Page Range | 40473-40774 | |
FR Document |
Page and Subject | |
---|---|
81 FR 40475 - Proposed Agreement for Cooperation Between the Government of the United States of America and the Government of the Kingdom of Norway Concerning Peaceful Uses of Nuclear Energy | |
81 FR 40473 - Father's Day, 2016 | |
81 FR 40741 - Privacy Act; System of Records: Legal Case Management Records, State-21. | |
81 FR 40684 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Direct Loan, FFEL, Perkins and TEACH Grant Total and Permanent Disability Discharge Application and Related Forms | |
81 FR 40708 - Submission for OMB Review; 30-Day Comment Request; NLM PEOPLE LOCATOR® System | |
81 FR 40722 - Advisory Board on Toxic Substances and Worker Health: Subcommittee on Medical Advice re: Weighing Medical Evidence | |
81 FR 40723 - Advisory Board on Toxic Substances and Worker Health: Subcommittee on the Site Exposure Matrices (SEM) | |
81 FR 40720 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; New Collection; National Evaluation of Round 4 of the Trade Adjustment Assistance Community College Career Training (TAACCCT) Grants Program | |
81 FR 40721 - Proposed Collection of Information; Comment Request | |
81 FR 40521 - Safety Zone; Detroit River Days Air Show, Detroit River, Detroit, MI | |
81 FR 40594 - Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities | |
81 FR 40650 - Fisheries of the Northeastern United States; Spiny Dogfish Fishery; Proposed 2016-2018 Specifications | |
81 FR 40697 - Notice of Agreements Filed | |
81 FR 40695 - Pyridate; Receipt of Applications for Emergency Exemption, Solicitation of Public Comment | |
81 FR 40670 - Stainless Steel Bar From Brazil: Final Results of Antidumping Duty Administrative Review; 2014-2015 | |
81 FR 40671 - Certain Frozen Warmwater Shrimp From Thailand: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2014-2015 | |
81 FR 40724 - Aerospace Safety Advisory Panel; Meeting | |
81 FR 40527 - Low Power Television Digital Rules | |
81 FR 40742 - Public Notice for Waiver of Aeronautical Land-Use Assurance | |
81 FR 40705 - Delegation of Authority | |
81 FR 40495 - IFR Altitudes; Miscellaneous Amendments | |
81 FR 40718 - HEARTH Act Approval of Oneida Nation of New York Regulations | |
81 FR 40719 - Proclaiming Certain Lands as Reservation for the Shakopee Mdewakanton Sioux Community of Minnesota | |
81 FR 40717 - HEARTH Act Approval of Twenty-Nine Palms Band of Mission Indians of California Regulations | |
81 FR 40696 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
81 FR 40617 - Revisions to Public Inspection File Requirements-Broadcaster Correspondence File and Cable Principal Headend Location | |
81 FR 40729 - Advisory Committee on Reactor Safeguards; Notice of Meeting | |
81 FR 40589 - Changes in Requirements for Affidavits or Declarations of Use, Continued Use, or Excusable Nonuse in Trademark Cases | |
81 FR 40726 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Future Plant Designs; Notice of Meeting | |
81 FR 40483 - Airworthiness Directives; BRP-Powertrain GmbH & Co KG Reciprocating Engines | |
81 FR 40703 - Healthcare Infection Control Practices Advisory Committee (HICPAC) | |
81 FR 40701 - Advisory Committee on Immunization Practices (ACIP) | |
81 FR 40680 - Access to Healthcare Under the TRICARE Program for Beneficiaries of TRICARE Prime | |
81 FR 40653 - Office of Administration; Commerce Alternative Personnel System | |
81 FR 40518 - Modification of Treatment of Certain Health Organizations | |
81 FR 40731 - Submission for Review: 3206-0034, Annuitant's Report of Earned Income, (RI 30-2) | |
81 FR 40689 - International Energy Agency Meeting | |
81 FR 40731 - Submission for Review: 3206-0254, Request for Case Review for Enhanced Disability Annuity Benefit, RI 20-123 | |
81 FR 40709 - National Institute of Neurological Disorders and Stroke; Notice of Closed Meetings | |
81 FR 40708 - National Institute on Drug Abuse; Notice of Closed Meetings | |
81 FR 40732 - Submission for Review: Request to Disability Annuitant for Information on Physical Condition and Employment, (RI 30-1), 3206-0143 | |
81 FR 40685 - Production of Tritium in Commercial Light Water Reactors | |
81 FR 40732 - Submission for Review: 3206-0138, Reinstatement of Disability Annuity Previously Terminated Because of Restoration to Earning Capacity, RI 30-9 | |
81 FR 40690 - Environmental Management Site-Specific Advisory Board, Savannah River Site | |
81 FR 40730 - Submission for Review: 3206-0099, Initial Certification of Full-Time School Attendance, RI 25-41 | |
81 FR 40689 - Application To Export Electric Energy; ReEnergy Fort Fairfield LLC | |
81 FR 40499 - Guidance on Charging and Penalty Determinations in Settlement of Administrative Enforcement Cases | |
81 FR 40690 - Bison Solar LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 40695 - Boulder Solar Power, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 40691 - NRG Power Midwest, LP; Notice of Institution of Section 206 Proceeding and Refund Effective Date | |
81 FR 40695 - Midcontinent Independent System Operator, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective Date | |
81 FR 40692 - Combined Notice of Filings #2 | |
81 FR 40694 - Combined Notice of Filings #1 | |
81 FR 40693 - Three Sisters Irrigation District; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To Intervene | |
81 FR 40691 - Alabama Power Company; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Protests | |
81 FR 40691 - San Isabel Solar LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 40694 - Pavant Solar II LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 40767 - Minority Depository Institutions Advisory Committee | |
81 FR 40745 - Qualification of Drivers; Exemption Applications; Diabetes | |
81 FR 40743 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
81 FR 40676 - Proposed Information Collection; Comment Request; West Coast Saltwater Fishing Survey | |
81 FR 40698 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
81 FR 40655 - Ribway Airlines Company Limited, 54 Kairaba Avenue, Kanifing Municipality, WCR, The Gambia; John Edward Meadows, 50 St. Leonards Road, Bexhill on Sea, East Sussex, TN40 1JB, United Kingdom, Jeffrey John James Ashfield, 50 St. Leonards Road, Bexhill on Sea, East Sussex, TN40 1JB, United Kingdom; AC AVIATIE UK Limited, f/k/a Bin Vali Aviation Limited, 50 St. Leonard's Road, Bexhill on Sea, East Sussex, TN40 1JB, United Kingdom, Respondents; Modification of March 1, 2016 Amended Temporary Denial Order | |
81 FR 40746 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
81 FR 40654 - In the Matter of: Jose Orence Cocchiola, Register Number: 02247-104, McRae Correctional Institution, P.O. Drawer 55030, McRae Helena, GA 31055; Order Denying Export Privileges | |
81 FR 40658 - In the Matter of: Ismael Reta, Register Number: 78795-379, Federal Correctional Institution, P.O. Box 4200, Three Rivers, TX 78071; Order Denying Export Privileges | |
81 FR 40657 - In the Matter of: Dennis Haag, 3940 County Line Road, Lenox, MI 48050; Order Denying Export Privileges | |
81 FR 40716 - Endangered Species; Receipt of Applications for Permit | |
81 FR 40707 - Request for Information on the Availability of Biological Samples to Evaluate the Technical Performance of Inflammatory Markers | |
81 FR 40712 - Submission for OMB Review; 30-Day Comment Request; Evaluation of the Enhancing Diversity of the NIH-Funded Workforce Program (NIGMS) | |
81 FR 40713 - Submission for OMB Review; 30-Day Comment Request: NEXT Generation Health Study | |
81 FR 40698 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
81 FR 40477 - Common Crop Insurance Regulations, Basic Provisions | |
81 FR 40679 - Charter Renewal of Department of Defense Federal Advisory Committees | |
81 FR 40682 - Agency Information Collection Activities; Comment Request; FFEL/Direct Loan/Perkins Military Service Deferment/Post-Active Duty Student Deferment Request | |
81 FR 40683 - Agency Information Collection Activities; Comment Request; Ronald E. McNair Postbaccalaureate Achievement Program Annual Performance Report | |
81 FR 40511 - Asset-Backed Securities Disclosure and Registration | |
81 FR 40677 - Collection of Information; Proposed Extension of Approval; Comment Request-Follow-Up Activities for Product-Related Injuries | |
81 FR 40700 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
81 FR 40698 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
81 FR 40702 - Agency Forms Undergoing Paperwork Reduction Act Review | |
81 FR 40703 - Agency Forms Undergoing Paperwork Reduction Act Review | |
81 FR 40704 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance for Industry on Nonproprietary Naming of Biological Products; Withdrawal | |
81 FR 40512 - Revisions to Exceptions Applicable to Certain Human Cells, Tissues, and Cellular and Tissue-Based Products | |
81 FR 40683 - List of Correspondence From October 1, 2014, Through December 31, 2014 | |
81 FR 40716 - Agency Information Collection Activities: 287(g) Candidate Questionnaire, Form No. 70-009; Extension, Without Change; Comment Request; OMB Control No. 1653-0047 | |
81 FR 40734 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Make Clarifying Amendments to and Remove Obsolete Language From Rules 1053 and 1056 | |
81 FR 40739 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule To Amend the Fees Schedule | |
81 FR 40736 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rules 7018(a) and 7014(h) | |
81 FR 40757 - Pipeline Safety: Request for Revision of a Previously Approved Information Information Collection: National Pipeline Mapping System Program | |
81 FR 40714 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 40715 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 40733 - New Postal Products | |
81 FR 40755 - Notice of Intent To Grant a Buy America Waiver to Palmetto Railways, a Division of the South Carolina Department of Commerce, To Use Wide-Span, Electric, Rail-Mounted Gantry Cranes | |
81 FR 40725 - Information Collection: NRC Forms 542 and 542A, Uniform Low-Level Radioactive Waste Manifest Index and Regional Compact Tabulation, and Continuation Page | |
81 FR 40728 - Information Collection: NRC Forms 540 and 540A, Uniform Low-Level Radioactive Waste Manifest (Shipping Paper) and Continuation Page | |
81 FR 40727 - Information Collection: NRC Forms 541 and 541A, Uniform Low-Level Radioactive Waste Manifest, Container and Waste Description, and Continuation Page | |
81 FR 40720 - Statement of Findings: Crow Tribe Water Rights Settlement Act of 2010 | |
81 FR 40624 - Competitive Passenger Rail Service Pilot Program | |
81 FR 40584 - Proposed Revisions to Wine Labeling and Recordkeeping Requirements | |
81 FR 40681 - Public Notice of Intent for Studies and Initial Scoping Meeting for Gulf Intracoastal Waterway Brazos River Floodgates and Colorado River Locks Feasibility Study | |
81 FR 40710 - National Institute of Mental Health (NIMH); Notice of Meeting | |
81 FR 40705 - Center for Scientific Review; Notice of Closed Meetings | |
81 FR 40707 - Center for Scientific Review; Notice of Closed Meetings | |
81 FR 40706 - Center for Scientific Review; Notice of Closed Meetings | |
81 FR 40711 - Center for Scientific Review; Notice of Closed Meetings | |
81 FR 40682 - Withdrawal of Notice of Intent for the Environmental Impact Statement Process for the Compass Minerals-Ogden's Solar Evaporation Pond Expansion Project Within the Great Salt Lake, Box Elder County, UT | |
81 FR 40773 - Proposed Information Collection (Acquisition Regulation (VAAR) Provision 852.214-70, Caution to Bidder-Bid Envelopes) Activity: Comment Request | |
81 FR 40772 - Proposed Information Collection (Acquisition Regulation (VAAR) Clause 852.270-3, Purchase of Shellfish) Activity: Comment Request | |
81 FR 40768 - Proposed Information Collection (Acquisition Regulation (VAAR) Provision 852.211-71, Special Notice) Activity: Comment Request | |
81 FR 40771 - Proposed Information Collection (Brand Name or Equal) Activities Under OMB Review; Activity: Comment Request | |
81 FR 40768 - Proposed Information Collection (Brand Name or Equal) Activities Under OMB Review Activity: Comment Request | |
81 FR 40771 - Proposed Information Collection (VA Form Letter 5-127, Inquiry Concerning Applicant for Employment) | |
81 FR 40770 - Proposed Information Collection (Transfer of Scholastic Credit (Schools) (FL-315)) Activity: Comment Request | |
81 FR 40773 - Proposed Information Collection (Certificate of Delivery of Advance Payment and Enrollment) Activity: Comment Request | |
81 FR 40767 - Proposed Information Collection (Application for Residential Care Home Program Sponsor Application, VA Form 10-2407) Activity: Comment Request | |
81 FR 40769 - Proposed Information Collection; Comment Request (Reconsideration of Denied Claims) | |
81 FR 40769 - Proposed Information Collection (Agent Orange Registry Code Sheet; VA Form 10-9009) Activity: Comment Request | |
81 FR 40772 - Agency Information Collection (Authorization To Disclose Personal Information to a Third Party) Activity Under OMB Review | |
81 FR 40765 - Agency Information Collection Activities: Information Collection Renewal; Submission for OMB Review; Minimum Security Devices and Procedures, Reports of Suspicious Activities, and Bank Secrecy Act Compliance Program | |
81 FR 40659 - Certain Pasta From Italy: Initiation and Preliminary Results of Antidumping and Countervailing Duty Changed Circumstances Reviews | |
81 FR 40661 - Ammonium Sulfate From the People's Republic of China: Initiation of Countervailing Duty Investigation | |
81 FR 40525 - Limited Disapproval of Air Plan Revisions; Arizona; New Source Review; PM2.5 | |
81 FR 40665 - Ammonium Sulfate From the People's Republic of China: Initiation of Less-Than-Fair-Value Investigation | |
81 FR 40697 - Notice to All Interested Parties of the Termination of the Receivership of 10498, AztecAmerica Bank, Berwyn, Illinois | |
81 FR 40725 - Advisory Committee for International Science and Engineering; Notice of Meeting | |
81 FR 40704 - Agency Information Collection Activities: Proposed Collection: Public Comment Request | |
81 FR 40756 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel PHOTOBOAT; Invitation for Public Comments | |
81 FR 40676 - Evaluations of National Estuarine Research Reserves and Coastal Management Programs | |
81 FR 40523 - Federal Civil Penalties Adjustment Act Amendments | |
81 FR 40490 - Airworthiness Directives; Bombardier, Inc. Airplanes | |
81 FR 40488 - Airworthiness Directives; Bombardier, Inc. Airplanes | |
81 FR 40528 - Lighting and Marking on Agricultural Equipment | |
81 FR 40534 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Elfin-Woods Warbler With 4(d) Rule | |
81 FR 40632 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Elfin-Woods Warbler | |
81 FR 40596 - Medicaid/CHIP Program; Medicaid Program and Children's Health Insurance Program (CHIP); Changes to the Medicaid Eligibility Quality Control and Payment Error Rate Measurement Programs in Response to the Affordable Care Act | |
81 FR 40492 - Airworthiness Directives; Airbus Helicopters (Previously Eurocopter France) Helicopters | |
81 FR 40569 - Application of Section 409A to Nonqualified Deferred Compensation Plans | |
81 FR 40548 - Deferred Compensation Plans of State and Local Governments and Tax-Exempt Entities | |
81 FR 40480 - Airworthiness Directives; Embraer S.A. Airplanes | |
81 FR 40485 - Airworthiness Directives; The Boeing Company Airplanes |
Federal Crop Insurance Corporation
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Engineers Corps
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
U.S. Immigration and Customs Enforcement
Fish and Wildlife Service
Indian Affairs Bureau
Workers Compensation Programs Office
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Maritime Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Alcohol and Tobacco Tax and Trade Bureau
Comptroller of the Currency
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Federal Crop Insurance Corporation, USDA.
Final rule with request for comments.
The Federal Crop Insurance Corporation (FCIC) amends the Common Crop Insurance Regulations, Basic Provisions. The intended effect of this action is to provide policy changes and to clarify existing policy provisions to better meet the needs of policyholders. Issues have arisen regarding: The qualifications for double cropping; and when it is practical to replant. This rule addresses those issues.
FCIC prefers interested persons submit their comments electronically through the Federal eRulemaking Portal. Interested persons may submit comments, identified by Docket ID No. FCIC-16-0002, by any of the following methods:
•
•
FCIC will post all comments received, including those received by mail, without change to
Tim Hoffmann, Product Management, Product Administration and Standards Division, Risk Management Agency, United States Department of Agriculture, Beacon Facility, Stop 0812, Room 421, P.O. Box 419205, Kansas City, MO 64141-6205, telephone (816) 926-7730.
FCIC amends the Common Crop Insurance Regulations (7 CFR part 457) by revising 7 CFR 457.8 Common Crop Insurance Regulations, Basic Provisions. The changes to the policy made in this rule are applicable for the 2017 and succeeding crop years for all crops with a contract change date on or after June 22, 2016, and for the 2018 and succeeding crop years for all crops with a contract change date prior to June 22, 2016.
FCIC is issuing this final rule without opportunity for prior notice and comment. The Administrative Procedure Act exempts rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” from the statutory requirement for prior notice and opportunity for public comment (5 U.S.C. 553(a)(2)). However, FCIC is providing a 60-day comment period and invites interested persons to participate in this rulemaking by submitting written comments. FCIC may consider the comments received and may conduct additional rulemaking based on the comments.
The changes to the Common Crop Insurance Regulations, Basic Provisions (7 CFR part 457) are as follows:
(a) Section 1—FCIC is revising the definition of “practical to replant.” Concerns have been raised regarding the definition of “practical to replant” and the difficulty and inconsistency that can occur in administering the practical to replant provisions of the crop insurance policy. Approved insurance providers have stated the provisions, as written, regarding “practical to replant” lead to different approved insurance providers reaching differing determinations as to whether it is practical to replant in the same area. FCIC is revising the definition to provide a clear, known deadline for when replanting of the crop is considered to be practical and if not replanted, coverage will not be provided for the initial crop. The definition provides an exception for adverse weather conditions that would either prohibit the physical replanting of the crop, or impact seed germination, emergence, and formation of a healthy plant.
(b) Section 15—FCIC is revising section 15 to allow the allocation of comingled first and second crop production to the associated crop
FCIC is also revising section 15 to allow eligible double cropping acres to be based on either, (1) the greatest number of acres double cropped in two of the last four crop years in which the first insured crop was planted; or (2) the percentage of acres historically double cropped in two of the last four crop years in which the first insured crop was planted. Current double cropping requirements do not adequately recognize changes in growing farm operations or for added land. This change will address both land added to an operation, and account for multiple crop rotations. For example, if a producer has a 100-acre farm and has historically double cropped 50 acres planted to wheat followed by soybeans (50 percent of acres historically double cropped), and the producer purchases and plants an additional 200 acres of wheat for a total of 300 acres of planted wheat, the number of acres eligible for double cropping would be based on 50 percent, or 150 acres. If the producer has historically double cropped wheat followed by soybeans on some or even all of the acreage, there is a reasonable presumption they may continue to do so in the future.
Previously, changes made to the Federal crop insurance policies codified in the Code of Federal Regulations were required to be implemented through the rulemaking process. Such action was not required by the Administrative Procedures Act because contracts were exempt from notice and comment rulemaking and the crop insurance policy is a contract. However, a prior Secretary of Agriculture published a notice in the
This rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, it has not been reviewed by the OMB.
Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, subchapter I), the collections of information in this rule have been approved by OMB under control number 0563-0053.
FCIC is committed to complying with the E-Government Act of 2002, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including 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 Federal Government and Indian tribes.
The Federal Crop Insurance Corporation has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under E.O. 13175. If a Tribe requests consultation, the Federal Crop Insurance Corporation will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.
FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees and compute premium amounts, and all producers are required to submit a notice of loss and production information to determine the indemnity amount for an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act (FCIA) authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this waiver helps to ensure that small entities are given the same opportunities as large entities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have a significant impact on a substantial number of small entities, and, therefore, this regulation is exempt
This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.
This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See 2 CFR part 415, subpart C.
This rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or action by FCIC directing the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 must be exhausted before any action against FCIC for judicial review may be brought.
This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.
Crop insurance, Reporting and recordkeeping requirements.
Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation amends 7 CFR part 457 as follows:
7 U.S.C. 1506(l) and 1506(o).
The revisions and additions reads as follows:
1. Definitions.
15. Production Included in Determining an Indemnity and Payment Reductions.
(h) You may receive a full indemnity, or a full prevented planting payment for a first insured crop when a second crop is planted on the same acreage in the same crop year, if each of the following conditions are met, regardless of whether or not the second crop is insured or sustains an insurable loss:
(1) Planting two or more crops for harvest in the same crop year in the area is generally recognized by agricultural experts or organic agricultural experts;
(2) The second or more crops are customarily planted after the first insured crop for harvest on the same acreage in the same crop year in the area;
(3) Additional coverage insurance offered under the authority of the Act is available in the county on the two or more crops that are double cropped;
(4) In the case of prevented planting, the second crop is not planted on or prior to the final planting date or, if applicable, prior to the end of the late planting period for the first insured crop;
(5) You provide records, acceptable to us, of acreage and production specific to the double cropped acreage proving that:
(i) You have double cropped acreage in at least two of the last four crop years in which the first insured crop was planted; if you acquired additional acreage, you may apply the percentage of acres that you have previously double cropped to the total acreage now in your operation using the following calculation:
(A) Determine the number of acres of the first insured crop that were double cropped in each of the years for which records are provided (For example, records are provided showing: 100 acres of wheat planted in 2015 and 50 of those acres were double cropped with soybeans; and 100 acres of wheat planted in 2016 and 70 of those acres were double cropped with soybeans);
(B) Divide each result of section 15(h)(5)(i)(A) by the number of acres of the first insured crop that were planted in each respective year (In the example above, 50 divided by 100 equals 50 percent of the first insured crop acres were double cropped in 2015 and 70 divided by 100 equals 70 percent were double cropped in 2016);
(C) Add the results of section 15(h)(5)(i)(B) and divide by the number of years the first insured crop was double cropped (In the example above, 50 plus 70 equals 120 divided by 2 equals 60 percent); and
(D) Multiply the result of 15(h)(5)(i)(C) by the number of insured acres of the first insured crop (In the example above, 60 percent of the wheat acres insured in 2017 and 60 percent of the second crop acres insured in 2017 are eligible for double cropping history);
(ii) The applicable acreage was double cropped (by one or more other producers, and the producer(s) will allow you to use their records) for at least two of the last four crop years in which the first insured crop was grown on it; and
(6) If you do not have records of acreage and production specific to the double cropped acreage, as required in section 15(h)(5), but instead have records that combine production from acreage you double cropped with records of production you did not double crop, we will allocate the first and second crop production to the specific acreage in proportion to the liability for the acreage that was and was not double cropped.
(i) If you provided acceptable records in accordance with section 15(h), your double cropping history is based on the acres historically cropped:
(1) If the records you provided are from acreage you double cropped in at least two of the last four crop years, you may apply your history of double cropping to any acreage of the insured crop in the county (
(2) If the records you provided are from acreage that one or more other producers double cropped in at least two of the last four crop years, you may only use the history of double cropping for the same physical acres from which double cropping records were provided (
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Embraer S.A. Model ERJ 170 airplanes; and all Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 IGW, -200 STD, -200 LR, and -200 IGW airplanes. This AD was prompted by reports of cracks in certain engine low-stage bleed check valves. This AD requires replacing the air management system (AMS) controller operation program of the AMS controller processor boards, and replacing the current low-stage bleed check valve and associated seals. We are issuing this AD to prevent failure of the low-stage bleed check valve; simultaneous failures of both low-stage bleed check valves could result in a dual engine in-flight shutdown.
This AD is effective July 27, 2016.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 27, 2016.
For service information identified in this final rule, contact Embraer S.A., Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227-901 São Jose dos Campos—SP—Brasil; telephone +55 12 3927-5852 or +55 12 3309-0732; fax +55 12 3927-7546; email
You may examine the AD docket on the Internet at
Ana Martinez Hueto, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1622; fax 425-227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Embraer S.A. Model ERJ 170 airplanes; and all Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 IGW, -200 STD, -200 LR, and -200 IGW airplanes. The NPRM published in the
The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directive 2015-02-02, effective March 6, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Embraer S.A. Model ERJ 170 airplanes; and all Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 IGW, -200 STD, -200 LR, and -200 IGW airplanes. The MCAI states:
This [Brazilian] AD was prompted by reports of cracks in some engine low-stage bleed check valves having part number (P[/]N) 1001447-6. Further analysis has determined that if a new (zero hour) low-stage bleed check valve P/N 1001447-6 is installed in an airplane already equipped with the Air Management System (AMS) controller processor boards containing the AMS Controller Operational Program version Black Label 13, or a later version, premature cracking on the petals of the low-stage bleed check valve is not expected to occur. We are issuing this [Brazilian] AD to prevent the possibility of a dual engine in-flight shutdown due to low-stage bleed check valve failure.
The unsafe condition is failure of the low-stage bleed check valve; simultaneous failures of both low-stage bleed check valves could result in a dual engine in-flight shutdown. The required action is replacement of the AMS controller operation program of the AMS controller processor boards, and replacement of the low-stage bleed check valves and associated seals. You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
An anonymous commenter requested that we revise the NPRM to authorize operators to install used valves that have been overhauled by the manufacturer or other authorized 14 CFR part 145 repair station. The commenter stated that the historical service records required to determine the serviceability of used valves installed on airplanes are not required by 14 CFR 91.417 and are generally not available. According to the commenter, this limits the ability of operators of Embraer Model ERJ 170 airplanes to adequately determine the service history of valves that were previously installed on Embraer Model ERJ 190 airplanes, and whether the installation of a used valve will meet compliance with the
We disagree to revise this AD to authorize operators to install used valves that have been overhauled. A valve that has been used on a Model ERJ 190 airplane without the AMS controller operational program version Black Label 13 or later version has been subjected to hydraulic pressures above the valve's structural limits. The damage to the valve could be undetectable, and the valve can therefore experience premature cracking. However, as is stated in paragraph (i) of this AD, low-stage bleed check valves having P/N 1001447-6 that can be demonstrated with logged hours only on Model ERJ-170 airplanes and/or on Model ERJ-190 airplanes equipped with the AMS controller operational program version Black Label 13, or a later version, can be used instead of new ones (zero-hour). We have made no changes to this AD in this regard.
Embraer requested that we revise the unsafe condition in the NPRM to indicate that a single valve failure cannot result in a dual engine failure. Embraer stated that a dual engine failure can occur only in the event of simultaneous failures of both valves on both engines on the same flight.
For the reasons stated by Embraer, we agree to include the requested phrasing in all appropriate locations in this final rule.
United Technologies Aerospace Systems (UTAS) requested that we revise the applicability of the NPRM to include Model ERJ “195 airplanes” and limit the applicability for Model ERJ 170 airplanes (including Model ERJ “175 airplanes”) to those “requiring replacement check valves.”
We disagree to revise the applicability of this AD. There is a difference between the commercial designation and the model designation on the type certificate data sheet (TCDS): “ERJ 175” is the commercial designation of Model ERJ 170-200 airplanes on the TCDS, and “ERJ 195” is the commercial designation of Model ERJ 190-200 airplanes on the TCDS. We use the model designation on the TCDS to define the applicability of ADs.
Although this AD is applicable to Model ERJ 190 and Model ERJ 170 airplanes, the only requirement for Model ERJ 170 airplanes is included in paragraph (j)(1) of this AD, which is related to installation of used low-stage bleed check valves having P/N 1001447-6 on Model ERJ 170 airplanes. As noted in the NPRM, ANAC is considering future rulemaking to include a similar requirement. We have made no changes to this AD in this regard.
UTAS requested that we revise paragraph (e), “Reason,” of the proposed AD to specify that cracks were found only on check valve P/N 1001447-6 on Model ERJ 190 airplanes.
Although we agree that cracks may have been found only on check valveP/N 1001447-6 on Model ERJ 190 airplanes, we disagree to revise paragraph (e), “Reason,” of this AD. The unsafe condition of this AD is not limited to Model ERJ 190 airplanes since the check valves may also be installed on Model ERJ 170 airplanes. We have made no changes to this AD in this regard.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
Embraer has issued Service Bulletin 190-36-0023, Revision 03, dated September 24, 2014; and Service Bulletin 190-21-0041, Revision 02, dated July 30, 2013. The service information describes procedures for replacing the engine low-stage bleed check valves. Embraer Service Bulletin 190-21-0041, Revision 02, dated July 30, 2013, also describes procedures for replacing the AMS controller operation program of the AMS controller processor boards. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 197 airplanes of U.S. registry.
We also estimate that it will take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $638 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $192,666, or $978 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this 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,
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 27, 2016.
None.
This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.
(1) All Embraer S.A. Model ERJ 170-100 LR, -100 STD, -100 SE., and -100 SU airplanes; and Model ERJ 170-200 LR, -200 SU, and -200 STD airplanes.
(2) All Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 IGW, -200 STD, -200 LR, and -200 IGW airplanes.
Air Transport Association (ATA) of America Code 36, Pneumatic.
This AD was prompted by reports of cracks in certain engine low-stage bleed check valves. We are issuing this AD to prevent failure of the low-stage bleed check valve; simultaneous failures of both low-stage bleed check valves could result in a dual engine in-flight shutdown.
Comply with this AD within the compliance times specified, unless already done.
For Embraer S.A. Model ERJ 190 airplanes identified in Embraer Service Bulletin 190-21-0041, Revision 02, dated July 30, 2013: Within 3 months after the effective date of this AD, replace the Hamilton Sundstrand air management system (AMS) controller operation program of the AMS controller processor boards, as specified in paragraph (g)(1) or (g)(2) of this AD.
(1) Replace with a new, improved program, in accordance with the Accomplishment Instructions of Embraer Service Bulletin 190-21-0041, Revision 02, dated July 30, 2013.
(2) Replace with a version of the Hamilton Sundstrand AMS controller operation program approved after August 31, 2012, using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; Agência Nacional de Aviação Civil (ANAC); or ANAC's authorized Designee.
For Embraer S.A. Model ERJ 190 airplanes identified in Embraer Service Bulletin 190-21-0041, Revision 02, dated July 30, 2013: Within 3 months after the effective date of this AD, and after accomplishment of the actions required by paragraph (g) of this AD, replace the check valve and associated seals of the left-hand and right-hand engine bleed system with a check valve identified in paragraph (i) of this AD, and new seals, in accordance with the Accomplishment Instructions of Embraer Service Bulletin 190-36-0023, Revision 03, dated September 24, 2014.
When complying with paragraph (h) of this AD, the low-stage bleed check valves having P/N 1001447-6, and associated seals, are replaced with new ones (zero-hour). Low-stage bleed check valves having P/N 1001447-6 that can be demonstrated with logged hours only on Model ERJ 170 airplanes and/or on Model ERJ 190 airplanes equipped with the AMS controller operational program version Black Label 13, or a later version, can be used instead of new ones (zero-hour).
(1) For Model ERJ 170-100 STD, -100 LR, -100SU, -100SE, -200 STD, -200 LR, and -200 SU airplanes: No person may install on any airplane a low-stage bleed check valve having P/N 1001447-6 that was installed on any Model ERJ 190-100 STD, -100 LR, -100 IGW, -200 STD, -200 LR, or -200 IGW airplane, any serial number except 190-00587, 190-00589, and 190-00593 and subsequent, prior to accomplishment of the requirements of paragraph (g) of this AD.
(2) For Model ERJ 190-100 STD, -100 LR, -100IGW, -200 STD, -200 LR, and -200 IGW airplanes: No person may install on any airplane on which the actions of paragraph (g) of this AD have been done, a low-stage bleed check valve having P/N 1001447-6 that was previously installed on any Model ERJ 190-100 STD, -100 LR, -100 IGW, -200 STD, -200 LR, or -200 IGW airplane, any serial number except 190-00587, 190-00589, 190-00593 and subsequent, prior to accomplishment of the requirements of paragraph (g) of this AD.
(1) This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using the service information identified in paragraph (k)(1)(i) or (k)(1)(ii) of this AD. This service information is not incorporated by reference in this AD.
(i) Embraer Service Bulletin 190-21-0041, dated September 27, 2012.
(ii) Embraer Service Bulletin 190-21-0041, Revision 01, dated December 20, 2012.
(2) This paragraph provides credit for actions required by paragraph (h) of this AD, if those actions were performed before the effective date of this AD using the service information identified in paragraph (k)(2)(i), (k)(2)(ii), or (k)(2)(iii) of this AD. This service information is not incorporated by reference in this AD.
(i) Embraer Service Bulletin 190-36-0023, dated July 22, 2013.
(ii) Embraer Service Bulletin 190-36-0023, Revision 01, dated September 3, 2013.
(iii) Embraer Service Bulletin 190-36-0023, Revision 02, dated April 30, 2014.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Brazilian Airworthiness Directive 2015-02-02, effective March 6, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (n)(3) and (n)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Embraer Service Bulletin 190-21-0041, Revision 02, dated July 30, 2013.
(ii) Embraer Service Bulletin 190-36-0023, Revision 03, dated September 24, 2014.
(3) For service information identified in this AD, contact Embraer S.A., Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227-901 São Jose dos Campos—SP—Brasil; telephone +55
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain BRP-Powertrain GmbH & Co KG Rotax 912 F2, 912 F3, 912 F4, 912 S2, 912 S3, 912 S4, 914 F2, 914 F3, and 914 F4 reciprocating engines. This AD requires re-identification of the engine model and concurrent modification of the aircraft to indicate the maximum coolant temperature limit. This AD was prompted by a design change introduced by the manufacturer that relocated the engine cylinder head temperature sensor to a different location and converted it to a coolant temperature sensor. We are issuing this AD to prevent exceeding engine coolant temperature limits, which could result in loss of engine coolant, damage to the engine, and loss of control of the airplane.
This AD becomes effective July 27, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 27, 2016.
For service information identified in this final rule, contact BRP-Powertrain GmbH & Co KG, Rotaxstrasse 1, A-4623 Gunskirchen, Austria; phone: +43 7246 6010; fax: +43 7246 601 9130; email:
You may examine the AD docket on the Internet at
Robert Green, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7754; fax: 781-238-7199; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the
A design change of the engine cylinder heads was introduced by BRP-Powertrain in March 2013 which modifies the engine/aircraft interfaces by substituting the previous cylinder head temperature (CHT) measurement (limit temperature 135 °C/150 °C) with a coolant temperature (CT) measurement (limit temperature 120 °C).
The design change was communicated on 15 May 2013 by BRP-Powertrain Service Instruction (SI) 912-020R7/914-022R7 (single document) but was not identified by a change of the engine model designation or of the engine P/N but only through the cylinder head P/N and the position of the temperature sensor.
Consequently, engines with the new cylinder heads (installed during production or replaced in-service during maintenance) may be installed on an aircraft without concurrent modification of that aircraft, instructions for which should be provided by the type certificate (TC) holder or the supplemental type certificate (STC) holder, as applicable. In this case, the coolant temperature with a maximum engine operating limit of 120 °C (valid for engines operated with water diluted glycol coolant) is displayed on a CHT indicator with a typical limit marking (red radial/range) of more than 120 °C.
You may obtain further information by examining the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (81 FR 14804, March 18, 2016).
We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed expect for minor editorial changes. We determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
BRP-Powertrain GmbH & Co KG has issued Service Bulletin (SB) SB-912-068/SB-914-049 (one document), dated April 16, 2015. The service information describes procedures for re-identification of the type plate for certain BRP-Powertrain GmbH & Co KG Rotax 912 and 914 engines. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects about 40 engines installed on aircraft of U.S. registry. We also estimate that it will take about 5 hours per engine to inspect and re-identify the type plate. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $17,000.
Title 49 of the United States Code specifies the FAA's authority to issue
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify 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 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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD becomes effective July 27, 2016.
None.
This AD applies to BRP-Powertrain GmbH & Co KG Rotax model 912 F2, 912 F3, 912 F4, 912 S2, 912 S3, 912 S4, 914 F2, 914 F3, and 914 F4 reciprocating engines with a cylinder head that has a part number (P/N) listed in Figure 1 to paragraph (c) of this AD and that is installed in position 2 or 3.
This AD was prompted by a design change introduced by the manufacturer that relocated the engine cylinder head temperature sensor to a new location and converted it to a coolant temperature sensor. We are issuing this AD to prevent exceeding coolant temperature limits, which could result in loss of engine coolant, damage to the engine, and loss of control of the airplane.
Comply with this AD within 6 months after the effective date of this AD, unless already done.
(1) For engines with cylinder heads that have a P/N listed in Figure 1 to paragraph (c) of this AD installed on both position 2 and position 3, change the engine model designation on the engine type data plate to include a “-01” suffix. Use paragraph 3.1.1 of BRP-Powertrain Service Bulletin (SB) SB-912-068/SB-914-049, dated April 16, 2015, to make this change.
(2) For engines with only one cylinder head having a P/N listed in Figure 1 to paragraph (c) of this AD installed in position 2 or 3, do one of the following:
(i) Replace the cylinder head having a P/N listed in Figure 1 to paragraph (c) of this AD with a P/N 623682 cylinder head on Rotax 912 F2, 912 F3, 912 F4, 914 F2, 914 F3, and 914 F4 engines and with a P/N 623687 cylinder head on Rotax 912 S2, 912 S3, and 912 S4 engines. If you complete the actions in paragraph (e)(2)(i), no further action is required. Or,
(ii) Install cylinder heads identified in Figure 1 to paragraph (c) of this AD on both cylinder head positions 2 and 3 and change the engine model designation of the engine type data plate in accordance with paragraph (e)(1) of this AD.
(3) For engines re-identified in accordance with paragraph (e)(1) or (e)(2)(ii) of this AD, before further flight, modify the aircraft cockpit instrumentation and related documentation to indicate a maximum coolant temperature limit of 120 degrees Celsius using FAA-approved procedures. These re-identified engines remain eligible for installation on approved aircraft-engine combinations.
The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
(1) For more information about this AD, contact Robert Green, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7754; fax: 781-238-7199; email:
(2) For more information about the installation modifications described in paragraph (e)(3) of this AD, contact Jim Rutherford, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust Ave. Room 301, Kansas City, MO; phone: 816-329-4165; fax: 816-329-4090; email:
(3) Refer to MCAI European Aviation Safety Agency, AD 2015-0240, dated December 18, 2015, for more information. You may examine the MCAI in the AD docket on the Internet at
(4) The following aircraft service information, which are not incorporated by reference in this AD, contain FAA-approved procedures for complying with paragraph (e)(3) of this AD and can be obtained from BRP-Powertrain GmbH & Co. KG, using the contact information in paragraph (h)(3) of this AD:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) BRP-Powertrain Service Bulletin SB-912-068/SB-914-049 (one document), dated April 16, 2015.
(ii) Reserved.
(3) For BRP-Powertrain service information identified in this AD, contact BRP-Powertrain GmbH & Co. KG, Rotaxstrasse 1, A-4623 Gunskirchen, Austria; phone: +43 7246 6010; fax: +43 7246 601 9130; email:
(4) You may view this service information at FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
(5) You may view this service information at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 airplanes. This AD was prompted by a report that certain center and outboard stowage bin modules were incorrectly installed. This AD requires an inspection of the center and outboard stowage bin modules for missing parts, quick release pins that are not fully engaged, and parts that are installed in incorrect locations; and corrective actions if necessary. We are issuing this AD to detect and correct incorrectly installed center and outboard stowage bin modules that might not remain intact during an emergency landing, resulting in injuries to occupants and interference with airplane evacuation.
This AD is effective July 27, 2016.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 27, 2016.
For service information identified in this final rule, 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
Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6585; fax: 425-917-6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8 airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the NPRM and the FAA's response to that comment.
United Airlines stated that it would be helpful if the service information provided examples (illustrations or descriptions) of incorrectly installed parts that required removal. We infer that the commenter is requesting a revision to the service information to include examples of incorrectly installed parts.
We disagree with the commenter's request. We consider that it would be potentially confusing to show examples of possible incorrect part installations. We have determined that the service information should provide detailed illustrations of proper installation configurations. A general description of the incorrect installations is provided. We have not changed this final rule regarding this issue.
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD as proposed, except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We reviewed the following Boeing service information. This service information describes procedures for inspecting the installation of the center and outboard stowage bin modules and doing corrective actions.
• Boeing Alert Service Bulletin B787-81205-SB250036-00, Issue 001, dated September 10, 2013.
• Boeing Alert Service Bulletin B787-81205-SB250039-00, Issue 001, dated October 8, 2013.
• Boeing Alert Service Bulletin B787-81205-SB250040-00, Issue 001, dated October 14, 2013.
• Boeing Alert Service Bulletin B787-81205-SB250041-00, Issue 001, dated October 18, 2013.
• Boeing Alert Service Bulletin B787-81205-SB250042-00, Issue 001, dated October 28, 2013.
• Boeing Alert Service Bulletin B787-81205-SB250043-00, Issue 001, dated November 4, 2013.
• Boeing Alert Service Bulletin B787-81205-SB250044-00, Issue 001, dated November 8, 2013.
• Boeing Alert Service Bulletin B787-81205-SB250045-00, Issue 001, dated November 15, 2013.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 6 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary replacements that will be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these replacements.
According to the manufacturer, all of the costs of this 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.
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, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 27, 2016.
None.
This AD applies to certain The Boeing Company Model 787-8 airplanes, certificated in any category, identified in the service information specified in paragraphs (c)(1) through (c)(8) of this AD.
(1) Boeing Alert Service Bulletin B787-81205-SB250036-00, Issue 001, dated September 10, 2013.
(2) Boeing Alert Service Bulletin B787-81205-SB250039-00, Issue 001, dated October 8, 2013.
(3) Boeing Alert Service Bulletin B787-81205-SB250040-00, Issue 001, dated October 14, 2013.
(4) Boeing Alert Service Bulletin B787-81205-SB250041-00, Issue 001, dated October 18, 2013.
(5) Boeing Alert Service Bulletin B787-81205-SB250042-00, Issue 001, dated October 28, 2013.
(6) Boeing Alert Service Bulletin B787-81205-SB250043-00, Issue 001, dated November 4, 2013.
(7) Boeing Alert Service Bulletin B787-81205-SB250044-00, Issue 001, dated November 8, 2013.
(8) Boeing Alert Service Bulletin B787-81205-SB250045-00, Issue 001, dated November 15, 2013.
Air Transport Association (ATA) of America Code 25, Equipment/Furnishings.
This AD was prompted by a report that certain center and outboard stowage bin modules were incorrectly installed. We are issuing this AD to detect and correct incorrectly installed center and outboard stowage bin modules that might not remain intact during an emergency landing, resulting in injuries to occupants and interference with airplane evacuation.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD, at the applicable time specified in paragraph 5., “Compliance,” of the applicable service information specified in paragraphs (g)(1) through (g)(8) of this AD: Do a general visual inspection of the installations of the center and outboard stowage bin modules to determine if any part is missing, if any part is installed at an incorrect location, or if any quick release pin is not fully engaged; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of the applicable service information identified in paragraphs (g)(1) through (g)(8) of this AD. Do all applicable corrective actions before further flight.
(1) For airplanes having variable numbers (V/Ns) ZA177 through ZA183 inclusive: Use Boeing Alert Service Bulletin B787-81205-SB250036-00, Issue 001, dated September 10, 2013.
(2) For airplanes having V/Ns ZA100 through ZA105 inclusive, V/Ns ZA116 through ZA119 inclusive, V/N ZA135, and V/Ns ZA506 through ZA511 inclusive: Use Boeing Alert Service Bulletin B787-81205-SB250039-00, Issue 001, dated October 8, 2013.
(3) For airplanes having V/Ns ZA460 through ZA464 inclusive: Use Boeing Alert Service Bulletin B787-81205-SB250040-00, Issue 001, dated October 14, 2013.
(4) For airplanes having V/N ZA233 and V/Ns ZA236 through ZA240 inclusive: Use Boeing Alert Service Bulletin B787-81205-SB250041-00, Issue 001, dated October 18, 2013.
(5) For airplanes having V/Ns ZA285 through ZA290 inclusive: Use Boeing Alert Service Bulletin B787-81205-SB250042-00, Issue 001, dated October 28, 2013.
(6) For airplanes having V/Ns ZA270 through ZA271 inclusive: Use Boeing Alert Service Bulletin B787-81205-SB250043-00, Issue 001, dated November 4, 2013.
(7) For airplanes having V/Ns ZA261 through ZA264 inclusive: Use Boeing Alert Service Bulletin B787-81205-SB250044-00, Issue 001, dated November 8, 2013.
(8) For airplanes having V/Ns ZA536 through ZA538 inclusive: Use Boeing Alert Service Bulletin B787-81205-SB250045-00, Issue 001, dated November 15, 2013.
Where the service information identified in paragraphs (g)(1) through (g)(8) of this AD 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.
(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 (j) 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, modification, or alteration 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. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane and the approval must specifically refer to this AD.
For more information about this AD, contact Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6585; fax: 425-917-6590; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Service Bulletin B787-81205-SB250036-00, Issue 001, dated September 10, 2013.
(ii) Boeing Alert Service Bulletin B787-81205-SB250039-00, Issue 001, dated October 8, 2013.
(iii) Boeing Alert Service Bulletin B787-81205-SB250040-00, Issue 001, dated October 14, 2013.
(iv) Boeing Alert Service Bulletin B787-81205-SB250041-00, Issue 001, dated October 18, 2013.
(v) Boeing Alert Service Bulletin B787-81205-SB250042-00, Issue 001, dated October 28, 2013.
(vi) Boeing Alert Service Bulletin B787-81205-SB250043-00, Issue 001, dated November 4, 2013.
(vii) Boeing Alert Service Bulletin B787-81205-SB250044-00, Issue 001, dated November 8, 2013.
(viii) Boeing Alert Service Bulletin B787-81205-SB250045-00, Issue 001, dated November 15, 2013.
(3) 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
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425 227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 2016-09-04 for certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. AD 2016-09-04 required replacement of incorrectly calibrated angle of attack (AOA) transducers. This new AD requires the same actions as AD 2016-09-04. This new AD was prompted by a report of a typographical error in the regulatory text of AD 2016-09-04. We are issuing this AD detect and replace incorrectly calibrated AOA transducers; incorrect calibration of the transducers could result in late activation of the stick pusher.
This AD is effective July 7, 2016.
The Director of the
We must receive comments on this AD by August 8, 2016.
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 final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone: 1-866-538-1247 or direct-dial telephone: 1-514-855-2999; fax: 514-855-7401; email:
You may examine the AD docket on the Internet at
Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7318; fax: 516-794-5531.
On April 20, 2016, we issued AD 2016-09-04, Amendment 39-18502 (81 FR 26102, May 2, 2016) (“AD 2016-09-04”), for certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. AD 2016-09-04 was prompted by the discovery of a number of incorrectly calibrated AOA transducers installed in the stall protection system. AD 2016-09-04 required replacement of incorrectly calibrated AOA transducers. We issued AD 2016-09-04 to detect and replace incorrectly calibrated AOA transducers; incorrect calibration of the transducers could result in late activation of the stick pusher.
Since we issued AD 2016-09-04, we received a report of a typographical error in the regulatory text of AD 2016-09-04. Paragraph (h) of AD 2016-09-04 inadvertently stated, “having a part number or serial number.” This should have stated “having a part number and serial number.” We have revised paragraph (h) of this AD accordingly.
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2015-17, dated July 16, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. The MCAI states:
It was discovered that a number of AOA transducers installed on Bombardier CL-600-2B19 aeroplanes were incorrectly calibrated due to a quality control problem at both the production and repair facilities. Incorrect calibration of the AOA transducer could result in a late activation of the stick pusher.
This [Canadian] AD mandates the replacement of the incorrectly calibrated AOA transducer.
You may examine the MCAI on the Internet at
We reviewed Bombardier Service Bulletin 601R-27-164, dated March 30, 2015. The service information describes procedures for replacement of incorrectly calibrated AOA transducers with correctly calibrated AOA transducers. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We are superseding AD 2016-09-04 to correct a typographical error in the regulatory text. No other changes have been made to AD 2016-09-04. Therefore, we determined that notice and opportunity for public comment are unnecessary.
This AD is a final rule that involves requirements affecting flight safety, and
We will post all comments we receive, without change, to
We estimate that this AD affects 575 airplanes of U.S. registry.
We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $10,000 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $5,945,500, or $10,340 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 7, 2016.
This AD replaces AD 2016-09-04, Amendment 39-18502 (81 FR 26102, May 2, 2016) (“AD 2016-09-04”).
This AD applies to Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category, serial numbers 7003 through 7067 inclusive, 7069 through 7990 inclusive, and 8000 through 8999 inclusive.
Air Transport Association (ATA) of America Code 27, Flight Controls.
This AD was prompted by the discovery of a number of incorrectly calibrated angle of attack (AOA) transducers installed in the stall protection system. We are issuing this AD to detect and replace incorrectly calibrated AOA transducers; incorrect calibration of the transducers could result in late activation of the stick pusher.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2016-09-04, with no changes. For AOA transducers identified in paragraph 1.A., “Effectivity,” of Bombardier Service Bulletin 601R-27-164, dated March 30, 2015: Within 2,500 flight hours or 12 months, whichever occurs first after June 6, 2016 (the effective date of AD 2016-09-04), replace the AOA transducers with correctly calibrated AOA transducers, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 601R-27-164, dated March 30, 2015.
This paragraph restates the parts installation prohibition specified in paragraph (h) of AD 2016-09-04, with a change to the affected parts language. As of June 6, 2016 (the effective date of AD 2016-09-04), no person may install, on any airplane, an AOA transducer having a part number and serial number listed in paragraph 1.A., “Effectivity,” of Bombardier Service Bulletin 601R-27-164, dated March 30, 2015.
The following provisions also apply to this AD:
Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2015-17, dated July 16, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on June 6, 2016, (81 FR 26102, May 2, 2016).
(i) Bombardier Service Bulletin 601R-27-164, dated March 30, 2015.
(ii) Reserved.
(4) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone: 1-866-538-1247 or direct-dial telephone: 1-514-855-2999; fax: 514-855-7401; email:
(5) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(6) 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), Department of Transportation (DOT).
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 2016-08-05 for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, Model CL-600-2D24 (Regional Jet Series 900) airplanes, and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. AD 2016-08-05 required replacement of affected angle of attack (AOA) transducers. This new AD requires the same actions as AD 2016-08-05. This new AD was prompted by a report of a typographical error in the regulatory text of AD 2016-08-05. We are issuing this AD to detect and replace incorrectly calibrated AOA transducers; incorrect calibration of the transducers could result in late activation of the stick pusher.
This AD is effective July 7, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of May 18, 2016 (81 FR 21709, April 13, 2016).
We must receive comments on this AD by August 8, 2016.
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 final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone: 1-866-538-1247 or direct-dial telephone: 1-514-855-2999; fax: 514-855-7401; email:
You may examine the AD docket on the Internet at
Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7318; fax: 516-794-5531.
On March 31, 2016, we issued AD 2016-08-05, Amendment 39-18481 (81 FR 21709, April 13, 2016) (“AD 2016-08-05”), for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, Model CL-600-2D24 (Regional Jet Series 900) airplanes, and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. AD 2016-08-05 was prompted by the discovery of a number of incorrectly calibrated AOA transducers installed in the stall protection system. AD 2016-08-05 required replacement of affected AOA transducers. We issued AD 2016-08-05 to detect and replace incorrectly calibrated AOA transducers; incorrect calibration of the transducers could result in late activation of the stick pusher.
Since we issued AD 2016-08-05, we received a report of a typographical error in the regulatory text of AD 2016-08-05. Paragraph (h) of AD 2016-08-05 inadvertently stated, “having a part number or serial number.” This should have stated “having a part number and serial number.” We have revised paragraph (h) of this AD accordingly.
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2015-18, dated July 16, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, Model CL-600-2D24
It was discovered that a number of AOA transducers installed on Bombardier CL-600-2C10, CL-600-2D15, CL-600-2D24, and CL-600-2E25 aeroplanes were incorrectly calibrated due to a quality control problem at both the production and repair facilities. Incorrect calibration of the AOA transducer could result in a late activation of the stick pusher.
This [Canadian] AD mandates the replacement of the incorrectly calibrated AOA transducer.
You may examine the MCAI on the Internet at
We reviewed Bombardier Service Bulletin 670BA-27-069, dated March 30, 2015. This service information describes procedures for replacement of incorrectly calibrated AOA transducers with correctly calibrated AOA transducers. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We are superseding AD 2016-08-05 to correct a typographical error in the regulatory text. No other changes have been made to AD 2016-08-05. Therefore, we determined that notice and opportunity for public comment are unnecessary.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 400 airplanes of U.S. registry.
We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $10,000 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $4,136,000, or $10,340 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 7, 2016.
This AD replaces AD 2016-08-05, Amendment 39-18481 (81 FR 21709, April 13, 2016) (“AD 2016-08-05”).
This AD applies to the Bombardier, Inc. airplanes, certificated in any category, identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD.
(1) Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, serial numbers 10002 through 10999 inclusive.
(2) Model CL-600-2D15 (Regional Jet Series 705) airplanes and Model CL-600-2D24 (Regional Jet Series 900) airplanes, serial numbers 15001 through 15990 inclusive.
(3) Model CL-600-2E25 (Regional Jet Series 1000) airplanes, serial numbers 19001 through 19990 inclusive.
Air Transport Association (ATA) of America Code 27, Flight Controls.
This AD was prompted by the discovery of a number of incorrectly calibrated angle of attack (AOA) transducers installed in the stall protection system. We are issuing this AD to detect and replace incorrectly calibrated AOA transducers; incorrect calibration of the transducers could result in late activation of the stick pusher.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements paragraph (g) of AD 2016-08-05, with no changes. Within 2,500 flight hours or 12 months, whichever occurs first after May 18, 2016 (the effective date of AD 2016-08-05), replace the AOA transducers identified in paragraph 1.A., “Effectivity,” of Bombardier Service Bulletin 670BA-27-069, dated March 30, 2015, with correctly calibrated AOA transducers, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-27-069, dated March 30, 2015.
This paragraph restates the parts installation prohibition specified in paragraph (h) of AD 2016-08-05, with a change to the affected parts language. As of May 18, 2016 (the effective date of AD 2016-08-05), no person may install, on any airplane, an AOA transducer having a part number and serial number listed in paragraph 1.A., “Effectivity,” of Bombardier Service Bulletin 670BA-27-069, dated March 30, 2015.
The following provisions also apply to this AD:
(1)
(2)
Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2015-18, dated July 16, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on May 18, 2016, (81 FR 21709, April 13, 2016).
(i) Bombardier Service Bulletin 670BA-27-069, dated March 30, 2015.
(ii) Reserved.
(4) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone: 1-866-538-1247 or direct-dial telephone: 1-514-855-2999; fax: 514-855-7401; email:
(5) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding Airworthiness Directive (AD) 2000-05-17 and AD 2001-04-12, which apply to Eurocopter France (now Airbus Helicopters) Model EC120B helicopters. AD 2000-05-17 and AD 2001-04-12 required repetitive visual checks of the engine-to-main gearbox (MGB) coupling tube assembly (coupling tube) for a crack and replacing any cracked tube with an airworthy tube. This new AD requires removing certain engine mount parts from service, measuring the height of the engine mounting base for certain helicopters, replacing the engine mount if a certain height is exceeded, inspecting the flared coupling on certain helicopters for a crack, and replacing the coupling if it is cracked. Since we issued AD 2000-05-17 and AD 2001-04-12, there have been reports of additional cracks in coupling tubes. These actions are intended to prevent coupling tube failure, loss of engine drive, and a subsequent forced landing of the helicopter.
This AD is effective July 27, 2016.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 27, 2016.
For service information identified in this final rule, contact Airbus Helicopters, 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
James Blyn, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
On May 29, 2015, we issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to remove AD 2000-05-17 (65 FR 13875, March 15, 2000) and AD 2001-04-12 (66 FR 13232, March 5, 2001) and add a new AD. AD 2000-05-17 applied to Model EC120B helicopters with engine coupling tube part number (P/N) C631A1002101 and required recurring inspections of each coupling tube for a crack and replacing any cracked coupling tube with a reinforced coupling tube P/N C631A1101101. AD 2001-04-12 applied to Model EC120B helicopters with engine coupling tube P/N C631A1101101 and required repetitive visual checks of each coupling tube for a crack. AD 2000-05-17 and AD 2001-04-12 were prompted by reports of cracks on the reinforced coupling tube and were intended to prevent coupling tube failure, loss of engine drive, and a subsequent forced landing.
The NPRM published in the
The NPRM proposed to require, for helicopters with certain engine mounts, before further flight, removing from service certain engine mount parts and measuring the height of the engine mounting base. If the height is more than 10.5 millimeters, the NPRM proposed replacing the engine mount with an engine mount that does not have the affected parts. For certain other helicopters, the NPRM proposed to require within 25 hours time-in-serice (TIS) replacing the spring-type engine suspension system, dye-penetrant inspecting the flared coupling for a crack, and replacing any cracked flared coupling. The NPRM also proposed removing coupling tube P/N C631A1002101 from service and prohibiting installation of that coupling tube on any helicopter.
Since the NPRM was issued, the FAA Southwest Regional Office has relocated and a group email address has been established for requesting an FAA alternative method of compliance for a helicopter of foreign design. We have revised the contact information throughout this final rule to reflect the new address and new email address.
After our NPRM (80 FR 34335, June 16, 2015) was published, we received comments from one commenter.
Airbus Helicopters disagrees with the proposed requirement to replace the spring-type engine suspension system in accordance with Eurocopter SB No. 71-005 for helicopters with an improved engine mount under Eurocopter SB No. 71-003. Airbus Helicopters states there have been no coupling tube failures since incorporation of Eurocopter SB No. 71-003, and therefore the proposed requirement would not increase safety levels.
We disagree. Installing the improved engine mount specified in Eurocopter SB No. 71-003 extends the compliance time for a recurring visual inspection of the coupling tube from 5 hours TIS to 25 hours TIS. When issued, that recurring inspection was considered a short-term interim action until an effective modification or action was developed, approved, and available. Eurocopter SB No. 71-005 contained such an effective action to cancel that interim action and was developed and approved in May 2004.
Airbus Helicopters requested that, if we mandate the proposed requirement to replace the spring-type engine suspension system in accordance with Eurocopter SB No. 71-005, we change the proposed compliance time from 25 hours TIS to 18 months to allow for availability of parts.
We disagree. Eurocopter SB No. 71-005 was approved May 13, 2004. The NPRM was published June 16, 2015. The substantial amount of time that has passed since the approval of the service information and publication of our NPRM provided operators with enough notice of our proposal to mandate that procedure such that availability of parts should not be an issue.
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, the DGAC on behalf of EASA, has kept the FAA informed of the situation described above. We are issuing this AD because we evaluated all information provided by the DGAC, 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.
Eurocopter issued ASB No. 04A005, Revision 0, dated July 16, 2003, which prohibits, after June 30, 2004, operating an engine mount made up of the following parts: Support arm, P/N C714A1107201; swaged support arm, P/N C714A1106201; left-hand support bracket, P/N C714A1101102; and right-
Eurocopter also issued SB No. 71-005, Revision 0, dated May 14, 2004, which contains procedures to modify the spring-type engine suspension system and dye-penetrant inspect the flared coupling assembly.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
Eurocopter issued SB No. 71-003, Revision 1, dated July 18, 2002, which contains procedures to improve the engine mount. Eurocopter also issued ASB No. 05A003, Revision 2, dated July 16, 2003, for helicopters that have not been modified with an improved engine mount in accordance with SB No. 71-003, which specifies inspecting the coupling tube for a crack every 5 hours and establishing a coupling tube life limit of 1,000 hours. For helicopters that have been modified with an improved engine mount, ASB No. 05A003 specifies inspecting the coupling tube for a crack every 25 hours and increasing the coupling tube life limit to 20,000 hours. ASB No. 05A003 was revised to Revision 3, dated May 11, 2004, to specify an optional spring-type engine suspension modification and cancel the repetitive inspection for this modified configuration.
This AD requires the installation of the spring-type engine suspension modification specified in Eurocopter SB No. 71-005 and does not require the repetitive inspection of the coupling tube and the engine mount base. This AD also does not require you to contact the manufacturer.
We estimate that this AD will affect 23 helicopters of the 115 helicopters of U.S. Registry. At an average labor rate of $85 per work-hour, we estimate that operators may incur the following costs in order to comply with this AD.
Installing new mounting arms and brackets requires about 12 work-hours and required parts cost $9,194, for a total cost per helicopter of $10,214 and $234,922 for the U.S. fleet. Installing the mounting spring kit requires about 14 work-hours and required parts cost $14,621, for a total cost per helicopter of $15,811 and $363,653 for the U.S. fleet. Dye-penetrant inspecting the coupling tube requires about 1 work-hour for a cost per helicopter of $85 and $1,955 for the U.S. fleet.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that a regulatory, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model EC120B helicopters with an engine-to-main gearbox coupling tube assembly (coupling tube), part number (P/N) C631A1101101 or P/N C631A1002101, installed, certificated in any category.
This AD defines the unsafe condition as a crack in a coupling tube. This condition could result in coupling tube failure, loss of engine drive, and a subsequent forced landing of the helicopter.
This AD supersedes AD 2000-05-17, Amendment 39-11627 (65 FR 13875, March 15, 2000) and AD 2001-04-12, Amendment 39-12131 (66 FR 13232, March 5, 2001).
This AD becomes effective July 27, 2016.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) For helicopters with a serial number up to and including 1169, not modified with an improvement of the engine mount in accordance with Eurocopter Service Bulletin (SB) No. 71-003, Revision 1, dated July 18, 2002 (SB 71-003), or not modified by installing a spring-type engine suspension system in accordance with Eurocopter SB No. 71-005, Revision 0, dated May 14, 2004 (SB 71-005), before further flight:
(i) Remove from service the following engine mount parts:
(A) Support arm, P/N C714A1107201;
(B) Swaged support arm, P/N C714A1106201;
(C) Left-hand support bracket, P/N C714A1101102; and
(D) Right-hand support bracket, P/N C714A1101103.
(ii) Measure the height of the engine mounting base as depicted in Figure 1 of Eurocopter Alert SB No. 04A005, Revision 0, dated July 16, 2003. If the height is more than 10.5 millimeters, replace the engine mount with an engine mount that does not have the parts identified in paragraph (f)(1)(i) of this AD.
(2) For helicopters with a serial number 1170 and larger or helicopters modified with an improvement of the engine mount in accordance with SB 71-003:
(i) Within 25 hours TIS, replace the spring-type engine suspension system and perform a dye-penetrant inspection of the flared coupling for a crack by following the Accomplishment Instructions, paragraphs 2.B.2.a through 2.B.2.c of SB 71-005.
(ii) If there is a crack in the flared coupling, before further flight, replace the coupling with an airworthy coupling.
(3) For helicopters with coupling tube, P/N C631A1002101, installed, before further flight, remove coupling tube, P/N C631A1002101, from service. Do not install coupling tube, P/N C631A1002101, on any helicopter.
Special flight permits may be issued provided there are no cracks in the coupling tube attachment fitting.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: James Blyn, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
(1) Eurocopter Alert Service Bulletin (ASB) No. 05A003, Revision 2, dated July 16, 2003; Eurocopter ASB No. 05A003, Revision 3, dated May 11, 2004; and Eurocopter Service Bulletin No. 71-003, Revision 1, dated July 18, 2002; which are not incorporated by reference, contain additional information about the subject of this final rule. For Eurocopter service information identified in this final rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
(2) The subject of this AD is addressed in Direction Generale de L'Aviation Civile (DGAC) AD No. F-2003-325 R1, Revision 1, dated May 12, 2004. You may view the DGAC AD on the Internet at
Joint Aircraft Service Component (JASC) Code: 6310, Engine/Transmission Coupling—Coupling Tube, Engine Mount, and Engine Mount Base.
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Eurocopter Alert Service Bulletin No. 04A005, Revision 0, dated July 16, 2003.
(ii) Eurocopter Service Bulletin No. 71-005, Revision 0, dated May 14, 2004.
(3) For Eurocopter service information identified in this final rule, contact Airbus Helicopters, 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, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment adopts miscellaneous amendments to the required IFR (instrument flight rules) altitudes and changeover points for certain Federal airways, jet routes, or direct routes for which a minimum or maximum en route authorized IFR altitude is prescribed. This regulatory action is needed because of changes occurring in the National Airspace System. These changes are designed to provide for the safe and efficient use of the navigable airspace under instrument conditions in the affected areas.
Effective 0901 UTC, July 21, 2016.
Richard A. Dunham, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs 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 amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.
The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the
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.
Airspace, Navigation (air).
Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, July 21, 2016.
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44719, 44721.
Bureau of Industry and Security, Commerce.
Final rule.
This final rule revises the Bureau of Industry and Security's (BIS) guidance regarding administrative enforcement cases based on violations of the Export Administration Regulations (EAR). The rule rewrites that guidance in the EAR, setting forth the factors that the Office of Export Enforcement (OEE) considers when setting penalties in settlements of administrative enforcement cases and when deciding whether to pursue administrative charges or settle allegations of EAR violations. This final rule does not apply to alleged violations of regulations concerning restrictive trade practices and boycotts, which would continue to be subject to the guidance.
Norma Curtis, Assistant Director, Office of Export Enforcement, Bureau of Industry and Security. Tel: (202) 482-5036, or by email at
The mission of the Office of Export Enforcement (OEE) at BIS is to enforce the provisions of the Export Administration Regulations (EAR), secure America's trade, and preserve America's technological advantage by detecting, investigating, preventing, and deterring the unauthorized export and reexport of U.S.-origin items to parties involved with: (1) Weapons of mass destruction programs; (2) threats to national security or regional stability; (3) terrorism; or (4) human rights abuses. Export Enforcement at BIS is the only federal law enforcement agency exclusively dedicated to the enforcement of export control laws and the only agency constituted to do so with both administrative and criminal export enforcement authorities. OEE's criminal investigators and analysts leverage their subject-matter expertise, unique and complementary administrative enforcement tools, and relationships with other federal agencies and industry to protect our national security and promote our foreign policy interests. OEE protects legitimate exporters from being put at a competitive disadvantage by those who do not comply with the law. It works to educate parties to export transactions on how to improve export compliance practices, supporting American companies' efforts to be reliable trading partners and reputable stewards of U.S. national and economic security. BIS also discourages, and in some circumstances prohibits, U.S. companies from furthering or supporting any unsanctioned foreign boycott (including the Arab League boycott of Israel).
OEE at BIS may refer violators of export control laws to the U.S. Department of Justice for criminal prosecution, and/or to the Department's Office of the Chief Counsel for Industry and Security for administrative prosecution. In cases where there has been a willful violation of the EAR, violators may be subject to both criminal fines and administrative penalties. Administrative penalties may also be imposed when there is no willful intent, allowing administrative cases to be brought in a much wider variety of circumstances than criminal cases. OEE has a unique combination of administrative enforcement authorities including both civil penalties and denials of export privileges. BIS may also place individuals and entities on lists that restrict or prohibit their involvement in exports, reexports, and transfers (in-country).
In this rule, BIS amends the EAR to update its Guidance on Charging and Penalty Determinations in Settlement of Administrative Enforcement Cases (the “BIS Guidelines”) found in Supplement No. 1 to part 766 of the EAR in order to make civil penalty determinations more predictable and transparent to the public and aligned with those promulgated by the Treasury Department's Office of Foreign Assets Control (OFAC). OFAC administers most of its sanctions programs under the International Emergency Economic Powers Act (IEEPA), the same statutory authority by which BIS implements the EAR. OFAC uses the transaction value as the starting point for determining civil penalties pursuant to its Economic Sanctions Enforcement Guidelines. Under IEEPA, criminal penalties can reach 20 years imprisonment and $1 million per violation, and administrative monetary penalties can reach $250,000 (subject to adjustment in accordance with U.S. law,
On December 28, 2015, BIS published a proposed rule to amend the BIS Guidelines (80 FR 80710). BIS received eleven submissions commenting on the proposed rule.
One submission, however, stated that the proposed rule fails to discuss how it advances the goal of Export Control Reform (“ECR”) by not aligning the BIS Guidelines with the administrative penalties and procedures promulgated by the Department of State, Directorate of Defense Trade Controls (“DDTC”) in the International Traffic in Arms Regulations (“ITAR”). The author submits that the alignment of BIS's enforcement policies and procedures with those of DDTC for enforcing export violations under the shared jurisdiction of BIS and DDTC would be more in line with the objectives of ECR.
It does not necessarily follow, however, that the manner in which controls are enforced on the items transferred to the CCL from the USML should involve aligning BIS Guidelines with those enforcement policies and procedures of DDTC. The licensing and enforcement functions of all three regulatory agencies—DDTC, BIS and OFAC—are encompassed within the ECR initiative. All three have defined jurisdictional roles over licensing exports. BIS has maintained a robust enforcement posture regarding violations of the EAR, and its policies and practices—including with regard to voluntary self-disclosures (“VSDs”), consideration of mitigating and aggravating factors, settlements and the imposition of civil monetary penalties—have historically been much more closely aligned with those of OFAC.
As stated in the proposed rule, both BIS and OFAC administer their regulations under the authority of the International Emergency Economic Powers Act, and the OFAC Guidelines serve as the only other published example of enforcement policies and practices promulgated under that statute. It is therefore consistent with the principles of ECR to bring the BIS Guidelines further into alignment with the OFAC Guidelines, which are more recent than BIS's current Guidelines and account for the higher penalties set forth in the International Emergency Economic Powers Enhancement Act of 2007.
Furthermore, the “higher fences” principle of ECR, referring to the more focused and concentrated enforcement efforts around the more significant military items that remain on the USML also applies to enforcement of items transferred to the CCL. Because of the more flexible licensing authority of the EAR that serves to facilitate trade (
Nevertheless, the proposed rule and this final rule share some characteristics with the enforcement policy of DDTC. Both DDTC and OEE have long placed great emphasis on the importance of VSDs, a policy that is reiterated and reinforced in the proposed rule and in this final rule. More generally, OEE sought to convey in the proposed rule the importance it places on the submission of VSDs, and underscored the fact that, over the past several years, on average only three percent of VSDs submitted have resulted in a civil monetary penalty. OEE does not expect that rate to change significantly, and OEE's practice is consistent with DDTC in responding to most VSDs submitted to it with a warning letter. Additionally, the proposed rule and this final rule provide that the use of funds that would otherwise be paid as a civil penalty may, in some cases, be suspended conditioned upon the respondent using funds in an equivalent amount for compliance activities required under the final order including improving internal compliance programs and conducting audits. Although such suspensions have been used by DDTC in the past, OEE has generally suspended penalties only due to inability to pay. For the foregoing reasons, BIS believes that aligning the BIS Guidelines with the OFAC Guidelines with the adoption of the DDTC practice noted above supports goals of the Export Control Reform Initiative and is making no changes in response to the comment that suggested otherwise.
A significant change in the proposed rule was the introduction of the concept of base penalty amounts for egregious and non-egregious apparent violations and the principle of reducing the base penalty amount by one-half if the case is based on a VSD. Base penalty amounts could then be adjusted based on aggravating, mitigating and general factors (which could be either aggravating or mitigating). The existing guidelines treat a VSD as a mitigating factor of “GREAT WEIGHT.”
OEE continues to encourage the submission of VSDs by persons who believe they may have violated the EAR. The purpose of an enforcement action includes raising awareness, increasing compliance, and deterring future violations, not merely punishing past conduct. VSDs are an indicator of a person's present intent and future commitment to comply with U.S. export control requirements. The purpose of mitigating the enforcement response in voluntary self-disclosure cases is to encourage the notification to OEE of apparent violations about which OEE would not otherwise have learned. As stated in the proposed rule, the submission of VSDs is a critical component of OEE's ability to collect information in carrying out its national security mission. Investigative leads provided by the public, including in the context of VSDs, provide an important tool used by the U.S. Government to enforce export regulations. OEE also is cognizant of the time, energy and financial expense of self-disclosing an apparent violation, especially when undertaken by small and medium enterprises.
OEE believes that the existing incentive of 50% mitigation is sufficient to encourage the submission of VSDs, which is further reinforced by the very low percentage of VSDs that result in civil monetary penalties. As noted above, over the past several years, on average only three percent of VSDs submitted have resulted in a civil monetary penalty. OEE does not expect that rate to change significantly as a result of these guidelines.
This final rule also makes changes to the formula for calculating the base penalty amounts and to the maximum effect of mitigating factors in response to the comments about their impact on VSDs and to comments suggesting that the base penalty amounts as proposed would provide OEE with insufficient flexibility in settlements. The changes to the base penalty amounts and impact of mitigating factors are discussed under the headings “Base Penalty Policy” and “Mitigating Factors” below.
Commenters proposed three different changes to the base penalty amount calculation to address this perceived lack of flexibility.
One proposed change was to set the base penalty for an egregious case that results from a VSD within a range from one-half the transaction value up to one-half of the statutory maximum and to set the base penalty in an egregious case that results from some source other than a VSD within a range from the applicable schedule amount and up to the statutory maximum.
Another proposed change was to set the base penalty amount of the civil monetary penalty in non-egregious cases involving a VSD at no greater than 10 percent of the transaction value, capped at a maximum of $25,000 per violation and in egregious cases involving a VSD to set base penalty at no greater than 10 percent of the statutory maximum applicable to the violation.
A third proposed change was to set a single range for base penalties in egregious cases from the applicable schedule amount to the applicable statutory maximum.
Accordingly, this final rule adopts a variation of the first of the proposals for calculating the base penalty amount noted above. The base penalty amount for an egregious case that results from a VSD will be changed from one-half the statutory maximum to a range of up to one-half of the statutory maximum. The base penalty amount for an egregious case that results from some source other than a VSD will be set at a range up to the statutory maximum whereas the proposed rule would have set the base penalty at the applicable statutory maximum. OEE believes that the adoption of this formula, along with changes related to the impact of mitigating factors on the penalty amount discussed below, will provide the degree of flexibility necessary to obtain a reasonable result in settlement negotiations.
OEE did not adopt the second proposal for calculating the base penalty amount which would have set the base penalty amount of the civil monetary penalty in non-egregious cases involving a VSD at no greater than 10 percent of the transaction value, capped at a maximum of $25,000 per violation and in egregious cases involving a VSD to set base penalty at no greater than 10 percent of the statutory maximum applicable to the violation. This proposal focused exclusively on cases based on VSDs and thus would not have addressed the need for greater flexibility
OEE did not adopt the third proposal, which would have set a single range from the applicable schedule amount to the applicable statutory maximum for all egregious cases whether based on a VSD or not. This proposal would have abandoned the principle of providing 50 percent reduction in base penalty amount in cases based on a VSD.
Aggravating factors A through D are thus germane at two stages of the process: First in determining whether a case is egregious or not and second in determining the degree of egregiousness. Once a case is determined to be egregious based on those factors, a range for determining the final penalty amount is established, either up to half the statutory maximum or up to the statutory maximum, depending upon whether or not the case was brought to OEE's attention pursuant to a VSD. The same factors will necessarily be considered in determining what final penalty will be set within the prescribed range. A determination as to whether a case is egregious is separate and apart from an evaluation of the degree of egregiousness. This rule thus does not preclude consideration of any of the factors A through D in determining the final penalty amount.
Accordingly, this final rule revises Section IV.B.2.b of the guidelines to provide that first offense mitigation will therefore be determined without regard to the prior issuance of warning letters received by that Respondent. Prior issuance of a warning letter may, however, evidence a pattern and practice of non-compliance and failure to rectify compliance shortcomings and be considered aggravating under General Factor E.
Another commenter noted that a warning letter does not constitute a final agency determination as to whether a violation has occurred. This leaves the recipient in a state of uncertainty as to whether a violation occurred and, therefore, how to proceed in similar situations in the future. The commenter requested that OEE eliminate that perceived uncertainty by ensuring that a warning letter provide guidance as to whether OEE believes a violation occurred, and, if so, limit the warning to the substance of the violation.
Although warning letters and no action letters constitute the final OEE disposition of the matter, neither constitutes final agency action with respect to a violation of the EAR. To help clarify this point, this final rule refers to OEE's disposition when describing OEE's action with respect to warning letters and no action letters, and clearly states that these are not “final agency actions.”
Neither the proposed rule nor this final rule state that OEE may resume an investigation into a matter concerning which it previously issued a no action letter “anytime it desires.” The proposed rule text stated that “A no-action determination represents a final determination (OEE's . . . disposition in this final rule) as to the apparent violation, unless OEE later learns of additional information regarding the same or similar transactions or other relevant facts.” Reopening an investigation or inquiry because the enforcement agency learns of new relevant information does not constitute double jeopardy as that term is
Warning letters currently identify the transaction or conduct OEE believes violated the EAR and will continue to do so.
Several commenters addressed the question of determining transaction value.
1. “In the proposed definition, what transaction is the `subject transaction'”?
2. “How will the referenced documents (
3. “How will BIS reconcile inconsistent information found in these related documents”?
4. “At what point in BIS's internal deliberations will the transaction value be considered as `not otherwise ascertainable'”?
5. “Will the disclosing or investigated party be allowed an opportunity to speak to that issue before the conclusion is reached”?
6. “How will `market value' and `economic benefit' be evaluated”?
Two commentators expressed concern regarding the statements in the proposed Guidelines that “[p]enalties for settlements reached after the initiation of an enforcement proceeding and litigation through the filing of a charging letter will usually be higher than those described by these Guidelines” and that “[i]f a case does not settle before issuance of a charging letter and the case proceeds to adjudication, the resulting charging letter may include more violations than alleged in the proposed charging letter.” The commenters stated that such practices could put inappropriate pressure to settle even if the respondent has a legitimate defense, or feels that the proposed penalty is excessive. They could constitute coercion and a denial of procedural due process. One commenter stated that BIS should establish reasonable limits concerning when it is appropriate for OEE to tack on additional charges or seek higher penalties than originally proposed.
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 shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid OMB Control Number. This rule does not contain any collections of information.
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 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
Although the Export Administration Act expired on August 20, 2001, 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, 2015, (80 FR 48233 (Aug. 11, 2015)), has continued the Export Administration Regulations 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.
Administrative practice and procedure, Confidential business information, Exports, Law enforcement, Penalties.
Accordingly, this rule amends part 766 of the Export Administration Regulations (15 CFR parts 730-774) (EAR) as follows:
50 U.S.C. 4601
This Supplement describes how the Office of Export Enforcement (OEE) at the Bureau of Industry and Security (BIS) responds to apparent violations of the Export Administration Regulations (EAR) and, specifically, how OEE makes penalty determinations in the settlement of civil administrative enforcement cases under part 764 of the EAR. This guidance does not apply to enforcement cases for violations under part 760 of the EAR—Restrictive Trade Practices or Boycotts. Supplement No. 2 to part 766 continues to apply to civil administrative enforcement cases involving part 760 violations.
Because many administrative enforcement cases are resolved through settlement, the process of settling such cases is integral to the enforcement program. OEE carefully considers each settlement offer in light of the facts and circumstances of the case, relevant precedent, and OEE's objective to achieve in each case an appropriate penalty and deterrent effect. In settlement negotiations, OEE encourages parties to provide, and will give serious consideration to, information and evidence that parties believe are relevant to the application of this guidance to their cases, to whether a violation has in fact occurred, or to whether they have an affirmative defense to potential charges.
This guidance does not confer any right or impose any obligation regarding what penalties OEE may seek in litigating a case or what posture OEE may take toward settling a case. Parties do not have a right to a settlement offer or particular settlement terms from OEE, regardless of settlement positions OEE has taken in other cases.
