guidance sets), see USML Category IV(h).
(2) Accelerometers having a bias stability of less (better) than 20 μg, a scale factor stability of less (better) than 20 parts per million, or capable of measuring greater than 100,000 g (MT if having a scale factor repeatability less (better) than 1250 ppm and bias repeatability less (better) than 1250 micro g or specified to function at acceleration levels greater than 100 g);
For weapon fuze accelerometers, see USML Category III(d) or IV(h).
MT designation does not include accelerometers that are designed to measure vibration or shock.
(3) Gyroscopes or angular rate sensors having an angle random walk of less (better) than 0.00125 degree per square root hour or having a bias stability less (better) than 0.0015 degrees per hour (MT if having a rated drift stability of less than 0.5 degrees (1 sigma or rms) per hour in a 1 g environment or specified to function at acceleration levels greater than 100 g);
(4) Mobile relative gravimeters, having automatic motion compensation, with an in-service accuracy of less (better) than 0.4 mGal (MT if designed or modified for airborne or marine use and having a time to steady-state registration of two minutes or less);
(5) Mobile gravity gradiometers having an accuracy of less (better) than 10 Eötvös squared per radian per second for any component of the gravity gradient tensor, and having a spatial gravity wavelength resolution of 50 m or less (MT if designed or modified for airborne or marine use);
“Eötvös” is a unit of acceleration divided by distance that was used in conjunction with the older centimeter-gram-second system of units. The Eötvös is defined as 1/1,000,000,000 Galileo (Gal) per centimeter.
(6) Global Navigation Satellite System (GNSS) receiving equipment, as follows, and specially designed parts and components therefor:
(i) Global Navigation Satellite System (GNSS) receiving equipment specially designed for military applications (MT if designed or modified for airborne applications and capable of providing navigation information at speeds in excess of 600 m/s);
(ii) Global Positioning System (GPS) receiving equipment specially designed for encryption or decryption (
(iii) GPS receiving equipment specially designed for use with a null steering antenna, an electronically steerable antenna, or including a null steering antenna designed to reduce or avoid jamming signals (MT if designed or modified for airborne applications); or
The articles described in this paragraph are subject to the EAR when, prior to export, reexport, retransfer, or temporary import, they are integrated into and included as an integral part of an item subject to the EAR. Articles do not become subject to the EAR until integrated into the item subject to the EAR. Export, reexport, retransfer, or temporary import of, and technical data and defense services directly related to, defense articles intended to be integrated, remain subject to the ITAR.
(iv) GPS receiving equipment specially designed for use with rockets, missiles, space launch vehicles (SLVs), drones, or unmanned air vehicle systems capable of delivering at least a 500 kg payload to a range of at least 300 km (MT);
“Payload” is the total mass that can be carried or delivered by the specified rocket, missile, SLV, drone or unmanned aerial vehicle that is not used to maintain flight. For definition of “range” as it pertains to rocket systems, see note 1 to paragraph (a) of USML Category IV. For definition of “range” as it pertains to aircraft systems, see note to paragraph (a) of USML Category VIII.
(7) GNSS anti-jam systems employing adaptive antennas that have a minimum of four antenna elements, add 35 dB or greater anti-jam margin, and produce nulls in the direction of jammers or high-gain beams in the direction of satellites at any ranging code frequency;
(8) GNSS security devices (
(9) Developmental guidance, navigation, or control devices, systems or equipment funded by the Department of Defense (MT if designed or modified for rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems capable of a range equal to or greater than 300 km);
This paragraph does not control guidance, navigation, or control, systems, or equipment (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination (see § 120.4 of this subchapter), or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This provision is applicable to those contracts or other funding authorizations that are dated XXXX, 2016, or later.
For definition of “range” as it pertains to rocket systems, see note 1 to paragraph (a) of USML Category IV. For definition of “range” as it pertains to aircraft systems, see note to paragraph (a) of USML Category VIII.
(e) Parts, components, accessories, attachments, and associated equipment as follows:
(1) Optical sensors having a spectral filter for systems or equipment controlled in USML Category XI(a)(4), or optical sensor assemblies that provide threat warning or tracking for systems or equipment controlled in Category
(2) Image intensifier tube (IIT) parts and components as follows:
(i) Microchannel plates having a hole pitch (center-to-center spacing) of 12 µm or less;
(ii) Multialkali photocathodes (
(iii) III/V compound semiconductor (
(iv) Electron sensing devices with detectors having a non-binned center-to-center spacing less than 100 µm, and either achieving charge multiplication within the vacuum space other than by a microchannel plate or specially designed for operation with a microchannel plate;
(v) Phosphor screens, including output faceplates, specially designed for IITs controlled in this category;
(vi) Miniature autogated power supplies providing internal sensing and control of the photocathode to increase the dynamic range of IITs controlled in this category; or
(vii) Fiber-optic inverters, couplers or tapers specially designed for IITs controlled in this category;
(3) Wafers incorporating structures for either a ROIC controlled in paragraph (e)(4) or (5) of this category, or an IRFPA or detector elements therefor controlled in paragraph (c)(2) of this category;
(4) Read-Out Integrated Circuits (ROICs) specially designed for an IRFPA controlled in paragraph (c)(2) of this category or detector elements therefor, as follows:
(i) One-dimensional photon detector IRFPA having greater than 640 detector elements;
(ii) Two-dimensional photon detector IRFPA having greater than 256 detector elements;
(iii) A microbolometer IRFPA having greater than 19,200 elements; or
(iv) Multispectral IRFPA;
ROICs are specially designed for an infrared focal plane array detector even if the detector is incorporated into an item that is not enumerated on the U.S. Munitions List.
(5) ROICs specially designed for a camera/core/packaged IRFPA subject to the controls of this subchapter;
(6) Vacuum packages or other sealed enclosures for an IRFPA or IIT controlled in paragraph (c) of this category specially designed for incorporation or integration into an article controlled in paragraphs (a), (b), or (c) of this category;
(7) Integrated IRFPA dewar cooler assembly (IDCA) parts and components, as follows:
(i) Cryocoolers having a cooling source temperature below 218 K and a mean-time-to-failure (MTTF) in excess of 3000 hours;
(ii) Active cold fingers;
(iii) Variable or dual aperture mechanisms; or
(iv) Dewars specially designed for articles controlled in paragraphs (a), (b) or (c) of this category;
(8) IRFPA Joule-Thomson (JT) self-regulating cryostats specially designed for articles controlled in this subchapter;
(9) Infrared lenses, mirrors, beam splitters or combiners, filters, and treatments and coatings, specially designed for any article controlled in this category;
(10) Drive, control, signal or image processing electronics, specially designed for articles controlled in this category;
(11) Signal processing electronics, attachments or accessories that provide:
(i) Automatic or aided detection and recognition, classification, identification or discrimination of military or intelligence items;
(ii) Multi-sensor fusion other than image blending; or
Multi-sensor fusion refers to automatically combining imagery or information from two or more sensors, including at least one article controlled in this category, to improve classification, identification, or tracking of targets relative to any of the individual sensors.
(iii) Target aim point adjustment;
(12) Near-to-eye displays specially designed for articles controlled in this category;
(13) Resonators, receivers, transmitters, modulators, gain media, and drive electronics or frequency converters specially designed for laser systems or equipment controlled in this category;
(14) Two-dimensional infrared scene projector emitter arrays (
(15) Any part, component, accessory, attachment, or associated equipment, that:
(i) Is “classified”;
(ii) Contains “classified” software;
(iii) Is manufactured using “classified” production data; or
(iv) Is being developed using “classified” information.
“Classified” means classified pursuant to Executive Order 13526, or predecessor order, and a security classification guide developed pursuant thereto or equivalent, or to the corresponding classification rules of another government.
The articles described in this paragraph are subject to the EAR when, prior to export, reexport, retransfer, or temporary import, they are integrated into and included as an integral part of an item subject to the EAR, and cannot be removed without destruction or damage to the article or render the item inoperable. Articles are not subject to the EAR until integrated into the item subject to the EAR. Defense articles intended to be integrated, and technical data and defense services directly related thereto, remain subject to the ITAR prior to integration. See paragraph (f) of this category for enumerated technical data and software, and specific information subject to the EAR.
*(f) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (e) of this category. (See § 125.4 of this subchapter for exemptions.) (MT for technical data and defense services related to articles designated as such.)
Technical data and defense services directly related to image intensifier tubes and specially designed parts and components therefor controlled in paragraph (c)(1) of this category, infrared focal plane arrays (IRFPAs) and detector elements therefor controlled in paragraph (c)(2) of this category, integrated IRFPA dewar cooler assemblies (IDCAs) controlled in paragraph (c)(9) of this category, wafers incorporating IRFPA or ROIC structures controlled in paragraph (e)(3) of this category, and specially designed readout integrated circuits (ROICs) controlled in paragraphs (e)(4) and (5) of this category, remain subject to the ITAR even if the technical data or defense services could also apply to items subject to the EAR.
Software and technical data include:
A. Design or manufacturing process descriptions (
Technical data does not include information directly related to basic operating instructions, testing results, incorporating or integrating IRFPAs into higher level packaged assemblies not enumerated in this category, or external interface control documentation associated with such assemblies or assemblies subject to the EAR, provided such information does not include design methodology, engineering analysis, or manufacturing know-how for a USML controlled IRFPA.
B. Software that converts an article controlled in this category into an item subject to the EAR or an item subject to the EAR into an article controlled in this category is directly related to the defense article controlled in this category. When a defense article has been converted into an item subject to the EAR through software, the presence of the software that prevents the item from meeting or exceeding a USML control parameter does not make the item subject to the ITAR.
C. EO/IR simulation or projection system software that replicates via simulation either the output data or information provided by any article controlled in this category, a radiometrically calibrated spectral signature of any article controlled in this subchapter, volumetric effects of plumes or military operational obscurants, or countermeasure effects.
Technology for incorporating or integrating IRFPAs into permanent encapsulated sensor assemblies subject to the EAR, or integrating such assemblies into an item subject to the EAR, and integrating IITs into an item subject to the EAR, including integrating items subject to the EAR into foreign military commodities outside the United States, is subject to the EAR.
(g)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR (see § 120.42 of this subchapter) used in or with defense articles controlled in this category.
Use of this paragraph is limited to license applications for defense articles controlled in this category where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
This proposed rule would update the hospice payment rates and the wage index for fiscal year (FY) 2016, including implementing the last year of the phase-out of the wage index budget neutrality adjustment factor (BNAF). This proposed rule also discusses recent hospice payment reform research and analyses and proposes to differentiate payments for routine home care (RHC) based on the beneficiary's length of stay and to implement a service intensity add-on (SIA) payment for services provided in the last 7 days of a beneficiary's life, if certain criteria are met. In addition, this rule would implement changes to the aggregate cap calculation mandated by the Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act), align the cap accounting year for both the inpatient cap and the hospice aggregate cap with the federal fiscal year starting in FY 2017, make changes to the hospice quality reporting program, and would include a clarification regarding diagnosis reporting on the hospice claim.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on June 29, 2015.
In commenting, please refer to file code CMS-1629-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
a. For delivery in Washington, DC—
b. For delivery in Baltimore, MD—
Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
Debra Dean-Whittaker, (410) 786-0848 for questions regarding the CAHPS® Hospice Survey. Michelle Brazil, (410) 786-1648 for questions regarding the hospice quality reporting program. For general questions about hospice payment policy please send your inquiry via email to:
Wage index addenda will be available only through the internet on the CMS Web site at: (
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
Because of the many terms to which we refer by acronym in this proposed rule, we are listing the acronyms used and their corresponding meanings in alphabetical order below:
This rule proposes updates to the payment rates for hospices for fiscal year (FY) 2016, as required under section 1814(i) of the Social Security Act (the Act) and reflects the final year of the 7-year Budget Neutrality Adjustment Factor (BNAF) phase-out finalized in the FY 2010 Hospice Wage Index final rule (74 FR 39407). Our proposed update to payment rates for hospices also includes a proposal to
Section III.A of this proposed rule provides an update on hospice payment reform research and analysis. As a result of the hospice payment reform research and analysis conducted over the past several years, some of which is described in section III.A of this proposed rule and in various technical reports available on the CMS Hospice Center Web page (
In section III.C.1 of this rule, we propose to update the hospice wage index using a 50/50 blend of the existing CBSA designations and the new CBSA designations outlined in a February 28, 2013, OMB bulletin. Section III.C.2 of this rule implements year 7 of the 7-year BNAF phase-out finalized in the FY 2010 Hospice Wage Index final rule (74 FR 39407). In section III.C.3, we propose to update the hospice payment rates for FY 2016 by 1.8 percent. Section III.C.4 would implement changes mandated by the Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act), in which the aggregate cap for accounting years that end after September 30, 2016 and before October 1, 2025, would be updated by the hospice payment update rather than using the CPI-U. Specifically, the 2016 cap year, starting on November 1, 2015 and ending on October 31, 2016, would be updated by the FY 2016 percentage update for hospice care. In addition, in section III.D, we are proposing to align the cap accounting year for both the inpatient cap and the hospice aggregate cap with the fiscal year for FY 2017 and later. We believe that this would allow for the timely implementation of the IMPACT Act changes while better aligning the cap accounting year with the timeframe described in the IMPACT Act.
In section III.E of this rule, we discuss updates to the hospice quality reporting program, including participation requirements for current year (CY) 2015 regarding the Consumer Assessment of Healthcare Providers and Systems (CAHPS®) Hospice Survey, and remind the hospice industry that last year we set the July 1, 2014 implementation date for the Hospice Item Set (HIS) and the January 1, 2015 implementation date for the CAHPS® Hospice Survey. More than seven new quality measures will be derived from these tools; therefore, no new measures were proposed this year. Also, Section III.E of this rule will make changes related to the reconsideration process, extraordinary circumstance extensions or exemptions, hospice quality reporting program (HQRP) eligibility requirements for newly certified hospices and new data submission timeliness requirements and compliance thresholds. Finally, in Section III.F, we clarify that hospices must report all diagnoses of the beneficiary on the hospice claim as a part of the ongoing data collection efforts for possible future hospice refinements. We believe that reporting of all diagnoses on the hospice claim aligns with current coding guidelines as well as admission requirements for hospice certifications.
Hospice care is an approach to treatment that recognizes that the impending death of an individual warrants a change in the focus from curative care to palliative care for relief of pain and for symptom management. The goal of hospice care is to help terminally ill individuals continue life with minimal disruption to normal activities while remaining primarily in the home environment. A hospice uses an interdisciplinary approach to deliver medical, nursing, social, psychological, emotional, and spiritual services through use of a broad spectrum of professionals and other caregivers, with the goal of making the individual as physically and emotionally comfortable as possible. Hospice is compassionate patient and family-centered care for those who are terminally ill. It is a comprehensive, holistic approach to treatment that recognizes that the impending death of an individual necessitates a change from curative to palliative care.
Medicare regulations define “palliative care” as “patient and family-centered care that optimizes quality of life by anticipating, preventing, and treating suffering. Palliative care throughout the continuum of illness involves addressing physical, intellectual, emotional, social, and spiritual needs and to facilitate patient autonomy, access to information, and choice.” (42 CFR 418.3) Palliative care is at the core of hospice philosophy and care practices, and is a critical component of the Medicare hospice benefit.
Medicare hospice care is palliative care for individuals with a prognosis of living 6 months or less if the terminal illness runs its normal course. When an individual is terminally ill, many health problems are brought on by underlying condition(s), as bodily systems are interdependent. In the June 5, 2008 Hospice Conditions of Participation final rule (73 FR 32088), we stated that “the medical director must consider the primary terminal condition, related diagnoses, current subjective and objective medical findings, current medication and treatment orders, and information about unrelated conditions when considering the initial certification of the terminal illness.” As referenced in our regulations at § 418.22(b)(1), to be eligible for Medicare hospice services, the patient's attending physician (if any) and the hospice medical director must certify that the individual is “terminally ill,” as defined in section 1861(dd)(3)(A) of the Social Security Act (the Act) and our regulations at § 418.3 that is, the individual's prognosis is for a life expectancy of 6 months or less if the terminal illness runs its normal course. The certification of terminal illness must include a brief narrative explanation of the clinical findings that supports a life expectancy of 6 months or less as part of the certification and recertification forms, as set out at § 418.22(b)(3).
The goal of hospice care is to make the hospice patient as physically and emotionally comfortable as possible, with minimal disruption to normal activities, while remaining primarily in the home environment. Hospice care uses an interdisciplinary approach to deliver medical, nursing, social, psychological, emotional, and spiritual services through the use of a broad spectrum of professional and other caregivers and volunteers. While the goal of hospice care is to allow for the individual to remain in his or her home environment, circumstances during the end-of-life may necessitate short-term inpatient admission to a hospital, skilled nursing facility (SNF), or hospice facility for procedures necessary for pain control or acute or chronic symptom management that cannot be managed in any other setting. These acute hospice care services are to ensure that any new or worsening symptoms are intensively addressed so that the individual can return to his or her home environment at a home level of care. Short-term, intermittent, inpatient respite services are also available to the family of the hospice patient when needed to relieve the family or other caregivers. Additionally, an individual can receive continuous home care during a period of crisis in which an individual requires primarily continuous nursing care to achieve palliation or management of acute medical symptoms so that the individual can remain at home. Continuous home care may be covered on a continuous basis for as much as 24 hours a day, and these periods must be predominantly nursing care in accordance with our regulations at § 418.204. A minimum of 8 hours of nursing, or nursing and aide, care must be furnished on a particular day to qualify for the continuous home care rate (§ 418.302(e)(4)).
Hospices are expected to comply with all civil rights laws, including the provision of auxiliary aids and services to ensure effective communication with patients or patient care representatives with disabilities consistent with Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act, and to provide language access for such persons who are limited in English proficiency, consistent with Title VI of the Civil Rights Act of 1964. Further information about these requirements may be found at
Before the creation of the Medicare hospice benefit, hospice programs were originally operated by volunteers who cared for the dying. During the early development stages of the Medicare hospice benefit, hospice advocates were clear that they wanted a Medicare benefit that provided all-inclusive care for terminally-ill individuals, provided pain relief and symptom management, and offered the opportunity to die with dignity in the comfort of one's home rather than in an institutional setting.
As stated in the December 16,1983 Hospice final rule, the fundamental premise upon which the hospice benefit was designed was the “revocation” of traditional curative care and the “election” of hospice care for end-of-life symptom management and maximization of quality of life (48 FR 56008). After electing hospice care, the patient typically returns to the home from an institutionalized setting or remains in the home, to be surrounded by family and friends, and to prepare emotionally and spiritually for death while receiving expert symptom management and other supportive services. Election of hospice care also includes waiving the right to Medicare payment for curative treatment for the terminal prognosis, and instead receiving palliative care to manage pain or symptoms.
The benefit was originally designed to cover hospice care for a finite period of time that roughly corresponded to a life expectancy of 6 months or less. Initially, beneficiaries could receive three election periods: Two 90-day periods and one 30-day period. Currently, Medicare beneficiaries can elect hospice care for two 90-day periods and an unlimited number of subsequent 60-day periods; however, the expectation remains that beneficiaries have a life expectancy of 6 months or less if the terminal illness runs its normal course.
One requirement for coverage under the Medicare Hospice benefit is that hospice services must be reasonable and necessary for the palliation and management of the terminal illness and related conditions. Section 1861(dd)(1) of the Act establishes the services that are to be rendered by a Medicare certified hospice program. These covered services include: Nursing care; physical therapy; occupational therapy; speech-language pathology therapy; medical social services; home health aide services (now called hospice aide services); physician services; homemaker services; medical supplies (including drugs and biologics); medical appliances; counseling services (including dietary counseling); short-term inpatient care (including both respite care and procedures necessary for pain control and acute or chronic symptom management) in a hospital, nursing facility, or hospice inpatient facility; continuous home care during periods of crisis and only as necessary to maintain the terminally ill individual at home; and any other item or service which is specified in the plan of care and for which payment may otherwise be made under Medicare, in accordance with Title XVIII of the Act.
Section 1814(a)(7)(B) of the Act requires that a written plan for providing hospice care to a beneficiary who is a hospice patient be established before care is provided by, or under arrangements made by, that hospice program and that the written plan be periodically reviewed by the beneficiary's attending physician (if any), the hospice medical director, and an interdisciplinary group (described in section 1861(dd)(2)(B) of the Act). The services offered under the Medicare hospice benefit must be available, as needed, to beneficiaries 24 hours a day, 7 days a week (section 1861(dd)(2)(A)(i) of the Act). Upon the implementation of the hospice benefit, the Congress expected hospices to continue to use volunteer services, though these services are not reimbursed by Medicare (see Section 1861(dd)(2)(E) of the Act and (48 FR 38149)). As stated in the August 22, 1983 Hospice proposed rule, the hospice interdisciplinary group should be comprised of paid hospice employees as well as hospice volunteers (48 FR 38149). This expectation supports the hospice philosophy of holistic, comprehensive, compassionate, end-of-life care.