1. $1,000 with respect to a transaction valued at less than $1,000;
2. $10,000 with respect to a transaction valued at $1,000 or more but less than $10,000;
3. $25,000 with respect to a transaction valued at $10,000 or more but less than $25,000;
4. $50,000 with respect to a transaction valued at $25,000 or more but less than $50,000;
5. $100,000 with respect to a transaction valued at $50,000 or more but less than $100,000;
6. $170,000 with respect to a transaction valued at $100,000 or more but less than $170,000;
7. $250,000 with respect to a transaction valued at $170,000 or more.
OEE, among other responsibilities, investigates apparent violations of the EAR, or any order, license or authorization issued thereunder. When it appears that such a violation may have occurred, OEE investigations may lead to no action, a warning letter or an administrative enforcement proceeding. A violation may also be referred to the Department of Justice for criminal prosecution. The type of enforcement action initiated by OEE will depend primarily on the nature of the violation. Depending on the facts and circumstances of a particular case, an OEE investigation may lead to one or more of the following actions:
A.
B.
C.
D.
E.
F.
G.
Many apparent violations are isolated occurrences, the result of a good-faith misinterpretation, or involve no more than simple negligence or carelessness. In such instances, absent the presence of aggravating factors, the matter frequently may be addressed with a no action determination letter or, if deemed necessary, a warning letter. Where the imposition of an administrative penalty is deemed appropriate, as a general matter, OEE will consider some or all of the following Factors in determining the appropriate sanctions in administrative cases, including the appropriate amount of a civil monetary penalty where such a penalty is sought and is imposed as part of a settlement agreement and order. These factors describe circumstances that, in OEE's experience, are commonly relevant to penalty determinations in settled cases. Factors that are considered exclusively aggravating, such as willfulness, or exclusively mitigating, such as situations where remedial measures were taken, are set forth below. This guidance also identifies General Factors—which can be either mitigating or aggravating—such as the presence or absence of an internal compliance program at the time the apparent violations occurred. Other relevant Factors may also be considered at the agency's discretion.
While some violations of the EAR have a degree of knowledge or intent as an element of the offense, OEE may regard a violation of any provision of the EAR as knowing or willful if the facts and circumstances of the case support that conclusion. For example, evidence that a corporate entity had knowledge at a senior management level may mean that a higher penalty may be appropriate. OEE will also consider, in accordance with Supplement No. 3 to part 732 of the EAR, the presence of any red flags that should have alerted the Respondent that a violation was likely to occur. The aggravating factors identified in the Guidelines do not alter or amend § 764.2(e) or the definition of “knowledge” in § 772.1, or other provisions of parts 764 and 772 of the EAR. If the violations are of such a nature and extent that a monetary fine alone represents an insufficient penalty, a denial or exclusion order may also be imposed to prevent future violations of the EAR.
A.
1.
2.
3.
4.
5.
6.
B.
1.
2.
3.
C.
1.
2.
D.
1.
2.
3.
4.
5.
6.
E.
F.
1. The steps taken by the Respondent upon learning of the apparent violation. Did the Respondent immediately stop the conduct at issue? Did the Respondent undertake to file a VSD?
2. In the case of an entity, the processes followed to resolve issues related to the apparent violation. Did the Respondent discover necessary information to ascertain the causes and extent of the apparent violation, fully and expeditiously? Was senior management fully informed? If so, when?
3. In the case of an entity, whether it adopted new and more effective internal controls and procedures to prevent the occurrence of similar apparent violations. If the entity did not have a BIS compliance program in place at the time of the apparent violation, did it implement one upon discovery of the apparent violation? If it did have a BIS compliance program, did it take appropriate steps to enhance the program to prevent the recurrence of similar violations? Did the entity provide the individual(s) and/or managers responsible for the apparent violation with additional training, and/or take other appropriate action, to ensure that similar violations do not occur in the future?
4. Where applicable, whether the Respondent undertook a thorough review to identify other possible violations.
G.
1. Did the Respondent provide OEE with all relevant information regarding the apparent violation at issue in a timely, comprehensive and responsive manner (whether or not voluntarily self-disclosed), including, if applicable, overseas records?
2. Did the Respondent research and disclose to OEE relevant information regarding any other apparent violations caused by the same course of conduct?
3. Did the Respondent provide substantial assistance in another OEE investigation of another person who may have violated the EAR?
4. Has the Respondent previously made substantial voluntary efforts to provide information (such as providing tips that led to enforcement actions against other parties) to federal law enforcement authorities in support of the enforcement of U.S. export control regulations?
5. Did the Respondent enter into a statute of limitations tolling agreement, if requested by OEE (particularly in situations where the apparent violations were not immediately disclosed or discovered by OEE, in particularly complex cases, and in cases in which the Respondent has requested and received additional time to respond to a request for information from OEE)? If so, the Respondent's entering into a tolling agreement will be deemed a mitigating factor.
H.
I.
J.
K.
L.
M.
OEE will review the facts and circumstances surrounding an apparent violation and apply the Factors Affecting Administrative Sanctions in Section III above in determining the appropriate sanction or sanctions in an administrative case, including the appropriate amount of a civil monetary penalty where such a penalty is sought and imposed. Penalties for settlements reached after the initiation of litigation will usually be higher than those described by these guidelines.
1.
2.
a. Base Category Calculation and Voluntary Self-Disclosures.
i. In a non-egregious case, if the apparent violation is disclosed through a voluntary self-disclosure, the base penalty amount shall be one-half of the transaction value, capped at a maximum base penalty amount of $125,000 per violation.
ii. In a non-egregious case, if the apparent violation comes to OEE's attention by means other than a voluntary self-disclosure, the base penalty amount shall be the “applicable schedule amount,” as defined above (capped at a maximum base penalty amount of $250,000 per violation).
iii. In an egregious case, if the apparent violation is disclosed through a voluntary self-disclosure, the base penalty amount shall be an amount up to one-half of the statutory maximum penalty applicable to the violation.
iv. In an egregious case, if the apparent violation comes to OEE's attention by means other than a voluntary self-disclosure, the base penalty amount shall be an amount up to the statutory maximum penalty applicable to the violation.
The following matrix represents the base penalty amount of the civil monetary penalty for each category of violation:
b. Adjustment for Applicable Relevant Factors.
In non-egregious cases the base penalty amount of the civil monetary penalty may be adjusted to reflect applicable Factors for Administrative Action set forth in Section III of these Guidelines. In egregious cases the base penalty amount of the civil monetary penalty will be set based on applicable Factors for Administrative Action set forth in Section III of these Guidelines. A Factor may result in a lower or higher penalty amount depending upon whether it is aggravating or mitigating or otherwise relevant to the circumstances at hand. Mitigating factors may be combined for a greater reduction in penalty, but mitigation will generally not exceed 75 percent of the base penalty, except in the case of VSDs, where full suspension is possible with conditions in certain non-egregious cases. Subject to this limitation, as a general matter, in those cases where the following Mitigating Factors are present, OEE will adjust the base penalty amount in the following manner:
In cases involving exceptional cooperation with OEE as set forth in Mitigating Factor G, but no voluntary self-disclosure as defined in § 764.5 of the EAR, the base penalty amount generally will be reduced between 25 and 40 percent. Exceptional cooperation in cases involving voluntary self-disclosure may also be considered as a further mitigating factor.
In cases involving a Respondent's first violation, the base penalty amount generally will be reduced by up to 25 percent. An apparent violation generally will be considered a “first violation” if the Respondent has not been convicted of an export-related criminal violation or been subject to a BIS final order in five years, preceding the date of the transaction giving rise to the apparent violation. A group of substantially similar apparent violations addressed in a single Charging Letter shall be considered as a single violation for purposes of this subsection. In those cases where a prior Charging Letter within the preceding five years involved conduct of a substantially different nature from the apparent violation at issue, OEE may consider the apparent violation at issue a “first violation.” Warning Letters issued within the preceding five years are not factored into account for purposes of determining eligibility for “first offense” mitigation. When an acquiring firm takes reasonable steps to uncover, correct, and disclose or cause to be disclosed to OEE conduct that gave rise to violations by an acquired business before the acquisition, OEE typically will not take such violations into account as an aggravating factor in settling other violations by the acquiring firm.
iii. In cases involving charges pertaining to transactions where a license exception would have been available or a license would likely have been approved had one been sought as set forth in Mitigating Factor H, the base penalty amount generally will be reduced by up to 25 percent.
In all cases, the penalty amount will not exceed the applicable statutory maximum. Similarly, while mitigating factors may be combined for a greater reduction in penalty, mitigation will generally not exceed 75 percent of the base penalty, except in the case of VSDs, where full suspension is possible with conditions in certain non-egregious cases.
The procedures relating to the settlement of administrative enforcement cases are set forth in § 766.18 of the EAR.
Securities and Exchange Commission.
Technical amendment.
This release makes technical corrections to rules that were published in the
Effective June 22, 2016.
Rolaine S. Bancroft, Senior Special Counsel, at (202) 551-3850; Division of Corporation Finance, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-3628.
We are making technical amendments to § 229.1100,
Advertising, Reporting and recordkeeping requirements, Securities.
Reporting and recordkeeping requirements, Securities.
For the reasons set out above, Title 17, Chapter II, of the Code of Federal Regulations is amended as follows:
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78j-3, 78l, 78m, 78n, 78n-1, 78o, 78u-5, 78w, 78ll, 78 mm, 80a-8, 80a-9, 80a-20, 80a-29, 80a-30, 80a-31(c), 80a-37, 80a-38(a), 80a-39, 80b-11 and 7201
15 U.S.C. 77b, 77b note, 77c, 77d, 77d note, 77f, 77g, 77h, 77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78
15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 77sss, 78c, 78
15 U.S.C. 78a
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA or Agency or we) is issuing this final rule to amend certain regulations regarding donor eligibility, including the screening and testing of donors of particular human cells, tissues, and cellular and tissue-based products (HCT/Ps), and related labeling. This final rule is in response to our enhanced understanding in this area and in response to comments from stakeholders regarding the importance of embryos to individuals and couples seeking access to donated embryos.
This rule is effective August 22, 2016.
For access to the docket to read background documents or comments received, go to
Jessica T. Walker, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FDA is issuing this final rule to amend certain regulations regarding donor eligibility, including the screening and testing of donors of particular HCT/Ps, and related labeling. We are finalizing these changes in response to our enhanced understanding in this area and in response to comments from stakeholders regarding the importance of embryos to individuals and couples seeking access to donated embryos.
FDA is amending existing regulations to provide additional flexibility to HCT/P establishments to make available for reproductive use embryos originally intended for reproductive use for a specific individual or couple when those embryos are subsequently intended for directed or anonymous donation. Specifically, this rulemaking redesignates the current Title 21 of the Code of Federal Regulations (CFR) 1271.90(b) (§ 1271.90(b)) to new § 1271.90(c), and would insert a new § 1271.90(b) entitled “Exceptions for reproductive use” to clarify that if an embryo was originally intended for reproductive use for a specific individual or couple, its use for directed or anonymous donation, would not be prohibited under § 1271.45(c), even when the applicable donor eligibility requirements under part 1271, subpart C, are not met. FDA also clarifies that we are not creating an exception for deficiencies that occurred in making the donor eligibility determination for either the oocyte donor or the semen donor as required under § 1271.45(b), or for deficiencies in performing donor screening or testing, as required under §§ 1271.75, 1271.80, and 1271.85.
The final rule also requires appropriate labeling for embryos that would describe the donor eligibility status of the individual donors whose gametes were used to form the embryo. The content of the labeling is not different from that required under current regulations. Consistent with current regulations, the intent of the labeling is to help ensure that physicians have specific and accurate information to provide to recipients for use in making informed medical decisions.
FDA has authority for this rulemaking under section 361 of the Public Health Service Act (PHS Act) (42 U.S.C. 264). Under section 361 of the PHS Act, FDA may issue and enforce regulations necessary to prevent the introduction, transmission, or spread of communicable disease between the States or from foreign countries into the States.
Because this rule imposes no additional regulatory burdens, the costs associated with this rule are expected to be minimal.
Under the authority of section 361 of the PHS Act, by delegation from the Surgeon General and the Secretary of Health and Human Services, FDA may make and enforce regulations necessary to prevent the introduction, transmission, or spread of communicable diseases. Communicable diseases include, but are not limited to, those transmitted by viruses, bacteria, fungi, parasites, and transmissible spongiform encephalopathy agents. Certain diseases are transmissible through implantation, transplantation, infusion, or transfer of HCT/Ps derived from donors infected with those diseases. To prevent the introduction, transmission, or spread of such communicable diseases, we consider it necessary to require establishments to take appropriate measures to prevent the use of HCT/Ps from infected donors. FDA regulates HCT/Ps intended for implantation, transplantation, infusion, or transfer into a human recipient under part 1271 that was issued under the authority of section 361 of the PHS Act. Part 1271 requires HCT/P establishments to screen and test donors for relevant communicable disease agents and diseases, to prepare and follow written standard operating procedures for the prevention of the spread of communicable diseases, and to maintain records. Part 1271 also requires that for most HCT/Ps, the donor must be determined to be eligible, based on the results of screening and testing for relevant communicable disease agents and diseases. In most cases, a donor who tests reactive for a particular communicable disease, or who possesses clinical evidence of, or risk factors for, communicable disease agents and diseases, would be considered ineligible, and HCT/Ps from that donor would not ordinarily be used.
FDA has published three final rules that make up part 1271. In the
As part of our ongoing effort to implement our framework for regulating HCT/Ps, in the
In recent years, industry and the medical community have expressed concerns that the exception added by
We received approximately 10 comment letters on the proposed rule by the close of the comment period. We received comments from academia, professional organizations, and individuals. The comments were balanced between those expressing support for the proposed rule and those raising concerns about how the proposed exception will impact public health. They addressed the following topics: Purpose and scope of the final rule, donor screening, exceptions from the requirement of determining donor eligibility, and labeling requirements.
FDA is adopting as final, without material change, the proposed rule to amend certain regulations regarding donor eligibility and related labeling.
We are making revisions to the following FDA regulations:
Section 1271.90 sets forth exceptions where HCT/P establishments are not required to make a donor eligibility determination under § 1271.50 or to perform donor screening or testing under §§ 1271.75, 1271.80, and 1271.85. We are adding language to the exceptions listed in this section to provide clarity and update the regulation by allowing for an embryo originally intended for reproductive use for a specific individual or couple, to be subsequently used for directed or anonymous donation, even when the donor eligibility requirements under part 1271, subpart C are not met.
We are amending § 1271.90 as follows:
• Changing the heading of this section by deleting “from the requirement of determining donor eligibility,” and inserting “other” before “exceptions.” The heading for § 1271.90 will read “Are there other exceptions and what labeling requirements apply?” We made this change for clarity; the new heading will be more accurate.
• Changing § 1271.90(a)(3) by replacing “exempt” with “excepted,” which is the term used in the introductory title for this provision. Thus, this change will make the language more consistent. The beginning of § 1271.90(a)(3) will read, “Cryopreserved cells or tissue for reproductive use, other than embryos, originally excepted . . . .”
• Changing current § 1271.90(a)(4) by replacing “exempt” with “excepted”.
• Redesignating current § 1271.90(b) as § 1271.90(c) and adding a new paragraph (b) to § 1271.90.
• Changing newly designated § 1271.90(c) by removing “paragraph (a)” and adding in its place “paragraphs (a) and (b)” in the introductory text, revising § 1271.90(c)(2) to replace “(b)(6)” with “(c)(6)”, and by adding “recovery or” before “cryopreservation” in new § 1271.90(c)(6) to clarify that some testing and screening activities may take place before recovery of the gametes, not just before cryopreservation of the embryos.
We are redesignating the current § 1271.90(b) to § 1271.90(c), and adding a new § 1271.90(b) entitled “Exceptions for reproductive use.” Under finalized § 1271.90(b), an embryo originally intended for reproductive use for a specific individual or couple that is subsequently intended for directed or anonymous donation is excepted from the prohibition on use under § 1271.45(c) even when the applicable donor eligibility requirements under part 1271, subpart C are not met. Accordingly, when an establishment fails to comply with applicable donor eligibility requirements under part 1271, subpart C, the establishment will not be prohibited from making available for reproductive use such embryos for reproductive purposes in accordance with this section. The exception from the prohibition on use does not create an exception for deficiencies that occurred in making the donor eligibility determination for either the oocyte donor or the semen donor as required under § 1271.45(b), or for deficiencies in performing donor screening or testing, as required under §§ 1271.75, 1271.80, and 1271.85.
We note that the language we are adding to the exceptions currently listed in § 1271.90 is additive. It creates an additional exception for the use of certain reproductive HCT/Ps that are not currently excepted, but it does not impact or restrict the exceptions currently provided for in the regulations.
Under § 1271.90(c), HCT/P establishments must prominently label an HCT/P described in § 1271.90(a) and (b). The labeling requirements are intended to help ensure that physicians have specific and accurate information to provide to recipients for use in making informed medical decisions.
The nonsubstantive change to § 1271.90(c)(2) clarifies that the labeling requirements contained in § 1271.90(c)(2) do not apply to reproductive cells or tissue labeled in accordance with § 1271.90(c)(6). The change to § 1271.90(c)(6) includes “recovery or” before the word “cryopreservation”. Thus, the § 1271.90(c)(6) provision requires HCT/P establishments to prominently label an HCT/P described in § 1271.90(a)(3) or (a)(4) with “Advise recipient that screening and testing of the donor(s) were not performed at the time of recovery or cryopreservation of the reproductive cells or tissue, but have been performed subsequently” for HCT/Ps described in § 1271.90(a)(3) or (a)(4). This change is made to recognize that some testing and screening activities may take place even before recovery of HCT/Ps, not just before cryopreservation.
Section 1271.370 sets forth labeling requirements in addition to those that apply under §§ 1271.55, 1271.60, 1271.65, and 1271.90. Because, as discussed previously, this rule redesignates the current labeling requirements under § 1271.90(b) to § 1271.90(c), we are amending § 1271.370(b)(4) to revise the reference from § 1271.90(b) to § 1271.90(c).
FDA is issuing this final rule under the authority of section 361 of the PHS Act (42 U.S.C. 264). Under section 361 of the PHS Act, FDA may issue and enforce regulations necessary to prevent the introduction, transmission, or spread of communicable disease
We received approximately 10 comment letters on the proposed rule by the close of the comment period, each containing one or more comments on one or more issues. We received comments from academia, professional organizations, and individual consumers.
We describe and respond to the comments in sections IV.B through IV.F. We have numbered each comment to help distinguish among different comments. We have grouped similar comments together under the same number, and, in some cases, we have separated different issues discussed in the same comment and designated them as distinct comments for purposes of our responses. The number assigned to each comment is purely for organizational purposes and does not signify the comment's value or importance or the order in which the comments were received.
Several comments made general remarks supporting the proposed rule without focusing on a particular proposed provision. In the following paragraphs, we discuss and respond to such general comments.
(Comment 1) There were several comments that were in support of the proposed rule and suggested that we provide even more guidance on donor eligibility, screening, and testing of donors of reproductive cells. One suggestion was that FDA's donor eligibility, screening, and testing requirements closely parallel American Society of Reproductive Medicine/Society for Assisted Reproductive Technology guidelines.
(Response) FDA acknowledges and appreciates the supportive comments. We appreciate the interest in additional guidance for the screening and testing of donors of reproductive cells. We continue to review existing regulations with respect to providing additional guidance or modifying these regulations as appropriate, in the future.
(Comment 2) One comment asked if the final rule would be applied retrospectively to embryos formed and cryopreserved on or after May 25, 2005.
(Response) Yes, the final rule applies to embryos formed and cryopreserved on or after May 25, 2005.
(Comment 3) One comment noted that preventing the spread of communicable disease protects the population and the family receiving the donation. Two comments suggested that the proposed rule conflicts with FDA regulations that serve to prevent the introduction, transmission, and spread of communicable disease. One comment expressed concern that the proposed rule appears to relax the testing requirements for donors and conflicts with the PHS Act, specifically section 361, that provides FDA with the authority to make and enforce regulations “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from State or possession into any other State or possession” (42 U.S.C. 264(a)). This commenter's interpretation of the proposed rule is that it removes the requirement for reproductive tissue donors to be tested, and only requires reproductive tissue donor testing “when possible.” According to the comment, FDA seems to posit informed consent as an adequate response to the health risks faced by recipients of donated embryos. The commenter would like FDA to strike the qualifier “when possible” from the text of the proposed rule because the commenter believes this approach would provide a greater level of protection to the recipient than the proposed rule and preserve FDA's intention of relaxing the current donor eligibility regulations in the interest of family building.
(Response) As stated previously, we consider it necessary that establishments take appropriate measures to prevent the use of HCT/Ps from donors infected with communicable diseases. Part 1271 requires HCT/P establishments to screen and test donors for relevant communicable disease agents and diseases, and to maintain records. Part 1271 also requires for most HCT/Ps that the donor must be determined to be eligible, based on the results of screening and testing for relevant communicable disease agents and diseases. We have retained the qualifier “when possible” in § 1271.90(a)(4) to provide HCT/P establishments with the flexibility to make available any embryos originally formed for reproductive use for a specific individual or couple and now intended for reproductive use in a directed or anonymous donation, provided that specific criteria are met, including requirements for labeling.
The final rule provides for the continued applicability of labeling requirements for embryos intended for reproductive use that would be excepted from the prohibition on use. The rule requires prominent labeling that describes the donor eligibility status of the individual donors whose gametes were used to form the embryo. The required labeling will provide information to the treating physician to permit discussion of the potential risks of communicable disease with the recipient.
(Comment 4) Some of the comments expressed concern about the risk of accepting an unscreened donation. Another comment noted that eligibility of the HCT/P donor must be assessed prior to usage to ensure the safety of recipients, their offspring, and the public as a whole; and furthermore, ensuring the proper screening of the donor's HCT/P enables the control of the spread of disease.
(Response) We agree that the proper screening of HCT/P donors minimizes the risk of introducing, transmitting, or spreading communicable diseases. As stated in the proposed rule, we consider it necessary to require establishments to take appropriate measures to prevent the use of HCT/Ps from infected donors. Part 1271 requires HCT/P establishments to screen and test donors for relevant communicable disease agents and diseases, and to maintain records. Part 1271 also requires, for most HCT/Ps, that donor be determined to be eligible, based on the results of screening and testing for relevant communicable disease agents and diseases. In most cases, a donor who
(Comment 5) A few comments expressed the belief that the proposed rule will allow for better genetic profiling. One of those comments stated that labeling will make it easier to identify particular genotypes for research. Another comment stated that genetically profiling all donors and to the extent possible all embryos will reduce the risk of recipients of embryos giving birth to children with serious genetic disorders. The commenter asked FDA to require establishments to genetically screen all donors and the embryo when possible.
(Response) These comments address a topic that is outside the scope of this rulemaking.
(Comment 6) One comment sought transparency as to which embryos are excepted and requested specific examples of how the rule provides additional flexibility to make embryos available for directed and anonymous donation. Specifically, the commenter asked whether donation would be allowed when the embryo was originally intended for transfer to a sexually intimate partner, where one of the gamete providers (either a directed or anonymous donor) would be considered ineligible based on screening and testing.
(Response) The rulemaking provides additional flexibility to make embryos available when there have been changes in the original plans for use of the embryos. Under finalized § 1271.90(b), an embryo originally intended for reproductive use for a specific individual or couple that is subsequently intended for directed or anonymous donation is excepted from the prohibition on use under § 1271.45(c) even when the applicable donor eligibility requirements under part 1271, subpart C are not met. Accordingly, when an establishment fails to comply with applicable donor eligibility requirements under part 1271, subpart C, the establishment will not be prohibited from making available for reproductive use such embryos for reproductive purposes in accordance with this section. The exception from the prohibition on use does not create an exception for deficiencies that occurred in making the donor eligibility determination for either the oocyte donor or the semen donor as required under § 1271.45(b), or for deficiencies in performing donor screening or testing, as required under §§ 1271.75, 1271.80, and 1271.85.
We note that the change we are making to the exceptions currently listed in § 1271.90 is additive. It creates an additional exception for the use of certain reproductive HCT/Ps that are not currently excepted, but it does not impact or restrict the exceptions currently provided for in the regulations.
(Comment 7) One comment recommends that the term “embryos formed for autologous use” not be used in conjunction with embryos. The commenter reasons that after a sperm or oocyte form an embryo, the embryo should not be considered autologous, given the definition at § 1271.3(a).
(Response) We agree with the comment and are not adopting, as part of the final rule, the term “embryos formed for autologous use”. Likewise, we are not adopting, as part of the final rule, the reference to § 1271.90(a)(1) in § 1271.90(a)(4).
(Comment 8) Several comments were in support of labeling because it allows the physician to fully discuss the risks of any communicable disease and it allows the patient to make a fully informed decision. One commenter noted that factors affecting decisions of an HCT/P recipient may outweigh the expert advice of medical doctors. Another comment referenced § 1271.90(c)(6) of the proposed rule (embryo labeling requirements) that states establishments are required to “advise recipients that screening and testing of the donor(s) were not performed at the time of recovery or cryopreservation of the reproductive cells or tissues, but have been performed subsequently.” The comment further states that “Description of the Proposed Rule” provides that these labeling requirements are “based on the expectation that a physician will be closely involved in the decision of the embryo and the recognition that physicians are under legal and ethical obligations that require them to discuss the risks of communicable disease transmission stemming from the use of HCT/Ps.” The comment asked that FDA revise the rule to expressly require establishments to counsel recipients on the risk of disease.
(Response) We agree that the recipients should be fully informed about the risk of communicable disease before accepting an embryo for implantation; however, we decline to make the suggested change. As stated in the preamble of the proposed rule, the proposed labeling requirements are based on the expectation that a physician will be closely involved in the decision to use an embryo and the recognition that physicians are under legal and ethical obligations that require them to discuss the risks of communicable disease transmission stemming from the use of HCT/Ps. FDA relies on physicians to meet these obligations when discussing procedures involving HCT/Ps with recipients. Further, we expect that a recipient would be fully informed of the risks involved in using an embryo for reproductive purposes as finalized under § 1271.90(b) even when the donor eligibility requirements under part 1271, subpart C are not met.
(Comment 9) One comment suggested that while a labeling requirement that is tiered according to the risks may mitigate the risks, it does not go far enough in abolishing the risks.
(Response) As described under proposed § 1271.90(c)(2) through (6), an embryo originally intended for reproductive use for a specific individual or couple that is subsequently intended for directed or anonymous donation must be labeled as applicable. We acknowledge that the labeling requirement will not abolish all risks of implanting those embryos. Rather, as stated in the proposed rule, the required labeling would provide information to the treating physician to permit discussion of the potential risks of communicable diseases with the recipient. Our expectation is that the recipient will become fully informed of the risk when the donor eligibility requirements under part 1271, subpart C are not met, so that the recipient can make a well informed decision about receiving the embryo.
This rule is effective August 22, 2016.
We have examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We have
The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the costs associated with this rule are expected to be minimal, we certify that the rule will not have a significant economic impact on a substantial number of small entities.
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $146 million, using the most current (2015) Implicit Price Deflator for the Gross Domestic Product. This final rule would not result in an expenditure in any year that meets or exceeds this amount.
This rule amends certain regulations regarding donor eligibility and labeling related to the screening and testing of donors of particular HCT/Ps. The final rule will provide additional flexibility to HCT/P establishments to make available for reproductive use embryos originally intended for reproductive use for a specific individual or couple and subsequently intended for directed or anonymous donation. Specifically, the final rule will clarify that if an embryo was originally intended for reproductive use for a specific individual or couple, its use for directed or anonymous donation would not be prohibited under § 1271.45 (c), even when the applicable donor eligibility requirements under part 1271, subpart C are not met. This exception from prohibition for use would not create an exception for deficiencies that occurred in making the donor eligibility determination for either the oocyte donor or the semen donor as required under § 1271.45(b), or for deficiencies in performing donor screening or testing, as required under §§ 1271.75, 1271.80, and 1271,85. The final rule also requires appropriate labeling that describes the donor eligibility status of the individual donors whose gametes were used to form the embryo.
This rule will provide greater accommodation of individuals and couples wanting access to embryos originally intended for reproductive use for a specific individual or couple, while continuing to emphasize the applicability of the donor eligibility screening and testing requirements for individual gamete donors. The final rule will provide HCT/P establishments with the flexibility to make embryos originally intended for reproductive use for a specific individual or couple now available for directed or anonymous donation, provided that specific criteria are met. Consistent with current regulations, the labeling requirements will help ensure that physicians have specific and accurate information to provide to recipients for use in making informed medical decisions. Because this rule imposes no additional regulatory burdens, the costs associated with this rule are expected to be minimal.
We have determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
The labeling requirements contained in this final rule are not subject to review by the Office of Management and Budget (OMB) because they do not constitute a “collection of information” under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C 3501-3520). Rather, the requirement to label HCT/Ps in accordance with the final rule is a “public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public” (5 CFR 1320.3(c)(2)). Therefore, FDA concludes that these requirements in this document are not subject to review by OMB because they do not constitute a “collection of information” under the PRA.
We have analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that 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. Accordingly, we conclude that the rule does not contain policies that have federalism implications as defined in the Executive Order and, consequently, a federalism summary impact statement is not required.
Biologics, Drugs, Human cells and tissue-based products, Medical devices, Reporting and recordkeeping requirements.
Therefore, under the Public Health Service Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 1271 is amended as follows:
42 U.S.C. 216, 243, 263a, 264, 271.
The revisions and additions read as follows:
(a) * * *
(3) Cryopreserved cells or tissue for reproductive use, other than embryos, originally excepted under paragraphs (a)(1) or (a)(2) of this section at the time of donation, that are subsequently intended for directed donation, provided that:
(4) A cryopreserved embryo, originally excepted under paragraph (a)(2) of this section at the time of recovery or cryopreservation, that is subsequently intended for directed or anonymous donation. When possible, appropriate measures should be taken to screen and test the semen and oocyte donors before transfer of the embryo to the recipient.
(b)
(c)
(2) “NOT EVALUATED FOR INFECTIOUS SUBSTANCES,” unless you have performed all otherwise applicable screening and testing under §§ 1271.75, 1271.80, and 1271.85. This paragraph does not apply to reproductive cells or tissue labeled in accordance with paragraph (c)(6) of this section.
(6) “Advise recipient that screening and testing of the donor(s) were not performed at the time of recovery or cryopreservation of the reproductive cells or tissue, but have been performed subsequently,” for paragraphs (a)(3) or (a)(4) of this section.
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations that provide guidance to Blue Cross and Blue Shield organizations, and certain other organizations, on computing and applying the medical loss ratio and the consequences for not meeting the medical loss ratio threshold. The final regulations reflect the enactment of a technical correction to section 833(c)(5) of the Internal Revenue Code by the Consolidated and Further Continuing Appropriations Act of 2015. The final regulations affect Blue Cross and Blue Shield organizations, and certain other organizations involved in providing health insurance.
Rebecca L. Baxter, at (202) 317-6995 (not a toll-free number).
This Treasury decision contains final regulations that amend 26 CFR part 1 under section 833 of the Internal Revenue Code (the Code). Section 833(a) provides that Blue Cross and Blue Shield organizations, and certain other organizations involved in providing health insurance as described in section 833(c), are entitled to: (1) Treatment as stock insurance companies for purposes of sections 831 through 835 (related to taxation of non-life insurance companies generally); (2) a special deduction determined under section 833(b); and (3) computation of unearned premium reserves under section 832(b)(4) based on 100 percent, and not 80 percent, of unearned premiums for purposes of determining “insurance company taxable income” under section 832.
Section 833(c)(5) was added to the Code by section 9016 of the Patient Protection and Affordable Care Act (Pub. L. 111-148, 124 Stat. 119) (the Affordable Care Act), effective for taxable years beginning after December 31, 2009. Section 833(c)(5), as enacted by the Affordable Care Act, provided that section 833 did not apply to any organization unless the organization's medical loss ratio (MLR) for the taxable year was at least 85 percent. For purposes of section 833, an organization's MLR was its percentage of total premium revenue expended on reimbursement for clinical services provided to enrollees under its policies during such taxable year (as reported under section 2718 of the Public Health Service Act (42 U.S.C. 300gg-18)).
Section 2718 of the Public Health Service Act (PHSA) was added by section 1001 and amended by section 10101 of the Affordable Care Act. Section 2718 of the PHSA is administered by the Department of Health and Human Services. Section 2718(a) of the PHSA requires a health insurance issuer to submit a report for each plan year to the Secretary of the Department of Health and Human Services concerning the percentage of total premium revenue, after accounting for collections or receipts for risk adjustment and risk corridors and payments of reinsurance, that the issuer expends: (1) On reimbursement for clinical services provided to enrollees under such coverage; (2) for activities that improve health care quality; and (3) on all other non-claims costs, excluding federal and state taxes and licensing or regulatory fees.
Section 2718(b) of the PHSA requires that a health insurance issuer offering group or individual health insurance coverage, with respect to each plan year, provide an annual rebate to each enrollee under such coverage, on a pro rata basis, if the ratio of the amount of the premium revenue the issuer expends on costs for reimbursement for clinical services provided to enrollees under such coverage and for activities that improve health care quality to the total amount of premium revenue (excluding federal and state taxes and licensing or regulatory fees and after accounting for payments or receipts for risk adjustment, risk corridors, and reinsurance under sections 1341, 1342, and 1343 of the Affordable Care Act (42 U.S.C. 18061, 18062, and 18063)) for the plan year is less than a prescribed percentage. Section 2718(b)(1)(B)(ii) of the PHSA provides that beginning on January 1, 2014, the medical loss ratio computed under section 2718(b) of the PHSA shall be based on expenses and premium revenues for each of the previous three years of the plan.
The Department of Health and Human Services published in the
On December 6, 2010, the Treasury Department and the IRS published Notice 2010-79 (2010-49 I.R.B. 809), which provided interim guidance and transitional relief to organizations under section 833(c)(5). The interim guidance applied to an organization's first taxable year beginning after December 31, 2009.
The interim guidance provided that for purposes of determining whether an organization's percentage of total premium revenue expended on reimbursement for clinical services
Notice 2010-79 also stated that the consequences for an organization with an MLR of less than 85 percent (an insufficient MLR) were as follows: (1) The organization would not be taxable as a stock insurance company by reason of section 833(a)(1) (but may have been taxable as an insurance company if it otherwise met the requirements of section 831(c)); (2) the organization would not be allowed the special deduction set forth in section 833(b); and (3) the organization would only take into account 80 percent, rather than 100 percent, of its unearned premiums for purposes of computing premiums earned on insurance contracts under section 832(b)(4). However, Notice 2010-79 provided that solely for the first taxable year beginning after December 31, 2009, the IRS would not treat an organization as losing its status as a stock insurance company by reason of section 833(c)(5) provided the following conditions were met: (1) The organization was described in section 833(c) in the immediately preceding taxable year; (2) the organization would have been taxed as a stock insurance company for the current taxable year but for the enactment of section 833(c)(5); and (3) the organization would have met the requirements of section 831(c) to be taxed as an insurance company for the current taxable year but for its activities in the administration, adjustment, or settlement of claims under cost-plus or administrative services-only contracts.
On July 5, 2011, the Treasury Department and the IRS published Notice 2011-51 (2011-27 I.R.B. 36) extending the interim guidance and transitional relief provided in Notice 2010-79 to an organization's first taxable year beginning after December 31, 2010. On June 11, 2012, the Treasury Department and the IRS published Notice 2012-37 (2012-24 I.R.B. 1014) extending the interim guidance and transitional relief provided in Notice 2010-79 and Notice 2011-51 through an organization's first taxable year beginning after December 31, 2012.
On May 13, 2013, the Treasury Department and the IRS published in the
On January 7, 2014, the Treasury Department and the IRS published in the
Congress subsequently passed the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235, 128 Stat. 2130) (the Appropriations Act), which was signed into law by the President on December 16, 2014. Section 102 of Division N of the Appropriations Act made a technical correction to section 833(c)(5) (the Technical Correction). The Technical Correction provides that in calculating its MLR numerator, an organization includes both the cost of reimbursement for clinical services and amounts expended for activities that improve health care quality. In addition, the Technical Correction provides that the consequences for not meeting the MLR threshold are only that section 833(a)(2) and (3) do not apply. Therefore, an organization with an insufficient MLR is treated as if it were a stock insurance company under section 833(a)(1). The Technical Correction applies to taxable years beginning after December 31, 2009.
These final regulations restate § 1.833-1 of the Income Tax Regulations (26 CFR part 1) and incorporate the Technical Correction. As explained in this preamble, the Technical Correction, in effect, retroactively amended the rules in the existing final regulations to determine the MLR and the consequences of an insufficient MLR. In order to avoid any confusion caused by the effect of the Technical Correction on the existing final regulations, the Treasury Department and the IRS are publishing the existing final regulations, as revised by the Technical Correction, in their entirety in this Treasury decision.
Section 1.833-1 of the Income Tax Regulations generally provides that an organization's MLR with respect to a taxable year is the ratio, expressed as a percentage, of the organization's MLR numerator to its MLR denominator. Prior to the Technical Correction, the existing final regulations only included in the MLR numerator an organization's total premium revenue expended on reimbursement for clinical services provided to enrollees. Consistent with the Technical Correction, § 1.833-1(c)(1)(i) of these final regulations describes an organization's MLR numerator as the total premium revenue the organization expended on reimbursement for clinical services and activities that improve health care quality provided to enrollees under its
Consistent with the Technical Correction, these final regulations provide that the consequences for an organization described in section 833(c) that has an MLR of less than 85 percent are the following: (1) The organization is not allowed the special deduction set forth in section 833(b); and (2) it must take into account 80 percent, rather than 100 percent, of its unearned premiums under section 832(b)(4). Unlike under the rule in the existing final regulations, an organization that has an MLR of less than 85 percent does not lose its eligibility to be treated as a stock insurance company under section 833(a)(1).
These final regulations apply to taxable years beginning after December 31, 2016. However, taxpayers may rely on these final regulations for taxable years beginning after December 31, 2009.
Certain IRS regulations, including this one, are exempt from the requirement of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply.
The Treasury Department and the IRS have determined that section 553(b) of the APA does not apply to these regulations, including because good cause exists under section 553(b)(B) of the APA. Section 553(b)(B) provides that an agency is not required to publish a notice of proposed rulemaking in the
The principal author of these regulations is Rebecca L. Baxter, Office of Associate Chief Counsel (Financial Institutions & Products). However, other personnel from the Treasury Department and the IRS participated in their development.
The IRS notices and Treasury decisions cited in this preamble are made available by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
(a)
(b)
(1)
(2)
(3)
(c)
(i)
(ii)
(2)
(i)
(ii)
(d)
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(ii)
(2)
(e)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the waters of the Detroit River in the vicinity of Detroit, MI. This zone is intended to restrict and control movement of vessels in a portion of the Detroit River. This zone is necessary to protect spectators and vessels from potential hazards associated with the Detroit River Days Air Show.
This temporary final rule is effective from 12:30 p.m. on June 24, 2016 until 6:30 p.m. on June 26, 2016.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2016-0460 and are available online by going to
If you have questions on this temporary final rule, call or email Petty Officer Todd Manow, Prevention Department, Sector Detroit, Coast Guard; telephone 313-568-9508, email
On February 10, 2016, the Tuskegee Airmen National Historical Museum submitted an application for a marine event for an aerial display spanning three days in conjunction with the Detroit River Days Festival on June 24, 25, and 26, 2016. A safety zone is required by the Federal Aviation Administration to separate aircraft from persons and property on the ground or water's surface for all air shows. For the purposes of this event, the Coast Guard is establishing a safety zone around the proposed flight path and a standoff zone between the flight path and the shore, matching the safety zone created for this same event in 2015 [USCG-2015-0491].
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231, 33 CFR 1.05-1 and 160.5; and Department of Homeland Security Delegation No. 0170.1. Having reviewed the application for a marine event submitted by the sponsor on February 10, 2016, the Captain of the Port Detroit (COTP) has determined that an aircraft aerial display proximate to a gathering of watercraft poses a significant risk to public safety and property. Such hazards include potential aircraft malfunctions, loud noise levels, and waterway distractions. Therefore, the COTP is establishing a safety zone around the event location to help minimize risks to safety of life and property during this event.
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking with
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
This rule establishes a safety zone on U.S. waters of the Detroit River, Detroit, MI, from a point on shore in Milliken State Park at 42°19.87′ N., 083°01.65′ W., proceeding South-Southeast approximately 450 yards to a point mid-river corresponding with the international boundary at 42°19.67′ N., 083°01.57′ W., then proceeding approximately 1.3 miles West-Southwest along the international boundary to a point mid-river at 42°19.28′ N., 083°03.03′ W. and then proceeding to a point on shore just west of the Joe Lewis Arena at 42°19.45′ N., 083°03.17′ W., and then following the U.S. bank of the Detroit River upstream to the point of origin (NAD 83).
Entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the COTP or his on-scene representative on a case-by-case basis. The COTP or his on-scene representative may be contacted via VHF Channel 16 to coordinate vessel transits during the enforcement period.
We developed this rule after considering numerous statutes and executive orders (E.O.) related to rulemaking. Below we summarize our analyses based these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of E.O. 12866, Regulatory Planning and Review, as supplemented by E.O. 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of E.O. 12866 or under section 1 of E.O. 13563. The Office of Management and Budget has not reviewed it under those Orders.
We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short duration, and is designed to minimize the impact on navigation. Moreover, under certain conditions, vessels may still transit through the safety zone when permitted by the COTP on a case-by-case basis.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in portions of the Detroit River from 12:30 p.m. to 6:30 p.m. on June 24, 25 and 26, 2016.
This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the
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 so that they can better evaluate its effects on them. If this 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 rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
Also, this proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
This rule will not cause a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under E.O. 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 action is not a “significant energy action” under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
Harbors, Marine safety, Navigation (water), Reporting and record keeping 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.
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(b)
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(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or his on-scene representative on a case-by-case basis.
(3) The “on-scene representative” of the COTP is any Coast Guard commissioned, warrant or petty officer or a Federal, State, or local law enforcement officer designated by or assisting the COTP to act on his behalf.
(4) Vessel operators must contact the COTP or his on-scene representative to obtain permission to enter or operate within the safety zone. The Captain of the Port Detroit or his on-scene representative may be contacted via VHF Channel 16 or at 313-568-9560. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or his on-scene representative.
Department of Veterans Affairs.
Interim final rule.
The Federal Civil Monetary Penalties Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, sets forth a formula increasing the maximum statutory amounts for civil monetary penalties and requires federal agencies to give notice of the new maximum amounts by regulation. Accordingly, this document gives notice that the Department of Veterans Affairs (VA) is increasing maximum civil monetary penalties from $10,000 to $21,563 for false loan guaranty certifications and from $5,500 to $10,781 for fraudulent claims or fraudulent statements in any VA program.
Written comments may be submitted through
Bill Russo, Director, Office of Regulations
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) (Sec. 701 of Pub. L. 114-74), which amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act) (Pub. L. 101-410), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect.
The 2015 Act requires agencies to: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rulemaking (IFR); and (2) make subsequent annual adjustments for inflation. Catch-up adjustments are to be based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year of the previous adjustment, and the October 2015 CPI-U. Annual inflation adjustments are to be based on the percent change between the October CPI-U preceding the date of the adjustment, and the prior year's October CPI-U.
The Executive Office of the President Office of Management and Budget (OMB) published guidance on February 24, 2016, advising the heads of federal agencies how to implement the 2015 Act. See
The Veterans' Benefits Improvement and Health-Care Authorization Act of 1986 authorized VA to levy civil monetary penalties against lenders that make false certifications in VA's home loan guaranty program. Public Law 99-576, sec. 402, Oct. 28, 1986, codified at 38 U.S.C. 3710(g)(4). Any lender that knowingly and willfully makes a false certification related to VA's credit information and loan processing standards is liable to the United States Government for a civil penalty equal to two times the amount of the Secretary's loss on the loan involved or to another appropriate amount, not to exceed $10,000, whichever is greater. See 38 CFR 36.4340(k). The applicable multiplier for a law enacted in 1986 is 2.15628. Therefore, this rule increases the civil penalty found at 38 CFR 36.4340(k)(1)(i) and 36.4340(k)(3) to the greater of two times the amount of the Secretary's loss on the loan involved or to another appropriate amount, not to exceed $21,563.
The Program Fraud Civil Remedies Act of 1986 authorized federal agencies to establish civil penalties and assessments against persons who commit fraud in federal programs. See Public Law 99-509, secs. 6101-6104, Oct. 21, 1986. For participants in VA's programs, a person is subject to a civil penalty (in addition to any other remedy that may be prescribed by law) for making a fraudulent claim or statement, as described in 38 CFR 42.3. .
The Program Fraud Civil Remedies Act of 1986 originally established the amount of the civil penalty at $5,000. See Public Law 99-509, secs. 6101-6104, Oct. 21, 1986. VA increased the amount to $5,500 in 1990, in accordance with the Inflation Adjustment Act. VA has not changed the amount other than when it implemented the adjustment due to the Inflation Adjustment Act.
As stated above, OMB has advised that the applicable multiplier for laws enacted in 1986 is 2.15628. Rather than applying the multiplier to $5,500, however, VA is applying the multiplier to the amount originally established in the Program Fraud Civil Remedies Act of 1986, $5,000. The initial adjustment from $5,000 to $5,500 is not to be taken into account. This is because, under the 2015 Act, agencies are to exclude from the catch-up prior inflationary adjustments implemented under the Inflation Adjustment Act. Therefore, as of the effective date of this rule, the amounts found at 38 CFR 42.3(a)(1) and 38 CFR 42.3(b)(1) are amended from $5,500 to $10,781.
VA is also updating the language to account for the codification of the authority cited by 38 U.S.C. Ch. I, Pt. 41, Refs & Annos. Currently, the language states that the cited authorities are “. . . to be codified at 31 U.S.C. 3801-3812.” The authorities are now codified at 31 U.S.C. 3801-3812. Consequently, VA is removing “to be codified” and replacing it with “codified”.
In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Secretary of Veterans Affairs finds, with good cause, that notice and public procedure thereon are unnecessary. This interim final rule merely calculates the adjustment percentages, specified by the 2015 Act, for codification as a VA regulation.
This final rule does not impose any additional responsibilities on any entity and therefore requires no adjustment to any entity's current operations, policies, or practices. Instead, it simply adjusts the amount of each civil monetary penalty as prescribed by the 2015 Act.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by OMB, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined that it is not a significant regulatory action under Executive Order 12866.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that
This interim final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Accordingly, no proposed rulemaking was required in connection with the adoption of this final rule. Pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.114, Veterans Housing—Guaranteed and Insured Loans.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert D. Snyder, Chief of Staff, Department of Veterans Affairs, approved this document on May 31, 2016, for publication.
Condominiums, Housing, Individuals with disabilities, Loan programs-housing and community development, Loan programs-veterans, Manufactured homes, Mortgage insurance, Reporting and recordkeeping requirements, Veterans.
For the reasons set out in the preamble, VA amends 38 CFR parts 36 and 42 as follows:
38 U.S.C. 501 and as otherwise noted.
Pub. L. 99-509, secs. 6101-6104, 100 Stat. 1874, codified at 31 U.S.C. 3801-3812.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing a limited disapproval of a revision to the Arizona Department of Environmental Quality (ADEQ) portion of the Arizona State Implementation Plan (SIP) under the Clean Air Act (CAA or Act). This ADEQ-submitted SIP revision primarily was intended to serve as a replacement of ADEQ's SIP-approved rules for the issuance of New Source Review (NSR) permits for stationary sources, including but not limited to the rules governing the review and permitting of major sources and major modifications under the Act. This action concerns only the major nonattainment NSR provisions in ADEQ's submittal as they pertain to the Nogales and West Central Pinal nonattainment areas for particulate matter with a diameter of 2.5 micrometers or less (PM
This rule will be effective on July 22, 2016.
The EPA has established docket number EPA-R09-OAR-2015-0187 for this action. Generally, documents in the docket for this action are available electronically at
Lisa Beckham, EPA Region IX, (415) 972-3811,
Throughout this document, “we,” “us” and “our” refer to the EPA.
On May 2, 2016, the EPA proposed a limited disapproval of the major nonattainment NSR portion of ADEQ's NSR SIP submittal for PM
For PM
The preamble in the
The EPA's May 2, 2016 proposed action provided a 30-day public comment period. During this period, we did not receive any comments on our proposal.
No comments were submitted on our proposed action. Therefore, as authorized in sections 110(k) of the Act, the EPA is finalizing a limited disapproval of the ADEQ NSR SIP submittal for the Nogales and West Central Pinal PM
As a result of this final action, the EPA must promulgate a federal implementation plan (FIP) under section 110(c) to address the deficiencies that are the subject of this action unless we approve subsequent SIP revisions that correct the deficiencies within 24 months. In addition, sanctions will be imposed unless the EPA approves subsequent SIP revisions that correct these deficiencies within 18 months of the effective date of this action. These sanctions would be imposed under section 179 of the Act and 40 CFR 52.31.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.
The EPA lacks the discretionary authority to address environmental justice in this rulemaking.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 22, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Federal Communications Commission (Commission) announces that the Office of Management and Budget (OMB) has approved, for a period of three years, certain information collection requirements associated with the Commission's Low Power Television Digital Rules Report and Order, FCC 15-175. This document is consistent with the Low Power Television Digital Rules Report and Order, which stated that the Commission would publish a document in the
47 CFR 74.800, published at 81 FR 5041, February 1, 2016, is effective June 22, 2016.
Cathy Williams,
This document announces that, on June 15, 2016, OMB approved the information collection requirements contained in the Commission's Low Power Television Digital Rules Report and Order, FCC 15-175, published at 81 FR 5041, February 1, 2016. The OMB Control Number is 3060-1177. The Commission publishes this document as an announcement of the effective date of the requirement. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1177, in your correspondence. The Commission will also accept your comments via the Internet if you send them to
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As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on June 15, 2016 for the information collection requirements contained in FCC 15-175, 47 CFR 74.800. Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1177. The foregoing document is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
Federal Communications Commission.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Final rule.
Pursuant to the Moving Ahead for Progress in the 21st Century Act (MAP-21), the agency is adding a new regulation to the CFR that sets forth requirements for lighting and marking on agricultural equipment to improve daytime and nighttime visibility. It standardizes lighting and marking requirements for agricultural equipment across the United States.
The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of June 22, 2016.
For technical issues: Mr. Wayne McKenzie, Office of Crash Avoidance Standards, NHTSA, 1200 New Jersey Avenue SE., West Building, Washington, DC 20590 (Telephone: (202) 366-0098) (Fax: (202) 366-7002).
On July 6, 2012, the President signed into law the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141. Section 31601 of MAP-21 contains a non-discretionary mandate concerning daytime and nighttime visibility of agricultural equipment that may be operated on public roads.
This rulemaking implements that mandate by adopting the American Society of Agricultural and Biological Engineers (ASABE) Standard 279.14, a voluntary industry consensus standard, for originally manufactured agricultural equipment.
NHTSA has not regulated the manufacture of most agricultural equipment in the past, because it did not have specific authority to do so. Under the National Traffic and Motor Vehicle Safety Act (49 U.S.C. Chapter 30101
Use of most agricultural equipment on the public roadways is intermittent and merely incidental to its primary off-road use. In a limited number of circumstances NHTSA has determined a piece of agricultural equipment to be a motor vehicle based on the specific factors listed above, such as its necessary and recurring use of public roads.
Consequently, States have been the primary sources of regulations for agricultural equipment lighting and marking. The result has been a varied landscape of regulations. NHTSA understands that this has created difficulties for manufacturers seeking to sell and market agricultural equipment that will meet all State on-road use requirements in multiple States. A national requirement for lighting and marking on agricultural equipment may reduce costs and increase efficiency for manufacturers selling agricultural equipment in multiple States.
As discussed in greater detail in Section VI below, ASABE's development of voluntary standards has begun to standardize the requirements for agricultural equipment. Some States have adopted versions of ASABE Standard 279 as their requirement for lighting and marking on agricultural equipment.
MAP-21 contains a non-discretionary mandate requiring NHTSA to establish a Federal rule for lighting and marking on agricultural equipment that is equivalent to the ASABE lighting and marking standard. NHTSA is issuing this rule in response to that mandate.
Section 31601 of MAP-21 contains the non-discretionary requirement that NHTSA establish minimum lighting and marking standards for agricultural equipment that may be operated on public roads. Section 31601 requires NHTSA's standards to be equivalent to ASABE 279.14, or any successor standard. The term “agricultural equipment,” as it applies in this section of MAP-21, has the meaning given the term “agricultural field equipment” in ASABE Standard 390.4, entitled “Definitions and Classifications of Agricultural Field Equipment,” or any successor standard. Standard 390.4 defines “agricultural field equipment” as “any agricultural tractor,
Given the clear and direct language contained in section 31601, NHTSA does not have the discretion to choose to base its standards on any standard other than ASABE Standard 279.14 or an equivalent standard, or to set a standard that differs in any way from ASABE Standard 279.14 or an equivalent standard.
NHTSA is required to promulgate the rule required by section 31601 within two years of MAP-21's enactment. At least once every five years after promulgating the rule, NHTSA is required to review it and update it consistent with the most recent revision of ASABE Standard 279.
Section 31601 also specifies that the promulgated rule may not prohibit the operation on public roads of agricultural equipment that is equipped with lighting and marking materials and equipment that comply with revisions of ASABE Standard 279 that are later than the one reflected in the rule. The promulgated rule also may not prohibit the operation on public roads of agricultural equipment that is equipped with lighting and marking materials and equipment in addition to those required by the rule.
The promulgated rule may not require retrofitting of agricultural equipment manufactured before the effective date of the rule.
Section 31601 also contains the requirement that NHTSA establish such standards at least one year after the date on which the rule establishing such standards is promulgated. Accordingly, the compliance date for this rule is June 22, 2017.
Finally, section 31601(b)(1) requires that NHTSA consult with representatives from ASABE, appropriate Federal agencies, and with other appropriate persons prior to promulgating this rule. NHTSA met with representatives from ASABE, the Association of Equipment Manufacturers, and AGCO in April 2013 to consult with them regarding this rulemaking. We have also reached out to other agricultural equipment manufacturers. Additionally, NHTSA has identified the following appropriate Federal agencies and consulted with them regarding this rulemaking: the Federal Motor Carrier Safety Administration, the Occupational Safety and Health Administration, and the United States Department of Agriculture.
Generally, agencies may promulgate final rules only after issuing a notice of proposed rulemaking and providing an opportunity for public comment under procedures required by the Administrative Procedure Act (APA), as provided in 5 U.S.C. 553(b) and (c). However, 5 U.S.C. 553(b)(3)(B) provides an exception to these requirements when notice and public comment procedures are “impracticable, unnecessary, or contrary to the public interest.”
NHTSA finds that notice and comment is unnecessary prior to adoption of this final rule because Congress statutorily mandated that NHTSA adopt specific existing lighting and agricultural marking standards. By incorporating these standards into federal regulation, NHTSA is performing a non-discretionary act.
MAP-21 expressly requires NHTSA to establish lighting and marking standards for agricultural equipment that are equivalent to ASABE Standard 279.14, or any successor standard. NHTSA is not aware of any other lighting and marking standard for agricultural equipment that is equivalent to ASABE Standard 279.14 or any successor standard. Because NHTSA's statutory authority is limited to either incorporating ASABE Standard 279.14, or an equivalent standard, NHTSA is unable to amend the rule to address any comments it may receive during a comment period. For this reason, a notice and comment period is unnecessary for this rulemaking.
Therefore, NHTSA may adopt this rule without issuing a notice of proposed rulemaking and receiving public comment, in accordance with the APA. For these same reasons, the rule will be effective on June 22, 2016.
Since its inception in 1907, ASABE
ASABE's standard creation is a 12 step process from start to finish that is supervised by ASABE's Standards Development and Oversight Committees.
ASABE initially developed Standard 279, “Lighting and Marking of Agricultural Equipment on Highways,” in 1954. Since then, the standard has been modified and revised numerous times. ASABE continues to update it. It contains voluntary standards specified for lighting and marking for all types of agricultural field equipment (as defined in ASABE Standard 390) that may be operated on public highways and roads. ASABE defines “agricultural field equipment” as “any agricultural tractor, self-propelled machine, implement or any combination thereof that is primarily designed for agricultural field operations.” Section 31601 of MAP-21 defines “agricultural equipment,” for purposes of this rulemaking, to be the same as ASABE's definition for “agricultural field equipment.”
ASABE Standard 279.14 and the definition of “agricultural field equipment” at 390.4 are the versions of the standards that are expressly identified in MAP-21. MAP-21 states that NHTSA may establish a rule that is equivalent to these or any successor standards. MAP-21 additionally states that NHTSA may not prohibit the operation on public roads of agricultural equipment that is equipped with lighting and marking in accordance with later versions of the ASABE standard than the one incorporated at promulgation.
ASABE has updated both Standard 279, which is currently on version 279.18, and the definition section, which is currently on version 390.5, since MAP-21 became effective. Based on our review, NHTSA does not believe that ASABE's updates to these standards are significant for purposes of this rulemaking.
ASABE Standard 390.4 defines agricultural field equipment as “Agricultural tractors, self-propelled machines, implements, and combinations thereof designed primarily for agricultural field operations.”
At the present time, many States use various versions of the standard. States do not always incorporate the latest version of Standard 279 or update their standards to reflect the latest version. This has created a landscape with a variety of slightly differing standards by State. Adopting ASABE Standard 279.14, as mandated by Congress, may help standardize lighting and marking requirements for agricultural field equipment by establishing one federal requirement.
The lighting and marking
Both of these ASABE standards are reasonably available to the public. You may obtain a copy from ASABE through their Web site at
To meet the statutory requirement to set standards, NHTSA is establishing a new standard at 49 CFR part 562. Section 31601 of MAP-21 requires that the lighting and marking standards established under that section be equivalent to ASABE Standard 279.14, or any successor standard. In response, NHTSA is incorporating ASABE Standard 279.14 in part 562 in its entirety.
NHTSA believes that it can provide a limited amount of compliance flexibility by incorporating version 279.14 into our standard, rather than the most current version of 279, because MAP-21 does not allow NHTSA to prevent operation on public roads of equipment meeting later versions of the standard. In other words, by incorporating version 279.14, we are allowing compliance with the version identified by Congress or any later version. We believe this approach is consistent with Congress's intent, because it incorporates the version identified by Congress, while also providing some limited compliance flexibility.
Section 31601 of MAP-21 gives the term “agricultural equipment” the same meaning as the term “agricultural field equipment” in ASABE Standard 390.4, or any successor standard. Accordingly, NHTSA is incorporating the ASABE Standard 390.4 definition of “agricultural field equipment” by reference. The ASABE definition for “agricultural field equipment,” which is the statutory definition for “agricultural equipment” under section 31601, includes tractors,
Section 31601 of MAP-21 also requires that NHTSA establish these lighting and marking standards for applicable agricultural equipment manufactured at least one year after the date on which the rule establishing such standards is promulgated. Accordingly, the date on which agricultural equipment subject to this rule must be compliant is June 22, 2017.
The majority of agricultural equipment that will be subject to the rule is produced by large, full-line equipment manufacturers, such as John Deere, Agco and Kubota. NHTSA believes that many of these large agricultural equipment manufacturers already build their products to comply with the latest version of ASABE Standard 279. As a result, NHTSA believes that the majority of pieces of agricultural equipment manufactured in the United States are already in compliance with ASABE Standard 279.14 or a successor standard.
Those that are not already compliant with ASABE Standard 279 could easily be made so for a very low cost or at no cost. For example, the reflective conspicuity tape necessary for compliance can be purchased for as low as 75 cents per foot. More expensive components, such as head and tail lights, which are required for some pieces of equipment, can be sourced on the open market for less than $50.00 per set.
NHTSA believes that manufacturers may benefit from this rulemaking because it seeks to federally standardize lighting and marking requirements for agricultural equipment that may be operated on public roads. We acknowledge that manufacturers may still need to equip their pieces of agricultural equipment with additional lighting and marking, as required by State laws. Equipping agricultural equipment subject to this rulemaking with additional lighting and marking than that required by part 562 is expressly allowed by section 31601 of MAP-21, and accordingly by NHTSA's rule.
Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies require this agency to make determinations as to whether a regulatory action is “significant” and therefore subject to OMB review and the requirements of the aforementioned Executive Orders. Executive Order 12866 defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
We have considered the potential impact of this rulemaking under Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies and procedures. This action was not reviewed by the Office of Management and Budget under E.O. 12866 and E.O. 13563. The agency has considered the impact of this action under the Department of Transportation's regulatory policies and procedures (44 FR 11034; February 26, 1979) and has determined that it is not “significant” under them.
This rule creates a standard based on a Congressional mandate for agricultural
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
NHTSA has considered the effects of this rule under the Regulatory Flexibility Act. This rule establishes lighting and marking standards for agricultural equipment that may be operated on public roads, by adopting ASABE Standard 279.14, pursuant to section 31601 of MAP-21. NHTSA believes that a large number of agricultural equipment manufacturers are already in compliance with the requirements due to the existing ASABE industry standard and State regulations. Furthermore, those that are not already compliant with the requirements could easily be made so for a very low cost or at no cost. For example, the reflective conspicuity tape necessary for compliance can be purchased for as low as 75 cents per foot. Slightly more expensive components such as head and tail lights, which are required for some pieces of equipment, can be sourced on the open market for less than $50.00 per set.
Because the materials needed to comply with ASABE Standard 279 are inexpensive and the majority of the market is already in compliance, the cost of this rule is expected to be minimal and it should not adversely affect small agricultural equipment manufacturers in a material way. Accordingly, NHTSA certifies that this FR will not have a significant economic impact on a substantial number of small entities.
NHTSA has examined this FR pursuant to Executive Order 13132 and concluded that the rulemaking will not have sufficient federalism implications to warrant consultation with State and local officials, nor the preparation of a federalism summary impact statement. The rule 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.”
Section 31601 of MAP-21 does not have an express savings or preemption provision; therefore general principles of preemption apply to the regulation. Principles of preemption provide that State standards are preempted to the extent that they conflict with Federal regulations, and they are preempted if the State regulations frustrate the purpose of the Federal regulation.
NHTSA believes that most State lighting and marking requirements for agricultural equipment incorporate or are based on a version of ASABE Standard 279. This is the standard that NHTSA is adopting in this rulemaking. Therefore, we do not expect that the regulation will significantly differ from existing lighting requirements.
Under general principles of preemption, if it would not be possible to comply with the requirements of both the federal requirements and a State standard, the federal requirements would prevail. We believe that agricultural equipment operators and manufacturers will be able to comply with both State and federal standards in instances in which they differ. Moreover, as required by section 31601(d)(3) of MAP-21, this regulation does not prohibit the operation on public roads of agricultural equipment that is equipped with materials or equipment that are in addition to the minimum materials and equipment specified in this rule. ASABE Standard 279.14 provides a range of places on agricultural equipment for mounting lighting and marking materials and equipment in compliance with that standard. As a result, individuals may mount lighting and marking materials and equipment in addition to that required by this rule in order to comply with any differing State standard. For these reasons, the rule 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.”
When promulgating regulations, agencies are required by Executive Order 12988 to make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.
Pursuant to this Order, NHTSA notes as follows. The fact that this rulemaking will not have a preemptive effect is discussed above in connection with Executive Order 13132. There is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.
The policy statement in section 1 of Executive Order 13609 provides, in part:
The regulatory approaches taken by foreign governments may differ from those taken by U.S. regulatory agencies to address similar issues. In some cases, the differences between the regulatory approaches of U.S. agencies and those of their foreign counterparts might not be necessary and might impair the ability of American businesses to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” Voluntary consensus standards are technical standards (
Per section 31601 of MAP-21, NHTSA is incorporating ASABE Standard 279.14, in its entirety. ASABE is a voluntary consensus standards body, as described in Section V.
The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). In 2010 dollars, this threshold is $136 million.
NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant adverse impact on the quality of the human environment.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et. seq.), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. This rulemaking does not establish any new information collection requirements.
Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
• Have we organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that isn't clear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rule easier to understand?
NHTSA considered and applied these plain language principles in the drafting of this FR.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Agricultural equipment, Highway safety, Incorporation by reference.
Sec. 31601, Pub. L. 112-141, 126 Stat. 405; 49 U.S.C. 30111 note; delegation of authority at 49 CFR 1.95.
This part establishes minimum lighting and marking standards for new agricultural equipment as required by the Moving Ahead for Progress in the 21st Century Act (Sec. 31601, Pub. L. 112-141).
This standard applies to new agricultural equipment that may be operated on a public road.
New agricultural equipment that may be operated on a public road must meet the lighting and marking standards set forth in ANSI/ASAE 279.14 JUL2008, “Lighting and Marking of Agricultural Equipment on Highways” (incorporated by reference, see § 562.11).
(a)
(b)
Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. You may inspect approved material at the National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 or at the National Archives and Records Administration. For information on the availability of this material at NARA, call 202‐741‐6030, or go to:
(a) American Society of Agricultural and Biological Engineers (ASABE) 2950
(1) ANSI/ASABE 279.14 JUL2008, “Lighting and Marking of Agricultural Equipment on Highways,” approved August 2008, into § 562.7.
(2) ANSI/ASAE 390.4 JAN2005, “Definitions and Classifications of Agricultural Field Equipment,” approved February 2005, into § 562.3.
(b) [Reserved].
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act (Act), as amended, for the elfin-woods warbler (
This rule is effective July 22, 2016.
This final rule is available on the Internet at
Marelisa Rivera, Deputy Field Supervisor, U.S. Fish and Wildlife Service, Caribbean Ecological Services Field Office, P.O. Box 491, Road 301 Km. 5.1, Boquerón, PR 00622; telephone 787-851-7297; facsimile 787-851-7440. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
Under section 4(d) of the Act, the Secretary of the Interior has discretion to issue such regulations she deems necessary and advisable to provide for the conservation of the species. The Secretary also has the discretion to prohibit by regulation, with respect to a threatened species, any act prohibited by section 9(a)(1) of the Act.
Habitats within some of the physically degraded private lands adjacent to elfin-woods warbler existing populations must be improved before they are suitable for the species; therefore, some activities that would normally be prohibited under 50 CFR 17.31 and 17.32 will contribute to the conservation of the elfin-woods warbler. For the elfin-woods warbler, the Service has determined that species-specific regulations authorized by section 4(d) of the Act are necessary and advisable to provide for the conservation of this species.
Please refer to the proposed listing rule (80 FR 58674, September 30, 2015) for a detailed description of previous Federal actions concerning the elfin-woods warbler.
In the proposed rule published on September 30, 2015 (80 FR 58674), we requested that all interested parties submit written comments on the proposal by November 30, 2015. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. On October 3, 2015, we published a newspaper notice in the Primera Hora inviting general public comment. We did not receive any requests for a public hearing.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from six knowledgeable individuals with scientific expertise that included familiarity with the elfin-woods warbler and its habitat, biological needs, and threats. We received responses from four of the peer reviewers.
We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the listing of elfin-woods warbler. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve this final rule. Substantive peer reviewer comments are addressed in the following summary
Three of the peer reviewers consulted are also from Federal agencies. Only two provided peer review of the proposed rule, and their comments are addressed above under
We received three public comments. While all indicated support for the listing of the elfin-woods warbler as a threatened species, none provided substantive comments requiring the Service's response.
Based upon our review of the comments from peer reviewers, other Federal and Commonwealth agencies, and the public, as summarized above, we reevaluated our proposed rule and incorporated the following changes into this final rule.
(1) We modified the information in the species description to specify that adult and sub-adult elfin-woods warbler do not have a stripe above the eyes (see “Species Description and Taxonomy,” below).
(2) We added information regarding the report of the elfin-woods warbler between the municipalities of Adjuntas and Jayuya as part of the species' range (see “Historical and Current Distribution,” below).
(3) We modified the information regarding the breeding season of the elfin-woods warbler to include the entire months of July and August (see “Life History,” below).
(4) We modified the provisions of the 4(d) rule to set forth that coffee tree seasonal pruning and other activities must be conducted from September 1 to February 28 (see 4(d) Rule, below).
(5) We added information regarding an additional elfin-woods warbler's nest-building activity at the Maricao Commonwealth Forest (see “Life History,” below).
The elfin-woods warbler was originally classified under the genus
Little detailed information has been published on the life history of the elfin-woods warbler. Some authors noted that the elfin-woods warbler is an extremely active warbler, moving among the dense vines of forest strata with more foliage cover or smaller branch tips, foraging insects, usually at intermediate foliage heights of 3 to 15 meters (m) (10 to 50 feet (ft)) (Colón-Merced 2013, p. 2). Opportunistic observations indicate the elfin-woods warbler feeds on moths, dragonflies, and other types of insects; however, its specific diet remains unknown (Colón-Merced 2013, p. 2). Raffaele
Arroyo-Vázquez (1992, p. 363) reported the first detailed observation of two nests found in March and April of 1990 in aerial leaf litter at heights between 1.3 to 7.6 m (4.3 to 25 ft) and documented a clutch size of two to three eggs. Also, he observed that the pair's cup nest was woven from rootlets and fibers obtained from tree ferns and lined with grass leaves and down feathers. Raffaele
Arroyo-Vázquez (1992, p. 363) and Rodríguez-Mojica (2004, p. 22) suggested that the species selected aerial leaf litter and cavity-nesting sites to avoid predation. Some authors have suggested that elfin-woods warbler nest predators may include the pearly-eyed thrasher (
The elfin-woods warbler is endemic to the island of Puerto Rico and was initially thought to occur only in the Luquillo Mountains at EYNF in eastern Puerto Rico (Kepler and Parks 1972, pp. 5-6; Pérez-Rivera 1979, p. 58). During
Between 2011 and 2013, the Service, in collaboration with the Puerto Rican Ornithological Society, Inc., and BirdLife International, conducted a study using a habitat suitability model and a single-season occupancy modeling approach to assess the current geographic distribution of the elfin-woods warbler. The project included surveys between January and July during the species' breeding season within habitat currently occupied by the species in the MCF and predicted habitat within the Cordillera Central (Anadón-Irizarry 2013, p. 2). The predicted habitat included public and private lands within the municipalities of Jayuya, Ciales, Adjuntas, Ponce, Orocovis, and Juana Díaz. The species was detected only in the MCF and adjacent private lands (Service 2014, p. 12).
The elfin-woods warbler is particularly difficult to survey because of its small size, its constant moving behavior, and the dense vegetation of areas where it is found (Raffaele 1989, p. 168). In fact, Kepler and Parkes (1972, pp. 5-6) attribute the belated discovery of elfin-woods warbler to the above factors and their similarity to the black and white warbler. Even the vocalization of the elfin-woods warbler can be easily mistaken with other species. Although the presence of the elfin-woods warbler in the forests of the Cordillera Central of Puerto Rico cannot be disregarded based on the previous facts, the available information suggests that the current distribution of the species is now restricted to two populations in (1) EYNF and (2) MCF and adjacent private lands (Anadón-Irizarry 2006, p. 5; Delannoy 2007, p. 4; González 2008, p. 19). The EYNF and the MCF are located about 150 kilometers (km) (93 miles (mi)) from each other (Arendt
At EYNF, the elfin-woods warbler was originally discovered in the Dwarf forest (Kepler and Parkes 1972, pp. 3-5). This forest type falls within the lower montane rain forest life zone (Ewel and Whitmore 1973, p. 49) and occupies 368 ha (909 ac) of EYNF (Weaver 2012, p. 5). It is found on exposed peaks with short, stunted vegetation above 900 m (2,952 ft) elevation (Weaver 2012, p. 58). In general, the Dwarf forest is not well populated with birds (Snyder
Later, the species was documented at lower elevations in the Palo Colorado, Tabonuco, and Sierra Palm forests (Wiley and Bauer 1985, pp. 12-18). The Palo Colorado forest occurs within the lower montane rain forest life zone, between approximately 600 and 900 m (1,968 and 2,952 ft) (Weaver 2012, p. 1). This forest type covers about 3,441 ha (8,502 ac) of the EYNF (Weaver 2012, p. 5). This forest is mainly composed of fast-growing trees with height not more than 24 m (78 ft) (Lugo 2005, p. 506).
The Tabonuco forest is found between 150 and 600 m (492 and 1,968 ft) elevation, and occupies 5,663 ha (13,993 ac) of the EYNF (Weaver 2012, p. 5). This forest is dominated by the Tabonuco tree (
The Sierra Palm forest (also known as palm breaks) may reach canopy heights of 15 m (50 ft) with 17 cm (7 in) average diameters at breast height (dbh) and grows mainly on steep slopes at approximately 450 m (1,476 ft) elevation, covering about 1,838 ha (4,541 ac) of the EYNF (Weaver 2012, pp. 5 and 56). The Sierra Palm forest occurs on steep windward slopes and poorly drained riparian areas (Lugo 2005, p. 496). This forest is dominated by the Sierra palm (
The
The Exposed Woodland Forest occupies 2,711 ha (6,700 ac) of the MCF and is found in valleys, slopes, and shallow soils with a more or less continuous canopy (González 2008, pp. 15-16). These forest associations are found at elevations ranging from 470 to 800 m (1,542 to 2,624 ft) within the subtropical wet forest life zone (DNR 1976, p. 185).
Timber Plantations occupy approximately 1,111 ha (2,745 ac) of the MCF in elevations ranging from 630 to 840 m (2,066 to 2,755 ft) within the subtropical wet forest and the subtropical moist forest life zones (DNR 1976, p. 185). This habitat—dominated by the María trees (
Dry Slopes Forest occupies approximately 1,367.3 ha (3,377 ac) of the MCF in elevations ranging from 120 to 300 m (394 to 984 ft) within the subtropical moist forest life zone (DNR 1976, p. 185). This habitat is found in shallow and excessively drained serpentine-derived soils dominated by xerophytic vegetation, thin trees, and a low open canopy. This forest type is more common in the southern and southeastern slopes of the MCF (DNR 1976, p. 185).
Outside the MCF, the elfin-woods warbler has been detected within secondary forests and existing shade-grown coffee plantations (González 2008, pp. 15-16). Secondary forests are found at elevations ranging from 130 to 750 m (426 to 2,460 ft), and the shade-grown coffee plantations are found at elevations ranging from 300 to 600 m (984 to 1,968 ft) (Gonzalez 2008, p. 59; Puerto Rico Planning Board 2015). Also, the elfin-woods warbler has been documented at very low densities outside the MCF in pasturelands, Gallery forests, and rural residential areas, but not in sun-grown (unshaded) coffee plantations (González 2008, pp. 15-16). Young secondary forests developed as a result of abandonment of agriculture during the 20th century. These forests are less than 25 years old with an open canopy height of 12 to 15 m (40 to 50 ft) (González 2008, p. 6) and are found within the subtropical moist and subtropical wet forest life zones (DNR 1976, p. 185). Their understories are well-developed and dominated by grasses, vines, and other early-successional species (González 2008, p. 6). Mature secondary forests are over 25 years old and develop on humid to very humid, moderate to steep slopes. They are characterized by their closed canopies, reaching heights of 20 to 30 m (66 to 100 ft), and sparse to abundant understories (González 2008, p. 6). Some of these forests were used in the past for cultivation of shade-grown coffee and survived untouched because landowners abandoned agriculture activities (Delannoy 2007, p. 10). The shade-grown coffee plantations are covered with tall mature forests dominated mostly by guaba (
Although the elfin-woods warbler has not been recently observed in this forest (Anadón-Irizarry 2006, p. 54; Anadón-Irizarry 2014, pers. comm.), the habitat suitability model developed for the species (Colón-Merced 2013, p. 51) suggests CCF still provides suitable habitat for the species due to its similarity in elevation, climatic conditions, and vegetation associations with EYNF and MCF. The CCF's similarity to EYNF and MCF suggests that this forest could provide habitat for the expansion of the elfin-woods warbler's current range to maintain the species' historical, geographical, and ecological distribution.
Additionally, González (2008, p. 27) reported that the highest densities of elfin-woods warbler recorded per point-count stations in MCF were within the
Based on the studies mentioned above, in 2010, BirdLife International estimated the overall elfin-woods warbler population in Puerto Rico to be at least 1,800 mature individuals (Arendt
The surveys conducted by Anadón-Irizarry between 2003 and 2004, and between 2012 and 2013, failed to detect the species within the CCF. The study conducted during the period of 2003-2004 (Anadón-Irizarry 2006, p. 54) included traditional areas previously searched by Pérez-Rivera, and the surveys were conducted along 5.0 km (3.1 mi) of existing trails. The most recent surveys, conducted between 2012 and 2013, avoided the use of existing trails and included nontraditional areas, but they also failed to detect the species (Anadón-Irizarry 2014, pers. comm.). However, during these surveys, the amount of surveyed area within nontraditional habitat was not significant (
Although these studies failed to detect the species, Anadón-Irizarry (2006, p. 54; 2014, pers. comm.) suggested the possibility that the species is still present in isolated pockets of forest that were not searched during the studies (Delannoy 2007, p. 22). The apparent persistent and relatively sedentary behavior of this species to inhabit certain small and isolated pockets of the forest might have led these authors to suggest that it is possible that CCF may harbor undetected elfin-woods warblers (Anadón-Irizarry 2006, p. 54; Delannoy 2007, pp. 22-23; Pérez-Rivera 2014, pers. comm.). Anadón-Irizarry (2006, p. 54), Delannoy (2007, pp. 22-23), and Pérez-Rivera (2014, pers. comm.) have suggested that the species was extirpated from the traditional areas searched by them during the 1980s, 1990s, and between 2003 and 2004 due to habitat modification activities (
Section 4 of the Act, and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
Listing actions may be warranted based on any of the above threat factors, singly or in combination.
The majority of extant elfin-woods warbler populations are restricted to two disjunct primary habitats in montane forests at EYNF and at MCF and private lands adjacent to MCF. Although the elfin-woods warbler has not been recently observed in CCF, this forest and adjacent lands still contains suitable habitat for the species. The elfin-woods warbler needs suitable forested habitats for essential behaviors such as foraging, breeding, and sheltering (Anadón-Irizarry 2006, pp. 5-8).
In the past, the majority of the forested areas in Puerto Rico—EYNF, MCF, and CCF—were impacted by agricultural practices; extraction of timber for construction and charcoal (Dominguez-Cristobal 2000, pp. 370-373; Dominguez-Cristobal 2008, pp. 100-103); development of infrastructure for utilities and communications; and construction of roads, recreational facilities, and trails, negatively affecting elfin-woods warbler habitat (DNR 1976, p. 169; Waide 1995, p. 17; Delannoy 2007, p. 4; Anadón-Irizarry 2006, p. 28; Pérez-Rivera 2014, pers. comm.). Currently, each agency manages these forests for conservation purposes under its authorities and mandates to promote habitat conservation (see
Although the threats to the species and its habitat have been minimized within the lands managed and administrated by USFS and PRDNER within EYNF, MCF, and CCF, respectively, the species is still also threatened with habitat destruction, fragmentation, and degradation in 15 percent of its suitable occupied habitat within private lands adjacent to MCF. These private lands are known to be susceptible to habitat modification caused by unsustainable agricultural practices and other land uses requiring vegetation clearance (
The increase of urban development in private lands adjacent to EYNF and CCF has negatively affected elfin-woods warbler suitable habitat around these forests. Gould
In 2014, the Service developed a candidate conservation agreement (CCA) with USFS and PRDNER to promote the conservation of the elfin-woods warbler. The purpose of the CCA is to implement measures to conserve, restore, and improve the elfin-woods warbler's habitat and populations within EYNF and MCF (Service 2014, p. 6). The CCA provides that PRDNER and USFS will promote, develop, and implement the best management practices to avoid any potential threat to suitable and occupied elfin-wood warbler habitat and populations. It also provides that both agencies will implement restoration and habitat enhancement efforts within degraded areas of EYNF and MCF. The agencies will also (1) determine the habitat use, movement, and activity patterns of the species; (2) design and establish long-term population monitoring programs; and (3) develop outreach and education programs to improve mechanisms to promote habitat conservation and restoration within private lands adjacent to both forests.
Although the elfin-woods warbler also occurs on privately owned lands adjacent to MCF that are not covered by the CCA, these areas are part of a habitat restoration initiative in southwestern Puerto Rico implemented by the Service since 2010, through the Partners for Fish and Wildlife (PFW) and Coastal (CP) Programs. The PFW and CP are voluntary programs that provide technical and financial assistance to landowners to implement restoration and conservation practices on their lands for a particular amount of time. These programs promote the restoration of degraded habitat that was likely occupied by the species before the conversion to agricultural lands and that may be restored as suitable elfin-woods warbler habitat in the future. In some cases, occupied suitable habitat for the species is enhanced and protected through cooperative agreements with the private landowners.
Between 2010 and 2014, a total of 522 ha (1,290 acres) of degraded tropical upland forest and 21 km (13 miles) of riparian buffers have been restored and conserved through these programs in collaboration with the Natural Resources Conservation Service (NRCS), Farm Service Agency (FSA), PRDNER, Envirosurvey Inc. (a local nongovernmental organization), and other partners. Although this initiative promotes the restoration and enhancement of degraded habitat adjacent to the MCF and may potentially provide suitable habitat for the elfin-woods warbler, challenges such as limited resources and uncertainty about landowner participation may affect the implementation of management practices that mitigate impacts of agricultural practices.
The elfin-woods warbler's restricted distribution makes it vulnerable to habitat destruction and modification.
Based on the available information, overutilization has not been documented as a threat to the elfin-woods warbler.
Delannoy (2009, p. 2) indicated that the Puerto Rican sharp-shinned hawk (
In 1999, the Commonwealth of Puerto Rico approved Law No. 241-1999, known as the New Wildlife Law of Puerto Rico (
In addition to laws that specifically protect the elfin-woods warbler, MCF and CCF are protected under Puerto Rico's Forests Law (Law No. 133-1975;
The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712) provides protection for the elfin-woods warbler, which is defined as a migratory bird under the MBTA. The MBTA makes it unlawful to pursue; hunt; take; capture; kill; attempt to take, capture, or kill; possess; offer for sale; sell; offer to barter; barter; offer to purchase; purchase; deliver for shipment; ship; export; import; cause to be shipped, exported, or imported; deliver for transportation; transport or cause to be transported; carry or cause to be carried; or receive for shipment, transportation, carriage, or export, any migratory bird, or any part, nest, or egg of such bird, or any product, whether or not manufactured, which consists of, or is comprised in whole or part, of any such bird, or any part, nest, or egg thereof. However, no provisions in the MBTA prevent habitat destruction unless direct mortality or destruction of active nests occurs.
Finally, the elfin-woods warbler co-occurs with other species that are listed under the Act. In the EYNF, the species co-occurs with the Puerto Rican sharp-shinned hawk (
Based on the information currently available to us, the Federal and Commonwealth regulatory mechanisms are being implemented and are functioning as designed. Lack of enforcement of these laws and regulations has not been identified as having a negative impact to the species or exacerbating other negative effects to the species. Therefore, we do not find existing regulations to be inadequate.
The geographic location of islands in the Caribbean Sea makes them prone to hurricane impacts (Wiley and Wunderle 1993, p. 320). In fact, the frequency of hurricane occurrences is higher in the
The frequency of hurricane-induced damage equivalent to F3 (severe) on the Fujita scale (Fujita 1971) is at least three times greater in the northeastern quadrant of Puerto Rico, where EYNF and CCF are located, compared to the rest of the island (White
Delannoy (2007, p. 24) suggested that elfin-woods warbler populations at MCF appeared to be stable. However, studies conducted from 1989 to 2006 at EYNF documented a declining trend in the elfin-woods warbler population during the study period (Arendt
As discussed above, Anadón-Irizarry (2006, p. 54), Delannoy (2007, p. 24), and Anadón-Irizarry (2014, pers. comm.) have suggested the elfin-woods warbler no longer exists within CCF. Pérez-Rivera (2014, pers. comm.) has suggested that the habitat modification caused by Hurricane Hugo and Hurricane Georges at CCF may have had a negative effect on the elfin-woods warbler. However, he acknowledged that before concluding the species was extirpated from the forest due to these climatological events, a formal and extensive survey should be conducted to include nontraditional areas within and outside of CCF (Pérez-Rivera 2014, pers. comm.). He suggested hurricanes might be detrimental to low densities and habitat-specialized species, but at the same time might benefit insectivorous species like the elfin-woods warbler. In 1989, a month after Hurricane Hugo, Pérez-Rivera (1991, pp. 474-475) recorded the Antillean euphonia (
Hurricanes can have positive effects on forest and bird ecology by temporarily increasing forest productivity (Wiley and Wunderle 1993, p. 337), particularly for species with ample distribution (White
Studies predict an increase in hurricane intensity in the Atlantic, with higher wind speeds and greater amounts of precipitation, but a reduction in the overall number of storms (Jennings
Based on the above information, it is possible that the elfin-woods warbler could experience local extinction due to these catastrophic weather events. While the species appears to have the ability to temporarily move to undisturbed areas and survive in MCF, such dispersal ability has not been documented at EYNF. Having two geographically separate populations on both ends of Puerto Rico may benefit the elfin-woods warbler since, based on the history of hurricanes striking the island, it is unlikely for both EYNF and MCF to be impacted by the same weather system at once. However, the fact that there are only two known populations left makes the species more vulnerable to extinction if one is lost due to a catastrophic weather event. It is important to note, however, that there are no specific studies corroborating hurricanes as a main cause of elfin-woods warbler population declines at EYNF and MCF, nor that hurricanes caused the apparent extirpation of the species from CCF.
Regarding climate, general long-term changes have been observed, including changes in amount of precipitation, wind patterns, and extreme weather
As previously mentioned, the elfin-woods warbler is currently known only from specific habitat types at EYNF and MCF, which makes the species susceptible to the effects of climate change. It has been stated that higher temperatures, changes in precipitation patterns, and any alteration in cloud cover will affect plant communities and ecosystem processes in EYNF (Lasso and Ackerman 2003, pp. 101-102). In fact, the distribution of tropical forest life zones in the Caribbean is expected to be altered due to both intensified extreme weather events and progressively drier summer months (Wunderle and Arendt 2011, p. 44). At EYNF, such alteration may allow low-elevation Tabonuco forest species to colonize areas currently occupied by Palo Colorado forest (Scatena and Lugo1998, p. 196). Dwarf forests at EYNF also are very sensitive to the effects of climate change because of their occurrence in narrowly defined environmental conditions (Lasso and Ackerman 2003, p. 95). Dwarf forest epiphytes may experience moisture stress due to higher temperatures and less cloud cover with a rising cloud base, affecting epiphyte growth and flowering (Nadkarni and Solano 2002, p. 584). As previously mentioned, both the Palo Colorado and Dwarf forests have been reported to have the highest elfin-woods warbler mean abundance (Anadón-Irizarry 2006, p. 24). Although the available information predicting changes in habitat due to the effects of climate change pertains to EYNF, similar changes would be expected for the MCF and CCF, which lies within two of the same life zones as EYNF.
As indicated above, such climate changes are likely to alter the structure and distribution of the habitat used by the elfin-woods warbler. According to Arendt
Fires are not part of the natural processes for subtropical and moist forests in Puerto Rico (Santiago-Garcia
In EYNF, CCF, and adjacent lands, fires are not considered common. The tropical rain and moist forest conditions of EYNF and CCF (
In the Maricao area (
As discussed under Factor A above, the Service, USFS, and PRDNER signed a CCA in 2014, to implement strategic conservation actions. In the context of Factor E, these actions include the development and implementation of programmatic reforestation and habitat enhancement efforts within areas degraded by hurricanes to improve the recovery of the elfin-woods warbler within EYNF and MCF (Service 2014, pp. 18-19). Additionally, the CCA will help develop and design studies to gather information on the elfin-woods warbler (
Based on the information available and limited distribution of the elfin-woods warbler, we believe that this species is currently threatened by natural or manmade factors such as
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to elfin-woods warbler. Current available information indicates that the elfin-woods warbler has a limited distribution, with only two known populations occurring within EYNF and MCF, including the private lands adjacent to MCF, and at least one possibly extirpated population from CCF. As discussed in the Summary of Factors Affecting the Species section of this rule, threats to the elfin-woods warbler include loss, fragmentation, and degradation of habitat on private lands adjacent to MCF (Factor A). Some of these lands are subjected to habitat modification caused by unsustainable agricultural practices (
Other natural or manmade factors (
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that the elfin-woods warbler is not presently in danger of extinction throughout its entire range based on the low to moderate severity and non-immediacy of threats currently impacting the species. The available information indicates that elfin-woods warbler populations appear to be stable in MCF and that there are no immediate threats precipitating a demographic decline of the elfin-woods warbler in that forest. In Maricao, the species has been reported adjacent to the Commonwealth forest in shade-grown coffee plantations, demonstrating that the species may tolerate some degree of habitat disturbance. At EYNF, the most current information reported a declining trend of the elfin-woods warbler population, mainly attributed to hurricanes striking that forest. However, there are no specific studies corroborating that hurricanes are in fact the main cause of elfin-woods warbler population declines at EYNF and other factors may be influencing the decline (
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. The plan may be revised to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be made available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners.
Following publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the Commonwealth of Puerto Rico would be eligible for Federal funds to implement management actions that promote the protection or recovery of the elfin-woods warbler. Information on our grant programs that are available to aid species recovery can be found at:
Please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7 (a)(1) of the Act directs all Federal agencies to “utilize their authorities in furtherance of the purposes of the Act by carrying out programs for the conservation of” endangered and threatened species. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require consultation as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the USFS; issuance of section 404 Clean Water Act (33 U.S.C. 1251
Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened wildlife. We may also prohibit by regulation, with respect to threatened wildlife, any action prohibited by section 9(a)(1) of the Act for endangered wildlife. 50 CFR 17.31(a) applies all the general prohibitions for endangered wildlife set forth at 50 CFR 17.21 to threatened wildlife; 50 CFR 17.31(c) states that whenever a 4(d) rule applies to a threatened species, the provisions of § 17.31(a) do not apply to that species. Permit provisions for threatened species are set forth at 50 CFR 17.32.
Some activities that would normally be prohibited under 50 CFR 17.31 and 17.32 will contribute to the conservation of the elfin-woods warbler because habitats within some of the physically degraded private lands adjacent to elfin-woods warbler existing populations must be improved before they are suitable for the species. Therefore, for the elfin-woods warbler, the Service has determined that species-specific exceptions authorized under section 4(d) of the Act are necessary and advisable to promote the conservation of this species.
As discussed above in the Summary of Factors Affecting the Species section of this listing rule, threats to the species include loss, fragmentation, and degradation of habitat due to unsustainable agricultural practices and land use requiring vegetation clearance. Agricultural practices occurring on private lands adjacent to MCF, especially those involving habitat modification (
The private lands surrounding MCF are considered the most active coffee production lands in Puerto Rico. Sun-grown coffee plantations adjacent to MCF were converted several decades ago, resulting in the elimination of native forest overstory, reducing the habitat value for wildlife, including the elfin-woods warbler. Although the majority of the coffee-related agricultural lands were converted to sun-grown coffee plantations, several parcels of land surrounding MCF are currently part of a multi-agency habitat restoration initiative in southwestern Puerto Rico implemented by the Service and NRCS since 2010, through the PFW, CP, and U.S. Department of Agriculture Farm Bill Programs. Activities that improve or restore physical habitat quality, such as the conversion of sun-grown coffee to shade-grown coffee, reforestation with native trees, riparian buffering, and forested habitat enhancement (
Under this 4(d) rule, all of the prohibitions set forth at 50 CFR 17.31 and 17.32 apply to the elfin-woods warbler, except that incidental take caused by the following activities conducted within habitats currently occupied by the elfin-woods warbler on private, Commonwealth, and Federal lands would not be prohibited, provided those activities both abide by the conservation measures in the rule and are conducted in accordance with applicable Commonwealth, Federal, and local laws and regulations:
(1) The conversion of sun-grown coffee to shade-grown coffee plantations by the restoration and maintenance (
Once the shade-grown coffee system reaches its full functionality and structure (
The restoration of agricultural lands due to the planting of native trees to provide shade to coffee trees or by selective removal of exotic species creates physically stable and suitable habitats for the elfin-woods warbler. Moreover, the cultivation of shade-grown coffee has many other ecological and human-health benefits such as the reduction of soil erosion, moderation of soil temperatures, and reduced need for fertilizers and pesticides (Borkhataria
(2) Riparian buffer establishment through the planting of native vegetation and removal of exotic species may improve the habitat conditions of Gallery forests along the sub-watersheds associated with lands adjacent to the elfin-woods warbler's existing populations. Gallery forests serve as biological corridors that maintain connectivity between forested lands and associated agricultural lands, reducing the fragmentation in the landscape.
(3) Reforestation and forested habitat enhancement projects within secondary forests (
The intent of these exceptions is to provide incentive for landowners to carry out these activities in a manner which we believe will provide benefits to the species such as: (1) Maintaining connectivity of suitable elfin-woods warbler habitats, allowing for dispersal between forested and agricultural lands; (2) minimizing habitat disturbance by conducting certain activities outside the peak of the elfin-woods warbler's breeding season (
Based on the rationale above, the provisions included in this rule authorized under section 4(d) of the Act are necessary and advisable to provide for the conservation of the elfin-woods warbler. Nothing in this 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the elfin-woods warbler.
We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Under regulations governing permits for threatened wildlife species, which are codified at 50 CFR 17.32, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, economic hardship, zoological exhibition, educational purposes, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the
(1) Activities authorized, funded, or carried out by Federal or Commonwealth agencies (
(2) Agricultural and silviculture practices implemented within existing agricultural lands (
We believe the following activities may potentially result in a violation of section 9 the Act. This list is not comprehensive:
(1) Unauthorized collecting or handling of the species;
(2) Destruction/alteration/fragmentation of habitat essential to fulfilling the lifecycle of the species; and
(3) Introduction of nonnative species that compete with or prey upon the elfin-woods warbler.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Caribbean Ecological Services Field Office (see
Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed upon a determination by the Secretary that such areas are essential for the conservation of the species. Elsewhere in this issue of the
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this final rule are the staff members of the Caribbean Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(e) Elfin-woods warbler (
(2)
(i) The conversion of sun-grown coffee to shade-grown coffee plantations by the restoration and maintenance (
(ii) Riparian buffer establishment though the planting of native vegetation and selective removal of exotic species.
(iii) Reforestation and forested habitat enhancement projects within secondary forests (
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations prescribing rules under section 457 of the Internal Revenue Code for the taxation of compensation deferred under plans established and maintained by State or local governments or other tax exempt organizations. These proposed regulations include rules for determining when amounts deferred under these plans are includible in income, the amounts that are includible in income, and the types of plans that are not subject to these rules. The proposed regulations would affect participants, beneficiaries, sponsors, and administrators of certain plans sponsored by State or local governments or tax-exempt organizations that provide for a deferral of compensation. This document also provides a notice of a public hearing on the proposed regulations.
Written or electronic comments on these proposed regulations must be received by September 20, 2016. Outline of topics to be discussed at the public hearing scheduled for October 18, 2016 at 10 a.m. must be received by September 20, 2016.
Send submissions to: CC:PA:LPD:PR (REG-147196-07), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday, between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-147196-07), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224 or sent electronically, via the Federal eRulemaking Portal at
Concerning the proposed regulations under section 457, Keith Kost at (202) 317-6799 or Cheryl Press at (202) 317-4148, concerning submission of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Regina Johnson at (202) 317-6901 (not toll-free numbers).
This document contains proposed amendments to the Income Tax Regulations (26 CFR part 1) under section 457(a), (b), and (f) of the Internal Revenue Code (Code), as well as proposed regulations under section 457(e)(11), (e)(12), and (g)(4). Generally, if a deferred compensation plan of a State or local government or tax-exempt entity does not satisfy the requirements of section 457(b), (c), (d), and, in the case of a plan that is maintained by a State or local government, (g), compensation deferred under the plan will be included in income in accordance with section 457(f) unless the plan is not subject to section 457 or is treated as not providing for a deferral of compensation for purposes of section 457. Section 457(e) includes certain definitions and special rules for purposes of section 457 and describes certain plans that either are not subject to section 457 or are treated as not providing for a deferral of compensation under section 457.
Section 457(a)(1) provides that any amount of compensation deferred under an eligible deferred compensation plan as defined in section 457(b) (an eligible plan), and any income attributable to the amounts so deferred, is includible in gross income only for the taxable year in which the compensation or other income is paid to the participant or beneficiary in the case of an eligible employer described in section 457(e)(1)(A) or is paid or otherwise made available to the participant or beneficiary in the case of an eligible employer described in section 457(e)(1)(B). An eligible employer described in section 457(e)(1)(A) means a State, a political subdivision of a State, or any agency or instrumentality of a State or political subdivision of a State (a governmental entity). An eligible employer described in section 457(e)(1)(B) means any organization other than a governmental entity that is exempt from tax under subtitle A (a tax-exempt entity).
Section 457(f)(1)(A) provides that, in the case of a plan of an eligible employer providing for a deferral of compensation, if the plan is not an eligible plan, the compensation is included in gross income when the rights to payment of the compensation are not subject to a substantial risk of forfeiture, as defined in section 457(f)(3)(B).
Section 457(e)(11) provides that certain plans are treated as not providing for a deferral of
On July 11, 2003, the Treasury Department and the IRS issued final regulations under section 457 (TD 9075) (68 FR 41230) (2003 final regulations). The 2003 final regulations provide guidance on deferred compensation plans of eligible employers, including eligible plans under section 457(b). The 2003 final regulations also reflect the changes made to section 457 by the Tax Reform Act of 1986, Public Law 99-514 (100 Stat. 2494), the Small Business Job Protection Act of 1996, Public Law 104-188 (110 Stat. 1755), the Taxpayer Relief Act of 1997, Public Law 105-34 (111 Stat. 788), the Economic Growth and Tax Relief Reconciliation Act of 2001, Public Law 107-16 (115 Stat. 38), and the Job Creation and Worker Assistance Act of 2002, Public Law 107-147 (116 Stat. 21). The proposed amendments to the 2003 final regulations under section 457(a), (b), and (g) contained in this document include amendments to reflect subsequent statutory changes made to section 457. The following sections of this preamble provide a chronological description of the relevant changes made after the 2003 final regulations were issued. (For a summary of the proposed changes to the 2003 final regulations, see the Explanation of Provisions section of this preamble.)
Section 885 of the American Jobs Creation Act of 2004, Public Law 108-357 (118 Stat. 1418), added section 409A to the Code. Section 409A generally provides that, if at any time during a taxable year a nonqualified deferred compensation plan fails to meet the requirements of section 409A or is not operated in accordance with those requirements, all amounts deferred under the plan for the taxable year and all preceding taxable years are includible in gross income to the extent the amounts are not subject to a substantial risk of forfeiture and were not previously included in gross income.
On April 17, 2007, the Treasury Department and the IRS issued final regulations under section 409A (TD 9312) at 72 FR 19234 (final section 409A regulations). The final section 409A regulations provide guidance on the definition of certain terms and the types of plans covered under section 409A, permissible deferral elections under section 409A, and permissible payments under section 409A. The final section 409A regulations provide that a deferred compensation plan of a governmental entity or a tax-exempt entity that is subject to section 457(f) may constitute a nonqualified deferred compensation plan for purposes of section 409A and that the rules of section 409A apply separately and in addition to any requirements applicable to these plans under section 457(f).
On December 8, 2008, proposed regulations under section 409A were published in the
In Notice 2008-62 (2008-29 IRB 130 (July 21, 2008)), the Treasury Department and the IRS provided guidance under sections 409A and 457(f) regarding recurring part-year compensation. For this purpose, recurring part-year compensation is compensation paid for services rendered in a position that the employer and employee reasonably anticipate will continue under similar terms and conditions in subsequent years, and under which the employee will be required to provide services during successive service periods each of which comprises less than 12 months (for example, a teacher providing services during a school year comprised of 10 consecutive months) and each of which begins in one taxable year of the employee and ends in the next taxable year. Notice 2008-62 provides that an arrangement under which an employee or independent contractor receives recurring part-year compensation does not provide for the deferral of compensation for purposes of section 409A or for purposes of section 457(f) if (A) the arrangement does not defer payment of any of the recurring part-year compensation beyond the last day of the 13th month following the beginning of the service period, and (B) the arrangement does not defer from one taxable year to the next taxable year the payment of more than the applicable dollar amount under section 402(g)(1)(B) ($18,000 for 2016). The notice provides that taxpayers may rely on this rule beginning in the first taxable year that includes July 1, 2008.
The Pension Protection Act of 2006, Public Law 109-280 (120 Stat. 780) (PPA '06), permits a participant's designated beneficiary who is not a surviving spouse to roll over, in a direct trustee-to-trustee transfer, distributions from an eligible plan maintained by a governmental entity (an eligible governmental plan) to an individual retirement account or annuity (IRA). Section 829 of PPA '06 added section 402(c)(11) to the Code, which provides that this type of transfer is treated as an eligible rollover distribution for purposes of section 402(c).
Section 845(b)(3) of PPA '06 added section 457(a)(3) to the Code, which provides an exclusion from gross income for amounts that are distributed from an eligible governmental plan to the extent provided in section 402(l). Section 402(l) provides that distributions from certain governmental retirement plans are excluded from the gross income of an eligible retired public safety officer to the extent the distributions do not exceed the amount paid by the retired officer for qualified health insurance premiums for the year, up to a maximum of $3,000. See Notice 2007-7, part IV (2007-1 CB 395 (January 29, 2007)), as well as Notice 2007-99 (2007-2 CB 1243 (December 26, 2007)), for guidance on the application of section 402(l).
Section 1104(a)(1) of PPA '06 added section 457(e)(11)(D) to the Code, which treats applicable voluntary early retirement incentive plans as bona fide severance pay plans that do not provide for a deferral of compensation under section 457 with respect to payments or supplements that are an early retirement benefit, a retirement-type subsidy, or a social security supplement in coordination with a defined benefit pension plan. This treatment applies only to the extent the payments otherwise could have been provided under the defined benefit plan (determined as if section 411 applied to the defined benefit plan). Under section 457(e)(11)(D)(ii), an applicable
Section 1104(b)(1) of PPA '06 added section 457(f)(2)(F) to the Code, which provides that section 457(f)(1) does not apply to an applicable employment retention plan. Under section 457(f)(4), an applicable employment retention plan is a plan maintained by a local educational agency or a tax-exempt education association to pay additional compensation upon severance from employment for purposes of employee retention or rewarding employees to the extent that the benefits payable under the plan do not exceed twice the applicable annual dollar limit on deferrals in section 457(e)(15).
Section 104(c) of the Heroes Earnings Assistance and Relief Tax Act of 2008, Public Law 110-245 (122 Stat. 1624) (HEART Act), amended section 457 to add section 457(g)(4) regarding benefits payable upon death during qualified active military service under the Uniformed Services Employment and Reemployment Rights Act of 1994, Public Law 103-353 (108 Stat. 3149). Section 457(g)(4) provides that an eligible governmental plan must meet the requirements of section 401(a)(37). Under section 401(a)(37), a plan is not treated as a qualified retirement plan unless the plan provides that, in the case of a participant who dies while performing qualified military service, the survivors of the participant are generally entitled to any additional benefits that would have been provided under the plan if the participant had resumed and then terminated employment on account of death. Section 105(b) of the HEART Act added section 414(u)(12) to the Code, which provides rules regarding (A) the treatment of differential wage payments as compensation and (B) the treatment of service in the uniformed services (as described in section 3401(h)(2)(A)) as a severance from employment for purposes of plan distribution requirements, including the distribution requirements of section 457(d)(1)(A)(ii).
Section 2111 of the Small Business Jobs Act of 2010, Public Law 111-240 (124 Stat. 2504) (SBJA), amended section 402A of the Code to allow an eligible governmental plan to include a qualified Roth contribution program, effective for taxable years beginning after December 31, 2010. SBJA also amended section 402A to permit taxable in-plan rollovers to qualified Roth accounts under eligible governmental plans. Section 902 of the American Taxpayer Relief Act of 2012, Public Law 112-240 (126 Stat. 2313), expanded the types of amounts eligible for an in-plan Roth rollover. For guidance relating to in-plan rollovers to qualified Roth accounts, see Notice 2013-74 (2013-52 IRB 819 (December 23, 2013)) and Notice 2010-84 (2010-51 IRB 872 (July 19, 2010)).
These proposed regulations make certain changes to the 2003 final regulations under sections 457(a), 457(b), and 457(g) to reflect statutory changes to section 457 since the publication of those regulations. In addition, these proposed regulations provide guidance on certain issues under sections 457(e)(11) and 457(e)(12) that are not addressed in the 2003 final regulations and provide additional guidance under section 457(f). Consistent with the 2003 final regulations, although the rules under section 457 apply to plan participants and beneficiaries without regard to whether the related services are provided by an employee or independent contractor, these proposed regulations often use the terms employee and employer to describe a service provider and a service recipient, respectively, without regard to whether the service provider is an independent contractor.
Section 1.457-4 of the 2003 final regulations provides that annual deferrals to an eligible plan that satisfy certain requirements are excluded from the gross income of the participant in the year deferred or contributed and are not includable in gross income until paid to the participant, in the case of an eligible governmental plan, or until paid or otherwise made available to the participant, in the case of an eligible plan of a tax-exempt entity. These proposed regulations amend § 1.457-4(a) and (b) to reflect the change made by SBJA to allow an eligible governmental plan to include a qualified Roth contribution program, as defined in section 402A(c)(1), under which designated Roth contributions are included in income in the year of deferral. Consistent with section 402A(b)(2), these proposed regulations provide that contributions and withdrawals of a participant's designated Roth contributions must be credited and debited to a designated Roth account maintained for the participant, and that the plan must maintain a record of each participant's investment in the contract with respect to the account. In addition, the proposed regulations provide that no forfeitures may be allocated to a designated Roth account and that no contributions other than designated Roth contributions and rollover contributions described in section 402A(c)(3)(A) may be made to the account.
These proposed regulations also amend § 1.457-7(b)(1), which provides guidance regarding the circumstances under which amounts are included in income under an eligible governmental plan, to specify that qualified distributions from a designated Roth account are excluded from gross income.
The proposed regulations amend the rules for the taxation of eligible governmental plan distributions under § 1.457-7(b) to reflect the change made by PPA '06 with respect to certain amounts distributed to an eligible public safety officer. The proposed regulations provide that distributions from an eligible governmental plan meeting the requirements of section
The proposed regulations amend § 1.457-2(f) to implement the requirements of section 457(g)(4), which was added by the HEART Act and which provides that an eligible governmental plan must meet the requirements of section 401(a)(37) (providing that, in the case of a participant who dies while performing qualified military service, the survivors of the participant generally are entitled to any additional benefits that would have been provided under the plan if the participant had resumed and then terminated employment on account of death). In addition the proposed regulations amend § 1.457-6(b)(1) to provide a cross reference to the rules under section 414(u)(12)(B) (providing that leave for certain military service is treated as a severance from employment for purposes of the plan distribution restrictions that apply to eligible plans).
Section 1.457-2(k) of the 2003 final regulations defines the term plan for purposes of section 457 to include any plan, agreement, method, program, or other arrangement, including an individual employment agreement, of an eligible employer under which the payment of compensation is deferred. Section 1.457-2(k) of the 2003 regulations also identifies certain plans that are not subject to section 457 (pursuant to section 457(e)(12) and (f)(2) and statutes not incorporated into the Code) and certain plans that are treated as not providing for a deferral of compensation for purposes of section 457 (pursuant to section 457(e)(11)). These proposed regulations amend the definition of plan for purposes of section 457 to remove from § 1.457-2(k) the provisions identifying plans that are not subject to section 457 and plans that are treated as not providing for a deferral of compensation for purposes of section 457, and move the provisions regarding most of these plans to § 1.457-11 of the proposed regulations. In addition, § 1.457-11 provides additional guidance on:
• Bona fide vacation leave, sick leave, compensatory time, severance pay, disability pay, and death benefit plans, as described in section 457(e)(11)(A)(i), which are treated as not providing for a deferral of compensation for purposes of section 457; and
• plans paying solely length of service awards to bona fide volunteers (or their beneficiaries), as described in section 457(e)(11)(A)(ii), that also are treated as not providing for a deferral of compensation for purposes of section 457.
The proposed regulations also provide guidance in a new § 1.457-12 on plans described in section 457(f)(2), to which section 457(f)(1) does not apply.
The proposed regulations provide that a plan must meet certain requirements to be a bona fide severance pay plan that is treated under section 457(e)(11)(A)(i) as not providing for the deferral of compensation (and therefore not subject to section 457). First, the benefits provided under the plan must be payable only upon a participant's involuntary severance from employment or pursuant to a window program or voluntary early retirement incentive plan. Second, the amount payable under the plan with respect to a participant must not exceed two times the participant's annualized compensation based upon the annual rate of pay for services provided to the eligible employer for the calendar year preceding the calendar year in which the participant has a severance from employment (or the current calendar year if the participant had no compensation from the eligible employer in the preceding calendar year), adjusted for any increase in compensation during the year used to measure the rate of pay that was expected to continue indefinitely if the participant had not had a severance from employment. Third, pursuant to the written terms of the plan, the severance benefits must be paid no later than the last day of the second calendar year following the calendar year in which the severance from employment occurs. The rules in these proposed regulations for severance pay plans are similar to the rules for separation pay plans in § 1.409A-1(b)(9) of the final section 409A regulations.
The proposed regulations require that benefits under a bona fide severance pay plan be payable only upon an involuntary severance from employment or pursuant to a window or voluntary early retirement incentive program. For this purpose, an involuntary severance from employment is a severance from employment due to the eligible employer's independent exercise of its authority to terminate the participant's services, other than due to the participant's implicit or explicit request, if the participant is willing and able to continue to perform services. The determination of whether a severance from employment is involuntary is based on the relevant facts and circumstances. If a severance from employment is designated as an involuntary severance from employment, but the facts and circumstances indicate otherwise, the severance from employment will not be treated as involuntary for purposes of section 457.
The proposed regulations provide that an employee's voluntary severance from employment may be treated as an involuntary severance from employment for purposes of section 457 if the severance from employment is for good reason. A severance from employment is for good reason if it occurs under certain bona fide conditions that are pre-specified in writing under circumstances in which the avoidance of section 457 is not the primary purpose of the inclusion of these conditions in the plan or of the actions by the employer in connection with the satisfaction of those conditions. Notwithstanding the previous sentence, once the bona fide conditions have been established, the elimination of one or more of the conditions may result in the extension of a substantial risk of forfeiture, the recognition of which would be subject to the rules discussed in section III.E of this preamble.
To be treated as an involuntary severance from employment, a severance from employment for good reason must result from unilateral action taken by the eligible employer resulting in a material adverse change to the working relationship (such as a material reduction in the employee's
• Whether the payments upon severance from employment for good reason are in the same amount and paid at the same time as payments conditioned upon an employer-initiated severance from employment without cause; and
• whether the employee is required to give notice to the employer of the material adverse change in conditions and provide the employer with an opportunity to remedy the adverse change.
The proposed regulations also provide a safe harbor under which a plan providing for the payment of amounts upon a voluntary severance from employment under certain conditions, that are specified in writing by the time the legally binding right to the payment arises, will be treated as providing for a payment upon a severance from employment for good reason.
The proposed regulations provide that the involuntary severance from employment requirement does not apply to window programs. The proposed regulations define the term window program to mean a program established by an employer to provide separation pay in connection with an impending severance from employment. To be a window program, the program must be offered for a limited period of time (typically no longer than 12 months), and the eligible employer must make the program available to employees who have a severance from employment during that period or who have a severance from employment during that period under specified circumstances. A program is not offered for a limited period of time (and, therefore, is not a window program) if there is a pattern of repeatedly providing similar programs. Whether the recurrence of programs constitutes a pattern of repeatedly providing similar programs is based on all of the relevant facts and circumstances, including whether the benefits are on account of a specific reduction in workforce (or other operational conditions), whether there is a relationship between the separation pay and an event or condition, and whether the event or condition is temporary and discrete or is a permanent aspect of the employer's operations.
The proposed regulations also provide that the involuntary severance from employment requirement does not apply to an applicable voluntary early retirement incentive plan described in section 457(e)(11)(D)(ii). That section describes an applicable voluntary early retirement incentive plan as a bona fide severance pay plan for purposes of section 457 with respect to payments or supplements that are made as an early retirement benefit, a retirement-type subsidy, or an early retirement benefit that is greater than a normal retirement benefit, as described in section 411(a)(9), and that are paid in coordination with a defined benefit pension plan that is qualified under section 401(a) and maintained by an eligible employer that is a governmental entity or a tax-exempt education association as described in section 457(e)(11)(D)(ii)(II). Section 457(e)(11)(D) provides that these payments or supplements are treated as provided under a bona fide severance pay plan only to the extent that they otherwise could have been provided under the defined benefit plan with which the applicable voluntary early retirement incentive plan is coordinated (determined as if the rules in section 411 applied to the defined benefit plan).
Announcement 2000-1 provides transitional guidance on certain broad-based nonelective plans of State or local governments that were in existence before December 22, 1999, and were treated as bona fide severance pay plans for years before 1999. Under the announcement, an eligible employer that is a governmental entity is not required to report, including on Form W-2, “Wage and Tax Statement,” or Form 1099-R “Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc.,” amounts payable under plans that meet certain requirements until the amounts are actually or constructively received. The rules described in these proposed regulations regarding bona fide severance pay plans, as modified when these proposed regulations are finalized and become applicable, will supersede the transitional guidance in Announcement 2000-1. See section V.B of this preamble for special applicability dates for governmental plans.
The proposed regulations provide that a bona fide death benefit plan, which is treated as not providing for the deferral of compensation pursuant to section 457(e)(11)(A)(i), is a plan providing for death benefits as defined in § 31.3121(v)(2)-1(b)(4)(iv)(C) (relating to the application of the Federal Insurance Contributions Act to nonqualified deferred compensation). The proposed regulations further provide that benefits under a bona fide death benefit plan may be provided through insurance and that any lifetime benefits payable under the plan that may be includible in gross income will not be treated as including the value of any term life insurance coverage provided under the plan.
The proposed regulations provide that a bona fide disability pay plan, which is treated as not providing for the deferral of compensation pursuant to section 457(e)(11)(A)(i), is a plan that pays benefits only in the event of a participant's disability. For this purpose, the value of any taxable disability insurance coverage under the plan that is included in gross income is disregarded. These proposed regulations provide that a participant is disabled for this purpose if the participant meets any of the following three conditions:
• The participant is unable to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment that can be expected to result in death or last for a continuous period of not less than 12 months;
• the participant is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or last for a continuous period of not less than 12 months, receiving income replacement benefits for a continuous period of not less than three months under an accident or health plan covering employees of the eligible employer; or
• the participant is determined to be totally disabled by the Social Security Administration or the Railroad Retirement Board.
Under the proposed regulations, whether a sick or vacation leave plan is a bona fide sick or vacation leave plan, and therefore treated as not providing for the deferral of compensation under section 457(e)(11)(A)(i), is determined based on the facts and circumstances. A sick or vacation leave plan is generally
• Whether the amount of leave provided could reasonably be expected to be used by the employee in the normal course (and before the cessation of services);
• limits, if any, on the ability to exchange unused accumulated leave for cash or other benefits and any applicable accrual restrictions (for example, where permissible under applicable law, the use of forfeiture provisions often referred to as use-or-lose rules);
• the amount and frequency of any in-service distributions of cash or other benefits offered in exchange for accumulated and unused leave;
• whether the payment of unused sick or vacation leave is made promptly upon severance from employment (or, instead, is paid over a period of time after severance from employment); and
• whether the sick leave, vacation leave, or combined sick and vacation leave offered under the plan is broadly applicable or is available only to certain employees.
The Treasury Department and the IRS recognize that eligible employers sponsor a wide variety of sick and vacation leave plans and that additional rules on more specific arrangements or features of these plans may be beneficial. Accordingly, the proposed regulations provide that the Commissioner may issue additional rules regarding bona fide sick or vacation leave plans in revenue rulings, notices, or other guidance published in the Internal Revenue Bulletin, as the Commissioner determines to be necessary or appropriate.
Bona fide sick or vacation leave plans (and certain other plans) are treated as not providing for the deferral of compensation for purposes of section 457, and the general federal tax principles for determining the timing and amount of income inclusion, including the constructive receipt rules of section 451, apply to these plans. See §§ 1.451-1 and 1.451-2 for rules regarding constructive receipt of income.
Consistent with section 457(f)(1)(A), the proposed regulations provide that if a plan of an eligible employer provides for a deferral of compensation for the benefit of a participant or beneficiary and the plan is not an eligible plan (an ineligible plan), the compensation deferred under the plan is includible in the gross income of the participant or beneficiary under section 457(f)(1)(A) on the date (referred to in this preamble and the proposed regulations as the applicable date) that is the later of the date the participant or beneficiary obtains a legally binding right to the compensation or, if the compensation is subject to a substantial risk of forfeiture at that time, the date the substantial risk of forfeiture lapses. Generally, the amount of the compensation deferred under the plan that is includible in gross income on the applicable date is the present value, as of that date, of the amount of compensation deferred. For this purpose, the amount of compensation deferred under a plan as of an applicable date includes any earnings as of that date on amounts deferred under the plan.
Consistent with section 457(f)(1)(B), the proposed regulations provide that any earnings credited thereafter on compensation that was included in gross income under section 457(f)(1)(A) are includible in the gross income of a participant or beneficiary when paid or made available to the participant or beneficiary and are taxable under section 72. For purposes of section 72, the participant (or beneficiary) is treated as having an investment in the contract equal to the amount actually included in gross income on the applicable date.
Consistent with section 457(f)(2), the proposed regulations provide that section 457(f)(1) does not apply to a qualified plan described in section 401(a), an annuity plan or contract described in section 403, the portion of a plan that consists of a trust to which section 402(b) applies, a qualified governmental excess benefit arrangement described in section 415(m), the portion of a plan that consists of a transfer of property to which section 83 applies, or the portion of an applicable employment retention plan described in section 457(f)(4) with respect to any participant.
The proposed regulations provide general rules for determining the present value of compensation deferred under an ineligible plan. The proposed regulations also include specific rules for determining the present value of compensation deferred under ineligible plans that are account balance plans. The rules for determining present value in the proposed regulations are similar to the rules for determining present value in the proposed section 409A regulations.
The Treasury Department and the IRS expect that these regulations will be finalized after the proposed section 409A regulations are finalized and that these proposed regulations, when finalized, will adopt many provisions of § 1.409A-4 for ease of administration. Accordingly, these proposed regulations include cross references to certain provisions of § 1.409A-4 as currently proposed, including rules for determining present value under certain specific types of plans, such as reimbursement and in-kind benefit arrangements
The proposed regulations provide specific rules for calculating the present value of compensation deferred under an ineligible plan that is an account balance plan (as defined in § 31.3121(v)(2)-1(c)(1)(ii) and (iii)).
The proposed regulations also set forth rules for calculating the present value of compensation deferred under an ineligible plan that is not an account balance plan. Under the proposed regulations, the present value of an amount deferred under such a plan as of an applicable date is the value, as of that date, of the right to receive payment of the compensation in the future, taking into account the time value of money and the probability that the payment will be made. Any actuarial assumptions used to calculate the present value of the compensation deferred must be reasonable as of the applicable date, determined based on all of the relevant facts and circumstances. For this purpose, taking into account the probability that a participant might die before receiving certain benefits is a reasonable actuarial assumption only if the plan provides that the benefits will be forfeited upon death. Discounts based on the probability that payments will not be made due to the unfunded status of the plan, the risk that the eligible employer or another party may be unwilling or unable to pay, the possibility of future plan amendments or changes in law, and other similar contingencies are not permitted for purposes of determining present value under the proposed regulations.
If the present value of an amount depends on the time when a severance from employment occurs and the severance from employment has not occurred by the applicable date, then, for purposes of determining the present value of the amount, the severance from employment generally may be treated as occurring on any date on or before the fifth anniversary of the applicable date, unless, as of the applicable date, it would be unreasonable to use such an assumption. For example, if the applicable date occurs in 2017 and the employer knows on the applicable date that the severance from employment will occur in 2018, it would be unreasonable to use a date after the expected severance from employment date to determine the present value of the compensation.
Some ineligible plans may provide that all or part of the amount payable under the plan is determined by reference to one or more factors that are indeterminable on the applicable date. For example, an amount payable may be dependent on a participant's final average compensation and total years of service. These proposed regulations refer to such an amount as a formula amount. The proposed regulations provide that the determination of the present value of a formula amount under an ineligible plan must be based on reasonable, good faith assumptions with respect to any contingencies as to the amount of the payment, with the assumptions based on all the facts and circumstances existing on the applicable date. The proposed regulations also provide that, if only a portion of the compensation deferred under the plan consists of a formula amount, the amount payable with respect to that portion is determined under the rules applicable to formula amounts, and the remaining balance is determined under the rules applicable to amounts that are not formula amounts.
If the Commissioner determines that the actuarial assumptions used by an employer in determining present value are not reasonable, the proposed regulations provide that the Commissioner will determine the present value of the compensation deferred using actuarial assumptions and methods that the Commissioner determines to be reasonable based on all of the facts and circumstances.
The proposed regulations contain rules similar to the loss deduction rules in the proposed section 409A regulations. Under the rules in these proposed regulations, if a participant includes an amount of deferred compensation in income under section 457(f)(1)(A), but the compensation that is subsequently paid or made available is less than the amount included in income because the participant has forfeited or lost some or all of the compensation due to death or some other reason (for example, due to investment performance), the participant is entitled to a deduction for the taxable year in which any remaining right to the amount is permanently forfeited under the plan's terms or otherwise permanently lost. The deduction allowed for the taxable year in which the permanent forfeiture or loss occurs is equal to the amount previously included in income under section 457(f)(1)(A), less the total amount of compensation that is actually paid or made available under the plan that constitutes a return of investment
The proposed regulations include several examples illustrating the application of the present value rules to the more common types of plans providing for the deferral of compensation under section 457(f). The regulations do not illustrate the application of these valuation rules to plans that are more unusual for employees of governmental and tax-exempt entities, such as compensatory options to acquire stock or other property. The amount includible in income on the applicable date under these less common types of plans would be determined under the general rules for plans that are not account balance plans.
The proposed regulations define the term deferral of compensation for purposes of determining whether section 457(f) applies to an arrangement because it provides for a deferral of compensation. In general, a plan provides for a deferral of compensation if a participant has a legally binding right during a taxable year to compensation that, pursuant to the terms of the plan, is or may be payable in a later taxable year. However, the proposed regulations generally provide that a participant does not have a legally binding right to compensation to the extent that it may be unilaterally reduced or eliminated by the employer after the services creating the right have been performed.
Whether a plan provides for a deferral of compensation is generally based on the terms of the plan and the relevant facts and circumstances at the time that the participant obtains a legally binding right to the compensation, or, if later, when a plan is amended to convert a right that does not provide for a deferral of compensation into a right that does provide for a deferral of compensation. For example, if a plan providing retiree health care does not initially provide for a deferral of compensation but is later amended to provide the ability to receive future cash payments instead of health benefits, it may become a plan that provides for the deferral of compensation at the time of the amendment.
Under the proposed regulations, an amount of compensation deferred under a plan that provides for the deferral of compensation does not cease to be an amount subject to section 457(f) by reason of any change to the plan that would recharacterize the right to the amount as a right that does not provide for the deferral of compensation. In addition, any change under the plan that results in an exchange of an amount deferred under the plan for some other right or benefit that would otherwise be excluded from the participants' gross income does not affect the characterization of the plan as one that provides for a deferral of compensation. Thus, for example, if a plan that provides for a deferral of compensation is amended to provide health benefits instead of cash, it will retain its character as a plan that provides for a deferral of compensation.
The proposed regulations provide that a deferral of compensation does not occur with respect to any amount that would be a short-term deferral under § 1.409A-1(b)(4), substituting the definition of a substantial risk of forfeiture provided under these proposed regulations for the definition under § 1.409A-1(d). Accordingly, a deferral of compensation does not occur with respect to any payment that is not a deferred payment, provided that the participant actually or constructively receives the payment on or before the last day of the applicable 2
Because there is considerable overlap between the definition of substantial risk of forfeiture for purposes of section 457(f) and the definition of substantial risk of forfeiture for purposes of section 409A, in many cases amounts that, under this rule, are not deferred compensation subject to section 457(f) are also not deferred compensation subject to section 409A. For example, if an arrangement provides for the payment of a bonus on or before March 15 of the year following the calendar year in which the right to the bonus is no longer subject to a substantial risk of forfeiture (within the meaning of both these proposed regulations and § 1.409A-1(d)) and the bonus is paid on or before that March 15, the arrangement would not be a plan providing for a deferral of compensation to which section 457(f) (or section 409A) applies. For circumstances in which a payment under a plan made after that March 15 may still qualify as a short-term deferral for purposes of sections 409A and 457(f) (due to incorporation of the section 409A regulatory provisions into these proposed regulations under section 457(f)), see § 1.409A-1(b)(4)(ii).
After issuance of the final section 409A regulations, commenters expressed concerns about the application of section 409A to situations involving certain recurring part-year compensation. For this purpose, recurring part-year compensation is compensation paid for services rendered in a position that the employer and employee reasonably anticipate will continue under similar terms and conditions in subsequent years, and under which the employee will be required to provide services during successive service periods each of which comprises less than 12 months (for example, a teacher providing services during a school year comprised of 10 consecutive months) and each of which begins in one taxable year of the employee and ends in the next taxable year. In general, commenters asserted that section 409A should not apply to situations involving recurring part-year compensation because the amount being deferred from one taxable year to the next taxable year is typically small and because most taxpayers view that type of arrangement as a method of managing cash flow, rather than a tax-deferral opportunity.
In response to these comments, Notice 2008-62 provided that an arrangement under which an employee or independent contractor receives recurring part-year compensation does not provide for the deferral of compensation for purposes of section 409A or for purposes of section 457(f) if (i) the arrangement does not defer payment of any of the recurring part-year compensation beyond the last day of the 13th month following the beginning of the service period, and (ii) the arrangement does not defer from one taxable year to the next taxable year the
Some commenters, however, subsequently expressed concerns that Notice 2008-62 does not adequately address some teaching positions, such as those of college and university faculty members. They asserted that, depending on several variables (such as the month in which the service period begins), the dollar limitation in the notice could result in adverse tax consequences to teachers with academic year compensation as low as $80,000. Commenters further observed that some of these arrangements are nonelective and, therefore, some employees cannot opt out of a recurring part-year compensation arrangement. Some commenters also contended that the rules set forth in the notice were difficult to apply.
To simplify the rule set forth in Notice 2008-62, and recognizing that educational employers frequently structure their pay plans to include recurring part-year compensation and that the main purpose of this design is to achieve an even cash flow for employees who do not work for a portion of the year, these proposed regulations modify the recurring part-year compensation rule for purposes of section 457(f). The proposed regulations provide that a plan or arrangement under which an employee receives recurring part-year compensation that is earned over a period of service does not provide for the deferral of compensation if the plan or arrangement does not defer payment of any of the recurring part-year compensation to a date beyond the last day of the 13th month following the first day of the service period for which the recurring part-year compensation is paid, and the amount of the recurring part-year compensation (not merely the amount deferred) does not exceed the annual compensation limit under section 401(a)(17) ($265,000 for 2016) for the calendar year in which the service period commences. A conforming change is included in proposed regulations under section 409A that are also published in the Proposed Rules section of this issue of the
The proposed regulations also address the interaction of the rules under section 457(f) and section 409A. Section 409A(c) provides that nothing in section 409A is to be construed to prevent the inclusion of amounts in gross income under any other provision of chapter 1 of subtitle A of the Code (Normal taxes and surtaxes) or any other rule of law earlier than the time provided in section 409A. In addition, it provides that any amount included in gross income under section 409A is not required to be included in gross income under any other provision of chapter 1 of subtitle A or any other rule of law later than the time provided in section 409A. The proposed regulations provide that the rules under section 457(f) apply to plans separately and in addition to the requirements under section 409A.
The proposed regulations provide rules regarding the conditions that constitute a substantial risk of forfeiture for purposes of section 457(f). As discussed in section IV.A of this preamble, an amount to which an employee has a legally binding right under an ineligible plan is generally includible in gross income on the later of the date the employee obtains the legally binding right to the compensation or, if the compensation is subject to a substantial risk of forfeiture, the date the substantial risk of forfeiture lapses. The proposed regulations provide that an amount is generally subject to a substantial risk of forfeiture for this purpose only if entitlement to that amount is conditioned on the future performance of substantial services, or upon the occurrence of a condition that is related to a purpose of the compensation if the possibility of forfeiture is substantial. A special rule applies to determine whether initial deferrals of current compensation may be treated as subject to a substantial risk of forfeiture and whether a substantial risk of forfeiture can be extended. For this purpose, current compensation refers to compensation that is payable on a current basis such as salary, commissions, and certain bonuses, and does not include compensation that is deferred compensation.
Whether an amount is conditioned on the future performance of substantial services is based on all of the relevant facts and circumstances, such as whether the hours required to be performed during the relevant period are substantial in relation to the amount of compensation. A condition is related to a purpose of the compensation only if the condition relates to the employee's performance of services for the employer or to the employer's tax exempt or governmental activities, as applicable, or organizational goals. A substantial risk of forfeiture exists based on a condition related to the purpose of the compensation only if the likelihood that the forfeiture event will occur is substantial. Also, an amount is not subject to a substantial risk of forfeiture if the facts and circumstances indicate that the forfeiture condition is unlikely to be enforced. Factors considered for purposes of determining the likelihood that the forfeiture will be enforced include, but are not limited to, the past practices of the employer, the level of control or influence of the employee with respect to the organization and the individual(s) who would be responsible for enforcing the forfeiture, and the enforceability of the provisions under applicable law.
Under these proposed regulations, if a plan provides that entitlement to an amount is conditioned on an involuntary severance from employment without cause, the right is subject to a substantial risk of forfeiture if the possibility of forfeiture is substantial. For this purpose, a voluntary severance from employment that would be treated as an involuntary severance from employment under a bona fide severance pay plan for purposes of section 457(e)(11)(A)(i) (that is, a severance from employment for good reason) is also treated as an involuntary severance from employment without cause. See section III.B.2 of this preamble for a discussion of circumstances under which a severance from employment for good reason may be treated as an involuntary severance from employment for purposes of section 457(e)(11)(A)(i).
The proposed regulations provide that compensation is not considered to be subject to a substantial risk of forfeiture merely because it would be forfeited if the employee accepts a position with a competing employer unless certain conditions are satisfied. First, the right to the compensation must be expressly conditioned on the employee refraining from the performance of future services pursuant to a written agreement that is enforceable under applicable law. Second, the employer must consistently make reasonable efforts to verify compliance with all of the noncompetition agreements to which it is a party (including the noncompetition
Additional conditions apply with respect to the ability to treat initial deferrals of current compensation as being subject to a substantial risk of forfeiture. Similarly, an attempt to extend the period covered by a risk of forfeiture, often referred to as a rolling risk of forfeiture, is generally disregarded under the proposed regulations unless certain conditions are met.
Specifically, the proposed regulations permit initial deferrals of current compensation to be subject to a substantial risk of forfeiture and also allow an existing risk of forfeiture to be extended only if all of the following requirements are met. First, the present value of the amount to be paid upon the lapse of the substantial risk of forfeiture (as extended, if applicable) must be materially greater than the amount the employee otherwise would be paid in the absence of the substantial risk of forfeiture (or absence of the extension). The proposed regulations provide that an amount is materially greater for this purpose only if the present value of the amount to be paid upon the lapse of the substantial risk of forfeiture, measured as of the date the amount would have otherwise been paid (or in the case of an extension of the risk of forfeiture, the date that the substantial risk of forfeiture would have lapsed without regard to the extension), is more than 125 percent of the amount the participant otherwise would have received on that date in the absence of the new or extended substantial risk of forfeiture. (No implication is intended that this standard would also apply for purposes of § 1.409A-1(d)(1).)
Second, the initial or extended substantial risk of forfeiture must be based upon the future performance of substantial services or adherence to an agreement not to compete. It may not be based solely on the occurrence of a condition related to the purpose of the transfer (for example, a performance goal for the organization), though that type of condition may be combined with a sufficient service condition.
Third, the period for which substantial future services must be performed may not be less than two years (absent an intervening event such as death, disability, or involuntary severance from employment).
Fourth, the agreement subjecting the amount to a substantial risk of forfeiture must be made in writing before the beginning of the calendar year in which any services giving rise to the compensation are performed in the case of initial deferrals of current compensation or at least 90 days before the date on which an existing substantial risk of forfeiture would have lapsed in the absence of an extension. Special rules apply to new employees. The proposed regulations do not extend these special rules for new employees to employees who are newly eligible to participate in a plan. The Treasury Department and the IRS request comments on whether special provisions for newly eligible employees are needed in the context of arrangements subject to section 457(f), and if so whether the rules under §§ 1.409A-1(c)(2) and 1.409A-2(a)(7) would be a useful basis for similar rules under section 457(f) and how an aggregated single plan (versus multiple plans) should be defined for this purpose to ensure that the rules are not subject to manipulation.
Generally, these regulations are proposed to apply to compensation deferred under a plan for calendar years beginning after the date of publication of the Treasury decision adopting these rules as final regulations in the
These regulations are proposed to include three special applicability dates for specific provisions. First, in the case of a plan that is maintained pursuant to one or more collective bargaining agreements that have been ratified and are in effect on the date of publication of the Treasury decision adopting these rules as final regulations in the
Second, for all plans, with respect to the rules regarding recurring part-year compensation for periods before the applicability date of these regulations, taxpayers may rely on either the rules set forth in these proposed regulations or the rules set forth in Notice 2008-62.
Third, to the extent that legislation is required to amend a governmental plan, the proposed regulations would apply only to compensation deferred under the plan in calendar years beginning on or after the close of the second regular legislative session of the legislative body with the authority to amend the plan that begins after the date of publication of the Treasury decision adopting these rules as final regulations in the
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before the proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS as prescribed in this preamble under the
A public hearing has been scheduled for October 18, 2016, beginning at 10 a.m. in the Auditorium, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments by September 20, 2016 and an outline of the topics to be discussed and the amount of time to be devoted to each topic (a signed original and eight (8) copies) by September 20, 2016. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
For copies of recently issued revenue procedures, revenue rulings, notices, and other guidance published in the Internal Revenue Bulletin, please visit the IRS Web site at
The principal author of the proposed regulations is Keith R. Kost, Office of Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 457 provides rules for nonqualified deferred compensation plans established by eligible employers as defined under § 1.457-2(d). Eligible employers may establish either deferred compensation plans that are eligible plans that meet the requirements of section 457(b) and §§ 1.457-3 through 1.457-10, or deferred compensation plans that do not meet the requirements of section 457(b) and §§ 1.457-3 through 1.457-10 (and therefore are ineligible plans which are generally subject to federal income tax treatment under section 457(f) and § 1.457-12(a)). Plans described in § 1.457-11 are not subject to section 457 or are treated as not providing for a deferral of compensation for purposes of section 457 (and, accordingly, the rules under §§ 1.457-3 through 1.457-10 and § 1.457-12(a) do not apply to these plans).
The revisions read as follows:
This section sets forth the definitions that are used under §§ 1.457-1 through 1.457-12.
(f) * * * An eligible governmental plan is an eligible plan that is established and maintained by a State as defined in paragraph (l) of this section and that meets the requirements of section 401(a)(37). * * *
(i) * * * Solely for purposes of section 457 and §§ 1.457-2 through 1.457-12, the term
(k)
The revisions read as follows:
(a)
(b)
(2)
(ii)
(e) * * *
(1) * * * Thus, an excess deferral is includible in gross income when deferred or, if later, when the excess deferral first ceases to be subject to a substantial risk of forfeiture, under the rules described in § 1.457-12(e).
(b) * * *
(1) * * * An employee has a severance from employment with the eligible employer if the employee dies, retires, or otherwise has a severance from employment (including as described in section 414(u)(12)(B)) with the eligible employer.* * *
(b) * * *
(1)
(4)
(a) * * * If a plan ceases to be an eligible governmental plan, amounts subsequently deferred by participants are includible in gross income when deferred, or, if later, when the amounts deferred first cease to be subject to a substantial risk of forfeiture, under the rules described in § 1.457-12(e). * * *
(b) * * * See § 1.457-12 for rules regarding the treatment of an ineligible plan.
(a)
(b)
(1) Any plan satisfying the conditions in section 1107(c)(4) of the Tax Reform Act of 1986, Public Law 99-514 (100 Stat. 2494) (TRA '86) (relating to certain plans for State judges);
(2) Any of the following plans (to which specific transitional statutory exclusions apply):
(i) A plan of a tax-exempt entity in existence prior to January 1, 1987, if the conditions of section 1107(c)(3)(B) of the TRA '86, as amended by section 1011(e)(6) of the Technical and Miscellaneous Revenue Act of 1988, Public Law 100-647 (102 Stat. 3342) (TAMRA), are satisfied (see § 1.457-2(b)(4) for a different rule that may apply to the annual deferrals permitted under this type of plan);
(ii) A collectively bargained nonelective deferred compensation plan in effect on December 31, 1987, if the conditions of section 6064(d)(2) of TAMRA are satisfied;
(iii) Amounts deferred under plans described in section 6064(d)(3) of TAMRA (relating to amounts deferred under certain nonelective deferred compensation plans in effect before 1989); and
(iv) Any plan satisfying the conditions in section 1107(c)(4) and (5) of TRA '86 (relating to certain plans for certain individuals with respect to which the IRS issued guidance before 1977); and
(3) Any plan described in section 457(e)(12) that provides only nonelective deferred compensation attributable to services not performed as an employee (for example, a plan providing nonelective deferred compensation attributable to services performed by independent contractors). For this purpose, deferred compensation is nonelective only if all individuals, other than those who have not satisfied any applicable initial service requirement, with the same relationship to the payor are covered under the same plan with no individual variations or options under the plan.
(c)
(1) A bona fide vacation leave, sick leave, compensatory time, severance pay, disability pay, or death benefit plan, as described in section 457(e)(11)(A)(i) (see paragraph (d) of this section for the definition of a bona fide severance pay plan, paragraph (e) of this section for the definitions of a bona fide death benefit plan and a bona fide disability pay plan, and paragraph (f) of this section for the requirements for a bona fide sick or vacation leave plan); and
(2) A plan described in section 457(e)(11)(A)(ii) paying solely length of service awards that are based on service accrued after December 31,1996, to bona fide volunteers (and their beneficiaries) on account of qualified services performed by those volunteers.
(d)
(i) Except as provided in paragraph (d)(3) of this section, benefits are payable only upon involuntary severance from employment, as defined in paragraph (d)(2) of this section (see § 1.457-6(b) for the meaning of severance from employment);
(ii) The amount payable does not exceed two times the participant's annualized compensation based upon the annual rate of pay for services provided to the eligible employer for the calendar year preceding the calendar year in which the participant has a severance from employment with the eligible employer (or the current calendar year if the participant had no compensation for services provided to the eligible employer in the preceding calendar year), adjusted for any increase during the year used to measure the rate of pay that was expected to continue indefinitely if the participant had not had a severance from employment; and
(iii) The entire severance benefit must be paid to the participant no later than the last day of the second calendar year following the calendar year in which the severance from employment occurs, pursuant to a requirement contained in a written plan document.
(2)
(ii)
(B)
(C)
(
(
(
(
(
(
(
(
(
(3)
(4)
(ii)
(e)
(2)
(i) The participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or last for a continuous period of not less than 12 months;
(ii) The participant is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the eligible employer; or
(iii) The participant is determined to be totally disabled by the Social Security Administration or Railroad Retirement Board.
(f)
(2)
(a)
(2)
(3)
(4)
(5)
(b)
(2)
(3)
(ii)
(i)
(ii)
(4)
(5)
(ii)
(i)
(ii)
(i)
(ii)
(6)
(ii)
(i)
(ii)
(i)
(ii)
(7)
(c)
(ii)
(
(
(B)
(C)
(
(iii)
(iv)
(B)
(C)
(D)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(v)
(vi)
(vii)
(viii)
(ix)
(2)
(ii)
(iii)
(i)
(ii)
(i)
(ii)
(d)
(ii)
(2)
(3)
(4)
(i) The payment of expense reimbursements, medical benefits, or in-kind benefits, as described in § 1.409A-1(b)(9)(v)(A), (B), or (C);
(ii) Certain indemnification rights, liability insurance, or legal settlements, as described in § 1.409A-1(b)(10), or (11); or
(iii) Taxable educational benefits for an employee (which, for this purpose, means solely benefits consisting of educational assistance, as defined in section 127(c)(1) and the regulations thereunder, attributable to the education of an employee, and does not include any benefits provided for the education of any other person, including any spouse, child, or other family member of the employee).
(5)
(ii)
(iii)
(i)
(ii)
(iii)
(
(
(
(
(e)
(ii)
(iii)
(iv)
(A) The right to payment of the amount is expressly conditioned upon the employee refraining from the future performance of services pursuant to an enforceable written agreement.
(B) The employer makes reasonable ongoing efforts to verify compliance with noncompetition agreements (including the noncompetition agreement applicable to the employee).
(C) At the time that the enforceable written agreement becomes binding, the facts and circumstances demonstrate that the employer has a substantial and bona fide interest in preventing the employee from performing the prohibited services and that the employee has bona fide interest in, and ability to, engage in the prohibited competition. Factors taken into account for this purpose include the employer's ability to show significant adverse economic consequences that would likely result from the prohibited services; the marketability of the employee based on specialized skills, reputation, or other factors; and the employee's interest, financial need, and ability to engage in the prohibited services.
(v)
(2)
(ii)
(iii)
(iv)
(v)
(3)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(a)
(b)
(i) The date on which the last of the collective bargaining agreements terminates (determined without regard to any extension thereof after the date of publication of the Treasury decision adopting these rules as final regulations in the
(ii) The first day of the third calendar year beginning after the date of publication of the Treasury decision adopting these rules as final regulations in the
(2)
Internal Revenue Service (IRS), Treasury.
Partial withdrawal of notice of proposed rulemaking; notice of proposed rulemaking.
This document contains proposed regulations that would clarify or modify certain specific provisions of the final regulations under section 409A (TD 9321, 72 FR 19234). This document also withdraws a specific provision of the notice of proposed rulemaking (REG-148326-05) published in the
Comments and requests for a public hearing must be received by September 20, 2016.
Send submissions to: CC:PA:LPD:PR (REG-123854-12), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday, between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-123854-12), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224 or sent electronically, via the Federal Rulemaking Portal at
Concerning these proposed regulations under section 409A, Gregory Burns at (202) 927-9639, concerning submission of comments and/or requests for a hearing, Regina Johnson at (202) 317-6901 (not toll-free numbers).
Section 885 of the American Jobs Creation Act of 2004, Public Law 108-357 (118 Stat. 1418) (AJCA '04) added section 409A to the Internal Revenue Code (Code). Section 409A(a)(1)(A) generally provides that, if certain requirements are not met at any time during a taxable year, amounts deferred under a nonqualified deferred compensation plan for that year and all previous taxable years are currently includible in gross income to the extent not subject to a substantial risk of forfeiture and not previously included in gross income.
On April 17, 2007 (72 FR 19234), the Treasury Department and the IRS issued final regulations under section 409A (TD 9321), which include §§ 1.409A-1, 1.409A-2, 1.409A-3, and 1.409A-6 (the final regulations). The final regulations define certain terms used in section 409A and in the final regulations, set forth the requirements for deferral elections and for the time and form of payments under nonqualified deferred compensation plans, and address certain other issues under section 409A.
On December 8, 2008 (73 FR 74380), the Treasury Department and the IRS issued additional proposed regulations under section 409A (REG-148326-05), which include proposed § 1.409A-4 (the proposed income inclusion regulations). The proposed income inclusion regulations provide guidance regarding the calculation of amounts includible in income under section 409A(a)(1) and the additional taxes imposed by section 409A with respect to service providers participating in certain nonqualified deferred compensation plans and other arrangements that do not comply with the requirements of section 409A(a).
The Treasury Department and the IRS have concluded that certain clarifications and modifications to the final regulations and the proposed income inclusion regulations will help taxpayers comply with the requirements of section 409A. These proposed regulations address certain specific provisions of the final regulations and the proposed income inclusion regulations and are not intended to propose a general revision of, or broad changes to, the final regulations or the proposed income inclusion regulations. The narrow and specific purpose of these proposed regulations should be taken into account when submitting comments on these proposed regulations. As provided in the section of this preamble titled “Proposed Effective Dates,” taxpayers may rely upon these proposed regulations immediately.
These proposed regulations:
(1) Clarify that the rules under section 409A apply to nonqualified deferred compensation plans separately and in addition to the rules under section 457A.
(2) Modify the short-term deferral rule to permit a delay in payments to avoid violating Federal securities laws or other applicable law.
(3) Clarify that a stock right that does not otherwise provide for a deferral of compensation will not be treated as providing for a deferral of compensation solely because the amount payable under the stock right upon an involuntary separation from service for cause, or the occurrence of a condition within the service provider's control, is based on a measure that is less than fair market value.
(4) Modify the definition of the term “eligible issuer of service recipient stock” to provide that it includes a corporation (or other entity) for which a person is reasonably expected to begin, and actually begins, providing services within 12 months after the grant date of a stock right.
(5) Clarify that certain separation pay plans that do not provide for a deferral of compensation may apply to a service provider who had no compensation from the service recipient during the year preceding the year in which a separation from service occurs.
(6) Provide that a plan under which a service provider has a right to payment or reimbursement of reasonable attorneys' fees and other expenses incurred to pursue a bona fide legal claim against the service recipient with respect to the service relationship does not provide for a deferral of compensation.
(7) Modify the rules regarding recurring part-year compensation.
(8) Clarify that a stock purchase treated as a deemed asset sale under section 338 is not a sale or other disposition of assets for purposes of determining whether a service provider has a separation from service.
(9) Clarify that a service provider who ceases providing services as an employee and begins providing services as an independent contractor is treated as having a separation from service if, at the time of the change in employment status, the level of services reasonably anticipated to be provided after the change would result in a separation from service under the rules applicable to employees.
(10) Provide a rule that is generally applicable to determine when a “payment” has been made for purposes of section 409A.
(11) Modify the rules applicable to amounts payable following death.
(12) Clarify that the rules for transaction-based compensation apply to stock rights that do not provide for a deferral of compensation and statutory stock options.
(13) Provide that the addition of the death, disability, or unforeseeable emergency of a beneficiary who has become entitled to a payment due to a service provider's death as a potentially earlier or intervening payment event will not violate the prohibition on the acceleration of payments.
(14) Modify the conflict of interest exception to the prohibition on the acceleration of payments to permit the payment of all types of deferred compensation (and not only certain types of foreign earned income) to comply with bona fide foreign ethics or conflicts of interest laws.
(15) Clarify the provision permitting payments upon the termination and liquidation of a plan in connection with bankruptcy.
(16) Clarify other rules permitting payments in connection with the termination and liquidation of a plan.
(17) Provide that a plan may accelerate the time of payment to comply with Federal debt collection laws.
(18) Clarify and modify § 1.409A-4(a)(1)(ii)(B) of the proposed income inclusion regulations regarding the treatment of deferred amounts subject to a substantial risk of forfeiture for purposes of calculating the amount includible in income under section 409A(a)(1).
(19) Clarify various provisions of the final regulations to recognize that a service provider can be an entity as well as an individual.
Section 457(f) generally provides that compensation deferred under a plan of an eligible employer (as that term is defined under section 457) is included in gross income in the first taxable year in which there is no substantial risk of forfeiture of the rights to the compensation. The final regulations provide that a deferred compensation plan subject to section 457(f) may be a nonqualified deferred compensation plan for purposes of section 409A and that the rules of section 409A apply to deferred compensation plans separately and in addition to any requirements applicable to such plans under section 457(f).
Similarly, section 457A, which was enacted more than a year after publication of the final regulations, generally provides that any compensation deferred under a nonqualified deferred compensation plan of a nonqualified entity (as these terms are defined under section 457A) is includible in gross income when there is no substantial risk of forfeiture of the rights to the compensation. These proposed regulations clarify that a nonqualified deferred compensation plan under section 457A, like a deferred compensation plan under section 457(f), may be a nonqualified deferred compensation plan for purposes of section 409A and that the rules of section 409A apply to such a plan separately and in addition to any requirements applicable to the plan under section 457A.
The final regulations provide that a deferral of compensation does not occur for purposes of section 409A under a plan with respect to any payment that is not a deferred payment
The final regulations provide that a payment that otherwise qualifies as a short-term deferral, but is made after the applicable 2
Similar exceptions apply under the general time and form of payment rules of section 409A. Under § 1.409A-3(d), a payment is treated as made on the date specified under the plan if the payment is delayed due to administrative impracticability or because making the payment would jeopardize the ability of the service recipient to continue as a going concern. Under § 1.409A-2(b)(7), a payment may be delayed to a date after the payment date designated in a plan without failing to meet the requirements of section 409A(a) if the service recipient reasonably anticipates that a deduction for the payment would not be permitted under section 162(m) or if making the payment would violate Federal securities laws or other applicable law. Together, these rules generally permit payments under section 409A to be delayed due to administrative impracticability or because making the payment would jeopardize the ability of the service recipient to continue as a going concern, the payment would not be deductible under section 162(m), or making the payment would violate Federal securities laws or other applicable law.
Some commenters have suggested that the exception for payments that would
The final regulations provide that certain stock options and stock appreciation rights (collectively, stock rights) granted with respect to service recipient stock do not provide for the deferral of compensation. The term “service recipient stock” means a class of stock that, as of the date of grant, is common stock for purposes of section 305 and the regulations thereunder of a corporation that is an eligible issuer of service recipient stock. For this purpose, service recipient stock does not include any stock that is subject to a mandatory repurchase obligation (other than a right of first refusal), or a permanent put or call right, if the stock price under such right or obligation is based on a measure other than the fair market value (disregarding lapse restrictions) of the equity interest in the corporation represented by the stock.
Commenters have noted that employers often want to deter employees from engaging in behavior that could be detrimental to the employer and have customarily reduced the amount that an employee receives under a stock rights arrangement if the employee is dismissed for cause or violates a noncompetition or nondisclosure agreement. These commenters have observed that this type of reduction is generally prohibited under the definition of service recipient stock in the final regulations but have argued that neither the statutory language nor the underlying policies of section 409A should prohibit a reduction under these circumstances. The Treasury Department and the IRS agree with these conclusions. Accordingly, these proposed regulations provide that a stock price will not be treated as based on a measure other than fair market value if the amount payable upon a service provider's involuntary separation from service for cause, or the occurrence of a condition that is within the control of the service provider, such as the violation of a covenant not to compete or a covenant not to disclose certain information, is based on a measure that is less than fair market value.
Under the final regulations, the term “eligible issuer of service recipient stock” means the corporation or other entity for which the service provider provides direct services on the date of grant of the stock right and certain affiliated corporations or entities. Some commenters have asserted that this definition of “eligible issuer of service recipient stock” hinders employment negotiations because it prevents service recipients from granting stock rights to service providers before they are employed by the service recipient. In response to these comments, these proposed regulations provide that, if it is reasonably anticipated that a person will begin providing services to a corporation or other entity within 12 months after the date of grant of a stock right, and the person actually begins providing services to the corporation or other entity within 12 months after the date of grant (or, if services do not begin within that period, the stock right is forfeited), the corporation or other entity will be an eligible issuer of service recipient stock.
Under the final regulations, separation pay plans that provide for payment only upon an involuntary separation from service or pursuant to a window program do not provide for a deferral of compensation to the extent that they meet certain requirements. One of these requirements is that the separation pay generally not exceed two times the lesser of (1) the service provider's annualized compensation based upon the annual rate of pay for the service provider's taxable year preceding the service provider's taxable year in which the separation from service occurs, or (2) the limit under section 401(a)(17) for the year in which the service provider separates from service.
Some commenters have questioned whether this exception for separation pay plans is available for a service provider whose employment begins and ends during the same taxable year because the service provider was not employed by, and did not receive any compensation from, the service recipient for the taxable year preceding the taxable year in which the separation from service occurs. These proposed regulations clarify that the separation pay plan exception is available for service providers whose employment begins and ends in the same taxable year. In that circumstance, these proposed regulations provide that the service provider's annualized compensation for the taxable year in which the service provider separates from service may be used for purposes of this separation pay plan exception if the service provider had no compensation from the service recipient in the taxable year preceding the year in which the service provider separates from service.
Under the final regulations, an arrangement does not provide for a deferral of compensation to the extent that it provides for amounts to be paid as settlements or awards resolving
Commenters have requested guidance on the application of section 409A(a) to provisions commonly included in employment agreements that provide for the reimbursement of attorneys' fees in connection with employment-related disputes and have asserted that there is no reason to distinguish between arrangements that provide for payment of reasonable attorneys' fees and expenses for the types of legal claims currently specified in the final regulations and any other
After publication of the final regulations, commenters have expressed concerns about the application of section 409A to recurring part-year compensation. The final regulations define recurring part-year compensation as compensation paid for services rendered in a position that the service recipient and service provider reasonably anticipate will continue on similar terms and conditions in subsequent years, and will require services to be provided during successive service periods each of which comprises less than 12 months and each of which begins in one taxable year of the service provider and ends in the next taxable year. For example, a teacher providing services during school years comprised of 10 consecutive months would have recurring part-year compensation. See § 1.409A-2(a)(14). In general, commenters have asserted that section 409A should not apply to this situation because the amount being deferred from one taxable year to a subsequent taxable year is typically only a small amount and because most service providers who receive recurring part-year compensation (typically teachers and other educational workers) view an election to annualize this compensation as a cash flow decision, rather than a tax-deferral opportunity.
In response, the Treasury Department and the IRS issued Notice 2008-62 (2008-29 IRB 130), which provides that arrangements involving recurring part-year compensation do not provide for a deferral of compensation for purposes of section 409A or section 457(f) if: (1) The arrangement does not defer payment of any of the recurring part-year compensation beyond the last day of the 13th month following the beginning of the service period, and (2) the arrangement does not defer from one taxable year to the next taxable year the payment of more than the applicable dollar amount under section 402(g)(1)(B) in effect for the calendar year in which the service period begins ($18,000 for 2016). Notice 2008-62 also states that a conforming change is intended be made to the final regulations to reflect these rules.
Commenters have expressed concerns that Notice 2008-62 would not adequately address some teaching positions, such as college and university faculty members. They have noted that, depending on several variables (such as the calendar month in which a service provider commences service or the length of the service period), the dollar limitation in the notice may result in adverse tax consequences to service providers with annual compensation as low as $80,000. Commenters have further observed that some of these arrangements are nonelective, and therefore some service providers cannot opt out of a recurring part-year compensation arrangement. In recognition that service recipients in the field of education frequently structure their pay plans to include recurring part-year compensation and that the main purpose of this design is to provide uninterrupted cash flow for service providers who do not work for a portion of the year, these proposed regulations modify the recurring part-year compensation rule. These proposed regulations provide that a plan or arrangement under which a service provider receives recurring part-year compensation that is earned over a period of service does not provide for the deferral of compensation if the plan does not defer payment of any of the recurring part-year compensation to a date beyond the last day of the 13th month following the first day of the service period for which the recurring part-year compensation is paid, and the amount of the service provider's recurring part-year compensation (not merely the amount deferred) does not exceed the annual compensation limit under section 401(a)(17) ($265,000 for 2016) for the calendar year in which the service period commences. A conforming change is being made for purposes of section 457(f) under proposed section 457(f) regulations (REG-147196-07) that are also published in the Proposed Rules section of this issue of the
The final regulations permit the seller and an unrelated buyer in an asset purchase transaction to specify whether a person who is a service provider of the seller immediately before the transaction is treated as separating from service if the service provider provides services to the buyer after and as a result of the transaction. Commenters have asked whether this rule may be used with respect to a transaction that is treated as a deemed asset sale under section 338.
The provision of the final regulations giving buyers and sellers in asset transactions the discretion to treat employees as separating from service is based on the recognition that, while employees formally terminate employment with the seller and immediately recommence employment with the buyer in a typical asset transaction, the employees often experience no change in the type or level of services they provide. In a deemed asset sale under section 338, however, employees do not experience a termination of employment, formal or otherwise. Accordingly, the Treasury Department and the IRS have determined that it would be inconsistent with section 409A to permit the parties to a deemed asset sale to treat service providers as having separated from service upon the occurrence of the transaction. These proposed regulations affirm and make explicit that a stock purchase transaction that is treated as a deemed asset sale under section 338 is not a sale or other disposition of assets for purposes of this rule under section 409A.
The final regulations provide that an employee separates from service with an employer if the employee dies, retires, or otherwise has a termination of employment with the employer. Under the final regulations, a termination of employment generally occurs if the facts and circumstances indicate that the employer and employee reasonably anticipate that no further services would be performed after a certain date or that the level of
The final regulations also provide that if a service provider provides services both as an employee and an independent contractor of a service recipient, the service provider must separate from service both as an employee and as an independent contractor to be treated as having separated from service. The final regulations further provide that “[i]f a service provider ceases providing services as an independent contractor and begins providing services as an employee, or ceases providing services as an employee and begins providing services as an independent contractor, the service provider will not be considered to have a separation from service until the service provider has ceased providing services in both capacities.”
Some commenters have observed that the quoted sentence could be read to provide that a service provider who performs services for a service recipient as an employee, but who becomes an independent contractor for the same service recipient and whose anticipated level of services upon becoming an independent contractor are 20 percent or less than the average level of services performed during the immediately preceding 36-month period, would not have a separation from service because a complete termination of the contractual relationship with the service recipient has not occurred and, therefore, there is no separation from service as an independent contractor. Such a reading, however, would be inconsistent with the more specific rule that a service provider who is an employee separates from service if the employer and employee reasonably anticipate that the level of services to be performed after a certain date (whether as an employee or as an independent contractor) would permanently decrease to no more than 20 percent of the average level of services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period. To avoid potential confusion, these proposed regulations delete the quoted sentence from the regulations.
However, if a service provider, who performs services for a service recipient as an employee, becomes an independent contractor for the same service recipient but does not have a separation from service when he or she becomes an independent contractor (because at that time it is not reasonably anticipated that the level of services that would be provided by the service provider in the future would decrease to no more than 20 percent of the average level of services performed over the immediately preceding 36-month period), the service provider will have a separation from service in the future when the service provider has a separation from service based on the rules that apply to independent contractors.
As discussed in section II.B of this preamble entitled “Short-term Deferral Rule,” the final regulations provide that a deferral of compensation does not occur under a plan if the service provider actually or constructively receives a payment that is not a deferred payment on or before the last day of the applicable 2
These proposed regulations add a generally applicable rule to determine when a payment has been made for all provisions of the regulations under section 409A. Under these proposed regulations, a payment is made, or the payment of an amount occurs, when any taxable benefit is actually or constructively received. Consistent with the final regulations, these proposed regulations provide that a payment includes a transfer of cash, any event that results in the inclusion of an amount in income under the economic benefit doctrine, a transfer of property includible in income under section 83, a contribution to a trust described in section 402(b) at the time includible in income under section 402(b), and the transfer or creation of a beneficial interest in a section 402(b) trust at the time includible in income under section 402(b). In addition, a payment is made upon the transfer, cancellation, or reduction of an amount of deferred compensation in exchange for benefits under a welfare plan, a non-taxable fringe benefit, or any other nontaxable benefit.