Before the Medicare hospice benefit was established, the Congress requested a demonstration project to test the feasibility of covering hospice care under Medicare. The National Hospice Study was initiated in 1980 through a grant sponsored by the Robert Wood Johnson and John A. Hartford Foundations and CMS (then, the Health Care Financing Administration (HCFA)). The demonstration project was conducted between October 1980 and March 1983. The project summarized the hospice care philosophy and principles as the following:
• Patient and family know of the terminal condition.
• Further medical treatment and intervention are indicated only on a supportive basis.
• Pain control should be available to patients as needed to prevent rather than to just ameliorate pain.
• Interdisciplinary teamwork is essential in caring for patient and family.
• Family members and friends should be active in providing support during the death and bereavement process.
• Trained volunteers should provide additional support as needed.
The cost data and the findings on what services hospices provided in the demonstration project were used to design the Medicare hospice benefit. The identified hospice services were incorporated into the service requirements under the Medicare hospice benefit. Importantly, in the August 22, 1983 Hospice proposed rule, we stated “the hospice benefit and the resulting Medicare reimbursement is not intended to diminish the voluntary spirit of hospices” (48 FR 38149).
Sections 1812(d), 1813(a)(4), 1814(a)(7), 1814(i), and 1861(dd) of the Act, and our regulations in part 418, establish eligibility requirements, payment standards and procedures, define covered services, and delineate the conditions a hospice must meet to be approved for participation in the Medicare program. Part 418, subpart G, provides for a per diem payment in one of four prospectively-determined rate categories of hospice care (RHC, CHC, inpatient respite care, and general inpatient care), based on each day a qualified Medicare beneficiary is under hospice care (once the individual has elected). This per diem payment is to include all of the hospice services needed to manage the beneficiaries' care, as required by section 1861(dd)(1) of the Act. There has been little change in the hospice payment structure since the benefit's inception. The per diem rate based on level of care was established in 1983, and this payment structure remains today with some adjustments, as noted below:
Section 6005(a) of the Omnibus Budget Reconciliation Act of 1989 (Pub. L. 101-239) amended section 1814(i)(1)(C) of the Act and provided for the following two changes in the
Section 4441(a) of the Balanced Budget Act of 1997 (BBA) (Pub. L. 105-33) amended section 1814(i)(1)(C)(ii)(VI) of the Act to establish updates to hospice rates for FYs 1998 through 2002. Hospice rates were updated by a factor equal to the hospital market basket percentage increase, minus 1 percentage point. Payment rates for FYs from 2002 have been updated according to section 1814(i)(1)(C)(ii)(VII) of the Act, which states that the update to the payment rates for subsequent FYs will be the hospital market basket percentage increase for the FY. The Act requires us to use the inpatient hospital market basket to determine hospice payment rates.
In the August 8, 1997 FY 1998 Hospice Wage Index final rule (62 FR 42860), we implemented a new methodology for calculating the hospice wage index based on the recommendations of a negotiated rulemaking committee. The original hospice wage index was based on 1981 Bureau of Labor Statistics hospital data and had not been updated since 1983. In 1994, because of disparity in wages from one geographical location to another, the Hospice Wage Index Negotiated Rulemaking Committee was formed to negotiate a new wage index methodology that could be accepted by the industry and the government. This Committee was comprised of representatives from national hospice associations; rural, urban, large and small hospices, and multi-site hospices; consumer groups; and a government representative. The Committee decided that in updating the hospice wage index, aggregate Medicare payments to hospices would remain budget neutral to payments calculated using the 1983 wage index, to cushion the impact of using a new wage index methodology. To implement this policy, a Budget Neutrality Adjustment Factor (BNAF) will be computed and applied annually to the pre-floor, pre-reclassified hospital wage index when deriving the hospice wage index, subject to a wage index floor.
Inpatient hospital pre-floor and pre-reclassified wage index values, as described in the August 8, 1997 Hospice Wage Index final rule, are subject to either a budget neutrality adjustment or application of the wage index floor. Wage index values of 0.8 or greater are adjusted by the (BNAF). Starting in FY 2010, a 7-year phase-out of the BNAF began (August 6, 2009 FY 2010 Hospice Wage Index final rule, (74 FR 39384)), with a 10 percent reduction in FY 2010, an additional 15 percent reduction for a total of 25 percent in FY 2011, an additional 15 percent reduction for a total 40 percent reduction in FY 2012, an additional 15 percent reduction for a total of 55 percent in FY 2013, and an additional 15 percent reduction for a total 70 percent reduction in FY 2014. The phase-out will continue with an additional 15 percent reduction for a total reduction of 85 percent in FY 2015, and an additional 15 percent reduction for complete elimination in FY 2016. We note that the BNAF is an adjustment which increases the hospice wage index value. Therefore, the BNAF reduction is a reduction in the amount of the BNAF increase applied to the hospice wage index value. It is not a reduction in the hospice wage index value or in the hospice payment rates.
Starting with FY 2013 (and in subsequent FYs), the market basket percentage update under the hospice payment system referenced in sections 1814(i)(1)(C)(ii)(VII) and 1814(i)(1)(C)(iii) of the Act will be annually reduced by changes in economy-wide productivity, as specified in section 1886(b)(3)(B)(xi)(II) of the Act, as amended by section 3132(a) of the Patient Protection and Affordable Care Act (Pub. L. 111-148) as amended by the Health Care and Education Reconciliation Act (Pub. L. 111-152) (collectively referred to as the Affordable Care Act)). In FY 2013 through FY 2019, the market basket percentage update under the hospice payment system will be reduced by an additional 0.3 percentage point (although for FY 2014 to FY 2019, the potential 0.3 percentage point reduction is subject to suspension under conditions as specified in section 1814(i)(1)(C)(v) of the Act).
In addition, sections 1814(i)(5)(A) through (C) of the Act, as amended by section 3132(a) of the Affordable Care Act, require hospices to begin submitting quality data, based on measures to be specified by the Secretary of the Department of Health and Human Services (the Secretary), for FY 2014 and subsequent FYs. Beginning in FY 2014, hospices which fail to report quality data will have their market basket update reduced by 2 percentage points.
Section 1814(a)(7)(D)(i) of the Act was amended by section 3132(b)(2)(D)(i) of the Affordable Care Act, and requires, effective January 1, 2011, that a hospice physician or nurse practitioner have a face-to-face encounter with the beneficiary to determine continued eligibility of the beneficiary's hospice care prior to the 180th-day recertification and each subsequent recertification, and to attest that such visit took place. When implementing this provision, we finalized in the CY 2011 Home Health Prospective Payment System final rule (75 FR 70435) that the 180th-day recertification and subsequent recertification's corresponded to the beneficiary's third or subsequent benefit periods. Further, section 1814(i)(6) of the Act, as amended by section 3132(a)(1)(B) of the Affordable Care Act, authorizes the Secretary to collect additional data and information determined appropriate to revise payments for hospice care and other purposes. The types of data and information suggested in the Affordable Care Act would capture accurate resource utilization, which could be collected on claims, cost reports, and possibly other mechanisms, as the Secretary determines to be appropriate. The data collected may be used to revise the methodology for determining the payment rates for RHC and other services included in hospice care, no earlier than October 1, 2013, as described in section 1814(i)(6)(D) of the Act. In addition, we are required to consult with hospice programs and the Medicare Payment Advisory Commission (MedPAC) regarding additional data collection and payment revision options.
When the Medicare Hospice benefit was implemented, the Congress included an aggregate cap on hospice payments, which limits the total aggregate payments any individual hospice can receive in a year. The Congress stipulated that a “cap amount” be computed each year. The cap amount was set at $6,500 per beneficiary when first enacted in 1983 and is adjusted annually by the change in the medical
When electing hospice, a beneficiary waives Medicare coverage for any care for the terminal illness and related conditions except for services provided by the designated hospice and attending physician. A hospice is to file a Notice of Election (NOE) as soon as possible to establish the hospice election within the claims processing system. Late filing of the NOE can result in inaccurate benefit period data and leaves Medicare vulnerable to paying non-hospice claims related to the terminal illness and related conditions and beneficiaries possibly liable for any cost-sharing associated costs. The FY 2015 Hospice Rate Update final rule (79 FR 50452) finalized a requirement that requires the NOE be filed within 5 calendar days after the effective date of hospice election. If the NOE is filed beyond this 5 day period, hospice providers are liable for the services furnished during the days from the effective date of hospice election to the date of NOE filing (79 FR 50454, 50474). Similar to the NOE, the claims processing system must be notified of a beneficiary's discharge from hospice or hospice benefit revocation. This update to the beneficiary's status allows claims from non-hospice providers to process and be paid. Upon live discharge or revocation, the beneficiary immediately resumes the Medicare coverage that had been waived when he or she elected hospice. The FY 2015 Hospice Rate Update final rule also finalized a requirement that requires hospices to file a notice of termination/revocation within 5 calendar days of a beneficiary's live discharge or revocation, unless the hospices have already filed a final claim. This requirement helps to protect beneficiaries from delays in accessing needed care (79 FR 50509).
A hospice “attending physician” is described by the statutory and regulatory definitions as a medical doctor, osteopath, or nurse practitioner whom the patient identifies, at the time of hospice election, as having the most significant role in the determination and delivery of his or her medical care. We received reports of problems with the identification of the patient's designated attending physician and a third of hospice patients had multiple providers submit Part B claims as the “attending physician” using a modifier. The FY 2015 Hospice Rate Update final rule finalized a requirement that the election form must include the beneficiary's choice of attending physician and that the beneficiary provide the hospice with a signed document when he or she chooses to change attending physicians (79 FR 50479).
Hospice providers are required to begin using a Hospice Experience of Care Survey for informal caregivers of hospice patients surveyed in 2015. The FY 2015 Hospice Rate Update final rule provided background and a description of the development of the Hospice Experience of Care Survey, including the model of survey implementation, the survey respondents, eligibility criteria for the sample, and the languages in which the survey is offered. The FY 2015 Hospice Rate Update final rule also outlined participation requirements for CY 2015 and discussed vendor oversight activities and the reconsideration and appeals process (79 FR 50496).
Finally, the FY 2015 Hospice Rate Update final rule requires providers to complete their aggregate cap determination within 5 months after the cap year, but not sooner than 3 months after the end of the cap year, and remit any overpayments. Those hospices that do not submit their aggregate cap determinations will have their payments suspended until the determination is completed and received by the Medicare Administrative Contractor (MAC) (79 FR 50503).
The Improving Medicare Post-Acute Care Transformation Act (IMPACT Act) of 2014 became law on October 6, 2014 (Pub. L. 113-185). Section 3(a) of the IMPACT Act mandates that all Medicare certified hospices be surveyed every 3 years beginning April 6, 2015 and ending September 30, 2025, as it was found that surveys of hospices were being performed on an infrequent basis. In addition, the IMPACT Act also implements a provision set forth in the Affordable Care Act that requires medical review of hospice cases involving patients receiving more than 180 days care in select hospices that show a preponderance of such patients, and the IMPACT Act contains a new provision mandating that the aggregate cap amount for accounting years that end after September 30, 2016, and before October 1, 2025 be updated by the hospice payment update rather than using the consumer price index for urban consumers (CPI-U) for medical care expenditures. Specifically, the 2016 cap year, which starts on November 1, 2015 and ends on October 31, 2016, will be updated by the FY 2016 payment update percentage for hospice care. In accordance with the statute, we will continue to do this through any cap year ending before October 1, 2025 (that is, through cap year 2025).
Since the implementation of the hospice benefit in 1983, and especially within the last decade, there has been substantial growth in hospice utilization. The number of Medicare beneficiaries receiving hospice services has grown from 513,000 in FY 2000 to over 1.3 million in FY 2013. Similarly, Medicare hospice expenditures have risen from $2.8 billion in FY 2000 to an estimated $15.3 billion in FY 2013. Our Office of the Actuary (OACT) projects that hospice expenditures are expected to continue to increase, by approximately 8 percent annually, reflecting an increase in the number of Medicare beneficiaries, more beneficiary awareness of the Medicare Hospice Benefit for end-of-life care, and a growing preference for care provided in home and community-based settings. However, this increased spending is partly due to an increased average lifetime length of stay for beneficiaries, from 54 days in 2000 to 98.5 days in FY 2013, an increase of 82 percent.
There have also been changes in the diagnosis patterns among Medicare hospice enrollees. Specifically, there were notable increases between 2002
In 2010, the Congress amended section 1814(i)(6) of the Act with section 3132(a) of the Affordable Care Act. The amendment authorizes the Secretary to collect additional data and information determined appropriate to revise payments for hospice care and for other purposes. The data collected may be used to revise the methodology for RHC and other hospice services (in a budget-neutral manner in the first year), no earlier than October 1, 2013, as described in section 1814(i)(6)(D) of the Act. The Secretary is required to consult with hospice programs and the MedPAC regarding additional data collection and payment reform options.
Since 2010, we have undertaken efforts to collect the data needed to establish what revisions to the methodology for determining the hospice payment rates may be necessary. Effective April 1, 2014, we began requiring additional information on hospice claims regarding drugs and certain durable medical equipment and effective October 1, 2014, we finalized changes to the hospice cost report to improve data collection on the costs of providing hospice care.
The FY 2012 Hospice Wage Index final rule (76 FR 47324) noted our collaboration with the Assistant Secretary of Planning and Evaluation (ASPE) to develop analyses that were used to inform our research efforts. The results from such analyses were used by Abt Associates to facilitate discussion, in 2012, of potential payment reform options and to guide the identification of topics for further analysis. In early 2014, we began working with Acumen, LLC, using real-time claims data, to monitor the vulnerabilities identified in the 2013 and 2014 Abt Associates' Hospice Payment Reform Technical Reports. On September 18, 2014, the IMPACT Act, mandated that the Centers for Medicare & Medicaid (CMS) undertake additional hospice monitoring and oversight activities. As noted previously, the IMPACT Act requires CMS to survey hospices at least as frequently as every 3 years for the next 10 years and review medical records of hospice beneficiaries on the hospice benefit for 180 days or greater as specified by the Secretary. CMS is actively engaged in cross-agency collaboration to meet the intent of the IMPACT Act to increase monitoring and oversight of hospice providers.
The majority of the research and analyses conducted by CMS and summarized in this rule were based on analyses of FY 2013 Medicare claims and cost report data conducted by our research contractor, Abt Associates, unless otherwise specified. In addition, we cite research and analyses, conducted by Acumen, LLC that are based on real-time claims data from the Integrated Data Repository (IDR). In the sections below, analysis conducted on pre-hospice spending, non-hospice spending for hospice beneficiaries during a hospice election, and live discharge rates highlight potential vulnerabilities of the Medicare hospice benefit.
In 1982, the Congress introduced hospice into the Medicare program as an alternative to aggressive treatment at the end of life. During the development of the benefit, multiple testimonies from industry leaders and hospice families, it was reported that hospices provided high-quality, compassionate and humane care while also offering a reduction in Medicare costs.
Analysis was conducted to evaluate pre-hospice spending for beneficiaries who ever used hospice that died in FY 2013. To evaluate pre-hospice spending, we calculated the median daily Medicare payments for such beneficiaries for the 180 days, 90 days, and 30 days prior to electing hospice care. We then categorized patients according to the principal diagnosis reported on the hospice claim. The analysis revealed that for some patients, the Medicare payments in the 180 days prior to the hospice election were lower than Medicare payments associated with hospice care once the benefit was elected (see Table 3 and Figure 1 below). Specifically, median Medicare spending for a beneficiary with a diagnosis of Alzheimer's disease, non-Alzheimer's dementia, or Parkinson's in the 180 days prior to hospice admission (about 20 percent of patients) was $66.84 per day compared to the RHC rate of $153.45 in FY 2013 during a hospice election (see Table 3 below). Closer to the hospice admission, the median Medicare payments per day increase, as would be expected as the patient approaches the end of life and patient needs intensify. However, 30 days prior to a hospice election, median Medicare spending was $105.24 for patients with Alzheimer's disease, non-Alzheimer's dementia, or Parkinson's. In contrast, the median Medicare payments prior to hospice election for patients with a principal hospice diagnosis of cancer were $143.56 in the 180 days prior to hospice admission and increased to $289.85 in the 30 days prior to hospice admission. The average length of stay for hospice elections where the principal diagnosis was reported as Alzheimer's disease, non-Alzheimer's Dementia, or Parkinson's is greater than patient's with other diagnoses, such as cancer, CVA/stroke, chronic kidney disease, and Chronic Obstructive Pulmonary Disease (COPD). For example, the average lifetime length of stay for an Alzheimer's, non-Alzheimer's Dementia, or Parkinson's patient in FY 2013 was 119 days compared to 47 days for patients with a principal diagnosis of cancer (or in other words, 150 percent longer).
In the FY 2014 Hospice Wage Index and Payment Rate Update proposed and final rules (78 FR 27843 and 78 FR 48272), we discussed whether a case-mix system could be created in future refinements to differentiate hospice payments according to patient characteristics. While we do not have the necessary data on the hospice claim form at this time to conduct more thorough research to determine whether a case-mix system is appropriate, analyzing pre-hospice spending was undertaken as an initial step in determining whether patients required different resource needs prior to hospice based on the principal diagnosis reported on the hospice claim. Table 3 and Figure 1 above indicate that hospice patients with the longest length of stay had lower pre-hospice spending relative to hospice patients with shorter lengths of stay. These hospice patients tend to be those with neurological conditions,
When a beneficiary elects the Medicare hospice benefit, he or she waives the right to Medicare payment for services related to the terminal illness and related conditions, except for services provided by the designated hospice and the attending physician as described in section II.D.7. However, Medicare payment is allowed for covered Medicare items or services that are unrelated to the terminal illness and related conditions (that is, the terminal prognosis). When a hospice beneficiary receives items or services unrelated to the terminal illness and related conditions from a non-hospice provider, that provider can bill Medicare for the items or services, but must include on the claim a GW (service not related to the hospice patient's terminal condition) modifier (if billed on a professional claim),
For FY 2013, we found that Medicare paid $694.1 million for Part A and Part B items or services while a beneficiary was receiving hospice care. The $694.1 million paid for Part A and Part B items or services was for durable medical equipment (6.4 percent), inpatient care (care in long- term care hospitals, inpatient rehabilitation facilities, acute care hospitals; 28.6 percent), outpatient Part B services (16.6 percent), other Part B services (also known as physician, practitioner and supplier claims, such as labs and diagnostic tests, ambulance transports, and physician office visits; 38.8 percent), skilled nursing facility care (5.3 percent), and home health care (4.3 percent). Part A and Part B non-hospice spending occurred mostly for hospice beneficiaries who were at home (56.0 percent). We also found that on hospice service days in which non-hospice spending occurred, 25.7 percent of hospice beneficiaries were in a nursing facility, 1.9 percent were in an inpatient setting, 15.1 percent were in an assisted living facility, and 1.3 percent were in other settings. Although the average daily rate of expenditures outside the hospice benefit was $7.65, we found geographic differences where beneficiaries receive care. The highest rates per day occurred for hospice beneficiaries residing in West Virginia ($13.74), Delaware ($12.76), Mississippi ($12.31), South Florida ($12.24), and Texas ($12.10)
Table 4 below details the various components of Part D spending for patients receiving hospice care. The portion of the $439.5 million total Part D spending which was paid by Medicare is the sum of the Low Income Cost-Sharing Subsidy and the Covered Drug Plan Paid Amount, or $347.1 million.
Non-hospice Medicare expenditures occurring during a hospice election in FY 2013 were $694.1 million for Parts A and B spending plus $347.1 million for Part D spending, or approximately $1 billion dollars total. This figure is comparable to the estimated $1 billion MedPAC reported during its December
In a recent report, the HHS Office of Inspector General (OIG) identified instances where Medicare may be paying under Part D for drugs that should be provided by the hospice as part of the plan of care.
Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) products whose use was initiated during a hospice stay are likely related to the terminal prognosis. Table 5 and 6 below summarizes total concurrent billing for DMEPOS products by Berenson-Eggers Types of Service (BETOS) categories and concurrent Durable Medical Equipment (DME) billing by the top 20 principal diagnoses as reported on hospice claims in CY 2013.