The final regulations generally provide that the inclusion of an amount in income under section 457(f)(1)(A) is treated as a payment under section 409A for purposes of the short-term deferral rule under § 1.409A-1(b)(4), but is generally not treated as a payment for other purposes under section 409A. Commenters, however, have observed that this treatment of income inclusion under section 457(f)(1)(A) is inconsistent with the rules under section 409A that generally treat the inclusion of any amount in income as a payment for all purposes under section 409A. These commenters have also noted that a primary purpose of section 409A is to limit the ability of a service provider or service recipient to change the time at which deferred compensation is included in income after the time of payment is established and that the failure to treat income inclusion under section 457(f)(1)(A) as a payment would be inconsistent with this purpose. In response to these observations, these proposed regulations provide that the inclusion of an amount in income under section 457(f)(1)(A) is treated a payment for all purposes under section 409A.
Under this rule, if the plan provides for a deferral of compensation under section 409A: (1) Plan terms that specify the conditions to which the payment is subject and thus when a substantial risk of forfeiture lapses for purposes of section 457(f)(1)(A) (and, consequently, determine when an amount is includible in income) would be treated as plan terms providing for the payment of the amount includible in income, and (2) all rules under section 409A applicable to the payment of an amount would apply to the inclusion of an amount under section 457(f)(1)(A). A plan would not be a deferred compensation plan within the meaning of section 409A to the extent that the amounts payable under the plan are short-term deferrals under § 1.409A-1(b)(4). However, in certain limited circumstances, amounts includible in income under section 457(f)(1)(A) may not be short-term deferrals under § 1.409A-1(b)(4). For example, under the proposed section 457(f) regulations
The Treasury Department and the IRS request comments on whether rules similar to those applicable to amounts included in income under section 457(f) should be adopted for amounts included in income under section 457A.
These proposed regulations also clarify that a transfer of property that is substantially nonvested (as defined under § 1.83-3(b)) to satisfy an obligation under a nonqualified deferred compensation plan is not a payment for purposes of section 409A unless the recipient makes an election under section 83(b) to include in income the fair market value of the property (disregarding lapse restrictions), less any amount paid for the property. These proposed regulations also make conforming clarifications to rules under § 1.409A-1(a)(4) regarding nonqualified deferred compensation plans subject to sections 457(f) and 457A, § 1.409A-1(b)(4) regarding the short-term deferral rule, and § 1.409A-2(b)(2) regarding the separate payment rule.
The final regulations provide that an amount deferred under a nonqualified deferred compensation plan may be paid only at a specified time or upon an event set forth under the regulations. One of the permissible events upon which an amount may be paid is the service provider's death. The final regulations also provide that a payment is treated as made upon a date specified under the plan (including at the time a specified event occurs) if the payment is made on that date or on a later date within the same taxable year of the service provider or, if later, by the 15th day of the third calendar month following the date specified under the plan, provided that the service provider is not permitted, directly or indirectly, to designate the taxable year of the payment.
Some commenters have questioned whether these and other rules in the final regulations applicable to amounts payable upon the death of a service provider also apply in the case of the death of a beneficiary who has become entitled to the payment of an amount due to a service provider's death. These proposed regulations clarify that the rules applicable to amounts payable upon the death of a service provider also apply to amounts payable upon the death of a beneficiary.
Also, some commenters have indicated that the time periods for the payment of amounts following death often are not long enough to resolve certain issues related to the death (for example, confirming the death and completing probate). In view of the practical issues that often arise following a death, these proposed regulations provide that an amount payable following the death of a service provider, or following the death of a beneficiary who has become entitled to payment due to the service provider's death, that is to be paid at any time during the period beginning on the date of death and ending on December 31 of the first calendar year following the calendar year during which the death occurs is treated as timely paid if it is paid at any time during this period. A plan is not required to specify any particular date within this period as the payment date and may rely on this rule if the plan provides that an amount will be paid at some time during this period, including if the plan provides that payment will be made upon death without defining the period for payment following death in any other manner, and including if the plan provides that payment will be made on a date within this period determined in the discretion of the beneficiary. These proposed regulations further provide that a plan providing for the payment of an amount at any time during this specified period may be amended to provide for the payment of that amount (or the payment of that amount may be made without amending the plan) at any other time during this period (including a time determined in the discretion of a beneficiary) without failing to meet the requirements of the deferral election provisions of § 1.409A-2 or the permissible payment provisions of § 1.409A-3, including the prohibition on the acceleration of payments under § 1.409A-3(j). For example, a plan that provides for a payment to be made during the first calendar year beginning after the death of a service provider may be amended to provide for the payment of the amount (or the payment may be made under the plan without such amendment) at any time during the period beginning on the date of death and ending on December 31 of the first calendar year following the calendar year during which the death occurs. For additional rules concerning payments due upon a beneficiary's death, see section VI.A of this preamble.
The final regulations provide special rules for payments of transaction-based compensation. Transaction-based compensation payments are payments related to certain types of changes in control that (1) occur because a service recipient purchases its stock held by a service provider or because the service recipient or a third party purchases a stock right held by a service provider, or (2) are calculated by reference to the value of service recipient stock. Under the final regulations, transaction-based compensation may be treated as paid at a designated date or pursuant to a payment schedule that complies with the requirements of section 409A(a) if it is paid on the same schedule and under the same terms and conditions as apply to payments to shareholders generally with respect to stock of the service recipient pursuant to the change in control. Likewise, transaction-based compensation meeting these requirements will not fail to meet the requirements of the initial or subsequent deferral election rules under section 409A if it is paid not later than five years after the change in control event. These proposed regulations clarify that the special payment rules for transaction-based compensation apply to a statutory stock option or a stock right that did not otherwise provide for
Under the final regulations, a prohibited acceleration of a payment does not result from the addition of death, disability, or unforeseeable emergency as a potentially earlier alternative payment event for an amount previously deferred. However, under the final regulations, this exception applies only with respect to a service provider's death, disability, or unforeseeable emergency and does not apply with respect to the death, disability, or unforeseeable emergency of a beneficiary who has become entitled to a payment due to the service provider's death. These proposed regulations provide that this exception also applies to the payment of deferred amounts upon the death, disability, or unforeseeable emergency of a beneficiary who has become entitled to payment due to a service provider's death. These proposed regulations also clarify that a schedule of payments (including payments treated as a single payment) that has already commenced prior to a service provider's or a beneficiary's death, disability, or unforeseeable emergency may be accelerated upon the death, disability, or unforeseeable emergency.
Under the final regulations, a plan may provide for acceleration of the time or schedule of a payment, or a payment may be made under a plan, to the extent reasonably necessary to avoid the violation of a Federal, state, local, or foreign ethics or conflicts of interest law. However, with respect to a foreign ethics or conflicts of interest law, this exception applies only to foreign earned income from sources within the foreign country that promulgated the law. Commenters have suggested that this provision should not be limited to foreign earned income because the requirements of foreign ethics or conflicts of interest laws may affect both the payment of foreign and United States earned income. These proposed regulations expand the scope of this provision to permit the acceleration of any nonqualified deferred compensation if the acceleration is reasonably necessary to comply with a
Under the final regulations, a plan may provide for the acceleration of a payment made pursuant to the termination and liquidation of a plan under certain circumstances. Specifically, a plan may provide for the acceleration of a payment if the plan is terminated and liquidated within 12 months of a corporate dissolution taxed under section 331, or with the approval of a bankruptcy court pursuant to 11 U.S.C. 503(b)(1)(A) if certain other conditions are satisfied. The citation to 11 U.S.C. 503(b)(1)(A) is erroneous. These proposed regulations correct this provision by retaining the operative rule but deleting the section reference.
The final regulations also provide that a payment may be accelerated pursuant to a change in control event as described under § 1.409A-3(j)(4)(ix)(B) or in other circumstances provided certain requirements are satisfied, as described under § 1.409A-3(j)(4)(ix)(C). To terminate a plan pursuant to § 1.409A-3(j)(4)(ix)(C), the final regulations provide that the service recipient must terminate and liquidate all plans sponsored by the service recipient that would be aggregated with the terminated plan under the plan aggregation rules under § 1.409A-1(c) of the final regulations if the same service provider had deferrals of compensation under all such plans. The final regulations also provide that for three years following the date on which the service recipient took all necessary action to irrevocably terminate and liquidate the plan the service recipient cannot adopt a new plan that would be aggregated with the terminated and liquidated plan if the same service provider participated in both plans. Some commenters have asked whether these rules mean that only the plans of a particular category in which a particular service provider actually participates must be terminated if a plan in which that service provider participates is terminated.
The plan aggregation rules under § 1.409A-1(c)(2) of the final regulations identify nine different types of nonqualified deferred compensation plans—account balance plans providing for elective deferrals, account balance plans that do not provide for elective deferrals, nonaccount balance plans, separation pay plans, plans providing for in-kind benefits or reimbursements, split-dollar plans, foreign earned income plans, stock right plans, and plans that are not any of the foregoing. All plans of the same type in which the same service provider participates are treated as a single plan. The rule set forth under § 1.409A-3(j)(4)(ix)(C) that requires the termination and liquidation of all plans sponsored by the service recipient that would be aggregated with the terminated plan “if the same service provider had deferrals of compensation” under all of those plans is intended to require the termination of all plans in the same plan category sponsored by the service recipient. The reference to the “same service provider” having deferrals of compensation under all of those plans refers to participation of a hypothetical service provider in all such plans, which would be required to aggregate all of the plans under the section 409A plan aggregation rules.
The Treasury Department and the IRS have concluded that the meaning of the plan termination rule under § 1.409A-3(j)(4)(ix)(C) is not ambiguous. However, to address the questions raised by commenters, these proposed regulations further clarify that the acceleration of a payment pursuant to this rule is permitted only if the service recipient terminates and liquidates all plans of the same category that the service recipient sponsors, and not merely all plans of the same category in which a particular service provider actually participates. These proposed regulations also clarify that under this rule, for a period of three years following the termination and liquidation of a plan, the service recipient cannot adopt a new plan of the same category as the terminated and liquidated plan, regardless of which service providers participate in the plan.
The final regulations provide that the payment of an amount as a substitute for a payment of deferred compensation is generally treated as a payment of the deferred compensation. They also provide that when the payment of an amount results in an actual or potential reduction of, or current or future offset to, an amount of deferred compensation, the payment is a substitute for the deferred compensation. Further, the final regulations provide that if a service provider's right to deferred compensation is made subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by the service provider's creditors, the deferred
Stakeholders have observed that the prohibition on offsets may conflict with certain laws regarding debt collection by the Federal government (for example, 31 U.S.C. 3711,
The proposed income inclusion regulations provide that the amount includible in income for a taxable year if a nonqualified deferred compensation plan fails to meet the requirements of section 409A(a) at any time during that taxable year equals the excess of (1) the total amount deferred under the plan for that taxable year, including any payments under the plan during that taxable year, over (2) the portion of that amount, if any, that is either subject to a substantial risk of forfeiture or has been previously included in income. The proposed income inclusion regulations, however, include an anti-abuse provision under § 1.409A-4(a)(1)(ii)(B), which provides that an amount otherwise subject to a substantial risk of forfeiture for purposes of determining the amount includible in income under a plan will be treated as not subject to a substantial risk of forfeiture for these purposes if the facts and circumstances indicate that a service recipient has a pattern or practice of permitting impermissible changes in the time or form of payment with respect to nonvested deferred amounts under one or more nonqualified deferred compensation plans and either (i) an impermissible change in the time or form of payment applies to the amount or (ii) the facts and circumstances indicate that the amount would be affected by the pattern or practice.
Although these rules permit the correction of certain plan provisions that fail to comply with the requirements of section 409A(a) while amounts are nonvested without including the amounts in income or incurring an additional tax, they were not intended to allow service recipients to change time or form of payment provisions that otherwise meet the requirements of section 409A(a) in a manner that fails to comply with section 409A(a), and they were not intended to permit service recipients to create errors in nonqualified deferred compensation plans with respect to nonvested amounts with the intention of using those errors as a pretext for establishing or changing a time or form of payment in a manner that fails to comply with section 409A(a). Accordingly, these proposed regulations clarify and modify the anti-abuse rule under § 1.409A-4(a)(1)(ii)(B) of the proposed income inclusion regulations to preclude changes of this nature.
First, these proposed regulations clarify that a deferred amount that is otherwise subject to a substantial risk of forfeiture is treated as not subject to a substantial risk of forfeiture for a service provider's taxable year during which there is a change in a plan provision (including an initial deferral election provision) that is not otherwise permitted under section 409A and the final regulations and that affects the time or form of payment of the amount if there is no reasonable, good faith basis for concluding that the original provision failed to meet the requirements of section 409A(a) and that the change is necessary to bring the plan into compliance with the requirements of section 409A(a).
Second, these proposed regulations provide examples of the types of facts and circumstances that indicate whether a service recipient has a pattern or practice of permitting impermissible changes in the time or form of payment with respect to nonvested deferred amounts under one or more plans. If the service recipient has such a pattern or practice that would affect a nonvested deferred amount, that amount is treated as not subject to a substantial risk of forfeiture. The facts and circumstances include: Whether a service recipient has taken commercially reasonable measures to identify and correct substantially similar failures promptly upon discovery; whether substantially similar failures have occurred with respect to nonvested deferred amounts to a greater extent than with respect to vested deferred amounts; whether substantially similar failures occur more frequently with respect to newly adopted plans; and whether substantially similar failures appear intentional, are numerous, or repeat common past failures that have since been corrected.
Third, these proposed regulations provide that, to the extent generally applicable guidance regarding the correction of section 409A failures prescribes a particular correction method (or methods) for a type of plan failure, that correction method (or one of the permissible correction methods) must be used if a service recipient chooses to correct that type of a failure with respect to a nonvested deferred amount. In addition, these proposed regulations provide that substantially similar failures affecting nonvested deferred amounts must be corrected in substantially the same manner.
A service recipient correcting a plan failure affecting a nonvested deferred amount is not required, solely with respect to the nonvested deferred amount, to comply with any requirement under generally applicable guidance regarding the correction of section 409A failures that is unrelated to the method for correcting the failure, such as general eligibility requirements, income inclusion, additional taxes, premium interest, or information reporting by the service recipient or service provider. Accordingly, a service recipient may amend a noncompliant plan term in a manner permitted under applicable correction guidance even though the failure may not have been eligible for correction under that guidance (for example, due to applicable timing requirements). In addition, the portion of the nonvested deferred amount that is affected by the correction is not subject to income inclusion, additional taxes, or applicable premium interest under section 409A(a)(1), and neither the service recipient nor the service provider is required to notify the IRS of
Under the final regulations, the term service provider includes an individual, corporation, subchapter S corporation, partnership, personal service corporation, noncorporate entity that would be a personal service corporation if it were a corporation, qualified personal service corporation, and noncorporate entity that would be a qualified personal service corporation if it were a corporation. These proposed regulations clarify §§ 1.409A-1(b)(5)(vi)(A), 1.409A-1(b)(5)(vi)(E), 1.409A-1(b)(5)(vi)(F), and 1.409A-3(i)(5)(iii) of the final regulations to reflect that a service provider can be an entity as well as an individual. These proposed regulations also clarify § 1.409A-1(b)(3) of the final regulations to correct an erroneous reference to “service provider” that should be “service recipient.”
The provisions of these proposed regulations amending the final regulations are proposed to be applicable on or after the date on which they are published as final regulations in the
Certain provisions of these proposed amendments to the final regulations are not intended as substantive changes to the current requirements under section 409A. Accordingly, the Treasury Department and the IRS have concluded that the following positions may not properly be taken under the existing final regulations: (1) That the transfer of restricted stock for which no section 83(b) election is made or the transfer of a stock option that does not have a readily ascertainable fair market value would result in a payment under a plan; (2) that a contribution to a section 402(b) trust includible in income under section 402(b) to fund an obligation under a plan would not result in a payment under a plan; (3) that a stock purchase treated as a deemed asset sale under section 338 is a sale or other disposition of assets for purposes of determining when a service provider separates from service as a result of an asset purchase transaction; or (4) that the exception to the prohibition on acceleration of a payment upon a termination and liquidation of a plan pursuant to § 1.409A-3(j)(4)(ix)(C) applies if the service recipient terminates and liquidates only the plans of the same category in which a particular service provider participates, rather than all plans of the same category that the service recipient sponsors.
The proposed income inclusion regulations are proposed to be applicable on or after the date on which they are published as final regulations in the
The rules set forth in these proposed regulations regarding recurring part-year compensation are proposed to be applicable on and after the date on which these proposed regulations are published as final regulations in the
These proposed regulations do not affect the applicability of other guidance issued with respect to section 409A, including Notice 2008-115, except that, for the permitted reliance on the proposed income inclusion regulations, these proposed regulations withdraw § 1.409A-4(a)(1)(ii)(B) of the proposed income inclusion regulations and replace it with a new § 1.409A-4(a)(1)(ii)(B).
IRS Revenue Procedures, Revenue Rulings notices, and other guidance cited in this document are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, or by visiting the IRS Web site at
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these proposed regulations. It is hereby certified that the collection of information in these proposed regulations would not have a significant impact on a substantial number of small entities. This certification is based on the fact that these proposed regulations only provide guidance on how to satisfy existing collection of information requirements. Accordingly, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, these proposed regulations have been submitted to the Chief Counsel for
Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the
The principal author of these proposed regulations is Gregory Burns, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, under the authority of 26 U.S.C. 7805, § 1.409A-4(a)(1)(ii)(B) of the notice of proposed rulemaking (REG-148326-05) that was published in the
Accordingly, 26 CFR parts 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
The revisions and addition read as follows:
(b) * * *
(13) Recurring part-year compensation.
(q) References to a payment being made.
(r) Application of definitions and rules.
(d) * * *
(1) In general.
(2) Payments due following death.
(j) * * *
(4) * * *
(xiii) Certain offsets.
(A) De minimis offset.
(B) Compliance with Federal debt collection laws.
The revisions and additions read as follows:
(a) * * *
(4)
(b) * * *
(1) * * Except as otherwise provided in paragraphs (b)(3) through (b)(13) of this section, a plan provides for the deferral of compensation if, under the terms of the plan and the relevant facts and circumstances, the service provider has a legally binding right during a taxable year to compensation that, pursuant to the terms of the plan, is or may be payable to (or on behalf of) the service provider in a later taxable year. * * *
(3)
(4) * * *
(i) * * *
(B) A payment is treated as actually or constructively received for purposes of this paragraph (b)(4) if it is made in accordance with the rules in § 1.409A-1(q).
(ii)
(5) * * *
(iii) * * *
(A) * * * The stock price will not be treated as based on a measure other than the fair market value to the extent that the amount payable upon the service provider's involuntary separation from service for cause, or the occurrence of a condition within the service provider's control such as noncompliance with a noncompetition or nondisclosure agreement (whether or not the condition is specified at the time the stock right is granted), is based on a measure that results in a payment of less than fair market value.
(E)
(vi) * * *
(A) * * * The term
(E)
(F)
(9) * * *
(iii) * * *
(A) The separation pay (other than amounts described in paragraphs (b)(9)(iv) and (v) of this section) does not exceed two times the lesser of—
(
(
(11) * * * In addition, a plan does not provide for a deferral of compensation for purposes of this paragraph (b) to the extent it provides for a payment of reasonable attorneys' fees or other reasonable expenses incurred by the service provider to enforce any
(13)
(h) * * *
(4)
(5)
(q)
(1) a grant of an option that does not have a readily ascertainable fair market value (as defined under § 1.83-7(b));
(2) a transfer of property (including an option that has a readily ascertainable fair market value) that is substantially nonvested (as defined under § 1.83-3(b)) with respect to which the service provider does not make a valid election under section 83(b); or
(3) a contribution to a trust described in section 402(b) or a transfer or creation of a beneficial interest in a section 402(b) trust unless and until the amount is includible in income under section 402(b).
(r)
(b) * * *
(2)
The revisions and additions read as follows:
(b)
(d)
(2)
(i) * * *
(5) * * *
(iii)
(iv)
(j)
(2)
(4) * * *
(iii) * * *
(B)
(ix) * * *
(A) The service recipient's termination and liquidation of the plan within 12 months of a corporate dissolution taxed under section 331, or with the approval of a U.S. bankruptcy court, provided that the amounts deferred under the plan are included in the participants' gross incomes in the latest of the following years (or, if earlier, the taxable year in which the amount is actually or constructively received).
(
(
(
(C) The service recipient's termination and liquidation of the plan, provided that—
(
(
(
(
(
(xiii)
(B)
(B)
(i) A change (including an initial deferral election) that is not authorized under § 1.409A-1, § 1.409A-2, or § 1.409A-3 is made to a provision of the plan providing for the time or form of payment of the deferred amount, if the service recipient has not made a reasonable, good faith determination that, absent the change, the provision fails to comply with the requirements of section 409A(a).
(ii) The service recipient has engaged in a pattern or practice of permitting substantially similar failures to comply with section 409A(a) under one or more nonqualified deferred compensation plans while amounts deferred under the plans are nonvested, and the facts and circumstances indicate that the deferred amount would be affected by the pattern or practice. Whether such a pattern or practice exists will depend on the facts and circumstances, including, but not limited to, whether the service recipient has taken commercially reasonable measures to identify and correct the substantially similar failures promptly upon discovery, whether the failures have affected nonvested deferred amounts with greater frequency than vested deferred amounts, whether the failures have occurred more frequently under newly adopted plans, and whether the failures appear intentional, are numerous, or repeat one or more similar past failures that were previously identified and corrected.
(iii) The correction of a failure to comply with section 409A(a) affecting the deferred amount is not consistent with an applicable correction method (if one exists) set forth in applicable guidance issued by the Treasury Department and the IRS for correcting failures under section 409A(a), or the failure is not corrected in substantially the same manner as a substantially similar failure affecting a nonvested deferred amount under another plan sponsored by the service recipient. Solely with respect to the deferred amount, the requirements under applicable correction guidance with respect to eligibility, income inclusion, additional taxes, premium interest, and information reporting by the service recipient or service provider do not apply.
(b)
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to amend its labeling and recordkeeping regulations in 27 CFR part 24 to provide that any standard grape wine containing 7 percent or more alcohol by volume that is covered by a certificate of exemption from label approval may not be labeled with a varietal (grape type) designation, a type designation of varietal significance, a vintage date, or an appellation of origin unless the wine is labeled in compliance with the standards set forth in the appropriate sections of 27 CFR part 4 for that label information. TTB is also proposing to amend its part 4 wine labeling regulations to include a reference to the new part 24 requirement.
TTB must receive written comments on or before August 22, 2016.
Please send your comments on this document to one of the following addresses:
•
•
•
See the Public Participation section of this notice for specific instructions and requirements for submitting comments, and for information on how to request a public hearing.
You may view copies of this document and any comments TTB receives about this proposal at
Jennifer Berry, Alcohol and Tobacco Tax and Trade Bureau, Regulations and Rulings Division; telephone 202-453-1039, ext. 275.
Chapter 51 of the Internal Revenue Code of 1986, as amended (IRC), 26 U.S.C. chapter 51, sets forth excise tax collection and related provisions pertaining to, among other things, the production of wine. Subchapter F of chapter 51 sets forth provisions specific to bonded and taxpaid wine premises. Under 26 U.S.C. 5388(a), standard wines may be removed from bonded and taxpaid wine premises subject to the provisions of subchapter F and be marked, transported, and sold under their proper designation as to kind and origin, or, if there is no such designation known to the trade or consumers, then under a truthful and adequate statement of composition. Pursuant to section 5367 of the IRC (26 U.S.C. 5367), a proprietor of a bonded wine cellar or a taxpaid wine bottling house shall keep such records and file such returns, in the form and containing such information, as the Secretary of the Treasury may by regulations provide.
A proprietor of a bonded wine cellar (including a bonded winery) or a taxpaid wine bottling house will be referred to in this document as a “wine proprietor.”
In addition to the IRC marking and recordkeeping requirements, wines containing at least 7 percent alcohol by volume are subject to the labeling requirements of the Federal Alcohol Administration Act (FAA Act). Section 105(e) of the FAA Act, codified at 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act requires that these regulations, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product.
The FAA Act also generally requires a producer, blender, or wholesaler of wine, or proprietor of a bonded wine storeroom, to obtain a certificate of label approval prior to bottling wine for sale in interstate commerce. Bottlers are exempt from the labeling requirements of the FAA Act if they show to the satisfaction of the Secretary that the wine will not be sold, offered for sale, or shipped or delivered for shipment, or otherwise introduced in, interstate or foreign commerce. It should be noted that certificates of exemption from label approval are not available to importers who are removing wine in containers from customs custody for consumption. If those removals are for sale or any other commercial purpose, the importer must first obtain a certificate of label approval.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers chapter 51 of the IRC and the provisions of the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01 (dated December 10, 2013, superseding Treasury Order 120-01 (Revised), “Alcohol and Tobacco Tax and Trade Bureau,” dated January 24, 2003), to the TTB Administrator to perform the functions and duties in the administration and enforcement of these laws.
The TTB regulations implementing the provisions of chapter 51 of the IRC pertaining to the establishment and operation of wine premises are contained in 27 CFR part 24. The labeling requirements applicable to wine containers are found in 27 CFR 24.257. This section provides that proprietors must label each bottle or other container of wine prior to removal for consumption or sale. Certain mandatory information must appear on the label, including the name and address of the wine premises where bottled or packed; the brand name; the alcohol content; the kind of wine; and the net contents of the container.
The labeling requirements of part 24 apply to wines that are subject to the requirement for a certificate of label approval as well as wines that are covered by a certificate of exemption from label approval. Furthermore, some wines removed from wine premises may have less than 7 percent alcohol by volume, so they do not conform to the definition of “wine” under the FAA Act. See 27 U.S.C. 211(a)(6). These wines would not need a certificate of label approval or a certificate of exemption from label approval. Accordingly, the regulations in 27 CFR 24.257(a)(4), relating to the requirement that the wine be labeled with the kind of wine, provide different rules with regard to wines subject to label approval, wines that are exempt from the label approval requirement, and wines containing less than 7 percent alcohol by volume.
Provisions regarding the records that a proprietor must maintain to substantiate label information are contained in 27 CFR 24.314. Section 24.314 provides that a proprietor who removes bottled or packed wine with information stated on the label (such as a grape varietal designation, vintage date, or an appellation of origin) shall have complete records so that the information appearing on the label may be verified by a TTB audit. Additionally, a wine is not entitled to have information stated on the label unless the information can be readily verified by a complete and accurate record trail from the beginning source material to the removal of the wine for consumption or sale. These regulations apply to all wine labels, not just wines covered by a certificate of label approval.
Neither the labeling nor the recordkeeping regulations in part 24 prescribe the conditions under which a wine proprietor may use grape variety names as a type designation or reference vintage dates or appellations of origin on labels of wine.
The TTB regulations implementing the wine labeling provisions of the FAA Act are contained in 27 CFR part 4. Part 4 includes provisions that govern the use of one or more grape variety names as a type designation, the use of type designations of varietal significance, the use of vintage dates, and the use of appellations of origin on wine labels. An American appellation of origin may be the United States, a State, two or no more than three States which are all contiguous, a county, two or no more than three counties in the same State, or an American viticultural area (AVA). Under 27 CFR 4.50(b), any bottler or packer of wine shall be exempt from the requirements of part 4 if upon application the bottler or packer shows to the satisfaction of the appropriate TTB officer that the wine to be bottled or packed is not to be sold, offered for sale, or shipped or delivered for shipment, or otherwise introduced in interstate or foreign commerce. If TTB is satisfied that the wine will not be introduced into interstate commerce, it will issue a certificate of exemption from label approval to the bottler or packer.
Some wine industry members have contacted TTB with their concerns regarding the accuracy of label information on certain wines covered by certificates of exemption from label approval. Specifically, the wines in question are standard wines labeled with AVA names, but the wines do not appear to meet the part 4 requirements for using an AVA name. In addition, TTB also received a letter signed by members of the California, Washington, Oregon, and New York Congressional delegations expressing similar concerns and urging TTB to use its authority to enforce the standards set out in the FAA Act regulations for all wines bearing an AVA appellation, regardless of where they are sold.
With regard to AVAs, under 27 CFR 4.25(e)(3)(iv), in order for a wine to be labeled with an AVA name: (1) The AVA name must have been approved under 27 CFR part 9; (2) not less than 85 percent of the wine must be derived from grapes grown within the boundaries of the viticultural area; and (3) the wine must have been fully finished within the State, or one of the States, within which the labeled viticultural area is located (except for cellar treatments permitted by 27 CFR 4.22(c) or blending which does not result in an alteration of class and type under 27 CFR 4.22(b)). Thus, a wine labeled with the AVA name “Napa Valley” must have been fully finished in California, in addition to complying with other requirements, in order to qualify to use the name “Napa Valley” as an appellation of origin on the label.
Accordingly, a wine labeled with the appellation “Napa Valley” but also labeled with a statement that indicates that the wine is produced outside of California, such as “Produced and bottled by ABC Winery, Anytown, Illinois,” would not meet the provisions of § 4.25(e)(3)(iv) since the wine was not fully finished in California. As a result, it would not qualify for a certificate of label approval. However, if the wine will be sold only within the State of Illinois, and the bottler certifies that it will not introduce the bottled product into interstate commerce, then, in accordance with 27 U.S.C. 205(e), the wine is eligible for a certificate of exemption from label approval, which would exempt it from the provisions of part 4.
The letter from the members of Congress who contacted TTB on this issue expressed concern that the use of AVA names on wines that are covered by certificates of exemption and that do not comply with the AVA provisions contained in § 4.25(e)(3)(iv) undermines the best interests of the consumer and the decades-old system of American viticultural areas, is contrary to the purposes of the FAA Act, and should not be permitted under the IRC labeling regulations in 27 CFR part 24. The industry members asked whether § 24.314, which requires proprietors to maintain complete records verifying label information (including information that substantiates appellation of origin claims such as AVAs), provides TTB with the authority to enforce the part 4 standards for AVAs on wines covered by certificates of exemption. However, it is TTB's position that there currently are no provisions in part 24, including § 24.314, that require wine proprietors to comply with part 4 standards for labeling when the wine is covered by a certificate of exemption. In reviewing this regulation, TTB also realized that the regulation does not clearly set forth the standards to which wines will be held when evaluating whether labeling claims are adequately substantiated by records.
TTB recognizes that wines covered by a certificate of exemption are not subject to the substantive labeling requirements of the FAA Act. On the other hand, the IRC (which covers wines sold in intrastate commerce as well as wines sold in interstate commerce) clearly provides TTB with authority to issue regulations requiring truthful and accurate information on wine containers and labels regarding the identity and origin of the wine. As previously noted, section 5388(a) of the IRC requires that wines be marked, transported and sold under their “proper designation as to kind and origin, or, if there is no such designation known to the trade or consumers, then under a truthful and adequate statement of composition.” If proprietors choose to label their wines with varietal (grape type) designations, type designations of varietal significance, vintage dates, or appellations of origin, all of which are terms of art that are subject to specific rules set forth in the FAA Act regulations, then those designations may convey to both the trade and consumers the meaning that is ascribed to them in the regulations under part 4.
It should be noted that this issue is not unique to wine. TTB has adopted a similar policy with regard to the labeling of distilled spirits under the IRC regulations in part 19, which require distilled spirits labeled under a certificate of exemption from label approval to include certain labeling designations and statements in compliance with the requirements of the FAA Act labeling regulations in 27 CFR part 5. See 27 CFR 19.517.
Accordingly, TTB is proposing to revise its regulations in §§ 24.257(b) and 24.314 to apply the part 4 rules for use of varietal (grape type) designations, type designations of varietal significance, vintage dates, and appellations of origin on wine labels to standard grape wine that is at least 7 percent alcohol by volume, where that wine is covered by a certificate of exemption from label approval. This amendment would ensure that the rules for the use of those designations of the origin or kind of a wine under section 5388(a) of the IRC are consistent with the existing rules for the use of those designations under the FAA Act.
TTB is proposing to apply this requirement only to standard grape wines that contain at least 7 percent or more alcohol by volume because the labeling of wines that contain less than 7 percent alcohol by volume is not subject to the provisions of the FAA Act. While wines under 7 percent alcohol by volume are subject to the IRC labeling requirements of part 24, as well as the health warning statement requirements of part 16, those products do not fall under the definition of wine under the FAA Act. Thus, those products are subject to the food labeling requirements of the regulations issued by the U.S. Food and Drug Administration. Because the part 4 regulations limit the use of varietal (grape type) designations, type designations of varietal significance, vintage dates, and AVAs to grape wines, TTB is similarly proposing that the new provisions would apply solely to standard grape wines.
TTB is not proposing in this document to extend this provision to include non-grape wines. However, TTB seeks comments and additional information on whether the amendments proposed in this document should be extended to non-grape wines, such as fruit wines or agricultural wines.
Accordingly, TTB proposes to amend § 24.257 to require that a standard grape wine that contains 7 percent or more alcohol by volume and is covered by a certificate of exemption from label approval may not be labeled with a varietal (grape type) designation, a type designation of varietal significance, a vintage date, or an appellation of origin unless the wine complies with the relevant part 4 provisions for that label information. This requirement would
Finally, TTB is also proposing to revise § 4.50(b) to incorporate a reference to the labeling requirements contained in § 24.257.
TTB also is removing the Office of Management and Budget control numbers assigned to the former Bureau of Alcohol, Tobacco and Firearms (ATF) and replacing them with the control numbers assigned currently to TTB. In § 24.257, the former control number 1512-0503, assigned to ATF, is now control number 1513-0092, assigned to TTB. In § 24.314, the former control number 1512-0298 is now control number 1513-0115. The changes to these control numbers are merely technical in nature and do not change any regulatory or recordkeeping requirement.
TTB requests comments from interested members of the public on the proposed change. Additionally, TTB welcomes comments on whether the new provisions should include non-grape wines. Finally, TTB solicits comments on how many labels would be affected by the proposed amendments, and how much time affected proprietors would need in order to revise their labels to comply with the proposed changes. Please provide specific information in support of your comments.
You may submit comments on this notice by using one of the following three methods:
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Please submit your comments by the closing date shown above in this proposed rule. Your comments must reference Notice No. 160 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments and considers all comments as originals.
In your comment, please clearly state if you are commenting for yourself or on behalf of an association, business, or other entity. If you are commenting on behalf of an entity, your comment must include the entity's name as well as your name and position title. In your comment via
You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.
All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.
TTB will post, and you may view, copies of this proposed rule and any online or mailed comments received about this proposal within Docket No. TTB-2016-0005 on the Federal e-rulemaking portal. A direct link to that docket is available on the TTB Web site at
All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including email addresses. TTB may omit voluminous attachments or material that it considers unsuitable for posting.
You may view copies of this proposed rule and any electronic or mailed comments TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street NW., Washington, DC 20005. You may also obtain copies for 20 cents per 8.5- x 11-inch page. Contact TTB's information specialist at the above address or by telephone at 202-453-2270 to schedule an appointment or to request copies of comments or other materials.
TTB certifies that this proposed regulation, if adopted, will not have a significant economic impact on a substantial number of small entities. The proposed rule, if adopted, will not impose, or otherwise cause, a significant increase in reporting, recordkeeping, or other compliance burdens on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. Pursuant to 26 U.S.C. 7805(f), TTB will submit the proposed regulations to the Chief Counsel for Advocacy of the Small Business Administration for comment on the impact of the proposed regulations on small businesses.
TTB recognizes that if the proposed rule is adopted as a final rule, some bottlers of wine may have to make revisions to labels currently covered by certificates of exemption; however, we believe that the number of affected labels will be small. TTB specifically solicits comments on the number of small producers and bottlers that may be affected by this proposed rule and the impact of this proposed rule, if adopted as a final rule, on those small businesses.
It has been determined that this proposed rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.
The two collections of information affected by this notice of proposed rulemaking have been previously
The proposed regulatory text in 27 CFR 24.257 contains an alteration to the information collection currently approved under OMB control number 1513-0092. If adopted, this revision would require changes in the labeling of certain wines currently covered by a certificate of exemption from label approval, where those wines are labeled with varietal (grape type) designations, type designations of varietal significance, vintage dates, or appellations of origin, in a manner that would not be allowed under the standards set forth in the regulations in 27 CFR part 4. However, since the labeling of wines, whether covered by certificates of exemption or by certificates of label approval, is a usual and customary business practice and would be done by proprietors with or without the TTB regulatory requirement, TTB does not believe that there would be any increase in the current burden hours associated with this information collection. We are, however, reporting an increase in the number of respondents to this collection, from 10,506 to 10,970, to reflect the current number of wine industry members regulated by TTB. We estimate the current burden associated with this information collection as follows:
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•
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The proposed regulatory text in 27 CFR 24.314 contains an alteration to the information collection currently approved under OMB control number 1513-0115. If adopted, this revision would require proprietors to keep records substantiating certain information contained on the labels of certain wines currently covered by a certificate of exemption from label approval, where those wines are labeled with varietal (grape type) designations, type designations of varietal significance, vintage dates, or appellations of origin. In particular, the records would have to substantiate that the claims would be allowed under the standards for use of such claims under the regulations in 27 CFR part 4. However, since the keeping of records substantiating the information provided on wine labels, whether covered by certificates of exemption or by certificates of label approval, is a usual and customary business practice and would be done by proprietors with or without the TTB regulatory requirement, TTB does not believe that there would be any increase in the current burden for this information collection, which is estimated as follows:
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Revisions of these two currently approved collections have been submitted to OMB for review. Comments on the revisions to OMB control number 1513-0092 and 1513-0115 should be sent to OMB by one of these two methods:
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A copy should also be sent to the Alcohol and Tobacco Tax and Trade Bureau by any of the methods previously described. Comments on the information collection should be submitted not later than August 22, 2016. Comments are specifically requested concerning:
• Whether the proposed revisions of the collections of information approved under OMB control number 1513-0115 and 1513-0092 are necessary for the proper performance of the functions of the Alcohol and Tobacco Tax and Trade Bureau, including whether the information will have practical utility;
• The accuracy of the estimated burdens associated with the proposed revisions of the collections of information;
• How to enhance the quality, utility, and clarity of the information to be collected;
• How to minimize the burden of complying with the proposed revision of the collection of information, including the application of automated collection techniques or other forms of information technology; and
• Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Jennifer Berry of the Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, drafted this document.
Administrative practice and procedure, Advertising, Customs duties and inspection, Imports, Labeling, Packaging and containers, Reporting and recordkeeping requirements, Trade practices, Wine.
Administrative practice and procedure, Claims, Electronic funds transfers, Excise taxes, Exports, Food additives, Fruit juices, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements, Research, Scientific equipment, Spices and flavorings, Surety bonds, Vinegar, Warehouses, Wine.
For the reasons discussed in the preamble, TTB proposes to amend 27 CFR, chapter I, parts 4 and 24 as set forth below:
27 U.S.C. 205, unless otherwise noted.
(b) * * * See § 24.257 of this chapter for additional labeling rules that apply to wines covered by a certificate of exemption.
5 U.S.C. 552(a); 26 U.S.C. 5001, 5008, 5041, 5042, 5044, 5061, 5062, 5121, 5122-5124, 5173, 5206, 5214, 5215, 5351, 5353, 5354, 5356, 5357, 5361, 5362, 5364-5373, 5381-5388, 5391, 5392, 5511, 5551, 5552, 5661, 5662, 5684, 6065, 6091, 6109, 6301, 6302, 6311, 6651, 6676, 7302, 7342, 7502, 7503, 7606, 7805, 7851; 31 U.S.C. 9301, 9303, 9304, 9306.
(b)
(2)
(i)
(ii)
(iii)
(iv)
(a)
(b)
(c)
United States Patent and Trademark Office, Commerce.
Notice of proposed rulemaking.
In order to assess and promote the accuracy and integrity of the trademark register, the United States Patent and Trademark Office (USPTO or Office) proposes to amend its rules concerning the examination of affidavits or declarations of continued use or excusable nonuse filed pursuant to section 8 of the Trademark Act, or affidavits or declarations of use in commerce or excusable nonuse filed pursuant to section 71 of the Trademark Act. Specifically, the USPTO proposes to require the submission of information, exhibits, affidavits or declarations, and such additional specimens of use as may be reasonably necessary for the USPTO to ensure that the register accurately reflects marks that are in use in the United States for all the goods/services identified in the registrations, unless excusable nonuse is claimed in whole or in part. A register that does not accurately reflect marks in use in the United States for the goods/services identified in registrations imposes costs and burdens on the public. The proposed rules will allow the USPTO to require additional proof of use to verify the accuracy of claims that a trademark is in use in connection with particular goods/services identified in the registration.
Comments must be received by August 22, 2016 to ensure consideration.
The USPTO prefers that comments be submitted via electronic mail message to
The comments will be available for public inspection on the USPTO's Web site at
Jennifer Chicoski, Office of the Deputy Commissioner for Trademark
This will benefit the public by facilitating the USPTO's ability to assess and promote the integrity of the trademark register by encouraging accuracy in the identification of goods/services for which use or continued use is claimed. The accuracy of the trademark register as a reflection of marks that are actually in use in the United States for the goods/services identified in the registrations listed therein serves an important purpose for the public. The public relies on the register to determine whether a chosen mark is available for use or registration. Where a party's search of the register discloses a potentially confusingly similar mark, that party may incur a variety of resulting costs and burdens, such as those associated with investigating the actual use of the disclosed mark to assess any conflict, proceedings to cancel the registration or oppose the application of the disclosed mark, civil litigation to resolve a dispute over the mark, or changing plans to avoid use of the party's chosen mark. If a registered mark is not actually in use in the United States, or is not in use in connection with all the goods/services identified in the registration, these costs and burdens may be incurred unnecessarily. An accurate and reliable trademark register helps avoid such needless costs and burdens.
The proposed rules also facilitate the cancellation of registrations for marks that were never in use or are no longer in use, and for which acceptable claims of excusable nonuse were not submitted, in connection with the identified goods/services. The statutory requirements in sections 8 and 71 exist to enable the USPTO to clear the register of deadwood by cancelling, in whole or in part, registrations for marks that are not in use for all or some of the goods/services identified in the registration. The proposed rules further this statutory purpose.
As part of the pilot program, the selected trademark owners were required to submit proof of use of their marks for two additional goods/services per class, in addition to the one specimen per class submitted with their affidavits, and to verify use of the additional goods/services during the statutory filing period. The USPTO randomly selected the two specific goods/services for which additional proof of use was required. If the owner's response to the inquiry did not fully address the requirements, or included a request to delete the identified goods/services, the USPTO required further proof of use to verify the accuracy of the goods/services identified in the registration. If the registration owner responded by providing acceptable proof of use and satisfying any other outstanding requirements as to the underlying maintenance filing, a notice of acceptance was issued. The pilot concluded with all 500 registrations receiving either a notice of acceptance of the affidavit or declaration or a notice of cancellation of the registration.
The USPTO proposes herein a permanent program where it would conduct random audits of up to 10% of the combined total of section 8 and section 71 affidavits filed each year in which the mark is registered for more than one good or service per class. As part of the review of the selected affidavits, in addition to the one specimen of use per class currently required, owners would be required to provide additional proof of use in the nature of information, exhibits, affidavits or declarations, and specimens showing use for some of the additional goods/services listed beyond that shown in the one specimen per class.
The USPTO anticipates issuing an Office action that would specify the goods/services that will require the submission of the additional information, exhibits, affidavits or declarations, and specimens. The trademark owners would be afforded the usual response period to the Office action, that is, a response would be due within six months of the issuance date of the Office action, or before the end of
The purpose of the program is to substantiate claims of use and discourage inaccuracies within these maintenance filings and continued registration of marks that are no longer in use for the listed goods/services. In Fiscal Year 2015, approximately 147,496 section 8 and 5,000 section 71 affidavits were filed.
The USPTO proposes to amend 37 CFR 2.161 and 7.37 to provide that the USPTO may require such information, exhibits, affidavits or declarations, and such additional specimens of use as may be reasonably necessary for the USPTO to assess and promote the accuracy and integrity of the register. The current rules mandate the submission of only one specimen per class in connection with a section 8 or section 71 affidavit unless additional information, exhibits, affidavits or declarations, or specimens are necessary for proper examination of the affidavit itself. 37 CFR 2.161(g) and (h), 7.37(g) and (h). This revision will allow the USPTO to require additional proof of use of a mark not only to facilitate proper examination of a section 8 or section 71 affidavit, but also to verify the accuracy of claims that a trademark is in use on or in connection with the goods/services identified in the registration.
The USPTO proposes to revise § 2.161(h) to add the phrase “or for the Office to assess and promote the accuracy and integrity of the register” at the end of the paragraph.
The USPTO proposes to revise § 7.37(h) to add the phrase “or for the Office to assess and promote the accuracy and integrity of the register” at the end of the paragraph.
Accordingly, prior notice and opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law.
The USPTO publishes this Initial Regulatory Flexibility Analysis (IRFA) as required by the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Items 1-5 below discuss the five items specified in 5 U.S.C. 603(b)(1) through (5) to be addressed in an IRFA. Item 6 below discusses alternatives to this proposal that the Office considered.
The USPTO proposes to require any information, exhibits, affidavits or declarations, and such additional specimens deemed reasonably necessary to assess and promote the accuracy and integrity of the trademark register in connection with the examination of a section 8 or section 71 affidavit. Post registration affidavits under section 8 or section 71, and their accompanying specimens of use, demonstrate a registration owner's continued use of its mark in commerce for the goods/services identified in the registration. The proposed revisions will facilitate the USPTO's ability to ensure that the register accurately reflects marks that are in use in commerce that may be regulated by the U.S. Congress for the goods/services identified therein.
The objective of the proposed rulemaking is to allow the USPTO to assess and promote the integrity of the trademark register. The Trademark Act gives the Director of the USPTO discretion regarding the number of specimens to require. 15 U.S.C. 1051(a)(1), (d)(1), 1058(b)(1)(C), 1141k(b)(1)(C). The current rules mandate the submission of only one specimen per class in connection with a section 8 or section 71 affidavit unless additional information, exhibits, affidavits or declarations, or specimens are necessary for proper examination of the affidavit itself. 37 CFR 2.161(g), (h), 7.37(g), (h). However, these rules do not currently allow the Office to require additional specimens or other information or exhibits in order to verify that the mark is in use on additional goods/services listed in the registration. The proposed rules will allow the USPTO to properly examine the nature and veracity of allegations of use made in connection with the submission of a section 8 or section 71 affidavit, and thereby assess and promote the integrity of the register by verifying that the register accurately reflects the goods/
The USPTO does not collect or maintain statistics in trademark cases on small- versus large-entity registrants, and this information would be required in order to estimate the number of small entities that would be affected by the proposed rules. However, the USPTO believes that the overall impact of the proposed rules on registrants will be relatively minimal.
After registration, trademark owners must make periodic filings with the USPTO to maintain their registrations. A section 8 or section 71 affidavit is a sworn statement in which the registrant specifies the goods/services/collective membership organization for which the mark is in use in commerce and/or the goods/services/collective membership organization for which excusable nonuse is claimed. 15 U.S.C. 1058, 1141k. The purpose of the section 8 and section 71 affidavits is to facilitate the cancellation, by the Director of the USPTO, of registrations of marks no longer in use in connection with the goods/services/collective membership organization identified in the registrations. The proposed rules would apply to any entity filing a section 8 or section 71 affidavit, but only a subset of trademark owners would be required to provide more than one specimen or additional information, exhibits, or specimens in connection with the audit. The USPTO is unable to estimate the subset of trademark owners who are small entities that are impacted by the proposed rules. In Fiscal Year 2015, approximately 147,496 section 8 and 5,000 section 71 affidavits were filed.
The proposed rules impose no new recordkeeping requirements on trademark registrants.
Regarding compliance with the proposed rules, as an initial matter, the USPTO does not anticipate the proposed rules to have a disproportionate impact upon any particular class of small or large entities. Any entity that has a registered trademark in which the mark is registered for more than one good or service per class could potentially be impacted by the proposed rules.
The USPTO anticipates that it may conduct random audits of up to 10% of the combined total of section 8 and section 71 affidavits filed each year in which the mark is registered for more than one good or service per class. In those post registration cases where an initial requirement for additional information, exhibits, affidavits or declarations, and specimens is issued in an Office action, and assuming that an attorney is representing the registrant, the USPTO estimates it will take approximately one hour to comply. To that end, the USPTO provides an online electronic form for responding to Office actions.
Similar to the submission necessary for the statutorily required section 8 and section 71 affidavits, a response to an Office action issued in connection with these affidavits will generally necessitate gathering and submitting one or more specimens of use and an accompanying declaration. Therefore, under the proposed rules, the type of fact gathering and review of the nature and extent of the use of the mark that underlies a section 8 or section 71 affidavit will already have occurred. Compliance with the proposed requirement will only necessitate gathering and submitting the additional evidence to demonstrate and support what has previously been assessed.
Assuming the mark is in use, as claimed, the compliance time involves the length of time to secure additional information, exhibits, affidavits or declarations, or specimens and accompanying declaration, plus any time it takes an attorney to communicate with the client in order to obtain what is required and make the necessary filing with the USPTO. In practice, approximately one-third of section 8 and section 71 affidavits are filed pro se. These trademark owners are likely to have a shorter compliance time than the USPTO has estimated, which assumes the involvement of an attorney. The proposed rules do not mandate the use of legal counsel.
The USPTO has considered whether and how it is appropriate to reduce any burden on small businesses through increased flexibility. The following alternatives were considered, but rejected, by the USPTO.
USPTO considered an alternative where it would not require additional information, exhibits, affidavits or declarations, and specimens in connection with section 8 or section 71 affidavits, or where it would exempt small entities from such requirements. This alternative would have a lesser economic impact on small entities, but was rejected because it would not accomplish the stated objective of assessing and promoting the integrity of the trademark register by verifying that marks are in use for the goods/services identified in the registration. As noted above, the results of the post registration proof-of-use pilot supported the need for ongoing efforts aimed at assessing and promoting the accuracy and integrity of the register as to the actual use of marks in connection with the goods/services identified in the registrations. Subsequent outreach efforts revealed widespread support for continuing the pilot program on a permanent basis. Exempting small entities would prevent consideration of all section 8 and section 71 affidavits and not achieve the stated objective of assessing and promoting the accuracy and integrity of the register.
The stated objective of the proposed rules also facilitates the cancellation of registrations for marks that are no longer in use or that were never used, and for which acceptable claims of excusable nonuse were not submitted, in connection with the identified goods/services. The statutory requirements in sections 8 and 71 exist to enable the USPTO to clear the register of deadwood by cancelling, in whole or in part, registrations for marks that are not in use for all or some of the goods/services identified in the registration. The proposed rules further this statutory purpose. Exempting small entities from possible scrutiny regarding use allegations would fail to address marks not used by them, thereby not achieving the objective.
USPTO considered a second alternative that would extend the time period for compliance by small entities, however this was rejected because there appears to be no reason that meeting the requirements of the proposed rules would be more time consuming for small entities. The USPTO's standard six-month time period for responding to Office actions allows sufficient time regardless of small-entity status.
Finally, USPTO considered an alternative that would streamline or simplify the compliance mechanism for small entities, but it was deemed unnecessary given the ease of responding electronically to Office actions using the Trademark Electronic Application System Response to Post Registration Office Action form. Thus,
Use of performance rather than design standards is not applicable to the proposed rulemaking because the USPTO is not issuing any sort of standard. The proposed rules will require registrants to furnish evidence of use, rather than comply with a performance or design standard.
The proposed rules do not duplicate, overlap or conflict with any other Federal rules.
You may send comments regarding the collections of information associated with this rule, including suggestions for reducing the burden, to (1) The Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street NW., Washington, DC 20503, Attention: Nicholas A. Fraser, the Desk Officer for the United States Patent and Trademark Office; and (2) The Commissioner for Trademarks, by mail to P.O. Box 1451, Alexandria, VA 22313-1451, attention Catherine Cain; by hand delivery to the Trademark Assistance Center, Concourse Level, James Madison Building-East Wing, 600 Dulany Street, Alexandria, VA 22314, attention Catherine Cain; or by electronic mail message via the Federal eRulemaking Portal. All comments submitted directly to the USPTO or provided on the Federal eRulemaking Portal should include the docket number (PTO-T-2016-0002).
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a 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 currently valid OMB control number.
Administrative practice and procedure, Trademarks.
Administrative practice and procedure, International registration, Trademarks.
For the reasons stated in the preamble and under the authority contained in 15 U.S.C. 1123 and 35 U.S.C. 2, as amended, the USPTO proposes to amend parts 2 and 7 of title 37 as follows:
15 U.S.C. 1113, 15 U.S.C. 1123, 35 U.S.C. 2, Section 10 of Pub. L. 112-29, unless otherwise noted.
(h) The Office may require the owner to furnish such information, exhibits, affidavits or declarations, and such additional specimens as may be reasonably necessary to the proper examination of the affidavit or declaration under section 8 of the Act or for the Office to assess and promote the accuracy and integrity of the register.
15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted.
(h) The Office may require the holder to furnish such information, exhibits, affidavits or declarations, and such additional specimens as may be reasonably necessary to the proper examination of the affidavit or declaration under section 71 of the Act or for the Office to assess and promote the accuracy and integrity of the register.
Environmental Protection Agency (EPA).
Notice of filing of petitions and request for comment.
This document announces the Agency's receipt of several initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before July 22, 2016.
Submit your comments, identified by docket identification (ID) number and the pesticide petition number (PP) of interest as shown in the body of this document, by one of the following methods:
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Robert McNally, Biopesticides and Pollution Prevention Division (BPPD) (7511P), 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).
If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 174 or part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated
Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available at
As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petitions so that the public has an opportunity to comment on these requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit.
21 U.S.C. 346a.
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
This proposed rule would update the Medicaid Eligibility Quality Control (MEQC) and Payment Error Rate Measurement (PERM) programs based on the changes to Medicaid and the Children's Health Insurance Program (CHIP) eligibility under the Patient Protection and Affordable Care Act. This proposed rule would also implement various other improvements to the PERM program.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on August 22, 2016.
In commenting, please refer to file code CMS-6068-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):
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Please allow sufficient time for mailed comments to be received before the close of the comment period.
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a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address, please call (410) 786-7195 in advance to schedule your arrival with one of our staff members.
Comments 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
Bridgett Rider, (410) 786-2602.
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. EST. To schedule an appointment to view public comments, phone 1-800-743-3951.
The Medicaid Eligibility Quality Control (MEQC) program at § 431.810 through § 431.822 implements section 1903(u) of the Social Security Act (the Act) and requires states to report to the Secretary the ratio of states' erroneous excess payments for medical assistance under the state plan to total expenditures for medical assistance. Section 1903(u) of the Act sets a 3 percent threshold for eligibility-related improper payments in any fiscal year (FY) and generally requires the Secretary to withhold payments to states with respect to the amount of improper payments that exceed the threshold. The Act requires states to provide information, as specified by the Secretary, to determine whether they have exceeded this threshold.
The Payment Error Rate Measurement (PERM) program was developed to implement the requirements of the Improper Payments Information Act (IPIA) of 2002 (Pub. L. 107-300), which requires the heads of federal agencies to review all programs and activities that they administer to determine and identify any programs that are susceptible to significant erroneous payments. If programs are found to be susceptible to significant improper payments, then the agency must estimate the annual amount of erroneous payments, report those estimates to the Congress, and submit a report on actions the agency is taking to reduce improper payments. IPIA was amended by Improper Payments Elimination and Recovery Act of 2010 (IPERA) (Pub. L. 111-204) and the Improper Payments Elimination and Recovery Improvement Act of 2012 (IPERIA) (Pub. L. 112-248).
The IPIA directed OMB to provide guidance on implementation; OMB provides such guidance for IPIA, IPERA, and IPERIA in OMB circular A-123 App. C. OMB defines “significant improper payments” as annual erroneous payments in the program exceeding (1) both $10 million and 1.5 percent of program payments, or (2) $100 million regardless of percentage (OMB M-15-02, OMB Circular A-123, App. C October 20, 2014). Erroneous payments and improper payments have the same meaning under OMB guidance. For those programs found to be susceptible to significant erroneous payments, federal agencies must provide the estimated amount of improper payments and report on what actions the agency is taking to reduce those improper payments, including setting targets for future erroneous payment levels and a timeline by which the targets will be reached. Section 2(b)(1) of IPERA clarified that, when meeting IPIA and IPERA requirements, agencies must produce a statistically valid estimate, or an estimate that is otherwise appropriate using a methodology approved by the Director of the Office of Management and Budget (OMB). IPERIA further clarified requirements for agency reporting on actions to reduce improper payments and recover improper payments.
The Medicaid program and the Children's Health Insurance Program (CHIP) were identified as at risk for significant erroneous payments. As set forth in OMB Circular A-136, Financial Reporting Requirements, for IPIA reporting, the Department of Health and Human Services (DHHS) reports the estimated improper payment rates (and other required information) for both programs in its annual Agency Financial Report (AFR).
The Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA) (Pub. L. 111-3) was enacted on February 4, 2009. Sections 203 and 601 of the CHIPRA relate to the PERM program. Section 203 of the CHIPRA amended sections 1902(e)(13) and 2107(e)(1) of the Act to establish a state option for an express lane eligibility (ELE) process for determining eligibility for children and an error rate measurement for the enrollment of children under the ELE option. ELE provides states with important new avenues to expeditiously facilitate children's Medicaid or CHIP enrollment through a fast and simplified eligibility determination or renewal process by which states may rely on findings made by another program designated as an express lane agency (ELA) for eligibility factors including, but not limited to, income or household size. Section 1902(e)(13)(E) of the Act, as amended by the CHIPRA, specifically addresses error rates for ELE. States are required to conduct a separate analysis of ELE error rates, applying a 3 percent error rate threshold, and are directed not to include those children who are enrolled in the State Medicaid plan or the State CHIP plan through reliance on a finding made by an ELA in any data or samples used for purposes of complying with a MEQC review or as part of the PERM measurement. Section 203(b) of the CHIPRA directed the Secretary to conduct an independent evaluation of children who enrolled in Medicaid or CHIP plans through the ELE option to determine the percentage of children who were erroneously enrolled in such plans, the effectiveness of the option, and possible legislative or administrative recommendations to more effectively enroll children through reliance on such findings.
Section 601(a)(1) of the CHIPRA amended section 2015(c) of the Act, and provided a 90 percent federal match for CHIP spending related to PERM administration and excluded such spending from the CHIP 10 percent administrative cap. (Section 2105(c)(2) of the Act generally limits states to using no more than 10 percent of the CHIP benefit expenditures for administrative costs, outreach efforts, additional services other than the standard benefit package for low-income children, and administrative costs.)
Section 601(b) of the CHIPRA required that the Secretary issue a new PERM rule and delay any calculations of a PERM improper payment rate for CHIP
• Clearly defined criteria for errors for both states and providers.
• Clearly defined processes for appealing error determinations.
• Clearly defined responsibilities and deadlines for states in implementing any corrective action plans (CAPs).
• Requirements for state verification of an applicant's self-declaration or self-certification of eligibility for, and correct amount of, medical assistance under Medicaid or child health assistance under CHIP.
• State-specific sample sizes for application of the PERM requirements.
The Patient Protection and Affordable Care Act (Pub. L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (collectively referred to as the Affordable Care Act) was enacted in March 2010. The Affordable Care Act mandated changes to the Medicaid and CHIP eligibility processes and policies to simplify enrollment and increase the share of eligible persons that are enrolled and covered. Some of the key changes applicable to all states, regardless of a state decision to expand Medicaid coverage, include:
• Use of Modified Adjusted Gross Income (MAGI) methodologies for income determinations and household compositions for most applicants.
• Use of the single streamlined application (or approved alternative) for intake of applicant information.
• Availability of multiple application channels for consumers to submit application information, such as mail, fax, phone, or on-line.
• Use of a HHS-managed data services hub for access to federal verification sources.
• Need for account transfers and data sharing between the state- or federal-Marketplace, Medicaid, and CHIP to avoid additional work or confusion by consumers.
• Reliance on data-driven processes for 12 month renewals.
• Use of applicant self-attestation of most eligibility elements as of January 1, 2014, with reliance on electronic third-party data sources for verification, if available.
• Enhanced 90 percent federal financial participation (FFP) match for the design, development, installation, or enhancement of the state's eligibility system.
In light of the implementation of the Affordable Care Act's major changes to the Medicaid and CHIP eligibility and enrollment provisions, and our continued efforts to comply with IPERIA and the CHIPRA, an interim change in methodology was implemented for conducting Medicaid and CHIP eligibility reviews under PERM. As described in the August 15, 2013 State Health Official (SHO) letter (SHO# 13-005), instead of the PERM and MEQC eligibility review requirements, we required states to participate in the Medicaid and CHIP Eligibility Review Pilots from FY 2014 to FY 2016 to support the development of a revised PERM methodology that provides informative, actionable information to states and allows CMS to monitor program administration. A subsequent SHO letter dated October 7, 2015 (SHO# 15-004) extended the Medicaid and CHIP Eligibility Review Pilots for one additional year.
The MEQC program implements section 1903(u) of the Act, which defines erroneous excess payments as payments for ineligible persons and overpayments for eligible persons. Section 1903(u) of the Act instructs the Secretary not to make payment to a state with respect to the portion of its erroneous payments that exceed a 3 percent error rate, though the statute also permits the Secretary to waive all or part of that payment restriction if a state demonstrates that it cannot reach the 3 percent allowable error rate despite a good faith effort.
Regulations implementing the MEQC program are at 42 CFR subpart P—Quality Control. The regulations specify the sample and review procedures for the MEQC program and standards for good faith efforts to keep improper payments below the error rate threshold. From its implementation in 1978 until 1994, states were required to follow the as-promulgated MEQC regulations in what was known as the traditional MEQC program. Every month, states reviewed a random sample of Medicaid cases and verified the categorical and financial eligibility of the case members. Sample sizes had to meet minimum standards, but otherwise were at state option.
For cases in the sample found ineligible, the claims for services received in the review month were collected, and error rates were calculated by comparing the amount of such claims to the total claims for the universe of sampled claims. The state's calculated error rate was adjusted based on a federal validation subsample to arrive at a final state error rate. This final state error rate was calculated as a point estimate, without adjustment for the confidence interval resulting from the sampling methodology. States with error rates over 3 percent are subject under those regulations to a disallowance of FFP in all or part of the amount of FFP over the 3 percent error rate.
States prevailed in challenges to disallowances based on the MEQC system, at HHS's Departmental Appeals Board (DAB), HHS's final level of administrative review. The DAB concluded that the MEQC sampling protocol and the resulting error rate calculation were not sufficiently accurate to provide reliable evidence to support a disallowance based on an actual error rate that exceeded the 3 percent threshold.
Although the MEQC system remained in place, we provided states with an alternative to the MEQC program that was focused on prospective improvements in eligibility determinations rather than disallowances. These changes, outlined in Medicaid State Operations (MSO) Letter #93-58 dated July 23, 1993, provided states with the option to continue operating a traditional MEQC program or to conduct what we termed “MEQC pilots” that did not lead to the calculation of error rates. These pilots continue today. States choosing the latter pilot option have generally operated, on a year-over-year basis, year-long pilots focused on state-specific areas of interest, such as high-cost or high-risk eligibility categories and problematic eligibility determination processes. These pilots review specific program areas to determine whether problems exist and produce findings the state agency can address through corrective actions, such as policy changes or additional training.
Promulgated as a result of the IPIA and OMB guidance, a proposed rule published in the August 27, 2004
In the October 5, 2005
In the August 31, 2007
In the July 15, 2009
Section 601(e) of the CHIPRA required harmonizing the MEQC and PERM programs' eligibility review requirements to improve coordination of the two programs, decrease duplicate efforts, and minimize state burden. To comply with the CHIPRA, the final rule granted states the flexibility, in their PERM year, to apply PERM data to satisfy the annual MEQC requirements, or to apply “traditional” MEQC data to satisfy the PERM eligibility component requirements.
The final rule permitted a state to use the same data, such as the same sample, eligibility review findings, and payment review findings, for each program. However, the CHIPRA permits substituting PERM and MEQC data only where the MEQC review is conducted under section 1903(u) of the Act, so only states using the “traditional” MEQC methodology may employ this substitution option. Also, each state, with respect to each program (MEQC and PERM) is still required to develop separate error/improper payment rate calculations.
We are proposing the following changes to part 431 to address the eligibility provisions of the Affordable Care Act, as well as to make improvements to the PERM eligibility reviews.
Section 1903(u) of the Act requires the review of Medicaid eligibility to identify erroneous payments, but it does not specify the manner by which such reviews must occur. The MEQC program was originally created to implement the requirements of section 1903(u) of the Act, but the PERM program, implemented subsequent to MEQC and under other legal authority, likewise reviews Medicaid eligibility to identify erroneous payments. As noted previously, the CHIPRA required harmonizing the MEQC and PERM programs and allowed for certain data substitution options between the two programs, to coordinate consistent state implementation to meet both sets of requirements and reduce redundancies. Because states are subject to PERM reviews only once every 3 years, we propose to meet the requirements in section 1903(u) of the Act through a combination of the PERM program and a revised MEQC program that resembles the current MEQC pilots, by which the revised MEQC program would provide measures of a state's erroneous eligibility determinations in the 2 off-years between its PERM cycle.
As previously noted, states currently may satisfy our requirements by conducting either a traditional MEQC program or MEQC pilots, with the majority of states (39) electing the latter due to the pilots' flexibility to target specific problematic or high-interest areas. The revised MEQC program we propose here would eliminate the traditional MEQC program and, instead, formalize, and make mandatory, the pilot approach. During the 2 off-years between each state's PERM years, when a state is not reviewed under the PERM program, we propose that it conduct one MEQC pilot spanning that 2 year period. The revised regulations we propose here would conform the MEQC program to how the majority of states have applied the MEQC pilots through the administrative flexibility we granted states decades ago to meet the requirements of section 1903(u) of the Act. Assuming this rule is finalized as proposed, we believe such MEQC pilots will provide states with the necessary flexibility to target specific problem or high-interest areas as necessary. As a matter of semantics, note that in this proposed rule we continue to use the term “pilots,” which sometimes connote short-term studies or projects, because they are not fixed or defined projects, but, rather, as just described, states will have flexibility to adapt pilots to target particular areas.
We further propose to take a similar approach here to “freezing” error rates as we took when we initially introduced MEQC pilots 2 decades ago. In 1994, when we introduced MEQC pilots we offered states the ability to “freeze” their error rates until they resumed traditional MEQC activities. In a similar vein, we now propose to freeze a state's most recent PERM eligibility improper payment rate during the 2 off-years
We propose to revise § 431.800 to revise and clarify the MEQC program basis and scope.
We propose to delete § 431.802 as federal financial participation, state plan requirements, and the requirement for the MEQC program to meet section 1903(u) of the Act would no longer be applicable to the revised MEQC program.
We propose to revise § 431.804 by adding definitions for “corrective action,” “deficiency,” “eligibility,” “Medicaid Eligibility Quality Control (MEQC),” “MEQC Pilot,” “MEQC review period,” “negative case,” “off years,” “Payment Error Rate Measurement (PERM),” and “PERM year.”
We propose to revise the definitions for “active case,” and “eligibility error,” and remove “administrative period,” “claims processing error,” “negative case action,” and “state agency.” We are adding, revising, or removing definitions to provide additional clarification for the proposed MEQC program revisions.
We propose to revise § 431.806 to reflect the state requirements for the MEQC pilot program. Section 431.806 clarifies that following the end of a state's PERM year, it would have up to November 1 to submit its MEQC pilot planning document for our review and approval.
We propose to revise § 431.810 to clarify the basic elements and requirements of the MEQC program.
We propose to revise § 431.812 to clarify the review procedures for the MEQC program. As described earlier, the CHIPRA required harmonizing the PERM and MEQC programs and authorized us to permit states to use PERM to fulfill the requirements of section 1903(u) of the Act; the existing regulation at § 431.812(f), permitting states to substitute PERM-generated eligibility data to meet MEQC program requirements, was promulgated under the CHIPRA authority. Given that the Congress, in the CHIPRA, directed the Secretary to harmonize the PERM and MEQC programs and expressly permitted states to substitute PERM for MEQC data, we believe that the PERM program, with the proposed revisions discussed in subpart Q, meets the requirements of section 1903(u) of the Act.
Our proposed approach would continue to harmonize the PERM and MEQC programs. It would reduce the redundancies associated with meeting the requirements of two distinct programs. As noted earlier, the CHIPRA, with certain limitations, allows for substitution of MEQC data for PERM eligibility data. Through our proposed approach, in their PERM year, states would participate in the PERM program, while during the 2 off-years between a state's PERM cycles they would conduct a MEQC pilot, markedly reducing states' burden. Moreover, we are proposing to revise the methodology for PERM eligibility reviews, as discussed below in §§ 431.960 through 431.1010. The MEQC pilots would focus on areas not addressed through PERM reviews, such as negative cases and understated/overstated liability, as well as permit states to conduct focused reviews on areas identified as error-prone through the PERM program, so the proposed new cyclical PERM/MEQC rotation would yield a complementary approach to ensuring accurate eligibility determinations.
By conducting eligibility reviews of a sample of individuals who have received services matched with Title XIX or XXI funds, the PERM program would, under our proposal, continue to focus on identifying individuals receiving medical assistance under the Medicaid or CHIP programs who are, in fact, ineligible. Such PERM eligibility reviews conform with section 1903(u) of the Act's requirement that states measure erroneous payments due to ineligibility. Likewise, these eligibility reviews would continue under the MEQC pilots during states' off-years and include a review of Medicaid spend-down as a condition of eligibility, conforming with other state measurement requirements of section 1903(u) of the Act. We would calculate a state's eligibility improper payment rate during its PERM year, which would remain frozen at that level during its 2 off-years when it conducts its MEQC pilot. Again, freezing states' eligibility improper payment rates between PERM cycles would allow states time to work on effective and efficacious corrective actions which would improve their eligibility determinations. This approach also encourages states to pursue prospective improvements to their eligibility determination systems, policies, and procedures before their next PERM cycle, in which an eligibility improper payment rate would be calculated with the potential for payment reductions and disallowances to be invoked, in the event that a state's eligibility improper payment rate is above the 3 percent threshold.
For more than 2 decades, the majority of states have used the flexibility of MEQC pilots to review state-specific areas of interest, such as high-cost or high-risk eligibility categories and problematic eligibility determination processes. This flexibility has been beneficial to states because it made MEQC more useful from a corrective action standpoint.
We propose that MEQC pilots focus on cases that may not be fully addressed through the PERM review, including, but not limited to, negative cases and payment reviews of understated and overstated liability. Still, under our proposal, states would retain much of their current flexibility. In § 431.812, we propose that states must use the MEQC pilots to perform both active and negative case reviews, but states would have flexibility surrounding their active case review pilot. In the event that a state's eligibility improper payment rate is above the 3 percent threshold for two consecutive PERM cycles, we propose this flexibility would decrease as states would be required to comply with CMS guidance to tailor the active case reviews to a more appropriate MEQC pilot which would be based upon a state's PERM eligibility findings. In order to ensure states with consecutive PERM eligibility improper payment rates over the threshold, are identifying and conducting MEQC active case reviews which are appropriate during their off-years, CMS would provide direction for conducting a MEQC pilot that would suitably address the error-prone areas identified through the state's PERM review. Both the PERM and MEQC pilot programs are operationally complementary, and should be treated in a manner that allows for states to review identified issues, develop corrective actions, and effectively implement prospective
Active and negative cases represent the eligibility determinations made for individuals which either approve or deny an individual's eligibility to receive benefits and/or services under Medicaid or CHIP. Individuals who are found to be eligible and authorized to receive benefits/services are termed active cases, whereas individuals who are found to be ineligible for benefits are known as negative cases. As proposed at § 431.812(b)(3) a state may focus its active case reviews on three defined areas, unless otherwise directed by us or, as proposed at § 431.812(b)(3)(i), it may perform a comprehensive review that does not limit its review of active cases. Additionally, we propose that the MEQC pilots must include negative cases because we also propose to eliminate PERM's negative case reviews; our proposal would ensure continuing oversight over negative cases to ensure the accuracy of state determinations to deny or terminate eligibility.
Under the new MEQC pilot program, we propose that states review, a minimum total of 400 Medicaid and CHIP active cases. We propose that at least 200 of those reviews must be Medicaid cases and expect that states will include some CHIP cases, but, beyond that, we propose that states would have the flexibility to determine the precise distribution of active cases. For example, a state could sample 300 Medicaid and 100 CHIP active cases; it would describe its active sample distribution in its MEQC pilot planning document that it would submit to us for approval. Under the new MEQC pilot program, we also propose that states review, at a minimum, 200 Medicaid and 200 CHIP negative cases. Currently, under the PERM program, states are required to conduct approximately 200 negative case reviews for each the Medicaid program and CHIP (204 is the base sample size, which may be adjusted up or down from cycle to cycle depending on a state's performance). We propose a minimum total negative sample size of 400 (200 for each program) for the proposed MEQC pilots because, as mentioned above and discussed further below, we propose to eliminate PERM's negative case reviews.
Historically, MEQC's case reviews (both active and negative) focused solely on Medicaid eligibility determinations. Here, we propose that the new MEQC pilots would now include both Medicaid and CHIP eligibility case reviews. Because we propose to eliminate PERM's negative case reviews, it is important that we concomitantly expand the MEQC pilots to include the review of no less than 200 CHIP negative cases to ensure that CHIP applicants are not inappropriately denied or terminated from a state's program. In the event that CHIP funding should end, then states would be required to review only Medicaid active and negative cases, as there would no longer be any cases associated with CHIP funding.
We will provide states with guidelines for conducting these MEQC pilots, and we propose that states must submit MEQC pilot planning documents for CMS's approval. This approach will ensure that states are planning to conduct pilots that are suitable and in accordance with our guidance.
This proposed rule would require states to conduct one MEQC pilot during their 2 off-years between PERM cycles. We propose that the MEQC pilot review period span 12 months, beginning on January 1, following the end of the state's PERM review period. For instance, if a state's PERM review period is July 1, 2018 to June 30, 2019, the next proposed MEQC pilot review period would be January 1-December 31, 2020. We propose at § 431.806 that a state would have up to November 1 following the end of its PERM review period to submit its MEQC pilot planning document for CMS review and approval. Following a state's MEQC pilot review period, we propose it would have up to August 1 to submit a CAP based on its MEQC pilot findings.
Following publication of the final rule, states will not all be at the same point in the MEQC pilot program/PERM timeline. The impact of the proposed MEQC timeline for each cycle of states is clarified below to assist each cycle of states in understanding when the proposed MEQC requirements would apply.
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We propose to revise § 431.814 to clarify the revised sampling plan and procedures for the MEQC pilot program. We propose that states be required to submit, for our approval, a MEQC Pilot Planning Document that would detail how it would propose to perform its active and negative case reviews. This process is consistent with that used historically with MEQC pilots and also with the FY 2014-2017 Medicaid and CHIP Eligibility Review Pilots. Prior to the first proposed submission cycle, we would provide states with guidance containing further details informing them of what information would need to be included in the MEQC Pilot Planning Document.
We propose to revise § 431.816 to clarify the case review completion report submission deadlines. We propose that states be required to report, through a CMS-approved Web site and in a CMS-specified format, on all sampled cases by August 1 following the end of the MEQC review period, which we believe will streamline the reporting process and ensure that all findings are contained in a central location.
We propose to revise § 431.818 to remove the mailing requirements and the time requirement.
We propose to revise § 431.820 to clarify the corrective action requirements under the proposed MEQC pilot program. Corrective actions are critical to ensuring that states continually improve and refine their eligibility processes. Under the existing MEQC program, states must conduct corrective actions on all identified case errors, including technical deficiencies, and we propose here that states continue to be required to conduct corrective actions on all errors and deficiencies identified through the proposed MEQC pilot program.
We propose that states report their corrective actions to CMS by August 1 following completion of the MEQC pilot review period, and that such reports also include updates on the life cycles of previous corrective actions, from implementation through evaluation of effectiveness.
We propose to delete § 431.822, as we would no longer be performing a federal
Section I.B.1, above, provides a detailed regulatory history of CMS's implementation of the MEQC program, and, in conformity with CMS's policy since 1993, we propose not using the revised MEQC pilot program to reduce payments or to institute disallowances. Instead, we propose to formalize the MEQC pilot process to align all states in one cohesive pilot approach to support and encourage states during their 2 off-years between PERM cycles to address, test, and implement corrective actions that would assist in the improvement of their eligibility determinations. This approach also better harmonizes and synchronizes the MEQC pilot and PERM programs, leaving them operationally complementary. Additionally, our proposal would be advantageous to all states as they each would be exempt from potential payment reductions and disallowances while conducting their MEQC pilot, therefore placing the main focus of the pilots solely on the refinement and improvement of their eligibility determinations. Based on this approach, we propose that each state's eligibility improper payment rate would be calculated in its PERM year, and that its rate would be frozen at that level during its off-years when it would conduct an MEQC pilot and implement corrective actions.
As previously discussed, the CHIPRA authorized certain PERM and MEQC data substitution, and we believe that the PERM eligibility improper payment rate determination methodology satisfies the requirements of section 1903(u) of the Act to be used for that provision's payment reduction (and potential disallowance) requirement. Section 1903(u)(1)(B) of the Act permits the Secretary to waive, in whole or part, section 1903(u)(1)(a)'s required payment reductions if a state is unable to reach an allowable improper payment rate for a period or a fiscal year despite the state's good faith effort. What constitutes a state's good faith effort is outlined at the proposed § 431.1010(b). As part of the proposed good faith effort, we propose that a state's participation in the proposed MEQC pilot program in conformity with §§ 431.800 through 431.820 of this proposed regulation, and its implementation of PERM CAPs in accordance with § 431.992 would be essential elements to the showing of a state's good faith effort. Conversely, should a state's eligibility improper payment rate exceed 3 percent, and should that state fail to comply with all elements of § 431.1010(b) in demonstrating a good faith effort, we propose, in accordance with section 1903(u)(1)(a) of the Act, to reduce its FFP for medical assistance by the percentage by which the lower limit of its eligibility improper payment rate exceeds three percent. We define a state's failure to comply with all elements of the proposed § 431.1010(b), as a lack of a good faith effort to reach the allowable error rate. We propose to use the lower limit of the eligibility improper payment rate per guidance issued by us prior to the implementation of the present MEQC pilots. Therefore, we propose to require states to use PERM to meet section 1903(u) of the Act requirements in their PERM years, and that potential payment reductions or disallowances only be invoked under the PERM program. Therefore, we propose to delete § 431.865.
We are proposing the revisions described below to the PERM program. Our proposed PERM eligibility component revisions have been tested and validated through multiple rounds of PERM model pilots with 15 states and through discussion with state and non-state stakeholders. The PERM model pilots were distinct from the separate FY 2014-2017 Medicaid and CHIP Eligibility Review Pilots, and were used to assess, test, and recommend changes to PERM's eligibility component review process based on the changes implemented by the Affordable Care Act. Specifically, we tested, and asked for stakeholder feedback on, options in the following areas (below, there is more detail on each):
Through the PERM model pilots, we have determined that each of the proposed changes support the goals of the PERM program and will produce a valid, reliable eligibility improper payment rate. We also interviewed participating states, as well as a select group of other states, to receive feedback on the majority of the proposed changes, and, to the extent possible, we have addressed state concerns in this proposed rule.
Since PERM began in 2006, the measurement has been structured around the federal fiscal year, (FFY) with states submitting FFS claims and managed care payments with paid dates that fall in the FFY under review. But, a data collection centered around the FFY has made it perennially challenging to finalize the improper payment rate measurement and conduct all the related reporting to support an improper payment rate calculation by November of each year. Therefore, to provide states and CMS additional time to complete the work related to each PERM cycle prior to the annual improper payment rate publication in the AFR, to better align PERM with many state fiscal year timeframes, and to mirror the review period currently utilized in the Medicare FFS improper payment measurement program, we propose to change the PERM review period from a FFY to a July through June period. We propose to begin this change with the Cycle 1 states, whose PERM cycle would have started on October 1, 2017, so that Cycle 1 states would submit their 1st and 4th quarters of FFS claims and managed care payments with paid dates between, respectively, July 1-September 30, 2017 and April 1-June 30, 2018. Subsequent cycles would follow a similar review period.
We propose to revise § 431.950 to clarify the requirement for states and providers to submit information and provide support to federal contractors to produce national improper payment estimates for Medicaid and CHIP.
We propose various revisions to § 431.958 to add, revise, or remove definitions to provide greater clarity for the proposed PERM program changes. Proposed additions and revisions include definitions for “appeals,” “corrective action,” “deficiency,” “difference resolution,” “disallowance,” “Eligibility Review Contractor (ERC),” “error,” “federal contractor,” “Federally facilitated marketplace-determination (FFM-D),” “Federal financial participation,” “finding,” “Improper payment rate,” “Lower limit,” “PERM review period,” “recoveries,” “Review Contractor (RC),” “Review year,” “State-specific sample size,” “State eligibility system,” “State error,” “State payment system,” “Statistical Contractor (SC),” and removing the definitions of “active case,” “active fraud investigation,” “agency,” “case,” “case error rate,” “case record,” “last action,” “negative case,” “payment error rate,” “payment review,” “review cycle,” “sample
We propose to revise § 431.960 to remove references to negative case reviews and improper payments because a separate negative case review will no longer be a part of the PERM review process, as well as to provide greater clarity for the proposed PERM program changes. Note that while a separate negative case review would not be conducted as part of the proposed PERM review process, it could be possible for a negative case to be reviewed, because the claims universe includes claims that have been denied. If a sampled denied claim was denied because the beneficiary was not eligible for Medicaid/CHIP benefits on the date of service, PERM would review the state's decision to deny eligibility.
We propose to revise § 431.972(a) to specify that states would be required to submit FFS claims and managed care payments for the new PERM Review Period.
Under the existing § 431.974, states conduct PERM eligibility reviews. Since the first PERM eligibility cycle in FY 2007, we have found that conducting PERM eligibility reviews significantly burdens state resources, and because the reviews require substantial staff resources, many states have struggled to meet review timelines. Moreover, we have found that having states conduct PERM eligibility reviews has created significant opportunity for the PERM eligibility review guidance to be misinterpreted and inconsistently applied across states, with, for example, states having difficulty interpreting the universe definitions and case review guidelines.
To confront these challenges, we propose to utilize a federal contractor (known as the ERC) to conduct the eligibility reviews on behalf of states. This proposal would concomitantly reduce states' PERM program burden and ensure more consistent guidance interpretation, thereby reducing case review inconsistencies across states and improving eligibility processes related to case reviews and reporting. A federal contractor would be able to apply consistent standards and quality control processes for the reviews and improve CMS's ability to oversee the process, so improper payments would be reported consistently across states. Moreover, the ERC would allow us to gain a better national view of improper payments to better support the corrective action process and ensure accurate and timely eligibility determinations, while a third-party review team would be more consistent with standard auditing practices and our other improper payment measurement programs.
Our PERM model pilot testing has confirmed that having a federal contractor conduct eligibility reviews is feasible and improves our oversight of the process, as an experienced federal contractor can apply PERM guidance consistently across states while continuing to recognize unique state eligibility policies, processes, and systems. Further, through the pilots, we have developed processes to ensure that the federal contractor works collaboratively with state staff to ensure that the reviews are consistent with state eligibility policies and procedures.
While states would not, under our proposal, continue to conduct PERM eligibility reviews, we envision that they would still play a role, as needed, in supporting the federal contractor. We therefore propose to add state supporting role requirements by proposing to revise § 431.970 to outline data submission and state systems access requirements to support the PERM eligibility reviews and the ERC.
Under § 431.10(c)(1)(i)(A)(3), state Medicaid agencies may delegate authority to determine eligibility for all or a defined subset of individuals to the Exchange, including Exchanges operated by a state or by HHS. Those states that have delegated the authority to make Medicaid/CHIP eligibility determinations to an Exchange operated by HHS, known as the Federally Facilitated Marketplace (FFM), are described as determination states, or FFM-D states. By contrast, those states that receive information from the FFM, which makes assessments of Medicaid/CHIP eligibility, but where the applicant's account is transferred to the state for the final eligibility determination, are known as assessment states, or FFM-A states.
We propose that states would be responsible for providing the ERC with eligibility determination policies and procedures, and any case documentation requested by the ERC, which could include the account transfer (AT) file for any claims where the individual was determined eligible by the FFM in a determination state (FFM-D), or was passed on to the state by the FFM for final determination in assessment states (FFM-A).
Further, under this proposal, if the ERC finds that it cannot complete a review due to insufficient supporting documentation, it would expect the state to provide it. States would determine how to obtain the requested documentation (we do not propose to charge the ERC with conducting additional outreach, such as client contact) and, if unable to do so to enable to ERC to complete the review, the ERC would cite the case as an improper payment due to insufficient documentation. We also propose that states would be responsible for providing the ERC with direct access to their eligibility system(s). A state's eligibility system(s) (including any electronic document management system(s)) contains data the ERC must review, including application information, third party data verification results, and copies of required documentation (for example, pay stubs), and we believe that allowing the ERC direct access would best enable it to timely and accurately complete its reviews and reduce state burden that would otherwise be required to inform the ERC's reviews.
To ensure that states continue to have a measure of oversight, however, we propose allowing states the opportunity to review the ERC's case findings prior to their being finalized and used to calculate the national and state improper payment rate. Through a difference resolution and appeals process, states would have the opportunity to resolve disagreements with the ERC. Based on our pilot testing, we believe that open communication between the state and the ERC would best foster states' understanding of the review process and the basis for any findings.
As just discussed, we are proposing that a federal contractor would conduct the eligibility case reviews, and states' responsibilities would therefore be limited. Because we propose state responsibilities at § 431.970, we propose to delete § 431.974.
We propose to delete § 431.978; because the proposed ERC would conduct the eligibility reviews, states would no longer be required to submit a sampling plan. In place of the sampling plan, the ERC would draft state-specific eligibility case review planning documents outlining how it would conduct the eligibility review, including the relevant state-specific eligibility policy and system information.
We propose to delete § 431.980; this section presently specifies the review procedures required for states to follow while performing the PERM eligibility component reviews. States would no
We propose to delete § 431.988; this section presently specifies states' requirements and deadlines for reporting PERM eligibility review data, which functions we propose to transition to an ERC.
The Claims Review Contractor (RC) currently conducts PERM reviews on FFS and managed care claims for the Medicaid program and CHIP, and is required to conduct Data Processing (DP) reviews on each sampled claim to validate that the claim was processed correctly based on information found in the state's claim processing system and other supporting documentation maintained by the state. We believe that in order for the RC to review claims during the review cycle, reviewers would need remote or on-site access to appropriate state systems. If the RC is unable to review pertinent claims information, and the state is not able to comply with all information submission and systems access requirements as specified in the proposed rule, the payment under review may be cited as an error due to insufficient documentation.
To facilitate the RC's reviews, we propose that states grant it access to systems that authorize payments, including: FFS claims payments; Health Insurance Premium Payment (HIPP) payments; Medicare buy-in payments; aggregate payments for providers; capitation payments to health plans; and per member per month payments for Primary Care Case Management (PCCM) or non-emergency transportation programs. We propose that states also grant the RC access to systems that contain beneficiary demographics and provider enrollment information to the extent such information is not included in the payment system(s), and to any imaging systems that contain images of paper claims and explanation of benefits (EOBs) from third party payers or Medicare.
Experience has demonstrated that some states have allowed the RC only partial and/or untimely systems access, which we believe has led to a slower review process. Based on our discussions with the states, we believe their sometimes permitting just limited systems access is due to a lack of processes to grant access (for example, requiring contractors to complete access forms and training) rather than state bans on providing outside contractors with access due to privacy or cost concerns. Therefore, we propose adding paragraphs (c) and (d) to § 431.970, which would require states to provide access to appropriate and necessary systems.
To meet IPERIA requirements, the samples used for PERM eligibility reviews must be taken from separate universes: One that includes Title XIX Medicaid dollars and one that includes Title XXI CHIP dollars. Section 431.978(d)(1) currently defines the Medicaid and CHIP active universes as all active Medicaid or CHIP cases funded through Title XIX or Title XXI for the sample month, with certain exclusions. Developing an accurate and complete universe is essential to developing a valid, accurate improper payment rate.
In previous PERM cycles, sampling universe development has been one of the most difficult steps of the eligibility review. Varying data availability and system constraints have made it challenging to maintain consistency in state-developed eligibility universes; developing the eligibility universe may require substantial staff resources, and the process may take several data pulls that are often conducted by IT staff or outside contractors not closely involved in the PERM eligibility review process.
During the PERM model pilots, we tested three PERM eligibility review universe definition options, including defining the universe by: (1) Eligibility determinations and redeterminations (that is, a universe of eligibility decisions); (2) actual beneficiaries or recipients (that is, a universe of eligible individuals); and (3) claims/payments (that is, a universe of payments made). We found that the third approach, defining the universe by the claims/payments, was best; PERM was designed to meet the IPERIA requirements of calculating a national Medicaid and CHIP improper payment rate, so having the eligibility reviews tied directly to a paid claim ensures that PERM only reviews those beneficiaries or recipients who have had services paid for by the state Medicaid or CHIP agency. Accordingly, for the PERM eligibility review active universe we propose using the definition at § 431.972(a), and deleting the current PERM eligibility review universe requirements in § 431.974 and § 431.978. The PERM claims component requires state submission of Medicaid and CHIP FFS claims and managed care payments on a quarterly basis; state submission responsibilities are defined under § 431.970. These claims and payments are rigorously reviewed by the federal statistical contractor, and the process has extensive, thorough quality control procedures that have been used for several PERM cycles and have been well-tested.
We believe that this universe definition leverages the claims component of PERM and supports efficient use of resources, as the universe would already be developed on a consistent basis for the PERM claims component. By this proposed change, eligibility reviews using a claims universe would be tied to payments and be more consistent with IPERIA, state burden would be minimized by harmonizing PERM claims and eligibility universe development, and federal and state resources would no longer be spent on eligibility reviews that potentially could not be tied to payments (for example, eligibility reviews conducted on beneficiaries that did not receive any services).
Through our pilot testing, we have also determined that the claims universe does not result in a substantially different rate of case error. However, sampling from this universe did result in a higher proportion of non-MAGI cases because enrollees in such eligibility categories are likely to have higher health care service utilization, and, therefore, have more associated FFS claims. Because PERM is designed to focus on improper payments, we believe it is appropriate to use a sample that focuses on individuals who are linked to the bulk of Medicaid and CHIP payments. However, because eligibility will be reviewed for both FFS claims and managed care capitation payments, MAGI cases will be subject to a PERM eligibility review, primarily through the review of eligibility for individuals who have managed care capitations payments on their behalf, as many states have chosen to enroll individuals in MAGI eligibility categories in managed care. Further, states can choose to focus on further Medicaid and CHIP reviews of MAGI cases in the proposed MEQC pilot reviews they would conduct during their off-year pilots.
While it is possible for a claim to be associated with a negative case, as mentioned previously, the claims universe does not support a negative PERM eligibility case rate. Because IPERIA focuses on payments, the statute does not require determining a negative case rate. The proposed MEQC pilot reviews that states would conduct on
As previously noted, § 431.10(c)(1)(i)(A)(
Federal regulations permit states to delegate authority for MAGI-based Medicaid and CHIP eligibility determinations to the FFM and require them to accept those determinations. States have an overall responsibility for oversight of all Medicaid and CHIP eligibility determinations, but, with respect to the FFM delegation, they are required to accept FFM determinations without further review or discussion on a case-level basis, making it difficult for states to address improper payments on a case-level basis. Therefore, we propose that case-level errors resulting solely from an FFM determination of MAGI-based eligibility that the state was required to accept be included only in the national improper payment rate, not the state rate. Conversely, we propose that errors resulting from incorrect state action taken on cases determined and transferred from the FFM, or from the state's annual redetermination of cases that were initially determined by the FFM, be included in both state and national improper payment rates. Examples of errors that we propose would be included in both state and national improper payment rates include, but are not limited to: (1) Where a case is initially determined and transferred from the FFM, but the state then fails to enroll an individual in the appropriate eligibility category; and (2) errors resulting from initial determinations made by a state-based Exchange.
We propose revisions to § 431.960(e) and § 431.960(f) to clarify that we would distinguish between cases that are included in a state's, and the national, improper payment rate. Although we are proposing this distinction for improper payment measurement program purposes, this distinction does not preclude the single state agency from exercising appropriate oversight over eligibility determinations to ensure compliance with all federal and state laws, regulations and policies. We also propose revisions to § 431.992(b) to make clear that states would be required to submit PERM corrective actions only for errors included in state improper payment rates.
Establishing adequate sample sizes is critical to ensuring that the PERM improper payment rate measurement meets IPERIA statistical requirements. In accordance with IPERIA, PERM is focused on establishing a national improper payment rate and the national improper payment rate must meet the precision level established in OMB Circular A-123, which is a 2.5 percent precision level at a 90 percent confidence interval. As an additional goal, although not required by IPERIA, we have always strived to achieve state level improper payment rates within a 3 percent precision level at a 95 percent confidence interval. However, as discussed in the Regulatory Impact Analysis, we recognize achieving this level of precision in all states poses some challenges and is not always possible.
Previously, state-specific sample sizes were calculated prior to each cycle and the national annual sample size was the aggregate of the state-specific sample sizes. State-specific sample sizes were based on past state PERM improper payment rates. We propose establishing a national annual sample size that would meet IPERIA's precision requirements at the national level, and then distributing the sample across states to maximize precision at the state level, where possible. We also propose that the state-specific sample sizes would be chosen to maximize precision based on state characteristics, including a history of high expenditures and/or past state PERM improper payment rates. We recognize that the precision of past estimates of state-specific improper payment rates has varied. We request public comment on this proposed approach, its benefits, limitations, and any potential alternatives. We believe that, relative to our prior approach, the proposed approach would more effectively measure and reduce national improper payments and would also provide more stable state-specific sample sizes, as the sample size would be less responsive to changes in improper payment rates from cycle to cycle. A more stable state-specific sample size may assist with state level planning. Further, it will allow us to exercise more control over the PERM program's budget by establishing a national sample size. On the other hand, like its predecessor, the proposed approach may not yield improper payment estimates at the state level within a 3 percent precision level at a 95 percent confidence interval for all states (due to underpowered sample size). We will develop specific sampling plans for PERM cycles that occur after publication of the final rule. We will continue to calculate a national improper payment rate within a 2.5 percent precision level at a 90 percent confidence interval as required by IPERIA. Likewise, we will continue to strive to achieve state improper payment rates within a 3 percent precision level at a 95 percent confidence interval precision. In the future, as information improves or new priorities are identified, we may identify additional factors that should be taken into account in developing state-specific sample sizes.
In practice, we anticipate having the ability to vary the number of data processing, medical, and eligibility reviews performed on each of the sampled claims. Under this approach, each sampled claim may not undergo all three types of reviews, which would allow us to more efficiently allocate the types of reviews performed. Conducting more reviews on payments that are likely to have problems gives us better information to implement effective corrective actions, which could assist in reducing improper payments. For example, after eligibility reviews resume, we may determine that there are few eligibility improper payments for clients associated with managed care claims; there thus might be a limited benefit to conducting eligibility reviews on all sampled managed care claims, and we might reduce the number of those reviews. This approach would allow us to optimize PERM program expenditures so we do not waste resources conducting reviews unlikely to provide valuable insight on the causes of improper payments.
We note above that conducting reviews on areas more likely to have problems results in more information to inform corrective actions versus conducting more reviews on areas that are likely to be correct. It is important to note that state corrective actions are not impacted by varying levels of state-specific improper payment rate precision. As we describe later in this proposed rule, states are required to
We propose clarifying in § 431.960(b)(1), § 431.960(c)(1), and § 431.960(d)(1) that improper payments are defined as both federal and state improper payments. We believe this change would allow us to cite federal improper payments in circumstances where states make an incorrect eligibility category assignment that would result in the incorrect federal medical assistance percentage (FMAP) being claimed by the state. Previously, improper payments were only cited if the total computable amount—the federal share plus the state share—was incorrect. Under the Affordable Care Act, beneficiaries in the newly eligible adult group receive a higher FMAP rate than other eligibility categories. As a result, incorrect enrollment of an individual in the newly eligible adult category may result in improper federal payments even though the total computable amount may be correct. Although there were eligibility categories that could receive higher FMAP rates previously, the size of the newly eligible adult category makes it critical for us to have the ability to cite federal improper payments to achieve an accurate PERM improper payment rate.
Because we propose to use an ERC to conduct the eligibility case reviews, we likewise propose that the ERC conduct the eligibility difference resolution and appeals process, which would mirror how that process is conducted with respect to FFS claims and managed care payments. The difference resolution and appeals process used for the FFS and managed care components of the PERM program is well developed and has allowed us to adequately resolve disagreements between the RC and states. We have revised § 431.998 to include the proposed eligibility changes for the difference resolution and appeals process.
Additionally, in the text currently at § 431.998(d), we propose deleting the statement about CMS recalculating state-specific improper payment rates, upon state request, in the event of any reversed disposition of unresolved claims. We propose that the recalculation be performed whenever there is a reversed disposition; no state request is needed.
Under § 431.992, states are required to submit CAPs to address all improper payments and deficiencies found through the PERM review. We propose that states would continue to submit CAPs that address eligibility improper payments, along with improper payments found through the FFS and managed care components. We propose to revise § 431.992(a) to clarify that states would be required to address all errors included in the state improper payment rate at § 431.960(f)(1).
We propose to revise § 431.992 to provide additional clarification for the PERM CAP process. We propose minor revisions to the regulatory text to reflect the current corrective action process and provide additional state requirements, consistent with the CHIPRA. Proposed revisions include replacing “major tasks” at § 431.992(b)(3)(ii)(A) with “corrective action,” to improve clarity. Other proposed clarifications would also be provided at § 431.992(b)(3)(ii)(A) through § 431.992(b)(3)(ii)(E).
We also propose adding language to clarify the state responsibility to evaluate corrective actions from the previous PERM cycle at § 431.992(b)(4), and a requirement for states, annually and when requested by CMS, to update us on the status of corrective actions. We propose requesting updates on state corrective action implementation progress on an annual basis, a frequency that would enable us fully monitor corrective actions and ensure that states are continually evaluating the effectiveness of their corrective actions.
Additionally, we propose to add language in § 431.992 to specify further CAP requirements should a state's PERM eligibility improper payment rate exceed the allowable threshold of 3 percent per section 1903(u) of the Act for consecutive PERM years. This proposal only pertains to a state's additional CAP requirements related to the PERM eligibility improper payment rate, and does not extend to the FFS and managed care components. As the allowable threshold for eligibility is set by section 1903(u) of the Act, this will not change from year to year. The improper payment rate targets for FFS and managed care are not constant, therefore, it is not judicious to hold states accountable to meet a target that is variable.
We propose to require states whose eligibility improper payment rates exceed the 3 percent threshold for consecutive PERM years to provide status updates on all corrective actions on a more frequent basis, as well as include more details surrounding the state's implementation and evaluation of all corrective actions, than would be required for those states which did not have eligibility improper payment rates over the 3 percent threshold for consecutive PERM years. As noted above, we anticipate typically requesting updates on corrective actions on an annual basis, however, for those states with consecutive PERM eligibility improper payment rates above the allowable threshold, we propose to require updates every other month. Such states would also be required to submit information about any setbacks and provide alternate corrective actions or manual workarounds, in the event that their original corrective actions are unattainable or no longer feasible. This would ensure states have additional plans in place, if the original corrective action cannot be implemented as planned. Also, states would be required to submit actual examples demonstrating that the corrective actions have led to improvements in operations, and explanations for how these improvements are efficacious and will assist the state to reduce both the number of errors cited and the state's next PERM eligibility improper payment rate. Moreover, we propose that states be required to submit an overall summary that clearly demonstrates how the corrective actions planned and implemented would provide the state with the ability to meet the 3 percent threshold upon their next PERM eligibility improper payment rate measurement.
As previously stated regarding MEQC Disallowances, we are proposing to require states to use PERM to meet section 1903(u) of the Act requirements in their PERM years, and to no longer require the proposed MEQC pilot program to satisfy the requirements of section 1903(u) of the Act. We propose to require states to use PERM to meet section 1903(u) of the Act requirements, as this approach has been supported by the CHIPRA through its data substitution authorization between the PERM and MEQC programs. Moreover, requiring the PERM program to satisfy IPERIA requirements and requiring a separate program to satisfy the erroneous excess payment measurement and payment reduction/disallowance requirements of section 1903(u) of the Act, when PERM is capable of meeting the requirements of both, would be contrary to the CHIPRA's requirement to harmonize PERM and MEQC. Therefore, based on the ability of the PERM program to meet both the requirements
If a state's PERM eligibility improper payment rate is above the 3 percent allowable threshold per section 1903(u) of the Act, it would be subjected to potential payment reductions and disallowances. However, if the state has taken the action it believed was needed to meet the threshold, failed to achieve that level, the state may be eligible for a good faith waiver as outlined in § 431.1010. Essential elements of a state's showing of a good faith effort include the state's participation in the MEQC pilot program in accordance with subpart P (§ 431.800 through § 431.820) and implementation of PERM CAPs in accordance with § 431.992.
Absent CMS's approval, a state's failure to comply with both the MEQC pilot program requirements and PERM CAP requirements, would be considered a state's failure to demonstrate a good faith effort to reduce its eligibility improper payment rate. Again, absent our approval, we would not grant a good faith waiver for any state that either does not comply with the MEQC pilot program requirements or does not implement a PERM corrective action plan. We also propose that the requirements under section 1903(u) of the Act would not become effective until a state's second PERM eligibility improper payment rate measurement has occurred, as an earlier effective date would not give states a chance to demonstrate, if needed, a good faith effort.
Under this proposed regulation, we would reduce a state's FFP for medical assistance by the percentage by which the lower limit of the state's eligibility improper payment rate exceeds the 3 percent threshold should a state fail to demonstrate a good faith effort. We propose to use the lower limit of the improper payment rate per previous MEQC guidance issued by us prior to the implementation of MEQC pilots in 1993. We believe that utilizing the lower limit of the error rate for disallowance purposes will assist in ensuring there is reliable evidence that a state's error rate exceeds the 3 percent threshold. This approach addresses the varying levels of state-specific improper payment rate precision as discussed in the sample size section above. Therefore, we propose to add § 431.1010, which establishes rules and procedures for payment reductions and disallowances of federal financial participation (FFP) in erroneous medical assistance payments due to eligibility improper payments, as detected through the PERM program. Federal medical assistance funds include all service-based fee-for-service, managed care, and aggregate payments which are included in the PERM universe. Exclusions from the federal medical assistance funds for disallowance purposes include non-service related costs (for example, administrative, staffing, contractors, systems) as well as certain payments for services not provided to individual beneficiaries such as Disproportionate Share Hospital (DSH) payments to facilities, grants to State agencies or local health departments, and cost-based reconciliations to non-profit providers and Federally-Qualified Health Centers (FQHCs). We may adjust this definition if expenditures included in the PERM universe are adjusted, as needed, to meet program needs.
Under the Paperwork Reduction Act of 1995 (PRA), we are required to publish a 60-day notice in the
To fairly evaluate whether an information collection should be approved by OMB, PRA section 3506(c)(2)(A) requires that we solicit comment on the following issues:
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our burden estimates.
• The quality, utility, and clarity of the information to be collected.
• Our effort to minimize the information collection burden on the affected public, including the use of automated collection techniques.
The estimates in this collection of information were derived from feedback received from states during the PERM cycle. We are soliciting public comment on each of the section 3506(c)(2)(A)-required issues for the following information collection requirements (ICRs).
To derive average costs, we used data from the U.S. Bureau of Labor Statistics' May 2014 National Industry-Specific Occupational Employment and Wage Estimates for State Government (NAICS 999200) (
As indicated, we are adjusting our employee hourly wage estimates by a factor of 100 percent. This is necessarily a rough adjustment, both because fringe benefits and overhead costs vary significantly from employer to employer, and because methods of estimating these costs vary widely from study to study. Nonetheless, there is no practical alternative and we believe that doubling the hourly wage to estimate total cost is a reasonably accurate estimation method.
Section 431.812 would require states to conduct one MEQC pilot during the 2 years between their designated PERM years. Revisions to § 431.812, propose that states must use the MEQC pilots to perform both active and negative case reviews, while providing states with some flexibility surrounding their active case review pilot. States would review a minimum total of 400 Medicaid and CHIP active cases, with at least 200 of the active cases being Medicaid cases. States would have the flexibility to determine the precise distribution of
Section 431.812 aligns with § 431.816 and outlines the case review completion deadlines and submittal of reports. Additionally, § 431.820 is also considered to be a part of a state's MEQC pilot reporting. Therefore, burden estimates are combined for the case reviews, the reporting of findings, including corrective actions. The time, effort and costs listed in this section will be identical to the sections where § 431.816 and § 431.820 are described, but should not be considered additional or separate costs.
The ongoing burden associated with the requirements under § 431.812 is the time and effort it would take each of the 34 state programs (17 Medicaid and 17 CHIP agencies for 17 states equates to a maximum of 34 total respondents each PERM off-year) to perform the required number of eligibility case reviews as mentioned above, and report on their findings and corrective actions.
We estimate that it will take 1,200 hours annually per state program to report on all case review findings (900 hours) and corrective actions (300 hours). This estimate assumes that states spend approximately 100 hours a month on the related activities (100 hours × 12 months = 1,200 hours) during the State's MEQC reporting year. The total estimated annual burden is 40,800 hours (1,200 hours × 34 respondents), at a total estimated cost per respondent of $66,240 (1,200 hours × ($55.20/hour)) and a total estimated cost of $2,252,160 (($66,240 per respondent) × 34 respondents) for all respondents. The preceding requirements and burden estimates will be submitted to OMB as a revision to the information collection request currently approved under control number 0938-0147.
Revised § 431.814 requires states to submit a MEQC Pilot Planning Document. The Pilot Planning Document must be approved by us as outlined in § 431.814 of this proposed rule and is critical to ensuring that the state will conduct a MEQC pilot that complies with our guidance. The Pilot Planning Document submitted by the state would include details surrounding how the state will perform both its active and negative case reviews.
The ongoing burden associated with the requirements under § 431.814 is the time and effort it would take each of the 34 state programs (17 Medicaid and 17 CHIP programs for 17 states equates to a maximum of 34 total respondents each PERM off-year) to develop, submit and gain CMS approval of its MEQC Pilot Planning Document.
We estimate that it will take 48 hours per MEQC pilot per state program to submit its Pilot Planning Document and gain approval under § 431.814. We have based the estimated 48 hours off of the pilot proposal process currently utilized in the FY2014-2017 Eligibility Review pilots, and have estimated the burden associated accordingly. The total estimated annual burden across all respondents is 1,632 hours ((48 hours/respondent) × 34 respondents). The total estimated cost per respondent is $2,649.60 (48 hours × ($55.20/hour)) and the total estimated annual cost across all respondents is $90,086.40 (($2,649.60/respondent) × 34 respondents). As the MEQC program is currently suspended, and will be operationally different under this proposed rule, this estimate is not based on real time data. Once real time data is available, we will solicit information from the states and update our burden estimates accordingly.
The preceding requirements and burden estimates will be submitted to OMB as a revision to the information collection currently approved under control number 0938-0146.
Revised § 431.816 provides clarification surrounding the case review completion deadlines and submittal of reports. States would be required to report on all sampled cases in a CMS-specified format by August 1 following the end of the MEQC review period.
As mentioned above, § 431.816 aligns with sections § 431.812 and § 431.820, thus, the burden estimates are identical for these sections and should not be thought of as separate estimates or a duplication of effort. The ongoing burden associated with the requirements under § 431.816 is the time and effort it would take each of the 34 state programs (17 Medicaid and 17 CHIP agencies for 17 states equates to maximum 34 total respondents each PERM off-year) to complete the required number of eligibility case reviews, and report on their findings. Refer back to section A.
The preceding requirements and burden estimates will be submitted to OMB as a revision to the information collection currently approved under control number 0938-0147.
Under the current MEQC program, states are required to conduct corrective actions on all case errors, including technical deficiencies, found through the review. Corrective actions are critical to ensuring that states continually improve and refine their eligibility processes. Therefore, revisions to § 431.820 require states to implement corrective actions on any errors or deficiencies identified through the revised MEQC program as outlined under § 431.820.
We propose that states report their corrective actions to us by August 1 following completion of the MEQC review period. The report would also include updates on previous corrective actions, including information regarding the status of corrective action implementation and an evaluation of those corrective actions.
The ongoing burden associated with the requirements under § 431.820 is the time and effort it would take each of the 34 state programs (17 Medicaid and 17 CHIP agencies for 17 states equates to maximum 34 total respondents each PERM off-year) to develop and report its corrective actions in response to its MEQC pilot program findings. Refer back to section A.
The preceding requirements and burden estimates will be submitted to OMB as a revision to the information collection currently approved under control number 0938-0147.
Currently, the PERM claims component requires state submission of Medicaid and CHIP FFS claims and managed care payments on a quarterly basis; and provider submission of medical records; state and provider submission responsibilities are defined under § 431.970. These claims and payments are rigorously reviewed by the federal statistical contractor. We are proposing to utilize this same claims
Additionally, states are required to collect and submit (with an estimate of 4 submissions) state policies. With this proposed change, states will still be required to collect and submit state policies surrounding FFS and managed care, but would now also have to submit all state eligibility policies. There would be an initial submission and quarterly updates. There are no proposed changes for the provider submission of medical records.
The ongoing burden associated with the requirements under § 431.970 is the time and effort it would take each of the 34 state programs (17 Medicaid and 17 CHIP agencies for 17 states equates to maximum 34 total respondents each PERM year) to submit its claims universe, and collect and submit state policies, and the time and effort it would take providers to furnish medical record documentation.
We estimate that it will take 1,350 hours annually per state program to develop and submit its claims universe and state policies. The total estimated hours is broken down between the FFS, managed care, and eligibility components and is estimated at 900 hours for universe development and submission, and 450 hours for policy collection and submission. Per component it is estimated at 1,150 FFS hours, 100 managed care hours, 100 eligibility hours for a total of 45,900 annual hours (1,350 hours × 34 respondents). The total estimated annual cost per respondent is $74,520 (1,350 hours × ($55.20/hour), and the total estimated annual cost across all respondents is $2,533,680 (($74,520/respondent) × 34 respondents).
However, as a federal contractor has not previously conducted the eligibility component of PERM, the hours assessed related to the state burden associated with the revised eligibility component are not based on real time data, but rather based off information solicited from the states. The information received was from those states who participated in the PERM model eligibility pilots which were conducted by a federal contractor, but on a much smaller scale than that of PERM.
The preceding requirements and burden estimates will be submitted to OMB as a revision to the information collection currently approved under control numbers 0938-0974, 0938-0994, and 0938-1012.
We estimate that it will take 2,824 hours annually per program for providers to furnish medical record documentation to substantiate claim submission. These estimates are based on the average number of medical reviews conducted per PERM cycle and the average amount of time it takes for providers to comply with the medical record request. These estimates are for FFS claims only, as medical review is only completed on sampled FFS claims. The total estimated cost for annual submission is $93,192 (2,824 hours/program) × ($16.50/hour).
Currently, under § 431.992, states are required to submit corrective action plans to address all improper payments and deficiencies found through the PERM review. Proposed revisions to § 431.992(a) clarify that states would be required to address all improper payments and deficiencies included in the state improper payment rate as defined at § 431.960(f)(1). Additional language was also added to § 431.992 to clarify the state responsibility to evaluate corrective actions from the previous PERM cycle at § 431.992(b)(4).
The ongoing burden associated with the requirements under § 431.992 is the time and effort it would take each of the 34 state programs (17 Medicaid and 17 CHIP agencies for 17 states equates to maximum 34 total respondents per PERM cycle) to submit its corrective action plan.
We estimate that it will take 750 hours (250 hours for FFS, 250 hours for managed care and an additional 250 hours for eligibility), per PERM cycle per state program to submit its corrective action plan for a total estimated annual burden of 25,500 hours ((750 hours/respondent) × 34 respondents). We estimate the total cost per respondent to be $41,400 (750 hours × ($55.20/hour)). The total estimated cost for all respondents is $1,407,600 (($41,400/respondent) × 34 respondents).
However, as a federal contractor has not previously conducted the eligibility component of PERM, the hours assessed related to the state burden associated with the revised eligibility component are not based on real time data, but rather based off information solicited from the states. The information received was from those states who participated in the PERM model eligibility pilots which were conducted by a federal contractor, but on a much smaller scale than that of PERM.
The preceding requirements and burden estimates will be submitted to OMB as part of revisions to the information collections currently approved under control numbers 0938-0974, 0938-0994 and 0938-1012. Not to be confused with the burden set outlined above, the revised PERM PRA packages' total burden would amount to: 34 annual respondents, 34 annual responses, and 750 hours per corrective action plan.
Currently, the difference resolution and appeals process used for the FFS and managed care components of the PERM program is well developed and has allowed us to adequately resolve disagreements between the RC and states. Revisions to § 431.998 now include the proposed eligibility changes for the difference resolution and appeals process. Because we propose to use an ERC to conduct the eligibility case reviews, we likewise propose that the ERC conduct the eligibility difference resolution and appeals process, which would mirror how that process is conducted with respect to FFS claims and managed care payments.
The ongoing burden associated with the requirements under § 431.998 is the time and effort it would take each of the 34 state programs (17 Medicaid and 17 CHIP agencies for 17 states equates to maximum 34 total respondents per PERM cycle) to review PERM findings and inform the federal contractor(s) of any additional information and/or dispute requests.
We estimate that it will take 1625 hours (500 hours for FFS, 475 hours for managed care and an additional 650 hours for eligibility) per PERM cycle per state program to review PERM findings and inform federal contractor(s) of any additional information or dispute requests for FFS, managed care, and eligibility components total estimated annual burden of 55,250 hours ((1,625 hours/respondent) × 34 respondents). We estimate the total cost per respondent to be $89,700 (1,625 hours × ($55.20/hour)). The total estimated cost for all respondents is $3,049,800 (($89,700/respondent) × 34 respondents).
The preceding requirements and burden estimates will be submitted to OMB as revisions to the information collections currently approved under control numbers 0938-0974, 0938-0994, and 0938-1012. Not to be confused with the burden set outlined above, the revised PERM PRA packages' total burden would amount to: 34 Annual
We have submitted a copy of this proposed rule to OMB for its review of the rule's information collection and recordkeeping requirements. These requirements are not effective until they have been approved by the OMB.
To obtain copies of the supporting statement and any related forms for the proposed collections discussed above, please visit CMS' Web site at
We invite public comments on these potential information collection requirements. If you wish to comment, please submit your comments electronically as specified in the
ICR-related comments are due August 22, 2016.
Because of the large number of public comments we normally receive on
We have examined the impacts of this 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 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) 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). 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 would make small changes to the administration of the existing MEQC and PERM programs. It would therefore have a relatively small economic impact; as a result, this proposed rule does not reach the $100 million threshold and thus is neither an “economically significant” rule under E.O. 12866, nor a “major rule” under the Congressional Review Act.
The Regulatory Flexibility Act requires agencies to analyze options for regulatory relief of small entities, and to prepare an Initial Regulatory Flexibility Analysis (IRFA), for proposed rules that would have a “significant economic impact on a substantial number of small entities.” For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.5 million to $38.5 million in any 1 year. Individuals and states are not included in the definition of a small entity. These entities may incur costs due to collecting and submitting medical records to support medical reviews, but we estimate that these costs would not be significantly changed under the proposed rule. Therefore, we are not preparing an IRFA because we have determined that this proposed rule would not have 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 603 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. For the preceding
Please note, a state will be reviewed only once, per program, every 3 years and it is unlikely for a provider to be selected more than once per program to provide supporting documentation.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 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 2016, that threshold is approximately $146 million. For the preceding reasons, we have determined that this proposed rule does not mandate any spending that would approach the $146 million threshold for state, local, or tribal governments, or on the private sector.
Executive Order 13132 establishes certain requirements that an agency must meet when it issues a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. This proposed rule would shift minor costs and burden for conducting PERM eligibility reviews from states to the federal government and its contractors. However, these reductions would be largely offset by federal government savings in reduced payments to states in matching funds. The net effect of this proposed regulation on state or local governments is minor.
PERM calculates national level improper payment estimates as required by IPERIA as well as state level improper payment estimates. The impacts of this rule are based on the proposed approach to continue meeting national level precision requirements and striving to obtain a state level precision goal. In the most recent PERM cycle, 13,392 Medicaid FFS claims; 9,416 CHIP FFS claims; 3,360 Medicaid managed care payments; and 2,880 CHIP managed care payments are being sampled for review. If we were to alternatively set state sample sizes to guarantee increased state level improper payment rate precision, we would need to review a much higher number of claims in a cycle.
For example, to guarantee state level improper payment rate precision within 3 percentage points we estimate, based on previous cycle sample data, that we would need to review nearly 100,000 Medicaid FFS claims for the cycle (in comparison to the currently reviewed 13,392). Under alternative state level precision goals, for example, 3 percentage points for the top three expenditure states and 5 percentage points in the remaining 14 states in a PERM cycle, we estimate, based on previous sampling data, that PERM would need to review close to 40,000 Medicaid FFS claims for the cycle (in comparison to the currently reviewed 13,392). While such approaches would ensure state level improper payment rate precision, they would also yield operational, budgetary, feasibility, and state burden concerns.
Although we do not expect in the final rulemaking to commit to a particular sample size in future years, we welcome public comments that may inform the general approach we take to sampling and factors that we should consider in establishing state sample sizes.
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the OMB.
Grant programs—health, Health facilities, Medicaid, Privacy, Reporting and recordkeeping requirements.
Grant programs—health, Health insurance, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR chapter IV as set forth below:
Sec. 1102 of the Social Security Act, (42 U.S.C. 1302).
This subpart establishes State requirements for the Medicaid Eligibility Quality Control (MEQC) Program designed to reduce erroneous expenditures by monitoring eligibility determinations and a claims processing assessment that monitors claims processing operations. MEQC will work in conjunction with the Payment Error Rate Measurement (PERM) Program established in subpart Q of this part. In years in which the State is required to participate in PERM, as stated as in subpart Q, States will only participate in the PERM program and will not be required to conduct a MEQC pilot. In the 2 years between PERM cycles, states are required to conduct a MEQC pilot, as set forth in this subpart.
As used in this subpart—
(a)
(2) In the 2 years between each State's PERM year, States are required to conduct one MEQC pilot, which will span parts of both off years.
(i) The MEQC pilot review period will span 12-months of a calendar year, beginning the January 1 following the end of the State's PERM year through December 31.
(ii) The MEQC pilot planning document described in § 431.814 is due no later than the first November 1 following the end of the State's PERM year.
(iii) States must submit their MEQC pilot findings and their plan for corrective action(s) by the August 1 following the end of their MEQC pilot review period.
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(2) The State must select and review, at a minimum, 400 active cases in total from the Medicaid and CHIP universe.
(i) The State must review at least 200 Medicaid cases.
(ii) The State will identify in the pilot planning document at § 431.814 the sample size per program.
(iii) A State may sample more than 400 cases.
(3) The State may propose to focus the active case reviews on recent changes to eligibility policies and processes, areas where the state suspects vulnerabilities, or proven error prone areas.
(i) The State must propose its active case review approach, unless otherwise directed by CMS, in the pilot planning document described at § 431.814 or perform a comprehensive review.
(ii) The State must follow CMS direction for its active case reviews, when the State has a PERM eligibility improper payment rate that exceeds the 3 percent national standard for two consecutive PERM cycles. CMS guidance will be provided to any state meeting this criteria.
(c)
(2) The State must review, at a minimum, 200 negative cases from Medicaid and 200 negative cases from CHIP.
(i) A states may sample more than 200 cases from Medicaid and/or more than 200 cases from CHIP.
(ii) [Reserved]
(d)
(2) Negative case errors are errors, based on the State's documented policies and procedures, resulting from either of the following:
(i) Applications for Medicaid or CHIP that are improperly denied by the State.
(ii) Existing cases that are improperly terminated from Medicaid or CHIP by the State.
(e)
(a)
(b)
(1)
(i) Focus of the active case reviews in accordance with § 431.812(b)(3).
(ii) Universe development process.
(iii) Sample size per program.
(iv) Sample selection procedure.
(v) Case review process.
(2)
(i) Universe development process.
(ii) Sample size per program.
(iii) Sample selection procedure.
(iv) Case review process.
(a) The State must complete case reviews and submit reports of findings to CMS as specified in paragraph (b) of this section in the form and at the time specified by CMS.
(b) In addition to the reporting requirements specified in § 431.814 relating to the MEQC pilot planning document, the State must complete case reviews and submit reports of findings to CMS in accordance with paragraphs (b)(1) and (2) of this section.
(1) For all active and negative cases reviewed, the State must submit a detailed case-level report in a format provided by CMS.
(2) All case-level findings will be due by August 1 following the end of the MEQC review period.
The State, upon written request, must submit to the HHS staff, or other designated entity, all records, including complete local agency eligibility case files or legible copies and all other documents pertaining to its MEQC reviews to which the State has access, including information available under part 435, subpart I of this chapter.
The state must—
(a) Take action to correct any active or negative case errors, including deficiencies, found in the MEQC pilot sampled cases in accordance with instructions established by CMS;
(b) By the August 1 following the MEQC review period, submit to CMS a report that—
(1) Identifies the root cause and any trends found in the case review findings.
(2) Offers corrective actions for each unique error and deficiency finding based on the analysis provided in paragraph (b)(1) of this section.
(c) In the corrective action report, the state must provide updates on corrective actions reported for the previous MEQC pilot.
This subpart requires States and providers to submit information and provide support to Federal contractors as necessary to enable the Secretary to produce national improper payment estimates for Medicaid and the Children's Health Insurance Program (CHIP).
The additions and revisions read as follows:
(a)
applicable Federal policy or State policy or both.
(b)
(2) The difference in payment between what the State paid (as adjusted within improper payment measurement guidelines) and what the State should have paid, in accordance with federal and state documented policies, is the dollar measure of the payment error.
(3) Data processing errors include, but are not limited to the following:
(i) Payment for duplicate items.
(ii) Payment for non-covered services.
(iii) Payment for fee-for-service claims for managed care services.
(iv) Payment for services that should have been paid by a third party but were inappropriately paid by Medicaid or CHIP.
(v) Pricing errors.
(vi) Logic edit errors.
(vii) Data entry errors.
(viii) Managed care rate cell errors.
(ix) Managed care payment errors.
(c)
(2) The difference in payment between what the State paid (as adjusted within improper payment measurement guidelines) and what the State should have paid, in accordance with 42 CFR parts 440 through 484 in accordance with the applicable conditions of payment in this chapter and the State's documented policies is the dollar measure of the payment error.
(3) Medical review errors include, but are not limited to the following:
(i) Lack of documentation.
(ii) Insufficient documentation.
(iii) Procedure coding errors.
(iv) Diagnosis coding errors.
(v) Unbundling.
(vi) Number of unit errors.
(vii) Medically unnecessary services.
(viii) Policy violations.
(ix) Administrative errors.
(d)
(2) Eligibility errors include, but are not limited to the following:
(i) Ineligible individual, but authorized as eligible when he or she received services.
(ii) Eligible individual for the program, but was ineligible for certain services he or she received.
(iii) Lacked or had insufficient documentation in his or her case record, in accordance with the State's documented policies and procedures, to make a definitive review decision of eligibility or ineligibility.
(iv) Was ineligible for managed care but enrolled in managed care.
(3) The dollars paid in error due to the eligibility error is the measure of the payment error.
(4) A State eligibility error does not result from the State's verification of an applicant's self-declaration or self-certification of eligibility for, and the correct amount of, medical assistance or child health assistance, if the State process for verifying an applicant's self-declaration or self-certification satisfies the requirements in Federal law, guidance, or if applicable, Secretary approval.
(e)
(2) Eligibility errors resulting solely from determinations of Medicaid or CHIP eligibility delegated to and made by the Federally Facilitated Marketplace will be included in the national improper payment rate.
(f)
(g)
(a) States must submit information to the Secretary for, among other purposes, estimating improper payments in Medicaid and CHIP, that include but are not limited to—
(1) Adjudicated fee-for-service or managed care claims information or both, on a quarterly basis, from the review year;
(2) Upon request from CMS, provider contact information that has been verified by the State as current;
(3) All medical, eligibility, and other related policies in effect and any quarterly policy updates;
(4) Current managed care contracts, rate information, and any quarterly updates applicable to the review year;
(5) Data processing systems manuals;
(6) Repricing information for claims that are determined during the review to have been improperly paid;
(7) Information on claims that were selected as part of the sample, but changed in substance after selection, for example, successful provider appeals;
(8) Adjustments made within 60 days of the adjudication dates for the original claims or line items with sufficient information to indicate the nature of the adjustments and to match the adjustments to the original claims or line items;
(9) Case documentation to support the eligibility review, as requested by CMS;
(10) A corrective action plan for purposes of reducing erroneous payments in FFS, managed care, and eligibility; and
(11) Other information that the Secretary determines is necessary for, among other purposes, estimating improper payments and determining improper payment rates in Medicaid and CHIP.
(b) Providers must submit information to the Secretary for, among other purposes estimating improper payments in Medicaid and CHIP, which include but are not limited to Medicaid and CHIP beneficiary medical records, within 75 calendar days of the date the request is made by CMS. If CMS determines that the documentation is insufficient, providers must respond to the request for additional documentation within 14 calendar days of the date the request is made by CMS.
(c) The State must provide the Federal contractor(s) with access to all payment system(s) necessary to conduct the medical and data processing review, including the Medicaid Management Information System (MMIS), any systems that include beneficiary demographic and/or provider enrollment information, and any document imaging systems that store paper claims.
(d) The State must provide the Federal contractor(s) with access to all eligibility system(s) necessary to conduct the eligibility review, including any eligibility systems of record, any electronic document management system(s) that house case file information, and systems that house the results of third party data matches.
(a)
(b)
(2) The State must establish controls to ensure FFS and managed care universes are accurate and complete, including comparing the FFS and managed care universes to the Form CMS-64 and Form CMS-21 as appropriate.
(c)
(1)
(2)
(a) The State must develop a separate corrective action plan for Medicaid and CHIP for each improper payment rate measurement, designed to reduce improper payments in each program based on its analysis of the improper payment causes in the FFS, managed care, and eligibility components.
(1) The corrective action plan must address all errors that are included in the state improper payment rate defined at § 431.960(f)(1) and all deficiencies.
(2) [Reserved]
(b) In developing a corrective action plan, the State must take the following actions:
(1)
(2)
(3)
(ii) The implementation schedule must identify all of the following for each action:
(A) The specific corrective action.
(B) Status.
(C) Scheduled or actual implementation date.
(D) Key personnel responsible for each activity.
(E) A monitoring plan for monitoring the effectiveness of the action.
(4)
(i) Improvements in operations.
(ii) Efficiencies.
(iii) Number of errors.
(iv) Improper payments.
(v) Ability to meet the PERM improper payment rate targets assigned by CMS.
(c) The State must submit to CMS and implement the corrective action plan for the fiscal year it was reviewed no later than 90 calendar days after the date on which the State's Medicaid or CHIP improper payment rates are posted on the CMS contractor's Web site.
(d) The State must provide updates on corrective action plan implementation progress annually and upon request by CMS.
(e) In addition to paragraphs (a) through (d) of this section, States that have eligibility improper payment rates over the allowable threshold of 3 percent for consecutive PERM years, must submit updates on the status of corrective action implementation to CMS every other month. Status updates must include, but are not limited to the following:
(1) Details on any setbacks along with an alternate corrective action or workaround.
(2) Actual examples of how the corrective actions have led to improvements in operations, and explanations for how the improvements will lead to a reduction in the number of errors, as well as the state's next PERM eligibility improper payment rate.
(3) An overall summary on the status of corrective actions, planning, and implementation, which demonstrates how the corrective actions will provide the state with the ability to meet the 3 percent threshold.
(a) The State may file, in writing, a request with the relevant Federal contractor to resolve differences in the Federal contractor's findings based on medical, data processing, or eligibility reviews in Medicaid or CHIP.
(b) The State must file requests to resolve differences based on the medical, data processing, or eligibility reviews within 20 business days after the report of review findings is shared with the state.
(c) To file a difference resolution request, the State must be able to demonstrate all of the following:
(1) Have a factual basis for filing the request.
(2) Provide the appropriate Federal contractor with valid evidence directly related to the finding(s) to support the State's position.
(d) For a finding in which the State and the Federal contractor cannot resolve the difference in findings, the State may appeal to CMS for final resolution by filing an appeal within 10 business days from the date the relevant Federal contractor's finding as a result of the difference resolution is shared with the State. There is no minimum dollar threshold required to appeal a difference in findings.
(e) To file an appeal request, the State must be able to demonstrate all of the following:
(1) Have a factual basis for filing the request.
(2) Provide CMS with valid evidence directly related to the finding(s) to support the State's position.
(f) All differences, including those pending in CMS for final decision that are not overturned in time for improper payment rate calculation, will be considered as errors in the improper payment rate calculation in order to meet the reporting requirements of the IPIA.
(a)
(2) After the State's eligibility improper rate has been established for each PERM review period, CMS will compute the amount of the disallowance and adjust the FFP payable to each State.
(3) CMS will compute the amount to be withheld or disallowed as follows:
(i) Subtract the 3 percent allowable threshold from the lower limit of the State's eligibility improper payment rate percentage.
(ii) If the difference is greater than zero, the Federal medical assistance funds for the period, are multiplied by that percentage. This product is the amount of the disallowance or withholding.
(b)
(2) CMS may find that a State did not meet the 3 percent allowable threshold despite a good faith effort if the State has taken the action it believed was needed to meet the threshold, but the threshold was not met. CMS will grant a good faith waiver only if a state both:
(i) Participates in the MEQC pilot program in accordance with subpart P (§ 431.800 through § 431.820), and
(ii) Implements PERM CAPs in accordance with § 431.992.
(3) States that have improper payment rates above the allowable threshold will be notified by CMS of the amount of the disallowance.
(c)
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
(a) HHS regulations in §§ 431.800 through 431.1010 of this chapter
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) proposes to eliminate two public inspection file requirements—the requirement that commercial broadcast stations retain in their public inspection file copies of letters and emails from the public and the requirement that cable operators maintain for public inspection the designation and location of the cable system's principal headend. Because of potential privacy concerns associated with putting the correspondence file online and because many cable operators prefer not to post online the location of their principal headend for security reasons, removing these requirements would enable commercial broadcasters and cable operators to make their entire public inspection file available online and obviate also maintaining a local public file. Eliminating these public file requirements thus would reduce the regulatory burdens on commercial broadcasters and cable operators.
Comments may be filed on or before July 22, 2016, and reply comments may be filed August 22, 2016. Written comments on the proposed information collection requirements, subject to the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13, should be submitted on or before August 22, 2016.
You may submit comments, identified by MB Docket No. 14-127, by any of the following methods:
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In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act proposed information collection requirements contained herein should be submitted to the Federal Communications Commission via email to
Kim Matthews, Media Bureau, Policy Division, 202-418-2154, or email at
This is a summary of the Commission's Notice of Proposed Rulemaking (
This
To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
1. In this
2. Section 73.3526(e)(9) of the Commission's rules provides that commercial broadcast stations must retain in their public inspection file “[a]ll written comments and suggestions received from the public regarding operation of the station unless the letter writer has requested that the letter not be made public or the licensee believes the letter should be excluded from public inspection because of the nature of its content,” such as a situation in which a letter contains content that is defamatory or obscene. The rule also expressly applies to email messages transmitted to station management or to an email address publicized by the station. In addition, section 73.1202 requires commercial radio and television broadcasters to retain written comments and suggestions from the public regarding the station operation in their local public inspection file. The language of this rule differs from section 73.3526 in that it does not specifically address emails received from the public and requires that letters received by TV and Class A TV licensees be separated into two categories—programming and non-programming.
3. The Commission first required commercial radio and television broadcasters to retain written comments and suggestions from the public and make them available for public inspection in 1973. That public file obligation, set forth in section 73.1202 of the Commission's rules, was adopted together with a requirement that commercial broadcast stations air regular announcements “informing the public of the licensee's obligation to the public and of the appropriate method for individuals to express their opinions of the station's operation.” The purpose of the correspondence file was “to permit a member of the public to better determine the nature of community feedback being received by the licensees and the extent to which his or her opinions regarding community problems and needs and/or the licensee's station operation might be shared by other members of the community.” The Commission later removed the requirement in section 73.1202 that licensees air announcements regarding their obligations to the public, noting that section 73.3580 of the rules requires that both commercial and noncommercial stations make announcements in connection with the filing of their license renewal applications and concluding that these renewal application announcements were sufficient to inform the public of the “Commission's oversight functions and the availability of public recourse.” The Commission, however, retained the requirement that licensees keep all written comments and suggestions received from the public in their public inspection files. In 1998, the Commission removed rule section 73.1202, and moved the requirement governing the retention of communications from the public to section 73.3526, the public file rule section for commercial broadcast stations. The removal of section 73.1202 has yet to be reflected in the Code of Federal Regulations.
4. The correspondence file requirement applies only to commercial broadcasters; there is no similar requirement for noncommercial broadcasters. There is also no correspondence file requirement for cable operators, DBS providers, or satellite radio licensees, all of which have other public inspection file obligations.
5. Section 76.1708 of the Commission's rules requires operators of all cable television systems to “maintain for public inspection the designation and location of [the system's] principal headend. If an operator changes the designation of its principal headend, that new designation must also be included in its public file.” The Commission first adopted the principal headend public file requirement in 1993 in an order implementing the must-carry and retransmission consent provisions of the Cable Television Consumer Protection and Competition Act of 1992 (“Cable Act”). Pursuant to the Cable Act, commercial television stations must deliver a good quality signal to a cable system's “principal headend” in order to be eligible for must-carry rights on that system. The Cable Act's provisions regarding eligibility for must-carry rights for noncommercial and low power television stations also refer to a cable system's “principal headend.” In the Must-Carry Order, the Commission required cable systems to retain various records relating to must-carry obligations in their public file, including, as noted above, the designation and location of the system's principal headend.
6. In 2012, the Commission adopted online public inspection file rules for television broadcasters that required them to post public file documents to a central, FCC-hosted online database rather than maintaining files locally at their main studios.
7. In January 2016, the Commission adopted the Expanded Online Public File Order, in which it added cable operators, DBS providers, broadcast radio licensees, and satellite radio licensees to the list of entities required to post their public inspection files to the FCC-hosted online database.
8. The Commission determined in the Expanded Online Public File Order that entities that upload all public file material to the FCC's online database and that also provide online access to back-up political file documents via the entity's own Web site when the FCC's online database is temporarily unavailable will not be required to maintain a local public file. The Commission noted, however, that this option is not available to commercial broadcast licensees, which must continue to retain a correspondence file that cannot be made available online for privacy reasons. The Commission indicated in the Expanded Online Public File Order that it would initiate
9. We tentatively conclude that we should eliminate the requirement that commercial broadcasters retain letters and emails from the public in their public inspection files and invite comment on this tentative conclusion. The goal of this requirement was to ensure that broadcasters comply with their public interest obligation to air programming that is responsive to the needs and interests of their community of license. As the Commission recognized in the 1981 Renewal Applications Order, however, most of the Commission's scrutiny of all but the most egregious licensee conduct occurs in conjunction with consideration of a station's license renewal application.
10. Eliminating the correspondence file requirement would have the added benefit of providing commercial television and radio broadcasters with the same option as noncommercial broadcasters and other entities subject to our online public inspection file requirements to cease maintaining a local public inspection file if they post all public file material to the online public file database and provide online access via their own Web site to back-up political file material. Extending this option to commercial broadcasters would allow them to realize the full benefits in terms of cost savings and reduced regulatory burdens of moving their public files online, and would also create greater regulatory parity among entities subject to public file obligations.
11. We invite comment on these views and our proposal to eliminate the correspondence file requirement, including responses to the following questions. Are there other benefits to eliminating the requirement? On the other hand, are there benefits to maintaining local correspondence file obligations we should consider? How frequently do local consumers or others make use of the correspondence file? Does it contain information that continues to be useful to local viewers or listeners, or other interested parties, that cannot be obtained through other means? What impact does the use of social media by broadcast stations have on viewers' ability to communicate with the stations and others regarding the stations' programming and other issues? We request that commenters explain how any benefits of either eliminating or retaining local correspondence rules would outweigh any potential costs.
12. We also propose to eliminate the requirement that cable operators retain information about the designation and location of their principal headends in their public inspection files. In the Expanded Online Public File Order, we reserved judgement as to whether there are valid security concerns associated with posting the location of the principal headend online. We observed, however, that the general public is unlikely to be interested in this information and therefore permitted operators who prefer to retain this information locally rather than posting it online to do so. In that Order, our focus was on adapting our existing public file requirements to an online format rather than considering substantive changes to the public file rules. NCTA subsequently requested that we consider eliminating the requirement that cable operators retain information regarding the location of the principal headend in the public inspection file. In this proceeding, we propose to eliminate this public inspection file requirement because we do not believe that the general public has any need for or interest in this information. Eliminating this requirement would permit all cable operators to transition to a fully online public inspection file, obviating the need for them to also maintain local files, and address the concerns of those operators who believe there may be a potential security risk associated with disclosing the location of the principal headend online.
13. At the time the original public inspection file requirement was adopted, the Commission's focus was to ensure that information was provided to television stations and the Commission regarding the location of a cable system's principal headend for purposes of determining carriage rights and enforcement. There was no discussion in the implementing order about the general public's need to access this information. We are unaware of any reason that the general public would need to know the location of a cable system's principal headend, but we recognize that television stations must have access to this information in order to exercise their must-carry rights. In addition, the Commission must have this information in order to enforce its signal leakage rules and to respond to must-carry and signal leakage complaints. We also recognize that local franchising authorities may need access to it in connection with their oversight of local cable systems and operations. Accordingly, if we eliminate the requirement to retain principal headend location information in the public inspection file, we would adopt means for this information to remain available to those entities that need it.
14. We invite comment generally on our proposal to eliminate the principal headend public file requirement. Are there benefits to retaining this requirement? Would the benefits of eliminating the requirement outweigh the cost if we were to make information regarding the principal headend available to the Commission, television stations and/or local franchising authorities by other means?
15. We also seek comment on how the FCC should collect principal headend information from cable operators if we eliminate the requirement that it be maintained in the public file. One possibility would be to have cable operators submit this information to the
16. As noted above, if we eliminate the principal headend public file requirement, we propose to require that cable operators provide information regarding the designation and location of the system's principal headend to television stations. Should we also require that this information be provided to local franchising authorities? Are there any other entities that should be able to access it? How should this information be provided? If we update our existing Form 322, 324, or 325 to include principal headend information, should we also provide a means for broadcasters to access that information for purposes related to their must-carry rights? Should we also make it accessible to franchising authorities or any other entities? What methods should we use to make the information accessible? Alternatively, should we require cable operators to provide this information to entities that need it upon request? If so, what requirements should we impose regarding the format of these requests and the format and timing of the cable system's response? We note that our existing rules require cable operators to provide written notice by certified mail to all stations carried on its system pursuant to the must-carry rules at least 60 days prior to any change in the designation of its principal headend. If we require that cable operators provide principal headend information upon request, should we require that this information be provided in writing by certified mail? Should we require any requests for that information also to be submitted in writing by certified mail? Should we instead permit the request and response to be made electronically? Should we require broadcast stations to keep information regarding the location of a cable system's principal headend confidential, or do broadcasters have a valid reason at times to disclose this information, such as in pleadings related to a cable carriage dispute?
17. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”), the Commission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) concerning the possible significant economic impact on small entities of the policies and rules proposed in the Notice of Proposed Rulemaking (“NPRM”). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). In addition, the NPRM and IRFA (or summaries thereof) will be published in the
18. The NPRM proposes to eliminate two public inspection file requirements—the requirement that commercial broadcast stations retain in their public inspection file copies of letters and emails from the public and the requirement that cable operators maintain for public inspection the designation and location of the cable system's principal headend. We tentatively conclude that these two components of our public inspection file rules involve documents or information that does not need to be made available to the general public and that eliminating these rules would reduce the burden of maintaining the public inspection file on commercial broadcasters and cable operators. Our goal is also to permit commercial television and radio broadcasters and cable operators to cease maintaining a local public inspection file if they post all public file material to the online public file database and provide online access via their own Web site to back-up political file material. The Commission has previously adopted this option for other entities subject to our online public inspection file requirements. Because the correspondence file cannot be made available online for privacy reasons and because many cable operators prefer not to post the location of their principal headend online for security reasons, removing these requirements would permit commercial broadcasters and cable operators to elect to make their entire public inspection file available online and cease maintaining a local public file, thereby further reducing overall regulatory burdens on these entities.
19. The proposed action is authorized pursuant to sections 1, 2, 4(i), 4(j), 303, 601, 614 and 615 of the Communications Act, 47 U.S.C. 151, 152, 154(i), 154(j), 303, 601, 614, and 615.
20. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible.
21.
22. Apart from the U.S. Census, the Commission has estimated the number of licensed commercial television stations to be 1,387 stations. Of this total, 1,221 stations (or about 88 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on July 2, 2014. Based on these data, we estimate that the majority of television broadcast stations are small entities.
23.
24. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Because we do not include or aggregate revenues from affiliated companies in determining whether an entity meets the revenue threshold noted above, our estimate of the number of small entities affected is likely overstated. In addition, we note that one element of the definition of “small business” is that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, our estimate of small television stations potentially affected by the proposed rules includes those that could be dominant in their field of operation. For this reason, such estimate likely is over-inclusive.
25.
26. As noted above, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any radio station from the definition of a small business on this basis and therefore may be over-inclusive to that extent. Also, as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent.
27.
28.
29. The rule change proposed in the NPRM would reduce reporting, recordkeeping, and other compliance requirements for commercial broadcast stations which are currently required to retain letters and emails from the public in their local public inspection file. The NPRM proposes to eliminate this requirement, which would reduce recordkeeping burdens on these entities. In addition, eliminating the correspondence file requirement would permit commercial radio and television stations to fully transition to the online public file and to cease maintaining a local public file, allowing them to realize the long-term cost savings associated with the online public file.
30. The overall effect of the rule changes proposed in the NPRM on cable operators is less clear. The NPRM proposes to eliminate the requirement that cable systems retain the location and designation of the principal headend in their public file, which would reduce public inspection file requirements for these entities. However, the NPRM recognizes that this information must continue to be made available to the FCC and to television stations and seeks comments on options for ways to accomplish this. Some of these options could result in greater reporting, recordkeeping, or other compliance requirements than the existing public inspection file requirement. Cable operators may support more burdensome requirements, however, if they prefer to transition to a fully online public inspection file and are concerned about security risks associated with placing headend location information online.
31. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standard; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
32. The NPRM proposes to eliminate two current public file obligations—one applicable to commercial radio and television broadcasters and one applicable to cable operators.
33. With respect to cable operators, eliminating the headend location public inspection file requirement would necessitate establishing a different requirement to ensure that headend location information continues to be made available to the FCC and to television stations. The NPRM seeks comments on various ways to accomplish this. Some of these options could result in greater reporting, recordkeeping, or other compliance requirements than the existing public inspection file requirement. Cable operators may support more burdensome requirements, however, if they prefer to transition to a fully online public inspection file and are concerned about security risks associated with placing headend location information online.
None.
34. This document contains proposed new or modified information collections. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements proposed in this document, as required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
35. The proceeding this NPRM initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (
36. Comments and Replies. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
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Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
37.
38. Accordingly,
39.
Broadcast Radio.
Cable television.
For the reasons stated in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 73 and 76 as follows:
47 U.S.C. 154, 303, 334, 336, and 339.
(a) * * *
(1) Applicants for a construction permit for a new station in the commercial broadcast services shall maintain a public inspection file containing the material, relating to that station, described in paragraphs (e)(2) and (e)(9) of this section. A separate file shall be maintained for each station for which an application is pending. If the application is granted, paragraph (a)(2) of this section shall apply.
(2) Every permittee or licensee of an AM, FM, TV or Class A TV station in the commercial broadcast services shall maintain a public inspection file containing the material, relating to that station, described in paragraphs (e)(1) through (e)(9) and paragraph (e)(12) of this section. In addition, every permittee or licensee of a commercial TV or Class A TV station shall maintain for public inspection a file containing material, relating to that station, described in paragraphs (e)(10), (e)(14), (e)(15), and (e)(16) of this section, and every permittee or licensee of a commercial AM or FM station shall maintain for public inspection a file containing the material, relating to that station, described in paragraphs (e)(11), (e)(13), and (e)(15) of this section. A separate file shall be maintained for each station for which an authorization is outstanding, and the file shall be maintained so long as an authorization to operate the station is outstanding.
b) * * *
(1) For radio licensees temporarily exempt from the online public file hosted by the Commission, as discussed in paragraph (b)(2) of this section, a hard copy of the public inspection file shall be maintained at the main studio of the station, unless the licensee elects voluntarily to place the file online as discussed in paragraph (b)(2) of this section. An applicant for a new station or change of community shall maintain its file at an accessible place in the proposed community of license or at its proposed main studio.
(2)(i) A television station licensee or applicant, and any radio station licensee or applicant not temporarily exempt as described in this paragraph, shall place the contents required by paragraph (e) of this section of its public inspection file in the online public file hosted by the Commission, with the exception of the political file as required by paragraph (e)(6) of this section, as discussed in paragraph (b)(3) of this section. Any radio station not in the top 50 Nielsen Audio markets, and any radio station with fewer than five full-time employees, shall continue to retain the public inspection file at the station in the manner discussed in paragraph (b)(1) of this section until March 1, 2018. However, any radio station that is not required to place its public inspection file in the online public file hosted by the Commission before March 1, 2018 may choose to do so, instead of retaining the public inspection file at the station in the manner discussed in paragraph (b)(1) of this section.
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
(pp) * * *
(2) In the case of a cable system with more than one headend, the principal headend designated by the cable operator, except that such designation shall not undermine or evade the requirements of subpart D of this part. Each cable system must provide information regarding the designation and location of the principal headend to the FCC. Except for good cause, an operator may not change its choice of principal headend.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
FRA proposes regulations to implement a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes operated by Amtrak. The proposed rule would develop this pilot program as required by a statutory mandate.
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Brandon White, Office of Railroad Policy and Development, FRA, 1200 New Jersey Ave. SE., Washington, DC 20590, (202) 493-1327, or Zeb Schorr, Office of Chief Counsel, FRA, 1200 New Jersey Ave. SE., Mail Stop 10, Washington, DC 20590, (202) 493-6072.
The proposed rule is in response to a statutory mandate—specifically, section 11307 of the Fixing America's Surface Transportation (FAST) Act, Public Law 114-94, sec. 11307, 129 Stat. 1312, 1660-1664 (2015). Section 11307 states that the Secretary of Transportation (Secretary) must promulgate a rule to implement a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes, as defined in 49 U.S.C. 24102 and operated by Amtrak on the date the Passenger Rail Reform and Investment Act of 2015 (title XI of the FAST Act) was enacted.
Section 11307 also provides for, among other things, the following:
(1) Establishment of a petition, notification, and bid process through which the Secretary would evaluate bids to provide passenger rail service over particular long-distance routes by interested eligible petitioners and Amtrak;
(2) The Secretary's selection of a winning bidder;
(3) The Secretary's execution of a contract with the winning bidder awarding the right and obligation to provide intercity passenger rail service over the route, along with an operating subsidy, subject to such performance standards as the Secretary may require;
(4) Amtrak must provide access to the Amtrak-owned reservation system, stations, and facilities to a winning bidder;
(5) Employees used in the operation of a route under the pilot program would be considered an employee of that eligible petitioner and would be subject to the applicable Federal laws and regulations governing similar crafts or classes of employees of Amtrak;
(6) The winning bidder must provide hiring preference to displaced qualified Amtrak employees;
(7) The winning bidder would be subject to 49 U.S.C. 24405 grant conditions; and
(8) If a winning bidder ceases to operate the service, or to otherwise fulfill their obligations, the Secretary, in collaboration with the Surface Transportation Board, would take any necessary action consistent with the FAST Act to enforce the contract and to ensure the continued provision of service.
The proposed rule would establish deadlines for filing petitions, filing bids, and FRA's execution of contract(s) with any winning bidders. As to the filing of petitions, § 269.7(b) of the proposed rule would require a petition to be filed with FRA no later than 60 days after publication of the final rule implementing the pilot program. Section 269.9(a) would then require the FRA to publish in the
As to the filing of bids, proposed § 269.9(b) would require both the petitioner and Amtrak, if Amtrak chose to do so, to submit complete bids to provide intercity passenger rail transportation over the applicable route with FRA not later than 120 days after FRA publishes a notice of receipt in the
Lastly, as to the award and execution of contracts with winning bidders (who are or do not include Amtrak), proposed § 269.13 would require FRA to execute a contract with a winning bidder not later than 270 days after the bid deadline established by proposed § 269.9.
Section 11307 of the FAST Act requires the Secretary to award an operating subsidy to a winning bidder that is not or does not include Amtrak. 49 U.S.C. 24711(b)(1)(E)(ii). Specifically, the operating subsidy, as determined by the Secretary, would be for the first year at a level that does not exceed 90 percent of the level in effect for that specific route during the fiscal year preceding the fiscal year the petition was received, adjusted for inflation, and any subsequent years under the same calculation, adjusted for inflation.
To determine the operating subsidy amount, FRA would take the fully-allocated costs of the route, as operated by Amtrak in the prior fiscal year, including direct route costs, shared route costs, and indirect costs, into consideration so that the operating subsidy award would not result in an increase in the Federal subsidy of intercity passenger rail. In addition, as section 11307 of the FAST Act requires, FRA would provide to Amtrak an appropriate portion of the applicable appropriations to cover any cost directly attributable to termination of Amtrak service on the route and any indirect costs to Amtrak imposed on other Amtrak routes as a result of losing service on the route operated by the winning bidder. Any amount FRA provides to Amtrak under the prior sentence would not be deducted from, or have any effect on, the operating subsidy 49 U.S.C. 24711(b)(1)(E)(ii) requires.
The FAST Act also authorizes the Secretary to fund the operating subsidy by withholding such sums as are necessary from the amount appropriated to the Secretary for the use of Amtrak for activities associated with Amtrak's National Network. FAST Act, section 11101(e), 129 Stat. at 1623. However, if Congress does not appropriate funds that allow the Secretary to pay an operating subsidy, then the Secretary cannot award an operating subsidy to a winning bidder other than Amtrak as required by the FAST Act. Consequently, this pilot program proposes to make the award of any operating subsidy to a winning bidder that is not or does not include Amtrak, subject to the availability of funding. Accordingly, the Secretary's contract with a winning bidder that is not or does not include Amtrak would not award an operating subsidy unless the award is consistent with the FAST Act and the applicable appropriations act. In addition, the Secretary would award the
This section provides that the proposed rule would carry out the statutory mandate in 49 U.S.C. 24711 requiring FRA, on behalf of the Secretary, to implement a pilot program to competitively select eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes, as defined in 49 U.S.C. 24102, and operated by Amtrak on the date of enactment of the FAST Act.
Paragraph (a) of this section provides that the proposed pilot program would not be made available to more than three Amtrak long-distance routes, as defined in 49 U.S.C. 24102. This proposed paragraph is based on the FAST Act directive in 49 U.S.C. 24711(a).
Paragraph (b) of this section proposes that any eligible petitioner awarded a contract to provide passenger rail service under the pilot program could only provide such service for a period not to exceed four years from the date the winning bidder commenced service and, at FRA's discretion on behalf of the Secretary, FRA could renew such service for one additional operation period of four years. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(A).
This section contains the definitions FRA proposes to use in this rule for the following terms: Act; Administrator; Amtrak; Eligible petitioner; File and Filed; Financial plan; FRA; Operating plan; and Long-distance route.
This section proposes to define “financial plan” to mean a plan that contains, for each Federal fiscal year fully or partially covered by the bid: an annual projection of the revenues, expenses, capital expenditure requirements, and cash flows (from operating activities, investing activities, and financing activities, showing sources and uses of funds) attributable to the route; and a statement of the assumptions underlying the financial plan's contents.
In addition, this proposed section defines “operating plan” to mean a plan that contains, for each Federal fiscal year fully or partially covered by the bid: A complete description of the service planned to be offered, including the train schedules, frequencies, equipment consists, fare structures, and such amenities as sleeping cars and food service provisions; station locations; hours of operation; provisions for accommodating the traveling public, including proposed arrangements for stations shared with other routes; expected ridership; passenger-miles; revenues by class of service between each city-pair proposed to be served; and a statement of the assumptions underlying the operating plan's contents. The proposed rule would require bidders to include a financial plan and an operating plan—as those terms are defined here—in their bids. These proposed definitions would ensure that bids contain sufficient information to be evaluated.
This section also proposes to define “long-distance route” to mean those routes described in 49 U.S.C. 24102(5) and operated by Amtrak on the date the FAST Act was enacted. This definition is based on the statutory directive in 49 U.S.C. 24711(a).
Paragraph (a) of this section proposes that an eligible petitioner may petition FRA to provide intercity passenger rail transportation over a long-distance route in lieu of Amtrak for a period of time consistent with the time limitations described in § 269.3(c). This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(A).
Paragraph (b) of this section proposes that a petition submitted to FRA under this rule must: be filed with FRA no later than 60 days after FRA publishes the competitive passenger rail service pilot program final rule; describe the petition as a “Petition to Provide Passenger Rail Service under 49 CFR part 269”; and describe the long-distance route or routes over which the petitioner wants to provide intercity passenger rail transportation and the Amtrak service the petitioner wants to replace. This proposed paragraph is intended to ensure a petition provides clear notice to FRA.
Paragraph (a) of this section proposes that FRA would notify the eligible petitioner and Amtrak of receipt of a petition filed with FRA by publishing a notice of receipt in the
Paragraph (b) of this section describes the proposed bid requirements, including that a bid must be filed with FRA no later than 120 days after FRA publishes the notice of receipt in the
Paragraph (c) of this section proposes that FRA could request supplemental information from a bidder and/or Amtrak if FRA determines it needs such information to adequately evaluate a bid. Such a request may seek information about the costs related to the service that Amtrak would still incur following the cessation of service, including the increased costs for other services. FRA would establish a deadline by which the bidder and/or Amtrak must submit the supplemental information to FRA.
Paragraph (a) of this section proposes that FRA would select a winning bidder by evaluating the bids based on the requirements of this proposed part.
Paragraph (b) of this section proposes that, upon selecting a winning bidder, FRA would publish a notice in the
Paragraph (a) of this section proposes that FRA would execute a contract with a winning bidder that is not or does not include Amtrak, consistent with the requirements of proposed § 269.13, and as FRA may otherwise require, not later than 270 days after the bid deadline established by proposed paragraph 269.9(b). This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(E).
Paragraph (b) of this section proposes what the contract would include. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(E), (b)(4), and (c)(3).
Paragraph (c) of this section proposes that the winning bidder would make their bid available to the public after the bid award with any appropriate confidential or proprietary information redactions. This proposed paragraph is
Paragraph (a) of this section proposes that, if an award under proposed § 269.13 is made to a bidder other than Amtrak, Amtrak must provide access to the Amtrak-owned reservation system, stations, and facilities directly related to operations of the awarded route(s) to the bidder. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(c).
Paragraph (b) of this section proposes that the employees of any person, except as provided in a collective bargaining agreement, a bidder uses to operate a route under the proposed rule would be considered an employee of that bidder and subject to the applicable Federal laws and regulations governing similar crafts or classes of employees of Amtrak. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(c)(2).
Paragraph (c) of this section proposes that a winning bidder would provide hiring preference to qualified Amtrak employees displaced by the award of the bid, consistent with the staffing plan submitted by the winning bidder. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(c)(3).
This section proposes under paragraph (a) that, if a bidder awarded a route under this rule ceases to operate the service or fails to fulfill its obligations under the contract required under proposed § 269.13, the Administrator, in collaboration with the Surface Transportation Board, would take any necessary action consistent with title 49 of the United States Code to enforce the contract and ensure the continued provision of service, including the installment of an interim service rail carrier, providing to the interim rail carrier an operating subsidy necessary to provide service, and re-bidding the contract to operate the service. This section further proposes under paragraph (b) that the entity providing interim service would either be Amtrak or an eligible petitioner under § 269.5. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(d).
FRA evaluated this proposed rule consistent with Executive Orders 12866 and 13563 and DOT policies and procedures.
FRA does not expect any regulatory costs because this proposed rule would be voluntary and would not require an eligible petitioner to take any action. In addition, the proposed rule is limited to not more than three long-distance routes as defined in 49 U.S.C. 24102 and operated by Amtrak on the date the FAST Act was enacted. Furthermore, the current market conditions and the investment necessary to operate a long-distance service may further serve to limit the number of eligible petitioners submitting petitions under the proposed pilot program. Of course, if no eligible petitioners participate in the pilot program, then no costs or benefits would be incurred because of the proposed rule. However, FRA is estimating the costs and benefits generated when three eligible petitioners submit bids to operate long-distance rail service.
As discussed above, FRA assumed three entities would submit bids to estimate costs for the bidding scenario. The costs are solely due to preparing and filing a bid to operate service. Amtrak may submit a bid only if another entity submitted a petition to bid on a route. To estimate the cost for preparing and submitting a bid, FRA estimated the time and cost for FRA to review each bid. FRA estimates its review cost would be approximately $49,834 per bid. Based on the costs of collecting and analyzing data, drafting a bid, and gaining approval within the organization, FRA estimates a railroad or other entity that bids on a route would incur a cost of approximately three times as much as FRA's review cost— approximately $149,503 per bid. If an entity bids on a route, for this analysis, we assumed Amtrak would also submit a bid for the same route. Amtrak may have some of the data necessary to prepare the bid available. Therefore, their cost may be lower than another entity. Based on the costs of analyzing data, drafting a bid, and gaining approval within the organization, FRA estimated Amtrak's cost to prepare and submit a bid would be twice FRA's review cost —approximately $99,669. All bid costs would be incurred during the first year. The table below shows the estimated cost for an entity and Amtrak to bid on one long-distance route.
As stated above, FRA's total burden estimate assumes three bids would be submitted for long-distance routes. The total cost to entities other than Amtrak would be approximately $448,509. The total cost to Amtrak would be approximately $299,007. The sum of these two costs is $747,516. Since all petitions and bids would occur during the first year, the total cost would be approximately $747,516 over the four-year period (which could become 8 years if the Secretary renews a contract).
Some benefits are possible from this proposed rule. FRA cannot quantify the benefits but discussed them qualitatively in the regulatory evaluation. If no railroads submit a bid for operating service, Amtrak would continue to operate service as it currently does. Therefore, no benefits would occur because of this proposed rule. However, if other entities are awarded contracts, those entities may be able to operate the service in a manner that would be beneficial to passengers. Possible benefits include better service and lower cost.
The introduction of competition in the bidding process may increase passenger rail efficiency and generate public benefits by lowering the operational subsidy, and possibly leading to better service and/or lower operating costs to society. FRA expects no change to railroad safety due to this proposed regulation.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
FRA is revising 49 CFR part 269 to comply with a statutory mandate requiring the Secretary to promulgate a rule to implement a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes. The proposed rule would develop this pilot program consistent with the statutory directive.
The objective of this proposed rule is to implement the statutory mandate in FAST Act section 11307 to develop a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes, as defined in 49 U.S.C. 24102, operated by Amtrak on the date of enactment of the FAST Act.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
Federal agencies may adopt their own size standards for small entities in consultation with the SBA and in conjunction with public comment. Under that authority, FRA has published a final statement of agency policy that formally establishes “small entities” or “small businesses” as railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad in 49 CFR 1201.1-1, which is $20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less.