We noted that hospice beneficiaries with hospice claims-reported principal diagnoses of chronic airway obstruction, congestive heart failure, cerebral degeneration and lung cancer were receiving services clinically indicated and recommended for these conditions outside of the hospice benefit, which is in violation of requirements regarding the Medicare hospice benefit. This could be attributed to hospices
Malignant neoplasm of the trachea, bronchus, and lung (or lung cancer) is defined by ICD-9 diagnosis codes beginning with 162 and describes malignant cancers affecting various part of the pulmonary system. Symptoms for this class of conditions may include chronic and worsening cough, shortness of breath, chest pain, metastatic bone pain, and anorexia and weight loss. Clinical practice guidelines for end-stage cancer recommend treatment and management of refractory symptoms including pain, mucositis, dyspnea, fatigue, depression and anorexia through the use of pharmacological interventions including nonsteroidal anti-inflammatories, corticosteroids, opioids and antidepressants.
Our assessment of concurrently billed Part D drugs included 89,925 stays for beneficiaries with ICD-9 code 162 listed as a primary diagnosis on the hospice claim. Our assessment of concurrently billed Part B services included 153,199 stays. In CY 2013, concurrent billing for all services related this terminal condition comprised $3.4 million. Table 7 below summarizes concurrent payments for services that were potentially related to this class of conditions. Part D drugs that should have been covered under the hospice benefit for the treatment of this condition accounted for $2.1 million. DME services that were billed during hospice stays related to this condition during the same time cost $640,166. Concurrent services provided in Part B institutional settings accounted for $591,772.
Chronic airway obstruction is defined by ICD-9 diagnosis codes beginning with 496 and includes chronic lung disease with unspecified cause, and is characterized by inflammation of the lungs and airways. Typical symptoms of these pulmonary diseases include increasing and disabling shortness of breath, labored breathing, increased coughing, increased heart rate, decreased functional reserve, increased infections and unintentional, progressive weight loss. Evidence-based practice supports the benefits of oral opioids, neuromuscular electrical stimulation, chest wall vibration, walking aids, respiratory assist devices and pursed-lip breathing in the management of dyspnea in the individual patient with advanced COPD.
Cerebral degeneration is defined by ICD-9 diagnosis codes beginning with 331, and includes conditions such as Alzheimer's disease and Reye's syndrome. These conditions are typically characterized by a progressive loss of cognitive function with symptoms including the loss of memory and changes in language ability, behavior, and personality. Additionally, as these cerebral degenerations progress, other clinical manifestations occur such as dysphagia, motor dysfunction, impaired mobility, increased need for activities of daily living assistance, urinary and fecal incontinence, weight loss and muscle wasting. Individuals with these conditions are also at increased risk for aspiration, falls, pneumonias, decubitus ulcers and urinary tract infections. Clinical practice guidelines for the treatment of cerebral degenerative conditions includes pharmacological interventions including Angiotensin Converting Enzyme inhibitors, memantine or combination therapy depending on severity of disease, as well as antidepressants, antipsychotics, psychostimulants, mood stabilizers, benzodiazepines and neuroleptics, depending on behavioral manifestations. Non-pharmacological interventions recommended include mental, behavioral and cognitive therapy, speech language pathology to address swallowing issues, and other interventions to treat and manage manifestations including pressure ulcers, cachexia and infections.
Our assessment of concurrently billed Part D drugs included 208,346 stays for beneficiaries with ICD-9 code 331 listed as a primary diagnosis on the hospice claim. Our assessment of concurrently billed Part B services included 318,044 stays. In CY 2013, concurrent billing for all services related to this principal diagnosis comprised $11.2 million. Table 9 below summarizes concurrent payments for services that are potentially related to this class of conditions. Part D drugs that should have been covered under the hospice benefit for the treatment of this condition accounted for $10.3 million. Concurrently billed DME products that were related this condition cost Medicare an additional $390,476. Concurrent services provided in Part B institutional settings accounted for $496,790.
Congestive heart failure (CHF) is defined by ICD-9 diagnosis codes beginning with 428. CHF is characterized by symptoms such as shortness of breath, edema, diminished endurance, angina, productive cough and fatigue. For the management of congestive heart failure, clinical practice guidelines recommend pharmacological interventions including beta blockers, angiotensin converting enzyme inhibitors, angiotensin receptor blockers, diuretics, anti-platelets, anti-coagulants and digoxin, depending on symptomology and response or nonresponse to other treatments.
Our assessment of concurrently billed Part D drugs included 158,220 stays for beneficiaries with ICD-9 code 428 listed as a primary diagnosis on the hospice claim. Our assessment of concurrently billed Part B services included 256,236 stays. In CY 2013, concurrent billing for all services related this terminal condition comprised $5.8 million. Table 10 below summarizes concurrent payments for services that are potentially related to this class of conditions. Part D drugs that should have been covered under the hospice benefit for the treatment of this condition accounted for $3.8 million. DME services that were billed during hospice stays related to this condition during this time cost $843,534. Concurrent services provided in Part B institutional settings accounted for $1.2 million.
Our regulations at § 418.56(c) require that hospices provide all services necessary for the palliation and management of the terminal illness and related conditions. We have discussed recommended evidence-based practice clinical guidelines for the hospice claims-reported principal diagnoses mentioned in this section. However, this analysis reveals that these recommended practices are not being covered under the Medicare hospice benefit. We believe the case studies in this section highlight the potential systematic unbundling of the Medicare hospice benefit and may be valuable analysis to inform policy stakeholders.
Currently, federal regulations allow a patient who has elected to receive Medicare hospice services to revoke their hospice election at any time and for any reason. Specifically, the regulations state that if the hospice patient (or his/her representative) revokes the hospice election, Medicare coverage of hospice care for the remainder of that period is forfeited. The patient may, at any time, re-elect to receive hospice coverage for any other hospice election period that he or she is eligible to receive (§ 418.28(c)(3) and § 418.24(e)). During the time period between revocation/discharge and the re-election of the hospice benefit, Medicare coverage would resume for those Medicare benefits previously waived. A revocation can only be made by the beneficiary, in writing, that he or she is revoking the hospice election and the effective date of the revocation. A hospice cannot “revoke” a beneficiary's hospice election, nor is it appropriate for hospices to encourage, request or demand that the beneficiary revoke his or her hospice election. Like the hospice election, a hospice revocation is to be an informed choice based on the beneficiary's goals, values and preferences for the services they wish to receive.
Federal regulations only provide limited opportunity for a Medicare hospice provider to discharge a patient from its care. In accordance with § 418.26, discharge from hospice care is permissible when the patient moves out of the provider's service area, is determined to be no longer terminally ill, or for cause. Hospices may not automatically or routinely discharge the patient at its discretion, even if the care may be costly or inconvenient. As we indicated in the FY 2015 Hospice Wage Index and Payment Rate Update proposed and final rules, we understand that the rate of live discharges should not be zero, given the uncertainties of prognostication and the ability of patients and their families to revoke the hospice election at any time. On July 1, 2012, we began collecting discharge information on the claim to capture the reason for all types of discharges which includes, death, revocation, transfer to another hospice, moving out of the hospice's service area, discharge for cause, or due to the patient no longer being considered terminally ill (that is, no longer qualifying for hospice services). Based upon the additional discharge information, Abt Associates, our research contractor performed analysis on FY 2013 claims to identify those beneficiaries who were discharged alive. The details of this analysis will be reported in the 2015 technical report and will be made available on the Hospice Center Web page. In order to better understand the characteristics of hospices with high live discharge rates, we examined the aggregate cap status, skilled visit intensity; average lengths of stay; and non-hospice spending rates per beneficiary.
Between 2000 and 2013, the overall rate of live discharges increased from 13.2 percent in 2000 to 18.3 percent in 2013. Among hospices with 50 or more discharges (discharged alive or deceased), there is significant variation
We analyzed hospices' aggregate cap status to determine whether there is a relationship between live discharge rates and their aggregate cap status. As described in section III.4.C and section III.D, when the Medicare Hospice Benefit was implemented, the Congress included an aggregate cap on hospice payments, which limits the total aggregate payments any individual hospice can receive in a year. Our FY 2013 analytic file contained 3,061 hospices with aggregate cap information and with more than 50 discharges in FY 2013. We found that 40.3 percent of hospices above the 90th percentile were also above the aggregate cap for the 2013 cap year. Conversely, only 3.8 percent of hospices below the 90th percentile were above the aggregate cap. As illustrated by the box plot below, the vertical axis represents the hospices' live discharge rates in FY 2013 and the horizontal axis represents the total payments hospices received at the end of the cap year of November 2012 through October 2013 relative to the total cap amount. Hospices under 100 percent on the X-axis are below the cap and those 100 percent or higher on the X-axis are above the cap. Our analysis found that hospices with higher live discharge rates are also above the cap. Specifically, the top of the rectangle represents the 75th percentile of live discharge rates, the middle line represents the median for that group, and the bottom of the rectangle is the 25th percentile of live discharge rates among all hospices ending the year within the range of cap percentages of live discharge rates as indicated by the horizontal axis (see Figure 2 below). We found that there appears to be a relationship with hospices with high live discharge rates and those that are above the aggregate cap.
In FY 2013, we found that hospices with high live discharge rates also, on average, provide fewer visits per week. Those hospices with live discharge rates at or above the 90th percentile provide, on average, 3.97 visits per week. Hospices with live discharge rates below the 90th percentile provide, on average, 4.48 visits per week. We also found in FY 2013 that, when focusing on visits classified as skilled nursing or medical social services, hospices with
We examined whether there was a relationship between hospices with high live discharge rates, average lengths of stay, and non-hospice spending per beneficiary per day (see Table 12 and Figure 3 below). As described above in section III.A.2, we identified instances, in the aggregate and illustrated by case studies, where Medicare appeared to be paying for services twice because we would expect them to be covered by the hospice base payment rate. Hospices with patients that, on average, accounted for $30 per day in non-hospice spending while in hospice (decile 10 in Table 12 and Figure 3 below) had live discharge rates that were, on average, about 33.8 percent and had an average lifetime length of stay of 156 days. In contrast, hospices with patients that, on average, accounted for $4 per day in non-hospice spending while in a hospice election (decile 1 in Table 12 and Figure 3 below) had live discharge rates that were, on average, about 19.2 percent and an average lifetime length of stay of 103 days. In other words, hospices in the highest decile, according to their level of non-hospice spending for patients in a hospice election, had live discharge rates and average lifetime lengths of stay that averaged 76 percent and 52 percent higher, respectively, than the hospices in lowest decile.
The analytic findings presented above suggests that some hospices may consider the Medicare Hospice program as a long-term custodial benefit rather than an end of life benefit for beneficiaries with a medical prognosis of 6 months or less if the illness runs its normal course. As previously discussed in reports by MedPAC and the OIG, there is a concern that hospices may be admitting individuals who do not meet hospice eligibility criteria. We continue to communicate and collaborate across CMS to improve monitoring and oversight activities. We expect to analyze the additional claims and cost report data reported by hospices in the future to determine whether additional regulatory proposals to reform and strengthen the Medicare Hospice benefit are warranted.
Section 3132(a) of the Affordable Care Act amended 1814(i) of the Act by adding paragraph (6)(D), that instructs the Secretary, no earlier than October 1, 2013, to implement revisions to the methodology for determining the payment rates for RHC and other services included in hospice care as the Secretary determines to be appropriate. The revisions may be based on an analysis of new data and information collected and such revisions may include adjustments to per diem payments that reflect changes in resource intensity in providing such care and services during the course of the entire episode of hospice care. In addition, we are required to consult with hospice programs and MedPAC on the revised hospice payment methodology.
This legislation emerged largely in response to MedPAC's March 2009 Report to Congress, which cited rapid growth of for-profit hospices and longer lengths of stay that raised concerns regarding a per diem payment structure that encouraged inappropriate utilization of the benefit.
As described in section III.A, CMS has transparently conducted payment reform activities and released research findings to the public since 2010. At that time, Abt Associates conducted a literature review and carried out original research to provide background on the current state of the Medicare
Over the past several years, MedPAC, the Government Accountability Office (GAO), and OIG, have all recommended that CMS collect more comprehensive data to better evaluate trends in utilization of the Medicare hospice benefit. Furthermore, section 3132(a)(1)(C) of the Affordable Care Act specifies that the Secretary may collect additional data and information on cost reports, claims, or other mechanisms as the Secretary determines to be appropriate. We have received many suggestions for ways to improve data collection to support larger payment reform efforts in the future. Based on those suggestions and industry feedback, we began collecting additional information on the hospice claim form as of April 1, 2014.
For over a decade, MedPAC and other organizations have reported findings that suggest that the hospice benefit's fixed per-diem payment system is inconsistent with the true variance of service costs over the course of an episode. Specifically, MedPAC cited both academic and non-academic studies, as well as its own analyses (as summarized and articulated in MedPAC's 2002,
In its March 2009 report, “Reforming Medicare's Hospice Benefit,” MedPAC recommended that the Congress require CMS to implement a payment system that would adjust per-diem hospice rates based on the day's timing within the hospice episode, with the express goal of mitigating the apparent inconsistency between payments and resource utilization (that is, costs) in hospice episodes.
In its March 2015 Report to the Congress,
Other organizations have also explored the concept of a U-shaped payment model. The ASPE, in conjunction with its contractor, Acumen LLC, analyzed hospice enrollment and utilization data. ASPE's research
As required under section 3132(a) of the Affordable Care Act, CMS also explored other options for hospice payment reform. Taking into consideration the research and analysis performed by MedPAC, ASPE, and others, our payment reform contractor, Abt Associates, examined hospice utilization data and modeled a hypothetical “tiered” payment system similar to MedPAC's U-shaped payment model by paying different per-diem rates for RHC according to the timing of the RHC day in the patient's episode of care. However, because analysis of hospice claims data found that a relatively high percentage of patients were not receiving skilled visits during the last days of life, the “tiered payment model” made the increased payments at end of life contingent on whether skilled services were provided. As reported in the FY 2015 Hospice Payment Rate Update final rule, in CY 2012, approximately 14 percent beneficiaries did not receive any skilled visits in the last 2 days of life (79 FR 50461). While this could be explained, in part, by sudden or unexpected death, the high percentage of beneficiaries with no skilled visits in the last 2 days of life causes concern as to whether beneficiaries and their families are not receiving needed hospice care and support at the very end of life. If hospices are actively engaging with the beneficiary and the family throughout the election, we would expect to see skilled visits during those last days of life. Therefore, in the tiered payment model, making the increased payment at the end of life contingent on whether skilled visits occurred in the last 2 days of life was thought of as one way to provide additional incentive for care to be provided when the patient needs it most.
The groupings in the tiered payment model, presented in Table13 below, were developed through Abt Associates' analyses of resource utilization over the hospice episode and clinical input. Using a sample of 100 percent RHC hospice service days from 2011, Abt then developed payment weights for each grouping by calculating its relative resource utilization rate compared to the overall estimate of resource use across all RHC days (see Table 13 below).
The payment weighting scheme in this system, derived from observed resource utilization across the entire episode, would produce higher payments during times when service is more intensive (the beginning of a stay or the end of life) and produce lower payments during times when service is less intensive (such as the “middle period” of the stay). The tiered payment model was discussed in more detail in the FY2014 Hospice Wage Index final rule (78 FR 48271) and in the Hospice Study Technical Report issued in April of 2013.
Updated analysis of FY 2013 hospice claims data continues to demonstrate a U-Shaped pattern in of resource use. Increased utilization at both the beginning and end of a stay is demonstrated in Figure 4 below, where FY 2013 resource costs (as captured by wage-weighted minutes) are markedly higher in the first two days of a hospice election and once again in the six days preceding the date of death and on the date of death itself.
Analysis of skilled nursing and social work visits provided on the first day of a hospice election shows that nearly 89 percent of patients received a visit totaling 15 minutes or more, while 11 percent did not receive a skilled nursing visit or social work visit on the first day of a hospice election (see Table 14 below). The percentage of patients that did not receive a skilled nursing or social work visit on a given day increased to nearly 38 percent on the second day of a hospice election. In accordance with the hospice CoPs at § 418.54(a), hospices are required to have a RN complete an initial assessment of the hospice patient within 48 hours of election; therefore, we would expect to see a nursing visit occurring within the first 2 days of an election in order to be in compliance with the CoPs. We found that, in FY 2013, 96 percent of hospice patients did receive a skilled visit in the first 2 days of a hospice election. The percentage of patients that did not receive a skilled nursing or social work visit on any given day increased to about 65 percent by the sixth day of a hospice election. Overall, on any given day during the first 7 days of a hospice election, nearly 50 percent of the time the patient is not receiving a skilled visit (skilled nursing or social worker visit).
As we noted above, we are concerned that many beneficiaries are not receiving skilled visits during the last few days of life. At the end of life, patient needs typically surge and more intensive services are warranted. However, analysis of FY 2013 claims data shows that on any given day during the last 7 days of a hospice election, nearly 50 percent of the time the patient is not receiving a skilled visit (skilled nursing or social worker visit) (see table 15 below). Moreover, on the day of death nearly 30 percent of beneficiaries did not receive a skilled visit (skilled nursing or social work visit).
We would expect that skilled visits are provided to the patient and family at end of life as the changing condition of the individual and the imminence of death often warrants frequent changes to care to alleviate and minimize symptoms and to provide support for the family. Although previous public comments stated that patients and families sometimes request no visits at the end of life, and there are rare instances where a patient passes away unexpectedly, we would expect that these instances would be rare and represent a small proportion of the noted days without visits at the end of life. However, the data presented in Table 15 above suggests that it is not rare for patients and families to have not received skilled visits (skilled nursing or social work visits) at the end of life. In the FY 2015 Hospice Wage Index and Payment Rate Update final rule, we noted that nearly 5 percent of hospices did not provide any skilled visits in the last 2 days of life to more than 50 percent of their decedents receiving routine home care on those last 2 days and 34 hospices did not make any skilled visits in the last 2 days of life to any of their decedents who died while receiving routine home care (79 FR 50462).
RHC is the basic level of care under the Hospice benefit, where a beneficiary receives hospice care, but remains at home. With this level of care, hospice providers are currently reimbursed per day regardless of the volume or intensity of services provided to a beneficiary on any given day. As stated in the FY 2014 Hospice Wage Index and Payment Rate Update final rule (78 FR 48234), “it is CMS' intent to ensure that reimbursement rates under the Hospice benefit align as closely as possible with the average costs hospices incur when efficiently providing covered services to beneficiaries.” However, as discussed in section III.B.1 above, there is evidence of a misalignment between the current RHC per diem payment rate and the cost of providing RHC. In order to help ensure that hospices are paid adequately for providing care to patients regardless of their palliative care needs during the stay, while at the same time encouraging hospices to more carefully determine patient eligibility relative to the statutory requirement that the patients' life expectancy be 6 months or less, we are using the authority under section 1814(i)(6)(D) of the Act, as amended by section 3132(a) of the Affordable Care Act to propose a revision to the current RHC per diem payment rate to more accurately align the per diem payments with visit intensity (that is, the cost of providing care for the clinical service (labor) components of the RHC rate). We are proposing, in conjunction with a SIA payment discussed in section III.B.3 below, two different RHC rates that would result in a higher base payment rate for the first 60 days of hospice care and a reduced base payment rate for days 61 or over of hospice care.
The two proposed rates for RHC are based on an extensive body of research concerning visit intensity during a hospice episode as cited throughout this section. We consider a hospice “episode” of care to be a hospice election period or series of election periods. Visit intensity is commonly measured in terms of wage-weighted minutes and reflects variation in the provision of care for the clinical service (labor) components of the RHC rate. The labor components of the RHC rate comprise nearly 70 percent of the RHC rate (78 FR 48272). Therefore, visit intensity is a close proxy for the reasonable cost of providing hospice care absent data on the non-labor components of the RHC rate, such as drugs and DME. As shown in Figures 5 and 6 below, the daily cost of care, as measured wage-weighted minutes, declines quickly for individual patients during their hospice episodes, and for long episode patients, remains low for a significant portion of the episode. Thus, long episode patients are potentially more profitable than shorter episode patients under the current per diem payments system in which the payment rate is the same for the entire episode. At the same time, the percent of beneficiaries that enter hospice less than 7 days prior to death has remained relatively constant (approximately 30 percent) over this time period, meaning the increase in the average episode length can be attributed to an increasing number of long stay patients. We found that the percent of episodes that are more than 6 months in length has nearly doubled from about 7 percent in 1999 to 13 percent in 2013.