The $20 million limit is based on the Surface Transportation Board's revenue threshold for a Class III railroad carrier. Railroad revenue is adjusted for inflation by applying a revenue deflator formula under 49 CFR 1201.1-1. FRA is using this definition for the proposed rule. For other entities, the same dollar limit in revenues governs whether a railroad, contractor, or other respondent is a small entity.
This proposed rule would apply to the following eligible petitioners: (a) A rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route, or another rail carrier that has a written agreement with a rail carrier or rail carriers that own such infrastructure; (b) a State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for provision of intercity rail passenger transportation with a written agreement with the rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation; or (c) a State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for provision of intercity rail passenger transportation and a rail carrier with a written agreement with another rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation. The only petitioners that may be considered a small entity would be small railroads.
This proposed rule is voluntary for all eligible petitioners. Therefore, there are no mandates placed on large or small railroads. In addition, the proposed rule is limited to not more than three long-distance routes operated by Amtrak. Consequently, this proposed rule is not likely to affect a substantial number of small entities, and most likely will not impact any small entities. However, since small entities can bid for service, FRA requests comments on this finding.
Since this program is voluntary, small railroads would not have to take any action. Therefore, this proposed rule would not have any negative economic impact on small entities. Small railroads face the same requirements for entry in the pilot program as other railroads. The railroad must own the infrastructure over which Amtrak operates those long-distance routes described in 49 U.S.C. 24102. Any small entity would likely only bid on a route if it was in its financial interest to do so. Accordingly, any impact on small entities would be positive. The pilot program would allow small railroads to enter a market which currently has substantial barriers.
FRA notes this proposed rule does not disproportionately place any small railroads that are small entities at a significant competitive disadvantage. Small railroads are not excluded from participation if they are statutorily eligible. This proposed rule and the underlying statute concern the potential selection of eligible petitioners to operate an entire long-distance route. If Amtrak uses 30 miles of a small railroad's infrastructure on a route that is 750 miles long, that small railroad could not apply under this proposed rule to operate service only over the 30 mile segment it owns (the small railroad would have to apply to operate service over the whole route). Thus, the ability to bid on a route is not constrained by a railroad's size.
FRA is not aware of any relevant Federal rule that duplicates, overlaps with, or conflicts with this proposed rule. FRA invites all interested parties to submit comments, data, and information demonstrating the potential economic
Under the Paperwork Reduction Act of 1995 and the Office of Management and Budget's (OMB) Implementing Guidance at 5 CFR 1320.3(c):
FRA expects the requirements of this proposed rule would affect less than 10 “persons” as defined in 5 CFR 1320.3(c)(4). Consequently, no information collection submission is necessary, and no approval is being sought from OMB at this time.
FRA evaluated this NPRM consistent with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321
Executive Order 13132, “Federalism” (64 FR 43255, Aug. 4, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.
FRA has analyzed this NPRM consistent with the principles and criteria in Executive Order 13132. This NPRM complies with a statutory mandate, and, thus, is in compliance with Executive Order 13132.
In addition, this NPRM will not have a substantial effect on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. In addition, this NPRM will not have any federalism implications that impose substantial direct compliance costs on State and local governments.
Under Section 201 of the Unfunded Mandates Reform (UMR) Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the UMR Act (2 U.S.C. 1532) further requires that:
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355, May 22, 2001. Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the
Interested parties should be aware that anyone can search the electronic form of all written communications and comments received into any agency docket by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union,
Railroads, Railroad employees.
For the reasons discussed in the preamble, FRA proposes to revise part 269 of chapter II, subtitle B, title 49 of the Code of Federal Regulations to read as follows:
Sec. 11307, Pub. L. 114-94; 49 U.S.C. 24711; and 49 CFR 1.89.
The purpose of this part is to carry out the statutory mandate in 49 U.S.C. 24711 requiring the Secretary to implement a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes.
(a)
(b)
As used in this part—
(1) A rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route, or another rail carrier that has a written agreement with a rail carrier or rail carriers that own such infrastructure;
(2) A State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for providing intercity rail passenger transportation with a written agreement with the rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation; or
(3) A State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for providing intercity rail passenger transportation and a rail carrier with a written agreement with another rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation.
(1) An annual projection of the revenues, expenses, capital expenditure requirements, and cash flows (from operating activities, investing activities, and financing activities, showing sources and uses of funds) attributable to the route; and
(2) A statement of the assumptions underlying the financial plan's contents.
(1) A complete description of the service planned to be offered, including the train schedules, frequencies, equipment consists, fare structures, and such amenities as sleeping cars and food service provisions; station locations; hours of operation; provisions for accommodating the traveling public, including proposed arrangements for stations shared with other routes; expected ridership; passenger-miles; revenues by class of service between each city-pair proposed to be served; and
(2) A statement of the assumptions underlying the operating plan's contents.
(a)
(b)
(1) File the petition with FRA no later than 60 days after FRA publishes the competitive passenger rail service pilot program final rule;
(2) Describe the petition as a “Petition to Provide Passenger Rail Service under 49 CFR part 269”; and
(3) Describe the long-distance route or routes over which the eligible petitioner wants to provide intercity passenger rail transportation and the Amtrak service that the eligible petitioner wants to replace.
(a)
(b)
(1) Provide FRA with sufficient information to evaluate the level of service described in the proposal, and to evaluate the proposal's compliance with the requirements in § 269.13(b);
(2) Describe how the bidder would operate the route.
(i) This description must include, but is not limited to, an operating plan, a financial plan and, if applicable, any agreement(s) necessary for the operation of passenger service over right-of-way on the route that is not owned by the bidder.
(ii) In addition, if the bidder intends to generate any revenues from ancillary activities (
(3) Describe what passenger equipment the bidder would need, including how it would be procured;
(4) Describe in detail, including amounts, timing, and intended purpose, what sources of Federal and non-Federal funding the bidder would use, including but not limited to any Federal or State operating subsidy and any other Federal or State payments;
(5) Contain a staffing plan describing the number of employees the bidder needs to operate the service, the job assignments and requirements, and the terms of work for prospective and current employees of the bidder for the service outlined in the bid;
(6) Describe the capital needs for the passenger rail service;
(7) Describe in detail the bidder's plans for meeting all FRA safety requirements, including equipment, employee, and passenger parameters;
(8) Describe, for each Federal fiscal year fully or partially covered by the bid, a projection of the passenger rail service route's total revenue, total costs, total contribution/loss, and net cash used in operating activities per passenger-mile attributable to the route;
(9) Describe how the passenger rail service would meet or exceed the performance required of or achieved by Amtrak on the applicable route during the last fiscal year. At a minimum, this description must include, for each Federal fiscal year fully or partially covered by the bid a projection of the route's expected on-time performance and train delays;
(10) Analyze the reasonably foreseeable effects, both positive and negative, of the passenger rail service on other intercity passenger rail services; and
(11) Describe the bidder's compliance with all applicable Federal environmental laws.
(c)
(2) FRA's request may seek information about the costs related to the service that Amtrak would still incur following the cessation of service, including the increased costs for other services.
(3) FRA will establish a deadline by which the bidder and/or Amtrak must file the supplemental information with FRA.
(a)
(b)
(2) The notice under this paragraph will be open for public comment for 30 days after the date FRA selects the bid.
(a)
(b)
(1) Award to the winning bidder the right and obligation to provide intercity passenger rail transportation over that route subject to such performance standards as FRA may require for a duration consistent with § 269.3(b);
(2) Award to the winning bidder an operating subsidy, as determined by FRA, subject to the availability of funding, for the first year at a level that does not exceed 90 percent of the level in effect for that specific route during the fiscal year preceding the fiscal year in which the petition was received, adjusted for inflation;
(3) State that any award of an operating subsidy is made annually, is subject to the availability of funding, and is based on the amount calculated under § 269.13(b)(2), adjusted for inflation;
(4) Condition the operating and subsidy rights upon the winning bidder providing intercity passenger rail transportation over the route that is no less frequent, nor over a shorter distance, than Amtrak provided on that route before the award;
(5) Condition the operating and subsidy rights upon the winning bidder's compliance with performance standards FRA may require, but which, at a minimum, must meet or exceed the performance required of or achieved by Amtrak on the applicable route during the last fiscal year; and
(6) Subject the winning bidder to the grant conditions established by 49 U.S.C. 24405.
(c)
(a)
(b)
(c)
(a) If an eligible petitioner awarded a route under this part ceases to operate the service or fails to fulfill its obligations under the contract required under § 269.13, the Administrator, in collaboration with the Surface Transportation Board, shall take any necessary action consistent with title 49 of the United States Code to enforce the contract and ensure the continued provision of service, including the installment of an interim service and re-bidding the contract to operate the service.
(b) In re-bidding the contract, the entity providing service must either be Amtrak or an eligible petitioner.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the elfin-woods warbler (
We will accept comments on the proposed rule or draft economic analysis that are received or postmarked on or before August 22, 2016. Comments submitted electronically using the Federal eRulemaking Portal (see
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
The coordinates, plot points, or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
Marelisa Rivera, Deputy Field Supervisor, U.S. Fish and Wildlife Service, Caribbean Ecological Services Field Office, P.O. Box 491, Boquerón, PR 00622; telephone 787-851-7297; facsimile 787-851-7440. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
We intend that any final action resulting from this proposed rule will be based on the best scientific data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned government agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:
1. The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
2. Specific information on:
a. The amount and distribution of the elfin-woods warbler's habitat;
b. What areas, that were occupied at the time of listing (
c. Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
d. What areas not occupied at the time of listing (
3. Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
4. Information on the projected and reasonably likely impacts of climate change on the elfin-woods warbler and proposed critical habitat.
5. Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the benefits of including or excluding areas that exhibit these impacts.
6. Information on the extent to which the description of economic impacts in the draft economic analysis (DEA) is a reasonable estimate of the likely economic impacts.
7. The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the associated documents of the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.
8. Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.
9. Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
All comments submitted electronically via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
All previous Federal actions are described in the proposal to list the elfin-woods warbler as a threatened species under the Act published on September 30, 2015 (80 FR 58674).
Critical habitat is defined in section 3 of the Act as:
1. The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
a. Essential to the conservation of the species, and
b. Which may require special management considerations or protection; and
2. Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In defining those physical and biological features within an area, we focus on the specific features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat, we can
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species, the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the listed species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat, as applicable under the proposed 4(d) rule for this species (80 FR 58674; September 30, 2015). Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. With the listing of the elfin-woods warbler, published elsewhere in this issue of the
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:
1. The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or
2. Such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Service may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.”
As discussed in the proposed listing rule, there is currently no imminent threat of take attributed to collection or vandalism for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, we determine if such designation of critical habitat would not be beneficial to the species. As discussed in our proposed listing rule, we have determined that the present or threatened destruction, modification, or curtailment of a species' habitat or range is a threat to the elfin-woods warbler. Furthermore, as discussed below, we have determined that three areas meet the Act's definition of “critical habitat.”
Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and would be beneficial, we find that designation of critical habitat is prudent for the elfin-woods warbler.
Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the elfin-woods warbler is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:
1. Data sufficient to perform required analyses are lacking, or
2. The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”
When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).
At the time of the proposed listing, we found that critical habitat was not determinable because the specific information sufficient to perform the required analysis of the impacts of the designation was lacking. We have since acquired the appropriate information necessary to perform the impacts analysis. We have also reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. This and other information represent the best scientific data available and have now led us to conclude that the designation of critical habitat is determinable for the elfin-woods warbler.
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features (PBFs) that are essential to the
• Space for individual and population growth and for normal behavior;
• Food, water, air, light, minerals, or other nutritional or physiological requirements;
• Cover or shelter;
• Sites for breeding, reproduction, or rearing (or development) of offspring; and
• Habitats that are protected from disturbance or are representative of the historic, geographical and ecological distributions of a species.
We derive the specific PBFs essential for the elfin-woods warbler from studies of its habitat, ecology, and life history as described below. Additional information can be found in the proposed listing rule (80 FR 58674; September 30, 2015). We have determined that the following PBFs are essential to the conservation of the elfin-woods warbler.
The elfin-woods warbler is an endemic Puerto Rican bird with a very limited distribution, and it is typically observed in forested habitats with closed canopy and well-developed understory in higher elevations. Based on the best available information, there are only two known populations, one in eastern and one in western Puerto Rico. The eastern population occurs at El Yunque National Forest (EYNF) located within the Sierra de Luquillo mountains. The species' primary habitat at EYNF consists of the dwarf forest (Kepler and Parkes 1972, pp. 3-5) and the Palo Colorado forest (Wiley and Bauer 1985, pp. 12-18). The dwarf forest falls within the lower montane rain forest life zone (Ewel and Whitmore 1973, p. 49). It is found on exposed peaks with short, stunted vegetation above 900 meters (m) (2,952 feet (ft)) in elevation (Weaver 2012, p. 58). The dwarf forest is characterized by a single story of trees that range from 1 to 6 m (3 to 19 ft) in height, depending on exposure (Weaver 2012, p. 58). However, trees located on rocky summits are limited to 2 to 3 m (6 to 10 ft) in height. Although no tree species is confined to this type of forest, only a few species, such as
The western population of the elfin-woods warbler is located within the Maricao Commonwealth Forest (MCF) and adjacent agricultural lands. The MCF is located within the Cordillera Central (central mountain range) of Puerto Rico. The primary habitat of the western population consists of the
In the privately owned lands adjacent to the MCF, the species has been reported mainly within secondary forests (both young and mature secondary forests) and shade-grown coffee plantations (González 2008, pp. 15-16). The young secondary forests are less than 25 years old with an open canopy of approximately 12-15 m (40-50 ft) in height (González 2008, p. 6). These forests are found within the subtropical moist and subtropical wet forest life zones at elevations ranging from 300 to 750 m (984 to 2,460 ft) (González 2008, p. 59; Puerto Rico Planning Board 2015, no page number), and cover approximately 98 percent of the MCF (DNR 1976, p. 185). The understory is well-developed and dominated by grasses, vines, and other early successional species (González 2008, p. 6). Mature secondary forests are over 25 years old, developing in humid and very humid, moderate to steep slopes. These forests are characterized by a closed canopy of approximately 20-30 m (66-100 ft) in height and sparse to abundant understory (González 2008, p. 6). The shade-grown coffee plantations are covered with tall mature trees, dominated mostly by
Limited information exists about the species' nesting sites and behavior. However, it is known that the elfin-woods warbler utilizes these forested habitats for its nest construction. According to the habitat suitability model developed for the species, all of the habitats described above occur within the intermediate to very high adequacy category (Colón-Merced 2013, p. 57). This model was developed based on a combination of elevation and vegetation cover from areas where the species is known to occur. In addition, as mentioned above, the species appears to be associated with high elevations and is seldom observed in elevations lower than 300 m (984 ft). The habitat types identified above are the only habitats that the species is known to occupy and use for normal behavior and that support the elfin-woods warbler's life-history processes. Thus, the
Therefore, based on the available information describing the habitat used by the elfin-woods warbler, we identified the dwarf, Palo Colorado,
As described above in “Space for Individual and Population Growth and for Normal Behavior,” the elfin-woods warbler occurs in higher densities within the dwarf, Palo Colorado,
There is little quantitative information about the elfin-woods warbler's breeding, reproduction, and offspring development. However, based on the best available information, shaded and forested corridors are features that are essential to accommodate the species' normal behaviors including breeding, reproduction, and rearing. The elfin-woods warbler's breeding occurs between March and June (Raffaele
Therefore, based on the above information, we identified the
In summary, the PBFs essential for the conservation of the elfin-woods warbler are:
1. Wet and rain montane forest types:
a.
b. Dwarf forest at elevations above 900 m (2,952 ft) with a single story of trees between 1 and 6 m (3 and 19 ft) in height, with an understory of mosses, epiphytes, and liverworts.
c. Palo Colorado forest at elevations between 600 and 900 m (1,968 and 2,952 ft) with a closed canopy of approximately 20 m (66 ft) and an understory dominated by grasses, ferns, bromeliads, and sedges.
2. Forested habitat areas that contain:
a. Active shade-grown coffee plantations or forested agricultural lands dominated primarily by native vegetation; or
b. Abandoned coffee plantations or agricultural lands with native forest cover and a closed canopy.
3. Forested habitat (at elevations between 300 and 850 m (984 and 2,788 ft)) not contained within the habitats described in PBF 1 or PBF 2:
a. Exposed ridge woodland forest found in valleys, slopes, and shallow soils with a more or less continuous canopy at elevations ranging from 550 to 750 m (1,804 to 2,460 ft);
b. Timber plantation forest at elevations ranging from 630 to 850 m (2,066 to 2,788 ft); or
c. Secondary forests dominated by native tree species with a closed canopy of approximately 20-30 m (66-100 ft) in height at elevations ranging from 300 to 750 m (984 to 2,460 ft).
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain PBFs which are essential to the conservation of the species and which may require special management considerations or protection.
The occupied units we are proposing to designate as critical habitat for the elfin-woods warbler will require some level of management to address the current and future threats to the PBFs. The proposed Maricao unit contains privately owned agricultural lands in which various activities may affect one or more of the PBFs. The features of this unit essential to the conservation of this species may require special management considerations or protection to reduce the following threats or potential threats that may result in changes in the composition or abundance of vegetation inside this unit: Loss, fragmentation, and degradation of habitat due to unsustainable agricultural practices; hurricanes; and human-induced fires. The features of the El Yunque unit may require special management considerations or protection to reduce threats or potential threats from hurricanes and human-induced fires, which may be exacerbated by the effects of climate change.
Management activities that could ameliorate these threats or potential threats include but are not limited to: The candidate conservation agreement (CCA) signed in 2014 among the Service, U.S. Forest Service, and Puerto Rico Department of Natural and Environmental Resources (PRDNER) to implement conservation practices for the benefit of the elfin-woods warbler and their habitat in EYNF and MCF (USFWS 2014); implementation of conservation agreements with private land owners to restore habitat, and to minimize habitat disturbance, fragmentation, and destruction; and development and implementation of management plans for other protected lands where the species is found.
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify occupied areas at the time of listing that contain the features essential to the conservation of the species. We also consider whether designating additional areas—outside those currently occupied—are essential for the conservation of the species.
Because of the vulnerability associated with small populations, limited distributions, or both, conservation of species such as the elfin-woods warbler should include the protection of both existing and potential habitat, and the establishment of new populations to reduce or eliminate such vulnerability. Therefore, for the elfin-woods warbler, in addition to areas occupied by the species at the time of listing, we also are proposing to designate habitat outside the geographical area occupied by the species at the time of listing that was historically occupied, but is presently unoccupied, because it is essential for the conservation of the species.
Sources of data for the elfin-woods warbler and its habitat include reports on assessments and surveys throughout the species' range, peer-reviewed scientific and academic literature, habitat suitability models, personal communications with the species experts (
To further refine the boundaries, we used an existing elfin-woods warbler habitat suitability model (Colón-Merced 2013, p. 51). This model utilized variables such as elevation and vegetation cover to predict suitable habitat for this species in Puerto Rico (Colón-Merced 2013, p. 45). This model has been validated in several locations in Puerto Rico (BirdLife and SOPI, final report in progress).
In order to identify essential habitat within private lands adjacent to the MCF, we established a buffer zone of 500 m (0.31 mile (mi)) from the boundary line of the MCF to include forested areas in abandoned and active shade-grown coffee plantations where the elfin-woods warbler has been reported on the north, east, and west sides of the forest (González 2008, p. 59). We used 500 m (0.31 mi) as our buffer zone because our best understanding of the available information (
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as: An area that may generally be delineated around species' occurrences, as determined by the Secretary (
The proposed critical habitat designation focuses on occupied forested areas within the species' historical range containing the PBFs that will allow for the maintenance and expansion of existing populations and for possible new populations. Two areas meet the definition of areas occupied by the species at the time of listing: (1) EYNF; and (2) MCF and adjacent private lands to the north, east, and west.
For areas not occupied by the species at the time of the proposed listing (September 30, 2015), we must demonstrate that the areas are essential for the conservation of the species. To determine if these areas are essential for the conservation of the elfin-woods warbler, we considered:
• The importance of the area to the overall status of the species to prevent extinction and contribute to the species' conservation;
• Whether the area contains the necessary habitat to support the species;
• Whether the area provides connectivity between occupied sites for genetic exchange; and
• Whether a population of the species could be reestablished in the area.
The Carite Commonwealth Forest (CCF) is within the historical range of the elfin-woods warbler, within the Sierra de Cayey mountains in southeast Puerto Rico (Silander
The CCF has been managed for conservation by the PRDNER since 1975 (previously Department of Natural Resources (DNR); DNR 1976, p. 169). This forest covers about 2,695 ha (6,660 ac), and ranges between 250 and 903 m (820 and 2,962 ft) in elevation (DNR 1976, p. 168). The mean annual precipitation is 225 cm (88.5 in), and the mean temperature is 22.7 degrees Celsius (°C) (72.3 degrees Fahrenheit (°F)) (DNR 1976, p. 169; Silander
The CCF contains the following forest types: Dwarf forest, Palo Colorado forest, timber plantation forest, and secondary forests. These are the same forest types used by the elfin-woods warbler in EYNF and MCF. These forest types are located within the same life zones in CCF as they are in EYNF and MCF (Ewel and Whitmore 1973, p. 74). The dwarf forest is found on exposed peaks and ridges of Cerro La Santa, above 880 m (2,887 ft) in elevation, occupying approximately 10.1 ha (24.9 ac) of the forest (Silander
Although studies conducted by Anadón-Irizarry (2006, 2014) between 2003-2004 and 2012-2013 failed to detect the species within the CCF, she suggested the possibility that the species may still be present in isolated pockets of forest that were not searched during the studies (Delannoy 2007, p. 22). The apparent persistent and relatively sedentary behavior of this species, in inhabiting certain small and isolated pockets of the forest, might have led these authors to suggest that CCF may harbor undetected elfin-woods warblers (Anadón-Irizarry 2006, p. 54; Delannoy 2007, pp. 22-23; Pérez-Rivera 2014, pers. comm.). However, surveys contracted by the Service and conducted between March and April 2016, did not detect the species within the CCF and adjacent private lands (Aide and Campos 2016). In any case, we still believe that CCF contains habitat that may be suitable for the elfin-woods warbler due to its similarity in elevation, climatic conditions, and vegetation associations with EYNF and MCF (Colón-Merced 2013, p. 57). This area contains habitat with “intermediate to very high adequacy” (favorable to optimal combination of elevation and vegetation cover regarding the known elfin-woods warbler habitat) according to the habitat suitability model for the species (Colón-Merced 2013, p. 57).
The CCF provides the necessary habitat to support the elfin-woods warbler in the easternmost part of the Cordillera Central. The presence of suitable habitat characteristics and historic occurrence of the species within the CCF increase the opportunity for future reestablishment of a population of elfin-woods warblers in this forest. In addition, the connectivity between MCF and CCF through the Cordillera Central is expected to result in genetic exchange between the existing MCF populations and CCF populations that may be reestablished in the future. It should be noted that while there is connectivity between MCF and CCF, the EYNF is within the Sierra de Luquillo mountains with lower elevation and development between the mountain ranges that significantly reduces connectivity between CCF and EYNF. For the above-mentioned reasons, we conclude that suitable habitat within the CCF meets the four considerations described above, and is therefore essential for the conservation of the elfin-woods warbler.
In summary, we are proposing to designate as critical habitat two units that we have determined are occupied at the time of listing and contain sufficient elements of PBFs to support life-history processes essential to the conservation of the species, and one unit outside of the geographical area occupied at the time of listing that we have determined is essential for the conservation of the species. Some units contain all of the identified elements of PBFs and support multiple life-history processes, and some units contain only some of those elements.
The proposed critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented at the end of this document in the Proposed Regulation Promulgation section. We include more detailed information on the boundaries of the proposed critical habitat designation in the individual unit descriptions below. We will make the coordinates, plot points, or both on which each map is based available to the public on
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack PBFs for the elfin-woods warbler. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the PBFs in the adjacent critical habitat.
We are proposing to designate approximately 10,977 ha (27,125 ac) in three units as critical habitat for the elfin-woods warbler: Unit 1: Maricao, Unit 2: El Yunque, and Unit 3: Carite. Two units (Marico and El Yunque) are currently occupied and one unit (Carite) is currently unoccupied. Table 1 shows the land ownership and approximate size of each of the proposed critical habitat units.
We present brief descriptions of all units below.
Unit 1 consists of a total of 5,105 ha (12,615 ac). Approximately 3,442 ha (8,506 ac) are owned by the Commonwealth and managed by the PRDNER and 1,663 ha (4,109 ac) are in private ownership. This unit is located within the municipalities of Maricao, San Germán, Sabana Grande, and Yauco. This unit encompasses the majority of the Maricao Commonwealth Forest. The unit is located north of State Road PR-2, south of State Road PR-105, and approximately 105 kilometers (km) (65 miles (mi)) west of the International Airport Luis Muñoz Marin. This unit is within the geographical area occupied by the elfin-woods warbler at the time of listing. This unit contains all of the PBFs. The PBFs in this unit may require special considerations or protection to address the following threats or potential threats that may result in changes in the composition or abundance of vegetation within this unit: Loss, fragmentation, and degradation of habitat due to unsustainable agricultural practices; hurricanes; and human-induced fires. This unit represents a core population for the species and will likely contribute to range expansion of the elfin-woods warbler.
Unit 2 consists of 4,626 ha (11,430 ac) of federally owned land managed by the U.S. Forest Service (EYNF). It is located within the municipalities of Río Grande, Canovanas, Las Piedras, Naguabo, and Ceiba. The unit is located within EYNF located east of State Road PR-186, north of State Road PR-31, and approximately 24 km (15 mi) east of the International Airport Luis Muñoz Marin. This unit is within the geographical area occupied by the elfin-woods warbler at the time of listing. This unit contains PBFs 1(b) and 1(c) (see
Unit 3 consists of 1,246 ha (3,080 ac) of lands owned by the Commonwealth and managed by the PRDNER. It is located within the municipalities of Cayey, San Lorenzo, Guayama, and Patillas. The unit is located within the CCF west of State Road PR-7740 and State Road PR-184 that runs within the CCF, and approximately 37 km (23 mi) south of the International Airport Luis Muñoz Marin. This unit was not occupied by the elfin-woods warbler at the time of listing. As discussed above (see
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
On February 11, 2016, the Service and National Marine Fisheries Service published a final rule in the
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
1. A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
2. A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
1. Can be implemented in a manner consistent with the intended purpose of the action,
2. Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
3. Are economically and technologically feasible, and
4. Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently,
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of the elfin-woods warbler. Such alterations may include, but are not limited to, those that alter the PBFs essential to the conservation of these species or that preclude or significantly delay development of such features. As discussed above, the role of critical habitat is to support PBFs essential to the conservation of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the elfin-woods warbler. These activities include, but are not limited to:
1. Actions that would significantly alter the structure and function of active shade-grown coffee plantations, abandoned coffee plantations, and/or agricultural lands with native forest cover and a closed canopy. These actions or activities may include, but are not limited to, deforestation, conversion of shade-grown coffee to sun-grown coffee plantations, and unsustainable agricultural practices (
2. Actions that would significantly alter the vegetation structure in and around the
Section 4(a)(3)(B)(i) of the Act provides that: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands with a completed INRMP within the proposed critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of the elfin-woods warbler, the benefits of critical habitat include public awareness of the presence of the elfin-woods warbler and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the elfin-woods warbler due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies.
We are not proposing to exclude any areas from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a DEA concerning the proposed critical habitat designation, which is available for review and comment (see
Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the
For this proposed designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat (USFWS 2015). The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the elfin-woods warbler (Abt Associates, Inc. 2016). The purpose of the screening analysis is to filter out the geographic areas in which the critical habitat designation is unlikely to result in probable incremental economic impacts. In particular, the screening analysis considers baseline costs (
Executive Orders (E.O.) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable. We assess to the extent practicable the probable impacts, if sufficient data are available, to both directly and indirectly impacted entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely to be affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the elfin-woods warbler, first we identified, in the IEM dated December 7, 2015, probable incremental economic impacts associated with the following categories of activities: forest management, silviculture/timber management, implementation of conservation/restoration practices, human-induced fire management, development or improvement of existing infrastructure (
Additionally, we considered whether these activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; it only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the elfin-woods warbler is present, Federal agencies will already be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into that consultation process. Additionally, the Service extends this finding to unoccupied habitat, noting that “any project modifications or conservation measures recommended to prevent adverse modification of the EWW CH will not differ from project modifications and conservation measures recommended to prevent the jeopardy of other federally listed co-occurring species in the area (
In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation (
The proposed critical habitat designation for the elfin-woods warbler is approximately 10,977 ha (27,125 ac) within three units. Two of the units are occupied (89 percent of the total ha/ac) at the time of listing while one is not occupied (11 percent of the total ha/ac) at the time of listing (see Table 1, above). The proposed critical habitat designation consists of the following: Commonwealth lands (43 percent),
Because the majority of the proposed critical habitat units are already managed for natural resource conservation, all proposed units have co-occurring federally listed species, and two of the three proposed units are occupied by the elfin-woods warbler, it is unlikely that costs will result from section 7 consultations considering critical habitat alone, consultations resulting in adverse modifications alone, or project modifications attributable to critical habitat alone. The only incremental costs predicted are the administrative costs due to additional consideration of adverse modification of critical habitat during section 7 consultations. Based on estimates from existing section 7 consultations on a surrogate listed species, the Puerto Rican sharp-shinned hawk, the DEA predicts that 5.4 technical assistance, 2.4 informal consultations, and 0.6 formal consultations per year will consider critical habitat for the elfin-woods warbler.
As a result of the critical habitat designation for the elfin-woods warbler, the PRDNER will incorporate the critical habitat under Commonwealth law through Appendix 2b under regulation 6766. This regulation introduces stricter requirements for critical, including a requirement to mitigate affected lands by a ratio of three to one. However, the DEA is unable to determine what, if any, incremental costs will result from this regulation because the Commonwealth regulation only applies to private agricultural lands where the Service already works to curb forest clearing. In addition, because there are other federally listed species in all units of the proposed critical habitat, the Service finds that the designation of critical habitat for the elfin-woods warbler is unlikely to lead to changes in permitting processes by Commonwealth or local agencies or other land managers.
Stigma effects (the perceived effects of designating critical habitat) are likely to be minimal because in all proposed critical habitat units land managers already take measures to protect the elfin-woods warbler. Namely, in Federal and Commonwealth land (85 percent of proposed critical habitat), an existing Candidate Conservation Agreement and a designation as a “critical element” under the National Heritage Program formalize conservation measures for the elfin-woods warbler. In private lands (15 percent of proposed critical habitat), stigma effects are likely to be very little because much of the land is agricultural with little possibility of future development. In addition, the Service has a history of working with these farmers in conservation programs that consider the elfin-woods warbler.
Based on the finding that the critical habitat designation will have minimal impact on land use or other activities (
We do not have sufficient data to indicate that any concentration of impacts to any geographic area or sector is likely at this time. While Unit 1 has slightly more projected annual section 7 consultations than any other unit, the incremental costs of these section 7 consultations are likely to be very little. Other incremental costs, such as those that could occur due to stigma effects, could concentrate impacts in private critical habitat units compared to Federal and Commonwealth lands.
As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule. We may revise the proposed rule or DEA to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
The DEA did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exercising her discretion to exclude any areas from this proposed designation of critical habitat for the elfin-woods warbler based on economic impacts.
During the development of a final designation, we will consider any additional economic impact information received through the public comment period. Accordingly, areas may be excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
Under section 4(b)(2) of the Act, we consider whether there are lands where a national security impact might exist. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the elfin-woods warbler are not owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not intending to exercise her discretion to exclude any areas from the proposed designation based on impacts on national security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.
We are not considering any exclusions at this time from the proposed designation under section 4(b)(2) of the Act based on partnerships management, or protection afforded by cooperative management efforts. Some areas within the proposed designation are included in management plans or other conservation agreements such as Service's Wildlife Conservation Extension Agreements with private landowners, Natural Resources Conservation Service's conservation contracts with private landowners, cooperative agreements with nongovernmental organizations (NGOs), and the CCA signed at the end of 2014 among the Service, U.S. Forest Service, and PRDNER to implement conservation practices for the recovery of the elfin-woods warbler within EYNF and MCF.
Although the initiatives with private landowners and NGOs promote the restoration and enhancement of elfin-woods warbler habitat adjacent to the EYNF and MCF, potential challenges such as limited resources and uncertainty about landowners' participation may affect the implementation of conservation practices that mitigate impacts of agricultural practices and ensure the conservation of the species' essential habitat. We do not anticipate any negative effects of designating critical habitat in areas where existing partnerships occur. Further, there are no
In accordance with our joint policy on peer review published in the
We will consider all comments and information we receive during the comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal.
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and, therefore, are not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7 only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that, if promulgated, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our DEA, we found that the designation of this proposed critical habitat would not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue through the public review and comment period, and we will review and revise this assessment as warranted.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
1. This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5) through (7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
2. We do not believe that this rule would significantly or uniquely affect small governments because the majority of the proposed critical habitat units are already managed for natural resource conservation by the Federal government or the Commonwealth of Puerto Rico, and all proposed units have co-occurring federally listed species that are already being considered by the Commonwealth and municipalities for any actions proposed in the area. Therefore, a Small Government Agency Plan is not required.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the elfin-woods warbler in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that this designation of critical habitat for elfin-woods warbler would not pose significant takings implications for lands within or affected by the designation.
In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies in Puerto Rico. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the PBFs of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the proposed rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of PBFs essential to the conservation of the species. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This proposed rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. As discussed above, there are no tribal lands in Puerto Rico.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
1. Be logically organized;
2. Use the active voice to address readers directly;
3. Use clear language rather than jargon;
4. Be divided into short sections and sentences; and
5. Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this proposed rulemaking are the staff members of the Caribbean Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(b)
(1) Critical habitat units for the elfin-woods warbler are in Puerto Rico. Critical habitat units are depicted on the maps in this entry.
(2) Within the critical habitat units, the physical or biological features essential to the conservation of the elfin-woods warbler consist of three components:
(i) Wet and rain montane forest types:
(A)
(B) Dwarf forest at elevations above 900 m (2,952 ft) with a single story of trees between 1 and 6 m (3 and 19 ft) in height, with an understory of mosses, epiphytes, and liverworts.
(C) Palo Colorado forest at elevations between 600 and 900 m (1,968 and 2,952 ft) with a closed canopy of approximately 20 m (66 ft) and an understory dominated by grasses, ferns, bromeliads, and sedges.
(ii) Forested habitat areas that contain:
(A) Active shade-grown coffee plantations or forested agricultural lands dominated primarily by native vegetation; or
(B) Abandoned coffee plantations or agricultural lands with native forest cover and a closed canopy.
(iii) Forested habitat (at elevations between 300 and 850 m (984 and 2,788 ft)) not contained within the habitats described in paragraphs (2)(i) and (2)(ii) of this entry:
(A) Exposed ridge woodland forest found in valleys, slopes, and shallow soils with a more or less continuous canopy at elevations ranging from 550 to 750 m (1,804 to 2,460 ft);
(B) Timber plantation forest at elevations ranging from 630 to 850 m (2,066 to 2,788 ft); or
(C) Secondary forests dominated by native tree species with a closed canopy of approximately 20-30 m (66-100 ft) in height at elevations ranging from 300 to 750 m (984 to 2,460 ft).
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [
(4)
(5)
(6) Unit 1: Maricao; Maricao, San Germán, Sabana Grande, and Yauco Municipalities, Puerto Rico.
(i)
(ii) Map of Unit 1 follows:
(7) Unit 2: El Yunque; Río Grande, Canovanas, Las Piedras, Naguabo, and Ceiba Municipalities, Puerto Rico.
(i)
(ii) Map of Unit 2 follows:
(8) Unit 3: Carite; Cayey, San Lorenzo, Guayama, and Patillas Municipalities, Puerto Rico.
(i)
(ii) Map of Unit 3 follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed specifications; request for comments.
This rulemaking proposes catch limits, commercial quotas, and possession limits for the spiny dogfish fishery for the 2016-2018 fishing years. The proposed action was developed by the Mid-Atlantic and New England Fishery Management Councils pursuant to the fishery specification requirements of the Spiny Dogfish Fishery Management Plan. These management measures are supported by the best available scientific information and reflect recent declines in spiny dogfish biomass, and are expected to result in minor positive economic impacts for the spiny dogfish fishery while maintaining the conservation objectives of the Spiny Dogfish Fishery Management Plan.
Comments must be received on or before July 7, 2016.
Copies of the specifications, including the Environmental Assessment and Regulatory Impact Review (EA/RIR), and other supporting documents for the action are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The framework is also accessible via the Internet at:
You may submit comments, identified by NOAA-NMFS-2016-0061, by any one of the following methods:
•
•
William Whitmore, Fishery Policy Analyst, (978) 281-9182.
The Atlantic spiny dogfish (
The regulations implementing the FMP at 50 CFR part 648, subpart L, outline the process for specifying an annual catch limit (ACL), commercial quota, possession limit, and other management measures for a period of 1-5 years. The Mid-Atlantic Council's Scientific and Statistical Committee (SSC) reviews the best available information on the status of the spiny dogfish population and recommends acceptable biological catch (ABC) levels. This recommendation is then used as the basis for catch limits and other management measures developed by the Council's Spiny Dogfish Monitoring Committee and Joint Spiny Dogfish Committee (which includes members of both Councils). The Councils then review the recommendations of the committees and make their specification recommendations to NMFS. NMFS reviews those recommendations, and may modify them if necessary to ensure that they are consistent with the FMP and other applicable law. NMFS then publishes proposed measures for public comment.
In November 2015, the Northeast Fisheries Science Center updated spiny dogfish stock status, using the most recent catch and biomass estimates from the spring trawl surveys, and a new model to help account for the missing spring 2014 trawl survey value. Updated estimates indicate that the female spawning stock biomass (SSB) for 2015 was 371 million lb (168,207 mt), about 6 percent above the target maximum sustainable yield biomass proxy (SSBmax) of 351 million lb (159,288 mt). The 2015 fishing mortality (F) estimate for the stock was 0.21, below the overfishing threshold (FMSY) of 0.2439. Therefore, the spiny dogfish stock is not currently overfished or experiencing overfishing.
However, the 3-year average survey index of female SSB dropped substantially in 2015. This decline was not unexpected and is primarily due to (1) high variance in the survey, and (2) poor spiny dogfish pup production (
The Mid-Atlantic Council's Scientific and Statistical Committee reviewed this information and recommended reducing the ABC levels for spiny dogfish for the 2016-2018 fishing years. The ABC
The Councils' Spiny Dogfish Monitoring Committee and the Commission's Spiny Dogfish Technical Committee met in Fall 2015 to determine the resulting ACLs and quotas following the FMP's process. To calculate the commercial quota for each year, deductions were made from the ABC to account for Canadian landings (143,300 lb (65 mt)), U.S. discards (11.494 million lb (5,214 mt)), and U.S. recreational harvest (68,343 lb (31 mt)). The resulting ACLs and commercial quotas are summarized in Table 1.
Because of the proposed harvest reductions, the Councils initially recommended the status quo spiny dogfish trip limit of 5,000 lb (2,268 kg) in their October and December 2015 meetings. This recommendation was submitted to NMFS when the Councils took final action. However, these reduced quotas are still significantly higher than actual landings in recent years due to limited demand. At their April 2016 meetings both Councils voted to request an increase in the trip limit to 6,000 lb (2,722 kg), based upon input from the Commission and a number of fishing industry representatives.
In this rule, NMFS is proposing the status quo (5,000 lb (2,268 kg)) trip limit because this was the recommendation originally submitted to us by the Councils. However, we will review the Commission's and Councils' more recent requests along with other public comments, and consider increasing the trip limit to 6,000 lb (2,722 kg), as recommended by the Councils and Commission, in the final rule.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with the Spiny Dogfish 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 the purpose of E.O. 12866.
The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA consists of the specifications document, the EA for the specifications, and this preamble to the proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A copy of this analysis is available from the Councils (see
A description of the action, why it is being considered, and the legal basis for this action are contained in the Background section of the preamble and in the SUMMARY of this proposed rule and are not repeated here.
This action does not introduce any new reporting, recordkeeping, or other compliance requirements.
This proposed rule does not duplicate, overlap, or conflict with other Federal rules.
This proposed rule would impact fishing vessels, including commercial fishing entities. In 2014, there were 2,473 vessels that held an open access spiny dogfish permit. Cross-referencing those permits with vessel ownership data revealed that 1,830 entities owned those vessels. According to the Small Business Administration (SBA), firms are classified as finfish or shellfish firms based on the activity from which they derive the most revenue. Using the $5.5 million cutoff for shellfish firms (NAICS 114112) and the $20.5 million cutoff for finfish firms (NAICS 114111), 18 entities (1.0 percent) qualified as large businesses in 2014. Of the 1,812 small entities, 570 were finfish small entities, 580 were shellfish small entities, and 244 were for-hire small entities. Additionally, 418 small entities had no revenue in 2014. On average, for small entities, spiny dogfish is responsible for a small fraction of total landings, and active participants derive a small share of gross receipts from the spiny dogfish fishery.
These proposed specifications include management measure alternatives for (1) the spiny dogfish ACLs and associated commercial quotas, and (2) spiny dogfish trip limits, which are fully described in the EA supporting this action (see
Regarding spiny dogfish trip limits, the proposed action is to maintain the status quo (5,000 lb (2,268 kg)). Higher trip limits were considered in Alternative 4 (6,000 lb (2,722 kg)) and Alternative 5 (7,000 lb (3,175 kg)). In general, higher trip limits could result in greater immediate revenue per trip, but would increase the potential for an abbreviated season if the quota or processing capacity is reached. Large increases in trip limits may also contribute to lower and more unstable prices. Given the currently limiting overall demand for spiny dogfish, trip limits may not have a large effect on overall revenue across the fishery, only the rate of landings. Therefore, the alternatives with higher trip limits may help minimize economic impacts, but only if prices remain relatively stable and demand increases.
16 U.S.C. 1801
Office of Administration, Office of Human Resources Management, Department of Commerce.
Notice.
This notice announces modifications to the provisions of the Commerce Alternative Personnel System, formerly the Department of Commerce Personnel Management Demonstration Project, published in the
As published on January 2, 2015 (80 FR 25), coverage under the Commerce Alternative Personnel System was expanded to include employees located in the National Telecommunications and Information Administration (NTIA), employed under the First Responder Network Authority (FirstNet), and direct-hire authority was implemented for certain FirstNet scientific and engineering positions in the ZP career path at the Pay Band IV and above, under section 3304(a)(3) of Title 5 of the United States Code.
This notice serves to amend the System to increase the number of ZP positions FirstNet is authorized to fill under direct-hire authority and to include ZP positions at Pay Band level III and above.
The amended Commerce Alternative Personnel System is effective June 22, 2016.
Department of Commerce—Sandra Thompson, U.S. Department of Commerce, 14th and Constitution Avenue NW., Room 51020, Washington, DC 20230, (202) 482-0056 or Valerie Smith at (202) 482-0272.
The Office of Personnel Management (OPM) approved the Department of Commerce (DoC) demonstration project for an alternative personnel management system and published the approval of the final plan in the
CAPS provides for modifications to be made as experience is gained, results are analyzed, and conclusions are reached on how the system is working. This notice announces that the DoC modifies the plan to increase the number of FirstNet positions authorized to be filled under direct-hire authority in the approved ZP career paths and to include occupational series at Pay Band level III and above. The DoC will follow the CAPS plan, as published in the
CAPS is designed to (1) improve hiring and allow DoC to compete more effectively for high-quality candidates through direct hiring, selective use of higher entry salaries, and selective use of recruitment incentives; (2) motivate and retain staff through higher pay potential, pay-for-performance, more responsive personnel systems, and selective use of retention incentives; (3) strengthen the manager's role in personnel management through delegation of personnel authorities; and (4) increase the efficiency of personnel systems through the installation of a simpler and more flexible classification system based on pay banding through reduction of guidelines, steps, and paperwork in classification, hiring, and other personnel systems, and through automation.
The current participating organizations include 7 offices of the Chief Financial Officer/Assistant Secretary for Administration in the Office of the Secretary; the Bureau of Economic Analysis; the Institute for Telecommunication Sciences—National Telecommunications and Information Administration; the First Responder Network Authority—National Telecommunications and Information Administration; and 12 units of the National Oceanic and Atmospheric Administration: Office of Oceanic and Atmospheric Research, National Marine Fisheries Service, the National Environmental Satellite, Data, and Information Service, National Weather Service—Space Environment Center, National Ocean Service, Program Planning and Integration Office, Office of the Under Secretary, Marine and Aviation Operations, Office of the Chief Administrative Officer, Office of the Chief Financial Officer, the Workforce Management Office, and the Office of the Chief Information Officer.
This amendment modifies the January 2, 2015
CAPS is designed to provide managers at the lowest organizational level the authority, control, and flexibility to recruit, retain, develop, recognize, and motivate its workforce, while ensuring adequate accountability and oversight.
FirstNet is required to manage the deployment and maintenance of the National Public Safety Broadband Network (NPSBN) for public safety responders within statutory requirements established in the Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96). Every phase of the program requires FirstNet to quickly hire qualified individuals, for specialized roles, to meet the requirements imposed by the Act. FirstNet recruitment efforts, utilizing direct-hire authority, have proven successful for ZP positions in the following occupational series: 0089—Emergency Management; 0854—Computer Engineering; and 0855—Electronics Engineering. FirstNet was previously authorized to utilize direct-hire authority to fill up to 56 positions in the 0089 series and up to 21 positions in the 0850; 0854; 0855 and the 1550 series, with the total number of positions allowed to be filled under direct-hire authority to not exceed 77 positions in the ZP career path at any one time. By increasing the number of authorized ZP positions to be filled under direct-hire authority and expanding the Pay Band to include positions at the Pay Band III level and above, FirstNet will continue to recruit and compete more effectively for qualified personnel possessing technical expertise in 4G LTE wireless network and other emerging wireless network technologies and/or the development of mobile software and network architecture as well as individuals possessing technical expertise in the formulation, development, and engagement of public safety officials in planning and implementing the nation-wide public safety broadband network and the programmatic requirements of the network acquisition through their public safety experience in preventing, protecting, responding, coordinating and/or mitigating emergency events. These areas of expertise are critical in order to test, evaluate, deploy, and operate a nation-wide public safety broadband network. The number of positions in the 0089, Emergency Management series, authorized to be filled under direct-hire authority will increase from 56 positions to 89 at Pay Bands III and above. The number of positions in the following series will increase from 21 positions to 39 at Pay Bands III and above: 0850, Electrical Engineering; 0854, Computer Engineering; 0855, Electronics Engineering; and 1550, Computer Science. The use of direct-hire authority to fill these positions will not exceed 128 positions in the specified ZP career paths at any one time. FirstNet will track the number of hires made under direct-hire authority, ensuring numbers specified for the occupational series are not exceeded.
Section 3304(a)(3) of Title 5 of the United States Code, provides agencies with the authority to appoint candidates directly to jobs for which the Office of Personnel Management (OPM) determines that there is a severe shortage of candidates or a critical hiring need. In 1997, with the approval of the DoC's Demonstration Project (62 FR 67434, December 24, 1997), OPM concurred that some occupations in the ZP career path at the Pay Band III and above constitute a shortage category, and some occupations for which there is a special rate under the General Schedule pay system constitute a shortage category. Past recruitment efforts have demonstrated a critical shortage of candidates possessing specialized technical, programmatic and contract expertise in 4G Long Term Evaluation (LTE) technologies and mobile systems, as well as expertise in public safety organizational operations and infrastructure capabilities.
DoC's CAPS allows for modifications of procedures if no new waiver from law or regulation is added. Given that this expansion and modification is in accordance with existing law and regulation and CAPS is a permanent alternative personnel system, the DoC is authorized to make the changes described in this notice.
The CAPS at DoC, originally published in the
1. Section III Personnel System Changes, (B) Staffing: Replace the paragraph in subsection titled: “Direct-Hire Authority: Critical Shortage Occupations” to state:
DoC FirstNet uses direct-hire procedures for categories of occupations that require skills that are in short supply. The following occupations constitute a shortage category at the Pay Band III and above, in the ZP Career Path: Electronics Engineers, Electrical Engineers, Computer Engineers, Computer Scientists, and Emergency Management Specialists (Public Safety). Any positions in these categories may be filled by FirstNet through direct-hire procedures in accordance with 5 U.S.C. 3304(a)(3). DoC FirstNet advertises the availability of job opportunities in direct-hire occupations by posting on the OPM USAJOBS Web site. DoC FirstNet will follow internal direct-hire procedures for accepting applications.
On August 19, 2014, in the U.S. District Court for the Southern District of Florida, Jose Orence Cocchiola (“Cocchiola”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Cocchiola knowingly and willfully attempted to export defense articles, that is, 9mm pistols, from the United States to Venezuela, without having first obtained a license or written approval from the United States Department of State. Cocchiola was sentenced 36 months of imprisonment, one year of supervised release, and a $200 assessment.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS has received notice of Cocchiola's conviction for violating the AECA, and has provided notice and an opportunity for Cocchiola to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Cocchiola.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Cocchiola's export privileges under the Regulations for a period of five (5) years from the date of Cocchiola's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Cocchiola had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Pursuant to Section 766.24 of the Export Administration Regulations (the “Regulations” or “EAR”),
On January 19, 2016, I signed the original TDO, denying for 180 days the export privileges of Ribway Airlines Company Limited (“Ribway Airlines”), John Edward Meadows, Jeffrey John James Ashfield, Af-Aviation Limited, and Andy Farmer (Af-Aviation's director). The TDO was issued
The TDO issued based upon evidence presented by OEE concerning an attempt to ferry or reexport two Boeing 737 aircraft, with manufacturer serial numbers 26444 and 26458, respectively, from Romania to Iran without the U.S. Government authorization required by Sections 742.8 and 746.7 of the EAR.
Having considered OEE's request, I find that moreJet Ltd. and Stefan Piotr Kondak should be removed from the TDO. The TDO shall remain in full force and effect as to Ribway Airlines Company Limited, John Edward Meadows, Jeffrey John James Ashfield, and AC AVIATIE UK Limited.
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR.
A. Export or reexport to or on behalf of a Denied Person any item subject to the EAR;
B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the EAR that has been exported from the United States;
D. Obtain from a Denied Person in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person if such service involves the use of any item subject to the EAR that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
In accordance with the provisions of Section 766.24(e) of the EAR, the Respondents may, at any time, appeal this Order by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202-4022.
In accordance with the provisions of Section 766.24(d) of the EAR, BIS may seek renewal of this Order by filing a written request not later than 20 days before the expiration date. The Respondents may oppose a request to renew this Order by filing a written submission with the Assistant Secretary for Export Enforcement, which must be received not later than seven days before the expiration date of the Order.
A copy of this Order shall be served on Ribway Airlines Company Limited, John Edward Meadows, Jeffrey John James Ashfield, AC Aviatie UK Limited, moreJet Ltd., and Stefan Piotr Kondak, and shall be published in the
This Order is effective immediately and shall remain in effect until July 17, 2016, unless renewed in accordance with Section 766.24(d) of the Regulations.
On September 24, 2014, in the U.S. District Court for the Eastern District of Michigan, Dennis Haag (“Haag”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Haag knowingly and willfully exported defense articles, that is rifle barrels and other parts, from the United States to South Africa, which rifle parts were designated as defense articles on the United States Munitions List, without having first obtained from the State Department a license as required by law. Haag was sentenced three years of probation, a $200 assessment and a criminal fine of $39,000.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS has received notice of Haag's conviction for violating the AECA, and has provided notice and an opportunity for Haag to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has received a submission from Haag.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Haag's export privileges under the Regulations for a period of five (5) years from the date of Haag's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Haag had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On June 15, 2015, in the U.S. District Court for the Southern District of Texas, Ismael Reta (“Reta”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Reta intentionally and knowingly conspired and agreed together with other person or persons known and unknown to the Grand Jurors, to knowingly and willfully export, attempt to export, and cause to be exported into Mexico from the United States defense article, that is, to-wit: a Colt, Model M4, 5.56mm rifle; a Romarm, Model WASR-10, 7.62x39mm rifle; a Berretta, Model 92FS, 9mm pistol, two hundred sixty-two (262) rounds of 5.56mm ammunition; and fifty (50) rounds of 7.62x39mm ammunition, which were designated as defense articles on the United States Munitions List, without having first obtained from the Department of State a license for such export or written authorization for such export. Reta was sentenced 37 months of imprisonment, three years of supervised release, and a $100 assessment.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS has received notice of Reta's conviction for violating the AECA, and has provided notice and an opportunity for Reta to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Reta.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Reta's export privileges under the Regulations for a period of 10 years from the date of Reta's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Reta had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is self-initiating a changed circumstances review of the antidumping (AD) and countervailing (CVD) orders on certain pasta from Italy
Jennifer Meek, Office I for AD/CVD Operations, at (202) 482-2778; George McMahon, Office III for AD/CVD Operations, at (202) 482-1167; or Sam Zengotitabengoa, Customs Liaison Unit for AD/CVD Operations, at (202) 482-4195, AD/CVD Operations, Enforcement & Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
The ITDS is an electronic trade data interchange system authorized pursuant to section 405 of the Security and Accountability for Every (SAFE) Port Act of 2006, Public Law 109-347. The purpose of ITDS, as defined by Section 405 of the SAFE Port Act of 2006, “is to eliminate redundant information requirements, to efficiently regulate the flow of commerce, and to effectively enforce laws and regulations relating to international trade, by establishing a single portal system, operated by the United States Customs and Border Protection, for the collection and distribution of standard electronic import and export data required by all participating Federal agencies.” On October 13, 2015, CBP issued an interim final rule to amend its regulations to provide that, as of November 1, 2015, ACE is a CBP-authorized Electronic Data Interchange System which may be used for the filing of entries and entry summaries.
On July 24, 1996, the Department published the notice of the
Certain non-egg dry pasta in packages of five pounds (or 2.27 kilograms) or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastases, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by this scope is typically sold in the retail market, in fiberboard or cardboard cartons or polyethylene or polypropylene bags, of varying dimensions.
Excluded from the scope of this order are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white. Also excluded are imports of organic pasta from Italy that are accompanied by the appropriate certificate issued by the Associazione Marchigiana Agricultura Biologica (AMAB) or by Bioagricoop scrl.
On July 9, 1996, after the date of our final antidumping duty determination, Euro-USA Trading Co., Inc., of Pawcatuck, CT, submitted materials to the Department supporting its request for an exclusion for pasta certified to be “organic pasta.” Among the documents submitted are a decree from the Italian Ministry of Agriculture and Forestry authorizing Bioagricoop scrl to certify foodstuffs as organic for the implementation of EEC Regulation 2029/91. Also submitted is a letter (with an accompanying translation into English) from the Director of Controls of Processing and Marketing Firms at Bioagricoop stating that the organization will take responsibility for its organic pasta certificates and will supply the necessary documentation to U.S. authorities. On this basis, imports of organic pasta from Italy that are accompanied by the appropriate certificate issued by Bioagricoop scrl are excluded from the scope of this order.
The merchandise under order is currently classifiable under items 1902.19.20 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this investigation is dispositive.
As noted in the language comprising the scope of the orders, our written description of the scope of the orders is dispositive. However, the notices published in connection with subsequent administrative reviews of the orders have contained minor differences in language regarding the identification of the authority that issues the organic certifications. Specifically, the most recent published final results in the CVD proceeding
In connection with the organic exclusion language, both the 2010 and 2010-2011 administrative reviews of the CVD and AD orders on pasta from Italy cite the same October 10, 2012, memorandum (“Recognition of EU Organic Certifying Agents for Certifying Organic Pasta from Italy”). The Department has placed a copy of that memorandum on the records of these changed circumstances reviews. In that memorandum, at page 2, the Department stated, “. . . we intend to update the scope language to clarify that organic pasta from Italy is excluded from the scope when accompanied by the appropriate NOP certificate issued by any EU control body or control authorities identified by the USDA as part of the U.S.-EU Partnership on Organic Trade . . .” The Department stated that the scope language for both orders would read: “Also excluded are imports of organic pasta from Italy that are certified by an EU authorized body and accompanied by a National Organic Program import certificate for organic products.”
Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.216(d), the Department will conduct a changed circumstances review of an antidumping or countervailing duty order when it receives information which shows changed circumstances sufficient to warrant such a review. In this case, the Department has determined that the advent of ITDS constitutes sufficient circumstances to conduct a changed circumstances review of the
Currently the scope of the
Under such a record-keeping requirement, both the exporter and the importer would be required to maintain a copy of the original certification in their respective records, as well as documentation supporting the certification, that would be subject to verification by the U.S. Government. Because this certification requirement would be a record-keeping requirement, the exporter and importer would be required to submit the certification in response to a request from CBP or the Department, in the form or manner required by the requesting agency. Additionally, the certification should be issued, signed and dated prior to the merchandise being exported from Italy. Entries for which an exporter or importer is unable to produce the required certification upon the request of CBP or the Department may be subject to antidumping or countervailing duties.
Additionally, the Department preliminarily proposes to update the exclusion language for organic pasta. Specifically, the Department proposes to remove the reference to the National Organic Program certificate because the documentation may change over time. Finally, the Department preliminarily determines to align the scope language of the
Based on the foregoing, we propose altering the organic pasta exclusion and certification language in the
Also excluded are imports of organic pasta from Italy that are certified by an EU authorized body in accordance with the United State Department of Agriculture's National Organic Program for organic products. The organic pasta certification must be retained by exporters and importers and made available to U.S. Customs and Border Protection or the Department of Commerce upon request.
The Department's proposed language is not intended to change any requirements under, or aspects of, the National Organic Program. If these preliminary results are upheld in the final results, the Department will revise the scope of the
Interested parties may submit case briefs in response to these preliminary results by no later than 14 calendar days after the date of publication of this notice in the
Any interested party may submit a request for a hearing to the Assistant Secretary of Enforcement and Compliance using ACCESS within 14 days of publication of this notice in the
In accordance with 19 CFR 351.216(e), the Department intends to issue the final results of this changed circumstances review not later than 270 days after the date on which the review is initiated, or within 45 days if all parties agree to our preliminary finding.
This initiation and preliminary results of review notice is published in accordance with sections 751(b)(1) and 777(i) of the Act and 19 CFR 351.216 and 351.221(c)(3)(ii).
Imports covered by this Order are shipments of certain non-egg dry pasta in packages of five pounds four ounces or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastasis, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by the scope of the Order is typically sold in the retail market, in fiberboard or cardboard cartons, or polyethylene or polypropylene bags of varying dimensions.
Excluded from the scope of this Order are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white. Multicolored pasta, imported in kitchen display bottles of decorative glass that are sealed with cork or paraffin and bound with raffia, is excluded from the scope of the Order. Note 1. Pursuant to the Department's August 14, 2009, changed circumstances review, effective July 1, 2008, gluten free pasta is also excluded from the scope of the Order.
Also excluded are imports of organic pasta from Italy that are certified by an EU authorized body in accordance with the United State Department of Agriculture's National Organic Program for organic products. The organic pasta certification must be retained by exporters and importers and made available to U.S. Customs and Border Protection or the Department of Commerce upon request.
The merchandise subject to this order is currently classifiable under items 1901.90.90.95 and 1902.19.20 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and Customs purposes, the written description of the merchandise subject to the Order is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Effective June 14, 2016.
Robert Galantucci at (202) 482-2923, or William Horn at (202) 482-2615, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On May 25, 2016, the Department of Commerce (the Department) received a countervailing duty (CVD) petition concerning imports of ammonium sulfate from the People's Republic of China (PRC), filed in proper form on behalf of PCI Nitrogen, LLC (Petitioner). The CVD petition was accompanied by an antidumping duty (AD) petition, also concerning imports of ammonium sulfate from the PRC.
On May 31, 2016 and June 7, 2016 the Department requested information and clarification for certain areas of the CVD Petition.
In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), Petitioner alleges that the Government of the PRC (GOC) is providing countervailable subsidies (within the meaning of sections 701 and 771(5) of the Act) with respect to imports of ammonium sulfate from the PRC, and that imports of ammonium sulfate from the PRC are materially injuring, and threaten material injury to, the domestic industry producing ammonium sulfate in the United States. Also, consistent with section 702(b)(1) of the Act, for those alleged programs on which we have initiated a CVD investigation, the Petition is accompanied by information reasonably available to Petitioner supporting its allegations.
The Department finds that Petitioner filed the Petition on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act, and that Petitioner has demonstrated sufficient industry support with respect to the initiation of the investigation Petitioner is requesting.
The period of investigation is January 1, 2015, through December 31, 2015.
The product covered by this investigation is ammonium sulfate from the PRC. For a full description of the scope of this investigation,
During our review of the Petition, the Department issued questions to, and received responses from, Petitioner pertaining to the proposed scope to ensure that the scope language in the Petition would be an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the preamble to the Department's regulations,
All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).
Pursuant to section 702(b)(4)(A)(i) of the Act, the Department notified representatives of the GOC of the receipt of the Petition. Also, in accordance with section 702(b)(4)(A)(ii) of the Act, the Department provided representatives of the GOC the opportunity for consultations with respect to the CVD petition.
Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, Petitioner does not offer a definition of the domestic like product distinct from the scope of the investigation. Based on our analysis of the information submitted on the record, we have determined that ammonium sulfate, as defined in the scope, constitutes a single domestic like product and we have analyzed industry
In determining whether Petitioner has standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in Appendix I of this notice. Petitioner and supporters of the Petition provided their own production of the domestic like product in 2015.
Our review of the data provided in the Petition, General Issues Supplement, and other information readily available to the Department indicates that Petitioner has established industry support.
The Department finds that Petitioner filed the Petition on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act and it has demonstrated sufficient industry support with respect to the CVD investigation that it is requesting the Department initiate.
Because the PRC is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to this investigation. Accordingly, the ITC must determine whether imports of the subject merchandise from the PRC materially injure, or threaten material injury to, a U.S. industry.
Petitioner alleges that imports of the subject merchandise are benefitting from countervailable subsidies and that such imports are causing, or threaten to cause, material injury to the U.S. industry producing the domestic like product. In addition, Petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
Petitioner contends that the industry's injured condition is illustrated by reduced market share, underselling and price suppression or depression, lost sales and revenues, decline in shipments and production, and decline in financial performance.
Section 702(b)(1) of the Act requires the Department to initiate a CVD investigation whenever an interested party files a CVD petition on behalf of an industry that: (1) Alleges elements necessary for an imposition of a duty under section 701(a) of the Act; and (2) is accompanied by information reasonably available to Petitioner supporting the allegations.
Petitioner alleges that producers/exporters of ammonium sulfate in the PRC benefit from countervailable subsidies bestowed by the GOC. The Department examined the Petition and finds that it complies with the requirements of section 702(b)(1) of the Act. Therefore, in accordance with section 702(b)(1) of the Act, we are initiating a CVD investigation to determine whether manufacturers, producers, or exporters of ammonium sulfate from the PRC received countervailable subsidies from the GOC and various authorities thereof.
On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.
Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on all 37 alleged programs in the PRC. For a full discussion of the basis for our decision to initiate on each program,
In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determination no later than 65 days after the date of this initiation.
Petitioner named 95 companies as producers/exporters of ammonium sulfate from the PRC.
Interested parties may submit comments regarding the CBP data and respondent selection by 5:00 p.m. ET on the seventh calendar day after publication of this notice. Comments must be filed in accordance with the filing requirements stated above. If respondent selection is necessary, we intend to base our decision regarding respondent selection upon comments received from interested parties and our analysis of the record information within 20 days of publication of this notice.
In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR 351.202(f), a copy of the public version of the Petition has been provided to the GOC
We will notify the ITC of our initiation, as required by section 702(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of ammonium sulfate from the PRC are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). The regulation requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Parties should review the regulations prior to submitting factual information in this investigation.
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
This notice is issued and published pursuant to sections 702 and 777(i) of the Act.
The merchandise covered by this investigation is ammonium sulfate in all physical forms, with or without additives such as anti-caking agents. Ammonium sulfate, which may also be spelled as ammonium sulphate, has the chemical formula (NH
The scope includes ammonium sulfate that is combined with other products, including by, for example, blending (
Ammonium sulfate that has been combined with other products is included within the scope regardless of whether the combining occurs in countries other than China.
Ammonium sulfate that is otherwise subject to this investigation is not excluded when commingled (
The Chemical Abstracts Service (CAS) registry number for ammonium sulfate is 7783-20-2.
The merchandise covered by this investigation is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheading 3102.21.0000. Although this HTSUS subheading and CAS registry number are provided for convenience and customs purposes, the written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Effective date: June 14, 2016.
Thomas Martin at (202) 482-3936 or Andrew Martinez (202) 482-3627, AD/CVD Operations, Enforcement & Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On May 25, 2016, the Department of Commerce (the Department) received an antidumping duty (AD) petition concerning imports of ammonium sulfate from the People's Republic of China (PRC), filed in proper form on behalf of PCI Nitrogen, LLC (PCI or Petitioner).
On May 27, 2016 and June 3, 2016, the Department requested additional information and clarification of certain areas of the Petition.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), Petitioner alleges that imports of ammonium sulfate from the PRC are being, or are likely to be, sold in the United States at less-than-fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 732(b)(1) of the Act, the Petition is accompanied by information reasonably available to Petitioner supporting its allegations.
The Department finds that Petitioner filed this Petition on behalf of the domestic industry because Petitioner is an interested party as defined in section 771(9)(C) of the Act. The Department also finds that Petitioner demonstrated sufficient industry support with respect to the initiation of the AD investigation that Petitioner is requesting.
Because the Petition was filed on May 25, 2016, pursuant to 19 CFR 351.204(b)(1), the period of investigation (POI) is October 1, 2015 through March 31, 2016.
The product covered by this investigation is ammonium sulfate from the PRC. For a full description of the scope of this investigation,
During our review of the Petition, the Department issued questions to, and received responses from, Petitioner pertaining to the proposed scope to ensure that the scope language in the Petition would be an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the preamble to the Department's regulations,
All submissions to the Department must be filed electronically using Enforcement & Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).
The Department requests comments from interested parties regarding the appropriate physical characteristics of ammonium sulfate to be reported in response to the Department's AD questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant factors and costs of production accurately as well as to develop appropriate product-comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe ammonium sulfate, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.
In order to consider the suggestions of interested parties in developing and issuing the AD questionnaire, all comments must be filed by 5:00 p.m. ET on Monday, July, 4, 2016, which is twenty (20) calendar days from the signature date of this notice. However, as Monday, July 4, 2016, is a Federal Holiday, interested parties may submit comments by 5:00 p.m. ET the next business day, Tuesday, July 5, 2016.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, Petitioner does not offer a definition of the domestic like product distinct from the scope of the investigation. Based on our analysis of the information submitted on the record, we have determined that ammonium sulfate, as defined in the scope, constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.
In determining whether Petitioner has standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in Appendix I of this notice. Petitioner and supporters of the Petition provided their own production data of the domestic like product in 2015. Petitioner also provided data from The Fertilizer Institute to determine total 2015 production of the domestic like product by the entire U.S. domestic industry. To establish industry support, Petitioner compared the production of Petitioner and supporters of the Petition to the total 2015 production of the domestic like product for the entire domestic industry.
Our review of the data provided in the Petition, General Issues Supplement, and other information readily available to the Department indicates that Petitioner has established industry support.
The Department finds that Petitioner filed the Petition on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act and it has demonstrated sufficient industry support with respect to the AD investigation that it is requesting that the Department initiate.
Petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, Petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The following is a description of the allegation of sales at less-than-fair value upon which the Department based its decision to initiate an investigation of imports of ammonium sulfate from the PRC. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the PRC AD initiation checklist, at Attachment III.
Petitioner based export price (EP) on six average unit values (AUVs). Specifically, Petitioner based one U.S. EP on the AUV of U.S. imports from the PRC obtained from ITC Dataweb under Harmonized Tariff Schedule of the United States (HTSUS) subheading 3102.21.0000 (the relevant HTSUS subheading for imports of ammonium sulfate) for the period of October 2015 through March 2016 (
Petitioner stated that the Department has long treated the PRC as a non-market economy (NME) country.
Petitioner claims that South Africa is an appropriate surrogate country because it is a market economy that is at a level of economic development comparable to that of the PRC and it is a significant producer of comparable merchandise.
Based on the information provided by Petitioner, we believe it is appropriate to use South Africa as a surrogate country for initiation purposes. Interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs within 30 days before the scheduled date of the preliminary determination.
Because Petitioner claims that information regarding the volume of inputs consumed by PRC producers/exporters is not reasonably available, Petitioner relies on its own, actual consumption of direct materials, labor, and energy as an estimate of the PRC manufacturers' FOPs, claiming that it utilizes a similar production method to that utilized by PRC producers to produce ammonium sulfate.
Petitioner valued direct materials based on publicly available data for imports into South Africa obtained from the Global Trade Atlas (GTA) for the period October 1, 2015 to March 31, 2016 (
Petitioner relied on 2013 data from the International Labor Organization's (ILO) ILOSTAT data service
Petitioner derived the packing material input amounts based upon information reported in ship manifest data and U.S. import statistics.
Petitioner valued electricity and water using 2015/16 electricity and water rates reported by the energy authority Govan Mbeki Local Municipality;
Petitioner valued factory overhead, selling, general, and administrative costs, and profit using publicly available financial statements from a South African company Sasol Limited (Sasol). Sasol is a major producer of ammonium sulfate which utilizes the synthetic process to create ammonium sulfate which involves reacting ammonia and sulfuric acid.
Based on the data provided by Petitioner, there is reason to believe that imports of ammonium sulfate from the PRC are being, or are likely to be, sold in the United States at less-than-fair value. Based on comparisons of EP to NV, in accordance with section 773(c) of the Act, the estimated dumping margin for ammonium sulfate from the PRC ranges from 250.81 to 493.46 percent.
Based upon the examination of the AD Petition on ammonium sulfate from the PRC, we find that the Petition meets the requirements of section 732 of the Act. Therefore, we are initiating an AD investigation to determine whether imports of ammonium sulfate from the PRC are being, or are likely to be, sold in the United States at less-than-fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we intend to make our preliminary determination no later than 140 days after the date of this initiation.
On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.
Petitioner named 95 companies as producers/exporters of ammonium sulfate.
Producers/exporters of ammonium sulfate from the PRC that do not receive Q&V questionnaires by mail may still submit a response to the Q&V questionnaire and can obtain a copy from the Enforcement & Compliance Web site. The Q&V response must be submitted by the relevant PRC exporters/producers no later than June 28, 2016, which is two weeks from the signature date of this notice. All Q&V responses must be filed electronically via ACCESS.
In order to obtain separate-rate status in an NME investigation, exporters and producers must submit a separate-rate application.
The Department will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), a copy of the public version of the Petition has been provided to the government of the PRC via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petition to each exporter named in the Petition, as provided under 19 CFR 351.203(c)(2).
We will notify the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of ammonium sulfate from the PRC are materially injuring or threatening material injury to a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). Any party, when submitting factual information, must specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under administrative protective order (APO) in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
This notice is issued and published pursuant to section 777(i) of the Act.
The merchandise covered by this investigation is ammonium sulfate in all physical forms, with or without additives such as anti-caking agents. Ammonium sulfate, which may also be spelled as ammonium sulphate, has the chemical formula (NH
The scope includes ammonium sulfate that is combined with other products, including by, for example, blending (
Ammonium sulfate that has been combined with other products is included within the scope regardless of whether the combining occurs in countries other than China.
Ammonium sulfate that is otherwise subject to this investigation is not excluded when commingled (
The Chemical Abstracts Service (CAS) registry number for ammonium sulfate is 7783-20-2.
The merchandise covered by this investigation is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheading 3102.21.0000. Although this HTSUS subheading and CAS registry number are provided for convenience and customs purposes, the written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On March 9, 2016, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on stainless steel bar (SSB) from Brazil.
Effective June 22, 2016.
Catherine Cartsos or Minoo Hatten, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1757, and (202) 482-1690, respectively.
On March 9, 2016, the Department published the
The merchandise subject to the order is SSB. The term SSB with respect to the order means articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons or other convex polygons. SSB includes cold-finished SSBs that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process. Except as specified above, the term does not include stainless steel semi-finished products, cut-length flat-rolled products (
The Department made no changes to its calculations announced in the
In accordance with 19 CFR 351.212 and the
For entries of subject merchandise during the POR produced by Villares for which it did not know that the merchandise was destined for the United States, we will instruct CBP to liquidate un-reviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of SSB from Brazil entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for Villares will be 0.00 percent, the weighted average dumping margin established in the final results of this administrative review; (2) for other manufacturers and exporters covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which that manufacturer or exporter participated; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 19.43 percent, the all-others rate established in the less than fair value investigation.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On March 10, 2016, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp from Thailand.
No interested party submitted comments on the preliminary results. However, we revised the computer program for Mayao to correct an error with respect to the printing of the assessment rate calculations. Finally, we find that four companies had no shipments of subject merchandise during the POR.
Dennis McClure or Alice Maldonado, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5973 and (202) 482-4682, respectively.
The review covers 163 producers/exporters of the subject merchandise. The respondents which the Department selected for individual examination are Mayao
On March 10, 2016, the Department published the
The scope of this order includes certain warmwater shrimp and prawns, whether frozen, wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (Penaeus vannemei), banana prawn (Penaeus merguiensis), fleshy prawn (Penaeus chinensis), giant river prawn (Macrobrachium rosenbergii), giant tiger prawn (Penaeus monodon), redspotted shrimp (Penaeus brasiliensis), southern brown shrimp (Penaeus subtilis), southern pink shrimp (Penaeus notialis), southern rough shrimp (Trachypenaeus curvirostris), southern white shrimp (Penaeus schmitti), blue shrimp (Penaeus stylirostris), western white shrimp (Penaeus occidentalis), and Indian white prawn (Penaeus indicus).
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations (including dusted shrimp), which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this order.
The products covered by this order are currently classified under the following HTSUS subheadings: 0306.17.00.03, 0306.17.00.06, 0306.17.00.09, 0306.17.00.12, 0306.17.00.15, 0306.17.00.18, 0306.17.00.21, 0306.17.00.24, 0306.17.00.27, 0306.17.00.40, 1605.21.10.30, and 1605.29.10.10. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive.
As noted in the
With respect to Marine Gold and Thai Union Manufacturing, in the
We are assigning the following dumping margins to the respondents for the period February 1, 2014, through January 31, 2015, as follows:
Review-Specific Average Rate Applicable to the Following Non-Selected Companies:
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), where Mayao and Thai Union reported the entered value for their U.S. sales, we calculated importer-specific
For the companies which were not selected for individual examination, we used as the assessment rate the cash deposit rate assigned to Mayao
Consistent with our established practice, for entries of subject merchandise during the POR produced and exported by Thai Union or Mayao for which they did not know that the merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate effective during the POR if there is no rate for the intermediate company(ies) involved in the transaction.
The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.
The following cash deposit requirements will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for the reviewed companies will be the rates shown above, except if the rate is less than 0.50 percent (
This notice serves as the only 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
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213(h).
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 August 22, 2016.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Leif Anderson, (206) 302-2403 or
This request is for a new collection of information.
The Northwest Fisheries Science Center and Southwest Fisheries Science Center are undertaking an economics research project to assess the behavior of saltwater recreational anglers in response to catch rates, bag limits, and the timing and length of the season, and how these actions affect the value of saltwater recreational fishing. The West Coast Saltwater Fishing Survey (WCSFS) will provide critical economic data related to saltwater recreational fishing on the Pacific West Coast. More specifically, the WCSFS will collect data needed to (1) assess the socioeconomic characteristics of recreational saltwater fishing participants; (2) assess the economic value of saltwater recreational fishing trips through statistical estimation of models; and (3) assess the change in these values associated with possible changes in management policies related to catch rates, bag limits, season timing and length, time and area closures, and changes in economic, ocean, or fishery conditions.
A sample of fishing license holders will be screened with a brief telephone or email survey (screener), followed by an internet or mail survey, as appropriate.
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.
Office for Coastal Management (OCM), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice.
The National Oceanic and Atmospheric Administration (NOAA), Office for Coastal Management will hold public meetings to solicit comments for the performance evaluations of the Grand Bay and Jacques Cousteau National Estuarine Research Reserves and Alabama Coastal Area Management Program (Alabama Coastal Management Program).
For specific dates, times, and locations of the public meetings, see
You may submit comments on the reserves and coastal program NOAA intends to evaluate by any of the following methods:
Carrie Hall, Evaluator, Policy, Planning and Communications, Office for Coastal Management, NOS/NOAA, 1305 East-West Highway, 11th Floor, N/OCM1, Silver Spring, Maryland 20910, or
Sections 312 and 315 of the Coastal Zone Management Act (CZMA) require NOAA to conduct periodic evaluations of federally approved coastal management programs and national estuarine research reserves. The process includes a public meeting, consideration of written public comments and consultations with interested Federal, state, and local agencies and members of the public. For the evaluation of National Estuarine Research Reserves, NOAA will consider the extent to which the state has met the national objectives, adhered to its management plan approved by the Secretary of Commerce, and adhered to the terms of financial assistance under the Coastal Zone Management Act. The evaluation of Coastal Management Programs require findings concerning the extent to which a state or territory has met the national objectives, adhered to its Coastal Management Program document approved by the Secretary of Commerce, and adhered to the terms of financial assistance awards funded under the Coastal Zone Management Act. When the evaluation is completed, NOAA's Office for Coastal Management will place a notice in the
Specific information on the periodic evaluation of reserves and coastal management programs that are the subject of this notice are detailed below as follows:
You may participate or submit oral comments at the public meeting scheduled as follows:
Date: August 24, 2016.
Time: 4:30 p.m., local time.
Location: 6005 Bayou Heron Road, Room 100, Moss Point, Mississippi 36592.
Written comments must be received on or before September 2, 2016.
You may participate or submit oral comments at the public meeting scheduled as follows:
Date: August 16, 2016.
Time: 6:30 p.m., local time.
Location: Cousteau Center, 130 Great Bay Boulevard, Tuckerton, New Jersey, 08087.
Written comments must be received on or before August 19, 2016.
You may participate or submit oral comments at the public meeting scheduled as follows:
Date: August 10, 2016.
Time: 5:30 p.m., local time.
Location: Five Rivers Tensaw Theater, 30945 Five Rivers Boulevard, Spanish Fort, Alabama 36527.
Written comments must be received on or before August 19, 2016.
Consumer Product Safety Commission.
Notice.
As required by the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. Chapter 35), the Consumer Product Safety Commission (“CPSC” or “Commission”) requests comments on a proposed extension of approval of a collection of information from persons who have been involved in, or have witnessed incidents associated with, consumer products. The Commission will consider all comments received in response to this notice before requesting an extension of approval of this collection of information from the Office of Management and Budget (“OMB”).
The Office of the Secretary must receive comments not later than August 22, 2016.
You may submit comments, identified by Docket No. CPSC-2009-0102, by any of the following methods:
For further information contact: Robert H. Squibb, Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814; (301) 504-7815, or by email to:
Section 5(a) of the Consumer Product Safety Act, 15 U.S.C. 2054(a), requires the Commission to collect information related to the causes and prevention of death, injury, and illness associated with consumer products. That section also requires the Commission to conduct continuing studies and investigations of deaths, injuries, diseases, other health impairments, and economic losses resulting from accidents involving consumer products.
The Commission obtains information about product-related deaths, injuries, and illnesses from a variety of sources, including newspapers, death certificates, consumer complaints, and medical facilities. In addition, the Commission receives information through its Internet Web site through forms reporting on product-related injuries or incidents.
The Commission also operates a surveillance system known as the National Electronic Injury Surveillance System (“NEISS”) that provides timely data on consumer product-related injuries treated as well as U.S. childhood poisonings. NEISS data comes from a statistically valid sample from approximately 100 hospital emergency departments. The NEISS system has been in operation since 1971. NEISS emergency department records are reviewed by hospital employees or contractors (“NEISS respondents”).
From these sources, Commission staff selects cases of interest for further investigation by face-to-face or telephone interviews with persons who witnessed, or were injured in, incidents involving consumer products. The CPSC plans to begin conducting investigations through internet-based questionnaires in the next year to supplement telephone interviews. On-site investigations are usually made in cases where CPSC staff need photographs of the incident site, the product involved, or detailed information about the incident. This information can come from face-to-face interviews with persons who were injured or who witnessed the incident, as well as contact with state and local officials, including police, coroners, and fire investigators, and others with knowledge of the incident.
The Commission uses the information to support the development and improvement of voluntary standards; rulemaking proceedings; information and education campaigns; compliance and enforcement efforts and related administrative and judicial proceedings. Commission activities are, in many cases, data driven, and incident data is crucial in advancing the agency's mission. In addition, the CPSC also collects information through NEISS for other federal agencies through Interagency Agreements including the Centers for Disease Control and Prevention (“CDC”) and the National Highway Traffic Safety Administration (“NHTSA”).
OMB approved the collection of information concerning product-related injuries under control number 3041-0029. OMB's most recent extension of approval will expire on September 30, 2016. The Commission now proposes to request an extension of approval of this collection of information.
The NEISS system collects information on consumer-product related injuries from about 100 hospitals in the U.S. Respondents to NEISS include hospitals that directly report information to NEISS and hospitals that allow CPSC contractors to collect the data on behalf of the agency. In FY 2015, there were 137 NEISS respondents (total hospitals and CPSC contractors). The NEISS respondents reviewed an estimated 5.05 million emergency department records and reported 739,673 total cases.
Collecting emergency department records for review each day takes about 10 minutes. Each record takes about 30 seconds to review. Coding and reporting records that involve consumer products or other injuries takes about 2 minutes per record. Coding and reporting additional special study information takes about 90 seconds per record. Respondents also spend about 36 hours per year in related activities (training, evaluations, and communicating with other hospital staff).
The total burden hours for all NEISS respondents are estimated to be 81,210 for FY2015. The average burden hour per respondent is 593 hours. However, the total burden hour on each respondent varies due to differences in size of the hospital (
The total costs to NEISS respondents for FY2015 are estimated to be $3,271,621 per year. NEISS respondents enter into contracts with CPSC and are compensated for these costs. The average cost per respondent is estimated to be about $23,880. The average cost per burden hour is estimated to be $40.29 per hour (including wages and overhead). However, the actual cost to each respondent varies due to the type of respondent (hospital versus CPSC contractor), size of hospital, and regional differences in wages and overhead. Therefore, the actual annual cost for any given respondent may vary between $1,199 at a small rural hospital and $281,953 at the largest metropolitan hospital.
In cases that require more information regarding product-related incidents or injuries, the CPSC staff conducted face-to-face interviews of approximately 220 persons each year. On average, an on-site interview takes about 4.5 hours. The CPSC staff also conducts about 1760 in-depth investigations by telephone. Each in-depth telephone investigation requires about 20 minutes. In addition, the staff is planning to conduct about 200 internet-based questionnaires per year that require about 20 minutes each. The CPSC staff estimates 1,643 annual burden hours on these respondents: 989 hours for face-to-face interviews; 587 hours for in-depth telephone interviews, and 67 hours for internet-based questionnaires. The burden required for reporting is estimated at $32.82 an hour (U.S. Bureau of Labor Statistics, “Employer Costs for Employee Compensation,” March 2016, Table 9, Total compensation for all sales and office workers in goods-producing industries:
This request for the approval of an estimated 82,853 (81,210 NEISS and 1,643 other) burden hours per year is an increase of 37,845 hours since this collection of information was last approved by OMB in 2013. The increase in the burden hours is largely due to the inclusion of information collected through NEISS for other federal agencies through Interagency Agreements including CDC and NHTSA, which were not otherwise accounted for by those agencies. In order to account for all the
This information collection request excludes the burden associated with other publicly available Consumer Product Safety Information Databases, such as internet complaints, Hotline, and Medical Examiners and Coroners Alert Project (“MECAP”) reports, which are approved under OMB control number 3041-0146. This information collection request also excludes the burden associated with follow-up investigations conducted by other federal agencies.
The annual cost to the government of the collection of the NEISS information is estimated to be about $4.9 million a year. This estimate includes $3.3 million in compensation to NEISS respondents described in section 12(a) above. This estimate also includes $1.603 million for about 150 CPSC professional staff months each year. The estimate of professional staff months includes the time required to: Oversee NEISS operations (
The Commission solicits written comments from all interested persons about the proposed collection of information. The Commission specifically solicits information relevant to the following topics:
• Whether the collection of information described above is necessary for the proper performance of the Commission's functions, including whether the information would have practical utility;
• Whether the estimated burden of the proposed collection of information is accurate;
• Whether the quality, utility, and clarity of the information to be collected could be enhanced; and
• Whether the burden imposed by the collection of information could be minimized by use of automated, electronic or other technological collection techniques, or other forms of information technology.
Department of Defense.
Renewal of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the United States Naval Academy Board of Visitors (“the Board”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
This committee's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(a). The charter and contact information for the Board's Designated Federal Officer (DFO) can be obtained at
The Board provides independent advice and recommendations to the President of the United States on the state of morale and discipline, curriculum, instruction, physical equipment, fiscal affairs, academic methods, and other matters relating to the Academy that the Board decides to consider. The Board shall be constituted annually and composed of 15 members: (a) The Chair of the Senate Committee on Armed Services, or designee; (b) Three other members of the Senate designated by the Vice President or the President pro tempore of the Senate, two of whom are members of the Senate Committee on Appropriations; (c) The Chair of the House Committee on Armed Services, or designee; (d) Four other members of the House of Representatives designated by the Speaker of the House of Representatives, two of whom are members of the House Committee on Appropriations; and (e) Six persons designated by the President. Board members who are full-time or permanent part-time Federal officers or employees shall be appointed as regular government employee members pursuant to 41 CFR 102-3.130(a). Board members who are not full-time or permanent part-time Federal officers or employees shall be appointed as experts or consultants pursuant to 5 U.S.C. 3109 to serve as special government employee members. The Department of Defense, as necessary and consistent with the Board's mission and DoD policies and procedures, may establish subcommittees, task forces, or working groups to support the Board, and all subcommittees must operate under the provisions of FACA and the Government in the Sunshine Act. Subcommittees will not work independently of the Board and must report all recommendations and advice solely to the Board for full deliberation and discussion. Subcommittees, task forces, or working groups have no authority to make decisions and recommendations, verbally or in writing, on behalf of the Board. No subcommittee or any of its members can update or report, verbally or in writing, directly to the DoD or any Federal officers or employees. The Board's DFO, pursuant to DoD policy, must be a full-time or permanent part-time DoD employee, and must be in attendance for the duration of each and every Board/subcommittee meeting. The public or interested organizations may submit written statements to the Board membership about the Board's mission and functions. Such statements may be submitted at any time or in response to the stated agenda of planned Board. All written statements must be submitted to the Board's DFO who will ensure the written statements are provided to the membership for their consideration.
Office of the Secretary, Department of Defense.
Notice of access to health care standards for TRICARE Prime beneficiaries under the TRICARE Program.
This notice is to advise interested parties of the Military Health System's access to health care standards addressed in Title 32, Code of Federal Regulations (32 CFR), Section 199.17 for TRICARE Prime beneficiaries under the TRICARE Program and how the Secretary of Defense plans to ensure that beneficiaries under TRICARE Prime who are seeking an appointment for health care will obtain an appointment within established access to health care standards. Access to health care under the TRICARE Program for TRICARE Prime beneficiaries was established in October 1995 and remains current.
Defense Health Agency, TRICARE Health Plan, 7700 Arlington Boulevard, Suite 5101, Falls Church, Virginia 22042-5101.
Ms. Michelle Graves, TRICARE Health Plan, telephone (703) 681-0039.
Section 704 of the National Defense Authorization Act for Fiscal Year 2016 (NDAA for FY16) requires the Secretary of Defense to establish and publicize access to care standards for beneficiaries enrolled in TRICARE Prime at military treatment facilities (MTFs) or with civilian network providers. The Department has already established Prime maximum wait times and travel distances for Prime primary and specialty care appointments as required by Section 704 of the NDAA for FY 2016.
Access to care standards for TRICARE Prime enrollees have been in place since the start of the TRICARE Prime program in 1995. TRICARE Prime access standards were published in a
The health care access standards outlined in this notice are set forth in 32 CFR 199.17(p)(5)(i-v). These access standards remain current and in force without any amendment to date.
Access standards. Preferred provider networks will have attributes of size, composition, mix of providers, and geographical distribution so that the networks, coupled with the MTF capabilities, can adequately address the health care needs of the enrollees. The capabilities of the MTF plus preferred provider network will meet the following access standards with respect to the needs of the expected number of enrollees:
(i) Under normal circumstances, enrollee travel time may not exceed 30 minutes from home to primary care delivery site unless a longer time is necessary because of the absence of providers (including providers not part of the network) in the area.
(ii) The wait time for an appointment for a well-patient visit or a specialty care referral shall not exceed four weeks; for a routine visit, the wait time for an appointment shall not exceed one week; and for an urgent care visit the wait time for an appointment shall be within 24 hours. (The specialty care time standard does not apply in the case of a follow-up appointment that for clinical reasons is specifically stated for a later period.)
(iii) Emergency services shall be available and accessible to handle emergencies (and urgent care visits if not available from other primary care providers pursuant to paragraph (p)(5)(ii) of 32 CFR 199.17), within the service area 24 hours a day, seven days a week.
(iv) The network shall include a sufficient number and mix of board certified specialists to meet reasonably the anticipated needs of enrollees. Travel time for specialty care shall not exceed one hour under normal circumstances, unless a longer time is necessary because of the absence of providers (including providers not part of the network) in the area. This requirement does not apply under the Specialized Treatment Services Program.
(v) Office waiting times in non-emergency circumstances shall not exceed 30 minutes, except when emergency care is being provided to patients, and the normal schedule is disrupted.
In an effort to ensure TRICARE Prime beneficiaries obtain an appointment within access to health care standards at an MTF, the Military Health System implemented a first-call resolution policy in calendar year 2015. This policy outlines standard processes to ensure TRICARE Prime beneficiaries are not asked to call back to the MTFs if no appointments are available within the established access to health care standards. The policy also identifies responsibilities of MTF Directors, primary care, specialist care and other stakeholders identified in the appointing process to ensure patient satisfaction for our beneficiaries. The policy outlines specific procedures to correctly transfer calls in accordance with existing access to care standards, referral management protocols and proper use of managing clinic schedules to ensure appointing success the first time one of our beneficiaries seeks access. In addition, a Joint Outpatient Experience Survey will be used to measure the impact of the first-call resolution policy from beneficiaries' perspectives on whether they obtained an appointment within health care access standards.
For those TRICARE Prime beneficiaries seeking an appointment with a TRICARE Prime civilian network provider, if the beneficiary cannot be scheduled for a visit in the MTF or TRICARE Prime network within the access to care standards, the beneficiary will be authorized an out-of-network provider visit with no point-of-service charge. The TRICARE Reimbursement Manual will be revised to reflect the above statement. In addition, as stated in the TRICARE Operations Manual (TOM Chapter 1, Section 3, Paragraph 1.0), “Contractors are charged with providing or arranging for delivery of quality, timely health care services and have the responsibility for providing the timely and accurate processing of all claims received into their custody, whether for network or non-network care.”
The Defense Health Agency will post the TRICARE Prime access to care standards on the TRICARE.mil Web site and execute a strategic communication plan to educate beneficiaries enrolled in TRICARE Prime about the access to care standards.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of intent and public scoping meeting.
This notice provides a summary of the ongoing feasibility study activities for the Gulf Intracoastal Waterway (GIWW) Brazos River Floodgates (BRFG) and Colorado River Locks (CRL) Feasibility Study and solicit public input regarding the study. The objective of the feasibility study is to investigate and recommend solutions to improve traffic safety and navigation efficiencies at the confluence of the GIWW with the BRFG and CRL. The GIWW BRFG/CRL Feasibility Study will identify and evaluate possible structural and navigation alternatives to reduce traffic accidents and navigation delays. The non-Federal sponsor for the project is the Texas Department of Transportation (TXDOT).
The Galveston District will hold the Initial Public Scoping Meeting for the Feasibility Phase of the study on July 12, 2016 from 6:00-8:00 p.m.
The meeting will be held at the West Columbia Civic Center, 516 E. Brazos Ave. (State Highway 35), West Columbia, TX 77486.
Franchelle Craft, (409) 766-3187.
Navigation along the GIWW is constrained at the confluence with the BRFG and the CRL resulting in the following conditions:
• Inadequate channel and crossing widths for modern vessels;
• Outdated floodgate construction and width in the floodgate chambers at the Brazos River;
• Outdated lock construction at the Colorado River leading to mechanical failure;
• Shutdown of operations during high water periods presenting a significant security concern;
• Increased hydrology (river flows due to flood events) impacting navigation traffic;
• Increased operations and maintenance costs to prevent marine buildup on mechanical elements of the structures;
• Increased sedimentation at the mouth of the rivers;
• Shoreline erosion.
The Feasibility Study will assess the conditions identified above and develop specific measures/alternatives that can be combined or used as standalone actions to address the problems at each location.
• Moving the gates away from the river;
• Widening the gates;
• Reconfiguring the guide wall to lessen the angle to the GIWW;
• Straightening the crossing at the Brazos and Colorado Rivers;
• Lock modifications (construction of new locks);
• Removal of floodgates; and/or;
• Some combination of these and other measures.
We are soliciting comments/concerns on the opportunities to improve navigation along the GIWW at the Brazos and Colorado Rivers, the identification of resources that may occur within the study area, and other social, economic, and environmental concerns.
All interested parties are invited to provide input to this study. Please send your comments or questions regarding this notice or mailing list updates to USACE SWG, 2000 Ft. Point Rd., Galveston, TX 77550. Written input can also be submitted and is requested by August 11, 2016. If we can provide further information, contact the project manager, Ms. Franchelle Craft, by phone at (409) 766-3187 or by email at
Department of the Army; Corps of Engineers, DoD.
Notice of Intent; withdrawal.
In accordance with the National Environmental Policy Act (NEPA), on November 1, 2007 the U.S. Army Corps of Engineers (Corps), Sacramento District, initiated the Environmental Impact Statement (EIS) process to evaluate the effects of the proposed expansion of solar evaporation ponds in the Great Salt Lake, Box Elder County, Utah and to assist the Corps in deciding whether to approve Great Salt Lake Mineral Corporation's application under Section 404 of the Clean Water Act. On December 23, 2015, the applicant for the proposed project withdrew their application for a Department of the Army Permit. Therefore, the Corps is terminating the EIS process, and is issuing this Notice of Intent to withdraw the November 1, 2007 Notice of Intent to Prepare an EIS.
Questions about the proposed action and this Notice of Intent can be answered by Mr. Jason Gipson at 801-295-8380 x14, or email at
Great Salt Lake Minerals Corporation, now Compass Minerals-Ogden (CMO) applied for Corps authorization under Section 404 of the Clean Water Act in 2007. The project as proposed would have resulted in the discharge of dredged and/or fill material into 107.3 acres of the Great Salt Lake to expand solar pond evaporation areas adjacent to existing ponds on the west side of the Great Salt Lake by constructing 54,000 acres of additional ponds. Due to potentially significant environmental effects associated with the proposed action, on November 1, 2007, the Corps issued a Notice of Intent to Prepare and EIS (72 FR 61871). Since publishing the Notice of Intent, the applicant has redesigned the project such that no waters of the U.S. would be impacted by the project and have withdrawn their permit application. As such, the Corps is terminating the EIS process, in accordance with Corps regulations at 33 CFR part 230, Appendix C(2) and 33 CFR part 325, Appendix (8)(g).
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before August 22, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before August 22, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Carmen Gordon, 202-453-7311.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The Secretary is publishing the following list of correspondence from the U.S. Department of Education (Department) received by individuals during the fourth quarter of 2014. The correspondence describes the Department's interpretations of the Individuals with Disabilities Education Act (IDEA) or the regulations that implement the IDEA. This list and the letters or other documents described in this list, with personally identifiable information redacted, as appropriate, can be found at:
Jessica Spataro or Mary Louise Dirrigl. Telephone: (202) 245-7605.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), you can call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain a copy of this list and the letters or other documents described in this list in an accessible format (
The following list identifies correspondence from the Department issued from October 1, 2014, through December 31, 2014. Under section 607(f) of the IDEA, the Secretary is required to publish this list quarterly in the
○ Letter dated November 12, 2014, to Maryland attorney Michelle Kotler, regarding criteria used by some States to identify children with “visual impairment or blindness,” a term defined in Part B of the IDEA.
○ Dear Colleague Letter dated November 12, 2014, and accompanying Frequently Asked Questions document, issued jointly by the Department's
○ Dear Colleague Letter dated December 5, 2014, regarding the requirements in Part B of the IDEA that apply to the education of students with disabilities in correctional facilities.
○ Letter dated February 10, 2014,
○ Letter dated November 3, 2014, to Maine Disability Rights Center staff attorney Atlee Reilly, clarifying that there is no requirement to assign burden of proof under the State complaint procedures in Part B of the IDEA.
○ Letter dated December 17, 2014, to Illinois State Board of Education State Superintendent of Education Christopher Koch, regarding the requirements in Part B of the IDEA relating to maintenance of State financial support for special education and related services.
○ Letter dated November 12, 2014, to educator Tracy Blodgett, regarding whether a child whose hearing loss was medically or surgically corrected could still meet the eligibility criteria as a “child with a disability” under Part B of the IDEA.
○ Dear Colleague Letter dated November 12, 2014, issued jointly by the Department's Office for Civil Rights and the U.S. Department of Justice Civil Rights Division, regarding the application of Federal civil rights requirements to the education of students in juvenile justice residential facilities.
You may also access documents of the Department published in the
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before July 22, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Jon Utz, 202-377-4040.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
National Nuclear Security Administration, Department of Energy.
Record of Decision.
The National Nuclear Security Administration (NNSA), a separately organized agency within the Department of Energy (DOE), is issuing this Record of Decision (ROD) for the
NNSA prepared the CLWR SEIS to update the environmental analyses in the 1999 Final Environmental Impact Statement for the Production of Tritium in a Commercial Light Water Reactor (DOE/EIS-0288; the 1999 EIS). The CLWR SEIS provides analysis of the potential environmental impacts from Tritium Producing Burnable Absorber Rod (TPBAR) irradiation based on a conservative estimate of the tritium permeation rate through the TPBAR cladding, NNSA's revised estimate of the maximum number of TPBARs necessary to support the current and projected future tritium supply requirements, and a maximum production scenario of irradiating no more than a total of 5,000 TPBARs every 18 months.
NNSA has decided to implement the Preferred Alternative, Alternative 6, which allows for the irradiation of up to a total of 5,000 TPBARs every 18 months using Tennessee Valley Authority (TVA) reactors at both the Watts Bar and Sequoyah sites. Although near-term tritium requirements could likely be met with the irradiation of 2,500 TPBARs every 18 months, this decision provides the greatest flexibility to meet potential future needs that could arise from various plausible but unexpected events. The exact number of TPBARs to be irradiated during each/any 18-month reactor core cycle will be determined by both national security requirements and TVA reactor availability.
The CLWR SEIS analyses indicate that there would not be any significant increase in radiation exposure associated with TPBAR irradiation for facility workers or the public. For all analyzed alternatives, estimated radiation exposures would remain well below regulatory limits. The calculated estimated exposures for normal reactor operations with even the maximum number of TPBARs are comparable to those for normal reactor operation without TPBARs.
For further information on the CLWR SEIS, or this ROD, or to receive a copy of the CLWR SEIS, contact: Mr. Curtis Chambellan, CLWR SEIS Document Manager, P.O. Box 5400, Albuquerque, New Mexico 87185-5400; 505-845-5073;
For information on the DOE National Environmental Policy Act (NEPA) process, contact: Ms. Carol M. Borgstrom, Director, Office of NEPA Policy and Compliance (GC-54), U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; (202) 586-4600, or leave a message at (800) 472-2756. This ROD, the CLWR SEIS, and related NEPA documents are available on the DOE NEPA Web site at
NNSA is the lead Federal agency responsible for maintaining and enhancing the safety, security, reliability, and performance of the United States (U.S.) nuclear weapons stockpile. Tritium, a radioactive isotope of hydrogen, is an essential component of every weapon in the U.S. nuclear weapons stockpile and must be replenished periodically due to its short half-life.
In March 1999, DOE published the 1999 EIS, which addressed the production of tritium in the TVA's Watts Bar and Sequoyah nuclear reactors using TPBARs. The 1999 EIS assessed the potential environmental impacts of irradiating up to 3,400 TPBARs per reactor per fuel cycle (a fuel cycle lasts about 18 months). On May 14, 1999, DOE published the ROD for the 1999 EIS (64 FR 26369) in which it announced its decision to enter into an agreement with TVA to produce tritium in the Watts Bar Unit 1 reactor (Watts Bar 1) in Rhea County, Tennessee, near Spring City; and Sequoyah Units 1 and 2 reactors (Sequoyah 1 and 2) in Hamilton County, Tennessee, near Soddy-Daisy. In 2002, TVA received license amendments from the U.S. Nuclear Regulatory Commission (NRC) to produce tritium in those reactors. Since 2003, TVA has been producing tritium for NNSA by irradiating TPBARs only in Watts Bar 1. After irradiation, NNSA transports the TPBARs to the Tritium Extraction Facility at the DOE Savannah River Site in South Carolina. NNSA's Interagency Agreement with TVA to irradiate TPBARs is in effect until November 30, 2035.
During irradiation of TPBARs in a reactor, a small amount of tritium diffuses through the TPBAR cladding into the reactor coolant; this is called permeation. The 1999 EIS estimated that the permeation rate of tritium through the TPBAR cladding into the reactor coolant system would be less than or equal to 1 curie per TPBAR per year. Based on tritium production experience at Watts Bar 1, NNSA has determined that tritium permeation through the
U.S. strategic nuclear systems are based on designs that use tritium gas. Because tritium decays at a rate of about 5.5 percent per year (
Because NNSA continues to need tritium for nuclear weapons, NNSA's purpose and need for the production of tritium in CLWRs remains the same today as described in the 1999 EIS. However, current tritium requirements are less than they were in 1999. The observed higher-than-expected tritium permeation rate has resulted in precautionary limitations on the number of TPBARs that the NRC has permitted TVA to irradiate in its reactors.
To supply tritium to meet stockpile requirements, NNSA could potentially use one or more of four TVA CLWR units at the Watts Bar and Sequoyah sites (two at each site). These include the units evaluated in the 1999 EIS as well as Watts Bar Unit 2 (Watts Bar 2) which is currently coming online. The SEIS evaluates the potential environmental impacts from TPBAR irradiation for seven alternatives:
The following table summarizes these alternatives and provides information about the number of TPBARs analyzed per site as well as the maximum number of TPBARs that could be irradiated every 18 months for each alternative. The maximum number of TPBARs analyzed in the CLWR SEIS for irradiation in a single reactor (as opposed to a single site) is 2,500 TPBARs per fuel cycle versus the 3,400 TPBARs analyzed in the 1999 EIS.
In the Notice of Intent to prepare the CLWR SEIS (76 FR 60017; September 28, 2011), NNSA stated that it would assess the impacts associated with tritium production in CLWRs based on a permeation rate of about 5 curies of tritium per TPBAR per year. Although the observed tritium permeation through the cladding has been less than 5 curies of tritium per TPBAR per year, the current permeation rate does not take into account potential uncertainties about operating cycle length, tritium production per TPBAR, and future operational changes that could occur at the TVA reactors, all of which could affect the permeation rate.
Given these potential uncertainties in operational parameters, and after consultation with TVA and the Pacific Northwest National Laboratory (the TPBAR design agency), NNSA decided to evaluate an even higher and thus more conservative tritium permeation rate (10 curies of tritium per TPBAR per year) in the CLWR SEIS instead of 5 curies of tritium per TPBAR per year. NNSA, the Pacific Northwest National Laboratory, and TVA have determined that a tritium permeation rate of 10 curies of tritium per TPBAR per year is the best estimate to ensure that the analyses would reasonably be expected to bound uncertainties in relation to future operations. By analyzing this higher tritium permeation rate, NNSA is confident that the SEIS provides a reasonable, but conservative and bounding, analysis of the potential environmental impacts from tritium production in the Watts Bar and Sequoyah reactors. In addition, the SEIS includes a standalone analysis of the potential impacts associated with a permeation rate of 5 curies of tritium per TPBAR per year for 2,500 TPBARs per 18-month cycle at Watts Bar 1 to provide the most realistic estimate of the potential impacts.
The Preferred Alternative is the alternative the agency believes would ensure its ability to fulfill its statutory mission, giving consideration to environmental, economic, technical, and other factors. In the Draft CLWR SEIS, NNSA identified Alternative 1 as the Preferred Alternative. While, as previously stated, the irradiation of 2,500 TPBARs every 18 months is likely to meet near-term national security requirements, NNSA has determined that responsible planning needs to incorporate the flexibility to address potential future scenarios, including but not limited to a change in tritium production requirements or a prolonged reactor outage. Such events could require NNSA to increase the number of TPBARs that must be irradiated in a given 18-month period. To enable that flexibility, NNSA designated Alternative 6 as the Preferred Alternative in the Final SEIS, because that alternative encompasses the full numerical range of TPBARs that could, under any currently foreseeable circumstances, be irradiated in an 18-month period, at either or both the Watts Bar and Sequoyah sites, to satisfy national security requirements.
After considering the potential impacts to each resource area by alternative, NNSA identified the No-Action Alternative as the environmentally preferable alternative. Under the No-Action Alternative, as many as 680 TPBARs would be irradiated every 18 months in each of the following reactors: Watts Bar 1, Sequoyah 1 and Sequoyah 2. If all three reactors were used for tritium production, a maximum of 2,040 TPBARs could be irradiated every 18 months. This is the lowest limiting value considered for the total number of TPBARs proposed to be irradiated under any of the alternatives and consequently would result in less potential environmental impact.
The CLWR SEIS analyzed the potential impacts of each alternative on land use, aesthetics, climate and air quality, geology and soils, water resources, biological resources, cultural resources, infrastructure and utilities, socioeconomics, and human health and safety. The CLWR SEIS also analyzed the potential environmental impacts of each alternative that may result from accidents and intentional destructive acts, transportation, and those associated with waste and spent nuclear fuel management, and environmental justice. The key SEIS findings are: (1) Tritium releases from normal operations with TPBAR irradiation would have an insignificant impact on the health of workers and the public; (2) tritium releases from TPBAR irradiation would increase tritium concentrations in the Tennessee River in comparison with not irradiating TPBARs; however, the tritium concentration at any drinking water intake would remain well below the maximum permissible Environmental Protection Agency (EPA) drinking water limit of 20,000 picocuries per liter; (3) TPBAR irradiation would not have a significant adverse impact on the operation and safety of TVA reactor facilities, and the potential risks from accidents would remain essentially the same whether TPBARs were irradiated in a TVA reactor or not; and (4) irradiation of 2,500 TPBARs in a single reactor would increase spent nuclear fuel generation by about 24 percent per fuel cycle and irradiation of 5,000 TPBARs at a single site would increase spent nuclear fuel generation at either Watts Bar or Sequoyah by about 48 percent per fuel cycle; however, TVA has an infrastructure in place and has a plan to manage the increased volume of spent nuclear fuel assemblies.
The potential environmental impacts of each alternative are summarized for comparison in the Summary and Section 2.5 of the Final CLWR SEIS. Summary Table S-2 and Final CLWR SEIS Table 2-5 provide a summary of potential environmental impacts associated with the Preferred Alternative as well as a means for comparing the potential impacts of the Preferred Alterative with each of the analyzed alternatives.
NNSA published a Notice of Intent to prepare the CLWR SEIS in the
In August 2014, NNSA published the Draft CLWR SEIS. The 45-day public comment period on the Draft CLWR SEIS began on August 8, 2014, and ended on September 22, 2014. During the comment period, public hearings were held to allow the public to comment on the Draft CLWR SEIS in Athens, Tennessee, on September 9, 2014; and Chattanooga, Tennessee, on September 10, 2014. In addition, NNSA accepted public comments via mail, email, and facsimile. NNSA considered all comments received in the preparation of the Final CLWR SEIS.
NNSA distributed the Final CLWR SEIS to Congressional members and committees; State and local governments; other Federal agencies, culturally affiliated American Indian tribal governments, non-governmental organizations, and other stakeholders including members of the public who requested the document. Also, the Final CLWR SEIS was made available via the DOE and NNSA Web sites. On March 4, 2016, EPA issued the notice of availability (NOA) for the Final CLWR SEIS (81 FR 11557). During the 30 days following publication of the NOA, NNSA received one comment letter from the EPA, dated April 4, 2016. The Appendix to this ROD identifies the comments contained in that letter and provides NNSA's responses. NNSA has concluded that those comments do not identify a need for further NEPA analysis.
NNSA has decided to implement the Preferred Alternative, Alternative 6, which allows for the irradiation of a total of 5,000 TPBARs every 18 months using both the Watts Bar and Sequoyah sites. Because TVA could irradiate a maximum of 2,500 TPBARs in any one reactor, one or both reactors at each of the sites could be used. For the analyses in the SEIS, NNSA assumed for Alternative 6 that each site would irradiate 2,500 TPBARs every 18 months. However, because the SEIS analyzes the impacts of irradiating up to 5,000 TPBARs at a single site, Alternative 6 is not intended to limit the number of TPBARs irradiated at either the Watts Bar or Sequoyah site, so long as no more than a total of 5,000 TPBARs is irradiated every 18 months, with no more than 2,500 TPBARs in any reactor core.
The 1999 EIS discusses NNSA's purpose and need to produce tritium by irradiating TPBARS in one or more CLWRs. That purpose and need remains unchanged and is the foundation for the decision announced in this ROD. In making its decision, NNSA considered potential environmental impacts of operations and activities, current and future mission needs and compatibility, TVA missions and reactor licensing considerations, technical and security considerations, availability of resources, and public comments on the CLWR SEIS.
The selection of Alternative 6 is based primarily on the increased flexibility that it affords to deal with currently unanticipated circumstances. With respect to potential human health and safety impacts, although irradiation of up to a maximum total of 5,000 TPBARs in an 18-month period will increase potential doses to workers and the public, all doses will be well within regulatory limits. The potential use of both the Watts Bar and Sequoyah sites provides both NNSA and TVA the greatest flexibility to meet future tritium production requirements, something the other alternatives do not provide. That is especially true now that four reactors (
To mitigate potential impacts from tritium releases, TVA would construct and operate a 500,000-gallon tritiated water tank system at Sequoyah in the event of a decision to irradiate TPBARs at that site or to facilitate routine tritium management. This system would be similar to that at the Watts Bar site. TVA would use the Watts Bar and Sequoyah tank systems to store tritiated water after it passed through the liquid radioactive waste processing system. TVA would release the stored tritiated water to the Tennessee River by the existing pathways. The tank systems that TVA currently has in place at the Watts Bar site and would potentially have in place at the Sequoyah site would have sufficient capacity to store and release the water to the Tennessee River at appropriate times (that is, TVA will release stored tritiated water from the tank during times of higher river flows for better dilution), and it will enable TVA to minimize the potential impacts of tritiated water releases. The systems would enable TVA to plan fewer releases each year and to ensure that site effluents would continue to remain well below regulatory concentration limits. Additionally, TVA will continue to monitor its operations for emissions to air and water in accordance with its NRC licensing requirements. Lastly, NNSA is continuing TPBAR research efforts, with the goal to reduce tritium permeation into the reactor coolant.
NNSA received one comment letter on the Final CLWR SEIS. That letter, from the EPA dated April 4, 2016, contained comments on three topics which NNSA is addressing in this Appendix to the ROD.
The first EPA comment was a recommendation that radiological and effluent monitoring should continue as the Project progresses. NNSA and TVA agree with this recommendation and note that TVA will continue to monitor its operations for emissions to air and water in accordance with its NRC licensing requirements.
The second EPA comment was a recommendation that the Project Team continue to work closely with any affected communities, regulatory agencies, and other stakeholders as the Project progresses. The EPA specifically identified radiological and effluent monitoring, as well as spent nuclear fuel management, as issues relevant to such coordination. In response to this comment, the NNSA and TVA reiterate their commitment to closely coordinate with any potentially affected communities, regulatory agencies, and other stakeholders as the Project progresses. Notifications of notable Project activities will be posted on both TVA and NNSA public information Web sites, as appropriate, and all regulatory requirements will be met in an open and transparent manner. NNSA and TVA welcome public involvement as the Project progresses.
The third EPA comment was a request that the ROD further evaluate the potential consequences of a breached holding tank releasing water containing tritium to the owner-controlled area and flowing to the Tennessee River. Such a scenario is addressed in the SEIS, in Section 1.6, with the conclusion that the EPA drinking water limit of 20,000 picocuries per liter would not be exceeded at the nearest community drinking water intake in the event of an instantaneous release of the maximum expected quantity of tritiated water in the tank. That conclusion is based on the assumption that the tritiated water would be reasonably well-mixed into the river by the time the flow reached the first community system drinking water intake.
In that scenario, the impacts (doses from drinking water consumption) on an annual basis would be no different than currently evaluated in Chapter 4 of the SEIS. In addition, during the NRC 10 CFR 50.59 regulatory process for the tank system, TVA analyzed the potential offsite dose that could
Design features and safety systems for the tritiated water tank system make such an instantaneous release/rupture unlikely. Specifically, the 500,000-gallon stainless steel tritiated water storage tank is set within a larger diameter open tank secondary containment structure to provide full capacity retention. A rain shield over the open containment tank connects to the primary tank above the usable level of the tank, providing a pathway into the secondary containment for all leaks on the side wall of the primary tank. The primary tank also includes an overflow line piped from beneath a top bladder to a 1000-gallon overflow storage tank located in the annulus between the primary and secondary tanks to contain overfills within the secondary tank. The bottoms of the tanks are separated with a mesh and any leakage between the two tank bottoms is directed to an alarmed sump inside the annulus area to provide leak detection. Piping outside of the tank is run inside a covered highway-rated concrete trench lined with epoxy and provided with a leak detection system.
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
ReEnergy Fort Fairfield LLC (Applicant or ReEnergy Fort Fairfield) has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before July 22, 2016.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On May 12, 2016, DOE received an application from ReEnergy Fort Fairfield for authority to transmit electric energy from the United States to Canada from its 37 megawatt (MW) capacity biomass-fired electric generation facility located in Fort Fairfield, Maine.
In its application, ReEnergy Fort Fairfield states that it owns the 37 MW capacity generation facility noted above. ReEnergy Fort Fairfield proposes to transmit the electric output across the Emera Maine transmission system into Canada, where the power is wheeled through New Brunswick Power Corporation's (NBPC) transmission system, and is transmitted back into the United States over the international electric transmission lines of Maine Electric Power Company, Inc. (MEPCO) to ISO-NE. ReEnergy Fort Fairfield will use the same Emera Maine transmission facilities previously authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning ReEnergy Fort Fairfield's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-421. An additional copy is to be provided directly to both William Ralston, ReEnergy Fort Fairfield LLC, 30 Century Hill Drive, Suite 101, Latham, NY 12110 and to Stephen C. Palmer, Esq., Alston & Bird LLP, 950 F Street NW., Washington, DC 20004.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Department of Energy.
Notice of meeting.
A meeting involving the Industry Advisory Board (IAB) to the International Energy Agency (IEA) in connection with the IEA's Training Session and Disruption Simulation Exercise (ERE8) will be held at the OECD Conference Centre, 2 Rue André-Pascal, 75016 Paris, France, on June 29-30, 2016. The purpose of this notice is to permit participation in ERE8 by U.S. company members of the IAB.
June 29-30, 2016.
2 Rue André-Pascal, 75016 Paris, France.
Thomas Reilly, Assistant General Counsel for International and National Security Programs, Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, 202-586-5000.
In accordance with section 252(c)(1)(A)(i) of the Energy Policy and Conservation Act (42 U.S.C. 6272(c)(1)(A)(i)) (EPCA), the following notice of meetings is provided:
The ERE8 sessions will be held from 9:00 a.m.-5:30 p.m. on June 29, 2016 and from 9:30 a.m.-4:45 p.m. on June 30, 2016. The purpose of ERE8 is to train IEA Government delegates in the use of IEA emergency response procedures by reacting to a hypothetical oil supply disruption scenario.
The agenda for ERE8 is under the control of the IEA. ERE8 will involve break-out groups, the constitution of which is under the control of the IEA. The IEA anticipates that individual break-out groups will not include multiple IAB or Reporting Company representatives that would qualify them as separate “meetings” within the meaning of the Voluntary Agreement and Plan of Action to Implement the International Energy Program. It is expected that the IEA will adopt the following agenda:
As provided in section 252(c)(1)(A)(ii) of the Energy Policy and Conservation Act (42 U.S.C. 6272(c)(1)(A)(ii)), the meetings of the IAB are open to representatives of members of the IAB and their counsel; representatives of members of the IEA's Standing Group on Emergency Questions (SEQ) and the IEA's Standing Group on the Oil Markets (SOM); representatives of the Departments of Energy, Justice, and State, the Federal Trade Commission, the General Accountability Office, Committees of Congress, the IEA, and the European Commission; and invitees of the IAB, the SEQ, the SOM, or the IEA.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Nuclear Materials Committee of the Environmental Management Site-Specific Advisory Board (EM SSAB), Savannah River Site (known locally as the Savannah River Site Citizens Advisory Board [SRS CAB]). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Tuesday, July 12, 2016, 4:30 p.m.-7:00 p.m.
New Ellenton Community Center, 212 Pine Hill Avenue, New Ellenton, South Carolina 29809.
James Giusti, Office of External Affairs, Department of Energy, Savannah River Operations Office, P.O. Box A, Aiken, SC 29802; Phone: (803) 952-7684.
This is a supplemental notice in the above-referenced proceeding of Bison Solar LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
On June 16, 2016, the Commission issued an order in Docket No. EL16-72-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into the justness and reasonableness of NRG Power Midwest, LP's Revised Reactive Rate Schedule.
The refund effective date in Docket No. EL16-72-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
This is a supplemental notice in the above-referenced proceeding of San Isabel Solar LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 6, 2016.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, or recommendations using the Commission's eFiling system at
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
On June 2, 2016, as supplemented on June 13, 2016, Three Sisters Irrigation District filed a notice of intent to construct a qualifying conduit hydropower facility, pursuant to section 30 of the Federal Power Act (FPA), as amended by section 4 of the Hydropower Regulatory Efficiency Act of 2013 (HREA). The proposed Watson Net Meter/Micro Hydroelectric Demonstration Facility would have an installed capacity of 198.6 kilowatts (kW), and would be located along the outlet pipe for an existing irrigation pipeline, the Watson McKenzie Main Canal South Pipe. The project would be located in the town of Sisters, Deschutes County, Oregon.
The proposed project would have a total installed capacity of 198.6 kW.
A qualifying conduit hydropower facility is one that is determined or deemed to meet all of the criteria shown in the table below.
Deadline for filing motions to intervene is 30 days from the issuance date of this notice.
Anyone may submit comments or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210 and 385.214. Any motions to intervene must be received on or before the specified deadline date for the particular proceeding.
The Commission strongly encourages electronic filing. Please file motions to intervene and comments using the Commission's eFiling system at
This is a supplemental notice in the above-referenced proceeding of Pavant Solar II LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 6, 2016.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
On June 16, 2016, the Commission issued an order in Docket No. EL16-61-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into the justness and reasonableness of Midcontinent Independent System Operator, Inc.'s Open Access Transmission, Energy and Operating Reserve Markets Tariff .
The refund effective date in Docket No. EL16-61-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
This is a supplemental notice in the above-referenced proceeding of Boulder Solar Power, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 6, 2016.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Environmental Protection Agency (EPA).
Notice.
EPA has received specific exemption requests from the Montana and the North Dakota Departments of Agriculture to use the herbicide pyridate (CAS No. 55512-33-9) on chickpea to control kochia, including glyphosate-resistant kochia. The applicants propose a use of a pesticide that was voluntarily canceled in 2004, and which is now considered to be unregistered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA is soliciting public comment before making the decision whether or not to grant the exemptions.
Comments must be received on or before July 7, 2016.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2016-0324, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Susan Lewis, Registration Division
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).
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Under section 18 of the FIFRA (7 U.S.C. 136p), at the discretion of the EPA Administrator, a Federal or State agency may be exempted from any provision of FIFRA if the EPA Administrator determines that emergency conditions exist which require the exemption. The Montana and North Dakota Departments of Agriculture have requested the EPA Administrator to issue specific exemptions for the use of pyridate on chickpea to control kochia, including glyphosate-resistant kochia in chickpea. Information in accordance with 40 CFR part 166 was submitted as part of this request. The Applicants' submissions which provide an explanation of the need for the exemption as well as the proposed use pattern can be found at
This notice does not constitute a decision by EPA on the applications themselves. The regulations governing FIFRA section 18 require publication of a notice of receipt of an application for specific exemptions proposing use of a pesticide that was voluntarily canceled in 2004, and which is now considered to be unregistered under the FIFRA.
The notice provides an opportunity for public comment on the applications. The Agency, will review and consider all comments received during the comment period in determining whether to issue specific exemptions requested by the Montana and North Dakota Departments of Agriculture.
7 U.S.C. 136
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before August 22, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email to
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 34.6, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime Commission.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than July 7, 2016.
A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101-2566. Comments can also be sent electronically to
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B. Federal Reserve Bank of Philadelphia (William Spaniel, Senior Vice President) 100 North 6th Street, Philadelphia, Pennsylvania 19105-1521. Comments can also be sent electronically to
1. 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 July 18, 2016.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
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Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, 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. This notice invites comment on the proposed information collection entitled “Poison Center Collaborations for Public Health Emergencies.” The goal for this new information collection is to create a timely generic clearance mechanism to allow a network of U.S. poison centers, in collaboration with CDC, to obtain
Written comments must be received on or before August 22, 2016.
You may submit comments, identified by Docket No. CDC-2016-0053 by any of the following methods:
•
•
All public comment should be submitted through the Federal eRulemaking portal (
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
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 of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
Poison Center Collaborations for Public Health Emergencies—NEW—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
Centers for Disease Control and Prevention (CDC) is requesting a three-year Paperwork Reduction Act (PRA) clearance for a new generic clearance information collection request (Generic ICR) titled “Poison Center Collaborations for Public Health Emergencies.”
CDC's key partner, the American Association of Poison Control Centers (AAPCC), is a national network of 55 poison centers working to prevent and treat poison exposures. The goal for this new Generic ICR is to create a timely mechanism to allow poison centers, in collaboration with CDC, to obtain critical exposure and health information during public health emergencies. This information is not captured during initial poison center calls about triage and treatment of potential poison exposures. Additional data collections are needed quickly to further characterize exposures, risk factors, and illnesses.
When a public health emergency of interest to CDC and AAPCC occurs, the CDC and AAPCC hold a meeting to mutually decide whether the incident needs further investigation. For a public health emergency to be selected for call-back, adverse health effects must have occurred and a response is needed to prevent further morbidity and mortality. The event must meet the criteria below:
(1) The event is a public health emergency causing adverse health effects.
(2) Timely data are urgently needed to inform rapid public health action to prevent or reduce injury, disease, or death.
(3) The event is characterized by a natural or man-made disaster, contaminated food or water, a new or existing consumer product, or an emerging public health threat.
(4) The event has resulted in calls to a poison center, and the poison center agrees to conduct the call-back data collection.
(5) The event is domestic.
(6) Data collection will be completed in 60 days or less.
Trained poison center staff will conduct the call-back telephone survey, after administering consent. Respondents will include individuals who call poison centers about exposures related to the select public health emergencies. These respondents include adults, 18 years and older; adolescents, 15 to less than 18 years; and parents or guardians on behalf of their children less than 15 years of age.
The total estimate of 300 annual respondents is based on poison center experience which assumes two incidents per year with approximately 150 respondents per event. The average burden per respondent is approximately 40 minutes for the call-back questionnaire. We anticipate a total annualized burden of 200 hours.
There is no cost to the respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, 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. This notice invites comment on Using the Standardized National Hypothesis Generating Questionnaire during Multistate Investigations of Foodborne Disease Clusters and Outbreaks.
Written comments must be received on or before August 22, 2016.
You may submit comments, identified by Docket No. CDC-2016-0054 by any of the following methods:
•
•
All public comment should be submitted through the Federal eRulemaking portal (
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
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 of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
Standardized National Hypothesis Generating Questionnaire (0920-0997, Expiration Date 10/31/2016)—Revision—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
It is estimated that each year roughly 1 in 6 Americans gets sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases. CDC and partners ensure rapid and coordinated surveillance, detection, and response to multistate outbreaks, to limit the number of illnesses, and to learn how to prevent similar outbreaks from happening in the future.
Conducting interviews during the initial hypothesis-generating phase of multistate foodborne disease outbreaks presents numerous challenges. In the U.S. there is not a standard, national form or data collection system for illnesses caused by many enteric
CDC requests a revision to this project to collect standardized information, called the Standardized National Hypothesis-Generating Questionnaire, from individuals who have become ill during a multistate foodborne disease event. Since the questionnaire is designed to be administered by public health officials as part of multistate hypothesis-generating interview activities, this questionnaire is not expected to entail significant burden to respondents.
The Standardized National Hypothesis-Generating Core Elements Project was established with the goal to define a core set of data elements to be used for hypothesis generation during multistate foodborne investigations. These elements represent the minimum set of information that should be available for all outbreak-associated cases identified during hypothesis generation. The core elements would ensure that similar exposures would be ascertained across many jurisdictions, allowing for rapid pooling of data to improve the timeliness of hypothesis-generating analyses and shorten the time to pinpoint how and where contamination events occur.
The Standardized National Hypothesis Generating Questionnaire was designed as a data collection tool for the core elements, to be used when a multistate cluster of enteric disease infections is identified. The questionnaire is designed to be administered over the phone by public health officials to collect core elements data from case-patients or their proxies. Both the content of the questionnaire (the core elements) and the format were developed through a series of working groups comprised of local, state, and federal public health partners.
Since implementation of the SNHGQ in 2013, ORPB has investigated over 700 multistate foodborne and enteric clusters of infection involving over 26,000 ill people. Of which, an outbreak vehicle has been identified in 200 of these investigations. These outbreaks have led to over 50 recalls and countless regulatory actions that have removed millions of pounds of contaminated vehicles out of commerce. In almost all instances, the SNHGQ or iterations of the SNHGQ have been instrumental in the successful investigation of these outbreaks. The questionnaire has allowed investigators to more efficiently and effectively interview ill persons as they are identified. Because these exposures are captured in a common, standard format, we have been able to share and analyze data rapidly across jurisdictional lines. Faster interview response and analysis times have allowed for more rapid epidemiologic investigation and quicker regulatory action, thus helping to prevent thousands of additional illnesses from occurring and spurring industry to adopt and implement new food safety measures in an effort to prevent future outbreaks.
The total estimated annualized burden for the Standardized National Generating Questionnaire is 3,000 hours (approximately 4,000 individuals identified during the hypothesis-generating phase of outbreak investigations with 45 minutes/response).
There are no costs to respondents other than their time.
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Case Investigation of Cervical Cancer (CICC) Study—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Invasive cervical cancer occurs when cervical cancer spreads from the surface of the cervix to deeper cervical tissue or to other parts of the body. In the United States, invasive cervical cancer is largely preventable due to the availability of (1) screening tests, which allow for early detection and treatment of cervical pre-cancers, and (2) a vaccine that prevents infection with types of human papillomavirus (HPV) which are associated with over 80% of cervical cancers. However, one previous study showed that half of the women who developed cervical cancer had not been adequately screened, and a more recent study showed that there were still approximately 8 million women in the U.S. who had not been screened for cervical cancer in the previous five years.
CDC plans to conduct the Case Investigation of Cervical Cancer (CICC) Study to improve understanding of the facilitators and barriers to cervical cancer screening and timely follow-up of abnormal test results. The proposed project will identify women recently diagnosed with invasive cervical cancer (2014-2016) through cancer registries in three states. Each registry will enroll cancer survivors within that state who consent to participate in the study.
Three types of data will be collected. (1) Existing cancer registry data will provide information on tumor characteristics, diagnosis, and stage of cancer. This will be used to describe the characteristics of the sample of survivors and for the identification of the eligible sample. (2) Participants will be asked to complete a survey. The purpose of the survey is to identify self-reported barriers and facilitators to screening and care, and to examine recall of screening tests. (3) Participants will also be asked to complete medical release and healthcare source forms to permit medical chart abstraction. The purpose of the medical chart abstraction is to obtain detailed clinical information about all screening and treatment prior to diagnosis. Together the information from these three sources of data will be used to identify opportunities for intervention to reach women and their providers in order to increase screening and appropriate follow-up care.
Based on preliminary data from three state cancer registries, a total of approximately 1,670 eligible cervical cancer survivors are eligible for participation. CDC estimates a survey response rate of 50% of across the entire sample (N = 835) followed by an 80% response rate to the medical release and healthcare source forms (N = 668). These estimates yield approximately 668 women with complete data for both surveys and chart abstraction. The estimated burden per response for completing the mail-in questionnaire is 15 minutes. The estimated burden per response for the medical release and healthcare source forms is five minutes. For each CICC participant, the medical chart abstraction process is expected to require follow-up with 1-5 (average of 3) health care providers (N = 2,004). The estimated burden for support activities conducted by office assistants at the health care facilities associated with each medical record abstraction is five minutes.
OMB approval is requested for two years. Participation is voluntary and there are no costs to respondents other than their time. The total estimated annualized burden hours are 217.
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) announce the following meeting for 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
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Health Risks from Using Private Wells for Drinking Water—New — National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
The Safe Drinking Water Act of 1974 (SDWA) ensures that most Americans are provided access to water that meets established public health standards. However, for over 38 million Americans who rely on private wells or other drinking water not protected by the SDWA (herein referred to as private wells), that is not the case. There is no comprehensive knowledge about the locations of private wells, the populations served by these sources, potential contaminants that might be present in private well water in specific areas of the country, or the potential health risks associated with drinking water from these sources.
The purpose of this new generic clearance information collection request is to assess the health risks associated with exposure to contaminants in drinking water from private wells across varied geographic areas of the United States in partnership with the requesting agency (state, territorial, local, or tribal health department). The information obtained from these investigations will be used to describe health risks from exposure to contaminants in drinking water from private wells within a defined time period and geographic distribution. This information will be used to inform public health protection activities conducted by the requesting agencies.
The respondents are defined as adults at least 18 years old, who use private wells for drinking water, who are willing to receive and return a tap water sampling kit and urine specimen kit or to provide a blood specimen, and who are willing to answer survey questions. They will be recruited from geographic areas of interest as defined by the requesting agency.
Based on our historical activities, we estimate that CDC will conduct up to 10
Food and Drug Administration, HHS.
Withdrawal of notice.
This document withdraws a Food and Drug Administration (FDA) notice that published in the
This notice is withdrawn on June 22, 2016.
Howard Muller, Center for Drug Evaluation and Research (CDER), 10903 New Hampshire Ave., Bldg. 51, Rm. 6234, Silver Spring, MD 20993-0002, 301-796-3474.
FDA published a notice in the
Health Resources and Services Administration, HHS.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995), the Health Resources and Services Administration (HRSA) announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this ICR should be received no later than August 22, 2016.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
When submitting comments or requesting information, please include the information request collection title for reference.
HRSA specifically requests comments on: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Notice is hereby given that I have delegated to the Office of the Inspector General (OIG) the acquisition administrative authorities of the Secretary, except the authority to approve and issue HHS Acquisition Regulations.
In addition, by the authority vested in the Secretary by section 1702 of Title 41 pf the United States Code (Pub. L. 111-350, § 3, Jan. 4, 2011), I have designated; (a) the Inspector General as the OIG Chief Acquisition Officer; and (b) the Principal Deputy Inspector General as OIG Senior Procurement Executive.
I also delegate to the Inspector General the authority under section 1705 of Title 41 of the United States Code (Pub. L. 111-350, § 3, Jan. 4, 2011) to designate a competition advocate for OIG. The authorities may be re-delegated to the extent permitted by law.
With respect to the HHS Acquisition Regulations only, the Inspector General will be considered an OPDIV head for the purposes of the December 21, 1994, delegation from the Secretary to the OPDIV heads to approve and issue noncontroversial regulations.
Exercise of these authorities shall be in accordance with established policies, procedures, guidelines, and regulations as prescribed by the Secretary.
This delegation is effective on the date of signature.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
The National Institute of Mental Health (NIMH) seeks information about the availability of data and existing biological specimens (plasma and cerebrospinal fluid (CSF)) obtained from healthy controls and clinically well-characterized individuals with mental illnesses (bipolar disorder, major depressive disorder, post-traumatic stress disorder, schizophrenia). This information will be used to identify biobanks of existing samples that could potentially be sourced to assess the technical performance of a panel of inflammation-related proteins, and to identify gaps in the availability of samples for the mental illnesses listed above.
All responses must be submitted via email to
Please direct all inquiries to:
Nancy L. Desmond, Ph.D., Division of
Sample collection, processing, and storage procedures have the potential to affect assay results for basic research, biomarker discovery, biomarker validation, and development of validated assays. Variability in these procedures may also decrease data rigor, thereby increasing the likelihood of irreproducible data, incorrect conclusions, and delays in advancing scientific knowledge.
Recent genetic studies have provided compelling evidence in support of the long-held hypothesis that alterations in immune function are associated with the pathophysiology of mental illnesses. Abnormal blood levels of cytokines have been reported in schizophrenia, bipolar disorder and major depressive illness. However, our understanding of the role of immune system markers in mental illnesses has not advanced due in part to between-study heterogeneity in immune assay methodology, diagnosis criteria, severity of disease, number and age of samples, and other potential confounds (
The creation of an agreed upon, standard panel of pro- and anti-inflammatory markers, along with adoption of a standard approach for sample collection and handling, would be a valuable resource for evaluation of inflammatory processes in mental illnesses.
This request for information (RFI) seeks information from the community about the availability, quality, and degree of clinical characterization of plasma and CSF samples that could potentially be used for assessing the technical performance of a panel of inflammatory markers and the utility of the panel for sub-typing individuals and tracking disease progression in individuals with mental illness.
The NIMH seeks information on the following:
1. Source and number of samples available for each disorder and for healthy controls. Include the number of plasma samples and the number of CSF samples available, and whether both plasma and CSF samples are available from the same individuals.
2. SOPs used for sample collection and storage
3. Available clinical data: diagnosis, age of onset and duration of illness, demographics, medications, co-morbidities
4. Consent for sharing of samples
5. Contact information for the individual responsible for the samples
Respondents are encouraged to include any other information that they deem relevant to the purpose of this RFI.
The NIH will use the information submitted in response to this RFI at its discretion and will not provide comments to any responder's submission. However, responses to the RFI may be reflected in future funding opportunity announcements. The information provided will be analyzed and may be aggregated in reports. Respondents are advised that the Government is under no obligation to acknowledge receipt of the information received or provide feedback to respondents with respect to any information submitted. No proprietary, classified, confidential, or sensitive information should be included in your response. The Government reserves the right to use any non-proprietary technical information in any resultant solicitation(s).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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
To obtain a copy of the data collection plans and instruments or request more information on the proposed project contact: David Sharlip, Office of Administrative and Management Analysis Services, National Library of Medicine, Building 38A, Room B2N12, 8600 Rockville Pike, Bethesda, MD 20894, or call non-toll-free number (301) 402-9680, or Email your request, including your address to:
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 7,500.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of an Interagency Autism Coordinating Committee (IACC or Committee) meeting.
The purpose of the IACC meeting is to discuss business, agency updates, and issues related to autism spectrum disorder (ASD) research and services activities. The Committee will discuss the next update of the IACC Strategic Plan. The meeting will be open to the public and will be accessible by webcast and conference call.
For IACC Public Comment guidelines please see:
In addition, any interested person may submit written public comments to the IACC prior to the meeting by sending the comments to the Contact Person listed on this notice by 5:00 p.m. ET on Monday, July 11, 2016. The comments should include the name, address, telephone number, and when applicable, the business or professional affiliation of the interested person. NIMH anticipates written public comments received by 5:00 p.m. ET on Monday, July 11, 2016 will be presented to the Committee prior to the meeting for the Committee's consideration. Any written comments received after the 5:00 p.m. ET, July 11, 2016 deadline through July 18, 2016 will be provided to the Committee either before or after the meeting, depending on the volume of comments received and the time required to process them in accordance with privacy regulations and other applicable Federal policies. All written public comments and oral public comment statements received by the deadlines for both oral and written public comments will be provided to the IACC for their consideration and will become part of the public record.
In the 2009 IACC Strategic Plan, the IACC listed the “Spirit of Collaboration” as one of its core values, stating that, “We will treat others with respect, listen to diverse views with open minds, discuss submitted public comments, and foster discussions where participants can comfortably offer opposing opinions.” In keeping with this core value, the IACC and the NIMH Office of Autism Research Coordination (OARC) ask that members of the public who provide public comments or participate in meetings of the IACC also seek to treat others with respect and consideration in their communications and actions, even when discussing issues of genuine concern or disagreement.
Individuals wishing to participate in person or by using these electronic services and who need special assistance, such as captioning of the conference call or other reasonable accommodations, should submit a request to the Contact Person listed on this notice at least five days prior to the meeting.
Meeting schedule subject to change.
Information about the IACC is available on the Web site:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
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
To obtain a copy of the data collection plans and instruments or request more information on the proposed project contact: Dr. Michael Sesma, Chief, Postdoctoral Training Branch, Division of Training, Workforce Development, and Diversity, NIGMS, 45 Center Drive, Room 2AS43H, Bethesda, MD 20892, or call non-toll-free number (301) 594-3900, or Email your request, including your address to:
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 61,950.
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the
To obtain a copy of the data collection plans and instruments, or request more information on the proposed project, contact: Denise L. Haynie, Ph.D., MPH, Staff Scientist, Division of Population Intramural Research, 6100 Executive Blvd. Rm. 7B13, Bethesda, MD 20892, or call non-toll-free number (301) 435-6933 or Email your request, including your address to:
The study has collected information on adolescent health behaviors and social and environmental contexts for these behaviors annually for six years beginning in the 2009-2010 school year. This study will collect this information in 2016, the last planned data collection. Self-report of health status, health behaviors, and health attitudes will be collected by online surveys.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 1385.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are 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 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.
Section 501(h) of the Public Health Service (PHS) Act (42 U.S.C. 290aa) directs the Administrator of the Substance Abuse and Mental Health Services Administration (SAMHSA) to establish such peer review groups as are needed to carry out the requirements of Title V of the PHS Act. SAMHSA administers a large discretionary grants program under authorization of Title V, and, for many years, SAMHSA has funded grants to provide prevention and treatment services related to substance abuse and mental health.
In support of its grant peer review efforts, SAMHSA desires to continue to expand the number and types of reviewers it uses on these grant review committees. To accomplish that end, SAMHSA has determined that it is important to proactively seek the inclusion of new and qualified representatives on its peer review groups. Accordingly SAMHSA has developed an application form for use by individuals who wish to apply to serve as peer reviewers.
The application form has been developed to capture the essential information about the individual applicants. Although consideration was given to requesting a resume from interested individuals, it is essential to have specific information from all applicants about their qualifications. The most consistent method to accomplish this is through completion of a standard form by all interested persons which captures information about knowledge, education, and experience in a consistent manner from all interested applicants. SAMHSA will use the information provided on the applications to identify appropriate peer grant reviewers. Depending on their experience and qualifications, applicants may be invited to serve as either grant reviewers or review group chairpersons.
The following table shows the annual response burden estimate.
Send comments to Summer King, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, Maryland 20857,
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are 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 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.
As the federal agency responsible for developing and disseminating authoritative knowledge about substance abuse prevention, addiction treatment, and mental health services and for mobilizing consumer support and increasing public understanding to overcome the stigma attached to addiction and mental illness, SAMHSA is responsible for development and dissemination of a wide range of education and information materials for both the general public and the professional communities. This submission is for generic approval and will provide for formative and qualitative evaluation activities to (1) Assess audience knowledge, attitudes, behavior and other characteristics for the planning and development of messages, communication strategies and public information programs; and (2) test these messages, strategies and program components in developmental form to assess audience comprehension, reactions, and perceptions. Information obtained from testing can then be used to improve materials and strategies while revisions are still affordable and possible. The annual burden associated with these activities is summarized below.
Send comments to Summer King, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, Maryland 20857,
U.S. Immigration and Customs Enforcement, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security, U.S. Immigration and Customs Enforcement (USICE) will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published in the
Comments are encouraged and will be accepted until August 22, 2016.
Written comments and suggestions regarding items contained in this notice and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), Scott Elmore, Forms Manager, U.S. Immigrations and Customs Enforcement, 801 I Street NW., Mailstop 5800, Washington, DC 20536-5800.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
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Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before July 22, 2016.
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When submitting comments, please indicate the name of the applicant and the PRT# you are commenting on. We will post all comments on
Brenda Tapia, (703) 358-2104 (telephone); (703) 358-2281 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice,
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import one female and one male Sumatran orangutan (
The applicant requests a permit to export one male and one female North Sulawesi babirusa (
The applicant requests a permit to import biological samples from wild olive Ridley sea turtle (
The applicant requests a permit to import a sport-hunted trophy of one male bontebok (
Bureau of Indian Affairs, Interior.
Notice.
On June 14, 2016, the Bureau of Indian Affairs (BIA) approved the Twenty-Nine Palms Band of Mission Indians of California (Tribe) leasing regulations under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into business site leases without BIA approval.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, MS-4642-MIB, 1849 C Street NW., Washington, DC 20240, at (202) 208-3615.
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes tribes to negotiate and enter into agricultural and business leases of tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes tribes to enter into leases for residential, recreational, religious, or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating tribes develop tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve tribal regulations if the tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the tribal regulations for the Twenty-Nine Palms Band of Mission Indians of California.
The Department regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to state and local taxation and may be subject to taxation by the Indian tribe with jurisdiction.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 465, preempts state and local taxation of permanent improvements on trust land.
The strong Federal and tribal interests against state and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.”
Assessment of state and local taxes would obstruct these express Federal policies supporting tribal economic development and self-determination, and also threaten substantial tribal interests in effective tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and tribal interests weigh heavily in favor of preemption of state and local taxes on lease-related activities and interests, regardless of whether the lease is governed by tribal leasing regulations at part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Twenty-Nine Palms Band of Mission Indians of California.
Bureau of Indian Affairs, Interior.
Notice.
On June 14, 2016, the Bureau of Indian Affairs (BIA) approved the Oneida Nation of New York (Tribe) leasing regulations under the HEARTH Act. With this approval, the Tribe is authorized to enter into residential leases without BIA approval.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, MS-4642-MIB, 1849 C Street NW., Washington, DC 20240, telephone: (202) 208-3615.
The HEARTH (Helping Expedite and Advance Responsible Tribal Homeownership) Act of 2012 (Act) makes a voluntary, alternative land leasing process available to tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The Act authorizes tribes to negotiate and enter into agricultural and business leases of tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (the Secretary). The Act also authorizes tribes to enter into leases for residential, recreational, religious, or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating tribes develop tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The Act requires the Secretary to approve tribal regulations if the tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the Act. This notice announces that the Secretary, through the Assistant
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to state and local taxation and may be subject to taxation by the Indian tribe with jurisdiction.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 465, preempts state and local taxation of permanent improvements on trust land.
The strong Federal and tribal interests against state and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.”
Assessment of state and local taxes would obstruct these express Federal policies supporting tribal economic development and self-determination, and also threaten substantial tribal interests in effective tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and tribal interests weigh heavily in favor of preemption of state and local taxes on lease-related activities and interests, regardless of whether the lease is governed by tribal leasing regulations or part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Oneida Nation of New York.
Bureau of Indian Affairs, Interior.
Notice.
This notice informs the public that the Assistant Secretary—Indian Affairs proclaimed approximately 128.30 acres, more or less, an addition to the Reservation of the Shakopee Mdewakanton Sioux Community of Minnesota on June 8, 2016.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, MS-4642-MIB, 1849 C Street NW., Washington, DC 20240, telephone: (202) 208-3615.
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by part 209 of the Departmental Manual.
A proclamation was issued according to the Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 467), for the land described below. The land was proclaimed to be Shakopee Mdewakanton Sioux Community Reservation for the exclusive use of Indians on that Reservation who are entitled to reside at the Reservation by enrollment or tribal membership.
The West Half of the Southeast Quarter and Government Lot 3, all in Section 15, Township 115 North, Range 22 West, of the 5th Principal Meridian, Scott County, Minnesota.
This proclamation does not affect title to the land described above, nor does it affect any valid existing easements for public roads and highways, public utilities, railroads or pipelines, and any other rights-of-way or reservations of record.
Office of the Secretary, Interior.
Notice.
The Secretary of the Interior is publishing this notice as required by section 410(e) of the Crow Tribe Water Rights Settlement Act of 2010 (Settlement Act). Congress enacted the Settlement Act as Title IV of the Claims Resolution Act of 2010 (Pub. L. 111-291). The publication of this notice causes certain waivers and releases of claims to become effective as required by the Settlement Act.
This notice is effective June 22, 2016.
Address all comments and requests for additional information to Douglas Davis, Chair, Crow Water Rights Settlement Implementation Team, Department of the Interior, Bureau of Reclamation, Great Plains Region, P.O. Box 36900 (GP-1230), Billings, MT 59107, (406) 247-7710.
The Settlement Act was enacted to resolve the water rights claims of the Crow Tribe (Tribe) in the State of Montana (State). The Tribe and the State negotiated the Crow Tribe-Montana Water Compact (Mont. Code. Ann. 85-20-901) (Compact) prior to enactment of the Settlement Act. As described in section 402 of the Settlement Act, the purposes of the Settlement Act are:
(1) To achieve a fair, equitable, and final settlement of claims to water rights in the State of Montana for the Crow Tribe and for the United States for the benefit of the Tribe and allottees;
(2) to authorize, ratify, and confirm the Compact;
(3) to authorize and direct the Secretary of the Interior (Secretary) to execute the Compact and to take any other action necessary to carry out the Compact in accordance with the Settlement Act; and
(4) to ensure the availability of funds necessary for the implementation of the Compact and the Settlement Act.
Section 415 of the Settlement Act provided for repeal of the Settlement Act and other consequences if certain conditions were not fulfilled on or before March 31, 2016, or by an extended date agreed to by the Tribe and the Secretary after reasonable notice to the State, whichever is later. On March 21, 2016, after providing reasonable notice to the State, the Secretary and the Tribe agreed to extend the deadline for publication to June 30, 2016.
In accordance with section 410(e) of the Settlement Act, I find as follows:
1. The Montana Water Court has issued a final judgment and decree approving the Compact;
2. all of the funds made available under subsections (c) through (f) of section 414 of the Settlement Act have been deposited in the Crow Settlement Fund;
3. the Secretary has executed the agreements with the Tribe required by sections 405(a) and 406(a) of the Settlement Act;
4. the State has appropriated and paid into an interest-bearing escrow account any payments due as of the date of enactment of the Settlement Act to the Tribe under the Compact;
5. the Tribe has ratified the Compact by submitting the Settlement Act and the Compact to a vote by the tribal membership for approval or disapproval and the tribal membership voted to approve the Settlement Act and the Compact by a majority of votes cast on the day of the vote, as certified by the Secretary and the Tribe;
6. the Secretary has fulfilled the requirements of section 408(a) of the Settlement Act; and
7. the waivers and releases authorized and set forth in section 410(a) of the Settlement Act have been executed by the Tribe and the Secretary.
Office of the Assistant Secretary for Policy, Chief Evaluation Office, Department of Labor.
Notice.
The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that required data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
A copy of the proposed Information Collection Request can be obtained by contacting the office listed below in the addressee section of this notice.
Written comments must be submitted to the office listed in the addressee section below on or before August 22, 2016.
You may submit comments by either one of the following methods:
Molly Irwin and Janet Javar by email at
I.
This
The purposes of the outcomes study are to capture participants' training experiences while in their programs, receipt of job search assistance as they near program completion, and employment and wage outcomes upon program exit and, for shorter programs, several months thereafter. The employer study will seek to understand how DOL can encourage the workforce system to build productive and sustainable employer relationships through Workforce Innovation and Opportunity Act implementation and its grants programs.
II.
* 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 information collection on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
III.
Comments submitted in response to this request will be summarized and/or included in the request for Office of Management and Budget approval; they will also become a matter of public record.
Division of Federal Employees' Compensation, Office of Workers' Compensation Programs, Department of Labor.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506 (c)(2)(A)] This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Currently, the Office of Workers' Compensation Programs is soliciting comments concerning the proposed collection: Authorization Request form and Certification/Letter of Medical Necessity for Compounded Drugs (CA-26) and Authorization Request form and Certification/Letter of Medical Necessity for Opioid Medications (CA-27). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before August 22, 2016.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S-3323, Washington, DC 20210, telephone/fax (202) 354-9647, Email
The Department of Labor (DOL) is requesting an approval of a new information collection. This information collection is essential to the mission of DOL and the Office of Workers' Compensation Programs (OWCP), to monitor and assure the appropriate use of opioids and compounded drugs in treating employment-related injuries under the Federal Employees Compensation Act (FECA), 5 U.S.C. 8101
The FECA statute grants OWCP discretion to provide an injured employee the “services, appliances, and supplies prescribed or recommended by a qualified physician” which OWCP considers “likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation.” 5 U.S.C. 8103. In other words, OWCP is mandated to provide medical supplies and services—including prescription drugs such as opioids and compounded drugs—that it considers medically necessary. 20 CFR 10.310. The FECA statute and implementing regulations are not primarily focused on managing doctor/patient decisions relating to medication therapy and, with the exception of few limitations on fentanyl (an opioid) and other controlled substances, the FECA program policy on pharmacy benefits has generally been a policy of payment for prescribed medications in accordance with a fee schedule based on a percentage of the average wholesale price (AWP) for drugs identified by a National Drug Code (NDC). See 20 CFR 10.809. The FECA program does not currently have any limitations on payment for opioids generally or for compounded drugs. The FECA program is establishing a prior authorization policy for opioid and compounded drugs (at this time after first fill) utilizing the pre-authorization authority already contained in its regulations at 20 CFR 10.310(a) and § 10.800(b). In requiring the use of these forms for opioid and compounded drugs, OWCP is implementing a prior-authorization process based on medical necessity.
The forms, Authorization Request Form and Certification/Letter of Medical Necessity for Compounded Drugs (CA-26) and Authorization Request Form and Certification/Letter of Medical Necessity Certification/Letter of Medical Necessity for Opioid Medications (CA-27), require an injured worker's treating physician to answer a number of questions about the prescribed opioids and/or compounded drugs and certify that they are medically necessary to treat the work-related injury. The responses to the questions on the forms are intended to ensure that treating physicians have considered non-opioid and non-compounded drug alternatives, and are only prescribing the most cost effective and medically necessary drugs. The forms will also permit OWCP to more easily track the volume, type, and characteristics of opioids and compounded drugs authorized by the FECA program. The forms will serve as a means for injured workers to continue receiving opioids and compounded drugs only where medically necessary and simultaneously give OWCP greater oversight in monitoring their appropriate use and gather additional data about their use.
The Department of Labor is particularly interested in comments which:
• 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,
The Department of Labor seeks the approval of this new information collection in order to carry out its responsibility to meet the statutory requirements of the Federal Employees' Compensation Act.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Office of Workers' Compensation Programs, Labor.
Announcement of meeting of the Subcommittee on Medical Advice re: Weighing Medical Evidence of the Advisory Board on Toxic Substances and Worker Health (Advisory Board) for the Energy Employees Occupational
The subcommittee will meet via teleconference on July 12, 2016, from 1:00 p.m. to 4:00 p.m. Eastern Time.
The Advisory Board is mandated by Section 3687 of EEOICPA. The Secretary of Labor established the Board under this authority and Executive Order 13699 (June 26, 2015). The purpose of the Advisory Board is to advise the Secretary with respect to: (1) The Site Exposure Matrices (SEM) of the Department of Labor; (2) medical guidance for claims examiners for claims with the EEOICPA program, with respect to the weighing of the medical evidence of claimants; (3) evidentiary requirements for claims under Part B of EEOICPA related to lung disease; and (4) the work of industrial hygienists and staff physicians and consulting physicians of the Department of Labor and reports of such hygienists and physicians to ensure quality, objectivity, and consistency. The Advisory Board sunsets on December 19, 2019. This subcommittee is being assembled to gather data and begin working on advice under Area #2, Medical Advice re: Weighing Medical Evidence.
The Advisory Board operates in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2) and its implementing regulations (41 CFR part 102-3).
• Defining the issues and scope of the subcommittee's topic area: medical advice to claims examiners re: weighing medical evidence;
• Defining data and informational needs (and review) for the topic area;
• Drafting the initial work plan with a timetable.
OWCP transcribes Advisory Board subcommittee meetings. OWCP posts the transcripts on the Advisory Board Web page,
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Comments must be received by July 5, 2016. OWCP will make available publically, without change, any written comments, including any personal information that you provide. Therefore, OWCP cautions interested parties against submitting personal information such as Social Security numbers and birthdates.
Electronic copies of this
You may contact Antonio Rios, Designated Federal Officer, at
This is not a toll-free number.
Office of Workers' Compensation Programs, Department of Labor.
Announcement of meeting of the Subcommittee on the Site Exposure Matrices of the Advisory Board on Toxic Substances and Worker Health (Advisory Board) for the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).
The subcommittee will meet via teleconference on July 11, 2016, from 1:00 p.m. to 3:00 p.m. Eastern Time.
The Advisory Board is mandated by Section 3687 of EEOICPA. The Secretary of Labor established the Board under this authority and Executive Order 13699 (June 26, 2015). The purpose of the Advisory Board is to advise the Secretary with respect to: (1) The Site Exposure Matrices (SEM) of the Department of Labor; (2) medical guidance for claims examiners for claims with the EEOICPA program, with respect to the weighing of the medical evidence of claimants; (3) evidentiary requirements for claims under Part B of EEOICPA related to lung disease; and (4) the work of industrial hygienists and staff physicians and consulting physicians of the Department of Labor and reports of such hygienists and physicians to ensure quality, objectivity,
The Advisory Board operates in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2) and its implementing regulations (41 CFR part 102-3).
• Defining the issues and scope of the subcommittee's topic area: The Site Exposure Matrices (SEM) of the Department of Labor;
• Defining data and informational needs (and review) for the topic area;
• Drafting the initial work plan with a timetable.
OWCP transcribes Advisory Board subcommittee meetings. OWCP posts the transcripts on the Advisory Board Web page,
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Comments must be received by July 5, 2016. OWCP will make available publically, without change, any written comments, including any personal information that you provide. Therefore, OWCP cautions interested parties against submitting personal information such as Social Security numbers and birthdates.
Electronic copies of this
You may contact Antonio Rios, Designated Federal Officer, at
National Aeronautics and Space Administration (NASA).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a forthcoming meeting of the Aerospace Safety Advisory Panel.
Thursday, July 21, 2016, 10:15 a.m. to 11:30 a.m., Local Time.
NASA Headquarters, Room 9H40, 300 E Street SW., Washington, DC 20546.
Ms. Marian Norris, Aerospace Safety Advisory Panel Administrative Officer, NASA Headquarters, Washington, DC 20546, (202) 358-4452 or
The Aerospace Safety Advisory Panel (ASAP) will hold its Third Quarterly Meeting for 2016. This discussion is pursuant to carrying out its statutory duties for which the Panel reviews, identifies, evaluates, and advises on those program activities, systems, procedures, and management activities that can contribute to program risk. Priority is given to those programs that involve the safety of human flight. The agenda will include:
The meeting will be open to the public up to the seating capacity of the room. Seating will be on a first-come basis. This meeting is also available telephonically. Any interested person may call the USA toll free conference call number 877-918-6321; pass code 1242097. Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID before receiving access to NASA Headquarters. Due to the Real ID Act, Public Law 109-13, any attendees with drivers licenses issued from non-compliant states/territories must present a second form of ID [Federal employee badge; passport; active military identification card; enhanced driver's license; U.S. Coast Guard Merchant Mariner card; Native American tribal document; school identification accompanied by an item from LIST C (documents that establish employment authorization) from the “List of the Acceptable Documents” on Form I-9]. Non-compliant states/territories are: American Samoa, Illinois, Minnesota, Missouri, New Mexico and Washington. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: Full name; gender; date/place of birth; citizenship; visa information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution,
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
Advisory Committee for International Science and Engineering (#25104).
National Science Foundation, 4201 Wilson Boulevard, Stafford II, Suite 1155, Arlington, Virginia 22230.
To facilitate entry into the building, contact Diane Drew (
OPEN.
Rebecca Keiser, Head, Office of International Science and Engineering, National Science Foundation, 4201 Wilson Boulevard, Stafford II, Suite 1155, Arlington, Virginia 22230; 703-292-7727.
To provide advice and recommendations concerning support for research, education and related activities involving the U.S. science and engineering community working in a global context as well as strategic efforts to promote a more effective NSF role in international science and engineering.
A final detailed agenda may be obtained at the OISE Web site at
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “NRC Forms 542 and 542A, Uniform Low-Level Radioactive Waste Manifest Index and Regional Compact Tabulation, and Continuation Page.”
Submit comments by August 22, 2016. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2015-0282 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-2015-0282 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Future Plant Designs will hold a meeting on July 6, 2016, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance with the exception of portions that may be closed pursuant to 5 U.S.C. 552b(c)(4) and 5 U.S.C. 552b(c)(9)(b). The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss Advanced Reactor Design Criteria and other topics of interest. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Mike Snodderly (Telephone 301-415-2241 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “NRC Forms 541 and 541A, Uniform Low-Level Radioactive Waste Manifest, Container and Waste Description, and Continuation Page.”
Submit comments by August 22, 2016. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2015-0283 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-2015-0283 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “NRC Forms 540 and 540A, Uniform Low-Level Radioactive Waste Manifest (Shipping Paper) and Continuation Page.”
Submit comments by August 22, 2016. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2015-0281 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-2015-0281 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
In accordance with the purposes of Sections 29 and 182b of the Atomic Energy Act (42 U.S.C. 2039, 2232b), the Advisory Committee on Reactor Safeguards (ACRS) will hold a meeting on July 6-8, 2016, 11545 Rockville Pike, Rockville, Maryland.
Procedures for the conduct of and participation in ACRS meetings were published in the
Thirty-five hard copies of each presentation or handout should be provided 30 minutes before the meeting. In addition, one electronic copy of each presentation should be emailed to the Cognizant ACRS Staff one day before meeting. If an electronic copy cannot be provided within this timeframe, presenters should provide the Cognizant ACRS Staff with a CD containing each presentation at least 30 minutes before the meeting.
In accordance with Subsection 10(d) of Public Law 92-463 and 5 U.S.C. 552b(c), certain portions of this meeting may be closed, as specifically noted above. Use of still, motion picture, and television cameras during the meeting may be limited to selected portions of the meeting as determined by the Chairman. Electronic recordings will be permitted only during the open portions of the meeting.
ACRS meeting agendas, meeting transcripts, and letter reports are available through the NRC Public Document Room at
Video teleconferencing service is available for observing open sessions of ACRS meetings. Those wishing to use this service should contact Mr. Theron Brown, ACRS Audio Visual Technician (301-415-8066), between 7:30 a.m. and 3:45 p.m. (ET), at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
For the Nuclear Regulatory Commission.