Figure 5 displays the pattern of wage-weighted minutes by time period within beneficiary episodes, but excluding the last 7 days of the episode for decedents. The wage-weighted minutes for the last 7 days are displayed separately by the bar furthest to the right of the Figure 5. The visit intensity curve declines rapidly after 7 days and then at a slower rate until 60 days when the curve becomes flat throughout the remainder of episodes (excluding the last 7 days prior to death). It is for this reason we are proposing to pay the higher rate for the first 60 days and a lower rate thereafter. It is clear from the figure that visit utilization is constant from day 61 on, until the last 7 days for decedents. We believe the most important reason for proposing a different RHC rate for the first 60 days versus days 61 and beyond is that we must account for differences in average visit intensity between episodes that will end within 60 days and those that will go on for longer episodes.
As Figure 6 demonstrates, beneficiaries whose entire episode is between 8 and 60 days do have higher wage-weighted minute usage than those with longer stays. Using 60 days for the high RHC rate as opposed to an earlier time assured that hospices would have sufficient resources for providing high quality care to patients (for example, 1 through 60 days) whose average daily visit intensity is higher than for longer stay patients.
The SIA payments based on actual visits provided would be added to the applicable rate during the last 7 days to reflect the rapid increase in visit intensity during that time period.
Table 16 below describes the average wage-weighted minutes for RHC days in FY 2014, calculated both in specific phases within an episode as well as overall.
In Table 16, the average wage-weighted minutes per day for days 1 through 7 describe the baseline for the other phases of care, set at a value of one. Given the demands of the initial care in an episode, resource intensity is highest during this first week of an episode, and resource needs decline steadily over the course of an episode. The overall average wage-weighted minutes per day across all RHC days equals $17.21 as described in the last row in table 16 above. We then calculated the average wage-weighted minute costs for the two groups of days (Days 1 through 60 and Days 61+) utilizing FY 2014 RHC days multiplied by the 2013 Bureau of Labor Statistics (BLS) average hourly wage values for the relevant disciplines, as follows: Skilled Nursing: $40.07; Physical Therapy: $55.93; Occupational Therapy: $55.57; Speech Language Pathology: $60.21; Medical Social Services: $38.25; and Aide: $14.28. The average wage-weighted minute cost for days 1 through 60 equals to $21.69 while the average wage weighted minutes for days 61 or more equals $15.01.
To calculate the RHC payment rate for days 1 through 60, we compare the average wage-weighted minutes per day for days 1 through 60 to the overall average wage-weighted minutes per day multiplied by the labor portion of the FY 2015 RHC rate (column 4 in Table 17 below), which equals ($21.69/$17.21)*$109.48 = $137.98. Similarly, the RHC payment rate for days 61+ equals the average wage-weighted minutes per day for days 61+ divided by the overall average wage-weighted minutes per day multiplied by the labor portion of the FY 2015 RHC rate (column 4 in Table 17 below), which equals ($15.01/$17.21)*$109.48 = $95.48.
As discussed in section III.C of this rule, currently, the labor-related share of the hospice payment rate for RHC is 68.71 percent. The non-labor share is equal to 100 percent minus the labor-related share, or 31.29 percent. Given the current base rate for RHC for FY 2015 of $159.34, the labor and non-labor components are as follows: for the labor-share portion, $159.34 multiplied by 68.71 percent equals $109.48; for the non-labor share portion, $159.34 multiplied by 31.29 percent equals $49.86. After determining the labor portion for the RHC rate for the first 60 days and the labor portion for the RHC rate for days 61 and over, we add the non-labor portion ($49.86) to the revised labor portions as described in column 6 in Table 17 above and in column 2 in Table 18 below. In order to maintain budget neutrality, as required under section 1814(i)(6)(D)(ii) of the Act, the proposed RHC rates would need to be adjusted by a ratio of the total labor payments for RHC under using the current single rate for RHC to the estimated total labor payments for RHC using the two proposed rates for RHC. This ratio results in a budget neutrality adjustment of 0.9985 as shown in column 3 in Table 18 below. Finally, adding the revised labor portion with budget neutrality to the non-labor portion results in revised FY 2015 RHC payment rates of $187.63 for days 1 through 60 and $145.21 for days 61 and over.
The proposed RHC rates for days 1 through 60 and days 61 and over (column 6 of Table 18 above) would replace the current single RHC per diem payment rate with two new RHC per diem rates for patients who require RHC level of care during a hospice election. In order to mitigate potential high rates of discharge and readmissions, we further propose that the count of days follow the patient. For hospice patients who are discharged and readmitted to hospice within 60 days of that discharge, his or her prior hospice days will continue to follow the patient and count toward his or her patient days for the receiving hospice upon hospice election. The hospice days would continue to follow the patient solely to determine whether the receiving hospice may bill at the 1 through 60 or 61+ RHC rate. The proposed policy does not preclude the receiving hospice (same or different hospice) from billing for a per diem payment for each hospice day. Therefore, we consider an “episode” of care to be a hospice election period or series of election periods separated by no more than a 60 day gap. We will monitor this proposal and trends in discharges and revocations for potential future refinements to address perverse incentives. This policy proposal attempts to better align RHC payment rates with resource use and is not intended to place an arbitrary limit on hospice services. We continue to expect hospices to adhere to the long-standing policy to provide “virtually all” care during a hospice election as articulated in the 1983 Hospice Care proposed and final rules as well as most recently in FY 2015 Hospice Wage Index and Payment Rate Update final rule. Furthermore, program integrity and oversight efforts including but not limited to, medical review, MAC audits, Zone Program Integrity Contractor actions, Recovery Auditor activities, or suspension of provider billing privileges, are being considered to address fraud and abuse. We are soliciting public comment on all aspects of the proposed RHC payment rates as articulated in this section as well as this policy in conjunction with the proposed SIA payment described in section III.B.3 below.
Section 1814(i)(1)(A) of the Act states that payment for hospice services must be equal to the costs which are reasonable and related to the cost of providing hospice care or which are based on such other tests of reasonableness as the Secretary may prescribe in regulations. In addition, section 1814(i)(6)(D) of the Act, as amended by section 3132(a) of the Affordable Care Act, requires the Secretary to implement revisions to the methodology for determining the payment rates for RHCs and other services included in hospice care under Medicare Part A as the Secretary determines to be appropriate as described in section III.B.1 above. Given that independent analyses demonstrate a U-shaped cost pattern across hospice episodes, CMS believes that implementing revisions to the payment system that align with this concept supports the requirements of reasonable cost in section 1814(i)(A) of the Act. As articulated above, CMS considered implementing a tiered payment model as described in the FY 2014 Hospice Wage Index final rule (78 FR 48271) and in the Hospice Study Technical Report issued in April of 2013,
To qualify for the SIA payment, we propose that the following criteria must be met: (1) The day is billed as a RHC level of care day; (2) the day occurs during the last 7 days of life (and the beneficiary is discharged dead); (3) direct patient care is provided by a RN or a social worker (as defined by § 418.114(c) and § 418.114(b)(3), respectively) that day; and (4) the service is not provided in a skilled nursing facility/nursing facility (SNF/NF). The proposed SIA payment would be equal to the CHC) hourly payment rate (the current FY 2015 CHC rate is $38.75 per hour), multiplied by the amount of direct patient care provided by a RN or social worker for up to 4 hours total, per day, as long as the four criteria listed above are met. The proposed SIA payment would be paid in addition to the current per diem rate for the RHC level of care.
CMS would create two separate G-codes for use when billing skilled nursing visits (revenue center 055x), one for a RN and one for a Licensed Practical Nurse (LPN). During periods of crisis, such as the precipitous decline before death, RNs are more highly trained clinicians with commensurately higher payment rates. Moreover, our rules at § 418.56(a)(1) require the RN member of the hospice interdisciplinary group to be responsible for ensuring that the needs of the patient and family are continually assessed. We would expect that at end of life the needs of the
In 2011, the OIG published a report that focused specifically on Medicare payments to hospices who served a high percentage of nursing facility residents. The OIG found that from 2005 to 2009, the total Medicare spending for hospice care for nursing facility residents increased from $2.55 billion to $4.31 billion, an increase of almost 70 percent (OIG, 2011). When looking at hospices that had more than two-thirds of their beneficiaries in nursing facilities, the OIG found that 72 percent of these facilities were for-profit and received, on average, $3,182 more per beneficiary in Medicare payments than hospices overall. High-percentage hospices were found to serve beneficiaries who spent more days in hospice care, to the magnitude of 3 weeks longer than the average beneficiary. In addition, when looking at distributions in diagnoses, OIG found that high-percentage hospices enrolled beneficiaries who required less skilled care. In response to these findings, OIG recommended that CMS modify the current hospice reimbursement system to reduce the incentive for hospices to seek out beneficiaries in nursing facilities, who often receive longer but less complex and costly care.
The for-profit provider community has frequently highlighted its concerns regarding the lack of adequate reimbursement for hospice short stays in its public filings with the Securities and Exchange Commission (SEC) as described in MedPAC's 2008 Report to Congress.
• VistaCare: “Our profitability is largely dependent on our ability to manage costs of providing services and to maintain a patient base with a sufficiently long length of stay to attain profitability,” and that “cost pressures resulting from shorter patient lengths of stay . . . could negatively impact our profitability.”
• Odyssey HealthCare: “Length of stay impacts our direct hospice care expenses as a percentage of net patient service revenue because, if lengths of stay decline, direct hospice care expenses, which are often highest during the earliest and latter days of care for a patient, are spread against fewer days of care.”
Short lengths of stay were also cited as a source of financial difficulties for small rural hospices (implying that longer stays were more profitable).
Although Figure 4 above demonstrates that there is increased resource use during the first 2 days of an election, we are not proposing an additional SIA payment for the first or second day of a hospice election when the length of stay is beyond 7 days. According to MedPAC, the breakeven point for a hospice election is about three weeks after admission.
We believe that the proposed SIA payment helps to address MedPAC and industry concerns regarding the visit intensity at end of life and the concerns associated with the profitability of hospice short stays. The proposed RHC rates described in section III.B2 and SIA payment would advance hospice payment reform incrementally, as mandated by the Affordable Care Act while simultaneously maintaining flexibility for future refinements. Since this approach would be implemented within the current constructs of the hospice payment system, no major overhaul of the claims processing system or related claims/cost report forms would be required, minimizing burden for hospices as well as for Medicare. CMS needs to further assess whether the four levels of care and the current payment amounts, as well as the amounts after implementation of the SIA, will align with the actual cost of
As required by section 1814(i)(6)(D)(ii) of the Act, any changes to the hospice payment system must be made in a budget neutral manner in the first year of implementation. Based on the desire to improve patient care through the promotion of skilled visits at end of life, regardless of the patient's lifetime length of stay, we are proposing to make the SIA payments budget neutral through a reduction to the overall RHC rate. The SIA payment budget neutrality factor (SBNF) used to reduce the overall RHC rate is outlined in section III.C.3 and is reflected in the proposed RHC payment rate tables.
We also propose to continue to make the SIA payments budget neutral through an annual determination of the SBNF, which will then be applied to the RHC payment rate. The SBNF for the SIA payments would be calculated for each FY using the most current and complete fiscal year utilization data available at the time of rulemaking. Finally, we are soliciting public comment on all aspects of the proposed SIA payment as articulated in this section as well as the corresponding proposed changes to the regulations at § 418.302 in section VI. We are also proposing to change the word “Intermediary” to “Medicare Administrative Contractor” in the regulations text at § 418.302 and proposing technical regulations text changes to § 418.306 as described in section VI. As more data become available, CMS will continue to analyze hospice payments, costs, and utilization and will consider refining the SIA payment criteria if needed.
The hospice wage index is used to adjust payment rates for hospice agencies under the Medicare program to reflect local differences in area wage levels based on the location where services are furnished. The hospice wage index utilizes the wage adjustment factors used by the Secretary for purposes of section 1886(d)(3)(E) of the Act for hospital wage adjustments. Our regulations at § 418.306(c) require each labor market to be established using the most current hospital wage data available, including any changes made by OMB to the Metropolitan Statistical Areas (MSAs) definitions.
We use the previous fiscal year's hospital wage index data to calculate the hospice wage index values. For FY 2016, the hospice wage index will be based on the FY 2015 hospital pre-floor, pre-reclassified wage index. This means that the hospital wage data used for the hospice wage index is not adjusted to take into account any geographic reclassification of hospitals including those in accordance with section 1886(d)(8)(B) or 1886(d)(10) of the Act. The appropriate wage index value is applied to the labor portion of the payment rate based on the geographic area in which the beneficiary resides when receiving RHC or CHC. The appropriate wage index value is applied to the labor portion of the payment rate based on the geographic location of the facility for beneficiaries receiving General Inpatient care (GIP) or Inpatient Respite Care (IRC).
In the FY 2006 Hospice Wage Index final rule (70 FR 45130), we adopted the changes discussed in the OMB Bulletin No. 03-04 (June 6, 2003). This bulletin announced revised definitions for MSAs and the creation of micropolitan statistical areas and combined statistical areas. The bulletin is available online at
When adopting OMB's new labor market designations in FY 2006, we identified some geographic areas where there were no hospitals, and thus, no hospital wage index data, which to base the calculation of the hospice wage index. In the FY 2010 Hospice Wage Index final rule (74 FR 39386), we also adopted the policy that for urban labor markets without a hospital from which hospital wage index data could be derived, all of the CBSAs within the state would be used to calculate a statewide urban average pre-floor, pre-reclassified hospital wage index value to use as a reasonable proxy for these areas. In FY 2016, the only CBSA without a hospital from which hospital wage data could be derived is 25980, Hinesville-Fort Stewart, Georgia.
In the FY 2008 Hospice Wage Index final rule (72 FR 50214), we implemented a new methodology to update the hospice wage index for rural areas without a hospital, and thus no hospital wage data. In cases where there was a rural area without rural hospital wage data, we used the average pre-floor, pre-reclassified hospital wage index data from all contiguous CBSAs to represent a reasonable proxy for the rural area. The term “contiguous” means sharing a border (72 FR 50217). Currently, the only rural area without a hospital from which hospital wage data could be derived is Puerto Rico. However, our policy of imputing a rural pre-floor, pre-reclassified hospital wage index based on the pre-floor, pre-reclassified hospital wage index (or indices) of CBSAs contiguous to a rural area without a hospital from which hospital wage data could be derived does not recognize the unique circumstances of Puerto Rico. In this proposed rule, for FY 2016, we propose to continue to use the most recent pre-floor, pre-reclassified hospital wage index value available for Puerto Rico, which is 0.4047.
This proposed rule would update the hospice wage index values for FY 2016 using the FY 2015 pre-floor, pre-reclassified hospital wage index. As described in the August 8, 1997 Hospice Wage Index final rule (62 FR 42860), the pre-floor and pre-reclassified hospital wage index is used as the raw wage index for the hospice benefit. These raw wage index values were then subject to either a budget neutrality adjustment or application of the hospice floor to compute the hospice wage index used to determine payments to hospices. Pre-floor, pre-reclassified hospital wage index values below 0.8 were adjusted by either: (1) The hospice BNAF; or (2) the hospice floor—a 15 percent increase subject to a maximum wage index value of 0.8; whichever results in the greater value.
The FY 2010 Hospice Wage Index rule finalized a provision to phase-out the BNAF over 7 years, with a 10 percent reduction in the BNAF in FY 2010, and an additional 15 percent reduction in each of the next 6 years, with complete phase out in FY 2016 (74 FR 39384). The 10 percent reduced BNAF for FY
Hospital wage index values which are less than 0.8 are still subject to the hospice floor calculation. The hospice floor equates to a 15 percent increase, subject to a maximum wage index value of 0.8. For example, if County A has a pre-floor, pre-reclassified hospital wage index value of 0.3994, we would multiply 0.3994 by 1.15, which equals 0.4593. Since 0.4593 is not greater than 0.8, then County A's hospice wage index would be 0.4593. In another example, if County B has a pre-floor, pre-reclassified hospital wage index value of 0.7440, we would multiply 0.7440 by 1.15 which equals 0.8556. Because 0.8556 is greater than 0.8, County B's hospice wage index would be 0.8.
OMB has published subsequent bulletins regarding CBSA changes. On February 28, 2013, OMB issued OMB Bulletin No. 13-01, announcing revisions to the delineation of MSAs, Micropolitan Statistical Areas, and Combines Statistical Areas, and guidance on uses of the delineation in these areas. A copy of this bulletin is available online at:
While the revisions OMB published on February 28, 2013, are not as sweeping as the changes made when we adopted the CBSA geographic designations for FY 2006, the February 28, 2013 bulletin does contain a number of significant changes. For example, there are new CBSAs, urban counties that have become rural, rural counties that have become urban, and existing CBSAs that have been split apart. We believe it is important for the hospice wage index to use the latest OMB delineations available in order to maintain a more accurate and up-to-date payment system that reflects the reality of population shifts and labor market conditions. While CMS and other stakeholders have explored potential alternatives to the current CBSA-based labor market system (we refer readers to the CMS Web site at:
As discussed in the FY 2006 Hospice Wage Index proposed rule (70 FR 22397) and final rule (70 FR 45132), CMS considered how to use the Micropolitan Statistical Area definitions in the calculation of the wage index. OMB defines a “Micropolitan Statistical Area” as a CBSA “associated with at least one urban cluster that has a population of at least 10,000, but less than 50,000 (75 FR 37252). We refer to these as Micropolitan Areas. After extensive impact analysis, consistent with the treatment of these areas under the IPPS as discussed in the FY 2005 IPPS final rule (69 FR 49029 through 49032), CMS determined the best course of action would be to treat Micropolitan Areas as “rural” and include them in the calculation of each state's Hospice rural wage index (see 70 FR 22397 and 70 FR 45132). Thus, the hospice statewide rural wage index is determined using IPPS hospital data from hospitals located in non-MSA areas.
Based upon the 2010 Decennial Census data, a number of urban counties have switched status and have joined or became Micropolitan Areas, and some counties that once were part of a Micropolitan Area, have become urban. Overall, there are fewer Micropolitan Areas (541) under the new OMB delineations based on the 2010 Census than existed under the latest data from the 2000 Census (581). We believe that the best course of action would be to continue the policy established in the FY 2006 Hospice Wage Index final rule and include Micropolitan Areas in each state's rural wage index. These areas continue to be defined as having relatively small urban cores (populations of 10,000 to 49,999). Therefore, in conjunction with our proposal to implement the new OMB labor market delineations beginning in FY 2016 and consistent with the treatment of Micropolitan Areas under the IPPS, we are proposing to continue to treat Micropolitan Areas as “rural” and to include Micropolitan Areas in the calculation of each state's rural wage index.
If we adopt the new OMB delineations (based upon the 2010 decennial Census data), a total of 37 counties (and county equivalents) that are currently considered urban would be considered rural beginning in FY 2016. Table 19 below lists the 37 counties that would change to rural status if we finalize our proposal to implement the new OMB delineations.
If we finalize our proposal to implement the new OMB delineations (based upon the 2010 decennial Census data), a total of 105 counties (and county equivalents) that are currently designated rural would be considered urban beginning in FY 2016. Table 20 below lists the 105 counties that would change to urban status.
In addition to rural counties becoming urban and urban counties becoming rural, several urban counties would shift from one urban CBSA to another urban CBSA under our proposal to adopt the new OMB delineations. In other cases, applying the new OMB delineations would involve a change only in CBSA name or number, while the CBSA continues to encompass the same constituent counties. For example, CBSA 29140 (Lafayette, IN), would experience both a change to its number and its name, and would become CBSA 29200 (Lafayette-West Lafayette, IN), while all of its three constituent counties would remain the same. We are not discussing these proposed changes in this section because they are inconsequential changes with respect to the hospice wage index. However, in other cases, if we adopt the new OMB delineations, counties would shift between existing and new CBSAs, changing the constituent makeup of the CBSAs. In one type of change, an entire CBSA would be subsumed by another CBSA. For example, CBSA 37380 (Palm Coast, FL) currently is a single county (Flagler, FL) CBSA. Flagler County would be a part of CBSA 19660 (Deltona-Daytona Beach-Ormond Beach, FL) under the new OMB delineations. In another type of change, some CBSAs have counties that would split off to become part of or to form entirely new labor market areas. For example, CBSA 37964 (Philadelphia Metropolitan Division of MSA 37980) currently is comprised of 5 Pennsylvania counties (Bucks, Chester, Delaware, Montgomery, and Philadelphia). If we adopt the new OMB delineations, Montgomery, Bucks, and Chester counties would split off and form the new CBSA 33874 (Montgomery County-Bucks County-Chester County, PA Metropolitan Division of MSA 37980), while Delaware and Philadelphia counties would remain in CBSA 37964. Finally, in some cases, a CBSA would lose counties to another existing CBSA if we adopt the new OMB delineations. For example, Lincoln County and Putnam County, WV would move from CBSA 16620 (Charleston, WV) to CBSA 26580 (Huntington-Ashland, WV KY OH). CBSA 16620 would still exist in the new labor market delineations with fewer constituent counties. Table 21 lists the urban counties that would move from one urban CBSA to another urban CBSA if we adopt the new OMB delineations.