U.S. Office of Personnel Management.
30-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on the reinstatement of an expired information collection without change (ICR) 3206-0099, Initial Certification of Full-Time School Attendance. As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35), as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The information collection was previously published in the
Comments are encouraged and will be accepted until July 22, 2016. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
A copy of this ICR with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
RI 25-41, Initial Certification of Full-Time School Attendance, is used to determine whether a child is unmarried and a full-time student in a recognized school. OPM must determine this in order to pay survivor annuity benefits to children who are age 18 or older.
U.S. Office of Personnel Management.
60-Day Notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on an extension, without change, of a currently approved information collection request (ICR) 3206-0254, Request for Case Review for Enhanced Disability Annuity Benefit, RI 20-123. As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection.
Comments are encouraged and will be accepted until August 22, 2016. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the U.S. Office of Personnel Management, Retirement Services, 1900 E Street NW., Washington, DC 20415-0001, Attention: Alberta Butler, Room 2347-E or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the U.S. Office of Personnel Management, Retirement Services Publications Team, 1900 E Street NW., Room 3316-L, Washington, DC 20415, Attention: Cyrus S. Benson, or sent via electronic mail to
The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
RI 20-123 is available only on the OPM Web site. It is used by retirees separated for disability and the survivors of retirees separated for disability to request that Retirement Operations review the computations of disability annuities to include the formulae provided in law for individuals who performed service as law enforcement officers, firefighters, nuclear materials carriers, air traffic controllers, Congressional employees, and Capitol and Supreme Court police.
Office of Personnel Management.
30-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on the reinstatement of an expired information collection with change (ICR) 3206-00034, Annuitant's Report of Earned Income, RI 30-2. As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. This information collection was previously published in the
Comments are encouraged and will be accepted until July 22, 2016. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
A copy of this ICR with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
RI 30-2, Annuitant's Report of Earned Income, is used annually to determine if disability retirees under age 60 have earned income which will result in the termination of their annuity benefits under title 5, U.S.C. Sections 8337 and 8455. It also specifies the conditions to be met and the documentation required for a person to request reinstatement.
Office of Personnel Management.
30-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on an extension, without change, of a currently approved information collection request (ICR) 3206-0143, Request to Disability Annuitant for Information on Physical Conditions and Employment, RI 30-1. As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35), as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. This information collection was previously published in the
Comments are encouraged and will be accepted until July 22, 2016. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
A copy of this ICR with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
RI 30-1 is used by persons who are not yet age 60 and who are receiving a disability annuity and are subject to inquiry regarding their medical condition as OPM deems reasonably necessary. RI 30-1 collects information as to whether the disabling condition has changed.
U.S. Office of Personnel Management.
30-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on the reinstatement of an expired information collection request (ICR) 3206-0138 without change, Reinstatement of Disability Annuity Previously Terminated Because of Restoration to Earning Capacity, RI 30-9. As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. This information collection was previously published in the
Comments are encouraged and will be accepted until July 22, 2016. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
A copy of this ICR with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
RI 30-9 informs former disability annuitants of their right to request restoration under title 5, U.S.C. Sections 8337 and 8455. It also specifies the conditions to be met and the documentation required for a person to request reinstatement.
Postal Regulatory Commission.
Notice.
The Commission is noticing recent Postal Service filings for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service has filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's Web site (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
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This notice will be published in the
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to make clarifying amendments to and remove obsolete language from Exchange Rules 1053, Filing of Trade Information, and 1056, Maintaining Office and Filing Signatures, relating to clearing of Exchange options transactions.
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 make minor amendments to Rules 1053 and Rule 1056 relating to options clearing responsibilities of members. The changes are intended to update and improve readability of the rules by deleting archaic and internally inconsistent provisions.
Phlx Rule 1053 currently provides that member organizations which are clearing members are responsible for supplying, “at the time of execution” certain trade information to the Exchange covering each Exchange options transactions “effected during said business day” for which such clearing member is responsible.
The Exchange is also deleting obsolete language following clause (x) in Rule 1053 which requires the clearing member to supply to the Exchange information as to whether a certificate will be surrendered if the transaction is a closing writing transaction. The deleted text is replaced with the word “Reserved”. At one time, the By-Laws and the Rules of The Options Clearing Corporation (“OCC”) provided for the issuance of physical certificates in respect of options contracts at the request of OCC participants. Certificates could be issued in respect of any option contract included in a long position in a customer's account to evidence a clearing member's position as the holder of one or more options of a specified type (put or call) in a specified options series. The certificate was nonnegotiable and conferred no separate legal rights on the holder. Certificated options contracts could only be exercised or closed out upon the surrender of the physical certificate. Until the certificate was surrendered, any attempt by a clearing member to write a closing options transaction with respect to a corresponding long certificated options position was considered by OCC to be an opening transaction subject to OCC's margin requirements on short positions. In 1982, OCC eliminated all provisions in its By-Laws and Rules providing for, or referring to certificates, after concluding that certificates were unnecessary and imposed administrative burdens and costs on OCC and on clearing members.
Phlx Rule 1056 currently requires clearing members to maintain an office at a location approved by the Exchange for the purpose of comparing Exchange options transactions.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
With respect to Rules 1053, deleting the illogical reference to “effected during said business day” makes the rule understandable. Deleting an obsolete reference to a certificate which no longer has any meaning also eliminates a barrier to comprehension of that rule. With respect to Rule 1056, deleting the Exchange approval requirement eliminates a rule imposing an unnecessary administrative burden on the Exchange, given that the Exchange is indifferent in any event as to a clearing member's office location, thereby perfecting the mechanism of a free and open market and a national market system. Additionally, deleting the requirement that the Exchange be provided with a certified list of signatures eliminates another rule imposing an unnecessary administrative burden from the rulebook, streamlining the rulebook by removing a requirement whose marginal benefit, if any, is not justified by its cost. The Exchange notes that at least two other options exchanges, NASDAQ BX and NASDAQ Options Market, do not impose a similar “certified list of signatures” requirement.
The Exchange does not believe that clarifying amendments proposed herein will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act inasmuch as they simply improve the accuracy and readability of the rules and delete unnecessary administrative burdens. As noted above with respect to the certified list of signatures requirement, at least two other options exchanges, NASDAQ BX and NASDAQ Options Market, do not impose a similar requirement. Eliminating the requirement on Phlx should therefore reduce a burden on competition.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) 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 Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rules 7018(a) and 7014(h) to: (i) Provide a new credit for providing liquidity in securities of all three Tapes; (ii) amend the requirements of an existing credit tier provided in securities of all three Tapes; (iii) delete text from the preamble of Rule 7018(a) and from Rule 7014(h)(5) concerning Consolidated Volume; and (iv) make technical corrections to the rule text.
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 purpose of the proposed rule change is to amend certain credits for the use of the order execution and routing services of the Nasdaq Market Center by members for all securities priced at $1 or more that it trades, and to make clarifying and technical changes to Rule 7018(a). Specifically, the Exchange proposes to amend Rules 7018(a) and 7014(h) to: (i) Provide a new credit for providing liquidity in securities of all three Tapes;
The purpose of the first change is to provide an additional credit to members for displayed quotes/orders (other than Supplemental Orders or Designated Retail Orders) that provide liquidity. Currently, the Exchange provides several credits under Rules 7018(a)(1), (2), and (3), each of which apply to securities of a different Tape, in return for market-improving behavior. The Exchange is proposing to add a new credit tier of $0.00305 per share executed to a member that has shares of liquidity provided in all securities during the month representing at least 0.60% of Consolidated Volume during the month, through one or more of its Nasdaq Market Center MPIDs, adds NOM
The term “Customer” or (“C”) applies to any transaction that is identified by a Participant for clearing in the Customer range at The Options Clearing Corporation (“OCC”) which is not for the account of broker or dealer or for the account of a “Professional” (as that term is defined in Chapter I, Section 1(a)(48)).
The term “NOM Market Maker” or (“M”) is a Participant that has registered as a Market Maker on NOM pursuant to Chapter VII, Section 2, and must also remain in good standing pursuant to Chapter VII, Section 4. In order to receive NOM Market Maker pricing in all securities, the Participant must be registered as a NOM Market Maker in at least one security.
The term “Non-NOM Market Maker” or (“O”) is a registered market maker on another options exchange that is not a NOM Market Maker. A Non-NOM Market Maker must append the proper Non-NOM Market Maker designation to orders routed to NOM.
The term “Firm” or (“F”) applies to any transaction that is identified by a Participant for clearing in the Firm range at OCC.
The term “Professional” or (“P”) means any person or entity that (i) is not a broker or dealer in securities, and (ii) places more than 390 orders in listed options per day on average during a calendar month for its own beneficial account(s) pursuant to Chapter I, Section 1(a)(48). All Professional orders shall be appropriately marked by Participants.
The term “Broker-Dealer” or (“B”) applies to any transaction which is not subject to any of the other transaction fees applicable within a particular category.
The purpose of the second change is to amend the criteria required to qualify for an existing credit, which is available
The purpose of the third change is to delete rule text from the preamble of Rule 7018(a) concerning Consolidated Volume. The rule currently defines Consolidated Volume as the total consolidated volume reported to all consolidated transaction reporting plans by all exchanges and trade reporting facilities during a month in equity securities, excluding executed orders with a size of less than one round lot. The Exchange excludes from the calculations of fees and credits that have a Consolidated Volume component all trading that occurs on the date of the annual reconstitution of the Russell Investments. The annual reconstitution represents a day of abnormal trading volume, as the Russell Investment indexes adjust holdings to accurately reflect the current state of equity markets and their market segments.
The Exchange is also deleting an identical definition of Consolidated Volume from Rule 7014, which provides rules applicable to the Exchange's Market Quality Incentive Programs. The definition of Consolidated Volume under Rule 7014(h)(5) is identical to Rule 7018(a). In light of the changes to the definition under Rule 7018(a) and to avoid duplication in the rules, the Exchange is eliminating the identical definition from Rule 7014(h)(5) and is replacing it with text that cross references the definition under Rule 7018(a).
The Exchange is proposing to make minor technical and corrective changes to the rule text. Specifically, the Exchange is adding punctuation to certain credit tiers, which was inadvertently omitted when the text was adopted. The Exchange is also reorganizing a credit tier so that it reads more consistently with other credit tiers under the rule. The reorganization of the credit tier does not change how the credit tier is applied. Last, the Exchange is deleting from Rules 7018(a)(2) and (3) text under a credit tier that concerns its application during a period that has since expired.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed $0.00305 per share executed credit is reasonable because it is consistent with other credits that the Exchange provides to members for displayed quotes/orders (other than Supplemental Orders or Designated Retail Orders) that provide liquidity. As a general principle, the Exchange chooses to offer credits to members in return for market improving behavior. Under Rule 7018(a), the various credits the Exchange provides for displayed quotes/orders require members to significantly contribute to market quality by providing certain levels of Consolidated Volume through one or more of its Nasdaq Market Center MPIDs, and volume on NOM. The proposed credit will be provided to members that not only contribute to the Exchange by providing more than 0.60% of Consolidated Volume through one or more of its Nasdaq Market Center MPIDs during the month, but also add NOM Market Maker liquidity in Penny Pilot Options and/or Non-Penny Pilot Options of 0.10% or more of total industry ADV in the Customer clearing range for Equity and ETF option contracts per day in a month on the Nasdaq Options Market, and add Customer, Professional, Firm, Non-NOM Market Maker, and/or Broker-Dealer liquidity in Penny Pilot Options and/or Non-Penny Pilot Options of 1.50% or more of total industry ADV in the Customer clearing range for Equity and ETF option contracts per day in a month on the Nasdaq Options Market.
The Exchange notes that the proposed credit is consistent with other credits that it provides for displayed quotes/orders under the rule, which range from $0.0015 per share executed to $0.00305 per share executed and which apply progressively more stringent requirements in return for higher per share executed credits. In this case, the proposed requirements to receive the $0.00305 per share executed credit are set very high, consistent with the criteria of other $0.00305 per share executed credit tiers available under Rule 7018(a). For instance, the Exchange provides a $0.00305 per share executed credit in securities of any Tape to a member with shares of liquidity provided in all securities during the
The proposed $0.00305 per share executed credit is an equitable allocation and is not unfairly discriminatory because the Exchange will apply the same credit to all similarly situated members. Thus, if a member meets the requirements, it will receive the credit unless it qualifies for a higher credit. Moreover, as discussed above, some credit tiers require participation on NOM while others do not. As such, members will continue to have opportunities to qualify for similar credits based on market participation not tied to NOM.
The Exchange believes that the proposed amendment to the requirements of an existing credit tier provided in securities of all three Tapes is reasonable because it merely replaces a measure of activity on NOM with another, both of which represent a significant contribution to that market. Specifically, the Exchange is replacing the requirement that a member have 125,000 or more contracts per day in a month executed on the Nasdaq Option Market with a new requirement that a member have 0.90% or more of total industry ADV in the Customer clearing range for Equity and ETF option contracts per day in a month on the Nasdaq Options Market. The Exchange notes that it is more precisely targeting market-improving behavior on NOM by replacing the fixed requirement of providing a certain number of contracts executed per day on NOM with a requirement that fluctuates based on total industry ADV in the Customer clearing range for both Equity and ETF options contracts per day. Thus, the Exchange is proposing to require NOM activity that is more closely correlated to the member's activity on NOM as compared to overall industry activity.
The Exchange believes that the proposed amendment to the requirements of an existing credit tier provided in securities of all three Tapes is an equitable allocation and is not unfairly discriminatory because the Exchange will apply the same credit to all similarly situated members. Thus, if a member meets the requirements, it will receive the credit unless it qualifies for a higher credit. Moreover, as discussed above, some credit tiers require participation on NOM while others do not. As such, members will continue to have opportunities to qualify for similar credits based on market participation not tied to NOM. Also the proposed criteria will allow the threshold to fluctuate with industry volume, making it easier to achieve in low volume environments and more onerous to meet in high volume environments.
The Exchange believes that deleting rule text from the preamble of Rule 7018(a) concerning Consolidated Volume and the related change to Rule 7014(h)(5) are reasonable because they will help clarify how volume related to credit and fee tiers will be handled by the Exchange during the annual Russell Indexes reconstitution. Currently, the rule text could be interpreted to apply to only a member organization's trading activity under a fee or credit tier that is expressed as a ratio or percentage of Consolidated Volume. The Exchange believes that such an interpretation would undermine the Exchange's intent to exclude the abnormal trading activity that occurs on that day. Accordingly, the Exchange believes that it is reasonable to remove the potentially confusing rule text.
The Exchange believes that deleting rule text from the preamble of Rule 7018(a) concerning Consolidated Volume and the related change to Rule 7014(h)(5) are an equitable allocation and are not unfairly discriminatory because the proposed changes only serve to clarify the application of the rule and does not alter how Consolidated Volume or activity for tiers is calculated. Thus, the Exchange will apply the same process to all similarly situated member organizations that seek to qualify under a fee or credit tier, or rebate under the rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
In this instance, the changes to the credits provided for the use of the order execution and routing services of the Nasdaq Market Center by members for all securities priced at $1 or more that it trades are reflective of the intense competition among trading venues in capturing order flow. Moreover, the proposed changes do not impose a burden on competition because Exchange membership is optional and is also the subject of competition from other trading venues. For these reasons, the Exchange does not believe that any of the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets. Moreover, because there are numerous competitive alternatives to the use of the Exchange, it is likely that the Exchange will lose market share as a result of the changes if they are unattractive to market participants.
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 Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its Fees Schedule. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fees Schedule with respect to the Linkage Routing fee.
The Exchange notes that trades on the open involve the matching of pre-opening orders and quotes and orders resting in the book from the prior business day and therefore, in effect, no Maker or Taker activity is occurring. As such, the Exchange currently waives the fees for trades on the open. The Exchange would similarly like to waive the Linkage Routing fee and applicable Taker fees for (i) pre-opening orders that are submitted by 8:30 a.m. CST and (ii) for orders resting in the book from a prior business day that link away to another Exchange. The Exchange notes that pre-opening orders submitted by 8:30 a.m. CST and orders resting in the book from a prior business day may potentially be linked away after being exposed during the opening process pursuant to C2 Rule 6.11.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes the proposed rule change is reasonable because market participants won't be assessed Linkage Routing or Taker fees for orders that are routed to another Exchange if entered on a prior business day or prior to 8:30 a.m. CST on the same business day. The Exchange also believes it's reasonable, equitable and not unfairly discriminatory to not assess linkage or transaction fees for these transactions because no Maker or Taker activity is occurring in these instances and because market participants cannot anticipate upon submission whether their order would be linked away after exposure during an opening process, which would result in that market participant being assessed Taker fees (and in some instances, when they may otherwise have expected to be treated as a Maker). The Exchange also wishes to avoid discouraging Trading Permit Holders (“TPHs”) from canceling resting orders at the end of the day and from sending pre-opening orders (so as to avoid possible linkage and Taker fees if linked away after an opening rotation). Finally, the Exchange believes the proposed change is equitable and not unfairly discriminatory because it applies to all market participants.
C2 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 Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed rule change applies to all TPHs and because the Exchange does not wish to assess fees on orders that a TPH cannot anticipate being linked away and unexpectedly incur Linkage and Taker fees. The Exchange does not believe that the proposed change will impose any burden on intermarket competition because it only effects trading on C2. Should the proposed change make C2 a more attractive trading venue for market participants at other exchanges, such market participants may elect to become market participants at C2. Additionally, the Exchange notes that it operates in a highly competitive market, comprised of fourteen 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.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 the Department of State proposes to amend an existing system of records, Legal Case Management Records, State-21, pursuant to the provisions of the Privacy Act of 1974, as amended (5 U.S.C. 552a) and Office of Management and Budget Circular No. A-130, Appendix I.
This system of records will be effective on August 1, 2016, unless we receive comments that will result in a contrary determination.
Any persons interested in commenting on the amended system of records may do so by writing to the Director; Office of Information Programs and Services, A/GIS/IPS; Department of State, SA-2; 515 22nd Street NW., Washington, DC 20522-8100.
William Fischer, Acting Director; Office of Information Programs and Services, A/GIS/IPS; Department of State, SA-2; 515 22nd Street NW., Washington, DC 20522-8100, or at
The Department of State proposes that the current system will retain the name “Legal Case Management Records” (previously published at 42 FR 49709). Information in the Legal Adviser's Case Management Records is used to provide or facilitate the provision of legal advice and opinion to the offices of the Department of State and to facilitate defense or representation of the Department in litigation and in other legal proceedings. The proposed system will include modifications to all sections. The following sections have been added to the system of records, Legal Case Management Records, State-21, to ensure Privacy Act of 1974 compliance: Purpose and Disclosure to Consumer Reporting Agencies.
The Department's report was filed with the Office of Management and Budget. The amended system description, “Legal Case Management Records, State-21,” will read as set forth below.
Legal Case Management Records.
Unclassified and Classified.
Department of State, 2201 C Street NW., Washington, DC 20520; Department of State annexes, U.S. Embassies, U.S. Consulates General, and U.S. Consulates.
Individuals who have filed administrative grievances and Equal Employment Opportunity complaints; individuals involved in disciplinary proceedings; individuals involved in alleged criminal activity or activity in violation of regulations; individuals who have filed claims against the United States; individuals who have sued the Department of State or any officials; individuals whose records may be relevant to legal proceedings involving the Department of State; individuals who are the subjects of inquiries from federal, state, and local agencies; individuals who are the subjects of income withholding orders, garnishment orders, bankruptcy orders, state tax liens, and similar court or agency documents; individuals who have raised or discussed legal or policy questions with the Office of the Legal Adviser; and individuals who have otherwise contacted the Office of the Legal Adviser.
Biographic information, such as name, contact information, and place of birth; employment histories; summaries of circumstances surrounding grievances, Equal Employment Opportunity complaints, claims, litigation, or disciplinary proceedings; internal memoranda; copies of indictments and charges; criminal records and reports of investigations; electronic mail (email); electronic records in various formats; supporting documentation for a case against an individual; contracts and other legal documents; income withholding orders, garnishment orders, bankruptcy orders, state tax liens, and similar court or agency documents; inquiries from federal, state, and local agencies and responses to those inquiries; documents that may be relevant to legal proceedings and investigations; correspondence related to legal or policy issues, regardless of format (paper or electronic).
5 U.S.C. 301; 22 U.S.C. 2651a; 22 U.S.C. 2656; 42 U.S.C. 659; 42 U.S.C. 666; 5 CFR part 581.
Information in the Legal Adviser's Case Management Records is used to provide or facilitate the provision of legal advice and opinion to the offices of the Department of State and to facilitate defense or representation of the Department in litigation and in other legal proceedings. Information may also be used to reply to requests from courts or agencies.
The principal users of this information outside the Department of State are:
(a) The Department of Justice and other federal agencies in connection with facilitating defense of the Department in legal proceedings, analyzing legal issues, or fulfilling statutory responsibilities;
(b) Federal, state, and foreign courts, tribunals, and adjudicatory bodies in connection with legal proceedings;
(c) A party to a legal proceeding involving the Department, or the party's attorney or other designated representative in connection with legal proceedings;
(d) An attorney or other designated representative of any source, witness or subject in connection with legal proceedings;
(e) Appropriate committees and subcommittees of Congress in furtherance of their respective oversight functions; and
(f) Federal agencies having statutory or other lawful authority to maintain such information.
The Department may respond to federal, state, and local agency inquiries related to child support, alimony, bankruptcy, state tax lien, or similar issues. Pursuant to a court or agency order, the Department may disclose
The Department of State periodically publishes in the
None.
Storage:
Hard copy and electronic media.
Hardcopy by name, date, country, and/or subject; electronic by keyword or metadata.
All users are given cyber security awareness training which covers the procedures for handling Sensitive but Unclassified information, including personally identifiable information (PII). Annual refresher training is mandatory. In addition, all Foreign Service and Civil Service employees and those Locally Employed Staff who handle PII are required to take the FSI distance learning course instructing employees on privacy and security requirements, including the rules of behavior for handling PII and the potential consequences if it is handled improperly. Before being granted access to Legal Case Management Records, a user must first be granted access to the Department of State computer system.
Remote access to the Department of State network from non-Department owned systems is authorized only through a Department approved access program. Remote access to the network is configured with the Office of Management and Budget Memorandum M-07-16 security requirements which include but are not limited to two-factor authentication and time out function.
All Department of State employees and contractors with authorized access have undergone a thorough background security investigation. Access to the Department of State, its annexes and posts abroad is controlled by security guards and admission is limited to those individuals possessing a valid identification card or individuals under proper escort. All paper records containing personal information are maintained in secured file cabinets in restricted areas, access to which is limited to authorized personnel only. Access to computerized files is password-protected and under the direct supervision of the system manager. The system manager has the capability of printing audit trails of access from the computer media, thereby permitting regular and ad hoc monitoring of computer usage.
When it is determined that a user no longer needs access, the user account is disabled.
Records are retired in accordance with published Department of State Records Disposition Schedules as approved by the National Archives and Records Administration (NARA). More specific information may be obtained by writing to the Director, Office of Information Programs and Services, A/GIS/IPS, SA-2, Department of State, 515 22nd Street NW., Washington, DC 20522-8100.
Executive Director, Office of the Legal Adviser and Bureau of Legislative Affairs, Department of State, 600 19th Street NW., Suite 5.600, Washington, DC 20522.
Individuals who have reason to believe that the Office of the Legal Adviser might have records pertaining to him or her should write to the Director, Office of Information Programs and Services, A/GIS/IPS, SA-2, Department of State, 515 22nd Street NW., Washington, DC 20522-8100 or through the Department's Freedom of Information Act (FOIA) Web page at
Individuals who wish to gain access to or amend records pertaining to them should write to the Director, Information Programs and Services (address above).
Individuals who wish to contest records pertaining to them should write to the Director, Information Programs and Services (address above).
These records contain information that is primarily obtained from the individual; offices of the Department of State; other government agencies, particularly the Department of Justice; court systems and administrative bodies; previous employers; neighbors; security investigation reports; other employees or individuals having knowledge of the issue about which a legal opinion is requested or who are party to litigation or investigation.
Pursuant to 5 U.S.C. 552a (k)(1), records in this system may be exempted from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), (f) of § 552a. See 22 CFR 171.26.
Federal Aviation Administration (FAA), DOT.
Notice of intent of waiver with respect to land; Minneapolis-St. Paul International Airport, Minneapolis, Minnesota.
The FAA is considering a proposal to change 5.69 acres of airport land from aeronautical use to non-aeronautical use and to authorize the lease of airport property located at Minneapolis-St. Paul International Airport, Minneapolis, Minnesota. The aforementioned land is not needed for aeronautical use.
The subject property is located to the southeast of United States Post Office and south of the Terminal 1 inbound and outbound roadways located at Minneapolis-St. Paul International Airport, Minneapolis, Minnesota. The subject property does not currently have a designated use. The proposed non-aeronautical use of the property is for the construction of a hotel.
Comments must be received on or before July 22, 2016.
Documents are available for review by appointment at the FAA Dakota-Minnesota Airports District Office, Simon Schmitz, Program Manager, 6020 28th Avenue South, Room 102, Minneapolis, MN 55450-2706. Telephone Number (612) 253-4640/FAX Number (612) 253-4611. Documents reflecting this FAA action
Written comments on the Sponsor's request must be delivered or mailed to: Dakota-Minnesota Airports District Office, 6020 28th Avenue South, Room 102, Minneapolis, MN 55450-2706.
Simon Schmitz, Program Manager, 6020 28th Avenue South, Room 102, Minneapolis, MN 55450-2706. Telephone Number (612) 253-4640/FAX Number (612) 253-4611.
In accordance with section 47107(h) of Title 49, United States Code, this notice is required to be published in the
The site was part of a 1955 land conveyance from the Administrator of Veterans' Affairs to the Metropolitan Airports Commission. The subject property is located southeast of the United States Post Office and south of the Terminal 1 inbound and outbound roadways at Minneapolis-St. Paul International Airport, Minneapolis, Minnesota. The subject property was previously leased by Northwest Airlines as an office building with an attached hangar. The office building and hangar have since been demolished and the site does not currently have a designated use. The proposed non-aeronautical use of the property is a ground lease for the development of a hotel which will generate additional revenue for the airport. The Metropolitan Airports Commission intends to enter into a 75-year fair market value lease with a hotel developer. The proposed ground lease will provide for reappraisal of the fair market ground rent as frequently as every five (5) years. The disposition of proceeds from the lease of the airport property will be in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
This notice announces that the FAA is considering the release of the subject airport property at the Minneapolis-St. Paul International Airport, Minneapolis, Minnesota, from its obligations to be maintained for aeronautical purposes. Approval does not constitute a commitment by the FAA to financially assist in the change in use of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA.
Following is a legal description of the subject airport property to be released at the Minneapolis-St. Paul International Airport, Minneapolis, Minnesota:
The Southwest Quarter of Section 29, Township 26 North, Range 23 West, Hennepin County, Minnesota.
Described as commencing at the northwest corner of Section 30, Township 28 North, Range 23 West, Hennepin County, Minnesota; thence South 00 degrees 25 minutes 00 seconds West, assumed bearing, along the west line of the Northwest Quarter of said Section 30 a distance of 705.21 feet; thence South 58 degrees 46 minutes 43 seconds East a distance of 7307.61 feet; thence North 31 degrees 14 minutes 07 seconds East a distance if 33.30 feet; thence South 58 degrees 45 minutes 53 seconds East a distance of 45.62 feet to the point of beginning; thence North 31 degrees 15 minutes 57 seconds East a distance of 726.77 feet; thence South 58 degrees 44 minutes 03 seconds East a distance of 681.60 feet; thence South 74 degrees 25 minutes 44 seconds West a distance if 996.38 feet to the point of beginning. Total Area: 5.69 acres (247.681 square feet).
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA confirms its decision to exempt 91 individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions enable these individuals to operate CMVs in interstate commerce.
The exemptions were effective on April 1, 2016. The exemptions expire on April 1, 2018.
Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On March 1, 2016, FMCSA published a notice of receipt of Federal diabetes exemption applications from 91 individuals and requested comments from the public (81 FR 10703). The public comment period closed on March 31, 2016, and 5 comments were received.
FMCSA has evaluated the eligibility of the 91 applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of
These 91 applicants have had ITDM over a range of 1 to 43 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the March 1, 2016,
FMCSA received five comments in this proceeding. Brad Frazier, Ernie Sanchez, James Dowden, Gregory Skloda, and an anonymous commenter are in favor of granting the exemptions.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
Based upon its evaluation of the 91 exemption applications, FMCSA exempts the following drivers from the diabetes requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above 949 CFR 391.64(b)):
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption is valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (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. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of denials.
FMCSA announces its denial of 78 applications from individuals who requested an exemption from the Federal diabetes standard applicable to interstate truck and bus drivers and the reasons for the denials. FMCSA has statutory authority to exempt individuals from the diabetes requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions does not provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal diabetes standard for a renewable 2-year period if it finds “such an exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such an exemption.” The procedures for requesting an exemption are set forth in 49 CFR part 381.
Accordingly, FMCSA evaluated 78 individual exemption requests on their merits and made a determination that these applicants do not satisfy the criteria eligibility or meet the terms and conditions of the Federal exemption program. Each applicant has, prior to this notice, received a letter of final disposition on the exemption request. Those decision letters fully outlined the basis for the denial and constitute final Agency action. The list published in this notice summarizes the Agency's recent denials as required under 49 U.S.C. 31315(b)(4) by periodically publishing names and reasons for denial.
The following applicant, Robert A. Pettella, withdrew his application from the application process.
The following 12 applicants met the diabetes requirements of 49 CFR 391.41(b)(3) and do not need an exemption:
The following 21 applicants were not operating CMVs in interstate commerce:
The following 3 applicants had renal insufficiency:
The following 7 applicants had more than one hypoglycemic episode requiring hospitalization or the assistance of others, or had one such episode but not had one year of stability following the episode:
The following 9 applicants had other medical conditions making the applicant otherwise unqualified under the Federal Motor Carrier Safety Regulations:
The following applicant, Tina M.M. Kent, was unable to have an endocrinologist state the applicant is able to operate a CMV from a diabetes standpoint.
The following applicant, Henry G.E. Martinez, currently resides in Puerto Rico. He is not eligible because a Federal exemption is for drivers operating only in the United States.
The following 3 applicants did not meet the minimum age criteria outlined in 49 CFR 391.41(b)(1) which states that an individual must be at least 21 years old to operate a CMV in interstate commerce:
The following 19 applicants were excepted from the diabetes standard based on 49 CFR390.3(f):
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 70 individuals for exemption from the prohibition against persons with insulin-treated diabetes mellitus (ITDM) operating commercial motor vehicles (CMVs) in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate CMVs in interstate commerce.
Comments must be received on or before July 22, 2016.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2016-0040 using any of the following methods:
•
•
•
•
Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-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 statute also allows the Agency to renew exemptions at the end of the 2-year period. The 70 individuals listed in this notice have recently requested such an exemption from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
Mr. Andries, 60, has had ITDM since 2011. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Andries understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Andries meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Wisconsin.
Mr. Ankrah, 50, has had ITDM since 2013. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Ankrah understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ankrah meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Massachusetts.
Mr. Austin, 33, has had ITDM since 2001. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Austin understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Austin meets the requirements of the vision standard at
Mr. Banko, 64, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Banko understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Banko meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Colorado.
Mr. Bardin, 27, has had ITDM since 2007. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Bardin understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Bardin meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from New York.
Mr. Berta, 62, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Berta understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Berta meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Oklahoma.
Mr. Birmingham, 60, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Birmingham understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Birmingham meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Brayton, 52, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Brayton understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Brayton meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Canelo, 44, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Canelo understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Canelo meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New Mexico.
Mr. Chiappa, 49, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Chiappa understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Chiappa meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from New Jersey.
Mr. Cloy, 62, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Cloy understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cloy meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Tennessee.
Mr. Collett, 61, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist
Mr. Cote, 41, has had ITDM since 1981. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Cote understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cote meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable proliferative diabetic retinopathy. He holds an operator's license from Maine.
Mr. Cowell, 64, has had ITDM since 2010. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Cowell understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cowell meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from California.
Mr. Crosbie, 31, has had ITDM since 2005. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Crosbie understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Crosbie meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from New Hampshire.
Mr. Danley, 68, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Danley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Danley meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Dennis, 57, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Dennis understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dennis meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Kentucky.
Mr. Diefenbaugh, 60, has had ITDM since 2009. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Diefenbaugh understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Diefenbaugh meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Nebraska.
Mr. Fancelli, 53, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Fancelli understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Fancelli meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Fontes, 82, has had ITDM since 1999. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Fontes understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Fontes meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from Iowa.
Mr. Gangloff, 57, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Gangloff understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gangloff meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from New York.
Mr. Gruba, 46, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Gruba understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gruba meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from North Dakota.
Mr. Guidice, 45, has had ITDM since 2001. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Guidice understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Guidice meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Washington.
Mr. Hansen, 43, has had ITDM since 2013. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hansen understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hansen meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Hanson, 63, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hanson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hanson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Ohio.
Mr. Haralson, 49, has had ITDM since 2014. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Haralson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Haralson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Tennessee.
Mr. Hernandez, 56, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hernandez understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hernandez meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Florida.
Mr. Hill, 56, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hill understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hill meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Hutson, 33, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hutson understands diabetes management and monitoring, has stable control of his diabetes using
Mr. Jernigan, 33, has had ITDM since 1989. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Jernigan understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Jernigan meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Oklahoma.
Ms. Johnston, 60, has had ITDM since 2015. Her endocrinologist examined her in 2016 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Johnston understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Johnston meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2016 and certified that she does not have diabetic retinopathy. She holds a Class A CDL from Iowa.
Mr. Johnston, 27, has had ITDM since 2004. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Johnston understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Johnston meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Kinsey, 24, has had ITDM since 1995. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Kinsey understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Kinsey meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from California.
Mr. Korb, 69, has had ITDM since 2013. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Korb understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Korb meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Ohio.
Mr. Lee, 48, has had ITDM since 2006. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lee understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lee meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Lopez, 67, has had ITDM since 2011. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lopez understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lopez meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a class A CDL from Texas.
Mr. Love, 61, has had ITDM since 2000. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Love understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Love meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable proliferative diabetic retinopathy. He holds a Class B CDL from Illinois.
Mr. Makuski, 24, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting
Mr. McEntire, 22, has had ITDM since 2007. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. McEntire understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. McEntire meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from South Carolina.
Mr. McNealy, 61, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. McNealy understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. McNealy meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Michigan.
Mr. Medellin, 45, has had ITDM since 2011. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Medellin understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Medellin meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Texas.
Mr. Miller, 78, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Miller understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Miller meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Moore, 52, has had ITDM since 2004. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Moore understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Moore meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Arizona.
Mr. Morris, 50, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Morris understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Morris meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Mullins, 35, has had ITDM since 2014. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Mullins understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Mullins meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Texas.
Mr. Nechi, 26, has had ITDM since 2013. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Nechi understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Nechi meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy.
Mr. Neely, 45, has had ITDM since 2013. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Neely understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Neely meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Alabama.
Mr. Padilla, 52, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Padilla understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Padilla meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Texas.
Mr. Pattie, 57, has had ITDM since 2014. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Pattie understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Pattie meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class C CDL from Rhode Island.
Mr. Pennywell, 54, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Pennywell understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Pennywell meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Florida.
Mr. Porter, 41, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Porter understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Porter meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Kentucky.
Mr. Quezada, 61, has had ITDM since 2009. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Quezada understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Quezada meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from California.
Mr. Reesman, 55, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Reesman understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Reesman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Richardson, 55, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Richardson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Richardson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Massachusetts.
Ms. Robles, 48, has had ITDM since 2012. Her endocrinologist examined her in 2016 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5
Mr. Rowland, 38, has had ITDM since 1985. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Rowland understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Rowland meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable proliferative diabetic retinopathy. He holds an operator's license from Washington.
Mr. Russell, 54, has had ITDM since 2008. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Russell understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Russell meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Massachusetts.
Mr. Sandler, 55, has had ITDM since 1995. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Sandler understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Sandler meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from California.
Mr. Schaus, 49, has had ITDM since 2013. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Schaus understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Schaus meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Illinois.
Mr. Schrunk, 57, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Schrunk understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Schrunk meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Sebastian, 25, has had ITDM since 2000. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Sebastian understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Sebastian meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Texas.
Mr. Senyon, 29, has had ITDM since 2007. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Senyon understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Senyon meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from New Jersey.
Mr. Shellabarger, 67, has had ITDM since 2010. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Shellabarger understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Shellabarger meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Suttles, 40, has had ITDM since 1996. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Suttles understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Suttles meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Ohio.
Mr. Tupper, 44, has had ITDM since 2000. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Tupper understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Tupper meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Idaho.
Mr. Upton, 45, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Upton understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Upton meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from New York.
Mr. Walsh, 46, has had ITDM since 1997. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Walsh understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Walsh meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Wisconsin.
Mr. Webb, 51, has had ITDM since 2005. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Webb understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Webb meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Mississippi.
Mr. Williams, 58, has had ITDM since 1989. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Williams understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Williams meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Missouri.
Mr. Yates, 51, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Yates understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Yates meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Iowa.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the date section of the notice.
FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441).
Section 4129 requires: (1) Elimination of the requirement for 3 years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.
In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 notice.
Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary.
The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 notice, except as modified by the notice in the
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 that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period. FMCSA may issue a final determination at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, go to
Federal Railroad Administration (FRA), United States Department of Transportation (DOT).
Notice of intent to grant Buy America waiver.
FRA is issuing this notice to advise the public it intends to grant Palmetto Railways a waiver from FRA's Buy America requirement to use four (4) wide-span, electric, rail-mounted gantry cranes (WSCs).
Written comments on FRA's determination to grant Palmetto's Buy America waiver request should be provided to the FRA on or before June 29, 2016.
Please submit your comments by one of the following means, identifying your submissions by docket number FRA-2012-0033. All electronic submissions must be made to the U.S. Government electronic site at
(1)
(2)
(3)
(4)
Mr. John Johnson, Attorney-Advisor, FRA Office of Chief Counsel, 1200 New Jersey Avenue SE., Mail Stop 10, Washington, DC 20590, (202) 493-0078,
FRA provides information on its reasons for granting this waiver in a letter to Palmetto Railways, quoted below:
Dear Mr. McWhorter:
This letter is in response to your request that the Federal Railroad Administration (FRA) grant Palmetto Railways (Palmetto), a division of the South Carolina Department of Commerce, a waiver from FRA's Buy America policy applicable to FRA's Railroad Rehabilitation & Improvement Financing (RRIF) loan program. Palmetto requests a waiver to purchase four (4) wide-span, electric, rail-mounted gantry cranes (WSCs) because no company manufactures WSCs in the United States. Palmetto plans to use the WSCs at a brand new Intermodal Container Transfer Facility (ICTF) on the site of the former Charleston Navy Base, located in the City of North Charleston, South Carolina. The total estimated cost of the WSCs is $[ ] or 8.2 percent of the total investment of approximately $[ ] to construct the ICTF.
For the reasons set forth below, FRA is granting Palmetto's waiver request.
FRA applies 49 U.S.C. 24405(a)(1) to RRIF loans. Section 24405(a)(1) requires that the steel, iron, and manufactured goods used in a project be produced in the United States. FRA may waive the Buy America requirements if FRA finds that: (A) applying the requirements would be inconsistent with the public interest; (B) the steel, iron, and goods manufactured in the United States are not produced in sufficient and reasonably available amounts or are not of a satisfactory quality; (C) rolling stock or power train equipment cannot be bought or delivered to
FRA concludes a waiver is appropriate because domestically-produced WSCs meeting Palmetto's specification for the ICTF project are not currently produced in the United States.
FRA bases this determination on the following:
• While there are domestic manufacturers for smaller, intermodal cranes, there are no U.S. manufacturers of large and wide-span intermodal cranes for ports;
• In 2011, U.S. Department of Transportation's Maritime Administration (MARAD) determined it had been fifteen years since mobile harbor cranes were manufactured in the United States and issued a waiver for foreign mobile harbor cranes. See 76 FR 14457 (March 16, 2011). This finding comports with previous waivers for cranes granted by MARAD in 2010 and the Federal Highway Administration (FHWA) in 2009. See 75 FR 68661 (November 8, 2010) and 74 FR 51363 (October 6, 2009), respectively;
• In 2013, the National Institute of Standards and Technology's Hollings Manufacturing Extension Partnership (NIST-MEP) scouted for domestic rail-mounted and rubber tire mobile harbor cranes for intermodal containers and did not locate any U.S. manufacturers;
• In 2015, NIST-MEP scouted for domestic large, container vessel ship-to-shore gantry cranes and did not locate any U.S. manufacturers currently manufacturing these cranes;
• In 2015, Palmetto conducted extensive market research about active WSC manufacturers and found that they do not manufacture WSCs in the United States;
• In January 2015, FHWA granted a Buy America waiver for non-domestic harbor cranes after concluding that there are no domestic manufacturers. See 80 FR 3005 (January 21, 2015);
• On February 9, 2015, FRA provided public notice of this waiver request and a 15-day opportunity for comment on its Web site. FRA also emailed notice to over 6,000 persons who have signed up for Buy America notices through “GovDelivery.” See
• In May 2015, FHWA granted another Buy America waiver for cargo cranes after concluding that there are no domestic manufacturers. See 80 FR 29790 (May 22, 2015); and
• In January 2016, FRA independently confirmed there are no domestic WSC manufacturers. FRA discussed the U.S. market with crane/intermodal experts from several port terminals and railroad intermodal operations with experience purchasing a variety of crane equipment, including WSC cranes.
FRA encourages Palmetto to follow through with the bidding process described in its waiver request, including Palmetto's expectation to weight “the ability of a supplier to offer a technically compliant, cost-effective solution that maximizes U.S.-origin content over the lifecycle of the WSCs.” FRA is publishing notice of its decision to grant Palmetto's waiver request in the
Questions about this letter can be directed to, John Johnson, Attorney-Advisor, at
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before July 22, 2016.
Comments should refer to docket number MARAD-2016-0063. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel PHOTOBOAT is:
The complete application is given in DOT docket MARAD-2016-0063 at
Anyone is able to search the electronic form of all 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 DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Written comments on this information collection should be submitted by July 22, 2016.
Please send comments regarding this information collection request, including suggestions for reducing the burden, to OMB, Attention: Desk Officer for PHMSA, 725 17th Street NW., Washington, DC 20503.
Amy Nelson, GIS Manager, Program Development Division, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, by phone at 202-493-0591, or email at
On July 30, 2014, (79 FR 44246) PHMSA published a notice and request for comments in the
On August 27, 2015, (80 FR 52084) PHMSA published another notice in the
A public meeting was also held on September 10, 2015, (80 FR 52084) and a technical workshop on November 25, 2015, (80 FR 65286). The purpose of the second public meeting and the technical workshop was to grant the public further opportunities to learn about PHMSA's proposal, to ask pertinent questions about the collection, and to offer suggestions regarding the path forward. Details about the second public meeting and the public workshop can be found at:
PHMSA is publishing this notice to address and respond to the comments received. Please note that technical details pertaining to the new data elements such as domains and reporting requirements for each attribute can be found in the NPMS Operator Standards Manual, (30-Day Notice Version), which is attached to the docket.
The data being requested is the first substantial update to NPMS submission requirements since the NPMS standards were developed in 1998. The NPMS is
Specifically, the new data elements will:
• Aid the industry and all levels of government, from Federal to municipal, in promoting public awareness of hazardous liquid and gas pipelines and in improving emergency responder outreach. Currently, 787 Federal officials, 1,208 state officials and 4,791 county officials have access to the online mapping application. Providing these officials with an improved NPMS, containing system-specific information about local pipeline facilities, can help ensure emergency response agencies and communities are better prepared and can better execute response operations during incidents.
• Permit more powerful and accurate tabular and geospatial analysis, which will strengthen PHMSA's ability to evaluate existing and proposed regulations as well as operator programs and/or procedures.
• Strengthen the effectiveness of PHMSA's risk rankings and evaluations, which are used as a factor in determining pipeline inspection priority and frequency.
• Allow for more effective assistance to emergency responders by providing them with a more reliable, complete dataset of pipelines and facilities.
• Provide better support to PHMSA's inspectors by providing more accurate pipeline locations and additional pipeline-related geospatial data that can be linked to tabular data in PHMSA's inspection database.
• Better support PHMSA's research and development programs by helping to predict the impact of new technology on regulated pipelines.
PHMSA received wide-ranging comments that provided various points of view on the proposed attributes and the effect the collection of this data would have on the pipeline safety program, the pipeline industry, and the general public. After much consideration, PHMSA will modify or drop the following attributes, standards or components at this time: Positional accuracy, Highest percent operating Specified Maximum Yield Strength, Decade of Installation, Year of last corrosion, dent, crack, and other ILI inspections, Coated/uncoated and cathodic protection, Type of coating, Year of original pressure test and its pressure, Year of last pressure test and its pressure, and Gas Storage Fields. PHMSA reserves the right to reconsider these attributes in the future. Complete details on all of the attributes, (such as format, choices, and whether it is a required attribute), can be found in Appendix A of the draft NPMS Operator Standards Manual, which is attached to the docket.
This data element will be modified from the 2015 notice. In the 2015 notice, PHMSA proposed that hazardous liquid pipeline operators submit data with a positional accuracy of +/− 50 feet. Gas transmission operators would be required to submit data at +/− 50 feet accuracy for all segments which are in a Class 2, Class 3, or Class 4 area; are within a HCA or have one or more buildings intended for human occupancy; an identified site (See § 192.903); a right-of-way for a designated interstate; freeway, expressway, or other principal 4-lane arterial roadway as defined in the Federal Highway Administration's “Highway Functional Classification Concepts” within its potential impact radius. All other gas pipeline segments were requested to be mapped to a positional accuracy of +/− 100 feet. Multiple commenters noted that the reference GIS layer supplied to determine the “right-of-way for a designated interstate; freeway, expressway, or other principal 4-lane arterial roadway as defined in the Federal Highway Administration's `Highway Functional Classification Concepts' within its potential impact radius” was spatially inaccurate and could not be relied upon to definitively designate the right-of-way. PHMSA conducted a close examination of the reference layer and came to the same conclusion. Therefore, the positional accuracy definition is modified to read as follows:
Hazardous liquid pipeline operators must submit data with a positional accuracy of +/− 50 feet. Gas transmission operators must submit data at +/− 50 feet accuracy for all segments which are in a Class 2, Class 3, or Class 4 area; are within a HCA or have one or more buildings intended for human occupancy or an identified site, (See § 192.903), within its potential impact radius. All other gas pipeline segments must be mapped to a positional accuracy of +/− 100 feet.
Furthermore, multiple commenters requested more time to comply with the new positional accuracy standard. They noted that the most efficient and low-cost method of bringing their data into the new standard is to update centerlines during scheduled in-line inspection (ILI) runs. Commenters from INGAA requested a deadline of 2023 for complying with the new standard. API commenters requested several years to comply, and AGA also requested a seven-year period to bring 100% of pipelines into the proposed accuracy standard. PHMSA seeks to reduce the burden on operators to comply with this standard, and therefore requires all pipelines submitted to the NPMS have the stated new positional accuracy by the operator's 2024 submission (reflecting data as of 12/31/2023). Operators may submit their centerlines with the new accuracy standard earlier if some or all of their centerlines have been brought into the new standard. To clarify, part of an operator's yearly submission prior to 2024 may comply with the new 50/100 foot standard, while part retains the current 500 foot standard.
This data element will be modified from the 2015 notice, which defined this data element as “hoop stress corresponding to the maximum operating pressure (MOP) or maximum allowable operating pressure (MAOP) as a percentage of Specified Minimum Yield Strength (SMYS). Report with up to one decimal place.” Commenters argued that PHMSA can calculate this data element with the MAOP/MOP attribute plus pipe grade. However, this is not true in all cases. Where the
This data element will be modified from the 2015 notice. PHMSA asked operators to submit the “predominant” decade of installation on a pipe segment, signifying 90% or more of the physical pipe represented by the segment. In the comments and in the NPMS Operator Workshop held on November 18, 2015, operators explained that the burden would be lower if they could submit actual values, not predominant values. PHMSA is modifying this attribute to be defined as either actual or predominant, (90% or more of the represented segment), decade of installation.
These data elements will be modified from the 2015 notice. Commenters expressed concern about how this element would be used. If a null value was entered because a corrosion/dent/crack/other ILI inspection was not required by regulation, it would be misleading for PHMSA and its partners to view that segment as having increased risk. In order to reduce the burden on operators and accurately evaluate a pipe's condition and risk, PHMSA will create a new attribute which streamlines the information in this data element and in the pressure test elements (see sections H and I). The new elements are as follows: (1) Assessment method for the most recent assessment: ILI = Inline Inspection, DIR = Direct Assessment Method, or PT = Hydrostatic Pressure Test). (2) Assessment Year: 4-digit year of last assessment. These elements are mandatory submissions for pipeline segments that must be assessed per §§ 192 and 195. As described in the NPMS Operator Standards Manual, operators can indicate whether a segment is exempt from assessment, and if more than one assessment method was performed concurrently the last time the segment was assessed, an operator may indicate that in the additional assessment method fields, which are optional.
These data elements will be modified from the 2015 notice. In that notice, PHMSA proposed two related data elements: Coated/uncoated pipe and type of coating. The operator was asked to identify whether the pipe was “effectively” cathodic protection (CP) coated steel, no CP coated steel, CP bare steel, no CP bare steel, or plastic. INGAA requested that this attribute be changed to a yes/no choice to reduce the burden on operators. PHMSA agrees that a yes/no choice is sufficient for its internal needs and for the needs of its stakeholders. Furthermore, PHMSA will remove the word “effectively” from the definition. The new data element is as follows: Whether the pipe is coated (yes/no).
As explained in section F above, this data element will be dropped. Submitting the type of coating increases the burden on operators and PHMSA has determined that this data element is not necessary to serve its internal needs and those of its stakeholders.
This data element will be dropped. As explained in section E, the pressure test and ILI inspection elements are being rolled up into the new Assessment Method element. The original pressure test and its pressure will no longer be required. If the original pressure test was the only assessment performed, it will be submitted as the Assessment Method and its year will be noted in the Assessment Year field. Operators will not be required to research the original pressure test otherwise.
This data element will be modified from the 2015 notice. As explained in section E, the pressure test and ILI inspection elements are being rolled up into the new Assessment Method element. The requirement to always submit the year of the last pressure test has been removed; however, if the method of assessment was a pressure test, the year of the test is required in the Assessment Year field.
This data element will be modified from the 2015 notice. Commenters (Transcanada and Texas Pipeline Association) opposed this data element. AGA requested that the choices for field type be changed to aboveground tanks, underground cavern, depleted reservoir, or aquifer storage. PHMSA accepts the proposal to change the storage field types per AGA's request, but will also include a choice for injection wells. The new choices are noted in the NPMS Operator Standards Manual, Appendix A4. Note that this element when contained in the NPMS system is considered SSI per PHMSA's consultations with TSA.
After careful consideration of the comments received, along with the agency's pipeline safety goals, PHMSA has decided to move forward with the proposal to collect geospatial data on the following pipeline attributes with no substantial modifications.
PHMSA originally proposed requiring operators to submit data on the nominal diameter, also called the nominal pipe size of a pipe segment. Knowing the diameter of a pipeline can help emergency responders determine the impact area of a pipeline in the event of a release. This attribute also gives PHMSA the opportunity to gain a broader understanding of the sizes of pipe being operated in any given geographic region, and to further assess potential impacts to public safety and the environment.
PHMSA received eighteen comments in support of including mandatory reporting of pipe diameter in the information collection. This included industry associations such as INGAA, AGA, API, and AOPL, public interest groups, and individual operators. Most concerns centered on clarification regarding whether PHMSA was requesting nominal pipe size or actual diameter. Nominal pipe size will be collected.
PHMSA proposes to move forward with this attribute as originally proposed. To clarify and be consistent with other reporting methods, diameter will be reported as the Nominal Pipe Size (NPS) of the pipe segment, which is the diameter in whole number inches, (except for pipe less than 5″), used to describe the pipe size, (
PHMSA originally proposed to collect data on the nominal wall thickness of a pipe. PHMSA intends to collect this information as originally proposed. Comments received on the last information collection revision include support from Spectra Energy Partners and Transcanada Corporation. AGA opposed collection of wall thickness, claiming it can be derived from SMYS. However, this is not possible when the pipe is of unknown or unlisted specification. Texas Pipeline Association asked that an “unknown” option be added due to data gaps for pre-1970 pipe. PHMSA will add an “unknown” option. API asked whether wall thickness would be required for grandfathered natural gas pipelines, and whether the lowest wall thickness per diameter could be submitted. In this case, operators should choose the lowest wall thickness value for that MAOP/MOP section. Otherwise, operators should submit actual wall thickness values. PHMSA intends to collect this information as originally proposed. For clarification, PHMSA is requesting the nominal wall thickness. PHMSA analysts and inspectors identified this as a fundamental piece of descriptive information for pipeline risk. This information is especially critical for determining the relative risk of corrosion.
PHMSA proposed operators submit commodity details for pipelines if the transported commodity is crude oil, product or natural gas, and subcategories of each. The list of commodity choices is available in the NPMS Operator Standards Manual (Appendix A). Other choices may be added as the need arises. During the last comment period, supporters of collecting commodity detail included AGA, INGAA, Southwest Gas Association, and Texas Pipeline Association. API/AOPL noted that the specific commodity can change on a daily basis, which could be misleading for emergency responders. PHMSA understands this is the case with many pipelines, and provides three fields, (CMDTY_DTL1, CMDTY_DTL2, and CMDTY_DTL3), to represent up to three specific commodities. The fields COMMODITY and CMDTY_DTL1 should represent the commodity in the pipe on 12/31 of the previous year.
PHMSA will move forward with this collection. This level of detail is required because of potential differences in leak characteristics, rupture-impacted hazardous areas and a pipeline's internal integrity. Emergency responders will also be able to better respond to pipeline incidents if they are prepared for the commodity which is likely being transported.
PHMSA originally proposed that operators submit data on pipe material. Operators will be required to submit data on whether a segment was constructed out of cast iron, plastic, steel, composite, or other material. PHMSA received no opposition from commentators.
PHMSA proposes to move forward with this collection as originally introduced. Knowing the pipe material helps PHMSA determine the level of potential risk from excavation damage and external environmental loads. These can also be factors in emergency response planning.
PHMSA originally proposed that operators submit information on the predominant pipe grade of a pipeline segment. AGA believed this attribute was redundant because percentage of SMYS captured the risk from pipe grade. Spectra asked that PHMSA collect this information as actual, not predominant, values. This information is essential in issues regarding pipe integrity, and is a necessary component in determining the allowable operating pressure of a pipeline. The list of pipe grades is available in the NPMS Operator Standards (Appendix A). Operators are welcome to submit either actual or predominant (90% of pipe segment) values.
PHMSA proposed operators submit data on the pipe join method. Operators will indicate whether pipes within the segment were welded, coupled, screwed, flanged, used plastic pipe joints, or other.
AGA asked that an option be added to submit the predominant value for this data. TransCanada opposed collecting this attribute. The Texas Pipeline Association and commenter Molly Wolf asked that an “unknown” choice be added. PHMSA will include the requested “unknown” choice. PHMSA analysts and inspectors would use this information to identify high-risk joining methods and will be used in PHMSA's risk rankings and evaluations. These models are used to determine pipeline inspection priority and frequency.
PHMSA proposed operators submit data on the seam type of each pipe segment. Options include: SMLS = Seamless, LFERW = Low frequency or direct current electric resistance welded, HFERW = High frequency electric resistance welded, UNKERW = Electric resistance welded with unknown frequency (possible if made around 1970), DSAW = Double side submerged arc weld, SSAW = Single side submerged arc weld, SPRSAW = Spiral single side submerged arc weld, EFW = Flash weld, LAPW = Lap weld, FBW = Furnace butt weld, PLAS = Plastic or OTHER = Other unlisted seam type, UNK = Unknown seam type.
Spectra Energy Partners supported inclusion of this attribute. TransCanada opposed collection, and commenter Molly Wolf recommended adding an “unknown” option.
PHMSA intends to collect this information with the possibility of limiting it to Classes 3, 4, and HCAs. An “unknown” option has been added. This information is used to determine which type of integrity management inspection assessment should apply, is important for risk analysis due to certain time-dependent risky seam types (
PHMSA proposes operators designate whether a pipe segment is onshore or offshore.
Spectra Energy Partners and TransCanada were supportive of collecting this attribute and asked that PHMSA issue a clear definition of “offshore.”
PHMSA will move forward with this attribute as originally proposed. PHMSA directs operators to the definition of an offshore pipeline found in §§ 191.3 and 195.2: “Offshore means beyond the line of ordinary low water along that portion of the coast of the United States that is
PHMSA originally proposed that operators indicate whether their system is capable of accommodating an ILI tool. INGAA, Spectra Energy Partners, and Transcanada supported collection of this attribute. AGA opposed collection. APGA asked that PHMSA clarify it was not requiring operators of transmission pipelines to make modifications to pipelines to accommodate ILI tools. A comment from the November 2015 Operator Workshop was to make this attribute predominant.
PHMSA intends to collect this information as originally proposed. This attribute is not collected on a predominant basis on the Annual Reports, so PHMSA will not accept this attribute on a predominant basis on the NPMS submission. For the purpose of this information collection, this attribute denotes whether a line is capable of accepting an inline inspection tool with currently available technology. There is no attached mandate to modify the pipeline so that it can accommodate ILI tools. ILI information is useful for tracking progress related to NTSB recommendations P-15-18 and P-15-20 which recommend that all natural gas transmission pipelines be capable of being in-line inspected and that PHMSA “identify all operational complications that limit the use of in-line inspection tools in piggable pipelines.”
Operators of gas transmission pipeline segments will be required to submit information on class location (§ 192.5) at the segment level.
PHMSA received four comments on this attribute (from AGA, Southwest Gas Association, Spectra Energy Partners, and Texas Pipeline Association) which were generally positive.
PHMSA intends to collect this information as originally proposed. This information is a critical measure of population risk, and is necessary to ensure that integrity management rules are properly applied to high-risk areas. Survey requirements vary based on class location, and this data is valuable for prioritizing, planning, and conducting inspections.
PHMSA proposed gas transmission operators identify HCA pipe segments as defined by § 192.903. AGA, INGAA, Southwest Gas Association, Spectra Energy Partners, Transcanada, and Texas Pipeline Association supported collecting data regarding Gas HCAs.
PHMSA intends to move forward with the Gas HCA segment attribute as originally proposed. This information will help emergency responders identify pipelines with greater potential for significant damage. Additionally, these attributes identify pipelines subject to integrity management procedures. PHMSA has explicit statutory authority to map high-consequence assets under 49 U.S.C. 60132(d). Gas operators are only expected to submit information on whether or not that segment is an HCA segment as defined in § 192.903.
PHMSA proposed hazardous liquid operators identify pipe segments which could affect HCAs as defined by § 195.450. Pipe segments can be classified as affecting or not affecting each of the following: a “highly populated area,” an “other populated area,” an Ecological Unusually Sensitive Area (USA), a Drinking Water USA, and a Commercially Navigable Waterway. See Appendix A of the NPMS Operator Standards for definitions. Spectra Energy Partners and the Texas Pipeline Association supported this attribute, while Transcanada opposed it.
PHMSA intends to move forward with the “could affect HCA” attributes as originally proposed, noting that it only applies to hazardous liquid pipeline segments. This information will help emergency response planners identify pipelines with greater potential for significant damage. Additionally it identifies pipelines subject to integrity management procedures. PHMSA has explicit statutory authority to map high-consequence assets under 49 U.S.C. 60132(d), and NTSB recommendation P-15-5 states that PHMSA should “revise the submission requirement to include HCA identification as an attribute data element to the National Pipeline Mapping System.” This information will be secured by limiting access to government officials to mitigate potential security risks. Because of its unique sensitivity, the Drinking Water USAs when contained in NPMSA are considered SSI per PHMSA's consultations with TSA. See Section 4.D for additional details on security levels for each attribute.
PHMSA proposed operators submit the Facility Response Plan sequence number for applicable liquid pipeline segments according to Part 194. This is a 4 digit number (
PHMSA intends to move forward with this attribute as originally proposed. Access to the relevant facility response plan sequence number through NPMS would be beneficial to first responders in an emergency situation, especially in areas with multiple pipeline facilities. Furthermore, this would greatly reduce the workload of regional offices and even operators tasked with ensuring compliance with response plan regulations. Mapping the FRP sequence numbers allows PHMSA and its partners to identify gaps in compliance, assists with facility response plan reviews and approvals, and enables PHMSA to determine the applicable FRP for any given pipe in the NPMS. Since applicable liquid operators are required to have this information, PHMSA believes it should be minimally burdensome to submit it.
PHMSA proposed that all gas transmission and hazardous liquid pipelines abandoned after the effective date of this information collection be mandatory submissions to the NPMS. Abandoned pipelines are defined as those that are “permanently removed from service” according to §§ 192.3 and 195.2. Abandoned lines are not currently required to be submitted to the NPMS unless they are offshore or cross a Commercially Navigable Waterway (note that these two types of abandoned lines also require a certification of abandonment). Operators would only need to submit this data in the calendar year after the abandonment occurs. This data element will be submitted by marking the pipe segment with a “B” in the STATUS_CD field, symbolizing abandonment.
AGA and Spectra Energy Partners supported the inclusion of this attribute for newly abandoned lines only. The GPA opposed collection, citing concerns over retaining records for which pipeline operators are no longer responsible. In response, PHMSA notes its Letter of Interpretation PI-08-0003
PHMSA intends to move forward with this attribute as originally proposed. This information is important for PHMSA inspections, particularly to enforce proper abandonment procedures. PHMSA inspectors have identified incidents in the past involving lines which had been mischaracterized as abandoned (
PHMSA proposed that operators submit the maximum MAOP or MOP for a pipeline segment in pounds per square inch gauge.
PHMSA received comments in support of including this attribute from Spectra Energy Partners and Transcanada. AGA, Texas Pipeline Association, and an individual commenter opposed collection of this attribute. AGA noted that, combined with the Highest Percent Operating SMYS attribute, this attribute would increase the burden on operators. Texas Pipeline Association noted that, without full knowledge of how the MAOP/MOP was established, this attribute could lead to faulty conclusions in assessing risk. PHMSA intends to collect this information. While superficially similar to percent SMYS, MAOP/MOP is not identical and captures different elements of pipeline risk. Specifically, PHMSA inspectors identified it as an important element for incident analysis. MAOP/MOP helps enforce pressure levels between segments which are rated for different pressures. PHMSA engineers further noted that it is useful for determining the potential impact radius. This information when contained in the NPMS system is considered SSI per PHMSA's consultations with TSA.
PHMSA proposes operators submit a geospatial point file containing the centroid of the dedicated property location of pump (for liquid operators) and compressor (for gas transmission operators) stations. Appendix A2 in the NPMS Operator Standards contains technical details on submitting this information. API/AOPL, TransCanada, and the American Fuel and Petrochemical Manufacturers opposed this data collection due to security concerns.
PHMSA intends to move forward with this attribute as originally proposed. Pump and compressor stations are vulnerable areas, and emergency responders and planners need to know their locations for adequate emergency planning. Proximity to a compressor station has also been known to influence the level of stress on nearby segments, making this information valuable for prioritizing inspection resources. Additionally, the stations are often referenced as inspection boundaries for PHMSA's inspectors. Regarding security concerns, this information when contained in the NPMS system is considered SSI per PHMSA's consultations with TSA.
PHMSA will collect mainline block valve locations and associated attributes as described in the NPMS Operator Standards Manual, Appendix A3. Valve location can assist emergency responders when working with pipeline operators during an emergency, and it is useful to PHMSA inspectors and partners to identify vulnerable points along a pipeline. Commenters AGA, Transcanada, Texas Pipeline Association, and Energy Transfer Partners opposed collecting this attribute, citing the sensitivity of the data as a concern. AGA proposed that only emergency valve locations be collected. PHMSA agrees that this dataset is sensitive and is considered SSI per PHMSA's consultations with TSA.
PHMSA proposed to require the submission of breakout tank data. This is currently an optional submission; this revision would make it mandatory. PHMSA received positive comments from Texas Pipeline Association and Spectra Energy Partners. TransCanada opposed collection of this attribute.
PHMSA intends to proceed with this attribute as originally proposed. As detailed in Appendix A8 of the NPMS Operator Standards Manual, this information will be stored as a point for each tank. Please note that the operator contact information that was previously collected in optional breakout tank submissions has been removed, as it is already collected in the operator's transmittal letter which accompanies his/her submission. As well, the commodity codes and revision codes have been updated to match annual report codes and existing NPMS codes, and a clarifying note has been added to the TANKSIZE attribute. The breakout tank data helps inspectors locate individual tanks because a tank farm may contain both breakout tanks and other tanks.
PHMSA proposed to collect additional data attributes and features for liquefied natural gas (LNG) plants used in or affecting interstate commerce (under PHMSA's jurisdiction). The new attributes include type of plant, year constructed and capacity; the new features are impoundments and exclusion zones. PHMSA received positive comments from Texas Pipeline Association and Spectra Energy Partners. Appendices A5-A7 of the NPMS Operator Standards Manual contain technical details on submitting.
PHMSA intends to proceed with this information as originally proposed. The new LNG attributes and features will be protected by limiting access to government officials.
Geospatial information on the location and characteristics of LNG plants helps PHMSA and emergency responder better understand potential safety risks on a national and local level, respectively, and provides location data which is not submitted on the Annual Report.
INGAA, API/AOPL, AGA, and GPA submitted comments indicating that some of the proposed attributes appear to be duplicative of information that PHMSA already collects, especially from the annual reports. PHMSA acknowledges that some of the proposed attributes are also collected on the annual report forms. Over time, PHMSA has noticed that there are often discrepancies between the data submitted to the NPMS and the data that is recorded in the annual reports. Data quality is a top priority to PHMSA and its stakeholders. PHMSA plans to use to the geospatial data to corroborate and to fill in any holes that exist in the data collected via the annual reports.
A number of operators commented highlighting the expected burden of the proposed revisions to the information collection. Comments submitted by INGAA, API TPA, Ameren, and MidAmerican claimed that PHMSA greatly underestimated the expected burden of this revision. AGA, Ameren Illinois, Laclede Gas Co. and TransCanada noted that a high regulatory burden could divert resources from other safety initiatives such as integrity management and infrastructure replacement activities. Intermountain, Avista, Ameren Missouri, Ameren Illinois, Southwest Gas, AGA, and INGAA noted that many of the proposed changes were beyond the capability of their existing GIS, and would require resources to upgrade systems and hire individuals to convert non-GIS or paper records to an appropriate format.
PHMSA understands the concerns regarding the expected burden of this collection and proposes operators use a phased-approach to submit the data requested. PHMSA has agreed to give operators up to seven (7) years to submit positional accuracy data. We believe this to be the heaviest of burdens associated with this collection and hope that, by giving operators more time to plan and allocate resources; this timeframe reduces the annual associated burden significantly.
During the comment period, many operators provided a list of attributes that they would not take objection to sending. PHMSA believes that operators currently have many of these attributes in their GIS systems. For this reason, PHMSA requests that these attributes be submitted during Phase 1 of this information collection. PHMSA understands that some attributes will require additional layers of data before they can be extracted and submitted to the NPMS. PHMSA would not require submission of those particular attributes until Phase 2 of this information collection.
INGAA, AGA, API/AOPL, and CenterPoint Energy submitted comments suggesting that certain aspects of the proposal exceed what is considered acceptable for an information collection regulated under the Paperwork Reduction Act, and that it should have been considered as a rulemaking. These comments were received in response to the public notice published in the
The “Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011,” (the 2011 Act) (Public Law No: 112-90), was enacted “to provide for enhanced safety and environmental protection in pipeline transportation,” and “to provide for enhanced reliability in the transportation of the Nation's energy products by pipeline.” To facilitate this goal of providing for enhanced safety of transporting energy products via pipeline, Section 11 of the 2011 Act amended 49 U.S.C. 60132, (National pipeline mapping system), to require an operator of a pipeline facility, (except distribution lines and gathering lines), to provide to the Secretary of Transportation particular information including, “any other geospatial or technical data, including design and material specifications, that the Secretary determines are necessary to carry out the purposes of this section. The Secretary shall give reasonable notice to operators that the data are being requested.” 49 U.S.C. 60132(a)(4).
Therefore, under § 60132, PHMSA has the authority as delegated from the Secretary, to request submission of this data as an information collection pursuant to the procedural requirements under the Paperwork Reduction Act, 44 U.S.C. 3501
With regard to the statutory requirement to provide reasonable notice to operators that the data are being requested, PHMSA issued two information collection notices in the
API/AOPL further commented that the NPMS is intended for public awareness, rather than for other roles such as risk management. Section 60132(d) requires the Secretary to maintain as part of NPMS a map of designated high-consequence areas in which pipelines are required to meet integrity management program regulations, therefore implying the NPMS is to be used for pipeline safety purposes beyond public awareness and emergency response. In addition to public awareness and information to improve emergency response capabilities, PHMSA considers this data as valuable for a number of purposes described in the Background section of this notice.
The GPA submitted comments requesting clarification as to the facilities to which this information collection applies. In response to these comments, PHMSA states the requirements of this information collection apply only to facilities subject to 49 CFR parts 192, 193, and 195.
The GPA also respectfully suggests that providing information regarding the location of refineries, processing plants, and treatment facilities is not within PHMSA's current purview. PHMSA would note that any facility where natural gas or hazardous liquids arrive and depart by pipeline are part of the pipeline transportation system. While there may be equipment on the grounds of such a facility that is unregulated under Parts 192 or 195, such as storage wells and processing or treatment equipment, it does not mean that the entire facility is “non-jurisdictional.” PHMSA collects information consistent with its mission to ensure pipeline safety. PHMSA does not collect information that has no relevance to pipeline and storage operations. With respect to refineries used in the petroleum industry, they are non-jurisdictional to PHMSA and we are not proposing to collect information on refineries except that reporting the location of a particular pipeline that ends at a refinery necessarily imparts ancillary information on the location of the refinery. In any event we do not believe the GPA's members generally include refineries.
PHMSA understands that the new data elements have varying degrees of sensitivity, and that some are highly sensitive when contained in the NPMS system. PHMSA has discussed the appropriate security categorization for the new data elements with TSA and has reviewed all comments regarding security submitted during the two 60-day notice comment periods.
The following new data elements when contained in the NPMS system are considered SSI (Sensitive Security Information). These elements will be kept in an SSI-compliant environment at PHMSA. PHMSA would only release this information to covered persons with a need to know the information, as defined in 49 CFR part 15.
The elements in the list below are proposed to be restricted to government officials by inclusion in the Pipeline Information Management and Mapping Application (PIMMA), on
The following elements are proposed to be displayed on the NPMS Public Viewer, which can be accessed by the general public. The current extent (one county per session) and zoom level (no closer than 1:24,000) restrictions will remain in place.
Industry groups AGA, INGAA, API, and AOPL submitted comments which included alternative plans for revisions to the NPMS. These plans included support for a limited number of data elements in the 2015
PHMSA finds that all sets of attributes proposed by industry groups are inadequate to meet PHMSA's risk assessment and emergency planning goals as well as mandates from Congress and recommendations from NTSB. The next section provides a table showing the new data elements which will fulfill the recommendations and mandates.
In additional to satisfying DOT mission needs, PHMSA mission needs, PHMSA internal group needs, PHMSA partner needs and PHMSA stakeholder needs, this Information Collection is gathering geospatial information which will be used to fulfill Congressional mandates and National Transportation Safety Board (NTSB) recommendations. These mandates and recommendations include:
• NTSB 15-4: Increase the positional accuracy of pipeline centerlines and pipeline attribute details relevant to safety in the National Pipeline Mapping system.
• NTSB 15-5: Revise the submission requirement to include high consequence area identification as an attribute data element to the National Pipeline Mapping System.
• NTSB 15-8: Work with the appropriate federal, state, and local agencies to develop a national repository of geospatial data resources for the process for High Consequence Area identification, and publicize the availability of the repository.
• NTSB 15-22: Develop and implement a plan for all segments of the pipeline industry to improve data integration for integrity management through the use of geographic information systems.
• Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, Section 11: Any other geospatial or technical data, including design and material specifications, that the Secretary determines are necessary to carry out the purposes of this section. The Secretary shall give reasonable notice to operators that the data are being requested.
The following table shows the applicable data elements.
Several commenters, as well as attendees of the November 2015 Operator Workshop, expressed serious concerns about the use of the word “predominant.” These concerns centered on how the usage of predominant attributes is poorly defined, difficult to verify compliance with, and risks improper categorization of pipeline risk. From a technical standpoint, operators indicated it was more difficult for them to generalize values into a “predominant” value than to submit actual values. For these reasons, submitting a “predominant” value will always be optional. Appendix A of the NPMS Operator Standards details the data elements for which “predominant” is an option.
PHMSA has heard operators' and industry's concerns regarding the amount of time needed to compile, research, and/or prepare the data required for this information collection. PHMSA will collect the new data elements in three phases. Phase 1 data will be collected the first submission year after the effective date, Phase 2 data will be collected the second submission year after the effective date, and Phase 3 data will be collected in 2024. The data elements in each phase are listed below:
The following information is provided for this information collection: (1) Title of the information collection, (2) OMB control number, (3) Current expiration date, (4) Type of request, (5) Abstract of the information collection activity, (6) Description of affected public, (7) Frequency of collection, and (8) Estimate of total annual reporting and recordkeeping burden. PHMSA requests comments on the following information collection:
The agency will summarize and/or include your comments in the request for OMB's clearance of this information collection.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Office of the Comptroller of the Currency (OCC).
Notice and request for comments.
The OCC, 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 information collections, as required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information
The OCC is soliciting comment concerning renewal of its information collection titled, “Minimum Security Devices and Procedures, Reports of Suspicious Activities, and Bank Secrecy Act Compliance Program.” The OCC also is giving notice that it has sent the collection to OMB for review.
Written comments should be received on or before July 22, 2016.
Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by email, if possible. Comments may be sent to: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557-0180, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219. In addition, comments may be sent by fax to (571) 465-4326 or by electronic mail to
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Additionally, please send a copy of your comments by mail to: OCC Desk Officer, 1557-0180, U.S. Office of Management and Budget, 725 17th Street NW., #10235, Washington, DC 20503, or by email to:
Shaquita Merritt, OCC Clearance Officer, (202) 649-5490 or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597, Office of the Comptroller of the Currency, Washington, DC 20219.
The OCC requests that OMB extend its approval of the following collection:
Under 12 CFR 21.2 and 21.4 and 12 CFR 168.2 and 168.4, national banks and Federal savings associations are required to designate a security officer who must develop and administer a written security program. The security officer shall report at least annually to the institution's board of directors on the effectiveness of the security program. The substance of the report shall be reflected in the board's minutes. These requirements ensure that each institution has a security officer who is responsible for the institution's security program and that the institution's management and board of directors are aware of the content and effectiveness of the program. These requirements are necessary to ensure prudent institution management and safety and soundness.
The Financial Crimes Enforcement Network (FinCEN) and Federal financial institution supervisory agencies
In 1992, the Department of the Treasury was granted broad authority to require suspicious transaction reporting under the Bank Secrecy Act (BSA).
Banks and savings associations are required to maintain a copy of any SAR filed and the original or business record equivalent of any supporting documentation for a period of five years. The documents are necessary for criminal investigations and prosecutions.
Under 12 CFR 21.21, national banks and savings associations are required to develop and provide for the continued administration of a program reasonably designed to assure and monitor their compliance with the BSA and applicable Treasury regulations. The BSA compliance program shall be reduced to writing, approved by the board of directors and noted in the minutes. These requirements are necessary to ensure institution compliance with the BSA and applicable Treasury regulations.
On March 25, 2016, the OCC published a notice for 60 days of comment concerning this collection, 81 FR 16277. No comments were received. Comments continue to be invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information shall have practical utility;
(b) The accuracy of the OCC's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of the Comptroller of the Currency, Department of the Treasury.
Notice.
The Office of the Comptroller of the Currency (OCC) announces a meeting of the Minority Depository Institutions Advisory Committee (MDIAC).
The OCC MDIAC will hold a public meeting on Tuesday, July 12, 2016, beginning at 8:30 a.m. Eastern Daylight Time (EDT).
The OCC will hold the July 12, 2016 meeting of the MDIAC at the Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.
Beverly Cole, Designated Federal Officer and Senior Advisor to the Senior Deputy Comptroller for Midsize and Community Bank Supervision, (202) 649-5420, Office of the Comptroller of the Currency, Washington, DC 20219.
By this notice, the OCC is announcing that the MDIAC will convene a meeting at 8:30 a.m. EDT on Tuesday, July 12, 2016, at the Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219. Agenda items will include current topics of interest to the industry. The purpose of the meeting is for the MDIAC to advise the OCC on steps the agency may be able to take to ensure the continued health and viability of minority depository institutions and other issues of concern to minority depository institutions. Members of the public may submit written statements to the MDIAC by any one of the following methods:
The OCC must receive written statements no later than 5:00 p.m. EDT on Tuesday, July 5, 2016. Members of the public who plan to attend the meeting should contact the OCC by 5:00 p.m. EDT on Tuesday, July 5, 2016, to inform the OCC of their desire to attend the meeting and to provide information that will be required to facilitate entry into the meeting. Members of the public may contact the OCC via email at
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 22, 2016.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Brian McCarthy at (202) 461-6345.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Office of Management, Department of Veterans Affairs.
Notice.
The Office of Management (OM), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 22, 2016.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Ricky Clark at (202) 632-5400, Fax (202) 343-1434.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
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.
By direction of the Secretary.
Office of Management, Department of Veterans Affairs.
Notice.
The Office of Management (OM), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 22, 2016.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Ricky Clark at (202) 632-5400, Fax (202) 343-1434.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
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.
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 22, 2016.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Brian McCarthy at (202) 461-6345.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
The registry provides a mechanism to catalogue prominent symptoms, reproductive health, and diagnoses and to communicate with Agent Orange Veterans. VA keeps Veterans informed on research findings or new compensation policies through periodic newsletters. The voluntary, self-selected nature of this registry makes it valuable for health surveillance; however, it is not designed or intended to be a research tool and therefore, the results cannot be generalized to represent all Agent Orange Veterans.
By direction of the Secretary:
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA) is announcing an opportunity for public comment on the proposed collection of certain
Written comments and recommendations on the proposed collection of information should be received on or before August 22, 2016.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Brian McCarthy at (202) 461-6345.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
This request does not include a form. This informal process only requires submission of a written request for reconsideration denial of healthcare benefits.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 22, 2016.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Human Resources Administration, Department of Veterans Affairs.
Notice; comment request.
The Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 22, 2016.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Jean Hayes at (202) 461-7863.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VA's functions, including whether the information will have practical utility; (2) the accuracy of VA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
Office of Management, Department of Veterans Affairs.
Notice.
The Office of Management (OM), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 22, 2016.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Ricky L. Clark at (202) 632-5400, Fax (202) 343-1434.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
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.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before July 22, 2016.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-5870 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.
Office of Management, Department of Veterans Affairs.
Notice.
The Office of Management (OM), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 22, 2016.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Ricky L. Clark at (202) 632-5400, Fax (202) 343-1434.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c) (2) (A) of the PRA.
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.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 22, 2016.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Office of Management, Department of Veterans Affairs.
Notice.
The Office of Management (OM), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 22, 2016.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Ricky Clark at (202) 632-5400, Fax (202) 343-1434.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C.
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.
By direction of the Secretary.
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 |