Overall, we believe that implementing the new OMB delineations would result in wage index values being more representative of the actual costs of labor in a given area. Among the 458 total CBSA and statewide rural areas, 20 (4 percent) would have a higher wage index using the newer delineations. However, 34 (7.4 percent) would have a lower wage index using the newer delineations. Therefore, to remain consistent with the manner in which we ultimately adopted the revised OMB delineations for FY 2006 (70 FR 45138), we are proposing to implement a 1-year transition to the new OMB delineations. Specifically, we propose to apply a blended wage index for one year (FY 2016) for all geographic areas that would consist of a 50/50 blend of the wage index values using OMB's old area delineations and the wage index values using OMB's new area delineations. That is, for each county, a blended wage index would be calculated equal to 50 percent of the FY 2016 wage index using the old labor market area delineation and 50 percent of the FY 2016 wage index using the new labor market area delineation. This results in an average of the two values. We refer to this blended wage index as the FY 2016 hospice transition wage index.
This proposed 1-year transition policy is also consistent with the transition policies adopted by both the FY 2015 SNF PPS (79 FR 25767) and the CY 2015 HH PPS (79 FR 66032). This transition policy would be for a 1-year period, going into effect on October 1, 2015, and continuing through September 30, 2016. Thus, beginning October 1, 2016, the wage index for all hospice payments would be fully based on the new OMB delineations. We invite comments on our proposed transition methodology.
The proposed wage index applicable to FY 2016 is set forth in Addendum A available on the CMS Web site at
Addendum A provides a crosswalk between the FY 2016 wage index using the current OMB delineations in effect in FY 2015 and the FY 2016 wage index using the proposed revised OMB delineations, as well as the proposed transition wage index values that would be in effect in FY 2016 if these proposed changes are finalized. Addendum A shows each state and county and its corresponding proposed transition wage index along with the previous CBSA number, the new CBSA number, and the new CBSA name.
Due to the way that the transition wage index is calculated, some CBSAs and statewide rural areas may have more than one transition wage index value associated with that CBSA or rural area. However, each county will have only one transition wage index. For counties located in CBSAs and rural areas that correspond to more than one transition wage index value, the CBSA number will not be able to be used for FY 2016 claims. In these cases, a number other than the CBSA number would be necessary to identify the appropriate wage index value on claims for hospice care provided in FY 2016. These numbers are five digits in length and begin with “50.” These codes are shown in the last column of Addendum A in place of the CBSA number where appropriate. For counties located in CBSAs and rural areas that still correspond to only one wage index value, the CBSA number would still be used.
Section 4441(a) of the Balanced Budget Act of 1997 (BBA) amended section 1814(i)(1)(C)(ii)(VI) of the Act to establish updates to hospice rates for FYs 1998 through 2002. Hospice rates were to be updated by a factor equal to the market basket index, minus 1 percentage point. Payment rates for FYs since 2002 have been updated according to section 1814(i)(1)(C)(ii)(VII) of the Act, which states that the update to the payment rates for subsequent FYs must be the market basket percentage for that FY. The Act requires us to use the inpatient hospital market basket to determine the hospice payment rate update. In addition, section 3401(g) of the Affordable Care Act mandates that, starting with FY 2013 (and in subsequent FYs), the hospice payment update percentage will be annually reduced by changes in economy-wide productivity as specified in section 1886(b)(3)(B)(xi)(II) of the Act. The statute defines the productivity adjustment to be equal to the 10-year moving average of changes in annual economy-wide private nonfarm business multifactor productivity (MFP) (as projected by the Secretary for the 10-year period ending with the applicable FY, year, cost reporting period, or other annual period) (the “MFP adjustment”). A complete description of the MFP projection methodology is available on our Web site at
In addition to the MFP adjustment, section 3401(g) of the Affordable Care Act also mandates that in FY 2013 through FY 2019, the hospice payment update percentage will be reduced by an additional 0.3 percentage point (although for FY 2014 to FY 2019, the potential 0.3 percentage point reduction is subject to suspension under conditions specified in section 1814(i)(1)(C)(v) of the Act). The proposed hospice payment update percentage for FY 2016 is based on the estimated inpatient hospital market basket update of 2.7 percent (based on IHS Global Insight, Inc.'s first quarter 2015 forecast with historical data through the fourth quarter of 2014). Due to the requirements at 1886(b)(3)(B)(xi)(II) and 1814(i)(1)(C)(v) of the Act, the estimated inpatient hospital market basket update for FY 2016 of 2.7 percent must be reduced by a MFP adjustment as mandated by Affordable Care Act (currently estimated to be 0.6 percentage point for FY 2016). The estimated inpatient hospital market basket update for FY 2016 is reduced further by a 0.3 percentage point, as mandated by the Affordable Care Act. In effect, the proposed hospice payment update percentage for FY 2016 is 1.8 percent. We are also proposing that if more recent data are subsequently available (for example, a more recent estimate of the inpatient hospital market basket update and MFP adjustment), we would use such data, if appropriate, to determine the FY 2016 market basket update and the MFP adjustment in the FY 2016 Hospice Rate Update final rule.
Currently, the labor portion of the hospice payment rates is as follows: For RHC, 68.71 percent; for CHC, 68.71 percent; for General Inpatient Care, 64.01 percent; and for Respite Care, 54.13 percent. The non-labor portion is equal to 100 percent minus the labor portion for each level of care. Therefore, the non-labor portion of the payment rates is as follows: For RHC, 31.29 percent; for CHC, 31.29 percent; for General Inpatient Care, 35.99 percent; and for Respite Care, 45.87 percent.
Historically, the hospice rate update has been published through a separate administrative instruction issued annually in the summer to provide adequate time to implement system change requirements; however, beginning in FY 2014 and for subsequent FY, we are using rulemaking as the means to update payment rates. This change was proposed in the FY 2014 Hospice Wage Index and Payment Rate Update proposed rule and finalized in the FY 2014 Hospice Wage Index and Payment Rate Update final rule (78 FR 48270). It is consistent with the rate update process in other Medicare benefits, and provides rate information to hospices as quickly as, or earlier than, when rates are published in an administrative instruction.
There are four payment categories that are distinguished by the location and intensity of the services provided. The base payments are adjusted for geographic differences in wages by multiplying the labor share, which varies by category, of each base rate by the applicable hospice wage index. A hospice is paid the RHC rate for each day the beneficiary is enrolled in hospice, unless the hospice provides continuous home care, IRC, or general inpatient care. CHC is provided during a period of patient crisis to maintain the patient at home; IRC is short-term care to allow the usual caregiver to rest; and GIP is to treat symptoms that cannot be managed in another setting.
As discussed in section III.B.2, of this proposed rule, we are proposing two different RHC payment rates, one RHC rate for the first 60 days and a second RHC rate for days 60 and beyond. As discussed in section III.B.3, we are proposing to make a SIA payment, in addition to the daily RHC payment, when direct patient care is provided by a RN or social worker during the last 7 days of the patient's life. The SIA payment would be equal to the CHC hourly rate multiplied by the hours of nursing or social work provided (up to 4 hours total) that occurred on the day of service. The SIA payment would also be adjusted by the appropriate wage index. In order to maintain budget neutrality, as required under section 1814(i)(6)(D)(ii) of the Act, for the proposed SIA payment, the proposed RHC rates would need to be adjusted by a budget neutrality factor. The budget neutrality adjustment that would apply to days 1 through 60 is equal to 1 minus the ratio of SIA payments for days 1 through 60 to the total payments for days 1 through 60 and is calculated to be 0.9853. The budget neutrality adjustment that would apply to days 61 and beyond is equal to 1 minus the ratio of SIA payments for days 61 and beyond to the total payments for days 61 and beyond and is calculated to be 0.9967. Lastly, the RHC rates would be increased by the proposed FY 2016 hospice payment update percentage of 1.8 percent as discussed in section III.C.3. The proposed FY 2016 RHC rates are shown in Table 22. The proposed FY 2016 payment rates for CHC, IRC, and GIP would be the FY 2015 payment rates increased by 1.8 percent. The proposed rates for these three levels of care are shown in Table 23. The proposed FY 2016 rates for hospices that do not submit the required quality data are shown in Tables 24 and 25. The proposed FY 2016 hospice payment rates would be effective for care and services furnished on or after October 1, 2015, through September 30, 2016.
We reiterate in this proposed rule, that the Congress required in sections 1814(i)(5)(A) through (C) of the Act that hospices begin submitting quality data, based on measures to be specified by the Secretary. In the FY 2012 Hospice Wage Index final rule (76 FR 47320 through 47324), we implemented a Hospice Quality Reporting Program (HQRP) as required by section 3004 of the Affordable Care Act. Hospices were required to begin collecting quality data in October 2012, and submit that quality data in 2013. Section 1814(i)(5)(A)(i) of the Act requires that beginning with FY 2014 and each subsequent FY, the Secretary shall reduce the market basket update by 2 percentage points for any hospice that does not comply with the quality data submission requirements with respect to that FY. We remind hospices that this applies to payments in FY 2016 (See Tables 24 and 25 below). For more information on the HQRP requirements please see section III.E. in this proposed rule.
When the Medicare hospice benefit was implemented, the Congress included 2 limits on payments to hospices: An inpatient cap and an aggregate cap. As set out in sections 1861(dd)(2)(A)(iii) and 1814(i)(2)(A) through (C) of the Act, respectively, the hospice inpatient cap limits the total number of Medicare inpatient days (general inpatient care and respite care) to no more than 20 percent of a hospice's total Medicare hospice days. The intent of the inpatient cap was to ensure that hospice remained a home-based benefit. The hospice aggregate cap limits the total aggregate payment any individual hospice can receive in a year. The intent of the hospice aggregate cap was to protect Medicare from spending more for hospice care than it would for conventional care at the end of life.
The aggregate cap amount was set at $6,500 per beneficiary when first enacted in 1983; this was an amount hospice advocates agreed was well above the average cost of caring for a hospice patient.
Section 1814(i)(2)(B)(i) and (ii) of the Act, as added by section 3(b) of the IMPACT Act requires, effective for the 2016 cap year (November 1, 2015 through October 31, 2016), that the cap amount for the previous year to be updated by the hospice payment update percentage, rather than the original $6,500 being annually adjusted by the change in the CPI-U for medical care expenditures since 1984. This new provision will sunset for cap years ending after September 30, 2025, at which time the annual update to the cap amount will revert back to the original methodology. This provision is estimated to result in $540 million in savings over 10 years starting in 2017.
As a result, we are proposing to update § 418.309 to reflect the new language added to section 1814(i)(2)(B) of the Act.
In accordance with section 1814(i)(2)(B)(i) of the Act, the hospice aggregate cap amount for the 2015 cap year, starting on November 1, 2014 and ending on October 31, 2015, will be $27,135.96. This amount was calculated by multiplying the original cap amount of $6,500 by the change in the CPI-U medical care expenditure category, from the fifth month of the 1984 accounting year (March 1984) to the fifth month the current accounting year (in this case, March 2015). The CPI-U for medical care expenditures for 1984 to present is available from the Bureau of Labor Statistics (BLS) Web site at:
$6,500 × 4.174763 = $27,135.96
As required by section 1814(i)(2)(B)(ii) of the Act, the hospice aggregate cap amount for the 2016 cap year, starting on November 1, 2015 and ending on October 31, 2016, will be the 2015 cap amount updated by the FY 2016 hospice payment update percentage (see section III.C.2 above). As such, the 2016 cap amount will be $27,624.41 ($27,135.96 * 1.018 = $27,624.41). A Change Request with the finalized hospice payment rates, a finalized hospice wage index, the Pricer for FY 2016, and the hospice cap amount for the cap year ending October 31, 2015 will be issued in the summer.
As noted in section III.C.4, when the Medicare hospice benefit was implemented, the Congress included 2 limits on payments to hospices: an aggregate cap and an inpatient cap. The intent of the hospice aggregate cap was to protect Medicare from spending more for hospice care than it would for conventional care at the end-of-life. If a hospice's total Medicare payments for the cap year exceed such hospice's aggregate cap amount, then the hospice must repay the excess back to Medicare. The intent of the inpatient cap was to ensure that hospice remained a home-based benefit. If a hospice's inpatient days (GIP and respite) exceed 20 percent of all hospice days then, for inpatient care, the hospice is paid: (1) the sum of the total reimbursement for inpatient care multiplied by the ratio of the maximum number of allowable inpatient days to actual number of all inpatient days; and (2) the sum of the actual number of inpatient days in excess of the limitation by the routine home care rate.
The aggregate cap amount for any given hospice is established by multiplying the cap amount by the number of Medicare beneficiaries who received hospice services during the year. Originally, the number of Medicare beneficiaries who received hospice services during the year was determined using a “streamlined” methodology whereby each beneficiary is counted as “1” in the initial cap year of the hospice election and is not counted in subsequent cap years. Specifically, the hospice includes in its number of Medicare beneficiaries those Medicare beneficiaries who have not previously been included in the calculation of any hospice cap, and who have filed an election to receive hospice care in accordance with § 418.24 during the period beginning on September 28th (34 days before the beginning of the cap year) and ending on September 27th (35 days before the end of the cap year), using the best data available at the time of the calculation. This is applicable for cases in which a beneficiary received care from only one hospice. If a beneficiary received care from more than one hospice, each hospice includes in its number of Medicare beneficiaries only that fraction which represents the portion of a patient's total days of care with that hospice in that cap year, using the best data available at the time of the calculation. Using the streamlined method, a different timeframe from the cap year is used to count the number of Medicare beneficiaries because it allows those beneficiaries who elected hospice near the end of the cap year to be counted in the year when most of the services were provided (48 FR 38158).
During FY 2012 rulemaking, in addition to the streamlined method, CMS added a “patient-by-patient proportional” method as a way of calculating the number of Medicare beneficiaries who received hospice services during the year in determining the aggregate cap amount for any given hospice (76 FR 47309). This method specifies that a hospice should include in its number of Medicare beneficiaries only that fraction which represents the portion of a patient's total days of care in all hospices and all years that was spent in that hospice in that cap year, using the best data available at the time of the calculation. The total number of Medicare beneficiaries for a given hospice's cap year is determined by summing the whole or fractional share of each Medicare beneficiary that received hospice care during the cap year, from that hospice. Under the patient-by-patient proportional methodology, the timeframe for counting the number of Medicare beneficiaries is the same as the cap accounting year (November 1 through October 31). The aggregate cap amount for each hospice is now calculated using the patient-by-patient proportional method, except for those hospices that had their cap determination calculated under the streamlined method prior to the 2012 cap year, did not appeal the streamlined method used to determine
As stated in section III.C.4, the cap accounting year is currently November 1 to October 31. In the past, CMS has considered changing the cap accounting year to coincide with the hospice rate update year, which is the federal fiscal year (October 1 through September 30). In the FY 2011 Hospice Wage Index notice (75 FR 42951), CMS solicited comments on aligning the cap accounting year for both the inpatient and aggregate hospice cap to coincide with the FY. In the FY 2012 Hospice Wage Index proposed rule, we summarized the comments we received, stating that “several commenters supported the idea of our aligning the cap year with the federal fiscal year; with some noting that the change would be appropriate for a multi-year apportioning approach (the patient-by-patient proportional method).” Other commenters stated that we should not change the cap year at this time, and recommended that we wait for this to be accomplished as part of hospice payment reform (76 FR 26812).
In FY 2012, we decided not to finalize changing the cap accounting year to the FY, partly because of a concern that a large portion of providers could still be using the streamlined method. As stated earlier, the streamlined method has a different timeframe for counting the number of beneficiaries than the cap accounting year, allowing those beneficiaries who elected hospice near the end of the cap year to be counted in the year when most of the services were provided. However, for the 2013 cap year, only 486 hospices used the streamlined method to calculate the number of Medicare hospice patients and the remaining providers used the patient-by-patient proportional method. Since the majority of providers now use the patient-by-patient proportional method, we believe there is no longer an advantage to defining the cap accounting year differently from the hospice rate update year and maintaining a cap accounting year (as well as the period for counting beneficiaries under the streamlined method) that is different from the federal fiscal year creates an added layer of complexity that can lead to hospices unintentionally calculating their aggregate cap determinations incorrectly. In addition, shifting the cap accounting year timeframes to coincide with the hospice rate update year (the federal fiscal year) would better align with the intent of the new cap calculation methodology required by the IMPACT Act of 2014, as discussed in section III.C.4. Therefore, we are proposing to align the cap accounting year for both the inpatient cap and the hospice aggregate cap with the federal fiscal year for FYs 2017 and later. Under this proposal, in addition to aligning the cap accounting year with the federal fiscal year, we would also align the timeframe for counting the number of beneficiaries with the federal fiscal year. This proposal would eliminate timeframe complexities associating with counting payments and beneficiaries differently from the federal fiscal year and would help hospices avoid mistakes in calculating their aggregate cap determinations.
In shifting the cap accounting year to match the federal fiscal year, we note that new section 1814(i)(2)(B)(ii) of the Act, as added by section 3(b) of the IMPACT Act, requires the cap amount for 2016 to be updated by the hospice payment update percentage in effect “during the FY beginning on the October 1 preceding the beginning of the accounting year”. In other words, we interpret this to mean that the statute requires the 2016 cap amount to be updated using the most current hospice payment update percentage in effect at the start of that cap year. For the 2016 cap year, the 2015 cap amount would be updated by the FY 2016 hospice payment update percentage outlined in section III.C.2. For the 2017 cap year through the 2025 cap year, we would update the previous year's cap amount by the hospice payment update percentage for that current federal fiscal year. For the 2026 cap year and beyond, changing the cap accounting year to coincide with the federal fiscal year will require us to use the CPI-U for February when updating the cap amount, instead of the current process which uses the March CPI-U to update the cap amount. Section 1814(i)(2)(B) of the Act requires us to update the cap amount by the same percentage as the percentage increase or decrease in the medical care expenditure category of the CPI-U from March 1984 to the “fifth month of the accounting year ” for all years except those accounting years that end after September 30, 2016 and before October 1, 2025.
In shifting the cap year to match the federal fiscal year, we are proposing to also align the timeframes in which beneficiaries and payments are counted for the purposes of determining each individual hospice's aggregate cap amount (see table 26 below) as well as the timeframes in which days of hospice care are counted for the purposes determining whether a given hospice exceeded the inpatient cap. In the year of transition (2017 cap year), for the inpatient cap, we propose to calculate the percentage of all hospice days of care that were provided as inpatient days (GIP care and respite care) from November 1, 2016 through September 30, 2017 (11 months). For those hospices using the patient-by-patient proportional method for their aggregate cap determinations, for the 2017 cap year, we would count beneficiaries from November 1, 2016 to September 30, 2017. For those hospices using the streamlined method for their aggregate cap determinations, we propose to allow 3 extra days to count beneficiaries in the year of transition. Specifically, for the 2017 cap year (October 1, 2016 to September 30, 2017), we would count beneficiaries from September 28, 2016 to September 30, 2017, which is 12 months plus 3 days, in that cap year's calculation. For hospices using either the streamlined method or the patient-by-patient proportional method, we propose to count 11 months of payments from November 1, 2016 to September 30, 2017 for the 2017 cap year. For the 2018 cap year (October 1, 2017 to September 30, 2018), we would count both beneficiaries and payments for hospices using the streamlined or the patient-by-patient proportional methods from October 1, 2017 to September 30, 2018. Likewise, for the 2018 cap year would calculate the percentage of all hospice days of care that were provided as inpatient days (GIP care or respite care) from October 1, 2017 to September 30, 2018. Because of the non-discretionary language used by Congress in determining the cap for a year, the actual cap amount for the adjustment year would not be prorated for a shorter time frame. We are soliciting public comment on all aspects of the proposed alignment of the cap accounting year with the federal fiscal year, as articulated in this section, as well as the corresponding proposed changes to the regulations at § 418.308(c) in section VI.
Section 3004(c) of the Affordable Care Act amended section 1814(i)(5) of the Act to authorize a quality reporting program for hospices. Section 1814(i)(5)(A)(i) of the Act requires that beginning with FY 2014 and each subsequent FY, the Secretary shall reduce the market basket update by 2 percentage points for any hospice that does not comply with the quality data submission requirements with respect to that FY. Depending on the amount of the annual update for a particular year, a reduction of 2 percentage points could result in the annual market basket update being less than 0.0 percent for a FY and may result in payment rates that are less than payment rates for the preceding FY. Any reduction based on failure to comply with the reporting requirements, as required by section 1814(i)(5)(B) of the Act, would apply only for the particular FY involved. Any such reduction would not be cumulative or be taken into account in computing the payment amount for subsequent FYs. Section 1814(i)(5)(C) of the Act requires that each hospice submit data to the Secretary on quality measures specified by the Secretary. The data must be submitted in a form, manner, and at a time specified by the Secretary.
Any measures selected by the Secretary must be endorsed by the consensus-based entity, which holds a contract regarding performance measurement with the Secretary under section 1890(a) of the Act. This contract is currently held by the National Quality Forum (NQF). However, section 1814(i)(5)(D)(ii) of the Act provides that in the case of a specified area or medical topic determined appropriate by the Secretary for which a feasible and practical measure has not been endorsed by the consensus-based entity, the Secretary may specify measures that are not so endorsed as long as due consideration is given to measures that have been endorsed or adopted by a consensus-based organization identified by the Secretary. Our paramount concern is the successful development of a Hospice Quality Reporting Program (HQRP) that promotes the delivery of high quality healthcare services. We seek to adopt measures for the HQRP that promote patient-centered, high quality, and safe care. Our measure selection activities for the HQRP take into consideration input from the Measure Applications Partnership (MAP), convened by the NQF, as part of the established CMS pre-rulemaking process required under section 1890A of the Act. The MAP is a public-private partnership comprised of multi-stakeholder groups convened by the NQF for the primary purpose of providing input to CMS on the selection of certain categories of quality and efficiency measures, as required by section 1890A(a)(3) of the Act. By February 1st of each year, the NQF must provide that input to CMS. Input from the MAP is located at:
Beginning with the FY 2018 payment determination, for the purpose of streamlining the rulemaking process, we propose that when we adopt measures for the HQRP beginning with a payment determination year, these measures are automatically adopted for all subsequent years' payment determinations, unless we propose to remove, suspend, or replace the measures.
Quality measures may be considered for removal by CMS if:
• Measure performance among hospices is so high and unvarying that meaningful distinctions in improvements in performance can be no longer be made;
• Performance or improvement on a measure does not result in better patient outcomes;
• A measure does not align with current clinical guidelines or practice;
• A more broadly applicable measure (across settings, populations, or conditions) for the particular topic is available;
• A measure that is more proximal in time to desired patient outcomes for the particular topic is available;
• A measure that is more strongly associated with desired patient outcomes for the particular topic is available; or
• Collection or public reporting of a measure leads to negative unintended consequences.
For any such removal, the public will be given an opportunity to comment through the annual rulemaking process. However, if there is reason to believe continued collection of a measure raises potential safety concerns, we will take immediate action to remove the measure from the HQRP and will not wait for the annual rulemaking cycle. The measures will be promptly removed and we will immediately notify hospices and the public of such a decision through the usual HQRP communication channels, including listening sessions, memos, email notification, and Web postings. In such instances, the removal of a
CMS is not proposing to remove any measures for the FY 2017 reporting cycle. We invite public comment on our proposal that once a quality measure is adopted, it be retained for use in the subsequent fiscal year payment determinations unless otherwise stated.
As stated in the CY 2013 HH PPS final rule (77 FR 67068, 67133), CMS expanded the set of required measures to include additional measures endorsed by NQF. We also stated that to support the standardized collection and calculation of quality measures by CMS, collection of the needed data elements would require a standardized data collection instrument. In response, CMS developed and tested a hospice patient-level item set, the HIS. Hospices are required to submit an HIS-Admission record and an HIS-Discharge record for each patient admission to hospice on or after July 1, 2014. In developing the standardized HIS, we considered comments offered in response to the CY 2013 HH PPS proposed rule (77 FR 41548, 41573). In the FY 2014 Hospice Wage Index final rule (78 FR 48257), and in compliance with section 1814(i)(5)(C) of the Act, we finalized the specific collection of data items that support the following six NQF endorsed measures and one modified measure for hospice:
• NQF #1617 Patients Treated with an Opioid who are Given a Bowel Regimen,
• NQF #1634 Pain Screening,
• NQF #1637 Pain Assessment,
• NQF #1638 Dyspnea Treatment,
• NQF #1639 Dyspnea Screening,
• NQF #1641 Treatment Preferences,
• NQF #1647 Beliefs/Values Addressed (if desired by the patient) (modified).
To achieve a comprehensive set of hospice quality measures available for widespread use for quality improvement and informed decision making, and to carry out our commitment to develop a quality reporting program for hospices that uses standardized methods to collect data needed to calculate quality measures, we finalized the HIS effective July 1, 2014 (78 FR 48258). To meet the quality reporting requirements for hospices for the FY 2016 payment determination and each subsequent year, we require regular and ongoing electronic submission of the HIS data for each patient admission to hospice on or after July 1, 2014, regardless of payer or patient age (78 FR 48234, 48258). Collecting data on all patients provides CMS with the most robust, accurate reflection of the quality of care delivered to Medicare beneficiaries as compared with non-Medicare patients. Therefore, to measure the quality of care delivered to Medicare beneficiaries in the hospice setting, we collect quality data necessary to calculate the adopted measures on all patients. We finalized in the FY 2014 Hospice Wage Index (78 FR 48258) that hospice providers collect data on all patients in order to ensure that all patients regardless of payer or patient age are receiving the same care and that provider metrics measure performance across the spectrum of patients.
Hospices are required to complete and submit an HIS-Admission and an HIS-Discharge record for each patient admission. Hospices failing to report quality data via the HIS in FY 2015 will have their market basket update reduced by 2 percentage points in FY 2017 beginning in October 1, 2016. In the FY 2015 Hospice Wage Index final rule (79 FR 50485, 50487), we finalized the proposal to codify the HIS submission requirement at § 418.312. The System of Record (SOR) Notice titled “Hospice Item Set (HIS) System,” SOR number 09-70-0548, was published in the
We are not currently proposing any new measures for FY 2017. However, we are working with our measure development and maintenance contractor to identify measure concepts for future implementation in the HQRP. In identifying priority areas for future measure enhancement and development, CMS takes into consideration input from numerous stakeholders, including the Measures Application Partnership (MAP), the Medicare Payment Advisory Commission (MedPAC), Technical Expert Panels, and national priorities, such as those established by the National Priorities Partnership, the HHS Strategic Plan, the National Strategy for Quality Improvement in Healthcare, and the CMS Quality Strategy. In addition, CMS takes into consideration vital feedback and input from research published by our payment reform contractor as well as from the Institute of Medicine (IOM) report, titled “Dying in America,” released in September 2014.
• Patient reported pain outcome measure that incorporates patient and/or proxy report regarding pain management;
• Claims-based measures focused on care practice patterns including skilled visits in the last days of life, burdensome transitions of care for patients in and out of the hospice benefit, and rates of live discharges from hospice;
• Responsiveness of hospice to patient and family care needs;
• Hospice team communication and care coordination.
These measure concepts are under development, and details regarding measure definitions, data sources, data collection approaches, and timeline for implementation will be communicated in future rulemaking. CMS invites comments about these four high priority concept areas for future measure development.
Section 1814(i)(5)(C) of the Act requires that each hospice submit data to the Secretary on quality measures specified by the Secretary. Such data must be submitted in a form and manner, and at a time specified by the Secretary. Section 1814(i)(5)(A)(i) of the Act requires that beginning with the FY 2014 and for each subsequent FY, the Secretary shall reduce the market basket update by 2 percentage points for any hospice that does not comply with the quality data submission requirements with respect to that FY.
In the FY 2015 Hospice Wage Index and Payment Rate Update final rule (79 FR 50488) we finalized a policy stating that any hospice that receives its CCN notification letter on or after November 1 of the preceding year involved is excluded from any payment penalty for quality reporting purposes for the following FY. For example, if a hospice provider receives their CCN notification letter on November 2, 2015 they would
We are proposing to modify our policies for the timing of new providers to begin reporting to CMS. Beginning with the FY 2018 payment determination and for each subsequent payment determination, we propose that a new hospice be responsible for HQRP quality data reporting beginning on the date they receive their Certification Number (CCN) (also known as the Medicare Provider Number) notification letter from CMS. Under this proposal, hospices would be responsible for reporting quality data on patient admissions beginning on the date they receive their CCN notification.
Currently, new hospices may experience a lag between Medicare certification and receipt of their actual CCN Number. Since hospices cannot submit data to the Quality Improvement and Evaluation System (QIES) Assessment Submission and Processing (ASAP) system without a valid CCN Number, CMS proposes new hospices begin collecting HIS quality data beginning on the date they receive their CCN notification letter by CMS. We believe this policy will provide sufficient time for new hospices to establish appropriate collection and reporting mechanisms to submit the required quality data to CMS. We invite public comment on this proposal that a new hospice be required to begin reporting quality data under HQRP beginning on the date they receive their CCN notification letter from CMS.
In the FY 15 Hospice Wage Index final rule (79 FR 50486) we finalized our policy requiring that, for the FY 2017 reporting requirements, hospices must complete and submit HIS records for all patient admissions to hospice on or after July 1, 2014. Electronic submission is required for all HIS records. Although electronic submission of HIS records is required, hospices do not need to have an electronic medical record to complete or submit HIS data. In the FY 14 Hospice Wage Index (78 FR 48258) we finalized that, to complete HIS records, providers can use either the Hospice Abstraction Reporting Tool (HART) software, which is free to download and use, or a vendor-designed software. HART provides an alternative option for hospice providers to collect and maintain facility, patient, and HIS Record information for subsequent submission to the QIES ASAP system. Once HIS records are complete, electronic HIS files must be submitted to CMS via the QIES ASAP system. Electronic data submission via the QIES ASAP system is required for all HIS submissions; there are no other data submission methods available. Hospices have 30 days from a patient admission or discharge to submit the appropriate HIS record for that patient through the QIES ASAP system. CMS will continue to make HIS completion and submission software available to hospices at no cost. We provided details on data collection and submission timing at
The QIES ASAP system provides reports upon successful submission and processing of the HIS records. The final validation report may serve as evidence of submission. This is the same data submission system used by nursing homes, inpatient rehabilitation facilities, home health agencies, and long-term care hospitals for the submission of Minimum Data Set Version 3.0 (MDS 3.0), Inpatient Rehabilitation Facility—Patient Assessment Instrument (IRF-PAI), Outcome Assessment Information Set (OASIS), and Long-Term Care Hospital Continuity Assessment Record & Evaluation Data Set (LTCH CARE), respectively. We have provided hospices with information and details about use of the HIS through postings on the HQRP Web page, Open Door Forums, announcements in the CMS MLN Connects Provider e-News (E-News), and provider training.
Hospices are evaluated for purposes of the quality reporting program based on whether or not they submit data, not on their substantive performance level with respect to the required quality measures. In order for CMS to appropriately evaluate the quality reporting data received by hospice providers, it is essential HIS data be received in a timely manner.
The submission date for any given HIS record is defined as the date on which a provider submits the completed record. The submission date is the date on which the completed record is submitted and accepted by the QIES ASAP system. Beginning with the FY 2018 payment determination, we propose that hospices must submit all HIS records within 30 days of the Event Date, which is the patient's admission date for HIS-Admission records or discharge date for HIS-Discharge records.
• For HIS-Admission records, the submission date should be no later than the admission date plus 30 calendar days. The submission date can be equal to the admission date, or no greater than 30 days later. The QIES ASAP system will issue a warning on the Final Validation Report if the submission date is more than 30 days after the patient's admission date.
• For HIS-Discharge records, the submission date should be no later than the discharge date plus 30 calendar days. The submission date can be equal to the discharge date, or no greater than 30 days later. The QIES ASAP system will issue a warning on the Final Validation Report if the submission date is more than 30 days after the patient's discharge date.
The QIES ASAP system validation edits are designed to monitor the timeliness and ensure that providers submitted records conform to the HIS data submission specifications. Providers are notified when timing criteria have not been met by warnings that appear on their Final Validation Reports. A standardized data collection approach that coincides with timely submission of data is essential in order to establish a robust quality reporting program and ensure the scientific reliability of the data received. We invite comments on the proposal that hospices must submit all HIS records within 30 days of the Event Date, which is the patient's admission date for HIS-Admission records or discharge date for HIS-Discharge records.
In order to accurately analyze quality reporting data received by hospice providers, it is imperative we receive ongoing and timely submission of all HIS-Admission and HIS-Discharge records. To date, the timeliness criteria for submission of HIS Admission and HIS-Discharge records has never been proposed and finalized through rulemaking process. We believe this
Beginning with the FY 2018 payment determination and subsequent FY payment determinations, we propose that all HIS records must be submitted within 30 days of the Event Date, which is the patient's admission date or discharge date. To coincide with this requirement, we propose to establish an incremental threshold for compliance with this timeliness requirement; the proposed threshold would be implemented over a 3 year period. To be compliant with timeliness requirements, we propose that hospices would have to submit no less than 70 percent of their total number of HIS-Admission and HIS-Discharge records by no later than 30 days from the Event Date for the FY 2018 APU determination. The timeliness threshold would be set at 80 percent for FY 2019 and at 90 percent for FY 2020 and subsequent years. The threshold corresponds with the overall amount of HIS records received from each provider that fall within the established 30 day submission timeframes. Our ultimate goal is to require all hospices to achieve a timeliness requirement compliance rate of 90 percent or more.
For example, beginning in FY 2018, hospices will have met the timeliness requirement threshold if at the end of the reporting period 70 percent of all their HIS reporting data for the year has been received within the 30 day submission timeframe.
To summarize, we propose to implement the timeliness threshold requirement beginning with all HIS admission and discharge records that occur on or after January 1, 2016, in accordance with the following schedule.
• Beginning on or after January 1, 2016 to December 31, 2016, hospices must submit at least 70 percent for all required HIS records within the 30 day submission timeframe for the year or be subject to a 2 percentage point reduction to their market basket update for FY 2018.
• Beginning on or after January 1, 2017 to December 31, 2017, hospices must score at least 80 percent for all HIS records received within the 30 day submission timeframe for the year or be subject to a 2 percentage point reduction to their market basket update for FY 2019.
• Beginning on or after January 1, 2018 to December 31, 2018, hospices must score at least 90 percent for all HIS records received within the 30 day submission timeframe for the year or be subject to a 2 percentage point reduction to their market basket update for FY 2020.
We invite public comment on our proposal to implement the new data submission and compliance threshold requirement, as described previously, for the HQRP.
In the FY 2015 Hospice Wage Index and Payment Rate Update final rule (79 FR 50488), we finalized our proposal to allow hospices to request and for CMS to grant exemptions/extensions with respect to the reporting of required quality data when there are extraordinary circumstances beyond the control of the provider. When an extension/exception is granted, a hospice will not incur payment reduction penalties for failure to comply with the requirements of the HQRP. For the FY 2016 payment determination and subsequent payment determinations, a hospice may request an extension/exception of the requirement to submit quality data for a specified time period. In the event that a hospice requests an extension/exception for quality reporting purposes, the hospice would submit a written request to CMS. In general, exceptions and extensions will not be granted for hospice vendor issues, fatal error messages preventing record submission, or staff error.
In the event that a hospice seeks to request an exception or extension for quality reporting purposes, the hospice must request an exception or extension within 30 days of the date that the extraordinary circumstances occurred by submitting the request to CMS via email to the HQRP mailbox at
If a provider is granted an exception or extension, timeframes for which an exception or extension is granted will be applied to the new timeliness requirement so providers are not penalized. If a hospice is granted an exception, we will not require that the hospice submit any quality data for a given period of time. If we grant an extension to a hospice, the hospice will still remain responsible for submitting quality data collected during the timeframe in question, although we will specify a revised deadline by which the hospice must submit this quality data.
This process does not preclude us from granting extensions/exceptions to hospices that have not requested them when we determine that an extraordinary circumstance, such as an act of nature, affects an entire region or locale. We may grant an extension/exception to a hospice if we determine that a systemic problem with our data collection systems directly affected the ability of the hospice to submit data. If we make the determination to grant an extension/exception to hospices in a region or locale, we will communicate this decision through routine communication channels to hospices and vendors, including, but not limited to, Open Door Forums, ENews and notices on
In the FY 2015 Hospice Wage Index and Payment Rate Update final rule (79 FR 50452), we stated that CMS would start national implementation of the CAHPS® Hospice Survey as of January 1, 2015. We started national implementation of this survey as planned. The CAHPS® Hospice Survey is a component of CMS' Hospice Quality Reporting Program that emphasizes the experiences of hospice patients and their primary caregivers listed in the hospice patients' records. Measures from the survey will be submitted to the National Quality Forum (NQF) for endorsement as hospice quality measures. We refer readers to our extensive discussion of the Hospice Experience of Care Survey in the Hospice Wage Index FY 2015 final rule for a description of the measurements involved and their relationship to the statutory requirement for hospice
The CAHPS® Hospice Survey is the first national hospice experience of care survey that includes standard survey administration protocols that allow for fair comparisons across hospices.
CMS developed the CAHPS® Hospice Survey with input from many stakeholders, including other government agencies, industry stakeholders, consumer groups and other key individuals and organizations involved in hospice care. The Survey was designed to measure and assess the experiences of patients who died while receiving hospice care as well as the experiences of their informal caregivers. The goals of the survey are to—
• Produce comparable data on patients' and caregivers' perspectives of care that allow objective and meaningful comparisons between hospices on domains that are important to consumers;
• Create incentives for hospices to improve their quality of care through public reporting of survey results; and
• Hold hospice care providers accountable by informing the public about the providers' quality of care.
The development process for the survey began in 2012 and included a public request for information about publicly available measures and important topics to measure (78 FR 5458, January 25, 2013); a review of the existing literature on tools that measure experiences with end-of-life care; exploratory interviews with caregivers of hospice patients; a technical expert panel attended by survey development and hospice care quality experts; cognitive interviews to test draft survey content; incorporation of public responses to
The CAHPS® Hospice Survey treats the dying patient and his or her informal caregivers (family members or friends) as the unit of care. The Survey seeks information from the informal caregivers of patients who died while enrolled in hospices. Survey-eligible patients and caregivers are identified using hospice records. Fielding timelines give the respondent some recovery time (2 to 3 months), while simultaneously not delaying so long that the respondent is likely to forget details of the hospice experience. The survey focuses on topics that are important to hospice users and for which informal caregivers are the best source for gathering this information. Caregivers are presented with a set of standardized questions about their own experiences and the experiences of the patient in hospice care. During national implementation of this survey, hospices are required to conduct the survey to meet the Hospice Quality Reporting requirements, but individual caregivers will respond only if they voluntarily choose to do so. A survey Web site is the primary information resource for hospices and vendors (
In general, hospice patients and their caregivers are eligible for inclusion in the survey sample with the exception of the following ineligible groups: primary caregivers of patients under the age of 18 at the time of death; primary caregivers of patients who died within 48 hours of admission to hospice care; patients for whom no caregiver is listed or available, or for whom caregiver contact information is not known; patients whose primary caregiver is a legal guardian unlikely to be familiar with care experiences; patients for whom the primary caregiver has a foreign (Non-US or US Territory address) home address; patients or caregivers of patients who request that they not be contacted (those who sign “no publicity” requests while under the care of hospice or otherwise directly request not to be contacted). Identification of patients and caregivers for exclusion will be based on hospice administrative data. Additionally, caregivers under 18 are excluded.
Hospices with fewer than 50 survey-eligible decedents/caregivers during the prior calendar year are exempt from the CAHPS® Hospice Survey data collection and reporting requirements for payment determination. Hospices with 50 to 699 survey-eligible decedents/caregivers in the prior year will be required to survey all cases. For hospices with 700 or more survey-eligible decedents/caregivers in the prior year, a sample of 700 will be drawn under an equal-probability design. Survey-eligible decedents/caregivers are defined as that group of decedent and caregiver pairs that meet all the criteria for inclusion in the survey sample.
We moved forward with a model of national survey implementation, which is similar to that of other CMS patient experience of care surveys. Medicare-certified hospices are required to contract with a third-party vendor that is CMS-trained and approved to administer the survey on their behalf. A list of approved vendors can be found at this Web site:
Consistent with many other CMS CAHPS® surveys that are publicly reported on CMS Web sites, CMS will publicly report hospice data when at least 12 months of data are available, so that valid comparisons can be made across hospice providers in the United States, to help patients, family and friends choose a hospice program for themselves or their loved ones.
In section 3004(c) of the Affordable Care Act, the Secretary is directed to establish quality reporting requirements for Hospice Programs. The CAHPS® Hospice Survey is a component of the CMS Hospice Quality Reporting Requirements for the FY 2018 APU and subsequent years.
The CAHPS® Hospice Survey includes the measures detailed in Table 27. The individual survey questions that comprise each measure are listed under the measure. These measures are in the process of being submitted to the National Quality Forum (NQF).
To comply with CMS's quality reporting requirements for the FY 2018 APU, hospices will be required to collect data using the CAHPS® Hospice Survey. Hospices would be able to comply by utilizing only CMS-approved third party vendors that are in compliance with the provisions at § 418.312(e). Ongoing monthly participation in the survey is required January 1, 2016 through December 31, 2016 for compliance with the FY 2018 APU.
Approved CAHPS® Hospice Survey vendors will submit data on the hospice's behalf to the CAHPS® Hospice Survey Data Center. The deadlines for data submission occur quarterly and are shown in Table 28 below. Deadlines are the second Wednesday of the submission months, which are August, November, February, and May. Deadlines are final; no late submissions will be accepted. However, in the event of extraordinary circumstances beyond the control of the provider, the provider will be able to request an exemption as previously noted in the Quality Measures for Hospice Quality Reporting Program and Data Submission Requirements for Payment Year FY 2016 and Beyond section. Hospice providers are responsible for making sure that their vendors are submitting data in a timely manner.
In the FY 2014 Hospice Wage Index and Rate Update final rule, we stated that we would exempt very small hospices from CAHPS® Hospice Survey requirements. We propose to continue that exemption: Hospices that have fewer than 50 survey-eligible decedents/caregivers in the period from January 1, 2015 through December 31, 2015 are exempt from CAHPS® Hospice Survey data collection and reporting requirements for the 2018 APU. To qualify for the survey exemption for the FY 2018 APU, hospices must submit an exemption request form. This form will be available on the CAHPS® Hospice Survey Web site
To meet participation requirements for the FY 2019 APU, we proposed that hospices collect data on an ongoing monthly basis from January 2017 through December 2017 (inclusive). Data submission deadlines for the 2019 APU will be announced in future rulemaking.
Hospices that have fewer than 50 survey-eligible decedents/caregivers in the period from January 1, 2016 through December 31, 2016 are exempt from CAHPS® Hospice Survey data collection and reporting requirements for the FY 2019 payment determination. To qualify, hospices must submit an exemption request form. This form will be available in first quarter 2017 on the CAHPS® Hospice Survey Web site
Hospices are required to submit to CMS their total unique patient count for the period of January 1, 2016 through December 31, 2016. The due date for submitting the exemption request form for the FY 2018 APU is August 10, 2016.
The Affordable Care Act requires that beginning with FY 2014 and each subsequent fiscal year, the Secretary shall reduce the market basket update by 2 percentage points for any hospice that does not comply with the quality data submission requirements with respect to that fiscal year, unless covered by specific exemptions. Any such reduction will not be cumulative and will not be taken into account in computing the payment amount for subsequent fiscal years. In the FY 2015 Hospice Wage Index we added the CAHPS® Hospice Survey to the Hospice Quality Reporting Program requirements for the FY 2017 payment determination and determinations for subsequent years.
• To meet the HQRP requirements for the FY 2018 payment determination, hospices would collect survey data on a monthly basis for the months of January 1, 2016 through December 31, 2016 to qualify for the full APU.
• To meet the HQRP requirements for the FY 2019 payment determination, hospices would collect survey data on a monthly basis for the months of January 1, 2017 through December 31, 2017 to qualify for the full APU.
We propose to continue a requirement that vendors and hospice providers participate in CAHPS® Hospice Survey oversight activities to ensure compliance with Hospice CAHPS® technical specifications and survey requirements. The purpose of the oversight activities is to ensure that hospices and approved survey vendors follow the CAHPS® Hospice Survey technical specifications and thereby ensure the comparability of CAHPS® Hospice Survey data across hospices.
We propose that the reconsiderations and appeals process for hospices failing to meet the Hospice CAHPS® data collection requirements will be part of the Reconsideration and Appeals process already developed for the Hospice Quality Reporting program. We encourage hospices interested in learning more about the CAHPS® Hospice Survey to visit the CAHPS® Hospice Survey Web site:
In the FY 2015 Hospice Wage Index and Payment Rate Update final rule (79 FR 50496), we notified hospice providers on how to seek reconsideration if they received a noncompliance decision for the FY 2016 payment determination and subsequent years. A hospice may request reconsideration of a decision by CMS that the hospice has not met the requirements of the Hospice Quality Reporting Program for a particular period. Reporting compliance is determined by successfully fulfilling both the Hospice CAHPS® Survey requirements and the HIS data submission requirements.
We wish to clarify that any hospice that wishes to submit a reconsideration request must do so by submitting an email to CMS containing all of the requirements listed on the HQRP Web site at
In the past, only hospices found to be non-compliant with the reporting requirements set forth for a given payment determination received a notification of this finding along with instructions for requesting reconsideration in the form of a certified United States Postal Service (USPS) letter. In an effort to communicate as quickly, efficiently, and broadly as possible with hospices regarding annual compliance, we are proposing additions to our communications method regarding annual notification of reporting compliance in the HQRP. In addition to sending a letter via regular USPS mail, beginning with the FY 2017 payment determination and for subsequent fiscal years, we propose to use the Quality Improvement and Evaluation System (QIES) National System for Certification and Survey Provider Enhanced Reports (CASPER) Reporting as an additional mechanism to communicate to hospices regarding their compliance with the reporting requirements for the given reporting cycle. The electronic APU letters would be accessed using the CASPER Reporting Application. Requesting access to the CMS systems is performed in two steps. Details are provided on the QIES Technical Support Office Web site (direct link),
We propose to disseminate communications regarding the availability of hospice compliance reports in CASPER files through routine channels to hospices and vendors, including, but not limited to issuing memos, emails, Medicare Learning Network (MLN) announcements, and notices on
We further propose to publish a list of hospices who successfully meet the reporting requirements for the applicable payment determination on the HQRP Web site
We invite comment on the proposals to add CASPER Reporting as an additional communication mechanism for the dissemination of compliance notifications and to publish a list of compliant hospices on the HQRP Web site.
Under section 1814(i)(5)(E) of the Act, the Secretary is required to establish procedures for making any quality data submitted by hospices available to the public. The procedures must ensure that a hospice would have the opportunity to review the data regarding the hospice's respective program before it is made public.
We recognize that public reporting of quality data is a vital component of a robust quality reporting program and are fully committed to developing the necessary systems for public reporting of hospice quality data. We also recognize that it is essential that the data made available to the public be meaningful and that comparing performance between hospices requires that measures be constructed from data collected in a standardized and uniform manner. Hospices have been required to use a standardized data collection approach (HIS) since July 1, 2014. Data from July 1, 2014 onward is currently being used to establish the scientific soundness of the quality measures prior to the onset of public reporting of the seven quality measures implemented in the HQRP. We believe it is critical to establish the reliability and validity of the quality measures prior to public reporting in order to demonstrate the ability of the quality measures to distinguish the quality of services provided. To establish reliability and validity of the quality measures, at least four quarters of data will be analyzed. Typically, the first one or two quarters of data reflect the learning curve of the facilities as they adopt standardized data collection procedures; these data often are not used to establish reliability and validity. We began data collection in CY 2014; the data from CY 2014 for Quarter 3 (Q3) will not be used for assessing validity and reliability of the quality measures. We are analyzing data collected by hospices during Quarter 4 (Q4) CY 2014 and Q1-Q3 CY 2015. Decisions about whether to report some or all of the quality measures publicly will be based on the findings of analysis of the CY 2015 data.
In addition, the Affordable Care Act requires that reporting be made public on a CMS Web site and that providers have an opportunity to review their data prior to public reporting. CMS will develop the infrastructure for public reporting, and provide hospices an opportunity to review their quality measure data prior to publicly reporting information about the quality of care provided by “Medicare-certified” hospice agencies throughout the nation. CMS also plans to make available provider-level feedback reports in the Certification and Survey Provider Enhances Reports (CASPER) system. These provider-level feedback reports or “quality reports” will be separate from public reporting and will be for provider viewing only, for the purposes of internal provider quality improvement. As is common in other quality reporting programs, quality reports would contain feedback on facility-level performance on quality metrics, as well as
As part of our ongoing efforts to make healthcare more transparent, affordable, and accountable, the HQRP is prepared to post hospice data on a public data set, the Medicare Provider Utilization and Payment Data: Physician and Other Supplier Public Use File located at
Furthermore, to meet the requirement for making such data public, we will develop a CMS Compare Web site for hospice, which will list hospice providers geographically. Consumers can search for all Medicare approved hospice providers that serve their city or zip code (which would include the quality measures and CAHPS® Hospice Survey results) and then find the agencies offering the types of services they need. Like other CMS Compare Web sites, the Hospice Compare Web site will feature a quality rating system that gives each hospice a rating of between one (1) and five (5) stars. Hospices will have prepublication access to their own agency's quality data, which enables each agency to know how it is performing before public posting of data on the Compare Web site. Decisions regarding how the rating system will determine a providers star rating and methods used for calculations, as well as a proposed timeline for implementation will be announced via regular HQRP communication channels, including listening sessions, memos, email notification, provider association calls, Open Door Forums, and Web postings. We will announce the timeline for public reporting of quality measure data in future rulemaking.
During the grass roots movement of hospice growth in the United States in the 1970s, healthcare providers recognized the need for a care delivery model to address the needs of those individuals who no longer wanted to seek out the curative care for advancing illnesses and injuries. In the early stages of development, hospice leaders worked with key legislative leaders to develop a system to reimburse hospice care in the United States.
Both the Congress and the hospice industry wanted the Medicare hospice benefit to provide a coordinated range of services to ensure that terminally ill individuals would have access to comprehensive care aimed at addressing their physical, emotional, psychosocial and spiritual needs as they approached the end of life. As stated in the 1983 hospice final rule, and reiterated throughout hospice rules since implementation of the benefit, it is our general view that the waiver required by the law is a broad one and that hospices are required to provide virtually all the care that is needed by terminally ill patients (48 FR 56010). Therefore, hospices are to provide pain and symptom management, as an alternative to the curative model of care, focused on the “total person” as opposed to individual disease or injury states. The goal of hospice care is to help terminally ill individuals continue life with minimal disruption to normal activities while remaining primarily in the home environment. We continue to support the philosophy of holistic, comprehensive, virtually all-inclusive hospice care and seek to protect beneficiary access and coverage under the Medicare hospice benefit.
The Institute of Medicine (IOM) recently released the report,
Recent news articles on hospice care highlight the same concerns expressed in the IOM report regarding vulnerabilities in the current health care system. While recent news articles agree that hospice care is a valuable and needed service for patients who are near death, the articles identified issues with hospice quality of care, the lack of services provided, conflicts of interest, and the current Medicare payment structure that may incentivize the provision of fewer services.
As mentioned in previous rules, and in section III.A of this proposed rule, there is data suggesting a significant amount of “unbundling” is occurring for services that should be included in the hospice bundled payment. As
Given the legislative history, the statements provided by hospices during the development of the benefit, and anecdotal reports from non-hospice providers and hospice beneficiaries, we are concerned that some hospices are making determinations of hospice coverage based solely on cost and reimbursement as opposed to being based on patient-centered needs, preferences and goals for those approaching the end of life. We believe this to be counter to the holistic, comprehensive, and coordinated hospice care model promoted during the development of the Medicare hospice benefit.
The Medicare hospice regulations at § 418.25(b) state that in reaching a decision to certify that a patient is terminally ill, meaning that the patient has a medical prognosis of a life expectancy of 6 months or less, the certifying physician(s) must consider at least the following information:
• Diagnosis of the terminal condition of the patient.
• Other health conditions, whether related or unrelated to the terminal condition.
• Current clinically relevant information supporting all diagnoses.
Eligibility for the Medicare hospice benefit has always been based on the prognosis of the individual. As we have mentioned in previous rules, prognosis is not necessarily established through just a single diagnosis or even multiple diagnoses; rather, it is based on the totality of the individual and everything that affects their life expectancy. In the FY 2015 Hospice Payment Rate Update final rule (79 FR 50471), we reminded providers that there are multiple public sources available to assist in determining whether a patient meets Medicare hospice prognosis eligibility criteria (that is, industry-specific clinical and functional assessment tools and information on MAC Web sites, including Local Coverage Determinations (LCDs)). We have mentioned that there are prognostication tools available for hospices to assist in thoughtful evaluation of Medicare beneficiaries for determining eligibility for the Medicare hospice benefit. We expect hospice providers to use the full range of tools available, including guidelines, comprehensive assessments, and the complete medical record, as necessary, to make responsible and thoughtful clinical determinations regarding prognosis eligibility.
As mentioned earlier in this section, the hospice industry has come under increased media scrutiny, much of it related to hospices enrolling patients who may not be eligible for the benefit because they are not terminally ill and enrolling patients with certain diagnoses that typically have a longer length of stay, mainly non-cancer diagnoses. In the December 26, 2013 Washington Post article, “Hospice firms draining billions from Medicare”, the author discusses the incentives for hospices to recruit patients who are not yet terminally ill or not yet ready to elect the hospice benefit. This article also goes on to describe allegations from former hospice employees who say that some hospices knowingly admitted patients who were not declining in health.
We have recognized throughout the federal regulations at part 418 that the total person is to be assessed, including acute and chronic conditions, as well as, controlled and uncontrolled conditions, and comorbidities, in order to determine an individual's terminal prognosis. We have also been clear that the original intent of the Medicare hospice benefit is to provide comprehensive, integrated and holistic care for those who have a terminal prognosis. While hospices are responsible for the palliation and management of the terminal illness and related conditions, in the 1983 hospice proposed rule (48 FR 38147) we stated that upon hospice election, the individual waives payment for certain other benefits except in “exceptional and unusual circumstances.” In that
Since the implementation of the Medicare hospice benefit, there have been many questions and requests for CMS to provide those “exceptional and unusual” circumstances for which a condition would be unrelated to the prognosis of the terminally ill individual. We continue to state that those circumstances would be “exceptional and unusual” and that hospices continue to be required to provide virtually all the care that is needed by terminally ill patients. To respond to the many requests for greater clarification, in the Medicare Program; FY 2015 Payment Rate Update proposed rule (79 FR 26554 through 26555), we solicited comments on definitions we provided for “terminal illness” and “related conditions.” Based on comments received in response to those definitions and from comments received in prior year's proposed rules, it appears that there continues to be widely varying interpretation as to what constitutes “terminal illness” and “related conditions” and hence the services that should be provided and covered by hospices. Similar to the 1983 hospice final rule, some commenters appear to have a very broad interpretation stating that all conditions are related to the terminal prognosis. Other commenters have a very narrow interpretation as to what illnesses and conditions would be and would not be the responsibility of hospice, and felt that those conditions are limited to a single diagnosis. Additionally, some comments previously received stated that longstanding, preexisting, chronic, stable and controlled conditions and disease states as well as comorbidities, should not be considered related to a patient's terminal illness or related conditions. Some commenters went on to say that not all pain and symptoms are related to a patient's terminal prognosis. Many commenters stated that determining “related conditions” was often very difficult, while others reported that it wasn't difficult at all. Many commenters felt that the management and maintenance of comorbidities is not the responsibility of hospice as they felt that these comorbidities are not related to the reason why an individual is terminally ill. These commenters believed that these types of conditions should not be included in the bundle of services covered under the Medicare hospice benefit. As we have previously stated in response to those comments, we believe these conditions are included in the bundle of hospice services as hospices are required to provide reasonable and necessary services for both palliation and management of all conditions that contribute to a terminal prognosis. Conversely, several commenters were in agreement that all medical problems will affect a person's prognosis and will relate, in some way, to the disease that will ultimately end that person's life.
Defined at § 418.3, “terminally ill” means that the individual has a medical prognosis that his or her life expectancy is 6 months or less if the illness runs its normal course. The original implementing regulations of the Medicare hospice benefit, beginning with the 1983 hospice propose and final rules (48 FR 318146 and 48 FR 56008), articulate a set of requirements that do not delineate between preexisting, chronic, controlled or comorbid conditions. The presence of comorbidities is recognized as an important factor contributing to the overall status of an individual and should be considered when determining terminal prognosis. Mental health comorbidities must also be considered as it is not uncommon for terminally ill individuals to have underlying mental health conditions that could contribute to their prognosis and/or affect the plan of care. Health care researchers agree the importance of comorbidity is clear, due to its high prevalence in older populations and its impact on health and health care.
Repetto, L., Comandini, D., Mammoliti, S. (2001). Life expectancy, comorbidity and quality of life: The treatment equation in the older cancer patients. Critical Reviews in Oncology/Hematology, 37(2001), 148.
Escarrabill, J., Cataluna, J., Hernandez, C., Servera, E. (2009). Recommendations for End-of-Life Care in Patients with Chronic Obstructive Pulmonary Disease. Archivos de Bronconeumologia, 45(6), 297-303.
• Be admitted to the ER and hospital;
• Die in the hospital;
• Be discharged from hospice.
It is not an uncommon clinical practice for some clinicians to stop drugs for comorbid conditions arbitrarily because the person has a progressive life-limiting illness; however, withdrawing long term drugs from comorbidities without considering the natural course of the illness can lead to serious problems, such as rebound hypertension, tachycardia, depression and death.
The National Hospice and Palliative Care Organization (NHPCO) recognizes the importance of comorbidities. They define “comorbidity” as known factors or pathological disease impacting on the primary health problem and generally attributed to contributing to increased risk for poor health status outcomes
• The nature and condition causing admission (including the presence or lack of objective data and subjective complaints).
• Complications and risk factors that affect care planning.
• Functional status, including the patient's ability to understand and participate in his or her own care.
• Imminence of death.
• Severity of symptoms.
• Drug profile. A review of all of the patient's prescription and over-the-counter drugs, herbal remedies and other alternative treatments that could affect drug therapy.
• Bereavement. An initial bereavement assessment of the needs of the patient's family and other individuals focusing on the social, spiritual, and cultural factors that may impact their ability to cope with the patient's death. Information gathered from the initial bereavement assessment must be incorporated into the plan of care and considered in the bereavement plan of care.
• The need for referrals and further evaluation by appropriate health professionals.
The hospice CoPs at § 418.56(c) require that the hospice plan of care reflect patient and family goals and have measurable outcomes. Furthermore, the plan of care is a dynamic and fluid document that will change as the individual's condition changes throughout the course of a hospice election. A comprehensive, holistic, integrated and coordinated approach to service delivery is the hallmark of hospice care and a valued service for Medicare beneficiaries and families as the individual approaches the end-of-life. We believe that many hospices practice this comprehensive approach as they recognize that it is the hospices' responsibility to provide all medical, emotional, psychosocial and spiritual services for all component conditions of the terminal prognosis along the continuum of care.
International Classification of Diseases, Tenth Revision, Clinical Modification (ICD-10-CM) Coding Guidelines state the following regarding the selection of the principal diagnosis: The principal diagnosis is defined in the Uniform Hospital Discharge Data Set (UHDDS) as that condition established after study to be chiefly responsible for occasioning the admission of the patient to the hospital for care. In the case of selection of a principal diagnosis for hospice care, this would mean the diagnosis most contributory to the terminal prognosis of the individual. In the instance where two or more diagnoses equally meet the criteria for principal diagnosis, ICD-10-CM coding guidelines do not provide sequencing direction, and thus, any one of the diagnoses may be sequenced first, meaning to report all of those diagnoses meeting the criteria as a principal diagnosis. Per ICD-10-CM Coding Guidelines, for diagnosis reporting purposes, the definition for “other diagnoses” is interpreted as additional conditions that affect patient care in terms of requiring:
• Clinical evaluation; or
• therapeutic treatment; or
• diagnostic procedures; or
• extended length of hospital stay; or
• increased nursing care and/or monitoring.
The UHDDS item #11-b defines Other Diagnoses as all conditions that coexist at the time of admission, that develop subsequently, or that affect the treatment received and/or the length of stay. ICD-10-CM coding guidelines are clear that all diagnoses affecting the management and treatment of the individual within the healthcare setting are requirement to be reported. This has been longstanding existing policy. Adherence to coding guidelines when assigning ICD-9-CM and ICD-10-CM diagnosis and procedure codes is required under the Health Insurance Portability and Accountability Act (HIPAA) as well as our regulations at 45 CFR 162.1002.
However, though established coding guidelines are required, it does not appear that all hospices are coding on hospice claims per these guidelines. In 2010, over 77 percent of hospice claims reported only one diagnosis. Previous rules have discussed requirements for hospice diagnosis reporting on claims and the importance of complete and accurate coding. Preliminary analysis of FY 2014 claims data demonstrates that hospice diagnosis coding is improving; however, challenges remain. Analysis of FY 2014 claims data indicates that 49 percent of hospice claims listed only one diagnosis.
In the Medicare Program; Hospice Wage Index for Fiscal Year 2013 Notice (77 FR 44248) we stated that hospices should report on hospice claims all coexisting or additional diagnoses that are related to the terminal illness; they should not report coexisting or additional diagnoses that are unrelated to the terminal illness, even though coding guidelines required the reporting of all diagnoses that affect patient assessment and planning. However, as discussed earlier in this section, there is widely varying interpretation as to what factors influence the terminal prognosis of the individual (that is, what conditions render the individual terminally ill and which conditions are related). Furthermore, based on the numerous comments received in previous rulemaking, and anecdotal reports from hospices, hospice beneficiaries, and non-hospice providers discussed above, we are concerned that hospices may not be conducting a comprehensive assessment nor updating the plan of care as articulated by the CoPs to recognize the conditions that affect an individual's terminal prognosis.
Therefore, we are clarifying that hospices will report all diagnoses identified in the initial and comprehensive assessments on hospice claims, whether related or unrelated to the terminal prognosis of the individual. This is in keeping with the requirements of determining whether an individual is terminally ill. This would also include the reporting of any mental health disorders and conditions that would affect the plan of care as hospices are to assess and provide care for identified psychosocial and emotional needs, as well as, for the physical and spiritual needs. Our regulations at § 418.25(b) state, “in reaching a decision to certify that the patient is terminally ill, the hospice medical director must consider at least the following information:
• Diagnosis of the terminal condition of the patient.
• Other health conditions, whether related or unrelated to the terminal condition.
• Current clinically relevant information supporting all diagnoses.
ICD-10-CM Coding Guidelines state that diagnoses should be reported that develop subsequently, coexist or affect the treatment of the individual. Furthermore, having these diagnoses reported on claims falls under the authority of the Affordable Care Act for the collection of data to inform hospice payment reform. Section 3132 a(1)(C) of the Affordable Care Act states that the Secretary may collect the additional data and information on cost reports, claims, or other mechanisms as the Secretary determines to be appropriate. Having adequate data on hospice patient characteristics will help to inform thoughtful, appropriate, and clinically relevant policy for future rulemaking. We will monitor compliance with required coding practices and collaborate with all relevant CMS components to determine whether further policy changes are needed or if additional program integrity oversight actions need to be implemented.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
This proposed rule meets the requirements of our regulations at § 418.306(c), which requires annual issuance, in the
We have examined the impacts of this proposed rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA, March 22, 1995; Pub. L. 104-4), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This proposed rule has been designated as economically significant under section 3(f)(1) of Executive Order 12866 and thus a major rule under the Congressional Review Act. Accordingly, we have prepared a regulatory impact analysis (RIA) that, to the best of our ability, presents the costs and benefits of the rulemaking. This proposed rule was also reviewed by OMB.
The overall impact of this proposed rule is an estimated net increase in Federal Medicare payments to hospices of $200 million, or 1.3 percent, for FY 2016. The $200 million increase in estimated payments for FY 2016 reflects the distributional effects of the 1.8 percent proposed FY 2016 hospice payment update percentage ($290 million increase), the use of updated wage index data and the phase-out of the wage index budget neutrality adjustment factor (-0.7 percent/$120 million decrease) and the proposed implementation of the new OMB CBSA delineations for the FY 2016 hospice wage index with a one-year transition (0.2 percent/$30 million increase). The elimination of the wage index budget neutrality adjustment factor (BNAF) was part of a 7-year phase-out that was finalized in the FY 2010 Hospice Wage Index final rule (74 FR 39384), and is not a policy change. The proposed RHC rates and the proposed SIA payment, outlined in section III.B, would be implemented in a budget neutral manner in the first year of implementation, as required per section 1814(i)(6)(D)(ii) of the Act. In section III.B., we also proposed continuing to make the SIA payments budget neutral annually. The RHC rate budget neutrality factors and the SBNF used to reduce the overall RHC rate are outlined in section III.C.3. Therefore, the proposed RHC rates and the proposed SIA payment would not result in an overall payment impact for the Medicare program or hospices.
Table 29, Column 3 shows the combined effects of the use of updated wage data (the FY 2015 pre-floor, pre-reclassified hospital wage index) and the phase-out of the BNAF (for a total BNAF reduction of 100 percent), resulting in an estimated decrease in FY 2016 payments of 0.7 percent ($−120 million). Column 4 of Table 29, shows the effects of the proposed 50/50 blend of the FY 2016 hospice wage index values (based on the use of FY 2015 pre-floor, pre-reclassified hospital wage index data) under the old and the new CBSA delineations, resulting in an estimated increase in FY 2016 payments of 0.2 percent ($30 million). Column 5 displays the estimated effects of the proposed RHC rates, resulting in no overall change in FY 2016 payments for hospices as this proposal would be implemented in a budget neutral manner. Column 6 shows the estimated effects of the proposed SIA payment, resulting in no change in FY 2016
This section discusses our analysis of the estimated impacts on FY 2016 payments to hospices due to: (1) The use of updated wage index data for the proposed FY 2016 hospice wage index (using FY 2015 hospital pre-floor, pre-reclassified hospital wage data) and the phase-out of the BNAF, (2) the proposed FY 2016 hospice wage index that adopts the new OMB CBSA delineations with a one-year transition, (3) the proposed RHC rates, (4) the proposed SIA payment, and (5) the proposed 1.8 percent hospice payment update percentage. Table 29 below shows the results of our analysis. For the purposes of our impact analysis, we use the utilization observed in the most complete hospice claims data available at the time of rulemaking (FY 2014 hospice claims submitted as of December 31, 2014). Presenting these data gives the hospice industry a more complete picture of the effects on their total revenue based on the use of updated hospital wage index data and the BNAF phase-out, the proposed adoption of the new OMB CBSA delineations with a one-year transition, the proposed SIA payment, and the proposed FY 2016 hospice payment update percentage as discussed in this proposed rule. Certain events may limit the scope or accuracy of our impact analysis, because such an analysis is susceptible to forecasting errors due to other changes in the forecasted impact time period. The nature of the Medicare program is such that the changes may interact, and the complexity of the interaction of these changes could make it difficult to predict accurately the full scope of the impact upon hospices.
Table 29 above also presents the impact of the changes in this proposed rule according to the type of hospice, geographic location, type of ownership, hospice base, size, and percentage of RHC days in a SNF/NF. The majority of hospice payments are made at the routine home care rate; therefore, we based the size of each individual hospice's program on the number of routine home care days provided in FY 2014. As indicated in column 2 of Table 29, there are 4,010 hospices included in the regulatory impact analysis. Approximately 40 percent of Medicare-certified hospices are identified as voluntary (non-profit) or government agencies (1,612 hospices) and 60 percent are proprietary (for-profit) (2,398 hospices). In addition, our analysis shows that most hospices are in urban areas, are medium-sized, and are freestanding.
The use of updated wage data combined with the BNAF phase-out is anticipated to decrease FY 2016 payments to large hospices by 0.7 percent and to decrease payments to small and medium hospices by 0.5 percent and 0.6 percent respectively (column 3). The proposed 50/50 Blend for FY 2016 wage index values under the old and the new CBSA delineations is anticipated to result in an increase in payments to small hospices of 0.1 percent, an increase in payments to medium hospices of 0.2 percent, and an increase to large hospices of 0.3 percent (column 4). The proposed RHC rates are projected to increase payments by 3.0 percent for small hospices and 0.6 percent for medium hospices. The proposed RHC rates are anticipated to decrease payments by 0.2 percent for large hospices. The proposed FY 2016 SIA payment is projected to result in an increase in FY 2016 payments of 0.1 percent for small hospices and no change in payments for medium and large hospices (column 6).
Column 3 of Table 29 shows the combined estimated effects of using updated wage data and the BNAF phase-out and results in a decrease in FY 2016 payments of 0.7 percent for urban hospices and 0.3 percent for rural hospices. Urban hospices can anticipate a decrease in payments ranging from 1.1 percent in the South Atlantic and West South Central regions to 0.1 percent for hospices in the Pacific. No change in payments is expected for urban hospices in the New England and outlying areas. Rural hospices are estimated to see a decrease in payments in eight regions, ranging from 1.4 percent in the Mountain region to 0.1 percent in the East South Central and West South Central regions. Rural hospices can anticipate an increase in payments in the Middle Atlantic region of 0.3 percent and an increase of 2.1 percent in the Pacific region.
Column 4 shows the effect of the proposed 50/50 Blend of the FY2016 wage index values under the old and the new CBSA delineations. Overall, hospices are anticipated to experience a 0.2 percent increase in payments, with urban hospices experiencing an estimated increase of 0.3 percent and rural hospices experiencing an estimated decrease of 0.2 percent. All urban areas other than Middle Atlantic and Pacific are estimated to see increases in payments, ranging from 0.7 percent in the East North Central region to 0.1 percent in the New England region. No change in FY 2016 payments for hospices in urban areas in the Pacific region is expected. In contrast, rural hospices are estimated to experience a small decrease in payments in seven regions, ranging from 0.1 percent in the East South Central, Middle Atlantic, and West North Central regions to 0.7 percent in the Mountain region. Payments in the New England region are anticipated to remain unchanged and payments in the South Atlantic and Pacific regions are estimated to increase slightly by 0.1 percent.
Column 5 shows the anticipated effects of the proposed RHC rates, that is, paying separate rates for days 1 through 60 and days beyond 60. Overall, hospices would experience no change in overall payments for FY 2016 due to the proposed RHC rates. FY 2016 payments are estimated to range from an increase of 3.3 percent for rural hospices in New England and Pacific regions to a decrease of 1.2 percent for urban hospices in the West South Central region.
Column 6 shows the effects of proposed FY 2016 SIA Payment. Overall, hospices are anticipated to experience no change in overall payments for FY 2016. However, FY 2016 payments are estimated to range from an increase of 0.5 percent for rural hospices in the Middle Atlantic region to a decrease of 0.2 percent for urban hospices in the West South Central region and the Outlying region.
Column 8 shows the total anticipated impact of the FY 2016 proposed policy
Column 3 demonstrates the effect of the use of updated wage data and BNAF phase-out on estimated FY 2016 payments. We estimate that using the updated wage data and BNAF phase-out would decrease estimated payments to voluntary (non-profit) and government hospices by 0.6 percent. Proprietary (for-profit) hospices are expected to have a decrease in payments of 0.7 percent. Column 4 demonstrates the effects of the proposed 50/50 Blend of FY 2016 wage index values under the old and the new CBSA delineations. Estimated FY 2016 payments to voluntary (non-profit), proprietary (for-profit) and government hospices are anticipated to increase by 0.2 percent, 0.3 percent and 0.3 percent, respectively. Column 5 shows the anticipated impacts for the two proposed RHC rates. Estimated FY 2016 payments are anticipated to increase for voluntary (non-profit) and government hospices by 1.2 percent and 0.6 percent respectively and to decrease for proprietary (for-profit) hospices by 1.0 percent. Column 6 shows the estimated effects of the proposed SIA payment. Estimated FY 2016 payments are anticipated to increase for voluntary (non-profit) and government hospices by 0.1 percent and decrease for proprietary (for-profit) hospices by 0.1 percent.
Column 3 demonstrates the combined effects of using the updated wage data and the BNAF phase-out on estimated payments for FY 2016. Estimated payments are anticipated to decrease for freestanding hospices by 0.7 percent and decrease for HHA/facility-based hospices by 0.4 percent. Column 4 shows the effects of the proposed 50/50 Blend of FY 2016 wage index values under the old and new CBSA delineations. Payments are estimated to increase by 0.3 percent for freestanding hospices and by 0.2 percent for HHA/facility-based hospices. Column 5 shows the effects of the proposed RHC rates. Payments to freestanding hospices are expected to decrease by 0.4 percent while payments to HHA/facility-based hospices are expected to increase by 1.8 percent. Column 6 shows the effects of the proposed SIA payment. Payments to freestanding hospices are expected to neither increase nor decrease due to the SIA proposal, while payments for HHA/facility-based hospices are expected to increase by 0.2 percent.
Table 29 also shows the effects of the proposed changes in this rule by the rate of RHC NF/SNF days in quartiles. Column 3 shows that all four quartiles (lowest quartile being less than or equal to 3.1 percent of RHC days in a SNF/NF to the highest quartile being greater than 35.5 percent of RHC days in a SNF/NF) are anticipated to experience a decrease in payments ranging from 0.5 percent for the first quartile to 0.7 percent for the third and fourth quartiles. Column 4 shows the effect of the proposed 50/50 Blend of FY 2016 wage index values under the old and the new CBSA delineations. All four quartiles are anticipated to experience an increase in payments under this proposal with the first and second quartiles anticipated to experience increases of 0.1percent, the third quartile anticipated to experience an increase of 0.3 percent, and the highest quartile to experience an increase in payments of 0.4 percent. Column 5 shows the anticipated impact of the proposed RHC rates on hospices by their rates of RHC days in a SNF/NF. The first and second quartiles are anticipated to see an increase in payments of 0.7 percent and 0.4 percent respectively. The third and fourth quartiles are anticipated to see decreases of 0.1 percent and 0.6 percent respectively due to the proposed RHC rates. Column 6 shows the anticipated effect of the proposed FY 2016 SIA payment on hospices by their rates of RHC days in a SNF/NF. The second quartile is anticipated to see an increase in payments of 0.2 percent. The first and third quartile is expected to experience no change in payments under the FY 2016 SIA payment proposal and the highest quartile is anticipated to experience a decrease in FY 2016 payments of 0.2 percent under this proposal.
This proposed rule would only affect Medicare hospices, and therefore has no effect on other provider types.
This proposed rule only affects Medicare hospices, and therefore has no effect on Medicaid programs. As described previously, estimated Medicare payments to hospices in FY 2016 are anticipated to increase by 1.3 percent, or $200 million.
For the FY 2016 proposed rule, we considered several alternatives to the proposals articulated in section III.B. As described in Table 13 in section III.B.1 of this preamble, previous work on a tiered payment model indicates that a different RHC payment could begin at day 31. Therefore, we considered proposing that the higher rate of the RHC payment to be the first 30 days of hospice care given the results above and given that MedPAC identified in their 2008 Report to Congress that the `break-even' point of profitability was found to be about three weeks. However, because our analysis found that `marginal costs' continued to decline slightly between days 15-30 and days 31-60 (see figure 5 in section III.B.2 of this preamble), we proposed to begin the lower RHC payment rate on day 61. In addition, we proposed to have the “count of days” follow the patient (that is, count the days relative to the patient's lifetime length of stay) to mitigate potential high rates of live discharge and readmission due to the proposed RHC payment rates based on the days of care. For hospice patients who are discharged and readmitted to hospice within 60 days of that discharge, his/her prior hospice days will continue to follow the patient and count toward his/her patient days for the receiving hospice upon hospice election. We also considered a longer (that is, 90 days) window of time between a discharge and a subsequent hospice election as a basis of determining which RHC payment rate would be applied based on the days following the beneficiary. However, we proposed the 60 day time period. We also considered not applying the higher initial RHC rate (1 through 60 days) to beneficiaries in nursing homes.
For the SIA payment, we considered allowing the first two days of a new hospice election with a unique hospice provider to also be eligible for the SIA payment. The reason for not proposing to allow the SIA payment to apply to the first two days of a new hospice election with a unique hospice was outlined in section III.B. In addition, because the SIA payment is required to be implemented in a budget neutral manner in the first year of implementation, per section 1814(i)(6)(D)(ii), allowing the first two days of the hospice election with a unique hospice provider to be eligible for the SIA payment would result in a larger decrease to the RHC rate for all hospice providers. We estimate that the
As required by OMB Circular A-4 (available at
In conclusion, the overall effect of this proposed rule is an estimated $200 million increase in Medicare payments to hospices. The $200 million increase in estimated payments for FY 2016 reflects the distributional effects of the 1.8 percent proposed FY 2016 hospice payment update percentage ($290 million increase), the use of updated wage index data and the phase-out of the wage index budget neutrality adjustment factor (−0.7 percent/$120 million decrease) and the proposed implementation of the new OMB CBSA delineations for FY 2016 hospice wage index with a one-year transition (0.2 percent/$30 million increase). The proposed SIA payment does not result in aggregate changes to estimate hospice payments for FY 2016 as this proposal would be implemented in a budget neutral manner through an overall reduction to the RHC payment rate for all hospices.
The RFA requires agencies to analyze options for regulatory relief of small businesses if a rule has a significant impact on a substantial number of small entities. The great majority of hospitals and most other health care providers and suppliers are small entities by meeting the Small Business Administration (SBA) definition of a small business (in the service sector, having revenues of less than $7.5 million to $38.5 million in any 1 year), or being nonprofit organizations. For purposes of the RFA, we consider all hospices as small entities as that term is used in the RFA. HHS's practice in interpreting the RFA is to consider effects economically “significant” only if they reach a threshold of 3 to 5 percent or more of total revenue or total costs. As noted above, the combined effect of the updated wage data and the BNAF phase-out (−0.7 percent decrease or −$120 million) the proposed implementation of the new OMB CBSA delineations for FY 2016 hospice wage index with a one-year transition (0.2 percent increase or $30 million), the proposed SIA payment (no estimated aggregate impact on payments), and the proposed FY 2016 hospice payment update percentage (1.8 percent increase or $290 million) results in an overall increase in estimated hospice payments of 1.3 percent, or $200 million, for FY 2016. Therefore, the Secretary has determined that this proposed rule will not create a significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. This proposed rule only affects hospices. Therefore, the Secretary has determined that this proposed rule would not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2015, that threshold is approximately $144 million. This proposed rule is not anticipated to have an effect on State, local, or tribal governments, in the aggregate, or on the private sector of $144 million or more.
Executive Order 13132, Federalism (August 4, 1999) requires an agency to provide federalism summary impact statement when it promulgates a proposed rule (and subsequent final rule) that has federalism implications and which imposes substantial direct requirement costs on State and local governments which are not required by statute. We have reviewed this proposed rule under these criteria of Executive Order 13132, and have determined that it will not impose substantial direct costs on State or local governments.
Health facilities, Hospice care, Medicare, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare and Medicaid Services propose to amend 42 CFR chapter IV as set forth below:
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
The revisions and additions read as follows:
(b) * * *
(1) * * *
(i)
(ii) Routine home care days provided to patients residing in a skilled nursing facility (SNF) or a long-term care
(e) * * *
(1) Payment is made to the hospice for each day during which the beneficiary is eligible and under the care of the hospice, regardless of the amount of services furnished on any given day (except as set out in paragraph (b)(1)(i) of this section).
(a)
(b)
(1) For fiscal year 2014 and subsequent fiscal years, per section 1814(i)(5)(A)(i) of the Act, in the case of a Medicare-certified hospice that submits hospice quality data, as specified by the Secretary, the payment rates are equal to the rates for the previous fiscal year increased by the applicable hospice payment update percentage increase.
(2) For fiscal year 2014 and subsequent fiscal years, per section 1814(i)(5)(A)(i) of the Act, in the case of a Medicare-certified hospice that does not submit hospice quality data, as specified by the Secretary, the payment rates are equal to the rates for the previous fiscal year increased by the applicable hospice payment update percentage increase, minus 2 percentage points. Any reduction of the percentage change will apply only to the fiscal year involved and will not be taken into account in computing the payment amounts for a subsequent fiscal year.
(c)
A hospice's aggregate cap is calculated by multiplying the adjusted cap amount (determined in paragraph (a) of this section) by the number of Medicare beneficiaries, as determined by one of two methodologies for determining the number of Medicare beneficiaries for a given cap year described in paragraphs (b) and (c) of this section.
(a)
(1) For accounting years that end on or before September 30, 2016 and end on or after October 1, 2025, the cap amount is adjusted for inflation by using the percentage change in the medical care expenditure category of the Consumer Price Index (CPI) for urban consumers that is published by the Bureau of Labor Statistics. This adjustment is made using the change in the CPI from March 1984 to the fifth month of the cap year.
(2) For accounting years that end after September 30, 2016, and before October 1, 2025, the cap amount is the cap amount for the preceding accounting year updated by the percentage update to payment rates for hospice care for services furnished during the fiscal year beginning on the October 1 preceding the beginning of the accounting year as determined pursuant to section 1814(i)(1)(C) of the Act (including the application of any productivity or other adjustments to the hospice percentage update).
| 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 |